New requirements for fish carriers and other service providers, etc.

In this article, we will provide guidance on the new regulations, and assess the effect and appropriateness of the changes.

We believe it is unfortunate that the Ministry is continuing a practice of complicated regulations where it is very difficult for business parties to keep track of which rules apply. Comprehensive regulations should have been prepared that provide all the regulations for the service providers. In addition, there is a strong need for guidelines and clarification of regulations with many general requirements.

Overview

The Ministry expanded the scope of the aquaculture operation regulations by deciding that “producers of goods and services” shall be covered by some listed sections, see Section 3 second paragraph. Here, it was primarily the fish carrier shipping companies that were referenced. But other service providers will also be included, e.g. feed suppliers. The list is exhaustive – it basically leaves no doubt as to which sections apply to providers of goods and services:

• The activity must be biologically and environmentally responsible (Section 5 last paragraph).
• Personnel must have the necessary competence regarding escape (Section 6 first paragraph).
• The supplier of goods and services must have a contingency plan regarding escape (Section 7 last paragraph).
• Activity must be recorded (Section 10 last paragraph).
• Emptying of water containing medicinal products must be risk-assessed, must not be carried out at shrimp or spawning grounds, and must be carried out quickly when emptying elsewhere than at the location (Section 15 c).
• Activity must be risk-assessed and carried out with particular care to prevent fish escaping (Section 37).
• Obligation to report in case of escape (Section 38).

One can quickly see that one of the Ministry’s ambitions was to get goods and service providers to take responsibility for preventing escapes. It was naturally a sensible thought - even if the problem is smaller today than in the past, e.g. fish carrier operations still present a certain risk of escape.

Nevertheless, there are some weaknesses in the way the Ministry chose to realise this ambition.

Unfortunate division of the regulations

In the consultation memo, the Ministry believed that it would be appropriate to collect the regulations “which are justified by environmental considerations” in the aquaculture operation regulations. But the regulatory change does not manage to bring together all the environmental rules that goods and service providers must comply with. The rules in the transport regulations on hygienic operations are just one of many examples that the environmental rules are still spread over several regulations, and that the industry has to deal with a fragmented set of regulations.

We also do not agree that new sections should be placed in the regulatory body based on the considerations they must safeguard. We find it difficult to see the utility value of different considerations being safeguarded by different regulations, e.g. in that the aquaculture operation regulations must safeguard the risk of escape during fish carrier activity, while the transport regulations must safeguard fish health and fish welfare. The regulations would have become significantly simpler and more accessible to the industry if they were instead built up based on who the rules apply to. There should have been one regulation for the operation of the facility, one for fish carrier activity, etc. Then the need for such huge and complicated scope regulations such as Section 3 of the aquaculture operations regulations would have been removed. Different administrative bodies would have had to enforce different parts of the same regulation. But this is already happening today - the aquaculture operation regulations are “shared” between the Directorate of Fisheries and the Norwegian Food Safety Authority.

Unclear rules and need for guidelines

Another form of weakness in the regulations is the extensive use of vague wording. Of course, it is impossible to create a set of regulations that unequivocally clarifies the legality of all the different situations that can arise. When drafting regulations, one should nevertheless go as far as possible in clarifying the boundary between what is legal and illegal - either by providing specific clarifications, or by stating which elements the administration will emphasise in enforcement. This should preferably be done in the regulations themselves, or at least in guides to the regulations. Through supervisory practices and internal processes, the aquaculture authorities gain a completely unique insight into the various challenges the industry is facing, and the content of the regulations and management practices. In order to achieve understanding and compliance with the regulations, the aquaculture authorities have everything to gain from sharing this insight.

This was not done in connection with the amendment regulation. Vague terms such as “defensible”, “necessary”, “contingency plan” and “risk assessment” were used to a large extent. There is no guide to the aquaculture operation regulations, despite the fact that it is 15 years next summer. We can all have our own opinions about what we ourselves put into these terms. But what the aquaculture authorities meant by these formulations is only speculation.

However, we are not completely helpless when interpreting the regulation. The consultation memo for the amendment regulations provides some insight into the authorities’ original intentions with the regulations. Nevertheless, it is risky to draw conclusions from a consultation memo - consultation input may of course have caused the authorities to change their minds. One can probably draw parallels from administrative practice under the older corresponding rules for the operation of localities. At the same time, it is not obvious that the rules should be applied as strictly to providers of goods and services as to the fish farmer – the fish farmer has a significantly stronger connection to the activity on the location.

In the consultation memo, the Directorate of Fisheries provides a practical and useful clarification of the relationship between risk assessment and contingency plan: the contingency plan must follow up the risk sources identified during the risk assessment. Goods and service providers can – and should – prepare a template for contingency plans in advance, but must then be prepared to adapt the plan in light of the risk assessment. Presumably, such considerations lie behind the requirement that the contingency plan must be “updated”.

Management practices from the operation of aquaculture facilities can also tell us a lot about the importance of contingency plans and risk assessments. A consistent feature is that if the risk assessment or the contingency plan is deemed to be deficient, it wouldn’t take much for an accident that theoretically could have been averted to be considered to have been committed through negligence and thus to be sanctioned with a penalty for violation.

Risk assessments and contingency plans are good examples of areas where there is enormous potential in good and detailed guidance from the authorities to the industry. The authorities have in-depth knowledge of the reasons for recent cases of escapes, see the consultation memo pages 12-13. If this information had been presented to the industry in a detailed and clear way, it would have provided an excellent basis for the work with risk assessments and contingency plans. The preventive effect of this would be many times greater than a vague regulation with a strict threat of sanctions. The level of detail that the Directorate of Fisheries has so far focused on - e.g. that 75% of escapes are due to “holes in the closing net” - on the other hand, does little to guide the industry.

The general environmental requirement

The amendment introduces a requirement that the activity of goods and service providers must be “environmentally sound”. This is a very broad formulation – in purely linguistic terms it includes chemical pollution, genetic interference, natural diversity, fallout, the spread of parasites and diseases, emissions of greenhouse gases, etc.

We can nevertheless reassure you that the amendment regulation cannot be applied to that extent. It is authorised in the Aquaculture Act, and the Act only deals with some of the environmental factors mentioned above. The Aquaculture Act deals with chemical pollution, genetic interference and natural diversity. During the preparation of the Aquaculture Act, a clear limitation was made towards fish health - contagion considerations were to be safeguarded through the Norwegian Food Safety Authority’s supervision with the Food Act. An important practical consequence of this is that neither fish farmers nor providers of goods and services can be fined with penalties for violations based on contagion incidents.

Aquaculture at sea

As mentioned, the regulation also contains a new rule on aquaculture at sea. A new provision has been made in the aquaculture operation regulations Section 18 second paragraph on the prohibition of fishing or traveling closer than 500 meters from stationary facilities that are more than one nautical mile from the sea boundary. In this area, the Directorate of Fisheries also has the right to determine a specific temporary safety zone around a facility that applies for it.

The distance requirement for offshore aquaculture is greater than for traditional facilities, and there are good reasons for that. Nevertheless, there is little point in drawing the boundary exactly at the sea boundary - the special distance requirements should have protected all facilities in open waters.

As above, it is nevertheless a weakness that the fishing and travel ban is placed in the aquaculture operation regulations. It is not the regulation that the fishing industry, the shipping industry or owners of leisure boats consult to find out what obligations they have. Formally, it can be questioned whether the rules at all apply to fisheries, shipping and small boat traffic, when the Ministry failed to amend Section 3 on this point. A ban aimed at shipping, fishing and small boat traffic should in any case not be placed in a technical operating regulation for aquaculture. It is high time that the Ministry moves the ban on fishing and travel at aquaculture facilities to the part of the regulations that applies to fisheries and shipping.