Concerted Action "Improvements of Tagging Methods for Stock Assessment and Research in Fisheries" (CATAG), FAIR. CT.96.1394, FINAL REPORT May 1999 (DRAFT)
6. LEGISLATION IN RELATION TO TAGGING
All forms of fish tagging involve invasive processes, though tagging is usually much less stressful than the capture process. Detrimental effects on fish are undesirable scientifically - no-one wishes their data collection to be compromised because the tagged fish do not behave normally, or have features of physiology or biochemistry that make them unrepresentative of the background population. However, a further problem of invasive procedures is that there may be conflict with public opinion, ethical committees or legal statute. Furthermore, even if scientists are not subject to ethical/legal constraints in their own countries, there can be impacts upon their ability to publish work - many scientific journals are now unwilling to publish studies that involve procedures or experiments that would not be legal in the country of publication.
6.2. FISH TAGGING AND THE LAW GOVERNING VIVISECTION
Many countries have laws that control or prohibit ‘vivisection’ (dissection or other painful treatment of living animals for purposes of scientific research; Oxford English Dictionary). In the early 19th century, public movements developed to oppose cruelty to animals (particularly horses, cattle and dogs) and common laws to prohibit cruelty to domestic or wild animals by private citizens have been on the statute books of most European countries for many years. Legislation controlling experimental work on animals dates from the late 19th century, when physiological experiments upon live animals became common. Almost without exception, such legislation was initially aimed at protecting higher vertebrates, especially mammals - until 1986 the existing antivivisection legislation in the UK required experimental animals to be kept ‘warm and dry’!
1986 was a crucial year in the vivisection legislation of most European countries, because it coincided with the promulgation of a Directive by the Council of the European Communities (86/609/CEE). Directives are not laws, so there is no European vivisection legislation actionable in European courts. However, directives require Member States to enact national legislation. Directive 86/609/CEE is extremely detailed and will not be described here because of its lack of direct legal force. However, its aim was to avoid inhumane treatment of non-human vertebrate animals.
Substantial opposition to scientific experiments upon animals has developed during the past 30 years, particularly in the USA and Western Europe. As with most political movements, this opposition encompasses many levels of opinion. At one extreme, a large fraction of the public of several European countries opposes routine regulatory experiments to test cosmetic compounds upon animals. Many such people are in favour of responsible experimentation for biological/medical research, and are only concerned with protection of mammals (and perhaps birds). At the other extreme are a variety of militant ‘animal-rights’ organisations who oppose all experiments upon animals and are prepared to move outside the law to achieve a cessation of experimentation, even to the extent of damaging property, intimidating scientists or using physical violence. Most animal-rights organisations are particularly interested in protecting mammals or birds, and opposition to vivisection is associated with initiatives to ban hunting of wild animals and prevent intensive farming of poultry, pigs, cattle and fur-bearing mammals. However, such organisations have also targeted fish experiments, intensive aquaculture and angling, although to a limited extent so far - the most prominent organisation at present is PISCES (see http://w.w.w.envirolink.org/orgs/pisces), which specifically identifies fish-tagging as ‘an extremely traumatic experience’.
Fishing itself (whether commercial or recreational) was for long not regarded as involving cruelty, basically because it was believed that fish could not feel pain. However, in recent years the fishing industry has attracted adverse international comment for practices now deemed cruel (e.g. careless handling of discards, removal of sharks’ fins from living animals), while anglers have been castigated for use of barbed hooks and (especially) fish as live bait (illegal in several countries). The Royal Society for the Prevention of Cruelty to Animals (RSPCA) is a British institution, but with a high international profile. In 1994 it published a report ‘Pain and Stress in Fish’ (prepared by S C Kestin of Bristol University) that concluded, inter alia, that:
This report has attracted much attention - and a summary of it is in the top ten Internet web sites displayed by several search engines in response to the search string ‘fish+tagging’, even though tagging itself is not considered in the report! It is now routinely invoked in critical comment upon fishing and fish farming.
6.2.2. Legal control of tagging
It should be noted that even the most recently-introduced legislation was drafted more than a decade ago, when fish tagging was largely carried out for identification and involved external tags or minute injected tags; the drafters were not specifically aware of Data Storage Tags (DSTs) and the increasing use of internal tags. Tagging was not generally used in aquaculture at that time either, so the use of tagging on fish farms is not identified separately. Within Europe, the legal position of fish tagging is very variable and there is no pan-European law (beyond the 1986 86/609/CEE directive regarding humane treatment of laboratory animals). The following sections are distillations of national legislation, most of which either directly reflects the provisions of the EU Directive or hybridises those provisions with earlier laws:
Austrian legislation makes no mention of fish tagging and was primarily developed for medical experiments with mammals.
Permission for experiments which go beyond conventional agricultural or veterinarian treatment are regulated by the Tierversuchgesetz 1988.
Only institutions with special licences are allowed to have experiments conducted on their premises.
Performance of surgery on vertebrates is restricted to staff with veterinary, medical or pharmacy qualifications, plus those biologists with special knowledge.
Experiments are controlled by the Ministry of Science & Transport which has set up a commission to control permissions. The commission works without official rules.
Impact of tagging legislation: considerable: current experience is that permission for surgically-implanted tags is unlikely to be given.
Belgian legislation, which is aimed primarily at mammals and birds makes no direct mention of fish tagging.
Legislation applies whenever surgery is used, and theoretically applies to all tagging.
The Ministry of Agriculture issues licences to directors of laboratories and licences for projects. An appointed national ethics committee decides on the acceptability of projects.
The performance of a project is under the scrutiny of an expert local veterinarian.
Highly detailed reporting forms are filed annually.
Impact of tagging legislation: considerable, tightly controlled.
Danish law was last revised in 1993. As with most European legislation, it was primarily designed to apply to mammals.
As far as tagging is concerned, marking fish with external tags requires a licence from the Ministry of Justice. The Animal Experiment Inspectorate deals with tagging permissions and control. Permission is given to a person (or group) for a set number of years and for tagging a maximum number of fish per year. The person who has the licence must be present during tagging (but need not perform the operation him/herself). Premises and people are inspected and each tag has to have a tag journal. Logbooks detailing tag type, no. of fish, purpose of experiments, mortalities, when and where fish were released are kept and reported yearly to the Inspectorate
Tagging that requires surgery (e.g. intra-peritoneal tags) is controlled by a similar system, but obtaining a personal licence requires extra scientific/veterinary qualifications, plus a training course for recent recruits to tagging.
Very recently, interpretation of the law in Denmark has changed following deliberations of a Commission. From 1st January 1998, permission will not be needed for external tagging associated with identification and monitoring purposes. This ruling is retroactive. However, strict legislation will still apply to invasive procedures.
Impact of tagging legislation: considerable, tightly controlled, but recently relaxed for the bulk of tagging operations.
Current Finnish legislation dates from 1986 (Lahteensmaki, 1987) and is fairly typical of recent law in European countries and stems from the European Council Directive on the protection of vertebrates. It has the following features:
Licenses (issued by Provincial Administrative Boards) are required by establishments carrying out experimental work on vertebrates.
Only those whose qualifications are recognised by the Ministry of Agriculture and Forestry are permitted to carry out research.
Researchers have to produce research plans (which become public documents) to obtain a project licence.
Procedures are classified (two classes); fish tagging would generally fall into the second class, where permissions are more readily granted.
Impact of tagging legislation: In practice no licences are required for routine tagging operations for monitoring populations. However, within the Finnish Game and Fisheries Research Institute there is a standing committee on animal experimentation, which controls most of the tagging carried out in the country. The committee is supervised by a Provincial Administrative Board Committee which requires an application for all tagging activities except mass tagging methods like painting and fin-clipping. The aim is to ensure that tagging operations are appropriate and carried out by competent personnel.
Legislation dates from 1987, but does not specifically address fish tagging. It has the following provisions:
Invertebrates, embryos or vertebrates not suffering pain are not covered by legislation.
Local or general anaesthesia is required for work on vertebrates that are liable to suffer pain, except when the anaesthesia is more detrimental to the animal than the experiment itself.
If anaesthesia is not used, the number of experiments must be minimised, and only one procedure may be carried out on an individual animal.
Authorisation for experiments is provided by the Ministry of Agriculture. Permits are given for 10 years, with automatic renewal if experiments continue.
Experimenters should be a veterinarian, medical doctor, pharmacist or qualified at BSc, MSc or PhD level in the biological sciences, or have equivalent experience.
There is a wide range of procedure requirements, but these are applied flexibly to different types of animals.
Experimenters must show evidence of having undertaken training courses in surgical and prophylactic procedures.
Straightforward tagging for identification is not controlled by legislation. However, if surgery is required, then permission for projects is required and operators need to have suitable qualifications and training.
Impact of tagging legislation: considerable as far as procedures governing surgery are concerned.
Greece has no laws governing vivisection; fish tagging is subject to no rules whatsoever. However, government authorities expect workers to be guided by international humanitarian practice. Effectively this is a self-regulatory regime.
Impact of tagging legislation: None.
Ireland’s basic legal framework in this area is the 1876 Cruelty to Animals Act (which was drafted when Ireland was part of the U.K.). This act issued licences to people to carry out procedures provided they were suitably qualified. It has been updated by EU legislation (Directive 86/609/EEC) and annual returns are required. Identificatory/external tagging (‘routine husbandry’) is excluded from control.
Impact of tagging legislation: considerable as far as procedures governing surgery are concerned.
From 1992 a law based on an EU Directive (86/609/CEE) was introduced:
The law governs ‘the protection of animals used for experimental aims or for other scientific topics’, but this is primarily aimed at laboratory work upon laboratory-reared mammals.
Experiments can only be done in authorised laboratories and require permissions from the Italian Health Ministry and local authorities.
Experiments on wild animals are allowed, after specific request, only to a few scientific institutes for study and research aims, but it is necessary to demonstrate a value to conservation, and also that it is impossible to use animals reared in the laboratory.
Technically, therefore, tagging should involve legal control. In practice this is ignored in the case of small, common fish (Fabi, pers. comm.) but is more likely to be taken seriously in the case of tunas or other large pelagic fish.
Impact of tagging legislation: unclear at present - limited tagging is taking place in Italy
Norway and Iceland have virtually the same legislation; the Norwegian one is described:
The 1974 Animal Welfare Act (supplemented by the provisions of the EU Directive 86/609/CEE) applies to live mammals, birds, reptiles, amphibia, fish and crustaceans.
It applies generally to the public, and is not specifically aimed at controlling scientific experimentation.
Animals must be treated well so that there is no risk of causing them unnecessary suffering.
Inspection by police, animal welfare committees and official veterinarians may be carried out at any time.
A person carrying out biological research must have a special licence, granted by a committee.
From July 1998 researchers must attend mandatory 3-week courses, organised by veterinary colleges.
No specific mention is made of fish tagging, and tagging operations are not subject to reporting.
Iceland differs from Norway in the following ways:
An Animal Welfare act (1994) applies;
researchers do not need licences;
there is no requirement at present for training.
Impact of tagging legislation: in both countries there appears to be no impact of legislation on recognised types of fish tagging.
There is very limited general legislation in Portugal affecting fish tagging.
Impact of tagging legislation: negligible.
There is very limited general legislation in Spain affecting fish tagging.
Impact of tagging legislation: negligible.
The Swedish Animal Welfare Act (‘Djurskyddslag’, no. 1988/534) with a recent amendment of 25 February 1998 (no. 1998/56) is now very similar to the EU-Directive (86/609/EEC). Certain experiments are exempted: 1) experiments on invertebrates; 2) minimal and simple operations; and 3) bird-ringing.
Tagging operations that involve surgical treatments are subject to the following regulations:
Operators must be licensed, as must each experiment. The Ministry of Agriculture controls licensing through an Ethics Committee (there are 6 committees within Sweden).
From 31 December 1994 operators must take part in 3-week courses which have a fixed curriculum (including: laws & regulations governing animal experimentation; ethics; biology and care of animals; familiarity with current types of experiment; alternatives to use of animals).
Experimenters must be veterinarians, or have close links with veterinarians.
At the end of a procedure, a veterinarian shall decide whether slaughter is necessary (and what humane method should be used).
All procedures have to be reported; reports have to be held for at least 3 years at the place of experimentation; records must be open for inspection at any time.
Impact of tagging legislation: considerable, tightly controlled, requiring specific permission. At the time of writing, attempts are being made to obtain exemptions. For example, it is hoped that exemption will be granted for Carlin tagging performed to follow the effects of Water Court decisions on salmonid smolt releases, and also for adipose fin cutting of smolt reared for harvest purposes.
184.108.40.206. United Kingdom
The U.K. appears to have the most detailed legislative control of animal experimentation (The Animals (Scientific Procedures) Act 1986) in the EU at present:
U.K. law applies to all non-human vertebrates, plus the common octopus; it is quite likely that advanced crustaceans (e.g. crabs/lobsters), will be added to the list in the next few years. As far as fish and amphibians are concerned, the law does not apply to larval stages - the Act only applies when the animals can feed independently. Tagging larval fish by any means (e.g. tagging by fluorescent dye, genetic tagging) is therefore outside legislative control.
Experimentation requires site, personal and project licences, all of which must be sought from the Home Office.
Establishments and programmes are subject to unannounced inspection at any time by Home Office Inspectors.
Regional Home Office Inspectors (registered medical or veterinarian practitioners) advise on projects, not only on the basis of the humane nature of experiments, but also on the scientific validity of project plans. They are prepared to balance stress against the benefits of a programme (cost:benefit analysis) but are equally prepared to turn down a programme they perceive as trivial.
There are highly detailed descriptions of categories of experiments and specific duties described for experimenters.
Experimental procedures have to be reported annually in detailed returns to the Home Office for national published statistics.
Tagging purely for identification, and which causes ‘only momentary pain or distress’, or for ‘routine husbandry’ is not covered by legislation (i.e. it can be freely undertaken). Tagging for forward stock assessment falls into this category. Tagging conducted at sea outside the 12-mile limit of territorial waters is also deemed not to be controlled by legislation.
Tagging carried out for ‘scientific reasons’ (as judged by a Home Office Inspector) requires Personal and Project Licences. This means that most data storage tagging will require anaesthesia, and will certainly do so if tags are implanted surgically.
Holders of licences have to possess appropriate scientific qualifications and new holders now have to undertake training courses. These are expensive and largely aimed at laboratory mammalian practice and the maintenance of proper animal houses, although there are also modules dealing with fish or farm animals. None of the training specifically addresses fish surgery or tagging procedures.
From 1st April 1999, each institution carrying out procedures under legislation will be required to have an internal ethical review process in place to consider, advise and control such procedures. This is in addition to existing external controls.
Impact of tagging legislation: considerable, tightly controlled.
The USA is outside the remit of CATAG, but has state (rather than federal) laws governing tagging that are similar to the more stringent ones obtaining in Europe. A particular legal problem has surfaced recently - sport freshwater anglers are starting to conduct informal tagging operations of their own. This illegal practice, which interferes with legitimate fish management research, has the potential to spread throughout Europe. Tagging guns and tags are now available cheaply through mail order catalogues and there are already instances of game fishermen using tags in Denmark. This a grey area of law, although in Iceland sports fishermen routinely (and legally) move and tag sea-ranched salmon. Fin clipping is also quite common in Belgian freshwater systems.
6.2.3. Tagging of organisms other than fish
Tags are applied routinely to shellfish, marine mammals and turtles. De facto, bird-ringing (including that applied to marine birds) is also a form of tagging. Broadly speaking, shellfish tagging is not covered by legislation anywhere in Europe, though there are signs that higher crustaceans (crabs, lobsters) may be incorporated into more rigorous legislation (e.g. in the UK), and in principle crustaceans could be covered by Norwegian/Icelandic legislation. Marine mammals are covered by the same legislation as that applied to fish (i.e. with national differences) - a controversial area is the propriety of using hot-iron branding for seal identification. Interesting there is little objection to freeze branding, although tissue effects are indistinguishable (Feydak, personal communication).
The legal status of turtle-tagging and bird-ringing make an interesting comparison with fish-tagging. Both activities are seen as almost entirely beneficial (despite increasing evidence of high tag-loss rates in turtles), and it is common for nationals of one European country to conduct ringing or tagging in another (relatively unusual in fish tagging, save in large co-operative programmes). Generally turtle-tagging and bird-ringing are treated as husbandry or monitoring practices not covered by vivisection legislation. However, they are not outside legal control.
Most European countries with nesting turtles require taggers to have permits from relevant authorities (e.g. Department of the Environment in Cyprus - the only part of Europe to have substantial populations of both green and loggerhead turtles), principally because all sea turtle species are endangered, and therefore subject to international law (e.g. CITES). However, there appears to be no distinction between tagging for identification purposes, and the use of electronic tags, such as DSTs and satellite tags.
Bird-ringing is regulated, but generally by NGOs rather than government departments. In most European countries it is illegal to catch (as opposed to shoot!) wild birds, while many species (e.g. raptors) are protected by national legislation. Bird-ringers are licensed, and the licensing procedure requires training, usually of considerable duration before ringers may act independently. In the U.K. bird-ringers have to obtain licences from the Joint Nature Conservation Council, but the licensing is delegated to the British Ornithological Trust (another NGO.
Tagging of invertebrates (shellfish) is subject to no legal controls at present.
6.2.4. Tagging, the food chain and European law
Anaesthesia during tagging procedures has the potential for contaminating fish tissues with chemical residues. If the fish are of fishable size and are released into the environment after tagging, then there is a possibility that such residues might reach humans via consumed fish. In addition it is feasible that materials used for prophylaxis (disinfectants, antibiotics) could also contaminate fish. A separate issue concerns the release of chemically-tagged fish into the environment, though so far this seems not to have been considered because chemical tagging has been a mass tagging process applied to immature (and hence unfishable) fish.
As far as anaesthesia is concerned, the USA Food & Drug Administration (FDA) only permits one anaesthetic to be used on fish that are subsequently released into the environment (MS222TM = tricaine, 3-amino benzoic acid ethyl ester methanesulphonate). The FDA also requires that fish are not released into the environment until 3 weeks have elapsed since anaesthesia. In the UK, the Medicines (Restrictions on the Administration of Veterinary Medical Products) Regulations 1994 governs this area, and again only MS222 is permitted. However, in this case, the fish only have to be held for 10 days before release (it is generally agreed that all residues have disappeared from fish by around 24 hours after anaesthesia). The degree to which similar legislation exists in other European countries is unclear. But at present there is no system of enforcement or control, so it is important that scientists releasing fish after anaesthesia or prophylaxis should behave in a responsible fashion (‘self-regulation’).
6.4. REQUIREMENTS AND RECOMMENDATIONS
DG VI, XII, XIV could be asked to examine the possibility that fish tagging should be treated separately from experimentation on animals. At a minimum, it would help if a consistent approach was adopted throughout Europe to tagging used for identification only (in fisheries and aquaculture operations) - this is exactly analogous to identifying cattle or pets by external tags/pit tags, and should not be subject to vivisection legislation. It is should be noted that the evidence collected by CATAG has already led Denmark to change its application of legislation in this fashion.
Fish tagging practitioners should all be required to undergo training. Current legislation often requires experimentation licence holders to undergo generalised training in the legality of various procedures and holding techniques, but surgical procedures on fish are very different from those used on terrestrial mammals.
All efforts should be made to avoid chemical residues associated with the tagging process reaching the human food chain.
a) List of acts on animal experimentation in the European Union
Belgium: Arrêté Royal du 14 novembre 1993 relatif à la protection des animaux d'expérience (based on Belgian Law from 14 August 1986 on Animal Welfare, European Law from 1991 on the protection on Vertebrate Animals and on the directives of the ECC from 24 November 1986 on the consistency between European regulations on Animal experimentation 86/609),
Finnish legislation on animal protection and experimental work on vertebrates consists of the following laws and acts:
Germany: Erste Gesetz zur Ænderung des Tierschutzgesetzes vom 12-08-1986, Bundesgesetzblatt Teil I vom 22-08-1986 Seite 1309.
Spain: Real Decreto numero 223/88 de 14-103-1988 relativo a la protection de los animales utilizados para experimentacion y otros fines científicos, Boletín Oficial del Estado numero 67 de 18-03-1988 Pagina 8509.
France: Décret 87-848 du 19 octobre 1987 pris pour l'application de l'article 454 du code pénal et du troisième alinéa de l'article 276 du code rural et relatif aux expériences pratiquées sur les animaux.
Greece: Décret présidentiel du 12-04-1991, FEK A numéro 64 du 03-05-1991 Page 1061
1. The Cruelty to Animals Act of 15-08-1876.
2. EC (Amendment of the Cruelty to Animals Acts of 1976) Regulations of 1994, Statutory Instruments Number 17 of 1994.
DM 27/01/1992 - Attuazione della Direttiva n. 86/609/CEE in materia di protezione degli animali utilizzati a fini sperimentali o ad altri fini scientifici
Austria: Bundesgesetz vom 27 September 1989 über Versuche an lebenden Tieren (Tierversuchgesetz 1988)
Portugal: Decreto-lei numero 129/92 de 15-06-1992., Diario da Republica I Série A, numero 153 de 06-07-1992 Pagina 3197.
United Kingdom: The Animals (Scientific Procedures) Act 1986 (subsequently amended by three Statutory Instruments).
Lahteensmaki, V., 1987. Legislation dealing with animal experimentation in Finland. Animal Technology, 38: 229-233.
Kestin, S.C., 1994. Pain and stress in fish. RSPCA
Strange & Schreck, 1978. Anaesthetic and handling stress on survival and cortisol concentration in yearling chinook salmon (Onchorhynchus tshawytscha) Journal of the Fisheries Research Board of Canada, 35: 345-349.