S.B. 195 Enrolled

1

FISH HEALTH AMENDMENTS
2 2007 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Darin G. Peterson
5 House Sponsor: Michael E. Noel
6
7 LONG TITLE
8 General Description:
9 This bill amends the Aquaculture Act.
10 Highlighted Provisions:
11 This bill:
12 . requires the Fish Health Policy Board to adopt rules consistent with the American
13 Fisheries Society's bluebook;
14 . allows an aquaculture facility to be retested for a health approval number;
15 . requires an aquaculture facility to notify the Department of Agriculture and Food of
16 an inspection;
17 . allows the Division of Wildlife to use more sensitive procedures when testing a
18 public aquaculture facility;
19 . requires the Department of Agriculture and Food to maintain a list of approved
20 laboratories and fish health inspectors;
21 . authorizes the Fish Health Policy Board to waive requirements established in rule;
22 . designates the presiding officer for a review of certain agency orders; and
23 . makes technical changes.
24 Monies Appropriated in this Bill:
25 None
26 Other Special Clauses:
27 None
28 Utah Code Sections Affected:
29 AMENDS:

30 4-37-109, as last amended by Chapter 302, Laws of Utah 1998
31 4-37-501, as last amended by Chapter 302, Laws of Utah 1998
32 4-37-502, as last amended by Chapter 302, Laws of Utah 1998
33 4-37-503, as last amended by Chapter 9, Laws of Utah 2001
34 4-37-602, as enacted by Chapter 153, Laws of Utah 1994
35
36 Be it enacted by the Legislature of the state of Utah:
37 Section 1. Section 4-37-109 is amended to read:
38 4-37-109. Department to make rules.
39 (1) The department shall make rules in accordance with Title 63, Chapter 46a, Utah
40 Administrative Rulemaking Act:
41 (a) specifying procedures for the application and renewal of certificates of registration
42 for operating an aquaculture or fee fishing facility; and
43 (b) governing the disposal or removal of aquatic animals from an aquaculture or fee
44 fishing facility for which the certificate of registration has lapsed or been revoked.
45 (2) (a) The department may make other rules consistent with its responsibilities set
46 forth in Section 4-37-104 .
47 (b) Except as provided by this chapter, the rules authorized by Subsection (2)(a) must
48 be consistent with the suggested procedures for the detection and identification of pathogens
49 published by the American Fisheries Society's Fish Health Section.
50 Section 2. Section 4-37-501 is amended to read:
51 4-37-501. Health approval -- Exceptions.
52 (1) (a) Except as provided in Subsections (2) and (3), live aquatic animals may be
53 acquired, purchased, sold, or transferred only from sources [which] that have been health
54 approved by the department or the Division of Wildlife Resources in accordance with policy
55 and rules of the Fish Health Policy Board and assigned a health approval number.
56 (b) (i) The department shall be responsible for certifying as health approved:
57 (A) aquaculture facilities;

58 (B) fee fishing facilities; and
59 (C) any out-of-state source.
60 (ii) The Division of Wildlife Resources shall be responsible for certifying as health
61 approved:
62 (A) public aquaculture facilities within the state;
63 (B) private ponds within the state; and
64 (C) wild populations of aquatic animals in waters of the state.
65 (2) (a) The Division of Wildlife Resources shall waive the health approval requirement
66 for wild populations of aquatic animals pursuant to guidelines of the Fish Health Policy Board.
67 (b) The Fish Health Policy Board shall develop guidelines for waiving the health
68 approval requirement for wild populations of aquatic animals which:
69 (i) are listed by the federal government as threatened or endangered;
70 (ii) are listed by the Division of Wildlife Resources as species of special concern; or
71 (iii) exist in such low numbers that lethal sampling for health approval could threaten
72 the population.
73 (c) When wild populations of aquatic animals are exempted from the health approval
74 requirement, precautions shall be taken to protect other wild populations and any other aquatic
75 animals from undetected pathogens.
76 (3) Subsection (1) does not apply to the sale or transfer of live aquatic animals to an
77 out-of-state destination approved by the receiving state.
78 (4) In certifying a public aquaculture facility as health approved, the Division of
79 Wildlife Resources may use:
80 (a) employees or contractors to conduct the inspection required by Section 4-37-502 ;
81 and
82 (b) sampling or testing procedures that are more thorough or sensitive in detecting
83 prohibited pathogens than the procedures required by rule.
84 Section 3. Section 4-37-502 is amended to read:
85 4-37-502. Inspections -- Health approval report -- Report for quarantine facility

86 -- Qualifications of inspectors -- Notification of department.
87 (1) [Health] (a) Except as provided by Subsection (1)(b), approval shall be based upon
88 inspections carried out in accordance with standards and rules of the Fish Health Policy Board
89 made pursuant to Section 4-37-503 .
90 (b) An owner or operator of an aquaculture facility that is under quarantine or whose
91 health approval has been canceled or denied prior to July 1, 2007 may seek health approval
92 without submitting or complying with a biosecurity plan required by rule by submitting a new
93 health inspection report to the department.
94 (2) (a) The inspections must be done by an individual who has received certification
95 from the American Fisheries Society as a fish health inspector.
96 (b) An inspection of an aquaculture facility may not be done by an inspector who is
97 employed by, or has pecuniary interest in, the facility being inspected.
98 (c) The department shall post on its website a current list of:
99 (i) certified fish health inspectors; and
100 (ii) approved laboratories to which a fish health inspector may send the samples
101 collected during the inspections required by this section.
102 (d) (i) If the fish health inspector conducting the inspection is not an employee of the
103 department, the owner or operator of the aquaculture facility shall notify the department of the
104 date and time of the inspection at least five business days before the date on which the
105 inspection will occur.
106 (ii) The department may be present for the inspection.
107 (3) To receive a health approval number, inspection reports and other evidence of the
108 disease status of a source facility must be submitted to the agency responsible for certifying the
109 source as health approved pursuant to Section 4-37-501 .
110 Section 4. Section 4-37-503 is amended to read:
111 4-37-503. Fish Health Policy Board.
112 (1) There is created within the department the Fish Health Policy Board which shall
113 establish policies designed to prevent the outbreak of, control the spread of, and eradicate

114 pathogens that cause disease in aquatic animals.
115 (2) The Fish Health Policy Board shall:
116 (a) in accordance with Subsection (6)(b), determine procedures and requirements for
117 certifying a source of aquatic animals as health approved, including:
118 (i) the pathogens for which inspection is required to receive health approval;
119 (ii) the pathogens which may not be present to receive health approval; and
120 (iii) standards and procedures required for the inspection of aquatic animals;
121 (b) establish procedures for the timely reporting of the presence of pathogens and
122 disease threats;
123 (c) create policies and procedures for, and appoint, an emergency response team to:
124 (i) investigate serious threats of disease;
125 (ii) develop and monitor a plan of action; and
126 (iii) report to:
127 (A) the commissioner of agriculture and food;
128 (B) the director of the Division of Wildlife Resources; and
129 (C) the chair of the Fish Health Policy Board; and
130 (d) develop unified statewide aquaculture disease control plans.
131 (3) The Fish Health Policy Board shall advise the commissioner of agriculture and
132 food and the executive director of the Department of Natural Resources regarding:
133 (a) educational programs and information systems to educate and inform the public
134 about practices that the public may employ to prevent the spread of disease; and
135 (b) communication and interaction between the department and the Division of
136 Wildlife Resources regarding fish health policies and procedures.
137 (4) (a) (i) The Fish Health Policy Board shall consist of seven members as follows:
138 (A) one member shall be jointly appointed by the commissioner of agriculture and food
139 and the executive director of the Department of Natural Resources;
140 (B) two members shall be appointed by the commissioner of agriculture and food;
141 (C) two members shall be appointed by the executive director of the Department of

142 Natural Resources;
143 (D) one member shall be the state veterinarian; and
144 (E) one member shall be the director of the Division of Wildlife Resources.
145 (ii) Each member appointed under Subsections (4)(a)(i)(A) through (C) shall be
146 knowledgeable about the control of aquatic diseases.
147 (iii) The member appointed under Subsection (4)(a)(i)(A) may not be an employee of,
148 or a member of a board within, the Department of Agriculture and Food or Department of
149 Natural Resources.
150 (iv) Of the members appointed under Subsection (4)(a)(i)(B), one shall be an employee
151 of the Division of Animal Industry and one shall be a representative of the aquaculture
152 industry.
153 (v) Of the members appointed under Subsection (4)(a)(i)(C), one shall be an employee
154 of the Division of Wildlife Resources and one shall represent sport fishermen.
155 (b) Except as required by Subsection (4)(c), the term of office of board members, other
156 than the state veterinarian and the director of the Division of Wildlife Resources, shall be four
157 years.
158 (c) Notwithstanding the requirements of Subsection (4)(b), the commissioner and the
159 executive director shall, at the time of appointment or reappointment, adjust the length of terms
160 to ensure that the terms of board members are staggered so that approximately half of the board
161 is appointed every two years.
162 (d) When a vacancy occurs in the membership for any reason, the replacement shall be
163 appointed for the unexpired term.
164 (e) The member appointed under Subsection (4)(a)(i)(A) shall serve as chair of the
165 board.
166 (f) The board shall meet upon the call of the chair or a majority of the board members.
167 (g) (i) An action of the board shall be adopted upon approval of [four] five or more
168 voting members.
169 (ii) The chair may not vote.

170 (5) (a) (i) [Members] A member who [are] is not a government [employees shall]
171 employee may not receive [no] compensation or benefits for [their services] the member's
172 service, but may receive per diem and expenses incurred in the performance of the member's
173 official duties at the rates established by the Division of Finance under Sections 63A-3-106 and
174 63A-3-107 .
175 (ii) [Members] A member may decline to receive per diem and expenses for [their] the
176 member's service.
177 (b) (i) [State] A state government officer and employee [members] member who [do]
178 does not receive salary, per diem, or expenses from [their] the agency the member represents
179 for [their] the member's service may receive per diem and expenses incurred in the
180 performance of [their] the member's official duties [from the board] at the rates established by
181 the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
182 (ii) [State] A state government officer and employee [members] member may decline
183 to receive per diem and expenses for [their] the member's service.
184 (6) (a) The board shall make rules consistent with its responsibilities and duties
185 specified in this section.
186 (b) Except as provided by this chapter, all rules adopted by the Fish Health Policy
187 Board must be consistent with the suggested procedures for the detection and identification of
188 pathogens published by the American Fisheries Society's Fish Health Section.
189 [(b)] (c) (i) Rules of the department and Fish Health Policy Board pertaining to the
190 control of disease shall remain in effect until the Fish Health Policy Board enacts rules to
191 replace those provisions.
192 (ii) The Fish Health Policy Board shall promptly amend rules that are inconsistent with
193 the current suggested procedures published by the American Fisheries Society.
194 (d) The Fish Health Policy Board may waive a requirement established by the Fish
195 Health Policy Board's rules if:
196 (i) the rule specifies the waiver criteria and procedures; and
197 (ii) the waiver will not threaten other aquaculture facilities or wild aquatic animal

198 populations.
199 Section 5. Section 4-37-602 is amended to read:
200 4-37-602. Adjudicative proceedings -- Presiding officer.
201 (1) Adjudicative proceedings under this chapter shall be conducted in accordance with
202 Title 63, Chapter 46b, Administrative Procedures Act.
203 (2) The revocation of an aquaculture facility's certificate of registration, the denial of
204 an aquaculture facility's future certificate of registration, and a denial or cancellation of an
205 aquaculture facility's health approval number is a state agency action governed by Title 63,
206 Chapter 46b, Administrative Procedures Act.
207 (3) (a) An owner or operator of an aquaculture facility may ask for an agency review,
208 as provided by Section 63-46b-12 , of an agency action specified in Subsection (2).
209 (b) The presiding officer, as defined in Section 63-46b-2 , conducting the agency review
210 shall consist of three members as follows:
211 (i) the person representing sport fishermen, appointed under Subsection
212 4-37-503 (4)(a)(i)(C);
213 (ii) one person representing the aquaculture industry, appointed by the governor from
214 names submitted by a nonprofit corporation, as defined in Section 16-6a-102 , that promotes the
215 efficient production, distribution, and marketing of aquaculture products and the welfare of all
216 persons engaged in aquaculture; and
217 (iii) one person, appointed by the governor, who is knowledgeable about aquatic
218 diseases and is employed by an institution of higher education.
219 (c) If the governor rejects all the names submitted under Subsection (3)(b)(ii), the
220 recommending nonprofit corporation shall submit additional names.
221 (d) The final decision of the presiding officer shall be adopted upon approval of at least
222 two of the members.
223 (e) The term and compensation for the member listed in Subsection (3)(b)(i) shall be
224 the same as provided in Section 4-37-503 .
225 (f) The term for the members appointed under Subsections (3)(b)(ii) and (iii) shall be

226 four years.
227 (g) (i) (A) A higher education member who does not receive salary, per diem, or
228 expenses from the entity that the member represents for the member's service may receive per
229 diem and expenses incurred in the performance of the member's official duties at the rates
230 established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
231 (B) A higher education member may decline to receive per diem and expenses for the
232 member's service.
233 (ii) (A) A member who is not a government employee may not receive compensation
234 or benefits for the member's service, but may receive per diem and expenses incurred in
235 performance of the member's official duties at rates established by the Division of Finance
236 under Sections 63A-3-106 and 63A-3-107 .
237 (B) A member may decline to receive per diem and expenses for the member's service.