On 21 September 2021, the Scottish Government released the Aquaculture Code of Practice (the "Code"). The aim of the Code is to address the impact of marine mammal interactions upon the containment and escape of fish at fish farms. It sets out the appropriate containment measures and reporting requirements expected of "Aquaculture Production Businesses in Scotland (“APBs”).
What is an APB?
The Code defines an APB as "authorised to operate under the Aquatic Animal Health (Scotland) Regulations 2009", meaning any business carrying out activities related to the keeping, rearing or cultivation of aquaculture animals.
What is the aim of the Code?
Seals – amongst the most widely found marine mammals in Scottish waters – may be attracted to fish farms, particularly where they learn to associate farmed fish as a potential source of food. This can result in damage to nets and other aquaculture equipment which can then have an adverse impact upon the containment of farmed fish.
In light of this threat, the Code sets out:
- Guidance on the use of containment measures at fish farms (such as the use of tensioned or false-bottomed nets; the use of predator nets and the use of acoustic deterrent devices - see section 2.1 of the Code);
- Mandatory standards for APBs in relation to containment measures for marine mammal interactions (for example, you must not take any deterrent action which is specifically targeted at a marine mammal calf or pup; you must not feed or attempt to feed a marine mammal for any purpose (including taste aversion - see section 2.2 of the Code)
- Guidance on mandatory reporting requirements including for the killing or injury of marine mammals in the form of "bycatch" at fish farms to Marine Scotland within 48 hours of the APB becoming aware of the incident (see sections 3.1 and 3.2 of the Code).
- The information provided by APBs as result of the mandatory standards contained in section 3.2 will be subject to requests for information under both the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 which enable the public to access information held by the Scottish Government and its agencies.;
- Guidance on reporting requirements relating to the use of containment measures at fish farms on an annual basis, including nil returns where no containment measures are required (see sections 3.1 and 3.2 of the Code).
Appropriate containment measures are likely to vary between fish farms due to a range of factors including the presence of marine mammals and the behaviour of individual animals.
Consequences of failure to comply with the Code
The mandatory standards specified in sections 2.2 and 3.2 of the Code are subject to monitoring and enforcement processes as provided for in the Aquaculture and Fisheries (Scotland) Act 2007 (“2007 Act”).
A staged approach is taken, ranging from monitoring, the delivery of a notice requiring compliance, with the ultimate sanction being a maximum fine of £2,500.00 for a failure to comply with such a notice. There is a right of appeal against a notice by summary application to the sheriff.
It is important to note that the content of this Code does not change existing responsibilities found in related legislation e.g., the welfare of fish-on-fish farms found in the Animal Health and Welfare (Scotland) Act 2006, or the protections afforded to seals and other marine mammals in (for example) the 2007 Act, the Conservation (Natural Habitats, &c.) Regulations 1994 and the Marine (Scotland) Act 2010.
If you have any queries related to the above, or any other aquaculture-related matter, please get in touch with Jackie McGuire or Johanna Boyd.
Contributor
Trainee Solicitor
