Acoustic deterrent devices (ADDs): EIR release

Information requested

I shall be pleased if you will provide me with certain information under the provisions of the Freedom of Information (Scotland) Act and/or the Environmental Information Regulations with reference to a statement in the National newspaper that bears to have been issued by Scottish Government, on the subject of acoustic deterrent devices (ADDs) . This follows the recent ruling from Environmental Standards Scotland that Marine Scotland has been failing to require fish farm companies to comply with the law by allowing them to use such devices without applying for a licence.

In the National, an unnamed Scottish Government spokesman has been quoted as saying:
"The Scottish Government welcomes the report and conclusions of Environmental Standards Scotland (ESS)."
"ESS made a number of recommendations on how processes relating to the use of acoustic deterrent devices could be improved. These have been accepted and implemented in full and we are pleased that ESS has no ongoing concerns."
“Where fish farmers wish to use acoustic deterrent devices, their use must be compliant with the Habitats Regulations and the Aquaculture Code of Practice."
"In practice, this requires them to either obtain any relevant consents or to demonstrate that their use will not harm marine mammals."
“Marine Scotland undertakes regular compliance inspections and, to date, one deployed device has been detected. This was subsequently removed following enforcement action by Marine Scotland.”

I shall be grateful if you will, firstly, confirm if the spokesman has been correctly quoted and, if so, address the following points regarding the paragraph.

While the first part of the paragraph states the obvious, i.e. that the law will now be enforced so that a fish farm operator will be required to apply for a licence, which will only be granted if the applicant can demonstrate either that no marine mammals will be harmed or that the there is no alternative, such as the use of anti-predator nets, the second part is concerning, in that it suggests there is another route that an operator can follow. This is against the background of the clearest scientific information, which has been growing in quantity since the work done by Dr Cormac Booth, funded, I believe, by Scottish Government and published as his St Andrews University thesis in 2010 on the effects of underwater noise on cetaceans.

Accordingly I am asking you to confirm:
The procedure, other than in connection with an application for a licence, by which a person or company wishing to use an ADD may do so legally.
Which body will be responsible for dealing with the required “demonstration”?
Will the procedure be open to public participation?
Will there be a public register of such “demonstrations”?
What standard of proof will be required?
Will there be an appeal procedure, other than by Judicial Review?

Response

As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (“EIRs”), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (“FOISA”), so that we do not also have to deal with your request under FOISA.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

The answer to your initial question is that Scottish Government (SG) News has confirmed the veracity of the quotation you cite from The National regarding the recent Environmental Standards Scotland (ESS) report.

I set out our responses to your remaining questions below:

The procedure, other than in connection with an application for a licence, by which a person or company wishing to use an ADD may do so legally.
The Aquaculture: code of practice - gov.scot (www.gov.scot) (“the Code”) sets out standards expected from Aquaculture Production Businesses (“APB”) in order to provide for containment of fish on fish farms. Section 2.1 of the Code states (at para 30) that use of any ADD must be in accordance with Marine Scotland’s Information Note and Frequently Asked Questions for the Operators of Finfish Farms on the use of Acoustic Deterrent Devices and the Requirement for a European Protected Species Licence (“FAQ Document”). Section 5 of the FAQ Document describes the process an APB must follow if iit considers that ADD use at its site will not require an EPS licence. Moreover, Section 2.2 of the Code provides in mandatory standard 8 that if an APB “plan[s] to deploy an ADD [they] must consult Marine Scotland and obtain any relevant consents or [they] must demonstrate to Marine Scotland that the planned use will not harm marine mammals.

Which body will be responsible for dealing with the required “demonstration”?
Information submitted will be considered by Marine Scotland, which is a directorate of the Scottish Government.

Will the procedure be open to public participation?
Public participation will not be sought for this purpose.

Will there be a public register of such “demonstrations”?
Documentation received will be uploaded to Marine Scotland Information.

What standard of proof will be required?
The FAQ Document sets out details of the information required.

Will there be an appeal procedure, other than by Judicial Review?
Decisions by the Scottish Ministers in this regard are subject to the right of any aggrieved person to apply to the Court of Session for judicial review.

Moreover, the mandatory standards specified within Sections 2.2 and 3.2 of the Code are subject to monitoring and enforcement processes as provided in the Aquaculture and Fisheries (Scotland) Act 2007 (“2007 Act”), which includes an appeals process for APBs:

• Monitoring: the 2007 Act requires the Scottish Ministers to monitor compliance with the Code (section 8(1)).
• Service of notice: if an APB is not complying with the Code (or is likely not to comply with the Code) in a material regard, the Scottish Ministers may serve a notice on that APB requiring (a) the execution of such works, and (b) the taking of such other steps, as the Scottish Ministers consider necessary for securing compliance with the Code (section 8(2)-(4)).
• Contravention of notice: a person who contravenes a notice, without reasonable excuse, is guilty of a criminal offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale, which currently equates to a maximum fine of £2,500 (section 6(9)-(10) as applied by section 8(5)).
• Appeal of notice: there is a right of appeal against a notice by summary application to the sheriff (section 6(7)-(8) as applied by section 8(5)).

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.