EXPLANATORY MEMORANDUM TO THE KEEPING AND INTRODUCTION OF FISH (WALES) REGULATIONS 2015
This explanatory memorandum has been prepared by the Marine and Fisheries Division and is laid before the National Assembly for Wales in conjunction with the above subordinate legislation and in accordance with Standing Order 27.1.
Minister’s Declaration
In my view, this Explanatory Memorandum gives a fair and reasonable view of the expected impact of the Keeping and Introduction of Fish (Wales) Regulations 2015. I am satisfied that the benefits outweigh any costs.
Carl Sargeant
Minister for Natural Resources, one of the Welsh Ministers
14 November 2014
Explanatory Memorandum to the Keeping and Introduction of Fish (Wales) Regulations 2015
1. Description
These Regulations provide a new regulatory scheme for the introduction into, and the keeping of, fish in inland waters
2. Matters of special interest to the Constitutional and Legislative Affairs Committee
These Regulations are subject to affirmative procedure and, at regulation 18, repeal section 30 of the Salmon and Freshwater Fisheries Act 1975 in relation to Wales.
3. Legislative Background
The Regulations would be made under the powers conferred on Welsh Ministers by sections 232 and 316 of the Marine and Costal Access Act 2009.
The Regulations introduce a more cost effective and risk-based management system for the introduction and keeping of fish in inland fisheries, which is currently managed pursuant to section 30 of the Salmon and Freshwater Fisheries Act 1975 and licencing under the Import of Live Fish Act 1980.
4. Purpose and intended effect of the legislation
· What is being done and why
Invasive non-native species have been identified as one of the key causes of loss of biodiversity in Wales, and the world at large. These species can have significant economic and social impact, and can undermine Wales’s sustainable development and biodiversity objectives. This means that requirements for the stocking of fish into inland water for recreational angling have to be balanced with appropriate safeguards for aquatic environments.
The main objective of the Regulations is to support the economic value and growth of the angling sector, whilst ensuring adequate protection for the aquatic environment from the risks associated with the use of invasive non-native and locally absent fish species. The proposed permitting scheme enables us to adopt a risk based approach to the use of such species, whereby those that are high risk are given greater scrutiny and low risk fish movements are allowed to take place more freely. This approach is consistent with Government policy in relation to the regulation of non-native species, which recognises that preventing the introduction of potentially invasive species is more cost-effective than trying to apply controls retrospectively.
An Improved enforcement requirement that will enable the National Resources Body for Wales (‘NRW’) to remove inappropriate fish from inland waters will ensure fishery owners are fully accountable for the actions they take, or actions they allow others to take, in their inland waters. The deficiencies in the current legislation mean that unless someone is caught in the act of releasing fish without authorisation it is difficult to prove. NRW are also not able to intercept suspicious movements, but must wait until there is clear evidence of intent to undertake the unauthorised release of fish. Given that the environmental damage arising from inappropriate fish releases may be irreversible, these new Regulations provide a more effective means of enforcement. The Regulations will also give NRW powers, (which they currently do not possess),to remove inappropriate fish from inland waters.
These Regulations allow any decisions concerning the granting of permits, enforcement and notices for the keeping or introduction of fish into inland waters to be appealed, as well as for NRW to repeal these authorisations.
· Consolidation
The Regulations consolidate and repeal, as appropriate, section 30 of the Salmon and Freshwater Fisheries Act 1975 and section 1 of the Import of Live Fish Act 1980. This will also have the effect of simplifying the system such that it is managed by a single Regulator rather than the two-Regulator system which is currently in place.
5. Consultation outcome
Formal public consultation on the proposal took place between 16 December 2009 and 10 March 2010. A total of 22 responses were received during the consultation. The majority of respondents (17 -77%) agreed that the proposed risk based permit scheme should be introduced. Those who supported retention of the status quo (3) argued that the current regulation of movements was adequate, and that the new scheme presents benefits only to the regulator.
The Government response was published in April 2010 and whilst recognising the concerns expressed we still consider that the current scheme is overly bureaucratic and inflexible. All fish movements, whether high or low risk, require consents and if, for whatever reason, the movement does not happen on the specified day or time a new consent must be sought.
One of the key motivation for the new scheme was to reduce burdens on industry, and this is supported by the analysis in the regulatory impact assessment below. In response to the concerns raised, NRW has provided more guidance to industry on what the permit scheme will contain. There may be an increase in work for all parties for the first few months or so of the new scheme, while the new site permits are drawn up. However, the brunt of that burden will be carried by NRW who plan to proactively issue permits in anticipation of the start of the new scheme. We consider that once an owner or occupier has their permit, overall administrative burdens will decrease considerably, and that controls will be firmly but fairly enforced, and that those involved in low risk removals or releases of fish will be able to do so without excessive oversight. This will make the legal trade in fish more straightforward.
In summary the Government believes that this will be a more effective regulatory system, reducing burdens for industry, enabling NRW to more effectively use its own resources, but at the same time safeguarding biodiversity in Wales.
Regulatory Impact Assessment
The policy proposal
Under the new system fishery owners will require a single site permit (Live Fish Movement (“LFM”) site permit), and fish suppliers would require a supplier Permit to move fish between sites (LFM supplier permit). Once the site and supplier Permits are in place, the same fish movement operations would only require the fish supplier to give advanced notification of high risk movements (estimated to be 20% of all movements) rather than all fish movements as at present. Notification would be required 2 full working days in advance of the movement of the fish. In addition, on-line applications may also allow the printing of consignments notes.
Options
Option 1 – Business as usual/do nothing
Doing nothing - this will maintain the current policy position whereby a consent will be required to introduce any fish to an inland water site under section 30 of the Salmon and Freshwater Fisheries Act 1975 (section 30 consent). Import of Live Fish Act 1980 (ILFA) and Wildlife and Countryside Act (WCA) licences will continue to be issued separately.
Option 2 – Introduce a permit scheme with a risk based approach to controls on keeping, and releasing live fish in inland waters.
Under this option, Welsh Government would introduce a live fish movement scheme which would reduce the number of licences required for keeping of non-native fish in inland water (removing entirely the ILFA licence in inland water) and reducing the number of permits needed from one for every movement of fish to one site permit per company for low risk activities (which accounts for the majority of fish movements). This scheme will be managed entirely by Natural Resources Wales (NRW), whereby any inland water in Wales which is stocked, cropped or which contains certain species of fish would require a Live Fish Movement (LFM) site permit.
The site permit will:
· Set out what species can be introduced or released or removed from the site, and in the case of non-native species, or native species in certain waters (for example within or in proximity to designated waters), which species may be kept;
· Be held by a ‘responsible person’ with a long term interest in the water (the owner, manager or an angling club official);
· Set out permissible fish movements consistent with the long term requirements of the holder, without risking harm to connected fisheries or the wider environment; and
· Include fixed conditions under which fish can be introduced or released, and kept, and other related requirements.
Once the limitations of allowed movements are set on the permits, there should be no need for further regulatory intervention, and movements will then be determined by the owner/occupier. In addition, the Permit will condition under what circumstances advanced notification to NRW by a fish supplier will be required. The Permits will be issued on a permanent basis. NRW would retain the right to revoke, suspend or amend them. Equally, the permit holder may apply to amend the permit at any time, or may surrender or transfer the permit. By also regulating the keeping of fish, fishery owners can be held responsible for illegal fish introductions.
An LFM Supplier Permit would be required for those suppliers wishing to move fish between sites. This permit will be automatically given to those businesses already authorised under the Aquatic Animal Health Regulations by the Centre for Environment, Fisheries and Aquaculture Science (CEFAS) as Authorised Production Businesses (APBs) on behalf of Welsh Ministers. Other organisations (such as angling clubs or commercial fisheries that move their own fish) will need to apply for such a supplier permit. NRW would issue a parallel authorisation to use otherwise prohibited gear when moving fish (e.g. nets, electric fishing equipment etc), thus obviating the need to apply for each separate removal authorisation. The fish supplier would be required to carry relevant consignment documentation specifying the fish in transit. The LFM Supplier Permit will condition the fish supplier to meet the conditions of the LFM site based Permits for waters they introduce fish to. Again NRW will retain the right to revoke or suspend permits.
The LFM Site Permit will require the supplier to provide NRW with advance notification of movement of fish of high risk cases (defined according to species); only 20% of all live fish movements are currently regarded as high risk cases. Notification would be required 2 full working days in advance of the movement of the fish. Notification will not require the permit holder to await permission from NRW. In addition, on-line applications may also allow the printing of consignment notes.
The new scheme will reduce the administrative costs and regulatory burden in respect of the majority of fish movements regarded as low risk movements. Low risk movements are those movements that currently do not warrant tight controls. At the outset of the new measures, NRW will set out the criteria for which movements will be deemed high risk and permit holders will be advised. No additional costs have been estimated for this as the assessment will largely be based on existing work. To expedite smooth transition of the new scheme NRW will proactively issue site permit licences to approximately 175 existing water body owners/businesses.
Option 3 – Introduce a permit scheme with tighter controls on keeping, releasing and removal of all live fish in inland waters (covering all releases not on a risk-based approach as set out in option 2).
The only difference between this option and option 2 is that notifications of movement of fish will be required for all releases (rather than just high risk as under option 2). The scheme will cover all movements of fish, both native and non-native. This will offer a much higher level of protection against threats to fisheries and biodiversity, as all notifications are scrutinised. However, this will increase administration and enforcement costs including for those movements that NRW would not normally warrant tighter controls.
Costs & benefits
Option 1
There are no additional costs associated with Option 1. The following section presents a summary of the costs incurred under the current arrangements.
Costs to industry
No charges are levied on industry for permits and consents. However, there are administration costs associated with applying for the permits and consents.
Section 30 Consents: Currently, a site owner has to apply for consent (known as Section 30 consent) whenever they wish to release fish into a river or lake that is connected to open waters. On average, NRW process 300 consents for individual introductions of fish every year. In applying for consent industry has to provide details of the fish species and numbers of fish concerned, and the inland water site conditions they will be released into. It has been estimated by NRW that this application process will take industry an average of 1 hour to complete at a cost of approximately £28 per hour. This equates to approximately £8,400 per annum.
ILFA/WCA licences: Currently, anyone wishing to keep or introduce non-native freshwater fish in Wales will require an ILFA license. Anyone wishing to introduce non-native freshwater fish or shellfish into the wild will require a WCA license. Cefas’ Fish Health Inspectorate (FHI) processes on average 4 full licence applications and 1 renewal in Wales per year. In applying for a licence industry has to provide details of the fish species and numbers of fish concerned, and the site conditions they will be released into. It has been estimated by the FHI that this will take industry on average 1 hour to complete a renewal and 1.25 hours for a new application. At an estimated industry hourly rate of £28, this equates to a cost of approximately £170 per annum.
The total cost to industry over a ten year period under this option is, therefore, estimated to be £85,700.
Costs to Government
The cost to government is made up by the cost of processing section 30 consents, ILFA/WCA licences and enforcement.
Section 30 consents: In processing consents, NRW has to consider the environmental risks associated with the fish concerned and the suitability of the site conditions for release and keeping of the fish. Of the 300 applications for introduction of fish into inland water – the majority of these applications that take an hour to assess, for a small number where simple changes, such as where date changes are required it is estimated to take 15 minutes to complete. However, for the calculations it has been assumed that all applications take 1 hour to process. Using an hourly wage rate of £38.00, the annual total cost to NRW in processes consents is estimated to be £11,400 per annum. The total cost over a ten-year period is, therefore, estimated to £114,000.
ILFA/WCA licences: Cefas’ FHI administration costs:Processing a licence involves a mixture of administrative tasks and inspectorate input. The FHI consider the environmental risks associated with the fish concerned and the suitability of the site conditions. Cefas’ Fish Health Inspectorate process on average 4 full licences a year and 1 renewal at an estimated cost of £500 per annum on behalf of Welsh Ministers. Over a ten-year period, the cost is estimated to be £5,000.
Enforcement costs are not expected to change under any of the options and so have not been quantified in this RIA.
The total costs to Government under this option are, therefore, estimated to be approximately £11,900 per annum or £119,000 over a ten-year period.
Table 1. Summary of the costs to industry and government under Option 1 (£)
Benefits
There are no additional benefits from Option 1.
Risks
By doing nothing, there would be no reduction in the administration costs for both business and government. There would also be no improvement in the ability to regulate fish movements, and no introduction of proportionate risk based management tools. By doing nothing, there would also be no ability to address existing problems, where fish have been inappropriately stocked. Given the inadequacies of enforcement under section 30 of the SAFFA (paragraph 12 and 23), there would be a continued risk arising from the spread of non-native species, arising from predation, displacement of fish, harm to freshwater fish habitats and the introduction of diseases not controlled by European legislation. This could inadvertently have a significant impact on business operation and, therefore, affect profitability should dedicated angling sites be affected by outbreaks of an invasive species or be closed down as a result of an eradication exercise.
Option 2
Overall, there are no additional costs to business or government for this option compared to option 1 as this is a deregulatory measure which reduces the burden on business and cost to government. The following sections present a summary of the costs incurred under this Option. The Section 30 consent and licensing costs identified under Option 1 are not incurred.
Costs to industry
The savings to industry from this new permitting system are based on the reduction in the number of consents/notifications required to move fish relative to baseline levels; this is driven by a risk based approach of this regime. The rationale for the numbers included and the profiling in the analysis is explained below.
Site permits: NRW has estimated there are 175 waters that they know will need/want to be permitted from the induction of the legislation. These comprise primarily of still water trout fisheries, and waters containing non-natives, within or affecting SACs/SSSis. NRW will prepare site permits for these existing low risk fisheries in advance (2014), so they can be issued as soon as the regulations come into force, therefore the cost to industry will be minimal and is estimated to take 15 minutes of their time in checking information at a cost of approximately £7 per site. The total cost to these businesses is approximately £1,225.
The remaining site permits for existing stocked fisheries will be issued in subsequent years, as and when those fisheries need to restock. Based on current S.30 consent applications, NRW estimate that around 70 sites per annum will apply for permission in the first few years (these are the regular stockers/croppers of fish), this falls to around 35 (the less regular operators) in subsequent years with all 400 waters being permitted within 7 years. It is estimated that it will take owners an average of 2 hours to complete the application. Based on an average cost of £56 per application, the total cost is estimated to be approximately £3,920 in the initial years (when 70 sites permits are applied for) falling to approximately £1,960 per annum in later years and eventually £0.
In addition, there is expected to be an administrative cost incurred where a site owner wishes to transfer or amend a site permit but this cost is expected to be minimal.
New site permits: Based on current understanding of the industry and using previous new site take-up rates, NRW estimate that between 5 and 15 new sites will require a permit each year. Again, assuming that it takes an average of 2 hours to complete the application form (at a cost of £28 per hour), this equates to a cost of £280 - £840 per annum.
Supplier Permits: There are approx. 150 known fish suppliers which will require permits at the beginning of the scheme. The application for a supplier permit is expected to take an average of 10 minutes to complete. Based on the cost of £28 per hour, this equates to a total cost of approximately £700 in the initial year. Again based on recent experience, there are likely to be between 0 and 5 new entrants to the sector who will require a supplier permit in each subsequent year. Assuming the same average cost to complete the application, the cost to industry in each subsequent year will be between £0 and £25.
Notifications: NRW has estimated that each site makes 1.2 fish movements per year on average. Under this option, notifications will only be required for high risk fish movements (which currently account for approximately 20% of all fish movements). The notification process is simply a notice of movement to NRW and each notification is expected to take 6 minutes of the site owner’s time. The total cost to industry of making these notifications is estimated to be between £100 and £300 per annum.
Consignment notes: Similarly, site owners will be required to provide consignment notes which record the species and number of fish being moved. Based on current experience, each consignment notice is expected to take 6 minutes on average. A consignment notice will be required for every fish movement and so the cost to industry is estimated to be between £640 and £1,670 per annum. The overall cost to industry for notifications and consignment notes increases as more sites and suppliers gain permits in the scheme; this cost will eventually plateau.
The total cost to industry of this option over a ten-year period is estimated to be £36,200. This represents a saving of approximately £49,500 over ten years compared to Option 1.
Costs to Government
Site Permits: Each site permit application is expected to take 2 hours to process, this equates to an administration cost of £76 per site permit. The transitional cost to NRW for issuing the 175 permits that will be required on introduction of the legislation is, therefore, £13,300.
The cost to NRW to administer the remaining permits is estimated to be between £2,660 and £5,320 per annum (based on 35-70 applications per annum). All of the existing sites are expected to be permitted by the 7th year of the scheme.
New site permits: As stated above, there are expected to be between 5 and 15 new entrants to the sector each year and the cost of processing these site permit applications is estimated to be between £380 and £1,140 per annum.
Supplier permits: The process for issuing supplier permits is estimated to take 30 minutes with an estimated cost to NRW of £19 per permit. The cost to issue permits to the 150 known fish suppliers who will require a supplier permit at the start of the scheme is therefor estimated to be £2,850.
Between 0 and 5 new supplier permit applications are expected in subsequent years at a cost of between £0 and £95.
Notifications: The process for dealing with fish movement notifications is estimated to take 5 minutes with an annual cost of between £120 and £320.
There are no costs to NRW associated with consignment notices. Similarly, it is anticipated that there will be no increase in monitoring or enforcement costs under this option.
The total cost to Government under this option is estimated to be approximately £43,930 over a ten-year period, this equates to a cost-saving of approximately £75,070 relative to Option 1.
Table 2. Summary of the costs to industry and government under Option 2 (£)
Benefits
Benefits to industry
The new proposal would be less onerous than the current arrangements of having to apply for both Section 30 consents and ILFA/WCA licences. Long term permits for most inland waters (under the new scheme) will lead to a significant reduction in suppliers’ time and costs associated with fish movement applications, and will remove the current 20 day period for consent approval. This will allow greater freedom for fish suppliers and fisheries, particularly those engaged in low risk operations.
Once the site and supplier permits are in place, the same fish movement operations would only require the fish supplier to give advanced notification of high risk movements (estimated to be 20% of movements). Low risk movements will no longer be subject to the same administrative demands and level of assessment as high risk movements as is currently required. As is demonstrated above, this is expected to result in a reduction in the administrative burden placed on the industry and a reduction in costs.
Benefits to Government
Relative to option 1, this option will lead to a reduction in annual NRW costs of processing permit applications. These cost savings represent the benefit to Government of this policy option. This is a conservative estimate of the potential benefits as it does not take into account the likely reduced need for NRW expenditure on removing non-native fish species from inland waters.
The new live fish movement scheme will enable NRW to redeploy resources from administration to focus on high risk categories of fish movements, illegal activity and, through setting and reviewing LFM Permits, work with fishery owners and operators to improve fisheries management and sustainability.
The savings in administration will enable NRW to focus on enforcement of the illegal fish movements. This is a key deterrent to further illegal introductions of fish, particularly non-native species. To this end, NRW is currently reviewing its operational enforcement activities, including how to make better use of intelligence information. NRW will monitor the high risk notifications for compliance.
These measures contribute to healthy and sustainable fisheries from which social and economic benefits are derived. However, it has not been possible to quantify these potential benefits. Better targeted measures will also reduce the risks arising from the spread of non-native species, arising from predation, displacement of fish, harm to freshwater fish habitats an the introduction of diseases not controlled by European legislation.
Risks
The risks for biodiversity under option 2 are mainly associated with the requirement to notify only high risk cases. The new live fish movement scheme will enable NRW to redeploy resources from administration to focus on high risk categories of fish movements, illegal activity and, through setting and reviewing Live Fish Movement Permits, work with fishery owners and operators to improve fisheries management and sustainability.
Option 3
Overall there are no additional costs to business or government from this option as it is a deregulatory measure which reduces the burden on business and costs to government.
Costs to industry
The only difference in the cost to industry between Options 2 and 3 relates to the cost of completing notifications. Under this option, all fish movements will require a notification. Assuming an average of 1.2 fish movements per site and a cost per notification of approximately £2.80 (6 minutes at £28 per hour), this equates to a cost of approximately £840 per annum.
All other costs to industry are as set out under Option 2. The total cost to industry of this option over a ten-year period is estimated to be approximately £42,320. This represents a saving of approximately £43,380 over ten years compared to Option 1.
Costs to Government
The only difference in the cost to government between Options 2 and 3 relates to the cost of processing notifications. Under this option, all fish movements will require a notification. The cost to NRW for processing the notifications is estimated to be approximately £950 per annum.
All other costs to Government are as set out under Option 2. The total cost to Government under this option is estimated to be approximately £50,830 over a ten-year period, this equates to a cost-saving of approximately £68,170 relative to Option 1.
Table 3. Summary of the costs to industry and government under Option 3 (£)
Benefits
As with Option 2, this option is expected to be less onerous for the industry and government compared to the current regime, generating cost-savings for both.
This option will allow NRW to monitor all live fish movements and allow for improvements to biodiversity security in Wales. However, by requiring notification of all live fish movements, the cost incurred by both industry and government is higher under this option than Option 2.
These measures contribute to healthy and sustainable fisheries from which social and economic benefits are derived. However, it has not been possible to quantify these potential benefits. Better targeted measures reduce the risks arising from the spread of non-native species, arising from predation, displacement of fish, harm to freshwater fish habitats and the introduction of diseases not controlled by European legislation.
Risks
Option 3 will impose controls on all fish movements to and from inland waters. However, this option does not recognise that the majority of movements are of low environmental risk. A requirement to control each movement would impose an un-necessary burden on both the industry and NRW and is considered disproportionate.
Summary of the preferred option
Option 2 is preferred as it ensures inland fisheries and the wider environment are protected in the most proportionate and effective way through focusing monitoring and enforcement efforts on high risk activities and streamlining processes for routine low risk activities. Option 2 reduces the administrative and financial costs for most operations and for the fish supply industry overall. Over a ten-year period, the total cost-savings to industry and Government from Option 2 are estimated to be almost £125,000.
Table 4. Comparison of the costs associated with each option (£)
Whilst the introduction of permits and any resultant restrictions on movements will affect some parties more than others, this will be directly proportionate to the risk of the activities involved and the overall burden on both industry and the NRW is expected to be reduced.
Introducing these responsibilities and requirements for both owners/occupiers and suppliers will allow for better enforcement of the industry, which will in turn provide better protection to biological diversity and local fisheries.
Consultation
Defra carried out a formal public consultation on an England and Wales basis and the proposal took place between 16 December 2009 and 10 March 2010. A total of 22 responses were received during the consultation. The majority of respondents (17 i.e. 77%) agreed that the proposed risk based permit scheme should be introduced. Those who supported retention of the status quo (3) argued that the current regulation of movements was adequate, and that the current regulation of movements was adequate, and that the new scheme presents benefits only to the regulator. There were no comments received on the times and costs presented in the impact assessment. No further information on costs was provided by any stakeholders. Stakeholders generally wanted further details on how the scheme would operate. In response to the concerns raised, the Environment Agency, including Environment Agency Wales (the predecessor of NRW ) provided more guidance to industry on what the permit scheme will contain. The brunt of the transitional burden of the new scheme will be on the NRW in Wales who plan to proactively issue permits for the start of the scheme. We consider that once an owner or occupier has their permit, overall administrative burdens will decrease considerably, that controls will be firmly but fairly enforced, and that those involved in low risk removals or releases will be able to do so without excessive oversight. This will make the legal trade in fish more straightforward.
The UK Government response (to which Welsh Government consented) was published in April 2010, and whilst recognising the concerns expressed we still consider that the current scheme is overly bureaucratic and inflexible. All fish movements, whether high or low risk, require consents and if, for whatever reason, the movement does not happen on the specified day or time a new consent must be sought. The numbers and timings which form the basis for this current impact assessment have not changed materially since the original consultation.
APPENDIX A
The Competition Assessment
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The competition filter test |
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Question |
Answer yes or no |
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Q1: In the market(s) affected by the new regulation, does any firm have more than 10% market share? |
No |
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Q2: In the market(s) affected by the new regulation, does any firm have more than 20% market share? |
No |
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Q3: In the market(s) affected by the new regulation, do the largest three firms together have at least 50% market share? |
No |
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Q4: Would the costs of the regulation affect some firms substantially more than others? |
No |
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Q5: Is the regulation likely to affect the market structure, changing the number or size of businesses/organisation? |
No |
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Q6: Would the regulation lead to higher set-up costs for new or potential suppliers that existing suppliers do not have to meet? |
No |
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Q7: Would the regulation lead to higher ongoing costs for new or potential suppliers that existing suppliers do not have to meet? |
No |
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Q8: Is the sector characterised by rapid technological change? |
No |
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Q9: Would the regulation restrict the ability of suppliers to choose the price, quality, range or location of their products? |
No |