Orders relating to commercially damaging species
Section 11 - Specification of commercially damaging species
32.Section 11(1), as read with subsection (2), provides for the species which the Scottish Ministers may, by order, specify as a commercially damaging species for the purposes of Chapter 3. Section 11(1) defines a commercially damaging species as a species of fish or shellfish, plant, or any other species of animal. It enables Ministers to make an order in respect of such species where they consider the species, if not controlled, would be likely to have a significant adverse impact on the economic or commercial interest of a person who carries on a business of fish farming, and where the species itself of little or no commercial value. For example, the order-making power may be exercised in relation to Mytilus trossulus. This species of mussel, which is not commercially viable due to its thin shell and low meat yield, has displaced in some places the commercially viable farming of Mytilus edulis.
Section 12 - Movement of species, etc.
33.Section 12(1), as read with section 13 (orders under section 12(1): samples and surveillance), enables the Scottish Ministers to make provision, by order, for or about the prohibition or control of the movement of any commercially damaging species that is present, or suspected of being present in any body of water. The power extends to any other species of animal or plant and any equipment, used in connection with fish farming or shellfish farming, the movement of which may be associated with the movement of the commercially damaging species. It also extends to water in which a commercially damaging species is suspected of being present.
34.Section 12(2) details the matters that may be included in an order under section 12(1), including the designation of an area in which movement controls apply. For example, this power may be exercised to prevent the movement of stocks from a site known or suspected of having a commercially damaging species. It is an offence for a person to act in contravention of a section 12(1) order, to fail to take any action required by the order or to otherwise fail to comply with any requirement imposed on the person by such an order (section 12(3)). Offences under section 12(3) are punishable on summary conviction by a fine not exceeding level 5 on the standard scale (section 12(5)).
Section 13 - Orders under section 12(1): samples and surveillance
35.Section 13 specifies the matters which may be provided for in an order under section 12(1). An order may contain provision which enables an “appointed person” to take samples of fish, shellfish, or material from any fish or shellfish farm and analyse these for the purpose of ascertaining whether a commercially damaging species is present at a fish or shellfish farm. Section 13(1)(d) describes the powers of an “appointed person”, including powers to enter any land, fish farms, shellfish farms or premises associated with the management or operation of such farms and to require the operator of such farms to provide samples. For example, an appointed person may enter onto a fish farm in order to collect samples of mussels to determine whether they are Mytilus trossulus or Mytilus edulis.
36.Section 13(3) contains further provision on the matters that may be provided for in an order under section 12(1), including requiring persons to undertake surveillance programmes or for appointed persons to undertake such action.
Section 14 - Offences relating to persons appointed under section 13
37.Section 14(1) specifies the circumstances in which a person commits an offence as regards an appointed person. It is an offence for a person to fail to comply with a requirement imposed by an appointed person or to wilfully obstruct such a person. For example, where a person wilfully obstructs a person appointed by the Scottish Ministers for the purposes of undertaking a programme of surveillance (section 13(3)(b)), the person so obstructing is guilty of an offence.
38.Persons guilty of an offence under section 14(1)(a) are liable on summary conviction to a fine not exceeding level 5 of the standard scale, (currently £10,000), and persons guilty of an offence under section 14(1)(b) are liable on summary conviction to a fine not exceeding the statutory maximum (currently £10,000) and on conviction on indictment to a fine (section 14(4)).
Section 15 - Notification of presence of commercially damaging species
39.Section 15(1) creates an obligation for operators of fish farms and shellfish farms, as soon as reasonably practicable, to notify the Scottish Ministers of the presence of a commercially damaging species on the fish farm or shellfish farm. In terms of section 15(2), the notification obligation also applies to any person who is employed, or acts as an agent as regards the fish farm or shellfish farm.
40.Section 15(3) specifies the details that must be included in any notification, including the type of the commercially damaging species, and details of the fish or shellfish farm in question. It is an offence, punishable on summary conviction to a fine not exceeding level 5 on the standard scale, for a person to fail to give a notification (section 15(4) and (6)).