The proposed rule amendments will reclassify some shellfish harvesting areas to protect the health of shellfish consumers and to provide access to renewable shellfish resources. The proposed rule amendment will also clarify ....

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Aquaculture

RULE NOS.:RULE TITLES:

5L-1.001General Requirements and Intent

5L-1.002Definitions

5L-1.003Shellfish Harvesting Area Standards

5L-1.006Compliance and Penalties

5L-1.007Container Identification; Prohibitions

5L-1.008Shellfish Handling

PURPOSE AND EFFECT: The proposed rule amendments will reclassify some shellfish harvesting areas to protect the health of shellfish consumers and to provide access to renewable shellfish resources. The proposed rule amendment will also clarify requirements related to commercial shellfish activities. The rulemaking updates the National Shellfish Sanitation Program Model ordinance to the 2019 revision, defines the terms “Authorized User” and “Harvest,” adds language to allow offshore aquaculture leases to be classified as approved if a sanitary survey shows no impact to microbiological water quality, clarifies the rules for possession of shellfish in closed areas, revises the penalty structure for willful violations that endanger public health and safety, clarifies tagging requirements, and requires all commercial harvesters and Aquaculture Certificate of Registration holders to have a license available for inspection while conducting commercial shellfish activities.

SUMMARY: The Agency has determined that this rule 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.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on

the economic analysis of adverse impacts and potential regulatory costs of the proposed rule not exceeding any of the criteria established in Section 120.541(2)(a), Florida Statutes. As part of this analysis, the Department reviewed the proposed rule expansion to allow Micropterus salmoides floridanus to be sold as a food fish and found no adverse financial impacts to the industry. The proposed rule changes do not require additional fees. No interested party submitted additional information regarding the economic impact.

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

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: 397.2522, 500.09, 597.020 F.S.

LAW IMPLEMENTED: 397.2522, 500.09, 597.020 F.S.

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: Charlie Culpepper, Division of Aquaculture, 600 S Calhoun Street, Suite 217, Tallahassee, FL, 32301, Phone: [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

5L-1.001 General Requirements and Intent.

(1) through (5) No Change.

(6) Adoption of Federal Regulations and Standards – To the extent not inconsistent with the rules herein, the following are hereby incorporated and adopted. The documents are available online as indicated.

(a) through (b) No change

(c) The Purpose, the Definitions, and Chapters 1 through 13, and 15 through 16 of the “Model Ordinance” of the National Shellfish Sanitation Program (NSSP), Guide for the Control of Molluscan Shellfish, 2019 2017 Revision, herein adopted and  incorporated by reference are available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-14652

http://www.flrules.org/Gateway/reference.asp?No=Ref-10369. Except for:

1. Definition number (16)(d) Reshipper; and,

2. Definition number (101) Reshipper.

Rulemaking Authority 597.020 FS. Law Implemented 597.020 FS. History–New 1-4-87, Amended 8-10-88, 7-9-89, 11-5-92, Formerly 16R-7.001, Amended 7-3-95, 2-6-97, 6-23-99, Formerly 62R-7.001, Amended 8-9-00, 5-29-02, 4-26-10, 3-23-17, 5-7-19,             .

 

5L-1.002 Definitions.

(1) through (4) No change.

(5) Authorized User – an Aquaculture Certificate of Registration holder authorized by an aquaculture leaseholder to operate on the sovereign submerged state land aquaculture leases and listed on a valid Aquaculture Leaseholder and Authorized User Acknowledgment form.

(5) through (27) renumbered to (6) through (28).

(29) Harvest – removal and subsequent possession of shellstock. Temporary possession of shellfish for the purpose of culling shall not constitute harvesting if after culling undersized shellstock are immediately returned to the water in the same shellfish harvesting area.

(28) through (70) renumbered to (30) through (72).

Rulemaking Authority 597.020 FS. Law Implemented 597.020 FS. History–New 1-4-87, Amended 5-21-87, 8-10-88, 7-9-89, 11-5-92, 5-20-93, Formerly 16R-7.003, Amended 7-3-95, 5-8-96, 2-6-97, 6-23-99, Formerly 62R-7.003, Amended 8-9-00, 5-29-02, 3-23-17, 4-2-19,      .

 

5L-1.003 Shellfish Harvesting Area Standards.

(1) The Department shall describe or illustrate harvesting areas and provide harvesting area classifications as approved, conditionally approved, restricted, conditionally restricted, prohibited, or unclassified as defined herein, including criteria for opening and closing shellfish harvesting areas in accordance with Chapters II and IV of the NSSP Model Ordinance. Copies of the Shellfish Harvesting Area Classification Boundaries and Management Plans, (FDACS-P-01593, Revised August 2022February 2020), containing shellfish harvesting area descriptions, references to shellfish harvesting area map numbers, and operating criteria are hereby incorporated by reference, and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-14651 http://www.flrules.org/Gateway/reference.asp?No=Ref-11900, or may be obtained by contacting the Division of Aquaculture, Holland Building, 600 South Calhoun Street, Suite 217, Tallahassee, Florida 32399.

(2) Approved harvest areas – An area shall be classified as approved when a sanitary survey, conducted in accordance with Chapter IV of the NSSP Model Ordinance, indicates that pathogenic microorganisms, radionuclides, and/or harmful industrial wastes do not reach the area in dangerous concentrations and this is verified by laboratory findings whenever the sanitary survey indicates the need. Shellfish may be harvested from such areas for direct marketing. This classification is based on the following criteria:

(a)     through (b) No Change.

(c) Offshore state waters greater than three nautical miles from the shore are classified as approved if a sanitary survey, conducted within twelve years, shows there are no pollution sources that will impact the microbiological water quality.

(3) through (8) No Change.

(9) The possession of shellfish in Closed Areas is prohibited.

(a) This subsection shall not apply to harvesters operating vessels containing shellfish, tagged in accordance with Rule 5L-1.007, F.A.C., only if the vessel is proceeding in a continuous and direct route through a Closed Area to a vessel landing area and Shellfish Processor.

(b) This subsection shall not apply to aquaculture leaseholders or Authorized Users, or employees thereof, operating within the boundaries of an authorized aquaculture lease.

(9) through (10) renumbered to (10) through (11).

AREA NUMBER	HARVEST AREA NAME
0222	Pensacola Bay Conditionally Approved Escambia Bay
0232	Pensacola Bay Conditionally Approved East Bay
0622	Choctawhatchee Bay Conditionally Approved Central Section
0632	Choctawhatchee Bay Conditionally Approved Eastern Section
0822	West Bay Conditionally Approved
1012	North Bay Conditionally Approved Western Section
1022	North Bay Conditionally Approved Eastern Section
1206	East Bay Conditionally Restricted Section
1212	East Bay Conditionally Approved Section 1
1222	East Bay Conditionally Approved Section 2
1401	St. Joseph Bay Approved
1506	Indian Lagoon Conditionally Restricted Winter Nov – Feb
1512	Indian Lagoon Conditionally Approved Spring/Fall Mar – Jun, Oct
1542	Indian Lagoon Conditionally Approved Zone A Winter Nov – Feb
1552	Indian Lagoon Conditionally Approved Zone B Winter Nov – Feb
1601	Apalachicola Bay System Approved Jan – May, Sept – Dec
1611	Apalachicola Bay System Approved Jan – May, Sept – Dec
1605	Apalachicola Bay System Zone A, Zone B, Zone C Jan – May, Sept – Dec
1621	Apalachicola Bay System Approved June – Aug
1631	Apalachicola Bay Approved, Shellfish lease numbers 525, 551, 551B, 580, 582, 609, 672, and 981 Summer June – Aug
1612	Apalachicola Bay System Conditionally Approved Jan – May, Sept – Dec
1622	Apalachicola Bay System Conditionally Approved Jan – May, Sept – Dec
1632	Apalachicola Bay System Conditionally Approved Jan – May, Sept – Dec
1671	Apalachicola Bay System Approved Jun – Aug
1642	Apalachicola Bay System Conditionally Approved Jan – May, Sept – Dec
1652	Apalachicola Bay System Conditionally Approved June – Aug
1662	Apalachicola Bay System Conditionally Approved June – Aug
1801	Alligator Harbor Approved
2002	Ochlockonee Bay Conditionally Approved
2006	Ochlockonee Bay Conditionally Restricted
2206	Wakulla County Conditionally Restricted
2212	Wakulla County Conditionally Approved Zone 1
2222	Wakulla County Conditionally Approved Zone 2
2502	Horseshoe Beach Conditionally Approved Winter Oct – Mar
2802	Suwannee Sound Spring Summer Conditionally Approved Feb – May and Sept
2812	Suwannee Sound Spring Winter Conditionally Approved Oct – Jan
3001	Cedar Key Approved
3012	Cedar Key Conditionally Approved Zone A
3022	Cedar Key Conditionally Approved Zone B
3202	Waccasassa Bay Conditionally Approved
3402	Withlacoochee Bay Conditionally Approved
3701	Citrus County Approved Spring/Fall Mar – June and Oct
3702	Citrus County Conditionally Approved Winter Nov – Feb
4202	Boca Ciega Bay Conditionally Approved
4802	Lower Tampa Bay Conditionally Approved
5402	Sarasota Bay Conditionally Approved
5602	Lemon Bay Conditionally Approved
5802	Gasparilla Sound Conditionally Approved
6002	Myakka River Conditionally Approved
6212	Pine Island Sound Conditionally Approved Section 1
6222	Pine Island Sound Conditionally Approved Section 2
6232	Pine Island Sound Conditionally Approved Section 3
6602	Ten Thousand Islands Conditionally Approved
7001	Indian River/St. Lucie Approved
7006	Indian River/St. Lucie Restricted
7202	North Indian River Conditionally Approved
7412	Body F Conditionally Approved
7506	Body E Conditionally Restricted
7602	Body D Conditionally Approved
7712	Body C Conditionally Approved Zone 1 Spring/Summer/Fall Mar – Nov
7722	Body C Conditionally Approved Zone 2 Spring/Summer/Fall Mar – Nov
7732	Body C Conditionally Approved Winter Dec – Feb
7716	Body C Conditionally Restricted Winter Dec – Feb
7726	Body C Conditionally Restricted Spring/Summer/Fall Mar – Nov
7812	Body B Conditionally Approved
7902	South Banana River Conditionally Approved
7906	South Banana River Conditionally Restricted
8001	Body A Approved
8005	Body A Restricted
8201	South Volusia Approved
8212	South Volusia Conditionally Approved Zone 1
8222	South Volusia Conditionally Approved Zone 2
8206	South Volusia Conditionally Restricted
8802	South St. Johns Conditionally Approved
9202	North St. Johns Conditionally Approved
9602	Duval County Conditionally Approved

Rulemaking Authority 597.020 FS. Law Implemented 597.020 FS. History–New 1-4-87, Amended 8-10-88, 7-9-89, 12-23-91, Formerly 16R-7.004, Amended 7-3-95, 6-18-97, 7-1-97, 7-22-97, 10-12-97, 12-16-97, 12-28-97, 2-12-98, 2-25-98, 7-1-98, 7-20-98, 11-13-98, 12-28-98, 3-18-99, 7-1-99, Formerly 62R-7.004, Amended 6-19-00, 8-9-00, 10-14-01(1), 10-14-01(1), 8-17-04, 9-28-04, 9-5-05, 6-11-06, 3-11-07, 10-2-07, 4-14-08, 7-28-08, 5-5-09, 6-18-09, 12-28-09, 2-9-11, 8-19-12, 3-23-17, 6-28-18, 9-5-19, 5-4-20,      .   

 

5L-1.006 Compliance and Penalties.

(1) The Department shall initiate enforcement action as follows:

(a) through (d) No change.

(e) Willful Violations Not All-Inclusive. This rule contains illustrative violations. It does not, and is not intended to, encompass all possible violations of statute or Department rule by a Shellfish Processor that may adversely affect public health, safety, or welfare or that creates a significant threat of such harm. The absence of any violation from this rule 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 Rule 5L-1, F.A.C., the penalty will be determined by consideration of:

1. The closest analogous violation, if any, that is listed in this rule; and

2. The mitigating or aggravating factors listed in this rule.

(f) Willful violations shall result in the imposition of an administrative fine of $5,000 per violation, the suspension of Shellfish Processor certification, revocation of Shellfish Processor certification, or any combination thereof. The following shall constitute a willful violation by the shellfish processor:

1. The falsification of any records, tags or labels required under this rule or Chapter 5L-3, F.A.C.

2. The sale or distribution, or offering for sale or distribution, of any shellstock under recall order pursuant to Rule 5L-1.004(8), F.A.C.

3. Introducing adulterated or misbranded shellfish products into commerce.

4. The failure to oversee the receiving of shellstock from harvesters.

5. Deterring or preventing an employee of the Department from performing any duties authorized by law.

(e) through (f) renumbered (g) through (h)

(2) through (5) No change.

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

(a) Aggravating Factors:

1. The violation caused, or has the potential to cause, harm to the public and the degree or extent of such harm.

2. The violation endangered the public safety or welfare.

3. Previous violations for the same or a similar offense that resulted in enforcement action, including civil warning letters, notices of noncompliance or administrative complaints or any criminal action taken by law enforement agencies.

4. The Shellfish Processor impeded, or otherwise failed to cooperate with, the Department’s inspection and/or investigation.

5. The number and severity of other violations documented in the same proceeding.

6. The benefit to the Shellfish Processor.

(b) Mitigating Factors:

1. Any documented efforts by the violator at rehabilitation.

2. Whether actions of another party prevented the Shellfish Processor from complying with the applicable laws or rules.

3. Acts of God or nature that impaired the ability of the Shellfish Processor to comply with this rule chapter.

4. The violation has a low risk of, or did not result in, harm to the public health, safety, or welfare.

5. The violation history of the Shellfish Processor.

Rulemaking Authority 500.09, 597.020 FS. Law Implemented 500.09, 597.020 FS. History–New 1-4-87, Amended 8-10-88, 7-9-89, Formerly 16R-7.009, Amended 7-3-95, 2-6-97, Formerly 62R-7.009, Amended 8-9-00, 5-29-02, 3-23-17,      .

 

5L-1.007 Container Identification; Prohibitions.

(1) through (2) No change.

(3) The commercial harvester’s tags shall be white in color except as required in paragraph 5L-1.007(3)(i), F.A.C. Before leaving the specific shellfish harvesting area from which the product was harvested harvest location, commercial harvester’s tags shall be attached and contain legible waterproof indelible information required by paragraphs 5L-1.007(3)(a)-(i), F.A.C., arranged in the specific order as follows:

(a) through (d) No change.

(e) The identification of the harvest area using the four digit area number or name of the harvest area listed in subsection 5L-1.003(11), F.A.C., as well as the most precise identification within that area as practicable. Aquaculture product must also include the aquaculture lease or parcel number;

(f) through (i) No change.

(4) through (11) No change.

Rulemaking Authority 379.2522, 597.020 FS. Law Implemented 379.2522, 597.020 FS. History–New 1-4-87, Amended 5-21-87, 8-10-88, 7-9-89, 8-30-89, 5-6-93, 9-14-93, 8-21-94, Formerly 16R-7.010, Amended 9-1-95, 5-8-96, 2-6-97, 10-12-97, 2-12-98, 2-25-98, 7-1-98, 11-13-98, 12-28-98, 3-18-99, 7-1-99, Formerly 62R-7.010, Amended 6-19-00, 8-9-00, 10-14-01, 5-29-02, 8-17-04, 9-28-04, 7-28-08, 7-29-08, 4-26-10, 8-31-11, 3-23-17, 5-7-19,      .

 

5L-1.008 Shellfish Handling.

(1) through (6) No change.

(7) A Commercial Harvester may not harvest, attempt to harvest, possess in or on Florida Waters or sell a wild shellfish unless they are harvesting pursuant to a valid saltwater products license with a shellfish endorsement, or Apalachicola Bay oyster harvesting license, issued by the Fish and Wildlife Conservation Commission.

(8) An aquaculture leaseholder or Authorized User, or employees thereof, may not operate on an aquaculture lease, or possess or sell aquacultured shellfish unless in possession of a valid Aquaculture Certificate of Registration, or a copy of the certificate.

(7) through (12) renumbered (9) through (14).

Rulemaking Authority 597.020 FS. Law Implemented 597.020 FS. History–New 1-4-87, Amended 5-21-87, 8-10-88, 7-9-89, Formerly 16R-7.011, Amended 7-3-95, 2-6-97, 3-18-99, 6-23-99, Formerly 62R-7.011, Amended 8-9-00, 5-29-02, 7-29-08, 4-26-10, 8-31-11, 5-26-15, 3-23-17, 4-2-19,      .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Portia Sapp, Director of the Division of Aquaculture

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Nicole “Nikki” Fried

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: May 16, 2022

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: 06/15/2022