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.

    1. 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.

    2. 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.

    3. 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.

    1. 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.

    1. 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.

    2. 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.

    3. 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.

    1. "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:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

       2. The agency has exceeded its grant

          of rulemaking authority, citation to which is required by s. 120.54(7);

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

       5. 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:

       1. The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state.

       2. Conservation and management measures shall be based upon the best information available, including biological, sociological, economic, and other information deemed relevant by the commission.

       3. Conservation and management measures shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis.

       4. When possible and practicable, stocks of fish shall be managed as a biological unit.

       5. Conservation and management measures shall assure proper quality control of marine resources that enter commerce.

       6. State marine fishery management plans shall be developed to implement management of important marine fishery resources.

       7. 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.

       8. 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:

       1. Gear specifications;

       2. Prohibited gear;

       3. Bag limits;

       4. Size limits;

       5. Species that may not be sold;

       6. Protected species;

       7. Closed areas, except for public health purposes;

       8. Quality control, except for oysters, clams, mussels, and crabs;

       9. Seasons; and

       10. 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

(904)488-9675

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, ORGANIZED FISHERMEN, ET AL.:

1. Paragraphs 1 through 7, 11-13, 17, 19-25, 38-43, 45-49, 52-53, 55-66,

and 68 are accepted.

2. Except as addressed in the findings of fact, all other proposed findings of fact submitted by these Petitioners are rejected as statement or conclusion of law, argument, comment, irrelevant, recitation of testimony, cumulative, or repetitive.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONERS, FLOWERS AND THORNTON:

1. Paragraphs 1 through 5, 8, 9, 10, 11, 13, and 14 are accepted.

2. Except as addressed in the findings of fact, all other proposed findings of fact are rejected as conclusion of law or not supported by the weight of the evidence.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT AND THE INTERVENORS:

1. Paragraphs 1 through 5 are accepted.

2. Paragraphs 6 through 9 are a restatement of Intervenors' petition. The parties stipulated to the standing of the intervenors, therefore a complete restatement of the petition is unnecessary.

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

Docket for Case No: 91-005408RP

Orders for Case No: 91-005408RP