The amendments proposed will update the referenced sections of Rule Chapter 5L-3, F.A.C., to reflect advances of the aquaculture industry.

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Aquaculture

RULE NOS.:RULE TITLES:

5L-3.004Aquaculture Best Management Practices Manual

5L-3.005Aquaculture Certificate of Registration

5L-3.006Minimal Impact Aquaculture Facilities

5L-3.007Failure to Comply With the Best Management Practices

PURPOSE AND EFFECT: The amendments proposed will update the referenced sections of Rule Chapter 5L-3, F.A.C., to reflect advances of the aquaculture industry.

SUMMARY: The proposed amendments will update and clarify Rule Chapter 5L-3, F.A.C., to reflect advances in the aquaculture industry. The proposed rule was developed to implement industry and staff identified changes needed in the referenced rules. Three workshops were held for interested parties across the state of Florida.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 570.07(23) F.S., 597.004(2) F.S., 791.07 FS.

LAW IMPLEMENTED: 570.971 F.S., 597.002 F.S., 597.003 F.S., 597.004 F.S., 597.0041 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Portia Sapp, Division of Aquaculture, 600 S Calhoun Street, Suite 217, Tallahassee, Florida 32301, Phone: [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5L-3.004 Aquaculture Best Management Practices Manual.

(1) The Aquaculture Best Management Practices manual, FDACS-02034 rev. June 2015 used by the Department under Chapter 5L-3, F.A.C., is hereby adopted and incorporated by reference and is immediately available at http://www.flrules.org/Gateway/reference.asp?No=Ref-05760 or in this section. The manual is listed below by subject title and date. Copies of the manual may be obtained by contacting the Division of Aquaculture, Holland Building, 600 South Calhoun Street, Suite 217 1203 Governor’s Square Boulevard, 5th Floor, Tallahassee, FL 32399 32301, [phone] 488-4033 or from the Division of Aquaculture’s website at www.FloridaAquaculture.com.

(2) Aquaculture Best Management Practices Manual, January, 2007.

(2)(3) The following documents have been adopted by reference into the Aquaculture Best Management Practices Manual, FDACS-02034 rev. June 2015 January 2007 and are hereby also incorporated by reference and available online as indicated into this rule:

(a) USDA NRCS, Ponds-Planning, Design and Construction Agricultural Handbook, Number 590 (November September,1997),http://ftp.wcc.nrcs.usda.gov/downloads/hydrology_hydraulics/misc/ponds.pdf http://www.flrules.org/Gateway/reference.asp?No=Ref-05761

(b) University of Florida IFAS, Stormwater Detention and Discharge from Aquaculture Ponds in Florida, Publication Circular No. BUL334 (January, 2015 February, 1999) http://edis.ifas.ufl.edu http://www.flrules.org/Gateway/reference.asp?No=Ref-05762

(c) USDA NRCS Conservation Practice Standard, Conservation Cover, Code 327, (October, 2011) Code 327,

Conservation Cover (July, 1998) http://efotg.nrcs.usda.gov/references/public/IA/N327_10-2003.pdf.

http://www.flrules.org/Gateway/reference.asp?No=Ref-05763

(d) USDA NRCS, Conservation Practice Standard, Aquaculture Ponds, FOTG Commercial Fishponds Code 397 (June, 2004 March, 2003) http://efotg.nrcs.usda.gov/references/public/AL/tg397.pdf http://www.flrules.org/Gateway/reference.asp?No=Ref-05764

(e) Southern Regional Aquaculture Center, Watershed Fish Production Ponds: Guide to Site Selection and Construction, SRAC Publication No. 102, (September, 2002), http://www.flrules.org/Gateway/reference.asp?No=Ref-05765

(f) Standard Manatee Conditions For In-Water-Work, U.S. Army Corps of Engineers, (2011), http://www.flrules.org/Gateway/reference.asp?No=Ref-05766

Rulemaking Specific Authority 570.07(23), 597.004(2)(b), 791.07 F.S. Law Implemented 570.232 570.0705, 597.003, 597.004 F.S. History-New 10-4-00, Amended 12-29-02, 6-8-04, 11-22-05, 4-9-07,________.

 

5L-3.005 Aquaculture Certificate of Registration.

(1) Any person engaging in aquaculture must be certified by the department. The applicant for a certificate of registration shall submit the following to the department:

(a) through (g) No change.

(h) One Hundred Fifty dollar annual registration fee.

(i) A copy of a current shellfish harvester education training certificate (required for all Aquaculture Certificates of Registration listing clams, mussels, scallops, or oysters as products).

(2) The Department shall issue an aquaculture certificate of registration when an applicant:

(a) No change.

(b) Signs a statement of intent to comply with the Best Management Practices (BMPs) in Rule 5L-3.003, F.A.C.; and

(c) Pays the appropriate fee to the Department; and

(d) Provides a copy of a current shellfish harvester education training certificate (required for all Aquaculture Certificates of Registration listing clams, mussels, scallops, or oysters as products).

Rulemaking Specific Authority 570.07(23), 597.004(2) FS. Law Implemented 597.003(1)(a), 597.004 FS. History New 10-4-00, Amended_______.

 

5L-3.006 Minimal Impact Aquaculture Facilities.

(1) When determined by the Division of Aquaculture's evaluation of facility design and on-site inspections, the following individual production units are deemed to have minimal impacts on water resources and are not required to follow the effluent treatment BMPs in Rule 5L-3.004, F.A.C. All other applicable Rule 5L 3.004, F.A.C., BMPs must be followed.

(a) No change.

(b) Culture of filter feeders A floating native marine bivalve culture system which does not include use feed or fertilizer inputs.

(c) Raceway or down-weller systems for native filter feeders marine bivalves that utilize less than 800 square feet of raceways or down-wellers, and do not add supplemental algae as a food source.

(d) No change.

(e) Individual production units producing less than 10,000 pounds of product per year that minimize the release of sediments off site by using an onsite ditch system with a minimum 100 linear feet of ditch between the production water entry point and the discharge point and one 1 foot of free board at the discharge point control structure.

(f) No change.

(2) No change.

Rulemaking Specific Authority 570.07(23), 597.004(2)(b) FS. Law Implemented 597.002, 597.003(1)(a),(j), 597.004 FS. History New 10-4-00, Amended_______.

 

(Substantial rewording of Rule 5L-3.007 follows. See Florida Administrative Code for present text.)

5L-3.007 Enforcement Actions and Administrative Penalties for Failure to Comply With the Best Management Practices.

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under Section 597.0041, F.S. The purpose of the guidelines is to give notice of the range of penalties which normally will be imposed for a single violation within a twelve (12) month period. The twelve-month period shall be based on the date of the last non-compliance event documented against the violator. These guidelines list aggravating and mitigating factors that, if present, will increase or reduce the penalties to be imposed against the violator by the department. No aggravating factors will be applied to increase a fine imposed for a single violation above the statutory maximum for a Section 570.971, F.S., Class I category of $1,000 for each violation as provided in Chapter 597, F.S. The guidelines in this rule chapter are based upon a single count violation of each provision listed. Multiple counts of the violated provision or a combination of the listed violations will be added together to determine a total penalty and will be grounds for enhancement of penalties.

(2) The department will enforce compliance with Chapter 597, F.S., and this rule chapter by issuing a noncompliance letter or an administrative fine.

(3) Any person failing to meet the BMPs and/or refusing to implement the BMPs must obtain all necessary permits/authorizations required by the Department of Environmental Protection, Water Management District, Florida Fish and Wildlife Conservation Commission and any other appropriate regulatory authority.

(4) Nothing in this chapter shall limit the ability of the department to informally dispose of administrative actions by settlement agreement, consent order, or other lawful means.

(5) Rule Not All-Inclusive. This rule contains illustrative violations. It does not, and is not intended to encompass all possible violations of statutes or department rules that might be committed by any person. The absence of any violation from this rule chapter shall in no way be construed to indicate that the violation does not cause harm to the public or is not subject to a penalty. In any instance where the violation is not listed in this rule chapter, the penalty will be determined by consideration of:

(a) The closest analogous violation, if any, that is listed in this rule; and

(b) The aggravating or mitigating factors listed in this rule.

(6) Aggravating and Mitigating Factors. The department will consider aggravating and mitigating factors in determining penalties for violations of Chapter 597, F.S., and this rule chapter. These factors shall be applied against each single count of the listed violation.

(a) Aggravating Factors:

1. The violation endangered the public safety or welfare.

2. Previous violations within the preceding three (3) years for the same or a similar offense that resulted in imposition of administrative penalties, issuance of a noncompliance letter, or a suspension or revocation of a license.

3. The violator impeded, or otherwise failed to cooperate with, the department’s inspection or investigation.

4. The violation resulted from negligence or an intentional act.

5. The number of other violations proven in the same proceeding.

6. The benefit to the violator.

(b) Mitigating Factors:

1. Any documented efforts by the violator at rehabilitation.

2. Financial hardship.

3. Acts of God or nature that impair the ability of the violator to comply with Chapter 597, F.S., or Rule 5L-3.007, F.A.C.

4. The violator took corrective action within twenty-four (24) hours of receiving written notification of the violation.

5. The disciplinary history of the person committing the violation in the preceding three years.

6. If a repeat violation, whether twelve (12) months has passed since the prior violation.

7. A statement, in writing, provided to the department during an investigation declaring acceptance of responsibility for a violation.

(7) The provisions of this rule chapter shall not be construed so as to prohibit or limit any other civil action or criminal prosecution that may be brought.

(8) Penalties. Any person who violates any provision of Chapter 597, F.S., or Rule Chapter 5L-3 F.A.C., commits a misdemeanor of the first degree, and is subject to a suspension or revocation of his or her certificate of registration.

(a) Notice of Noncompliance. Any departmental inspection which reveals the following will result in the issuance of a noncompliance letter as the department’s first response to the violation.

1. Minor violations of this rule chapter in which the department determines that the violator was unaware of the rule or unclear as to how to comply with the rule.

2. First time violations of Chapter 597, F.S., or Rule Chapter 5L-3, F.A.C., other than Minor or Major violations. The violator will have 60 days within which to correct the deficiencies.

3. Failure to provide division staff access for inspections during department business hours.

(b) Minor violations. Minor violations shall result in imposition of a fine of up to $500. A violation of Chapter 597, F.S., or this rule chapter is a minor violation if it does not result in economic or physical harm to a person or adversely affect the public health, safety, or welfare or create a significant threat of such harm. The following violations shall be considered minor violations:

1. Failure to correct deficiencies within 60 days following a noncompliance letter.

2. First repeat violations of Chapter 597, F.S., or Rule Chapter 5L-3, F.A.C., other than Minor or Major violations, within twelve (12) months.

3. Possession of restricted/conditional species as defined in Rule 68-5.002, F.A.C., without proper authorization.

(c) Major violations. Major violations shall result in imposition of a fine of up to $1,000. Any person who violates any provision of Chapter 597, F.S., or Rule Chapter 5L-3 F.A.C., commits a misdemeanor of the first degree, and is subject to a suspension or revocation of his or her certificate of registration. The following violations shall be considered major violations:

1. First repeat minor violation of Chapter 597, F.S., or Rule Chapter 5L-3, F.A.C., within twelve (12) months.

2. Second repeat of violation of Chapter 597, F.S., or Rule Chapter 5L-3, F.A.C., other than Minor or Major violations, within twelve (12) months.

3. Commingling wild and aquaculture products.

4. Live sale of restricted/conditional species as defined in Rule 68-5.002, F.A.C., without proper authorization and documentation.

5. Possession of prohibited species as defined in Rule 68-5.003, F.A.C., without proper authorization.

6. Construction or excavation in a wetland without proper authorization from the Florida Department of Environmental Protection, Water Management District and/or Army Corps of Engineers.

7. Improper disposal of bags, cover netting, or other materials used in the culture of shellfish on submerged lands when materials are removed during maintenance or harvesting or dislodged during storm events.

8. Direct sale of aquaculture shellfish from the farmer to the retailer or consumer.

9. Failure to properly tag aquacultured shellfish pursuant to Rule Chapter 5L-1, F.A.C.

(9) Additional Costs.

In addition to the penalties established in this rule, the department reserves the right to seek to recover any penalties, attorney’s fees, court costs, service fees, collection costs, damages, and other costs including costs resulting from a payment that is returned for insufficient funds to the department. Additionally, the cost of any enforcement proceeding may be added to any penalty imposed.

(10) Nothing in this rule chapter shall prohibit the department and person charged with a violation from resolving violations prior to administrative hearing, or from entering into settlement pursuant to s. 120.57(4), F.S. The department is authorized to utilize all available remedies to ensure compliance including administrative action, civil actions, and referrals for criminal prosecution.

(11) Failure to Comply.

1. A failure to comply with an agreement to resolve violations or a settlement agreement shall result in the penalties and remedies provided in the agreement as authorized by Chapter 120, F.S., or Chapter 597, F.S.

2. A failure to comply with either a Final Order or Default Final Order shall result in a permit revocation and an administrative fine of up to $1,000 per violation as provided in Section 597.0041, F.S. Additional penalties shall be sought through the enforcement of the order in circuit court.

(12) Failure to Respond. Failure to respond to an administrative complaint shall result in the entry of a Default Final Order against the violator or entity responsible for the violation. The department shall impose the maximum administrative fine amount of $1,000 per violation pursuant to Section 570.971, F.S., for a Default Final Order.

Rulemaking Specific Authority 597.07(23), 597.004(2)(b) FS. Law Implemented 597.004, 597.0041 FS. History New 10-4-00, Amended__________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Kal Knickerbocker

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Adam H. Putnam

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 10, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: March 27, 2015