New technical requirements for aquaculture facilities in the sea: NYTEK23 and NS 9415:2021

NYTEK23 comes into force on 1 January 2023, and from the same date the NYTEK regulations from 2012 are repealed. Section 50 of NYTEK23 includes a transitional provision which means that until 1 January 2024 you can choose whether to follow the new or old regulations. This is practical for e.g. initiated certification processes.

The outgoing regulation is closely linked to the Norwegian Standard for floating aquaculture facilities - NS 9415:2009 “Floating aquaculture facilities - Site investigation, planning, execution and use”. The arrangement is that the technical requirements as the clear main rule must be met during planning and execution according to NS 9415:2009. NS 9415 has now been updated in the 2021 version, a work that has taken place in parallel with the regulatory work to ensure harmonisation. NS 9415, now in the 2021 version, will also be central to NYTEK23, but a significant difference in the new regulation is that it is opened to a greater extent to document the fulfilment of technical requirements when using other national or international standards.

There is a long and extensive work process behind both the revision of the standard and the regulation. The consultation shows that the work is mainly welcomed by the industry.

In the following, some key issues related to the content of the new system are pointed out. Mainly, the essence of the existing arrangement is continued, but the authorities have found it appropriate to carry out a comprehensive revision through a completely new regulation, among other things to ensure harmonisation with the revised NS 9415:2021, and to facilitate new technology and more non-traditional aquaculture facilities. At the same time, several material changes are also proposed.

More technology-neutral scope - same purpose

The scope of the regulation is extended to apply to aquaculture facilities in seas, lakes and waterways. The scope is no longer limited to floating facilities, but will also include e.g. fixed installations and consequently the purpose is made more technology-neutral. The purpose is still to prevent the escape of fish by ensuring sound technical standards at aquaculture facilities in the sea.

The responsibility for compliance with the regulation and the consequences of a breach

It has been made clear to a greater extent that the overall responsibility for complying with the regulation lies with the holder of the aquaculture permit. It is the owner who has overall responsibility for, among other things, the facility and associated equipment and components meeting the requirements of the regulations (Section 6). The producer and supplier are responsible for ensuring that their execution and deliveries meet the requirements of the regulations (Section 7).

The owner, producer, supplier and accredited certification body can all be penalised for breaching several of the obligations in the regulation, see chapter 10. The most relevant is the penalty for violations, which is discussed below.

Greater freedom to document technical requirements in a different way than through NS 9415

The current regulation sets out little of its own technical requirements, but largely refers to NS 9415:2009, and stipulates that the requirements stated there must be met (and documented as met).

In NYTEK23, the technique is somewhat different as the regulation now sets its own technical requirements. This is in the form of functional requirements, i.e. requirements that are of a qualitative nature about a specific effect (e.g. “sufficient load-carrying capacity” in Section 18), as opposed to certain detailed requirements about a concrete design or solution.

The introduction of functional requirements is combined with the holder being given greater freedom to choose the way in which the fulfilment of the functional requirements is to be documented. The requirements can normally be documented with either NS 9415:2021, a European standard, a national standard in the EEA area or an international standard with a corresponding safety level (Section 6). If the mentioned standards are not sufficient or suitable, e.g. in the case of non-traditional facilities, new technological solutions, more exposed facilities, etc., compliance must be documented in another way. If other solutions are chosen than those specified in NS 9415:2021, possibly in other known standards, it must be documented that the solutions meet the (functional) requirements of the regulation, and ensure safety against failure or accidents that could lead to the escape of fish is equivalent or better than in NS 9415:2021 (Section 6 third paragraph).

To the extent that it is necessary to project “outside” NS 9415:2021, it is currently the case that the requirements for analysis and documentation of the solution in practice are tightened compared to the use of known, well-tested solutions.

The legislative technique in NYTEK23 is, among other things, known from the building technical regulation (TEK17) which applies to land-based buildings where documentation of fulfilment of functional requirements can either be documented through the use of pre-accepted performances or analysis that shows that the performances meet the functional requirements, cf. TEK17 Section 2-2. The understanding and industry practice for analysis within the scope of the Planning and Building Act will probably be able to provide guidance in this regard.

Correspondingly, case law in liability cases (projecting errors) for breaches of TEK17 could have transfer value for projecting services up to NYTEK23. The Directorate of Fisheries highlighted in the consultation memo that freedom of alternative documentation will be able to promote the development and use of new technology. At the same time, the regulation is harmonised and still closely linked to NS 9415:2021, which will probably be the most relevant way to document compliance with the regulation for most facilities in the foreseeable future.

But where NS 9415 is not very suitable, NYTEK23 now offers the possibility of alternatives for the documentation.

Increased flexibility in the facility certificate scheme - from inspection to verification

NYTEK23 continues, with some changes, the current scheme with a facility certificate issued by an accredited inspection body as a prerequisite for use of the facility, including continuing the many conditions that must be met before a certificate is granted (see figure). Today's absolute requirement for a physical inspection by an accredited inspection body before issuing a facility certificate is repealed (NYTEK 2011 Section 25 second paragraph). Instead, the body must “verify” the fulfilment of the various requirements (Section 37).

The reason for the change from inspection to verification is to avoid technology-limiting requirements. In practice, this means that physical inspection is no longer an absolute requirement. In practice, however, physical inspection may still be considered necessary in order to fulfil the functional requirement of achieving a satisfactory “verification”. The consultation memo mentions an example with a crack formation that may necessitate a physical inspection.

What is needed to fulfil the criterion of verification must be assessed concretely, and a separate practice will probably be developed at this point on what is acceptable for most facilities. Relevant methods here can be the use of images, video and other solutions.

If the facility is not in use at the time of issuing the facility certificate, the condition that the facility’s components are in a technically sound condition and installed in accordance with a user manual is waived, if a simplified scheme is followed according to Section 37, second paragraph.

The scheme requires the holder to create procedures to ensure technically sound condition and installation before use and submit them to an accredited inspection body. Furthermore, that the holder notifies the body in advance of the stocking of fish and that a verification of the technical condition and installation is carried out within 30 days at the latest.

The regulation is welcome as it addresses a practical challenge where, according to outgoing regulations, the holder often receives a facility certificate in a hectic period just before stocking of fish, which often happens over a period where net cages and other equipment are also continuously put out.

Technical deviations that are not significant do not prevent the issuance of a facility certificate

Another relaxation is that a facility certificate is allowed despite deviations, as long as these are not significant (Section 37 third and fourth paragraphs). Such deviations must then be rectified within a reasonable deadline set by the accredited inspection body.

What is a reasonable deadline and what is a significant deviation must be assessed concretely, and in particular against the purpose of the regulations to prevent escape of fish. As is also highlighted in the consultation memo, an identifiable deviation that poses a serious risk of escape, and which requires immediate corrective measures, will qualify as a significant deviation. Such deviations mean that a facility certificate cannot be issued.

In practice, the accredited inspection body will have room for discretion both to define the degree of seriousness of the deviation and what deadline is reasonable. An example that can be imagined is that a significant deviation is identified, but which is limited to a part of the facility, and where a facility certificate can still be issued based on the assumption that this particular net cage is not used until the deviation is rectified. Here, too, there is reason to believe that a certain practice will eventually become established.

New scheme with partial revision

The new regulation is also more flexible with regard to updating the facility certificate in the event of changes in the configuration or other prerequisites (Section 40). According to the outgoing regulation, changes must go through the entire process of certification of the facility in its entirety, unless such future changed configuration is taken into account in the facility certificate itself. The industry has experienced this as inflexible. In NYTEK23, it is possible to describe the future configuration in the facility certificate, which allows for changes within such a description (Section 39), and at the same time there is the possibility to make updates to existing facility certificates limited to what is new, without having to go through a full new process (Section 40). Such a partial revision must naturally be carried out by an accredited inspection body.

Penalty for violations – for the holder, accredited inspection body and producer/supplier

Penalties for violations are the most relevant reaction for violations of the NYTEK regulations, and the authority for this sanction is included in the reaction regulations Section 7 letter e). The sanction authority is currently limited to infringements of the NYTEK regulations Section 24 (requirement for a facility certificate before the implementation of a new facility).

With the introduction of NYTEK23, the reaction regulations Section 7 letter e) are expanded so that penalties for violations can also be imposed on the holder in the event of a breach of the terms of the facility certificate (Section 36), breach of the duty to keep the facility in a technically sound condition (Section 43) and the duty to implement and notify measures in case of deviations (Section 44 second paragraph).

Furthermore, penalties for violations can be imposed against an accredited inspection body whose facility certificate has been issued without the conditions for this having been met (Section 37), in the event of failure to withdraw the facility certificate (Section 37) and in the event of deficiencies in reporting to the Directorate of Fisheries after the facility certificate has been issued (Section 42).

Producers and suppliers of equipment may be charged a penalty for violation for breaching the duty to notify and implement measures without undue delay if they have or should have knowledge of deviations in their own products or services (Section 44).

NYTEK23 consequently entails a sharpening of the authorities’ instruments in order to be able to react to all those who have been given duties pursuant to the regulation, i.e. both the holder, accredited bodies and the producer and supplier of equipment. The upper ceiling for penalties for violations is still 15 G (approx. NOK 1.65 million).

Contractual relationship between the fish farmer, equipment supplier and accredited body

NYTEK23 regulates the before-mentioned actors’ duties and responsibilities towards the authorities, but not the private law relationships between the actors in the agreements that are entered into. Violations of the regulations and any standards may constitute a breach of contract between the parties, depending on what must be considered to have been agreed (both expressly and presumptively).

Here, questions may arise about quality defects, advice errors or delays in what is delivered, there may be payment defaults and cases of continuation of losses suffered due to sanctions imposed.

The contractual framework should necessarily be adapted to the new regulations in the regulation with associated standards, as a key purpose of the services that are contractually regulated is normally to ensure fulfilment of the regulations’ current requirements at all times.

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The article is also published on Norsk Fiskeoppdrett/Kyst.no.