STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. CHARLES BLANCHARD, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 93-3290RX

   )

   FLORIDA MARINE FISHERIES )

   COMMISSION, )

   )

   Respondent. )

   ) FLORIDA CONSERVATION ASSOCIATION, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 93-5549RP

   )

   FLORIDA MARINE FISHERIES )

   COMMISSION, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER

   
   

   Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 19, 1994, in Tallahassee, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner M. Robert Blanchard, Esquire Blanchard: Levin, Middlebrooks, Mabie, Thomas

   Mayes & Mitchell Post Office Box 12308

   Pensacola, Florida 32581

   
   

   For Petitioner David G. Guest, Esquire Association: Sierra Club Defense Fund

   Post Office Box 1329 Tallahassee, Florida 32302

   
   

   For Respondent: Jonathan A. Glogau, Esquire

   Assistant Attorney General The Capitol, PL-01 Tallahassee, Florida 32399

   STATEMENT OF THE ISSUES

   
   

   The issue presented in DOAH Case No. 93-3290RX is whether Rule 46-3.028, Florida Administrative Code, is an invalid exercise of delegated legislative authority, and the issue presented in DOAH Case No. 93-5549RP is whether the proposed amendment to that Rule is an invalid exercise of delegated legislative authority.

   
   

   PRELIMINARY STATEMENT

   
   

   On June 11, 1993, Petitioner M. Charles Blanchard filed his Petition Seeking Administrative Determination of the Invalidity of a Rule, seeking a determination that Section (3) of Rule 46-3.028, Florida Administrative Code, is invalid. That cause was scheduled for final hearing but continued while Petitioner Blanchard and Respondent attempted to amicably resolve their dispute. Thereafter, Respondent proposed to amend Section (3) of that Rule, and Petitioner Florida Conservation Association filed its Petition for Administrative Determination of Invalidity of Proposed Rule on September 23, 1993. Thereafter, Petitioner Blanchard's challenge to the existing rule and Petitioner Florida Conservation Association's challenge to the proposed rule were consolidated pursuant to the agreement of the parties.

   
   

   Petitioner M. Charles Blanchard testified on his own behalf and presented the testimony of Jerry Sansom and Ronnie Black. Petitioner Florida Conservation Association presented the testimony of Roy Williams and Frank S. Kennedy, Jr.

   Roy Williams also testified on behalf of Respondent Florida Marine Fisheries Commission. Additionally, Joint Exhibit numbered 1, Petitioner Blanchard's Exhibit numbered 1, Respondent's Exhibit numbered 1, and Petitioner Florida Conservation Association's Exhibits numbered 1-6, 8-10, and 12-14 were admitted in evidence.

   
   

   All parties submitted posthearing proposed findings of fact in the form of proposed final orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Final Order.

   
   

   FINDINGS OF FACT

   
   

   1. Menhaden are a species of herring. They are tightly-schooling fish which travel at the water surface. Menhaden are generally harvested as bait or for industrial products.

      
      

   2. Menhaden are planktivorous, or plankton-eating, fish which thrive in highly eutrophic aquatic environments. Portions of the inside waters of Escambia and Santa Rosa Counties become highly eutrophic during the summer months. Each summer menhaden congregate in the highly eutrophic areas of the inside waters of Escambia and Santa Rosa Counties, resulting in overcrowding and consequent suffocation of large numbers of fish.

      
      

   3. These summer fish kill in certain regions of Escambia and Santa Rosa Counties are considered a nuisance and a public health problem. To alleviate the problem, the Department of Environmental Protection has issued Special Activities Licenses to permit purse seining of menhaden in these regions during the summer months.

      
      

   4. Petitioner Blanchard is a commercial fisherman and owner of a fish net business. He has fished in the local waters of Escambia and Santa Rosa Counties for many years.

   5. In 1978, the Legislature enacted Chapter 78-501 and Chapter 78-502, Laws of Florida, which prohibited fishing in the salt-waters of Escambia or Santa Rosa Counties with a net having a mesh of less than 2 5/8 inches stretched. After the effective date of those special laws, Petitioner Blanchard continued his fishing operations by using a purse seine net with a mesh of 2 5/8 inches.

      
      

   6. After the creation of the Marine Fisheries Commission in 1983, the Commission held hearings in various locations in the State of Florida where citizens could come and discuss local laws which they wanted changed or not. Such generic local public hearings were held in Escambia County and in Santa Rosa County in August of 1987 and in November of 1989. No evidence was offered that changes to Chapters 78-501 and 78-502 were discussed at those meetings or that any notice that such changes would be discussed was published.

      
      

   7. During 1991, the Commission engaged in rulemaking to promulgate a statewide rule regulating net sizes and meshes and types of fishing gear.

      
      

   8. During the final public hearing in August of 1992 held in St. Augustine, Florida, the Commission changed its proposed statewide gear rule which had proposed to ban all seine nets, determining instead that it would prohibit purse seining but would allow haul seining and beach seining. The statewide gear rule, which went into effect, prohibited the use of purse seine nets in the waters of Escambia and Santa Rosa Counties. No evidence was offered as to the notices issued or the steps engaged in during that rulemaking process.

      
      

   9. At the time that the Commission passed its statewide gear rule prohibiting the use of purse seine nets in Escambia and Santa Rosa Counties, it was aware that it was repealing Chapters 78-501 and 78-502, Laws of Florida, which had become rules of the Department of Natural Resources pursuant to Chapters 83-134 and 84-121, Laws of Florida. At the time that it adopted the statewide rule, however, the Commission believed that purse seine netting was already banned in the waters of Escambia and Santa Rosa Counties and believed, therefore, that it was making no change to the local fishing regulations in those counties. At the time, the Commission did not know that a small scale menhaden purse seining fishery existed in the waters of Escambia and Santa Rosa Counties. The Commission's reading of the unambiguous language of Chapters 78-

      501 and 78-502 was clearly erroneous. The Commission had not intended to ban an existing menhaden purse seine fishery in those waters.

      
      

   10. Petitioner Blanchard filed a lawsuit in the Circuit Court in Escambia County over the repeal of the allowance of purse seine nets with a minimum mesh of 2 5/8 inches and the ban on purse seine nets in those local waters. That litigation was dismissed due to his failure to exhaust administrative remedies. Petitioner Blanchard then filed the challenge to the existing rule which is the subject of this proceeding.

       
       

   11. In an attempt to resolve the issues raised in Petitioner Blanchard's rule challenge, the Commission proposed to amend Section (3) of Rule 46-3.028, Florida Administrative Code, to correct its unintended ban of an ongoing menhaden purse seine fishery by permitting instead a limited harvest of menhaden using purse seines in the inside waters of Escambia and Santa Rosa Counties.

   12. Under the proposed rule, which is also the subject of this proceeding, menhaden may be harvested in specified areas of the inside waters of Escambia and Santa Rosa Counties landward of the Colregs Demarcation Line with the use of a purse seine net only from a vessel with a documented length of less than 40 feet and with a purse seine net no longer than 400 yards. The proposed rule further provides that no harvesting of menhaden with a purse seine shall occur during any weekend or on any state holiday, limits any incidental bycatch to 2 percent by weight of all fish in possession of the harvester, and requires that any fish for which the Commission has established a bag limit shall be released free, alive, and unharmed.

       
       

   13. The proposed rule also includes a two-stage quota and an established fishing season for the commercial harvest of menhaden in the inside waters of Escambia and Santa Rosa Counties which opens on June 1st of each year and closes on May 31st of the following year unless it is closed earlier in accordance with quota limits. The summer quota allows a commercial harvest of menhaden in those Counties' waters of 1,000,000 pounds during the period from June 1st to October 31st of each year. If that quantity is not netted, the season is closed on November 1st by the Secretary of the Department of Environmental Protection and not reopened until the following June 1st. The winter season offers a quota of an additional 2,000,000 pounds. If the total commercial harvest of menhaden in those counties reaches 3,000,000 pounds (the 1,000,000 pounds during the summer plus the 2,000,000 pounds during the winter) before May 31st, the menhaden season for the inside waters of Escambia and Santa Rosa Counties shall be closed on the date that the harvest is projected to reach that amount and shall not reopen until the following June 1st.

       
       

   14. The Commission began the rulemaking procedures for the proposed amendment to Section (3) of Rule 46-3.028, Florida Administrative Code. Petitioner Florida Conservation Association (hereinafter "FCA") filed its challenge to the proposed rule.

       
       

   15. In the proposed rule, the Commission makes a specific finding that the harvest of menhaden through the use of purse seine nets in the inside waters of Escambia and Santa Rosa Counties during the summer months serves the public purpose of avoiding the nuisance and public health problems associated with the menhaden die-offs. The Commission also specifically finds that harvesting menhaden with purse seines will not adversely affect the long-term abundance of menhaden in the area so long as appropriate restrictions on seasonal and total annual harvest are adopted.

       
       

   16. Menhaden bring a low economic return in the marketplace. During the summer months when demand is low, commercial fishermen are paid approximately

       $.05 per pound for menhaden. The price increases slightly during the winter months when there is a demand for menhaden, for example, in Louisiana where it is used as bait for crawfish traps and crab traps. That demand is primarily served by large commercial operations using large vessels and long nets to harvest menhaden in the Gulf of Mexico, not in the inside waters of Escambia and Santa Rosa Counties. Similarly, the fish reduction industry (the processing of fish such as menhaden to make fish meal and to extract fish oils for industrial purposes) is primarily served by large commercial operations harvesting menhaden in the Gulf of Mexico.

       
       

   17. There is a Marine Fisheries Information System maintained by the Florida Marine Research Institute of the Department of Environmental Protection. Licensed wholesale seafood dealers fill out trip tickets reporting the type of fish, amount of fish caught, and the county where the fish are landed, whenever

       those dealers purchase fish from licensed fishermen. The Department receives approximately 30,000 trip tickets per month from its approximately 700 licensed wholesale seafood dealers in the State of Florida. The data from those trip tickets is entered into a computer, and the resulting statistics are relied upon by the State of Florida and by the federal government to make fishery management decisions. It can take as long as six months for the data to become part of the computer data base and as long as two years for all of the data to be edited and considered to be in final form. Because of that time lag, the Florida Marine Research Institute has implemented procedures for fish which are subject to quotas. For those fish, employees of the Institute do not wait to receive trip tickets from the dealers; rather, they commence telephone contact with the dealers who historically deal in that type of fish, maintaining telephone contact on a daily basis if necessary when it is projected that the harvest quota may be reached.

       
       

   18. Although menhaden are both a bait fish and an industrial fish, they are required to be coded on the trip tickets specifically as menhaden and not under the general category of industrial fish. Reporting on the trip tickets the name of the county where the fish were landed is mandatory although reporting the area fished, i.e., where the fish are actually caught, is optional. Although there is some evidence that menhaden caught in Tampa Bay were sometimes landed there and then transported by truck along the interstate highway system to fish houses and processing plants in Alabama, Louisiana, and Mississippi, there is no evidence that menhaden caught in the inside waters of Escambia and Santa Rosa Counties have been transported by boat and landed outside of those counties. Further, there is no likelihood that such will be done under the limited boat and net size required under the proposed rule. There is no evidence that it is economically feasible for such small boats to travel through Escambia Bay and into the Gulf of Mexico to other counties or states to avoid reporting their menhaden harvest. Although it would be better

       for the Department's trip tickets to report the area where the fish were caught, it is likely that menhaden harvested by boats under 40 feet in the inside waters of Escambia and Santa Rosa Counties will be landed in those counties and, therefore, captured by the Department's information gathering system, as it is currently operated.

       
       

   19. The menhaden team of the National Marine Fisheries Service, in cooperation with the Gulf States Marine Fisheries Commission, has calculated the maximum sustainable yield for Gulf of Mexico menhaden at 1.75 billion pounds. The maximum sustainable yield is the amount of fish that can be harvested annually without depleting the population of that fish. The 1993 menhaden harvest from the entire Gulf of Mexico was 1.19 billion pounds. The National Marine Fisheries Service performs annual stock assessments of Gulf menhaden.

       Its current assessment is that menhaden are not being overfished in the Gulf of Mexico.

       
       

   20. The federal government considers Gulf of Mexico menhaden as a single stock for management purposes. There are no indications that there is a biological problem in the Gulf-wide menhaden fishery. The Gulf stock of menhaden has been increasing in numbers since 1960.

       
       

   21. The proposed rule provides for a managed fishery for menhaden in Escambia and Santa Rosa Counties by allowing a limited harvest. The 1,000,000 pound quota for the summer portion of the fishing season is consistent with the volume of menhaden harvested in the inside waters of those Counties at the behest of those local governments and pursuant to the Department's Special Activities Licenses issued to reduce the fish die-offs in those areas, plus the

       volume of dead menhaden which the local governments haul to the landfill yearly. The overall 3,000,000 pound annual harvest quota was determined by calculating the peak landings for that area which had been approximately 2.1 to 2.2 million pounds yearly, plus the approximate 640,000 pounds of dead menhaden hauled away. Therefore, the summer quota of 1,000,000 pounds, plus the winter quota of 2,000,000 pounds, comprising the annual quota of 3,000,000 pounds, is a reasonable sustainable harvest. The proposed rule will serve a public purpose by helping to alleviate the summer menhaden kills in the upper bayous in Escambia and Santa Rosa Counties and will not adversely affect the menhaden population for the Gulf of Mexico.

       
       

   22. Until 1988, there was an active menhaden fishery in Tampa Bay. Suddenly, there was a dramatic decline or collapse of the Tampa Bay menhaden fishery. There still exists a lively debate on whether the disappearance of menhaden from Tampa Bay was caused by over-fishing and/or the 1988 massive acid spill into the Alafia River by the Gardinier Corporation and/or improved water quality in Tampa Bay and/or whether the disappearance of menhaden in Tampa Bay was caused by a shift in the range of where menhaden are found. There are dissimilarities between Tampa Bay and Escambia Bay. Tampa Bay was on the edge of the range for menhaden, while Escambia Bay is in the middle of the range of the menhaden population. Spotter planes were used in Tampa Bay to locate the schools of menhaden, but spotter planes have not been used to locate menhaden in Escambia Bay. Moreover, there were no regulations in place for the menhaden fishery in Tampa Bay. The proposed rule would limit and control the menhaden harvest in Escambia Bay at a time when the population is plentiful and a decline is not expected. The proposed rule with its two-phase quota has been developed by the Commission in a conscious attempt to avoid what happened in Tampa Bay. The quota prevents the dramatic increase in menhaden harvests which occurred in Tampa Bay and provides that if the summer quota is not met, which would signal a decline in the population, the fishery is automatically closed.

       
       

   23. Although menhaden have been harvested by large "motherships" in the Gulf of Mexico, mothership operations have not been conducted in Escambia Bay or the other waters in Escambia and Santa Rosa Counties. Even with mothership operations, fish are removed from the nets and loaded directly onto the mothership. They are not caught by small boats, loaded onto those small boats, then off loaded from the small boats onto the mothership. Motherships would also be prohibited in those waters since the proposed rule limits the size of vessels to under 40 feet.

       
       

   24. The Commission does not have a mandate to ban commercial fishing in the State of Florida. Rather, its mandate is to allow reasonable means and quantities of harvest, which the proposed rule does but which the total ban under the existing regulation does not. The proposed rule also allows for a reasonable management of resources, while the existing rule does not. The proposed rule is based upon the best information available to the Commission at this time. On the other hand, the ban contained in the existing rule was enacted in the absence of data showing the need for a ban. Prior to passage of the existing ban, no studies were done, no data was gathered, and there was no finding as to any problem with the menhaden fishery in the waters of Escambia and Santa Rosa Counties.

       CONCLUSIONS OF LAW

       
       

   25. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

       
       

   26. In DOAH Case No. 93-3290RX, Petitioner Blanchard has challenged Section (3) of existing Rule 46-3.028, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes, alleging that that section of the rule is an invalid exercise of delegated legislative authority.

       
       

   27. Section 120.52(8), Florida Statutes, provides as follows:

       
       

       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.

             
             

   28. Petitioner Blanchard has met his burden of proving that Section (3) of the existing rule is an invalid exercise of delegated legislative authority in that the Commission materially failed to follow the applicable rulemaking procedures set forth in Section 120.54, Florida Statutes. That statute sets forth a detailed and specific set of requirements for an agency engaging in rulemaking. Those requirements include notice to persons to whom the intended action is directed and advance publication of the intended action. The evidence discloses that the existing rule was formulated in its final form after the close of the public comment portion of the final hearing on the statewide gear rule. Prior to that time, affected persons had no advance notice that the Commission intended to effectuate a ban on purse seine nets in the inside waters of Escambia and Santa Rosa Counties. The "rulemaking package" showing what action was noticed and when was not offered into evidence. Although the Commission argues that it held public hearings in 1987 and in 1989 in Escambia County and Santa Rosa County, no evidence was offered to show the subject of those hearings other than they were some type of generic hearings where people discussed local laws and what they liked or did not like about them. Those hearings conducted years before the August 1992 public hearing on the statewide gear rule are too far removed in time to comply with the intent of providing notice to persons substantially affected.

   29. Furthermore, Section 2(5)(d) of Chapter 83-134, which created the Marine Fisheries Commission, specifically provides that the Commission shall hold a hearing in the affected county prior to the repeal or amendment of certain specified rules, including those which had been found in Chapters 78-501 and 78-502, Laws of Florida. No evidence was offered that such a hearing on the repeal of those chapters was held in Escambia and Santa Rosa Counties; rather, the evidence is uncontroverted that the repeal of those laws was first discussed during a hearing in St. Augustine, Florida.

       
       

   30. Petitioner Blanchard has also met his burden of proving that Section

       (3) of the Rule is arbitrary or capricious. The evidence is uncontroverted that there was no finding made by the Commission that the ban was needed. The evidence is uncontroverted that the Commission did not know that it was establishing a ban on purse seine netting in a fishery where no such ban had existed. The evidence is uncontroverted that the Commission did not intend to eliminate an existing purse seine fishery. Although the Commission argues that its interpretation of the laws it administers is entitled to deference, it cannot seriously be argued that the Commission's interpretation of Chapters 78-

       501 and 78-502, Laws of Florida, is entitled to deference when the Commission itself admits that its interpretation was wrong. Finally, the Commission has admitted in this proceeding that the existing ban does not fulfill the Commission's statutory mandate to allow a reasonable harvest.

       
       

   31. In DOAH Case No. 93-5549RP, Petitioner FCA challenges the proposed amendment to Section (3) of Rule 46-3.028, pursuant to Section 120.54(4), Florida Statutes, alleging that it is an invalid exercise of delegated legislative authority. The FCA specifically alleges that the Rule is arbitrary or capricious and appears to allege that the Rule fails to comply with the provisions of law implemented, thereby violating Section 120.52(8)(c) and (e), Florida Statutes. During the final hearing in this cause, FCA specifically stated that it was not contesting that the notice requirements for a proposed rule had been complied with by the Commission. Petitioner FCA has failed to meet its burden of proving that the proposed rule is an invalid exercise of delegated legislative authority.

       
       

   32. Section 370.025(2), Florida Statutes, sets forth the standards established by the Legislature for all rules adopted by the Marine Fisheries Commission as follows:

       
       

       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.

       
       

   33. The proposed amendment to Section (3) of Rule 46-3.028, Florida Administrative Code, is based upon the best information available to the Commission at this time. Allowing the continued harvesting of menhaden in the inland waters of Escambia and Santa Rosa Counties but restricting the volume of fish, the size of the vessels, and the length of the purse seine nets allowed to be used in harvesting does permit reasonable means and quantities of annual harvest while still providing for the continuing health and abundance of the menhaden population in that area. The Commission, like the National Marine Fisheries Service and the Gulf States Marine Fisheries Commission, has treated the subject menhaden population as a single stock. The Commission has utilized the stock assessment and maximum sustainable yield calculations of those entities. The proposed rule allows the Commission to manage the menhaden fishery in the inside waters of Escambia and Santa Rosa Counties landward of the Colregs Demarcation Line in such a way that the continued health and abundance of that resource is likely, so that the nuisance and public health problems associated with the menhaden die-offs during the summer months will be alleviated, and so that conservation measures will be fair and equitable.

       
       

   34. FCA supports the purse seine net ban found in the existing rule. If the existing ban were not kept in place, FCA still supports a stronger rule than the one proposed, such as one which would include prohibitions against the use of spotter planes or fishing related to mothership operations and which would include a faster monitoring system which also requires reporting the area where the fish are caught. However, the test for the validity of a rule is not whether the rule is the best possible. The proposed rule is a reasoned choice based upon the best available information, and FCA's reliance on Adam Smith Enterprises v. Department of Environmental Regulation, et al., 553 So.2d 1260 (Fla. 1st Dist. 1989), is misplaced.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Section (3) of existing Rule 46-3.028, Florida Administrative

Code, is an invalid exercise of delegated legislative authority. It is further

ORDERED that the proposed amendment to Section (3) of Rule 46-3.028, Florida Administrative Code, is a valid exercise of delegated legislative authority.

DONE and ORDERED this 23rd day of March, 1994, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1994.

APPENDIX TO FINAL ORDER DOAH CASE NOS. 93-3290RX AND 93-5549RP

1. FCA's proposed findings of fact numbered 2-8, 11, 12, 20-22, and 26 are adopted either verbatim or in substance.

2. FCA's proposed findings of fact numbered 1, 9, 10, 13, 25, 27, 28, 31, and 33-35 are rejected as not being supported by the weight of the credible, competent evidence in this cause.

3. FCA's proposed findings of fact numbered 14, 24, 30, and 32 are rejected as being irrelevant.

4. FCA's proposed findings of fact numbered 15-19, 23, and 29 are rejected as being unnecessary.

5. Respondent's proposed findings of fact numbered 1-15, 20, 22-28, 31-33, 35-39, 45-52, 58, and 59 are adopted either verbatim or in substance.

6. Respondent's proposed findings of fact numbered 16-19, 29, 30, 34, and 40-44 are rejected as being subordinate to the issues herein.

7. Respondent's proposed findings of fact numbered 21 and 53-56 are rejected as not being supported by the weight of the credible, competent evidence in this cause.

8. Respondent's proposed finding of fact numbered 57 is rejected as being irrelevant.

COPIES FURNISHED:

M. Robert Blanchard, Esquire Levin, Middlebrooks, Mabie, Thomas

Mayes & Mitchell Post Office Box 12308

Pensacola, Florida 32581

David G. Guest, Esquire Sierra Club Defense Fund Post Office Box 1329 Tallahassee, Florida 32302

Jonathan A. Glogau, Esquire Assistant Attorney General The Capitol, PL-01 Tallahassee, Florida 32399

Russell S. Nelson, Executive Director Marine Fisheries Commission

Suite 106

2540 Executive Ctr. Cir. W. Tallahassee, FL 32301

Charles Shelfer, Esquire General Counsel

Marine Fisheries Commission Suite 106

2540 Executive Ctr. Cir. W. Tallahassee, FL 32301

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Elliott Building Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 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.

Docket for Case No: 93-003290RX

Orders for Case No: 93-003290RX