Aquaculture - code of practice: consultation analysis report

4. Comments on Key Themes

In this section, written responses (received through email and the Citizen Space consultation portal) have been categorised according to the major themes. This section is intended to provide explanation or background to the Scottish Government's decision-making process or the assessments produced as part of the consultation.

Numbers of responses under each theme are not quantified as this is covered under section 3 of this report. As with section 3, a single response may include multiple themes. Most comments raised by one or more response have been included, as long as the comment was relevant to the consultation and requires clarification or answer. General comments with no specific theme or query have not been included.

4.1. Enforcement of the Code of Practice

4.1.1. Several respondents expressed concerns that implementation of the Code of Practice would not be enforceable.

Marine Scotland already enforces the provisions of the 2007 Act, this work being undertaken by Fish Health Inspectorate.

Enforcement of the Code will be further enhanced through involvement of Marine Scotland Compliance who also hold responsibilities for enforcement of the regime for European protected species (EPS) in the context of use of ADDs (alongside the role of Marine Scotland's Licensing and Operations Team in implementing the EPS licensing regime). Marine Scotland is satisfied that the Code can be appropriately monitored and enforced.

4.1.2. Several respondents challenged the assumption that there would be a generally high level of compliance with the Code of Practice amongst APBs.

The Code contains a specific mandatory standard which requires APBs to provide information which is clear and comprehensive and not deliberately misleading or false. The Code also provides steps, addressed in response to the following question, that Scottish Ministers may take where necessary to secure compliance.

4.1.3. In the event of an APB's non-compliance with the Code, respondents have requested clarity on what other steps Scottish Ministers may take in securing compliance with the Code and details of who will be responsible for deciding next steps.

Where an APB is non-compliant with the Code, they would be required to take all necessary steps in order to comply with the Code. Scottish Ministers may serve a notice requiring the taking of such other steps, as required, in circumstances where necessary to secure compliance. These necessary other steps would be determined on a case-by-case basis depending on the circumstances of the individual case.

4.1.4. Several respondents shared concerns that the penalties for non-compliance with the Code would not be high enough to compel APBs to conform with the Code. Suggestions included the inclusion of higher maximum fines, in line with costs of containment measures, fines per fish escaped and the option of the closure/ suspension of non-compliant farms.

Penalties for non-compliance with the Code are part of a wider penalty structure provided within the underlying legislative framework. A change to these penalties would require changes to this wider structure and its underpinning legislation, which is beyond the scope of this consultation exercise.

4.1.5. One respondent suggested that the Code should also introduce monitoring and reporting of seal attacks to enable a thorough assessment of the scale of marine mammal interactions with fish farms and the necessity for mitigation measures.

The responsibility for identifying necessary mitigation measures under the Code rests with APBs. The Code recognises that the level of seal attacks on fish pens is likely to vary between fish farms depending on a range of factors, and that the need for mitigation measures will not be uniform throughout the sector. However, there are concerns about the practicality of requiring fish farms to monitor and report on all seal attacks, and the threshold for such attacks would require to be defined. Such an approach would also require a monitoring regime to be prescribed that allowed consistent collection of data to provide a quantification of seal attacks that was considered reliable. Quantification of seal attacks by APBs is not considered necessary in order to comply with the purpose of the Code.

4.2. Challenges/Practicalities of implementing the Code of Practice

4.2.1. Some respondents expressed concerns that the requirement to "report any incident of killing or injury of marine mammals in the form of bycatch within 48 hours of becoming aware of the incident" is too short a timeframe and could be unachievable for APBs. Whereas another respondent considered that rapid reporting would be important, especially in relation to injured mammals.

It is important that any incidents are reported as quickly as possible for timely responses to take place, including the potential need for post-mortem examination by the Strandings Scheme. This is the basis on which APBs are required to report any bycatch within 48 hours of becoming aware of the incident. The Code includes the term "becoming aware" in recognition of the fact that, on occasion, there may be a difference between the time of the incident occurring and the time of the APB, or any member of its staff becoming aware of it..

4.2.2. Some respondents requested Marine Scotland to provide an online submission system for reporting, rather than expecting forms to be submitted by email or post.

Marine Scotland will seek to develop an online facility for reporting which will be included, alongside any other necessary amendments in a future review of the Code. Until then, we ask that APBs use the submission methods currently set in the Code.

4.2.3. Some respondents requested that all containment measures are reported on annually.

We consider this to be a reasonable request and have removed requirements for quarterly reporting from the Code.

4.2.4. Some responses noted that it is a standard expectation that information included in reporting to Marine Scotland is clear and comprehensive and not deliberately misleading or false. They asked that this expectation be included in guidance rather than set out as a mandatory requirement. However, other responses have suggested that reporting of this nature is often unreliably reported.

Inclusion of this mandatory standard has been retained as it sets a reasonable expectation on APBs that help to ensure that the quality of information submitted via reporting is of a high quality. The standard is also being retained for the reasons set out is response to point 4.1.2.

4.2.5. Some responses requested that the reporting requirements should exclude inactive or fallow farms that do not have stocks of fish or containment measures in place.

Inactive or fallow farms that have fish farm equipment on site may pose risks to marine mammals and for this reason these farms should continue to be subject to the reporting requirements

4.2.6. Some responses noted that the level of detail required in Reporting Form (02 v1) Question 2 may be unachievable for APBs. They requested flexibility be built into this.

The revised forms have been amended to allow for more flexibility, in recognition of the concerns raised by respondents.

4.2.7. Some responses queried why an eight figure National Grid Reference (NGR) was necessary for Reporting Form (02 v1) Question 5 which requests the location of bycatch incidents.

In response to these concerns, the revised forms have been amended to request a six figure NGR. This will be sufficiently precise to identify the fish farm.

4.2.8. A number of respondents queried why it was necessary, for the purposes of this Code, to report on historical use of ADDs or any future plans for marine mammal non-lethal control measures.

Upon further consideration, we agree that this information is not necessary in order to fulfil the purposes of the Code, and so these questions have been removed from the revised version of the forms.

4.2.9. The Code's Section 2.2, mandatory standard 3 requires the use of any equipment to be only in accordance with the manufacturer's guidelines and any relevant consents. Some respondents raised issues with this, noting that there may be occasions where manufacturer's guidelines are unavailable.

Guidance contained in Section 2.1 of the Code now explains that "the use of devices should be in accordance with the manufacturers guidelines when available, and any licence conditions where a licence is required." The related mandatory standard 3 has also been updated to reflect this.

4.2.10. The Code's Section 2.2, mandatory standard 2 requires at least one of three non-lethal containment measures be deployed. Several respondents suggested that all three of these measures be required.

Appropriate containment measures are likely to vary at different fish farms due to a range of factors, including the presence of marine mammals and the behaviour of individual animals. APBs are required to adopt those measures they identify as appropriate for their particular circumstances and that are in accordance with the mandatory standards contained in the Code.

4.2.11. Several respondents made general comments indicating their view that more of the Code should be in the form of fully prescriptive, mandatory requirements, rather than guidance.

The Code is written in a way to ensure that the mandatory standards included within it are clear, unambiguous and capable of being implemented and enforced. The supporting guidance within the Code provides the relevant context to explain the need for the mandatory standards and to provide guidance in relation to their implementation.

4.3. General criticism of aquaculture industry

4.3.1. Several respondents criticised the impact that open sea aquaculture may have upon the marine environment. They requested that the Scottish Government and Marine Scotland take more action on this and suggested that the Code does not address this sufficiently. Some responses went further and advocated for closed containment of aquaculture as the only long term solution to prevent marine mammal predation, disturbance to marine mammals and marine pollution.

The purpose of this Code is the containment of and prevention of the escape of fish on marine pen fish farms in relation to marine mammal interactions. The measures proposed are therefore outwith the scope of this Code.

Environmental impacts are managed by a strict regulatory consenting and licensing frameworks which continue to regulate this area, in addition to the proposed requirements within Code.

4.4. Alternative/Enhanced technological solutions

4.4.1. One response pointed to the implementation of aeration devices in the form of bubble rings or curtains as a possible means of achieving improved water quality.

Aeration and bubble systems are considered in the review of non-lethal seal control options to limit seal predation on salmonids in rivers and fish farms report (Thompson et al, 2021). Their use as a containment measure is novel and unproven for the purpose of deterring marine mammals. Therefore, organisations would be required to consult Marine Scotland before deploying this approach, in accordance with the proposed requirements within the Code.

4.5. Basis of evidence for the Code of Practice

4.5.1. Some organisations have pointed to a lack of evidence on the effectiveness of ADDs and the potential that they could cause harm to marine mammals, citing several references.

The Code sets a clear expectation that any deployment of ADDs must be in the context that they do not cause harm to marine mammals. As stated in the Code, any proposal to use predator control measures, including ADDs, must be compatible with the Habitats Regulations, which afford protection to cetaceans by prohibiting their deliberate or reckless capture, injury, disturbance and killing. Such proposals must also be consistent with the protections for seals within Part 6 of the Marine (Scotland) Act 2010 from intentional or reckless injury, taking and killing.

4.5.2. Some responses expressed concerns with the manner in which evidence on the efficacy of High-density polyethylene (HDPE) nets was presented in the Code. Two respondents maintained that the reference to this evidence could be construed as misleading insofar as it suggested that HDPE nets were not part of good practice for APBs. Two other respondents also suggested implementation of HDPE netting at fish farms should be included as a mandatory requirement within the Code.

Thompson et al (2021) note that "HDPE netting materials being trialled at farm sites in Scotland were stronger and more rigid and therefore likely to make seal incursions more difficult." However, despite their increased uptake across fish farms and being generally held as good practice amongst APBs, there is little data available to prove their long term effectiveness. The Code has been amended to make this distinction clear.

Although HDPE nets may be useful as a containment measure, fish farms may be able to prevent the use of marine mammal interactions without their use. Therefore it would be unnecessarily prescriptive to include them as a mandatory standard.

4.5.3. One response pointed to the limited understanding of the effects of stress in farmed fish. They maintained that, while the presence of a predator may contribute to stress levels in fish, there is uncertainty around this and evidence also points to other likely sources of stress.

The Code does not intend to present seal presence as the primary source of stress for farmed fish. The language in the revised Code has been updated to reflect that seals may be one of the causes of stress in farmed fish.

4.6. Clarity of the Code of Practice

4.6.1. One respondent requested clarification concerning the conditions where "no containment measures in relation to marine mammal interactions are required in relation to marine mammal interactions" as set out in Section 2.2, mandatory standard 1 of the Code. They expressed a preference for a conservation body to be given authority to decide when containment measures in relation to marine mammal interactions are not required.

In circumstances where a fish farm has no interaction with marine mammals, no containment measures in relation to marine mammal interactions would be required. It is the responsibility of APBs to establish to Marine Scotland that this is the case. APBs are well placed to do this, and such considerations are also relevant to the fulfilment of their obligations concerning the health and welfare of their fish stock.

4.6.2. Similarly, two other respondents raised the language as set out in Section 2.2, mandatory standard 2, "Where containment measures in relation to marine mammal interactions are necessary." They suggest that, with a primary net in use, containment measures will always be necessary.

Although a primary net is required to contain fish stocks, additional containment measures in relation to marine mammal interaction will not always be necessary if there are no interactions with marine mammals at the fish farm.

4.6.3. Paragraph 30 of the Code states that "It is important to note that even in scenarios where an EPS Licence would not be required for the use of an ADD (for example, in circumstances where there are no cetaceans present at the location) harm to all marine mammals, including seals, must be avoided." One respondent requested removal of the example provided as it could create the impression this is the only circumstance an EPS licence would not be required.

This has been retained in the revised Code as it is evident in the statement that this is an example. By providing one example it is clear that it is not considered to be the only circumstance where an EPS licence would not be required for the use of an ADD.

4.6.4. Two responses maintained that the Scottish finfish aquaculture Code of Good Practice ("CoGP") is not published by the Scottish Salmon Producers Organisation ("SSPO") as stated in the Code. The CoGP is owned by a CoGP management group with the SSPO providing secretariat and advisory functions only. It was also noted that the CoGP is a dynamic document which is subject to change.

The reference to the CoGP in the revised Code has been updated to reflect the correct publisher. As with all codes of practice and industry guidance, the potential need for periodic review also applies to this Code.

4.6.5. A number of responses raised issues with clarity over the distinction of measures considered to be "active" or "passive" deterrents.

On review, this distinction was considered to be unnecessary for the purposes of the Code. Therefore, in response to this concern, all references to "active" or "passive" deterrents have been removed in the revised Code text.

4.6.6. The Code's Section 2.2, mandatory standard 5 stated that "You must not take any active deterrent action which is specifically targeted at a marine mammal calf or pup". One response suggested this should be changed to apply to all marine mammals, not only calves and pups.

As per the point 4.6.5, references to "active" deterrents have been removed from the Code. The rest of this standard will be retained as the Code establishes the need to deter marine mammals to protect the health and welfare of fish stocks, fish farm staff, and marine mammals themselves.

4.6.7. Some responses requested clarification on the extent to which data collected, via the monitoring and reporting requirements of the Code, will be subject to FOI request.

The information provided by APBs as result of the mandatory standards contained in Section 3.2 of the Code 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. This clarification has been added to the revised Code.

4.6.8. Paragraph 31 of the Code relates to novel containment measures and states that "before any such novel measures are deployed, it will be necessary for APBs to consult with Marine Scotland to ensure the suitability of the intended measure." Some responses sought clarity on whether Marine Scotland should also be consulted in relation to the research and trial of novel measures.

Marine Scotland should be consulted on the suitability of the intended measure whenever novel measures are deployed, including scenarios where those methods are being trialled. In response to this comment, clarification on this has been added to the revised text of the Code.

4.6.9. A number of requests for clearer definitions on the terms "containment measures" and "ADDs" were received.

In order to clarify this, the revised text of the Code now contains text boxes with definitions of these terms.

4.6.10. Paragraph 10 of the Code states that the "Daily emptying of any dead fish baskets is also required and seal blinds are to be used to cover the basket." Two responses queried the language of paragraph 10, arguing that it seems to make two measures mandatory and, if so, may contradict Section 2.2, mandatory standard 2 of the Code, which requires at least one method be deployed. One response also made the point that it should be completely clear what is considered a mandatory requirement and what is considered guidance for APBs.

The text of the Code has been amended in the guidance section in order to ensure consistency with the mandatory requirement. Overall, the Code is structured in a way that makes it clear what elements are guidance only and what elements comprise mandatory standards.

4.6.11. Paragraph 9 of the Code refers to "appropriate containment measures" to mitigate the impact of marine mammal interactions with fish farms while ensuring measures are not harmful to marine mammals. One response requested clarity on who will decide what measures are "appropriate" and whether this will depend on local circumstances at each farm.

This Code recognises there is variation in local circumstances which mean that appropriate measures may vary at different locations. By adopting measures that are appropriate to local circumstances and in accordance with the mandatory standards of the Code, APBs will be able to adopt those containment measures that are required. It is for APBs to decide on which measures are appropriate in order to adhere to the Code. The text of the revised Code has been updated to ensure clarity on this point.

4.7. Place of the Code in the wider regulatory framework for aquaculture

4.7.1. Some responses requested clarification on whether the Code will be subject to review in the future and whether there will be an opportunity for engagement around this.

Best practice is likely to change as both technology and knowledge improve. Any new measures or other changes to best practice would need to be reflected in the requirements of the Code. Any future updates to the Code would be subject to the same process of public consultation that informed the development of the Code. Additional text has been added to the revised Code to reflect this.

4.7.2. The Code's Section 2.2, mandatory standard 3 states that "When using your equipment, you must do so only in accordance with the manufacturer's guidelines and any relevant consents." Some responses suggested that the "relevant consents" requested are covered by separate compliance measures and underpinning legislation.

This standard helps to ensure proper adherence to those consents whilst avoiding duplication of what is specifically required from APBs under any separate legislation for which the consents are required.

4.7.3. The Code's Section 2.2, mandatory standard 8 states that "If you plan to deploy an ADD you must consult Marine Scotland and obtain any relevant consents or you must demonstrate that the planned use will not harm marine mammals." Some responses suggested this requirement is not necessary as it would be covered in separate legislation regarding EPS licensing.

Under the Conservation (Natural Habitats, &c.) Regulations 1994, it is an offence to recklessly or deliberately disturb any cetacean without an EPS licence. The Code is careful to note that there may be scenarios where an EPS Licence may not be required for the use of an ADD (subject to undertaking a full assessment as per the requirements of the guidance issued by Marine Scotland). Even in these scenarios, harm to all marine mammals, including seals, must be avoided, and this must be demonstrated through consultation with Marine Scotland. The wording of this mandatory standard has been retained.

4.8. Other proposals beyond scope of this Code of Practice consultation

4.8.1. Some comments were outside the scope of this consultation, generally because they referred to activities that are not directly relevant to containment measures in relation to marine mammal interactions or because they are underpinned by separate legislation. Where relevant, these comments were passed on to the relevant policy areas of the Scottish Government for their information. The comments considered in this section were all outwith the scope of this Code of Practice.

4.8.2. Several respondents specifically requested that the Code should do more to manage and control the use of ADDs.

A common request was that ADDs should be banned or only be used under licence. Some respondents considered that it would be impossible not to disturb cetaceans through use of an ADD and, where there is limited data on disturbance thresholds, on this a precautionary approach should be taken to the use of ADDs.

Other suggestions included:

• ADDs should not be used in sensitive areas for cetaceans
• APBs should first demonstrate the need for ADDs and how they will use them, including time period and how they will avoid disturbing cetaceans
• All physical barriers should be in place first before ADDs considered.

Cetaceans receive a high level of protection in Scottish waters. All cetaceans are European Protected Species ("EPS") in accordance with the Conservation (Natural Habitats, &c.) Regulations 1994, which makes it an offence to recklessly or deliberately kill, injure, capture or disturb any cetacean.

The purpose of this Code is to address the impact of marine mammal interactions upon containment and escape of fish at fish farms. The measures proposed by respondents relate to the potential for ADDs to injure or disturb cetaceans, which is regulated through EPS licensing. All EPS licence applications are considered on their own merits and take account of all relevant factors.

A statutory report was submitted to Parliament on 1 March 2021 on the use of ADDs at Scottish fish farms. The report identified three conclusions aimed at improving the evidence base in relation to ADDs through research and monitoring, more systematic information recording on ADD use and, if necessary, additional regulatory measures to ensure consistency and to meet international obligations. We are working closely with the aquaculture industry and relevant stakeholders to take forward the conclusions in this report.

Marine Scotland has written to the aquaculture sector to remind them of their obligations in relation to the EPS regime, and they are aware of their responsibility to both the health and welfare of their fish and the protection of marine mammals. In addition, Marine Scotland Compliance is undertaking checks to ensure compliance with the Habitats Regulations in relation to the use of ADDs.

4.8.3. Some responses requested the location of fish farms to be addressed in the Code. They raise the concern that several farms are already located in areas which they argue could be considered to be sensitive. They have also asked why the Code does not state that operations should avoid areas used by marine mammals for migration, feeding and breeding.

The aim of this Code is to address the impact of marine mammal interactions upon containment and escape of fish at fish farms. These comments relate to the planning and development associated with locating fish farms within the natural environment and are covered by separate legislation.

As stated in under response 4.7.1, all cetaceans are EPS under the Conservation (Natural Habitats, &c.) Regulations 1994.

In order to comply with relevant legal obligations, there is now an extensive Marine Protected Area (MPA) network which covers 37% of Scotland's seas. The Code guides APBs to consider the vicinity of the fish farm to any protected areas before installing predator nets, including by consulting with NatureScot, if appropriate.

Further to this, the Dolphin and Porpoise Conservation Strategy is being developed by Marine Scotland in partnership with the Department of Environment, Food and Rural Affairs (Defra) and the other UK devolved administrations as well as all UK nature conservation bodies. The planned strategy aims to ensure that appropriate management is in place to respond to new emerging pressures affecting cetaceans in UK waters and, in this way, help maintain their favourable conservation status.

4.8.4. Two responses requested clarity as to why Marine Mammal predation is being dealt with separately from other causes of fish farm escapes.

The aim of this Code is to address the very specific impact of marine mammal interactions upon containment and escape of fish at fish farms. General measures for containment are covered by the existing Code of Good Practice for Scottish Finfish aquaculture and additional guidance is available on equipment is available in A Technical Standard for Scottish Finfish Aquaculture.

4.8.5. Some of the responses have requested more measures to protect the welfare of the farmed fish, such as reducing stock density to prevent overcrowding and the spread of infections it causes.

The purpose of this Code is the containment of and prevention of the escape of fish on fish farms in relation to marine mammal interactions; it is not intended to address general health and welfare issues which are better managed under various welfare and aquaculture legislation and related polices. The measures proposed are therefore not within the scope of this Code.