Chile’s new law on fish escapes is good but could have been better

We talked about its pros and cons with David Zaviezo, a lawyer specializing in aquaculture regulations.
David Zaviezo, partner of Certes, a Chilean law firm specializing in aquaculture regulations compliance. Photo: Certes.
David Zaviezo, partner of Certes, a Chilean law firm specializing in aquaculture regulations compliance. Photo: Certes.

On the last day of January, the modification of the General Law on Fisheries and Aquaculture came into force in Chile. The rule, which establishes new standards of transparency and publicity in the sector's information, aims to protect the marine system. Therefore, as we published a few days earlier, the modification, which affects fish escapes, was celebrated by the Chilean salmon industry. We then spoke to several actors in the sector, and, among other opinions, we had that of David Zaviezo, partner at Certes, a law firm specializing in aquaculture regulatory compliance. WeAreAquaculture talked to him more slowly so that, from his professional legal perspective, he could explain to us the pros and cons of the new regulation which, he believes, is good, but could have been better.

Broadly speaking, the law incorporates new standards of transparency and publicity on antibiotics and mortality, will punish escapes more severely, and, somehow, will force to improve security in farming centers. It also establishes the crime of breaking nets and stealing fish, or marketing and transporting stolen fish. Another novelty is that the new regulation reconciles and values collaboration between fish farmers and artisanal fishermen.

First, could you give a general assessment of the new law? What are its advantages?

In general, my assessment is positive, because it is always good that these matters are regulated and progress is made in the right direction of improving standards and adopting preventive measures, especially in the face of escapes. Now, it could have been better, in any case.

On the positive side, it regulates the relationship between the owners of fish farms and artisanal fishermen when fish escapes occur, since they know the sectors and fishing grounds, and have the necessary gear and implements for the recapture operations. There have been very successful cases of fish recapture by artisanal fishermen, so this legal amendment comes to regulate this relationship that, in many cases, already exists. In fact, we have seen contingency action plans for escapes that declare the relationship with fishermen's unions or fishermen's associations to quickly initiate the recapture work.

As for the provision of information, the detail of the amount and type of antibiotics, antiparasitics, biomass, mortality, and harvest of each farming center, I think it is a step forward and will encourage companies to be even stricter in their sanitary management. The obvious risk is that this information will be used to undermine the competitiveness of the industry, either among national companies or with foreign producers, and that commercial and advertising benefits will be taken from the number of antibiotics used in Chile, without giving details of the reason for their use.

Public information can always be misused, biased, or partial. We have seen this in recent times with documentaries, and publications on social networks or on the Internet, where the information, in many cases, lacks scientific rigor or even worse, lacks veracity. Given this, I hope that the information, that will be public and disaggregated, will be used in a good way, to improve the competitiveness of the industry, for public policy decision-making, so that new scientific and innovation projects are born. That would be a great step forward.

In Chile, the use of antibiotics is regulated and controlled by the authorities. There are periods of inactivity, periodic sampling in the different stages of the process, and, in particular, in the plants, to ensure that the production does not have traces of antibiotics. On the other hand, it is to be hoped that this detailed information will be useful for the implementation of new public policies, such as the program for the optimization of the use of antimicrobials (PROA in its Spanish acronym) of Sernapesca (a public service that oversees aquaculture).

Another important novelty is the elimination of the presumption of environmental damage in the event of a escape, which was established in Article 118 'quater', which was declared unconstitutional by the Constitutional Court, in the specific case of a process against the company MOWI. This presumption violated due process, so it is a great step forward that Congress has decided to eliminate the presumption.

Is the law well thought out or are there things that could have been done differently?

As for the aspects that, in my opinion, were not well regulated, the first one is the opportunity and how the cultivation centers will be required to comply with the safety conditions. The new law requires that centers must verify that they comply with the safety conditions according to their calculation report before planting; the Environmental Regulation for Aquaculture (RAMA in its Spanish acronym), requires that these conditions are always met, without specifying a particular time of the production cycle; and Resolution 1821 states that centers must be certified immediately after planting is completed.

All the regulations have the same objective: to prevent fish escapes. But in an economic activity so regulated and with such atomized rules, legal certainty is lost when there are contradictions (at least apparent) of this type. It is not clear, in the new Law, if in order to obtain the Sanitary Movement Certificate (CSM) that enables to take smolts from freshwater to sea centers, the company must have a certificate issued by a certifier registered in Sernapesca, which certifies that everything is in order and report it to Sernapesca. Without prejudice to the other documents that must be submitted to obtain the MSC.

Then other questions arise: what will happen in those cases where double-density planting is done and the modules are not ready when planting starts, or in those cases where planting starts and the module is finished when the cages are already populated? Remember that seeding can last a maximum of 3 months; or in cultivation centers with 2 cultivation modules, should the certificate be presented for both at the same time, or only for those cages that will be seeded first? Or in those cases where seeding nets are used and then they are changed to fattening nets, can a center with seeding nets be certified if after some months they will be changed?

David Zaviezo, partner of Certes, a Chilean law firm specializing in aquaculture regulations compliance. Photo: Certes.

I do think is positive to set the sanction at the harvest value of the specimens. Currently, this value is fixed by a Resolution of the Undersecretariat of Fisheries and Aquaculture, but only for some of the cases established in Article 118ter of the Law, which does not include the escape of fish. It is expected that the values already fixed will be maintained.

Continuing with sanctions, the suspension of operations in the event of a escape was not regulated in the best way. The administrative processes can be slow and the affected parties can file appeals and even take legal action against a certain resolution that causes them damages. Thus, the sanction of suspension of operations will not take effect until the resolution becomes final. I understand that what the law wants is for the companies to adopt, as quickly as possible, the measures to reestablish the safety conditions of their facilities and to be able to lift the suspension. Then new questions arise: can the farming of the fish that have not escaped continue until the end of the cycle or will Sernapesca always order an early harvest? What happens if the suspension is lifted and the remaining months of a productive period are not enough to carry out a new cycle, will those months be counted in the expiration of the concession, and what happens if the suspension is lifted and the remaining months of a productive period are not enough to carry out a new cycle?

Finally, regarding the obligation to finance monitoring of specimens of escaped species, I think this is very positive. The more scientific information obtained from this type of events, the better the scenario for justified decision making, to inform citizens and interest groups and above all to obtain reliable information on the impact of fish escapes. INVASAL, INCAR, Universidad de Los Lagos, among others, have developed research on the subject, but scientific research is never superfluous.

Finally, you have previously stated that you would have liked to see a suspension sanction based on productive periods rather than years, as this could generate uncertainty as to the expiration of the concessions. What consequences do you think this uncertainty you mention could have?

One of the reasons for which the State may terminate an aquaculture concession is because its holder has not operated it for a period of 24 months. The sanction established by the Law of suspending operations for a maximum period of 4 years is not in harmony with the productive periods of the groups of salmonid concessions or 'quarters'. In the regions of Los Lagos and Aysén, the productive periods are 21 or 24 months, and in Magallanes, 33 months, and the production cycles within these periods are even shorter, depending on the species being farmed. In case a company is suspended for a certain number of years, between 1 and 4, and does not manage to lift the suspension in accordance with the Law, once the suspension is over, it will most likely find itself in a period of the productive period of the 'quarter' in which it will not be able to plant a new cycle of fish; or it will not have sufficient legal certainty, a priori, to plan the planting of new specimens and thus, continue with the productive plan or avoid the expiration of the concession.

Legal certainty in the availability of aquaculture concessions for the fulfillment of a planting and harvesting plan is fundamental for companies. It is the basis for determining the budget, growth, commercial commitments, hiring people, services, processing plants, and a long etcetera. So, when you do not have this certainty, which is key in making countless decisions, it reduces the competitiveness of the industry. Clear rules (whether we like them or not) are fundamental in making investment decisions. Ideally, the regulation would have established explicitly that during the sanction period, the forfeiture rules do not apply, as this would constitute a double sanction.

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