H.B. 407

1

AQUACULTURE AMENDMENTS
2 1998 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: David Ure
5 AN ACT RELATING TO AQUACULTURE; CREATING THE FISH HEALTH POLICY
6 BOARD WHICH SHALL HAVE AUTHORITY TO ESTABLISH POLICY AND RULES
7 REGARDING THE PREVENTION AND CONTROL OF DISEASE AMONG AQUATIC
8 ANIMALS; ALLOWING THE DIVISION OF WILDLIFE RESOURCES TO CERTIFY
9 CERTAIN SOURCES OF AQUATIC ANIMALS AS HEALTH APPROVED; AND
10 ELIMINATING THE FISH HEALTH BOARD AND AN ADVISORY COUNCIL ON
11 AQUACULTURE.
12 This act affects sections of Utah Code Annotated 1953 as follows:
13 AMENDS:
14 4-37-103, as renumbered and amended by Chapter 153, Laws of Utah 1994
15 4-37-104, as renumbered and amended by Chapter 153, Laws of Utah 1994
16 4-37-105, as renumbered and amended by Chapter 153, Laws of Utah 1994
17 4-37-108, as enacted by Chapter 153, Laws of Utah 1994
18 4-37-109, as enacted by Chapter 153, Laws of Utah 1994
19 4-37-501, as enacted by Chapter 153, Laws of Utah 1994
20 4-37-502, as enacted by Chapter 153, Laws of Utah 1994
21 4-37-503, as last amended by Chapters 82 and 276, Laws of Utah 1997
22 REPEALS:
23 4-37-107, as last amended by Chapter 82, Laws of Utah 1997
24 Be it enacted by the Legislature of the state of Utah:
25 Section 1. Section 4-37-103 is amended to read:
26 4-37-103. Definitions.
27 As used in this chapter:

1 (1) "Aquaculture" means the controlled cultivation of aquatic animals.
2 (2) (a) "Aquaculture facility" means any tank, canal, raceway, pond, off-stream reservoir,
3 or other structure used for aquaculture. "Aquaculture facility" does not include any public
4 aquaculture facility or fee fishing facility.
5 (b) Structures that are separated by more than 1/2 mile, or structures that drain to or are
6 modified to drain to, different drainages, are considered separate aquaculture facilities regardless
7 of ownership.
8 (3) (a) "Aquatic animal" means a member of any species of fish, mollusk, crustacean, or
9 amphibian.
10 (b) "Aquatic animal" includes a gamete of any species listed in Subsection (3)(a).
11 (4) "Fee fishing facility" means a body of water used for holding or rearing fish for the
12 purpose of providing fishing for a fee or for pecuniary consideration or advantage.
13 (5) (a) "Private fish pond" means a body of water where privately owned fish are
14 propagated or kept.
15 (b) "Private fish pond" does not include any aquaculture facility or fee fishing facility.
16 [(5)] (6) "Public aquaculture facility" means a tank, canal, raceway, pond, off-stream
17 reservoir, or other structure used for aquaculture by the Division of Wildlife Resources, U.S. Fish
18 and Wildlife Service, [a school,] or an institution of higher education.
19 [(6)] (7) "Public fishery resource" means fish produced in public aquaculture facilities and
20 wild and free ranging populations of fish in the surface waters of the state.
21 Section 2. Section 4-37-104 is amended to read:
22 4-37-104. Department's responsibilities.
23 (1) The department is responsible for:
24 [(1)] (a) the marketing and promotion of the state's aquaculture industry; and
25 [(2)] (b) enforcing laws and rules made by the Wildlife Board governing species of aquatic
26 animals which may be imported into the state or possessed or transported within the state that are
27 applicable to aquaculture or fee fishing facilities[;].
28 (2) Subject to the policies and rules of the Fish Health Policy Board, the department shall:
29 [(3) preventing] (a) act to prevent the outbreak and [controlling] act to control the spread
30 of disease-causing pathogens among aquatic animals in aquaculture and fee fishing facilities; and
31 [(4) preventing] (b) act to prevent the spread of disease-causing pathogens from aquatic

- 2 -

1 animals in, to be deposited in, or harvested from aquaculture or fee fishing facilities to aquatic
2 wildlife, other animals, and humans.
3 Section 3. Section 4-37-105 is amended to read:
4 4-37-105. Responsibilities of Wildlife Board and Division of Wildlife Resources.
5 (1) The Wildlife Board and Division of Wildlife Resources are responsible for[:(1)]
6 determining the species of aquatic animals which may be imported into, possessed, and transported
7 within the state[;].
8 (2) Subject to the policies and rules of the Fish Health Policy Board, the Wildlife Board,
9 and the Division of Wildlife Resources shall:
10 [(2) preventing] (a) act to prevent the outbreak and [controlling] act to control the spread
11 of disease-causing pathogens among aquatic animals in public aquaculture facilities; and
12 [(3) preventing] (b) act to prevent the spread of disease-causing pathogens from aquatic
13 animals in, to be deposited in, or harvested from public aquaculture facilities and private ponds
14 to aquatic wildlife, other animals, and humans.
15 Section 4. Section 4-37-108 is amended to read:
16 4-37-108. Prohibited activities.
17 (1) Except as provided in this chapter, in the rules of the department made pursuant to
18 Section 4-37-109, rules of the Fish Health Policy Board made pursuant to Section 4-37-503, or in
19 the rules of the Wildlife Board governing species of aquatic animals which may be imported into,
20 possessed, or transported within the state, a person may not:
21 (a) acquire, import, or possess aquatic animals intended for use in an aquaculture or fee
22 fishing facility;
23 (b) transport aquatic animals to or from an aquaculture or fee fishing facility;
24 (c) stock or propagate aquatic animals in an aquaculture or fee fishing facility; or
25 (d) harvest, transfer, or sell aquatic animals from an aquaculture or fee fishing facility.
26 (2) If a person commits an act in violation of Subsection (1) and that same act constitutes
27 wanton destruction of protected wildlife as provided in Section 23-20-4, the person is guilty of a
28 violation of Section 23-20-4.
29 Section 5. Section 4-37-109 is amended to read:
30 4-37-109. Department to make rules.
31 (1) The department shall make rules in accordance with Title 63, Chapter 46a, Utah

- 3 -

1 Administrative Rulemaking Act[, after considering the recommendations of the advisory council]:
2 (a) specifying procedures for the application and renewal of certificates of registration for
3 operating an aquaculture or fee fishing facility; and
4 (b) governing the disposal or removal of aquatic animals from an aquaculture or fee
5 fishing facility for which the certificate of registration has lapsed or been revoked[; and].
6 [(c) setting standards for health inspections, except as provided by Section 4-37-503.]
7 (2) The department may make other rules consistent with its responsibilities set forth in
8 Section 4-37-104.
9 [(3) The provisions of the proclamation of the Wildlife Board for "Aquaculture and Fish
10 Stocking" which pertain to aquaculture, public aquaculture, and fee fishing facilities and do not
11 conflict with this chapter shall remain in effect until the department makes rules to replace those
12 provisions of the proclamation.]
13 Section 6. Section 4-37-501 is amended to read:
14 4-37-501. Health approval -- Exceptions.
15 (1) (a) Except as provided in Subsections (2) and (3), live aquatic animals may be
16 acquired, purchased, sold, or transferred only from sources which have been health approved by
17 the department or the Division of Wildlife Resources in accordance with policy and rules of the
18 Fish Health Policy Board and assigned a health approval number.
19 (b) (i) The department shall be responsible for certifying as health approved:
20 (A) aquaculture facilities;
21 (B) fee fishing facilities; and
22 (C) any out-of-state source.
23 (ii) The Division of Wildlife Resources shall be responsible for certifying as health
24 approved:
25 (A) public aquaculture facilities within the state;
26 (B) private ponds within the state; and
27 (C) wild populations of aquatic animals in waters of the state.
28 (2) (a) The [department] Division of Wildlife Resources shall waive the health approval
29 requirement for wild populations of aquatic animals pursuant to guidelines of the Fish Health
30 Policy Board.
31 (b) The Fish Health Policy Board shall develop guidelines for waiving the health approval

- 4 -

1 requirement for wild populations of aquatic animals which:
2 (i) are listed by the federal government as threatened or endangered;
3 (ii) are listed by the Division of Wildlife Resources as species of special concern; or
4 (iii) exist in such low numbers that lethal sampling for health approval could threaten the
5 population.
6 (c) When wild populations of aquatic animals are exempted from the health approval
7 requirement, precautions shall be taken to protect other wild populations and any other aquatic
8 animals from undetected pathogens.
9 (3) Subsection (1) does not apply to the sale or transfer of live aquatic animals to an
10 out-of-state destination approved by the receiving state.
11 Section 7. Section 4-37-502 is amended to read:
12 4-37-502. Inspections -- Qualifications of inspectors.
13 (1) Health approval shall be based upon inspections carried out in accordance with
14 standards [specified by the department] and rules of the Fish Health Policy Board made pursuant
15 to Section 4-37-503.
16 (2) (a) The inspections must be done by an individual who has received certification from
17 the American Fisheries Society as a fish health inspector.
18 (b) An inspection of an aquaculture facility may not be done by an inspector who is
19 employed by, or has pecuniary interest in, the facility being inspected.
20 (3) To receive a health approval number, inspection reports and other evidence of the
21 disease status of a source facility must be submitted to the [department] agency responsible for
22 certifying the source as health approved pursuant to Section 4-37-501.
23 Section 8. Section 4-37-503 is amended to read:
24 4-37-503. Fish Health Policy Board.
25 (1) There is created within the department the Fish Health Policy Board which shall [be
26 responsible for determining: (a) the pathogens for which inspection is required to receive health
27 approval; and (b) the pathogens which may not be present to receive health approval.] establish
28 policies designed to prevent the outbreak of, control the spread of, and eradicate pathogens that
29 cause disease in aquatic animals.
30 (2) The Fish Health Policy Board shall:
31 (a) determine procedures and requirements for certifying a source of aquatic animals as

- 5 -

1 health approved, including:
2 (i) the pathogens for which inspection is required to receive health approval;
3 (ii) the pathogens which may not be present to receive health approval; and
4 (iii) standards and procedures required for the inspection of aquatic animals;
5 (b) establish procedures for the timely reporting of the presence of pathogens and disease
6 threats;
7 (c) create policies and procedures for, and appoint, an emergency response team to:
8 (i) investigate serious threats of disease;
9 (ii) develop and monitor a plan of action; and
10 (iii) report to:
11 (A) the commissioner of agriculture and food;
12 (B) the director of the Division of Wildlife Resources; and
13 (C) the chair of the Fish Health Policy Board; and
14 (d) develop unified statewide aquaculture disease control plans.
15 (3) The Fish Health Policy Board shall advise the commissioner of agriculture and food
16 and the executive director of the Department of Natural Resources regarding:
17 (a) educational programs and information systems to educate and inform the public about
18 practices that the public may employ to prevent the spread of disease; and
19 (b) communication and interaction between the department and the Division of Wildlife
20 Resources regarding fish health policies and procedures.
21 [(2)] (4) (a) (i) The Fish Health Policy Board shall consist of [six] seven members[, three
22 of whom shall be appointed by the commissioner of agriculture and food and three of whom shall
23 be appointed by the executive director of the Department of Natural Resources from a list of
24 candidates submitted by the Division of Wildlife Resources.] as follows:
25 h [ (A) three members shall be appointed by the commissioner of agriculture and food;
26 (B) three members shall be appointed by the executive director of the Department of
27 Natural Resources; and
28 (C) one member shall be the state veterinarian.
29 (ii) Each member appointed by the commissioner of agriculture and food or the executive
30 director of the Department of Natural Resources shall be knowledgeable about the control of
31 aquatic diseases. ] h

- 6 -

lilac-February 26, 1998

1 h [ (iii) Of the members appointed by the commissioner of agriculture and food, two shall be
2 employees of the Division of Animal Industry and one shall be a representative of the aquaculture
3 industry.
4 (iv) Of the members appointed by the executive director of the Department of Natural
5 Resources, two shall be employees of the Division of Wildlife Resources and one shall represent
6 sport fishermen. ]
6a (A) ONE MEMBER SHALL BE JOINTLY APPOINTED BY THE COMMISSIONER OF
6b AGRICULTURE AND FOOD AND THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF NATURAL
6c RESOURCES;
6d (B) TWO MEMBERS SHALL BE APPOINTED BY THE COMMISSIONER OF AGRICULTURE AND
6e FOOD;
6f (C) TWO MEMBERS SHALL BE APPOINTED BY THE EXECUTIVE DIRECTOR OF THE
6g DEPARTMENT OF NATURAL RESOURCES;
6h (D) ONE MEMBER SHALL BE THE STATE VETERINARIAN; AND
6i (E) ONE MEMBER SHALL BE THE DIRECTOR OF THE DIVISION OF WILDLIFE RESOURCES.
6j (ii) EACH MEMBER APPOINTED UNDER SUBSECTIONS (4)(a)(i)A) THROUGH (C) SHALL BE
6k KNOWLEDGEABLE ABOUT THE CONTROL OF AQUATIC DISEASES.
6l (iii) THE MEMBER APPOINTED UNDER SUBSECTION (4)(a)(i)(A) MAY NOT BE AN EMPLOYEE
6m OF, OR A MEMBER OF A BOARD WITHIN, THE DEPARTMENT OF AGRICULTURE OR DEPARTMENT OF
6n NATURAL RESOURCES;
6o (iv) OF THE MEMBERS APPOINTED UNDER SUBSECTION (4)(a)(i)(B), ONE SHALL BE AN
6p EMPLOYEE OF THE DIVISION OF ANIMAL INDUSTRY AND ONE SHALL BE A REPRESENTATIVE OF
6q THE AQUACULTURE INDUSTRY.
6r (v) OF THE MEMBERS APPOINTED UNDER SUBSECTION (4)(a)(i)(C), ONE SHALL BE AN
6s EMPLOYEE OF THE DIVISION OF WILDLIFE RESOURCES AND ONE SHALL REPRESENT SPORT
6t FISHERMEN. h
7 [(b) The state veterinarian shall be among the members appointed by the commissioner
8 of agriculture and food and shall serve as chair of the board.]
9 [(c) The chief fish pathologist of the Division of Wildlife Resources shall be among the
10 members appointed by the executive director of the Department of Natural Resources.]
11 [(d)] (b) Except as required by Subsection [(e)] (4)(c), the term of office of board members,

- 7 -

lilac-February 26, 1998

12 other than the state veterinarian h AND THE DIRECTOR OF THE DIVISION OF WILDLIFE
12a RESOURCES h , shall be four years.
13 [(e)] (c) Notwithstanding the requirements of Subsection [(d)] (4)(b), the commissioner
14 and the executive director shall, at the time of appointment or reappointment, adjust the length of
15 terms to ensure that the terms of board members are staggered so that approximately half of the
16 board is appointed every two years.
17 [(f)] (d) When a vacancy occurs in the membership for any reason, the replacement shall
18 be appointed for the unexpired term.
19 (e) The h [ state veterinarian ] MEMBER APPOINTED UNDER SUBSECTION (4)(a)(i)(A) h shall
19a serve as chair of the board.
20 [(g)] (f) The board shall meet upon the call of the chair or a majority of the board
21 members.
22 [(h) (i) A majority of the board members constitutes a quorum. A quorum is necessary for
23 the board to act.]
24 [(ii) Approval of a motion to list or delist a pathogen requires at least four votes.]
25 (g) (i) An action of the board shall be adopted upon approval of four or more voting
26 members.
27 (ii) The chair may not vote.
28 [(3)] (5) (a) (i) Members who are not government employees shall receive no
29 compensation or benefits for their services, but may receive per diem and expenses incurred in the
30 performance of the member's official duties at the rates established by the Division of Finance
31 under Sections 63A-3-106 and 63A-3-107.







- 7a -

lilac-February 26, 1998

1 (ii) Members may decline to receive per diem and expenses for their service.
2 (b) (i) State government officer and employee members who do not receive salary, per
3 diem, or expenses from their agency for their service may receive per diem and expenses incurred
4 in the performance of their official duties from the board at the rates established by the Division
5 of Finance under Sections 63A-3-106 and 63A-3-107.
6 (ii) State government officer and employee members may decline to receive per diem and
7 expenses for their service.
8 [(4)] (6) (a) The board shall make rules consistent with its responsibilities and duties
9 specified in [Subsection (1)] this section.
10 (b) [The provisions of the proclamation of the Wildlife Board for "Aquaculture and Fish
11 Stocking" that pertain to pathogens for which inspection is necessary and which may not be
12 present] Rules of the department and Fish Health Board pertaining to the control of disease shall
13 remain in effect until the Fish Health Policy Board enacts rules to replace those provisions.
14 Section 9. Repealer.
15 This act repeals:
16 Section 4-37-107, Advisory council.
16a h Section. 10. Legislative intent.
16b It is the intent of the Legislature that:
16c (1) THE NATURAL RESOURCES, AGRICULTURE AND ENVIRONMENT INTERIM COMMITTEE TAKE
16d COMMENT FROM ANY INTERESTED PARTIES DURING THE 1998 INTERIM MEETINGS ON PROGRESS
16e MADE BY THE FISH HEALTH POLICY BOARD; AND
16f (2) IF IT IS THE OPINION OF THE COMMITTEE, AFTER TAKING COMMENT FROM INTERESTED
16g PARTIES, THAT THE PERFORMANCE OF THE FISH HEALTH POLICY BOARD IS BEING HINDERED BY THE
16h LACK OF A TIE-BREAKING VOTE ON THE BOARD, THE CHAIRMANSHIP ISSUE SHALL BE REVISITED IN
16i THE 1999 LEGISLATIVE SESSION. h




Legislative Review Note
as of 2-16-98 2:05 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

- 8 -

lilac-February 26, 1998