91-005408RP Buck Flowers And Ray Thornton vs. Marine Fisheries Commission Status: Closed DOAH Final Order on Monday, December 9, 1991.

Summary: Proposed rule invalid as violates statutory standard in 370.025(2). Rule arbitrarily increased closure periods without sufficient data to justify action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BUCK FLOWERS and RAY THOMAS, )

)

Petitioners, )

vs. ) CASE NO. 91- 5408RP

)

STATE OF FLORIDA, MARINE )

FISHERIES COMMISSION, )

)

Respondent, )

and )

)

FLORIDA LEAGUE OF ANGLERS, )

FLORIDA CONSERVATION SOCIETY, )

FLORIDA AUDUBON SOCIETY, and )

FLORIDA WILDLIFE FEDERATION, )

)

Intervenors. )

___________________________________)

ORGANIZED FISHERMEN OF FLORIDA, )

TIM ADAMS, BIRD ISLAND FISHERY, )

KIM GERZ, GOODRICH SEAFOOD, LEE )

COUNTY FISHERMAN'S COOPERATIVE, )

INC., and SIGMA INTERNATIONAL CO., )

)

Petitioners, )

vs. ) CASE NO. 91- 5422RP

)

STATE OF FLORIDA, MARINE )

FISHERIES COMMISSION, )

)

Respondent, )

and )

)

FLORIDA LEAGUE OF ANGLERS, )

FLORIDA CONSERVATION SOCIETY, )

FLORIDA AUDUBON SOCIETY, and )

FLORIDA WILDLIFE FEDERATION, )

)

Intervenors. )

___________________________________)

FINAL ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on

October 7-9, 1991, in Tallahassee, Florida, before Joyous D. Parrish, a

designated Hearing Officer of the Division of Administrative Hearings. The

parties were represented at the hearing as follows:

APPEARANCES

For Petitioners, Donald P. Day

Flowers and Thornton: Law Offices of Jerry Berry, P.A.

2500 Airport Road, Suite 309

Naples, Florida 33962

For Petitioners, Frank J. Santry

Organized Fishermen, Granger, Santry, Mitchell

et al.: and Heath, P.A.

Post Office Box 14129

Tallahassee, Florida 32317

For Respondent, Jonathan A. Glogau

Marine Fisheries Assistant Attorney General

Commission: 111-36 South Magnolia Drive

Tallahassee, Florida 32301

For All Intervenors: David Gluckman

Route 5, Box 3965

Tallahassee, Florida 32311

STATEMENT OF THE ISSUES

The central issue in this case is whether the proposed rules to be

designated Rules 46-39.0035, 46-39.005, 46-39.0055, 46-39.0075 and 46-39.095,

Florida Administrative Code, constitute an invalid exercise of delegated

legislative authority.

PRELIMINARY STATEMENT

This case began on August 9, 1991, when the Marine Fisheries Commission

(Commission) published a notice of rulemaking for proposed rules 46-39.0035, 46-

39.005, 46-39.0055, 46-39.0075 and 46-39.095. The proposed rules were developed

in order to place stringent controls on black mullet fishing in the State of

Florida. The initial version of the proposed rules were drafted, together with

economic and small business impact statements, and were presented for public

comment at meetings conducted on September 5-6, 1991. As a result of the

meetings, changes were made to the proposed rules and the amended proposed rules

were subsequently adopted by the Commission. The Petitioners have timely

challenged the proposed rules and have alleged that the rules are an invalid

exercise of delegated legislative authority which, therefore, should be declared

invalid in these proceedings.

The first case, Case no. 91- 5408RP, was filed with the Division of

Administrative Hearings for formal proceedings on August 28, 1991. The

Petitioners in that case, Buck Flowers and Ray Thornton, challenged the proposed

rules related to commercial harvest, statewide regulations, found in 46-39.0055;

the Southwest Florida commercial harvest restrictions found in 46-39.0075; and

the East Florida commercial harvest restrictions found in 46-39.0075. In

substance, Case no. 91- 5408RP alleged that the Commission did not have the

authority, under Section 370.025, Florida Statutes, to adopt the proposed rules;

had failed to consider relevant statutory criteria; had acted inappropriately to

achieve its stated intention; had acted arbitrarily and capriciously without

relying on the best available information; had proposed the rules without

adequate biological data; had proposed the rules without adequate economic data;

and had materially failed to follow the rulemaking procedures set forth in

Section 120.54, Florida Statutes.

The second case, Case no. 91- 5422RP, filed with the Division of

Administrative Hearings on August 30, 1991, by the Petitioners, Organized

Fishermen of Florida, Inc., Tim Adams, Bird Island Fishery, Kim Gerz, Goodrich

Seafood, Lee County Fisherman's Cooperative, Inc. and Sigma International Co.,

alleged that the proposed rules (46-39.0035, 46-39.005, 46-39.0055, 46-39.0075,

and 46-39.095) were an invalid exercise of delegated legislative authority for

the following reasons: that the proposed rules do not provide for the optimum

sustained benefits and use to all the people of Florida as required by Section

370.025(1), Florida Statutes; that the proposed rules do not effectuate the

Legislature's requirement set forth in Section 370.025(2)(a), Florida Statutes;

that the proposed rules are repugnant to Section 370.025(2)(b), Florida

Statutes; that the proposed rules do not conform to Section 370.025(2)(c),

Florida Statutes; that the proposed rules are not fair and equitable to all the

people of Florida as required by Section 370.025(2)(g), Florida Statutes; that

the proposed rules exceed the statutory authority of the Commission; that the

proposed rules are arbitrary and capricious; that the Commission failed to

provide an adequate statement of economic impact as required by Section 120.52,

Florida Statutes; that the Commission failed to comply with Section

120.54(3)(b), Florida Statutes; and that the proposed rule failed to include an

analysis of the impact on small businesses.

The cases were initially scheduled for final hearing on September 27, 1991,

however, all parties waived the requirements of Section 120.54, Florida

Statutes, and stipulated to the continuance of the hearing to October 7-9, 1991.

Thereafter, the cases were consolidated and the matter rescheduled as stipulated

by the parties.

At the hearing, the following witnesses testified on behalf of the

Petitioners: Jerry Hope Sansom, executive director of the Organized Fishermen of

Florida; Jerald Stephen Ault, marine biologist and statistician; Daniel William

Woodson, marketing manager for Sigma International, a wholesale seafood

import/export company; Behzad Mahmoudi, a research scientist employed by the

Florida Marine Research Institute, Department of Natural Resources; Steven

Michael Atran, fisheries management analyst employed by Marine Fisheries

Commission; Robert Mitchell Palmer, economic analyst employed by the Marine

Fisheries Commission; William Clinton Wood, Sr., commercial fisherman; Mark Alan

Taylor, commercial fisherman; Michael C. Hankinson, vice president of Harper's

Seafood, a wholesale supplier of fresh and frozen seafood; Thomas Joseph Murray,

an economist; and Russell Nelson, executive director of the Marine Fisheries

Commission. The exhibits marked for identification as Organized Fishermen

Exhibits 1 through 6 were admitted into evidence.

The following witnesses were recalled to testify on behalf of the

Respondent: Robert Palmer, Dr. Mahmoudi and Russell Nelson. The Commission's

exhibits marked for identification as Respondent's 1 and 2 (consisting of the

five volume record entitled "Administrative Rulemaking Record") were admitted

into evidence. For clarification, it should be noted that the Commission

submitted its entire record of the rulemaking process regarding these proposed

rules as part of the presentation in these cases. That record, while received

into the record, was not accepted for the truth of the matters asserted in it

except, and to the extent, the factual matters were addressed and corroborated

by the testimony presented. Section 120.58(1)(a), Florida Statutes. The

documents behind the following tabs were, however, admitted: Tab 3, Tab 41, Tab

43, and Tab 16. Tab 28 was not admitted to prove the truth of the facts

asserted in it.

The transcript of the proceedings was filed with the Division of

Administrative Hearings on November 4, 1991. The parties timely filed proposed

orders which have been considered in the preparation of this order. Specific

rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the stipulations entered into the record, the testimony of the

witnesses, and the documentary evidence received at the hearing, the following

findings of fact are made:

The parties:

1. The Petitioners, Buck Flowers and Ray Thornton, are commercial

fishermen doing business within the State of Florida. If enacted, the proposed

rules would substantially affect their business interests.

2. The Petitioner, Organized Fishermen of Florida, Inc., is an association

of commercial fishermen, fish processors, fish dealers, fish brokers, seafood

restaurants, and fish retailers doing business in the State of Florida. If

enacted, the proposed rules would substantially affect its interests and the

interests of its membership.

3. The Petitioner, Tim Adams, is a commercial fisherman doing business in

Florida. If enacted, the proposed rules would substantially affect his

interests.

4. The Petitioner, Bird Island Fishery, is a harvester and wholesaler of

fish within the State of Florida and its interests would be substantially

affected by the enactment of the proposed rules.

5. The Petitioner, Kim Gerz, is a commercial fisherman whose interests

would be substantially affected by the proposed rules.

6. The Petitioner, Goodrich Seafood, is a company that unloads and ships

fresh fish in the State of Florida. Its interests would be substantially

affected by the proposed rules.

7. The Petitioner, Lee County Fisherman's Cooperative, Inc., is a company

that unloads and ships fresh fish. Its interests would be substantially

affected by the proposed rules.

8. The Petitioner, Sigma International Co., is an exporter of mullet roe.

If enacted, the proposed rules would substantially affect its business.

9. The Respondent, Marine Fisheries Commission, is an entity created by

statute to serve within the Department of Natural Resources and empowered with

rulemaking authority as set forth in Section 370.027, Florida Statutes.

10. The Intervenor, Florida League of Anglers, Inc., is a corporation

whose purpose is to protect and enhance Florida's fisheries and their habitats.

11. The Intervenor, Florida Conservation Association, is an affiliate of

the Coastal Conservation Association, whose main interests are to protect and

enhance Florida's fisheries and marine environments for recreational fishing in

Florida.

12. The Intervenor, Florida Audubon Society, is a corporation whose main

purpose is to protect Florida's natural outdoor environment and wildlife.

13. The Intervenor, Florida Wildlife Federation, is a corporation whose

main purpose is to protect Florida's natural outdoor environment and wildlife.

Background of the proposed rules:

14. The Department of Natural Resources began a study of issues related to

the black mullet fishery within this state in 1987. The study was to cover a

five year period beginning in 1987-88. It was anticipated that the study would

serve as the genesis for regulations to be imposed on black mullet fishing

within the State of Florida.

15. In 1989, the Commission adopted rules related to black mullet fishing.

Those rules specified periods during which black mullet could not be fished, set

gear restrictions, closed designated areas to fishing, amended qualifications to

catch commercial quantities of mullet, and set recreational limits. The rules

specified that during 15 weekends of the year, black mullet fishing would be

closed for 30 hour periods. Another restriction, to become effective July 1,

1992, established a minimum net mesh size of three inches.

16. In 1990, the Commission adopted additional rules related to black

mullet fishing: new areas were closed to fishing, minimum net mesh size during

roe season was increased to four inches, commercial fishermen were prohibited

from using spotter aircraft to locate schools, and weekend closures were

extended from 30 to 54 hours with the additional stipulation that the fish had

to be at the dock by closing time. Further, two additional weekends were

closed to fishing.

17. In June, 1991, the Commission met to consider new, more stringent

rules related to the black mullet fishery. As a result of the discussions at

that meeting, proposed new rules and amendments to rules were published in the

Florida Administrative Weekly, Vol. 17, No. 32, August 9, 1991.

The proposed rules:

18. Rule Chapter 46-39, as set forth in the Florida Administrative Weekly,

Vol. 17, No. 32, August 9, 1991, provided, in pertinent part:

MARINE FISHERIES COMMISSION

RULE CHAPTER TITLE: RULE CHAPTER NO.:

Mullet 46-39

RULE TITLES: RULE NOS.:

Recreational Harvest Seasons 46-39.0035

Commercial Harvest, Statewide Regulations 46-39.005

Northwest Florida Commercial Harvest

Restrictions 46-39.0055

Southwest Florida Commercial Harvest

Restrictions 46-39.0075

East Florida Commercial Harvest

estrictions 46-39.0095

PURPOSE AND EFFECT: The purpose of these proposed new rules and rule

amendments is to implement additional, more stringent controls on commercial

mullet harvest to begin rebuilding mullet populations over the long term to

achieve a 35 percent spawning stock biomass ratio ( SSBR) for the species

statewide. The Commission established the SSBR goal after receiving the results

of a five-year study of Florida mullet conducted by the Department of Natural

Resources scientists. The state is divided into three areas (Northwest,

Southwest, and East Florida) and differential rules are imposed in each area,

with the Southwest area being more stringently regulated to coincide with

scientific evidence showing a significantly lower SSBR in the area. Week-long

closures, year-round in the Southwest and during roe season elsewhere, are

considered to be more effective methods to reduce fishing mortality than roe

season weekend closures, which are being eliminated. The closures will also

apply to recreational harvesters, thus eliminating enforcement problems that

occur during periods when recreational mullet harvest is allowed and commercial

fishing is prohibited. Limiting gill and trammel nets to a maximum of 600 yards

will result in a significant reduction in length of nets being fished in some

areas, and may also result in a harvest reduction. Commercial daily vessel

limits of 500 pounds during non-roe season are intended to reduce harvest during

those periods when mullet are least highly valued.

SUMMARY: New Rule 46-39.0035 establishes recreational week-long closures to

coincide with commercial closures in the three areas established by new Rules

46-39.0055,46-39.0075, and 46-39.0095. The week-long closures will be during

roe season in Northwest and East Florida, and year-round in Southwest Florida.

A new paragraph is added to subsection (2) of Rule 46-39.005 to limit gill

and trammel nets used to harvest mullet to 600 yards maximum statewide.

New Rule 46-39.0055 establishes a commercial mullet closure during the 22nd

through the 28th days of the months of September, October, November, and

December in the Panhandle and Wakulla-Hernando Regions of the state. Also in

this area, a commercial daily vessel possession and landing limit for mullet of

500 pounds is imposed during the months of January through August of each year.

New Rule 46-39.0075 establishes a commercial mullet closure during the 22nd

through 28th days of the each month of the year in the Pasco-Lee, Collier-Monroe

Gulf, and Lake Okeechobee Regions of the state. Also in this area, a commercial

daily vessel possession and landing limit for mullet of 500 pounds is imposed

during the months of February through September of each year.

New Rule 46-39.0095 establishes a commercial mullet closure during the 22nd

through the 28th days of the months of October, November, December, and January

in the East Coast and St. Johns Regions of the state. Also in this area, a

commercial daily vessel possession and landing limit for mullet of 500 pounds is

imposed during the months of February through September of each year.

RULEMAKING AUTHORITY: Section 370.027(2), Florida Statutes.

LAW IMPLEMENTED: Sections 370.025, 370.027, Florida Statutes.

SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULES: The proposed

amendments will directly affect those persons who harvest mullet for commerce.

The proposal will indirectly affect wholesale dealers, retail dealers and

consumers. The benefit of the measures is to ensure the sustained yield of the

renewable mullet resource for human consumption and the food web. The cost of

the proposal will be reduced levels of harvest and intermittent supplies of

black mullet. The cost will vary regionally with the greatest reductions in the

southwest Florida area. The proposed amendments will create a competitive

advantage due to the differential regional regulations. The rule will not

affect the open market for employment. The rule will affect small businesses.

The rule will not increase paperwork or reporting requirements. Agency

implementation costs for promulgation, hearings and filing will be approximately

$6,500.00; enforcement costs total $38.00/hr.

THE MARINE FISHERIES COMMISSION WILL CONDUCT A PUBLIC RULEMAKING HEARING ON

THE PROPOSED RULES AT THE TIME, DATE AND PLACE SHOWN BELOW:

TIME AND PLACE: 10:00 a.m. until 5:00 p.m., September 5, 1991; and 9:00

a.m. until 5:00 p.m., September 6, 1991

PLACE: Holiday Inn Tampa International Airport, 4500 West Cypress Street,

Tampa Florida

All written material received by the Commission within 21 days of the date

of publication of this notice shall be made part of the official record.

19. Subsequent to the publication of the notice described above, the

Petitioners timely filed challenges to the proposed rules.

20. Pursuant to the notice described above, the Commission met on

September 5-6, 1991, for the purpose of conducting a public rulemaking hearing

for the proposed new rules and proposed amendments to rules. At the meeting of

September 5, 1991, members of the public were permitted to comment on the

proposed rules and amendments. On September 6, 1991, the Commission allowed its

staff to make a presentation regarding the options available to the Commission

and deliberated the proposals before it.

21. As a result of those deliberations, the Commission made substantial

changes to the proposed rules. At that time the Commission acknowledged the

challenges filed by the Petitioners herein and resolved to submit the changed

proposed rules to the Governor and Cabinet for approval upon the favorable

resolution of the administrative challenges.

22. The substantially changed proposed rules were published in the Florida

Administrative Weekly, Vol. 17, No. 39, September 27, 1991, and provided, in

substance, for the following restrictions:

46-39.0035 Recreational Harvest Seasons--prohibits harvesting during

the period of the first day and continuing through the seventh day of each month

during the months of September through December of each year for the state

waters from the Florida-Alabama border to the Hernando-Pasco County line;

prohibits mullet harvesting during the period of the first day and continuing

through the fourteenth day of each month during the months of January and

September through December of each year for the state waters from the Hernando-

Pasco County line to the Dade-Monroe County line, excluding state waters of the

Atlantic Ocean in Monroe County and including all waters of Lake Okeechobee; and

prohibits harvesting beginning on the first day of the month through the seventh

day of each month during the months of January and October through December of

each year in all state waters from the Florida-Georgia border to the Collier-

Monroe County line, excluding state waters of the Gulf of Mexico in Monroe

County and including all waters of the St. Johns River.

46-39.0055 Northwest Florida Commercial Harvest Restrictions--

prohibits harvesting mullet for commercial purposes in the Panhandle and

Wakulla-Hernando Regions, as those areas are elsewhere defined, during the

period beginning on the first day and continuing through the seventh day of each

month during the months of September through December of each year.

46-39.0075 Southwest Florida Commercial Harvest Restrictions--

prohibits harvesting mullet for commercial purposes in the Pasco-Lee, Collier-

Monroe Gulf, and Lake Okeechobee Regions, as those areas are elsewhere defined,

during the period of the first day and continuing through the fourteenth day of

each month during the months of January and September through December of each

year.

46-39.0095 East Florida Commercial Harvest Restrictions--prohibits

harvesting mullet for commercial purposes in the East Coast and St. Johns

Regions, as those areas are elsewhere defined, beginning on the first day of the

month through the seventh day of each month during the months of January and

October through December of each year.

The Commission abandoned the 500 pound trip limit previously proposed for

each region but retained the limit for gill and trammel nets to 600 yards

maximum, statewide.

23. The Commission asserts that the changes to the proposed rules were

generated by virtue of the written comments, public testimony, and Commission

discussion contained in the record of the public hearing held on September 5-6,

1991.

Scientific data:

24. In determining an appropriate guide for managing the black mullet

fishery, the Commission staff elected to utilize a system based upon a computer

model commonly known as " DSPOPS." The DSPOPS model was designed by Dr. Ault,

working with Dr. Mahmoudi, for use in mullet stock assessment. While Dr. Ault

developed the model with the intention that Dr. Mahmoudi would use it in mullet

stock assessment, Dr. Ault did not prescribe the variables to be inserted into

the model or comment to Dr. Mahmoudi as to the advisability of his choices. In

fact, the reliability of the model is dependent on utilizing reasonable

scientific inputs where variables must be inserted.

25. The spawning stock biomass ratio ( SSBR) measures the total mature

biomass or weight of the fish stock in an exploited fishery in relation to what

it would be if it were unfished. The Commission determined, and the Petitioners

have not challenged, that the desirable SSBR for mullet would be 35 percent.

26. By using data from 1988 and 1989, and inserting variables into the

DSPOPS model the Commission staff attempted to compute the baseline SSBR for

mullet in Florida. The SSBR was calculated by region and was intended to depict

the conditions of the mullet stock by each region.

27. The use of SSBR as a tool to evaluate a fishery and propose management

of it has been accepted in the past by the Commission and other entities charged

with management responsibility.

28. The target of 35 percent SSBR for mullet is a reasonable management

goal.

29. In electing which variable to plug into the DSPOPS model, Commission

staff chose the conservative estimate or value for the parameter to be inserted.

"Conservative" herein is used to mean that choice which would depict the "worst

case scenario" and, would, therefore, in theory, err on the side of the

preservation of the fish. Such selections, as will be addressed below, were not

based upon the best scientific data available and constituted an improper use of

the model.

30. In utilizing the DSPOPS model, reasonable and appropriate scientific

methodology dictate the use of reasonable values for the variables to be

inserted into the model. When values from either extreme of the spectrum are

used, the reliability of the output is diminished. That is, the less the

probability of the occurrence in the real world would be.

31. In this case, the Commission staff found in its initial stock

assessment that the SSBR for mullet in the southwest region was 15.1 and 22.4 in

the northwest region. That assessment required inputs in the DSPOPS model for

the following parameters: recruitment function; natural mortality; fishing

mortality; and sexual maturity.

32. In choosing which input for recruitment function, the Commission staff

used a Getz recruitment function. The recruitment function is intended to show

the relationship among a designation of the fish population and the amount of

new fish born into that population each year. Utilizing the Getz function,

instead of the other available recruitment function options, consistently

produces the lowest estimate of spawning stock biomass. Had the Commission

staff utilized the Beverton and Holt density dependent option, the spawning

stock biomass in the northwest region would have increased by 11.73 and in the

southwest region by 5.29.

33. With regard to the natural mortality parameter, the Commission staff

chose a natural mortality of 0.3. The data available suggests that in Florida

the mullet fishery has a natural mortality rate of 0.5. By using the lower

value, the DSPOPS model calculated the SSBR at an arbitrarily lower level. Had

the Commission staff used 0.43 for the natural mortality input the SSBR would

have increased in the northwest region by 3.07 and by 4.79 in the southwest

region.

34. Similarly, the Commission staff used extreme variables when inputting

the handling mortality. Thus, the computed spawning stock biomass was lower

than a midrange option would have produced.

35. Finally, with regard to sexual maturity, mullet achieve sexual

maturity at age 4. That age is supported by competent scientific data and is

established by the evidence presented in this case. Regardless, Commission

staff used a sexual maturity matrix in the DSPOPS model that assumed some fish

were still sexually immature at 6 and 7 years. If corrected, the SSBR results

would have been increased by 10 percent.

36. By relying on the DSPOPS modeling results for the SSBR assessment, as

computed by the Commission staff, the Commission failed to consider the best

available biological information regarding the mullet stock.

37. When corrected parameters are input into the DSPOPS model, the SSBR

assessment for mullet is dramatically increased. The amount of the increase

depends on which parameter is changed. If midpoint values are selected and all

inputs are changed, the model produces a SSBR for the northwest region of 52.74

and for the southwest region of 36.19.

Economic data:

38. Economic impact and small business impact statements were prepared for

the proposed rules first published in August, 1991. Statements were not

prepared for the amended proposed rules which were approved by the Commission at

the September, 1991, meeting.

39. Mullet have a shelf life of four days if handled properly. The bulk

of the market demand is for fresh mullet with demand for frozen or smoked mullet

being significantly smaller.

40. Closures of longer than four days would require mullet customers to

seek other markets for fresh mullet. Restaurants and other entities seeking a

constant source of fresh mullet would look to other markets such as Louisiana to

fill orders. If lost, such customers are hard to recapture as in the instance

of the spanish mackerel market.

41. It is anticipated that businesses relying on the fresh mullet market

will lay off employees if extended closures go into effect. The economic impact

statement did not estimate the number of people who would be unemployed or

underemployed as a result of the closures.

42. The monetary amounts of the lost market created by the reductions

expected in the harvest of mullet was not included in the economic impact

statement. The short-term and long-term values of lost market could be computed

for those directly and indirectly impacted by the proposed rules.

43. It is expected that the financial losses to commercial fishermen,

fish wholesalers, and distributors will be considerable. Additionally, loss of

mullet roe sales will result in loss of market since no fish stocks are

available to substitute for the mullet roe.

44. Options which would minimize the adverse economic impacts the proposed

rules would cause for small businesses have not been presented or considered by

the Commission.

45. Closures of shorter duration but of more frequency would lessen the

economic damage to small businesses. For example, four day closures would not

result in the interruption of the availability of fresh mullet.

46. As opposed to what is proposed, regulations which would increase the

net mesh size to allow younger fish to remain uncaught would also lessen the

economic damage to small businesses. An increase in the year of first capture

would increase SSBR.

47. As opposed to what is proposed, regulations setting trip limits for

harvesting mullet would lessen the economic damage to small businesses.

48. Setting net restrictions as proposed allows harvesting and lessens the

economic damage to small businesses.

CONCLUSIONS OF LAW

49. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings.

50. Section 120.54, Florida Statutes, provides, in pertinent part:

120.54 Rulemaking; adoption procedures.

(1) Prior to the adoption, amendment, or

repeal of any rule not described in subsection

(9), an agency shall give notice of its

intended action, setting forth a short and

plain explanation of the purpose and effect

of the proposed rule, the specific legal

authority under which its adoption is

authorized, and a summary of the estimate of

the economic impact of the proposed rule on

all persons affected by it.

* * *

(2)(a) Each agency, prior to the adoption,

amendment, or repeal of any rule, shall

consider the impact of such proposed action

on small business as defined in the Florida

Small and Minority Business Assistance Act of

1985 and, whenever possible, shall tier such

rule to reduce disproportionate impacts on

small business and to avoid regulating

businesses which do not contribute

significantly to the problem the rule is

designed to regulate. An agency may define

"small business" to include more than 25

persons if it finds that such a definition is

necessary to adapt any rule to the needs and

problems of small business. The agency shall

consider each of the following methods for

reducing the impact of the proposed rule on

small business:

1. Establishing less stringent

compliance or reporting requirements in the

rule for small business.

2. Establishing less stringent

schedules or deadlines in the rule for

compliance or reporting requirements for small

business.

3. Consolidating or simplifying the

rule's compliance or reporting requirements

for small business.

4. Establishing performance standards

to replace design or operational standards in

the rule for small business.

5. Exempting small business from any

or all requirements of the rule.

(b) Each agency shall provide information

on its proposed action by preparing a detailed

economic impact statement. The economic

impact statement shall include:

1. An estimate of the cost to the

agency of the implementation of the proposed

action, including the estimated amount of

paperwork;

2. An estimate of the cost or the

economic benefit to all persons directly

affected by the proposed action;

3. An estimate of the impact of the

proposed action on competition and the open

market for employment, if applicable;

4. A detailed statement of the data and

method used in making each of the above

estimates; and

5. An analysis of the impact on small

business as defined in the Florida Small and

Minority Business Assistance Act of 1985.

(c) If an economic impact statement is

required before an agency takes action on an

application or petition by any person, the

statement shall be prepared within a

reasonable time after the application is made

or the petition is filed.

(d) The failure to provide an adequate

statement of economic impact is a ground for

holding the rule invalid; however, beginning

October 1, 1978, no rule shall be declared

invalid for want of an adequate statement of

economic impact unless the issue is raised in

an administrative or judicial proceeding

within 1 year of the effective date of the

rule to which the statement applies.

(3)(a) If the intended action concerns any

rule other than one relating exclusively to

organization, procedure, or practice, the

agency shall, on the request of any affected

person received within 21 days after the date

of publication of the notice, give affected

persons an opportunity to present evidence

and argument on all issues under consideration

appropriate to inform it of their contentions.

Prisoners, as defined in s. 944.02(5), may be

limited by the Department of Corrections to

an opportunity to submit written statements

concerning intended action on any department

rule. The agency may schedule a public

hearing on the rule and, if requested by any

affected person, shall schedule a public

hearing on the rule. Any material pertinent

to the issues under consideration submitted

to the agency within 21 days after the date

of publication of the notice or submitted at

a public hearing shall be considered by the

agency and made a part of the record of the

rulemaking proceeding.

(b) If the agency determines that the

proposed action will affect small business as

defined by the agency as provided in paragraph

(2)(a), the agency shall send written notice

of such rule to the Small and Minority

Business Advocate, the Minority Business

Enterprise Assistance Office, and the Division

of Economic Development of the Department of

Commerce not less than 21 days prior to the

intended action.

1. Within the 21-day period after

written notice has been sent and the day on

which the intended action is to take place,

the agency shall give the Small and Minority

Business Advocate, the Minority Business

Enterprise Assistance Office, and the Division

of Economic Development of the Department of

Commerce an opportunity to present evidence

and argument and to offer alternatives

regarding the impact of the rule on small

business.

2. Each agency shall adopt those

alternatives offered pursuant to this

subsection which it finds are feasible and

consistent with the stated objectives of the

proposed rule and which would reduce the

impact on small business.

3. If an agency does not adopt all

alternatives offered pursuant to this

subsection, it shall, prior to rule adoption

or amendment and pursuant to subsection (11),

file a detailed written statement with the

committee explaining the reasons for failure

to adopt such alternatives. Within 3 working

days of the filing of such notice, the agency

shall send a copy of such notice to the Small

and Minority Business Advocate, the Minority

Business Enterprise Assistance Office, and

the Division of Economic Development of the

Department of Commerce.

(4)(a) Any substantially affected person may

seek an administrative determination of the

invalidity of any proposed rule on the ground

that the proposed rule is an invalid exercise

of delegated legislative authority.

(b) The request seeking a determination

under this subsection shall be in writing and

must be filed with the division within 21 days

after the date of publication of the notice.

It must state with particularity the

provisions of the rule or economic impact

statement alleged to be invalid with

sufficient explanation of the facts or grounds

for the alleged invalidity and facts sufficient

to show that the person challenging the

proposed rule would be substantially affected

by it.

(c) Immediately upon receipt of the

petition, the division shall forward copies

of the petition to the agency whose rule is

challenged, the Department of State, and the

committee. Within 10 days after receiving

the petition, the division director, if he

determines that the petition complies with

the above requirements, shall assign a hearing

officer who shall conduct a hearing within 30

days thereafter, unless the petition is

withdrawn. Within 30 days after conclusion

of the hearing, the hearing officer shall

render his decision and state the reasons

therefor in writing. The division shall

forthwith transmit copies of the hearing

officer's decision to the Department of State

and to the committee. The hearing officer

may declare the proposed rule wholly or partly

invalid. The proposed rule or provision of a

proposed rule declared invalid shall be

withdrawn from the committee by the adopting

agency and shall not be adopted. No rule

shall be filed for adoption until 28 days

after the notice required by subsection (1)

or until the hearing officer has rendered his

decision, as the case may be. However, the

agency may proceed with all other steps in

the rulemaking process, including the holding

of a fact-finding hearing pursuant to

subsection (3). In the event part of a

proposed rule is declared invalid, the

adopting agency may, in its sole discretion,

withdraw the proposed rule in its entirety.

The agency whose proposed rule has been

declared invalid in whole or part shall give

notice of the decision in the first available

issue of the Florida Administrative Weekly.

(d) Hearings held under this provision

shall be conducted in the same manner as

provided in s. 120.57 except that the hearing

officer's order shall be final agency action.

The agency proposing the rule and the person

requesting the hearing shall be adversary

parties. Other substantially affected persons

may join the proceeding as parties or

intervenors on appropriate terms which will

not substantially delay the proceedings.

Failure to proceed under this subsection

shall not constitute failure to exhaust

administrative remedies.

* * *

(7) Each rule adopted shall be accompanied by

a reference to the specific rulemaking

authority pursuant to which the rule was

adopted and a reference to the section or

subsection of the Florida Statutes or the Laws

of Florida being implemented, interpreted, or

made specific.

* * *

(11)(a) The adopting agency shall file with

the committee, at least 21 days prior to the

proposed adoption date, a copy of each rule

it proposes to adopt; a detailed written

statement of the facts and circumstances

justifying the proposed rule; a copy of the

estimate of economic impact required by

subsection (2); a statement of the extent to

which the proposed rule establishes standards

more restrictive than federal standards or a

statement that the proposed rule is no more

restrictive than federal standards or that a

federal rule on the same subject does not

exist; and the notice required by subsection

(1). After the final public hearing on the

proposed rule, or after the time for

requesting a hearing has expired, the adopting

agency shall file any changes in the proposed

rule and the reasons therefor with the

committee or advise the committee that there

are no changes. In addition, when any change

is made in a proposed rule, other than a

technical change, the adopting agency shall

provide a detailed statement of such change by

certified mail or actual delivery to any

person who requests it in writing at the

public hearing. The agency shall file the

change with the committee, and provide the

statement of change to persons requesting it,

at least 7 days prior to filing the rule for

adoption. Educational units, other than units

of the State University System and the Florida

School for the Deaf and the Blind, and local

units of government with jurisdiction in only

one county or part thereof shall not be

required to make filings with the committee.

This paragraph does not apply to emergency

rules adopted pursuant to subsection (9).

However, agencies, other than those listed

herein, adopting emergency rules shall file a

copy of each emergency rule with the

committee.

(b) If the adopting agency is required to

publish its rules in the Florida

Administrative Code, it shall file with the

Department of State three certified copies of

the rule it proposes to adopt, a summary of

the rule, a summary of any hearings held on

the rule, and a detailed written statement of

the facts and circumstances justifying the

rule. Agencies not required to publish their

rules in the Florida Administrative Code shall

file one certified copy of the proposed rule,

and the other material required above, in the

office of the agency head; and such rules

shall be open to the public pursuant to s.

120.53(2). Filings shall be made no less than

28 days or more than 90 days after the notice

required by subsection (1). If a public

hearing is held, the 90-day limit is extended

to 21 days after adjournment of the final

hearing on the rule, 21 days after receipt of

all material authorized to be submitted at the

hearing, or 21 days after receipt of the

transcript, if one is made, whichever is

latest. For purposes of this paragraph, the

term "public hearing" includes any public

meeting held by any agency at which the rule

is considered. The filing of a petition for

an administrative determination under the

provisions of subsection (4) will toll the

90-day period during which a rule must be

filed for adoption until the hearing officer

has filed his order with the clerk. At the

time a rule is filed, the agency shall certify

that the time limitations prescribed by this

subsection have been complied with and that

there is no administrative determination

pending on the rule. The department shall

reject any rule not filed within the

prescribed time limits or upon which an

administrative determination is pending. If

a rule has not been adopted within the time

limits imposed by this section, the agency

proposing the rule shall withdraw the rule

and give notice of its action in the same

manner as is prescribed in paragraphs (1)(a)

and (b).

* * *

(13)(a) The proposed rule shall be adopted on

being filed with the Department of State and

become effective 20 days after being filed,

on a later date specified in the rule, or on

a date required by statute. Rules not

required to be filed with the Department of

State shall become effective when adopted by

the agency head or on a later date specified

by rule or statute.

(b) After the notice required in

subsection (1) and prior to adoption, the

agency may withdraw the rule in whole or in

part or may make such changes in the rule as

are supported by the record of public hearings

held on the rule, technical changes which do

not affect the substance of the rule, changes

in response to written material relating to

the rule received by the agency within 21 days

after the notice and made a part of the record

of the proceeding, or changes in response to

a proposed objection by the committee. After

adoption and before the effective date, a rule

may be modified or withdrawn only in response

to an objection by the committee or may be

modified to extend the effective date by not

more than 60 days when the committee has

notified the agency that an objection to the

rule is being considered. The agency shall

give notice of its decision to withdraw or

modify a rule in the first available issue of

the publication in which the original notice

of rulemaking was published and shall notify

the Department of State if the rule is

required to be filed with the Department of

State. After a rule has become effective, it

may be repealed or amended only through

regular rulemaking procedures.

* * *

(15) No agency has inherent rulemaking

authority; nor has any agency authority to

establish penalties for violation of a rule

unless the Legislature, when establishing a

penalty, specifically provides that the

penalty applies to rules. However, an agency

may adopt rules necessary to the proper

implementation of a statute prior to the

effective date of the statute, but the rules

may not be enforced until the statute upon

which they are based is effective.

51. Section 120.52, Florida Statutes, provides, in part:

120.52 Definitions.

(8) "Invalid exercise of delegated legislative

authority" means action which goes beyond the

powers, functions, and duties delegated by

the Legislature. A proposed or existing rule

is an invalid exercise of delegated

legislative authority if any one or more of

the following apply:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

set forth in s. 120.54;

(b) The agency has exceeded its grant

of rulemaking authority, citation to which is

required by s. 120.54(7);

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54(7);

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency; or

(e) The rule is arbitrary or capricious.

52. Section 370.025, Florida Statutes, provides:

370.025 Marine fisheries; policy and

standards.

(1) The Legislature hereby declares the policy

of the state to be management and preservation

of its renewable marine fishery resources,

based upon the best available information,

emphasizing protection and enhancement of the

marine and estuarine environment in such a

manner as to provide for optimum sustained

benefits and use to all the people of this

state for present and future generations.

(2) All rules relating to saltwater fisheries

adopted by the department pursuant to this

chapter or adopted by the Marine Fisheries

Commission and approved by the Governor and

Cabinet as head of the department shall be

consistent with the following standards:

(a) The paramount concern of conservation

and management measures shall be the

continuing health and abundance of the marine

fisheries resources of this state.

(b) Conservation and management measures

shall be based upon the best information

available, including biological, sociological,

economic, and other information deemed

relevant by the commission.

(c) Conservation and management measures

shall permit reasonable means and quantities

of annual harvest, consistent with maximum

practicable sustainable stock abundance on a

continuing basis.

(d) When possible and practicable, stocks

of fish shall be managed as a biological unit.

(e) Conservation and management measures

shall assure proper quality control of marine

resources that enter commerce.

(f) State marine fishery management plans

shall be developed to implement management of

important marine fishery resources.

(g) Conservation and management decisions

shall be fair and equitable to all the people

of this state and carried out in such a manner

that no individual, corporation, or entity

acquires an excessive share of such privileges.

(h) Federal fishery management plans and

fishery management plans of other states or

interstate commissions should be considered

when developing state marine fishery

management plans. Inconsistencies should be

avoided unless it is determined that it is in

the best interest of the fisheries or

residents of this state to be inconsistent.

53. Section 370.027, Florida Statutes, provides:

370.027 Rulemaking authority with respect to

marine life.

(1) Pursuant to the policy and standards in

s. 370.025, the Marine Fisheries Commission is

delegated full rulemaking authority over

marine life, with the exception of endangered

species, subject to final approval by the

Governor and Cabinet sitting as the head of

the Department of Natural Resources, in the

areas of concern herein specified. The

commission is instructed to make

recommendations annually to the Governor and

Cabinet regarding the marine fisheries

research priorities and funding of the

department. All administrative and

enforcement responsibilities which are

unaffected by the specific provisions of this

act continue to be the responsibility of the

department. The authority to regulate fishing

gear in residential, man-made saltwater canals

is specifically not delegated to the

commission and is retained by the Legislature.

(2) Exclusive rulemaking authority in the

following areas relating to marine life, with

the exception of endangered species, is vested

in the commission; any conflicting authority

of any division or bureau of the department

or any other agency of state government is

withdrawn as of the effective date of the

rule proposed by the commission and approved

by the Governor and Cabinet, and the

inconsistent rule, or the inconsistent part

thereof, is superseded to the extent of the

inconsistency:

(a) Gear specifications;

(b) Prohibited gear;

(c) Bag limits;

(d) Size limits;

(e) Species that may not be sold;

(f) Protected species;

(g) Closed areas, except for public health

purposes;

(h) Quality control, except for oysters,

clams, mussels, and crabs;

( i) Seasons; and

(j) Special considerations relating to

eggbearing females.

(3)(a) The commission, pursuant to this act,

shall adopt rules pursuant to chapter 120.

When rules are ready for final adoption, the

proposed rules shall be submitted to the

executive director of the department for

submission on the regular agenda of the

department for final action by the Governor

and Cabinet as head of the department. In

considering a proposed rule recommended by

the commission, the Governor and Cabinet may

only approve or disapprove the proposed rule.

If the rule is disapproved, it shall be

withdrawn. The commission shall file a rule

for adoption with the Department of State only

after the rule is approved by the Governor and

Cabinet. The department staff has no

authority to change any proposed rule or

recommendation submitted by the commission.

(b) The executive director of the

department shall appoint a management-level

staff member to coordinate with the director

of the commission the submission by the

commission of proposed rules for final

approval by the Governor and Cabinet.

54. To demonstrate that it is substantially affected by a proposed rule, a

party must establish that, as a consequence of the proposed rule, it will suffer

injury in fact, and that the injury is one that is subject to protection in the

proceeding by virtue of a rule, statute or constitutional provision. Florida

Medical Association, Inc. v. Department of Professional Regulation, 426 So.2d

1112 (Fla. 1st DCA 1983). The injury must not be speculative or nonspecific.

The Petitioners have demonstrated that they meet that requisite and therefore

have standing to raise these challenges.

55. To demonstrate that a proposed rule is an invalid exercise of

delegated legislative authority, the burden is upon those who attack the

proposed rule to show that:

. . . the agency, if it adopts the rule,

would exceed its authority; that the

requirements of the rule are not appropriate

to the ends specified in the legislative act;

that the requirements contained in the rule

are not reasonably related to the purpose of

the enabling legislation or that the proposed

rule or the requirements thereof are arbitrary

or capricious.

Agrico Chemical Co. v. State, Department of Environmental Regulation, 365

So.2d 760, 763 (Fla. 1st DCA 1979).

56. The Agrico court defined "arbitrary" and "capricious," supra at 763,

as:

A capricious action is one which is taken

without thought or reason or irrationally.

An arbitrary decision is one not supported by

facts or logic, or despotic.

57. In this case, the Petitioners have established that the proposed rules

are an invalid exercise of delegated legislative authority. First, the proposed

rules violate the standard addressed in Section 370.025(2), Florida Statutes, as

the Commission failed to utilize the best information available related to the

biological and economic criteria. Consequently, the Commission failed to abide

by the statutory mandate and exceeded its grant of rulemaking authority.

58. Secondly, the Commission arbitrarily increased the proposed closure

periods without scientific data to support the increases or by relying on flawed

data generated by the DSPOPS model. By utilizing conservative parameters at

every option, the DSPOPS model results were rendered unrealistic and unreliable

in a statistical basis.

59. Finally, the Commission's economic impact statement failed to address

quantifiable long-term and short-term impacts on small businesses. Given the

magnitude of the adverse impacts reasonably expected to result from extended

closures, such economic impacts must be addressed in the rulemaking process.

CONCLUSION

Based on the foregoing, it is

ORDERED that the proposed rules 46-39.0055, 46-39.0075, 46-39.0095 are

invalid. As to the proposed rule 46-39.005(2)(b), such rule is found valid.

DONE and ENTERED this 9th day of December, 1991, in Tallahassee, Leon

County, Florida.

___________________________________

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of December, 1991.

APPENDIX TO FINAL ORDER

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONERS,

3. Paragraphs 10-11 are accepted.

4. It is accepted that the Commission's position is as alleged in

paragraph 12; the accuracy of the information received and considered by the

Commission is at issue.

5. Paragraphs 13 through 20 are accepted.

6. To the contrary of the inference of paragraph 21, the Commission relied

on the model and were instructed on the "hard work" performed by staff to

support the conclusion, albeit defective, reached by the model.

7. Paragraphs 22 through 24 are accepted.

8. Paragraph 25 is rejected as irrelevant.

9. Paragraphs 26 and 27 are accepted. NOTE: the use of the model is well

supported by the evidence in this case. The choice of the parameters inserted

into the model by Commission staff rendered the model results less than

reliable.

10. Paragraph 28 is rejected as irrelevant or argumentative. The

inference that Dr. Ault's employment by the Petitioners coincided with a change

in position regarding the parameters is not supported by the weight of the

credible evidence. Dr. Ault's testimony has been deemed credible and has been

afforded considerable weight regarding how the model should be utilized.

11. Paragraph 29 is accepted.

12. Paragraph 30 is rejected as unclear.

13. Paragraph 31 is accepted.

14. Except as addressed in the findings of fact, paragraphs 32 through 41

are rejected as argument, irrelevant, or not supported by the weight of credible

evidence.

15. Paragraph 42 is accepted.

16. Paragraph 43 is rejected as hearsay.

17. Paragraph 44 is accepted.

18. Paragraphs 45 through 50 are rejected as contrary to the weight of the

evidence.

19. Paragraphs 51-52 are accepted.

20. Paragraphs 53 through 61 are rejected as contrary to the weight of the

evidence, argument or irrelevant.

21. To the extent that the EIS has the statements addressed (not that it

is accurate), paragraphs 62 through 68 are accepted.

22. Paragraphs 69-70 are accepted.

23. Paragraph 71 is rejected as contrary to the weight of the credible

evidence.

24. Paragraph 72 is accepted.

25. Paragraph 73 is rejected as contrary to the weight of the credible

evidence.

26. Paragraph 74 is accepted.

COPIES FURNISHED:

Donald P. Day

Law Offices of Jerry Berry P.A.

2500 Airport Rd., Ste. 309

Naples, FL 33962

Frank J. Santry

Granger, Santry, Mitchell

and Heath, P.A.

P.O. Box 14129

Tallahassee, FL 32317

Jonathan A. Glogau

Assistant Attorney General

111-36 S. Magnolia Drive

Tallahassee, FL 32301

David Gluckman

Route 5, Box 3965

Tallahassee, FL 32311

Russell S. Nelson, Executive Director

Marine Fisheries Commission

2540 Executive Ctr. Cir. W., Ste. 106

Tallahassee, FL 32301

Charles Shelfer, General Counsel

Marine Fisheries Commission

2540 Executive Ctr. Cir. W.

Tallahassee, FL 32301

Liz Cloud, Chief

Bureau of Administrative Code

The Capitol, Room 1802

Tallahassee, FL 32399-0250

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, FL 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL

REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE

GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING

FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR

WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY

RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

ORDER TO BE REVIEWED.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

FLORIDA MARINE FISHERIES NOT FINAL UNTIL TIME EXPIRES TO

COMMISSION, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED.

Appellant/Cross- Appellee,

CASE NO. 91-4056

and DOAH CASE NOS. 91- 5408RP,

91- 5422RP

FLORIDA CONSERVATION

ASSOCIATION, FLORIDA LEAGUE

OF ANGLERS, FLORIDA AUDUBON

SOCIETY, and FLORIDA WILDLIFE

FEDERATION

vs.

ORGANIZED FISHERMEN OF

FLORIDA, et al.,

Appellees/Cross-Appellants.

________________________________/

Opinion filed December 15, 1992.

An Appeal and Cross-Appeal of an Order of the Department of Administrative

Hearings.

Robert A. Butterworth, Attorney General; Jonathan A. Glogau, Assistant Attorney

General, Tallahassee for Appellant/Cross- Appellee.

Kenneth B. Wright and David Guest, Tallahassee, for Intervenors/Cross- Appellees.

Frank J. Santry, of Granger, Santry, Mitchell & Heath, P.A., Tallahassee, for

Appellees/Cross-Appellants.

PER CURIAM.

This is an appeal and cross-appeal from a final order of the hearing

officer in rulemaking proceedings held pursuant to section 120.54, Florida

Statutes (1991). The order constitutes "final agency action" under section

120.54(4)(d). We hold that the findings of fact are supported by competent

substantial evidence, and that the conclusions of law, stating that the Florida

Marine Fisheries Commission's proposed Rules 46-39.0055, 46-39.0075, and 46-

39.0095, Florida Administrative Code, are arbitrary and capricious, and

therefore invalid, are correct. See section 120.52(8); Adam Smith Enterprises,

Inc. v. State Dep't of Environmental Regulation, 553 So.2d 1260 (Fla. 1st DCA

1989); Agrico Chemical Co. v. State Dep't of Environmental Regulation, 365 So.2d

759 (1st DCA 1978), cert. den., 376 So.2d 74 (Fla. 1979). Accordingly, we

affirm that portion of the final order invalidating those proposed rules. With

regard to Appellees' cross-appeal of the portion of the order finding proposed

Rule 46-39.005(2)(b), Florida Administrative Code, valid, we hold that the

record does not support the finding of validity, and we reverse that portion of

the final order because the hearing officer relied on the same flawed data upon

which the determination of invalidity was based. See section 120.68(10).

AFFIRMED in part and REVERSED in part.

BOOTH, SHIVERS, and WEBSTER, JJ., CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

To the Honorable Joyous D. Parrish, Hearing Officer

WHEREAS, in that certain cause filed in this Court styled: Division of

Administrative Hearings

BUCK FLOWERS and RAY THOMAS

vs.

STATE OF FLORIDA, MARINE FISHERIES COMMISSION

and

FLORIDA LEAGUE OF ANGLERS,

FLORIDA CONSERVATION SOCIETY,

FLORIDA AUDUBON SOCIETY, and

FLORIDA WILDLIFE FEDERATION,

ORGANIZED FISHERMEN OF FLORIDA, Case No. 91-4056

TIM ADAMS, BIRD ISLAND FISHERY,

KIM GERZ, GOODRICH SEAFOOD, LEE

COUNTY FISHERMEN'S COOPERATIVE, Your Case Nos. 91- 5408RP,

INC., and SIGMA INTERNATIONAL CO. 91- 5422RP

vs.

STATE OF FLORIDA, MARINE FISHERIES COMMISSION

and

FLORIDA LEAGUE OF ANGLERS, et al.

The attached opinion was rendered on December 15, 1992.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said

opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable James E. Joanos

Chief Judge of the District Court of Appeal of Florida, First District and

the Seal of said court at Tallahassee, the Capitol, on this 15th day of January,

1993.

___________________________________________

Clerk, District Court of Appeal of Florida,

First District