First Substitute H.B. 148

This document includes House Committee Amendments incorporated into the bill on Wed, Feb 6, 2008 at 2:46 PM by ddonat. -->

Representative Michael E. Noel proposes the following substitute bill:

1 AQUACULTURE REVITALIZATION ACT
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Michael E. Noel
5 Senate Sponsor: Darin G. Peterson
6
7 LONG TITLE
8 General Description:
9 This bill amends and enacts provisions relating to aquaculture and aquatic wildlife
10 stocking.
11 Highlighted Provisions:
12 This bill:
13 . defines terms;
14 . changes the membership of the Fish Health Policy Board;
15 . allows an aquaculture facility to sell a live aquatic animal to a private fish pond in
16 certain circumstances;
17 . requires a private fish pond to have a screen;
18 . allows the Wildlife Board to make rules limiting aquatic wildlife stocking in a
19 private fish pond in certain circumstances;
20 . changes the requirement for a private fish pond to have a certificate of registration;
21 and
22 . makes technical changes.
23 Monies Appropriated in this Bill:
24 None
25 Other Special Clauses:

26 None
27 Utah Code Sections Affected:
28 AMENDS:
29 4-37-103, as last amended by Laws of Utah 1998, Chapter 302
30 4-37-204, as enacted by Laws of Utah 1994, Chapter 153
31 4-37-503, as last amended by Laws of Utah 2007, Chapter 191
32 23-13-2, as last amended by Laws of Utah 2007, Chapter 136
33 23-15-10, as enacted by Laws of Utah 1971, Chapter 46
34 23-19-1, as last amended by Laws of Utah 2003, Chapter 189
35
36 Be it enacted by the Legislature of the state of Utah:
37 Section 1. Section 4-37-103 is amended to read:
38 4-37-103. Definitions.
39 As used in this chapter:
40 (1) "Aquaculture" means the controlled cultivation of aquatic animals.
41 (2) (a) (i) "Aquaculture facility" means any tank, canal, raceway, pond, off-stream
42 reservoir, or other structure used for aquaculture.
43 (ii) "Aquaculture facility" does not include any public aquaculture facility or fee fishing
44 facility.
45 (b) Structures that are separated by more than 1/2 mile, or structures that drain to or are
46 modified to drain to, different drainages, are considered separate aquaculture facilities
47 regardless of ownership.
48 (3) (a) "Aquatic animal" means a member of any species of fish, mollusk, crustacean,
49 or amphibian.
50 (b) "Aquatic animal" includes a gamete of any species listed in Subsection (3)(a).
51 (4) "Fee fishing facility" means a body of water used for holding or rearing fish for the
52 purpose of providing fishing for a fee or for pecuniary consideration or advantage.
53 (5) (a) "Private fish pond" means a body of water where privately owned fish are
54 propagated or kept for a noncommercial purpose.
55 (b) "Private fish pond" does not include any aquaculture facility or fee fishing facility.
56 (6) "Public aquaculture facility" means a tank, canal, raceway, pond, off-stream

57 reservoir, or other structure used for aquaculture by the Division of Wildlife Resources, U.S.
58 Fish and Wildlife Service, or an institution of higher education.
59 (7) "Public fishery resource" means fish produced in public aquaculture facilities and
60 wild and free ranging populations of fish in the surface waters of the state.
61 Section 2. Section 4-37-204 is amended to read:
62 4-37-204. Sale of aquatic animals from aquaculture facilities.
63 (1) (a) [A] Except as provided by Subsection (1)(b), a person holding a certificate of
64 registration for an aquaculture facility may take an aquatic [animals] animal as approved on the
65 certificate of registration from the facility at any time and offer [them] the aquatic animal for
66 sale; however, live aquatic animals may be sold within Utah only to a person who has been
67 issued a certificate of registration to possess [those] the aquatic [animals] animal.
68 (b) A person who owns or operates an aquaculture facility may stock a live aquatic
69 animal in a private fish pond if the person:
70 (i) obtains a health approval number for the aquaculture facility;
71 (ii) provides the private fish pond's owner with a brochure published by the Division of
72 Wildlife Resources that summarizes the statutes and rules related to a private fish pond and the
73 possession of an aquatic animal;
74 (iii) inspects the private fish pond to verify that the private fish pond is in compliance
75 with Subsections 23-15-10 (2) and (3)(c); and
76 (iv) stocks the species, strain, and reproductive capability of aquatic animal authorized
77 by the Wildlife Board in accordance with Section 23-15-10 for stocking in the area where the
78 private fish pond is located.
79 (2) [Aquatic animals] An aquatic animal sold or transferred by the owner or operator of
80 an aquaculture facility must be accompanied by the seller's receipt that contains the following
81 information:
82 (a) date of transaction;
83 (b) name, address, certificate of registration number, health approval number, and
84 signature of seller;
85 (c) number and weight of aquatic animal by:
86 (i) species;
87 (ii) strain; and

88 (iii) reproductive capability; and
89 (d) name and address of the receiver[; and].
90 [(e) for sales within Utah, the receiver's certificate of registration number.]
91 (3) (a) A person holding a certificate of registration for an aquaculture facility must
92 submit to the department an annual report of each sale of live aquatic animals or each transfer
93 of live aquatic animals to:
94 (i) another aquaculture facility; or
95 (ii) a fee fishing facility.
96 (b) The report must contain the following information:
97 (i) name, address, and certificate of registration number of the seller or supplier;
98 (ii) number and weight by species;
99 (iii) date of sale or transfer; and
100 (iv) name, address, phone number, and certificate of registration number of the
101 receiver.
102 (4) (a) A person who owns or operates an aquaculture facility shall submit to the
103 Division of Wildlife Resources an annual report of each sale or transfer of a live aquatic animal
104 to a private fish pond.
105 (b) The report shall contain:
106 (i) the name, address, and health approval number of the person;
107 (ii) the name, address, and phone number of the private fish pond's owner or operator;
108 (iii) the number and weigh of aquatic animal by:
109 (A) species;
110 (B) strain; and
111 (C) reproductive capability;
112 (iv) date of sale or transfer;
113 (v) the private fish pond's H. [ general ] .H location; and
114 (vi) verification that the private fish pond was inspected and is in compliance with
115 Subsections 23-15-10 (2) and (3)(c).
116 [(c)] (5) The [report] reports required by Subsections (3) and (4) must be submitted [to
117 the department] before:
118 (a) a certificate of registration is renewed or a subsequent certificate of registration is

119 issued for an aquaculture facility in the state; or
120 (b) a health approval number is issued for an out-of-state source.
121 Section 3. Section 4-37-503 is amended to read:
122 4-37-503. Fish Health Policy Board.
123 (1) There is created within the department the Fish Health Policy Board which shall
124 establish policies designed to prevent the outbreak of, control the spread of, and eradicate
125 pathogens that cause disease in aquatic animals.
126 (2) The Fish Health Policy Board shall:
127 (a) in accordance with Subsection (6)(b), determine procedures and requirements for
128 certifying a source of aquatic animals as health approved, including:
129 (i) the pathogens for which inspection is required to receive health approval;
130 (ii) the pathogens [which] that may not be present to receive health approval; and
131 (iii) standards and procedures required for the inspection of aquatic animals;
132 (b) establish procedures for the timely reporting of the presence of [pathogens] a
133 pathogen and disease [threats] threat;
134 (c) create policies and procedures for, and appoint, an emergency response team to:
135 (i) investigate a serious [threats of] disease threat;
136 (ii) develop and monitor a plan of action; and
137 (iii) report to:
138 (A) the commissioner of agriculture and food;
139 (B) the director of the Division of Wildlife Resources; and
140 (C) the chair of the Fish Health Policy Board; and
141 (d) develop a unified statewide aquaculture disease control [plans] plan.
142 (3) The Fish Health Policy Board shall advise the commissioner of agriculture and
143 food and the executive director of the Department of Natural Resources regarding:
144 (a) educational programs and information systems to educate and inform the public
145 about practices that the public may employ to prevent the spread of disease; and
146 (b) communication and interaction between the department and the Division of
147 Wildlife Resources regarding fish health policies and procedures.
148 (4) (a) (i) The governor shall appoint the following seven members to the Fish Health
149 Policy Board [shall consist of seven members as follows]:

150 [(A) one member shall be jointly appointed by the commissioner of agriculture and
151 food and the executive director of the Department of Natural Resources;]
152 [(B) two members shall be appointed by the commissioner of agriculture and food;]
153 [(C) two members shall be appointed by the executive director of the Department of
154 Natural Resources;]
155 [(D) one member shall be the state veterinarian; and]
156 [(E) one member shall be the director of the Division of Wildlife Resources.]
157 [(ii) Each member appointed under Subsections (4)(a)(i)(A) through (C) shall be
158 knowledgeable about the control of aquatic diseases.]
159 [(iii) The member appointed under Subsection (4)(a)(i)(A) may not be an employee of,
160 or a member of a board within, the Department of Agriculture and Food or Department of
161 Natural Resources.]
162 [(iv) Of the members appointed under Subsection (4)(a)(i)(B), one shall be an
163 employee of the Division of Animal Industry and one shall be a representative of the
164 aquaculture industry.]
165 [(v) Of the members appointed under Subsection (4)(a)(i)(C), one shall be an employee
166 of the Division of Wildlife Resources and one shall represent sport fishermen.]
167 (A) one member from names submitted by the Department of Natural Resources;
168 (B) one member from names submitted by the Department of Agriculture and Food;
169 (C) one member from names submitted by a nonprofit corporation that promotes sport
170 fishing;
171 (D) one member from names submitted by a nonprofit corporation that promotes the
172 aquaculture industry;
173 (E) one member from names submitted by the H. [ members appointed under Subsections
174 (4)(a)(i)(A) and (B) ] Department of Natural Resources and the Department of Agriculture
174a and Food .H ;
175 (F) one member from names submitted by H. [ the member appointed under
176 Subsection(4)(a)(i)(C) ] a nonprofit corporation that promotes sport fishing .H ; and
177 (G) one member from names submitted by H. [ the member appointed under Subsection
178 (4)(a)(i)(D) ] a nonprofit corporation that promotes the aquaculture industry .H .
179 (ii) The members appointed under Subsections (4)(a)(i)(E) through (G) shall H. be .H :
180 (A) H. [ be ] (I) .H faculty members of an institution of higher education; H. [ and ] or
180a (II) qualified professionals; and .H

181 (B) have education and knowledge in:
182 (I) fish pathology;
183 (II) business;
184 (III) ecology; H. [ and ] or .H
185 (IV) parasitology.
186 (iii) At least one member appointed under Subsections (4)(a)(i)(E) through (G) shall
187 have education and knowledge about fish pathology.
188 (iv) (A) A nominating person shall submit at least three names to the governor.
189 (B) If the governor rejects all the names submitted for a member, the recommending
190 person shall submit additional names.
191 (b) Except as required by Subsection (4)(c), the term of office of board members[,
192 other than the state veterinarian and the director of the Division of Wildlife Resources,] shall
193 be four years.
194 (c) Notwithstanding the requirements of Subsection (4)(b), the [commissioner and the
195 executive director] governor shall, at the time of appointment or reappointment, adjust the
196 length of terms to ensure that the terms of board members are staggered so that approximately
197 half of the board is appointed every two years.
198 (d) When a vacancy occurs in the membership for any reason, the replacement shall be
199 appointed for the unexpired term.
200 (e) The [member appointed under Subsection (4)(a)(i)(A) shall serve as] board
201 members shall elect a chair of the board from the board's membership.
202 (f) The board shall meet upon the call of the chair or a majority of the board members.
203 (g) [(i)] An action of the board shall be adopted upon approval of [five or more] the
204 majority of voting members.
205 [(ii) The chair may not vote.]
206 (5) (a) (i) A member who is not a government employee may not receive compensation
207 or benefits for the member's service, but may receive per diem and expenses incurred in the
208 performance of the member's official duties at the rates established by the Division of Finance
209 under Sections 63A-3-106 and 63A-3-107 .
210 (ii) A member may decline to receive per diem and expenses for the member's service.
211 (b) (i) A state government officer and employee member who does not receive salary,

212 per diem, or expenses from the agency the member represents for the member's service may
213 receive per diem and expenses incurred in the performance of the member's official duties at
214 the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
215 (ii) A state government officer and employee member may decline to receive per diem
216 and expenses for the member's service.
217 (c) (i) A higher education member who does not receive salary, per diem, or expenses
218 from the entity that the member represents for the member's service may receive per diem and
219 expenses incurred in the performance of the member's official duties at the rates established by
220 the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
221 (ii) A higher education member may decline to receive per diem and expenses for the
222 member's service.
223 (6) (a) The board shall make rules consistent with its responsibilities and duties
224 specified in this section.
225 (b) Except as provided by this chapter, all rules adopted by the Fish Health Policy
226 Board must be consistent with the suggested procedures for the detection and identification of
227 pathogens published by the American Fisheries Society's Fish Health Section.
228 (c) (i) Rules of the department and Fish Health Policy Board pertaining to the control
229 of disease shall remain in effect until the Fish Health Policy Board enacts rules to replace those
230 provisions.
231 (ii) The Fish Health Policy Board shall promptly amend rules that are inconsistent with
232 the current suggested procedures published by the American Fisheries Society.
233 (d) The Fish Health Policy Board may waive a requirement established by the Fish
234 Health Policy Board's rules if:
235 (i) the rule specifies the waiver criteria and procedures; and
236 (ii) the waiver will not threaten other aquaculture facilities or wild aquatic animal
237 populations.
238 Section 4. Section 23-13-2 is amended to read:
239 23-13-2. Definitions.
240 As used in this title:
241 (1) "Activity regulated under this title" means any act, attempted act, or activity
242 prohibited or regulated under any provision of Title 23, Wildlife Resources Code of Utah, or

243 the rules, and proclamations promulgated thereunder pertaining to protected wildlife including:
244 (a) fishing;
245 (b) hunting;
246 (c) trapping;
247 (d) taking;
248 (e) permitting any dog, falcon, or other domesticated animal to take;
249 (f) transporting;
250 (g) possessing;
251 (h) selling;
252 (i) wasting;
253 (j) importing;
254 (k) exporting;
255 (l) rearing;
256 (m) keeping;
257 (n) utilizing as a commercial venture; and
258 (o) releasing to the wild.
259 (2) "Aquatic animal" has the meaning provided in Section 4-37-103 .
260 (3) "Aquatic wildlife" means species of fish, mollusks, crustaceans, aquatic insects, or
261 amphibians.
262 (4) "Aquaculture facility" has the meaning provided in Section 4-37-103 .
263 (5) "Bag limit" means the maximum limit, in number or amount, of protected wildlife
264 that one person may legally take during one day.
265 (6) "Big game" means species of hoofed protected wildlife.
266 (7) "Carcass" means the dead body of an animal or its parts.
267 (8) "Certificate of registration" means a document issued under this title, or any rule or
268 proclamation of the Wildlife Board granting authority to engage in activities not covered by a
269 license, permit, or tag.
270 (9) "Closed season" means the period of time during which the taking of protected
271 wildlife is prohibited.
272 (10) "Conservation officer" means a full-time, permanent employee of the Division of
273 Wildlife Resources who is POST certified as a peace or a special function officer.

274 (11) "Dedicated hunter program" means a program that provides:
275 (a) expanded hunting opportunities;
276 (b) opportunities to participate in projects that are beneficial to wildlife; and
277 (c) education in hunter ethics and wildlife management principles.
278 (12) "Division" means the Division of Wildlife Resources.
279 (13) (a) "Domicile" means the place:
280 (i) where an individual has a fixed permanent home and principal establishment;
281 (ii) to which the individual if absent, intends to return; and
282 (iii) in which the individual, and the individual's family voluntarily reside, not for a
283 special or temporary purpose, but with the intention of making a permanent home.
284 (b) To create a new domicile an individual must:
285 (i) abandon the old domicile; and
286 (ii) be able to prove that a new domicile has been established.
287 (14) "Endangered" means wildlife designated as such according to Section 3 of the
288 federal Endangered Species Act of 1973.
289 (15) "Fee fishing facility" has the meaning provided in Section 4-37-103 .
290 (16) "Feral" means an animal which is normally domesticated but has reverted to the
291 wild.
292 (17) "Fishing" means to take fish or crayfish by any means.
293 (18) "Furbearer" means species of the Bassariscidae, Canidae, Felidae, Mustelidae, and
294 Castoridae families, except coyote and cougar.
295 (19) "Game" means wildlife normally pursued, caught, or taken by sporting means for
296 human use.
297 (20) (a) "Guide" means a person who receives compensation or advertises services for
298 assisting another person to take protected wildlife.
299 (b) Assistance under Subsection (20)(a) includes the provision of food, shelter, or
300 transportation, or any combination of these.
301 (21) "Guide's agent" means a person who is employed by a guide to assist another
302 person to take protected wildlife.
303 (22) "Hunting" means to take or pursue a reptile, amphibian, bird, or mammal by any
304 means.

305 (23) "Intimidate or harass" means to physically interfere with or impede, hinder, or
306 diminish the efforts of an officer in the performance of the officer's duty.
307 (24) "Nonresident" means a person who does not qualify as a resident.
308 (25) "Open season" means the period of time during which protected wildlife may be
309 legally taken.
310 (26) "Pecuniary gain" means the acquisition of money or something of monetary value.
311 (27) "Permit" means a document, including a stamp, which grants authority to engage
312 in specified activities under this title or a rule or proclamation of the Wildlife Board.
313 (28) "Person" means an individual, association, partnership, government agency,
314 corporation, or an agent of the foregoing.
315 (29) "Possession" means actual or constructive possession.
316 (30) "Possession limit" means the number of bag limits one individual may legally
317 possess.
318 (31) (a) "Private fish [installation] pond" means a body of water where privately
319 owned, protected aquatic wildlife are propagated or kept for a noncommercial purpose.
320 (b) "Private fish [installation] pond" does not include any aquaculture facility or fee
321 fishing facility.
322 (32) "Private wildlife farm" means an enclosed place where privately owned birds or
323 furbearers are propagated or kept and that restricts the birds or furbearers from:
324 (a) commingling with wild birds or furbearers; and
325 (b) escaping into the wild.
326 (33) "Proclamation" means the publication used to convey a statute, rule, policy, or
327 pertinent information as it relates to wildlife.
328 (34) (a) "Protected aquatic wildlife" means aquatic wildlife as defined in Subsection
329 (3), except as provided in Subsection (34)(b).
330 (b) "Protected aquatic wildlife" does not include aquatic insects.
331 (35) (a) "Protected wildlife" means wildlife as defined in Subsection (49), except as
332 provided in Subsection (35)(b).
333 (b) "Protected wildlife" does not include coyote, field mouse, gopher, ground squirrel,
334 jack rabbit, muskrat, and raccoon.
335 (36) "Released to the wild" means to be turned loose from confinement.

336 (37) (a) "Resident" means a person who:
337 (i) has been domiciled in the state for six consecutive months immediately preceding
338 the purchase of a license; and
339 (ii) does not claim residency for hunting, fishing, or trapping in any other state or
340 country.
341 (b) A Utah resident retains Utah residency if that person leaves this state:
342 (i) to serve in the armed forces of the United States or for religious or educational
343 purposes; and
344 (ii) complies with Subsection (37)(a)(ii).
345 (c) (i) A member of the armed forces of the United States and dependents are residents
346 for the purposes of this chapter as of the date the member reports for duty under assigned
347 orders in the state if the member:
348 (A) is not on temporary duty in this state; and
349 (B) complies with Subsection (37)(a)(ii).
350 (ii) A copy of the assignment orders must be presented to a wildlife division office to
351 verify the member's qualification as a resident.
352 (d) A nonresident attending an institution of higher learning in this state as a full-time
353 student may qualify as a resident for purposes of this chapter if the student:
354 (i) has been present in this state for 60 consecutive days immediately preceding the
355 purchase of the license; and
356 (ii) complies with Subsection (37)(a)(ii).
357 (e) A Utah resident license is invalid if a resident license for hunting, fishing, or
358 trapping is purchased in any other state or country.
359 (f) An absentee landowner paying property tax on land in Utah does not qualify as a
360 resident.
361 (38) "Sell" means to offer or possess for sale, barter, exchange, or trade, or the act of
362 selling, bartering, exchanging, or trading.
363 (39) "Small game" means species of protected wildlife:
364 (a) commonly pursued for sporting purposes; and
365 (b) not classified as big game, aquatic wildlife, or furbearers and excluding turkey,
366 cougar, and bear.

367 (40) "Spoiled" means impairment of the flesh of wildlife which renders it unfit for
368 human consumption.
369 (41) "Spotlighting" means throwing or casting the rays of any spotlight, headlight, or
370 other artificial light on any highway or in any field, woodland, or forest while having in
371 possession a weapon by which protected wildlife may be killed.
372 (42) "Tag" means a card, label, or other identification device issued for attachment to
373 the carcass of protected wildlife.
374 (43) "Take" means to:
375 (a) hunt, pursue, harass, catch, capture, possess, angle, seine, trap, or kill any protected
376 wildlife; or
377 (b) attempt any action referred to in Subsection (43)(a).
378