STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORGANIZED FISHERMEN OF FLORIDA, ) INC., SOUTHEASTERN FISHERIES ) ASSOCIATION, INC., SEAFOOD ) CONSUMERS AND PRODUCERS ) ASSOCIATION, INC., GLEN BLACK, ) RONALD E. BLACK, HENRY CRANE, ) DEWEY DESTIN, CECIL LANE, )

DENISE LEEK, GERALD PACK, ) HAROLD RAFFIELD, RICHARD VAN ) MUNSTER, D. W. WILSON, TIM ) ADAMS, JOHNNIE CLOPTON, )

GEOFFREY COX, MIKE DAVIS, ) RONNIE DAY, TIM DIXON, BOB ) GILL, TIM GERZ, TIM GOODRICH ) and MARK TAYLOR, )

)

Petitioners, )

)

vs. ) CASE NO. 95-0269RP

) MARINE FISHERIES COMMISSION, )

)

Respondent, )

and )

) FLORIDA LEAGUE OF ANGLERS, ) INC. and FLORIDA WILDLIFE )

FEDERATION, INC., )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings, by its assigned Hearing Officer, Donald R. Alexander, on March 7, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioners: Frank J. Santry, III, Esquire

Sharon A. Dimuro, Esquire Post Office Box 14129

Tallahassee, Florida 32317-4129

For Respondent: Jonathan A. Glogau, Esquire

Department of Legal Affairs The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Intervenors: David Gluckman, Esquire

Route 5, Box 3965

Tallahassee, Florida 32311-8803 STATEMENT OF THE ISSUE

The issue is whether proposed rules 46-3.002, 46-3.008, 46-3.025, 46-3.027,

46-3.028, 46-3.029, 46-3.031, 46-3.032, 46-3.034, 46-3.035, 46-3.037, 46-3.038,

46-4.001, 46-4.002, 46-4.0025, 46-4.004, 46-4.005, 46-4.006, 46-4.007, 46-4.008,

46-4.0081, 46-4.0085, 46-4.013, 46-4.014, 46-4.015, 46-4.016, 46-4.017, 46-

23.001, 46-23.002, 46-23.003, 46-23.004, 46-24.007, 46-36.002, 46-37.002, 46-

37.006, 46-39.002, 46-39.0035, 46-39.005, 46-39.006, 46-39.007, 46-39.008, 46-

39.009, 46-39.010, 46-39.011, 46-39.012, 46-42.007, and 46-43.005, Florida

Administrative Code, are an invalid exercise of delegated legislative authority as alleged by petitioners.

PRELIMINARY STATEMENT

This case began on January 20, 1995, when petitioners, Organized Fishermen of Florida, Inc., Southeastern Fisheries Association, Inc., Seafood Consumers and Producers Association, Inc., Glen Black, Ronald E. Black, Henry Crane, Dewey Destin, Cecil Lane, Denise Leek, Gerald Pack, Harold Raffield, Richard Van Munster, D. W. Wilson, Tim Adams, Johnnie Clopton, Geoffery Cox, Mike Davis, Ronnie Day, Tim Dixon, Bob Gill, Tim Gerz, Tim Goodrich, and Mark Taylor, filed a petition challenging the validity of forty-seven rules proposed for adoption by respondent, Marine Fisheries Commission. As grounds, petitioners generally alleged that all rules constitute an invalid exercise of delegated legislative authority because the agency failed to follow applicable rulemaking procedures in proposing the rules for adoption, the agency exceeded its rulemaking authority, the rules conflict with the law implemented, and the rules are arbitrary and capricious. In addition, petitioners alleged that twelve rules are invalid because the agency failed to follow other applicable rulemaking procedures. After being reviewed for legal sufficiency, the petition was assigned to the undersigned Hearing Officer on January 26, 1995.

By notice of hearing dated February 2, 1995, the final hearing was scheduled on February 22 and 23, 1995, in Tallahassee, Florida. Because the agency published a notice of change to the rules, petitioners' motion for continuance was granted, and the matter was rescheduled to March 7, 1995, at the same location. At the same time, petitioners were authorized to file an amended petition to contest any alleged infirmities in the newly revised rules. An amended petition was filed on February 28, 1995, alleging essentially the same grounds as were previously raised.

At final hearing, petitioners offered petitioners' exhibits 1-9. All exhibits were received in evidence. Exhibits 6-9 are all or portions of the depositions of Dr. Russell S. Nelson, Jorge Laguna, Robert Palmer, and Mickey Watson. Respondent presented the testimony of Dr. Russell S. Nelson, its executive director, who was accepted as an expert in fisheries biology and management. Also, it offered respondent's exhibits 1-4. All exhibits were received in evidence. Intervenors adopted the evidence presented by respondent.

The transcript of hearing was filed on March 22, 1995. Proposed findings of fact and conclusions of law were filed by the parties on April 6, 1995. A ruling on each proposed finding has been made in the Appendix attached to this Final Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. This case involves a challenge by petitioners, Organized Fishermen of Florida, Inc., Southeastern Fisheries Association, Inc., Seafood Consumers and Producers Association, Inc., Glen Black, Ronald E. Black, Henry Crane, Dewey Destin, Cecil Lane, Denise Leek, Gerald Pack, Harold Raffield, Richard Van Munster, D. W. Wilson, Tim Adams, Johnnie Clopton, Geoffery Cox, Mike Davis, Ronnie Day, Tim Dixon, Bob Gill, Tim Gerz, Tim Goodrich, and Mark Taylor (petitioners), to the validity of certain changes to forty-seven rules proposed by respondent, Marine Fisheries Commission (MFC or agency). According to paragraphs 5 through 27 of their amended petition, which are not contested, petitioners are incorporated associations of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, as well as individual commercial fishermen, fish and bait dealers, owners of seafood unloading facilities, processors, packers and producers, all of whom are substantially affected by the proposed rules. As such, they have standing to bring this action.

      
      

   2. The changes being proposed by the MFC affect various rules in Chapters 46-3, 46-4, 46-23, 46-24, 46-36, 46-37, 46-39, 46-42 and 46-43, Florida Administrative Code. The rule changes were proposed as a result of the adoption by the electorate on November 8, 1994, of Article X, Section 16 to the State Constitution. That section generally (a) prohibits the use of gill or entangling nets to take marine animals, and (b) places limitations on other nets in nearshore and inshore Florida waters. The amendment becomes effective July 1, 1995.

      
      

   3. On December 30, 1994, the agency published notice in the Florida Administrative Weekly (FAW) of its intent to adopt new rules, amend certain rules, and repeal all or portions of other existing rules. Claiming that these changes were invalid on a variety of statutory grounds, petitioners filed a petition to invalidate proposed rules on January 20, 1995.

      
      

   4. On March 3, 1995, a notice of changes to proposed rules was published in the FAW advising that, "based on written comment and public testimony" given at public hearings, further changes, albeit minor, were being made to rules 46- 3.008, 46-3.029, 46-4-001, 46-4.002, 46-4.004, 46-4.005, 46-23.003, 46-36.002, 46-37.002, 46-37.006, 46-39.002, 46-42.007, and 46-43.005. By virtue of these changes, petitioners were authorized to file an amended petition which contains essentially the same contentions as were previously pled. They include allegations that the rules are an invalid exercise of delegated legislative authority because (a) the MFC failed to materially follow the applicable rulemaking procedures in Section 120.54(2)(b), Florida Statutes, by failing to provide them a copy of the Economic Impact Statement (EIS) on each of the rules at least 14 days prior to the public hearing, (b) the MFC failed to materially follow the procedures in Rule 46-1.004(4), Florida Administrative Code, by not allowing public testimony at the final rule adoption hearing, (c) the proposed rules have no foundation in statutory law but rather are derived from the Florida Constitution and thus exceed the MFC's delegated legislative authority,

      (d) the proposed rules are arbitrary and capricious because they are based on law enforcement considerations and lack scientific certainty, (e) the rules conflict with the law implemented, and (f) as to twelve of the rules, the MFC

      failed to materially follow an applicable rulemaking procedure in Rule 46- 1.004(5), Florida Administrative Code, which requires that, before amending or repealing any rule derived from local laws, a public hearing be held in each affected county. In conjunction with their claims that the rules exceed the agency's rulemaking authority or are arbitrary and capricious because of law enforcement considerations, petitioners have rarely cited the specific language in the rules that they wish to be invalidated. Rather, they suggest that the entire rule is invalid. Therefore, the undersigned has been forced to undertake the tedious and difficult task of attempting to identify the allegedly offensive language in each of the challenged rules. Where the offending language cannot be readily identified, or speculation is required to identify that language, the contention has been rejected.

      
      

2. The Rules and Their Genesis

   
   

   1. As noted above, on November 8, 1994, the electorate adopted Article X, Section 16 of the Florida Constitution. The new section, which is entitled "Limiting Marine Net Fishing," has a stated purpose of "enact(ing) limitations on marine net fishing in Florida waters to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing, and waste."

      More specifically, subsection (b) of section 16 provides as follows:

      
      

      (b) For the purpose of catching or taking any saltwater finfish, shellfish, or other marine animals in Florida Waters:

      1. No gill nets or other entangling nets shall be used in any Florida waters; and

      2. In addition to the prohibition set forth in 1., no other type of net containing more than 500 square feet of mesh area shall be used in nearshore and inshore Florida waters. Additionally, no more than two such nets, which shall not be connected, shall be used from any vessel, and no person not on a vessel shall use more than one such net in nearshore and inshore Florida waters.

      
      

   2. Paragraphs 1.- 5. of subsection (c) go on to define the terms "gill net," "mesh area," "coastline," "Florida waters" and "nearshore and inshore Florida waters," while subsection (d) exempts from the application of the provision the "use of nets for scientific research or governmental purposes." Subsection (f) provides that "implementing legislation is not required for enforcing any violations hereof," and that "nothing in this section prohibits the establishment by law or pursuant to law of more restrictions on the use of nets for the purpose of catching or taking any saltwater finfish, shellfish, or other marine animals."

      
      

   3. Consistent with subsection (f), the legislature has not enacted any implementing legislation for the purpose of enforcing the new amendment. Also, the MFC has cited a proposed effective date for the rules of July 1, 1995, which coincides with the effective date of the new amendment.

      
      

   4. In the notice published in the FAW, the MFC stated that "the constitutional provision effectively changes the direction of marine fisheries regulation in the state." In general terms, the MFC proposed the numerous changes, additions and repeal of rules to conform the rules "to this new direction," to remove the provisions that were obsolete or in conflict with the

      new constitutional provision, and to enhance its ability to enforce the new amendment. According to the MFC's executive director, the constitututional amendment "will have a very significant impact on the historical means and methods of commercial, . . . recreational and subsistence fishing in Florida."

      
      

   5. As specific authority for making every change, the MFC cites Subsection 370.027(2), Florida Statutes, which grants the MFC "exclusive rulemaking authority (in ten areas) relating to marine life," including gear specifications, prohibited gear, closed areas and seasons. As to the rules in chapter 46-3, the MFC also cites as rulemaking authority Section 2, Chapter 83- 134, Laws of Florida, as amended by Chapter 84-121, Laws of Florida. For those rules being modified in chapter 46-4, the MFC additionally relies upon the new constitutional amendment. For the affected rules in chapter 46-23, the agency further identifies as its authority for rulemaking Subsection 370.01(20), Florida Statutes, which authorizes the MFC to include within the term "restricted species" such species of saltwater products as the MFC deems necessary.

      
      

   6. As the law implemented for all rule changes, the MFC cites Sections

      370.025 and 370.027, Florida Statutes. The former statute generally authorizes the MFC to adopt rules to further the state policy of managing and preserving renewable marine fishery resources while the latter statute delegates to the MFC "full rulemaking authority over marine life." The MFC further cites the Florida Constitution as the law implemented for rules in chapter 46-4, and for chapter 46-3 it cites Chapters 83-134 and 84-121, Laws of Florida.

      
      

   7. In broad terms, the rule chapters in issue cover a wide range of subject matter within the MFC's regulatory jurisdiction over marine fisheries resources, including local laws which have been reenacted as rules governing marine fishing in all or parts of thirteen counties (chapter 46-3), gear specifications and prohibited gear (chapter 46-4), and regulations pertaining to the harvest of spanish mackerel (chapter 46-23), spiny lobster (crawfish) and slipper lobster (chapter 46-24), blackdrum (chapter 46-36), spotted seatrout (chapter 46-37), marine life (chapter 46-42), and bluefish (chapter 46-43).

      
      

   8. The constitutional amendment does not prohibit the possession of gill or entangling nets. Rather, it prohibits the use of such nets in Florida waters. Thus, it is still permissible for Florida fishermen to use this gear in federal waters which lie outside of Florida waters. In addition, the amendment prohibits the use of any type of net "containing more than 500 square feet of mesh area . . . in nearshore and inshore Florida waters" but contains no limitations for nets below that threshold size.

      
      

   9. Within the context of petitioners' objections, it is noted that the proposed rule amendments fall into two broad categories: those which delete obsolete or conflicting language in order to conform existing rules to the new amendment, and those which add more restrictive measures than are contained in the new amendment. While petitioners contend that all of the proposed rules are invalid, their principal attack is directed at the more restrictive amendments. For example, the latter group of rules prohibits (a) the possession of a gill net in state waters, (b) the possession of a gill or entangling net aboard a vessel in state waters at the same time a cast net is on the same vessel, (c) the use of two nets from the same vessel in nearshore and inshore waters, (d) the use of purse seine nets under 500 square feet, (e) the use of a bailer net in Volusia County, (f) the use of a trawl for any purpose other than the harvest

      of shrimp, and (g) the use of purse seines of any size in Escambia and Santa Rosa Counties. None of these activities is prohibited by the new constitutional amendment.

      
      

3. Do the Rules Exceed the MFC's Rulemaking Authority?

   
   

   1. Petitioners contend that all of the proposed rules "have as their exclusive foundation the adoption by referendum of Art. X, Sec. 16 of the Constitution of the State of Florida," and thus they "have no foundation in the criteria established by Ch. 370.025 et seq. for the adoption of rules by the (MFC)." As a consequence, petitioners essentially contend that the MFC has exceeded its delegated legislative authority by relying upon a constitutional provision, rather than statutory law, as the source of authority for its rulemaking. At the same time, they contend that the MFC exceeded its rulemaking authority by adopting a number of rules, all containing more restrictive measures than are found in the constitutional amendment, based solely on law enforcement considerations, rather than on its statutory charge of managing and preserving renewable marine fisheries resources. Similarly, they contend that the more restrictive rules are arbitrary and capricious because they are based on law enforcement considerations. This contention, however, is dealt with in a separate part of this order.

      
      

   2. As noted earlier, the MFC cites Subsection 370.027(2), Florida Statutes, as the source of its rulemaking authority for each of the rules. That subsection vests in the MFC "exclusive rulemaking authority (in ten areas) relating to marine life," including gear specifications, prohibited gear, closed areas and seasons. For rules in chapter 46-4, the MFC has cited the new constitutional provision as an additional source of authority. Finally, as to the rules in chapter 46-3, the MFC also relies on Section 2 of Chapter 83-134, Laws of Florida, as amended by Chapter 84-121, Laws of Authority.

      
      

   3. All of the rule changes generally pertain to the areas of gear specifications, prohibited gear, closed areas and seasons, each of which is within the "exclusive rulemaking authority" of the MFC. In this broad sense, they are derived from MFC's statutory authority under Subsection 370.027(2), Florida Statutes, and thus they arguably fall within the scope of the organic law.

      
      

   4. Petitioners contend, however, that the MFC exceeded its rulemaking authority by making law enforcement considerations a basis, at least in part, for adopting the more restrictive rules. Petitioners assert that there in nothing in Chapter 370, Florida Statutes, which allows the MFC to take into account law enforcement issues when engaging in rulemaking. In this regard, respondent concedes through testimony, as corroborated by documentation received in evidence, that the more restrictive rules were crafted for the sole purpose of "facilitat(ing) the most cost effective and efficient enforcement on the prohibition of use (of prohibited gear)." In other words, while the new amendment did not require these more restrictive terms, the MFC nonetheless proposed the rule changes in order to make the Florida Marine Patrol's (FMP) job of enforcing the ban on prohibited gear less "costly" and more "efficient."

      
      

   5. One of the statutes relied upon by the MFC as the source of its rulemaking authority is Section 370.027, Florida Statutes. Among other things, subsection (1) thereof provides that "(a)ll administrative and enforcement responsibilities which are unaffected by the specific provisions of this act continue to be the responsibility of the department (of environmental protection)," of which the FMP is a part. Although Section 370.028, Florida

      Statutes, provides that "any law enforcement officer certified pursuant to s. 943.13" shall have the responsibility of enforcing the rules of the MFC, it is clear that the FMP has the primary responsibility of enforcing the new restrictions imposed by the constitutional amendment.

      
      

   6. The principal statutory charge of the MFC is to manage and preserve renewable marine fisheries resources. The MFC has no specific statutory authority to enact rules solely for the purpose of allowing more "cost- efficient, effective" enforcement of its regulations by another agency, and its executive director readily acknowledges that the agency has no role in enforcing its regulations from a law enforcement perspective.

      
      

   7. The purpose of the constitutional amendment is to protect marine animals from "unnecessary killing, overfishing and waste." By its own terms, then, the intent of the amendment is to preserve and protect Florida's existing and future fishing stocks. The amendment should achieve its goal, for the record shows that, once the amendment becomes effective, there should be a significant reduction in fishing mortality, with a concomitant rise in fishing stocks. Under Section 370.025, Florida Statutes, the MFC is charged with a similar responsibility of managing and preserving marine fishery resources. The evidence clearly shows that the more restrictive rules will have no meaningful effect on fishing mortality. That is to say, this category of rules has been proposed, not to further the MFC's charge of managing and preserving marine fisheries resources, but rather for the sole purpose of assisting another agency (the FMP) in enforcing the ban on the use of gill or entangling nets in Florida waters, and the use of certain nets in nearshore and inshore waters. As such, the more restrictive rules have no foundation in statutory law, and they exceed the MFC's rulemaking authority. For this reason, the following proposed rules or parts thereof are deemed to be an invalid exercise of delegated legislative authority: the last sentence in 46-3.008(3)(c)3.; 46-3.028(3); 46-3.029(3); 46- 3.031(3); 46-3.032(3)(a); 46-3.034(3); 46-3.035(3); 46-3.037(3); 46-3.038(3);

      46-4.001(1)(b); the sentence in 46-4.001(1)(c)3. which reads as follows: "(t)he exceptions provided in this paragraph are not available to a person aboard any vessel on which is also possessed a cast net"; the word "trawl" in 46- 4.001(2)(e); 46-4.001(2)(c)5.; 46-4.001(3); 46-4.004; 46-4.005(2)(a)3.; 46-

      23.002(2); the first sentence in 46-23.003; 46-24.007(5); 46-37.002(2); 46-

      37.006(2) and (3); 46-39.002(3); and 46-42.007(1)(b) and (c). Because the record supports a finding that the changes to rules 46-4.007, 46-4.015, 46- 4.017, 46-36.002, 46-39.011, 46-39.012, and 46-43.005 do not impose more

      restrictive conditions than are found in the new amendment, and are derived from appropriate statutory law, the contention that they exceed the MFC's rulemaking authority is deemed to be without merit.

      
      

4. Are the Rules Arbitrary and Capricious?

   
   

   1. In their amended petition, petitioners also contend that all of the rules affected by these changes are arbitrary and capricious. In this vein, they contend that the rules "are not grounded in logic and reason and are not supported by appropriate scientific certainty." They also claim that where the MFC has exceeded the mandate of the constitution, the rules are arbitrary and capricious in the sense they are not grounded on a rational or logical basis since they stem from MFC's desire to ease the FMP's job in enforcing the new amendment rather than its desire to further the goal of managing and preserving the marine fishery stocks in Florida.

      
      

   2. The record on which the MFC based its changes was derived in part from public hearings conducted in three locations around the state. At those

      hearings, it heard comment from its staff, numerous affected persons, including those who oppose and support the proposed rules, as well as FMP representatives who are charged with the responsibility of enforcing the new law. In addition, during the rulemaking process, MFC and FMP staffers consulted with the State of Texas, which has a similar ban on the use of entangling net gear, to gain an insight on any enforcement problems which that state experienced. Thereafter, the MFC staff prepared an analysis of the public comment, together with their own recommendations, which were considered by the MFC prior to its final decision. Copies of the staff reports and analyses have been made a part of this record.

      
      

      1. The more restrictive rules and law enforcement considerations

         
         

   3. Before adopting any rule, the MFC says it always consults with, and obtains advice from, the FMP regarding enforcement implications. Thus, in crafting its more restrictive rules, the MFC relied wholly upon the recommendation of the FMP, which has the responsibility of enforcing the law. The FMP in turn relied upon the experience of the State of Texas, which first imposed a statutory ban on the use of nets in 1988, and later imposed a statutory ban on the possession of nets in order to provide more effective enforcement.

      
      

   4. Based on advice from the FMP that, without more restrictive measures, it would experience the same problems as did Texas, the MFC decided that a ban on the possession of nets would be necessary in order to permit a more efficient enforcement of the new amendment. Indeed, it did so even though the FMP's chief law enforcement officer acknowledged that the FMP can enforce the new constitutional amendment without the MFC adopting any new rules. Except for this advice from the FMP during the rulemaking process, there is no other basis in fact or logic to support the broad and sweeping revisions. Therefore, while the more restrictive rules are designed to ease the job of law enforcement officials, and thus in that respect they have some logical and rational basis from a law enforcement perspective, they nonetheless have no correlation to the MFC's task of managing and preserving marine fisheries resources. Given this lack of a factual and logical predicate, the following proposed rules or parts thereof are deemed to be an invalid exercise of delegated legislative authority: the last sentence in 46-3.008(3)(c)3.; 46-3.028(3); 46-3.029(3); 46-3.031(3);

      46-3.032(3)(a); 46-3.034(3); 46-3.035(3); 46-3.037(3); 46-3.038(3); 46-

      4.001(1)(b); the sentence in 46-4.001(1)(c)3. which reads as follows: "(t)he exceptions provided in this paragraph are not available to a person aboard any vessel on which is also possessed a cast net"; the word "trawl" in 46- 4.001(2)(e); 46-4.001(2)(c)5.; 46-4.001(3); 46-4.004; 46-4.005(2)(a)3.; 46-

      23.002(2); the first sentence in 46-23.003; 46-24.007(5); 46-37.002(2); 46-

      37.006(2) and (3); 46-39.002(3); and 46-42.007(1)(b) and (c). Because the record supports a finding that the changes to rules 46-4.007, 46-4.015, 46- 4.017, 46-36.002, 46-39.011, 46-39.012, and 46-43.005 do not impose more

      restrictive conditions than are found in the new amendment, the contention that they are arbitrary and capricious on account of law enforcement considerations is deemed to be without merit.

      
      

      1. The other rules

         
         

   5. Petitioners also contend that the rules are arbitrary and capricious because they "are not grounded in logic and reason and are not supported by appropriate scientific certainty." Each of the affected chapters will be discussed separately.

      1. Chapter 46-3

         
         

   6. Chapter 46-3 contains provisions governing fishing in Lee, Volusia, Collier, Duval, Escambia, Santa Rosa, Hernando, Manatee, Martin, Pinellas, Sarasota, Walton and Brevard Counties. When the MFC was statutorily created as a part of the Department of Natural Resouces (DNR) in 1983, there were numerous local laws in existence having special application to these counties. The law which created the MFC directed that these local laws be repealed and reenacted as DNR rules. Some of these were codified in chapter 46-3. As changes to organic law occur, the MFC must logically amend these "local" rules to conform them to statewide requirements.

      
      

   7. According to the notice published in the FAW, the "purpose of these rule amendments (in chapter 46-3) is to conform the Marine Fisheries Commission's rules readopting portions of various special acts (local laws) to this new direction by deleting numerous local netting regulations and amending other provisions relating to gear still allowed by the constitutional provision." The notice added that "the effect of this rulemaking will be to eliminate many obsolete local rules and implement the constitutional provision's uniform regulatory regime."

      
      

   8. Affected by the proposed changes are rules 46-3.002, 46-3.008, 46- 3.025, 46-3.027, 46-3.028, 46-3.029, 46-3.031, 46-3.032, 46-3.034, 46-3.035, 46- 3.037, and 46-4.038. Each of these rules contains requirements unique to a particular county or waterbody within a county. They include seasonal restrictions on the use of nets other than cast nets and bait seines (Caloosahatchee River in Lee County, rule 46-3.002); restrictions on the use of gill nets (Volusia County, rule 46-3.008); minimum mesh size for gill nets and other gear (Lee, Collier and Duval Counties, rules 46-3.025 and 46-3.027); minimum mesh size for gill or trammel nets, a special management regime for purse seine harvest of menhaden in inside waters, and a minimum length for seines (Santa Rosa and Escambia Counties, rule 46-3.028); minimum mesh sizes for gill or trammel nets and maximum lengths for nets (Hernando County, rule 46- 3.029); restrictions on net fishing and a minimum gill net mesh size (Manatee River and Terra Ceia Bay in Manatee County, rule 46-3.031); restrictions on allowable nets and traps for inside waters (Martin County, rule 46-3.032); minimum mesh size for gill and trammel nets (Pinellas County, rule 46-3.034); miminum mesh size for gill and trammel nets (Sarasota County, rule 46-3.035); minimum seine length (Walton County, rule 46-3.037); and restrictions on the use of nets and seines (Brevard County, rule 46-3.038).

      
      

   9. All of the rules in chapter 46-3 have been amended in some respect to delete language made obsolete by the constitutional amendment. More specifically, the existing rules provide an array of requirements relative to the use of gill or entangling nets in the various counties which are clearly at odds with the amendment. Wherever this language appears, or where other obsolete local rules are present, they have been deleted since the use of such gear will no longer be allowed anywhere in the state after July 1, 1995. On this basis alone, and to the extent the changes do nothing more than delete obsolete or conflicting language, it is found that the changes in rules 46- 3.002, 46-3.008, 46-3.025, 46-3.027, 46-3.028, 46-3.029, 46-3.031, 46-3.032, 46- 3.034, 46-3.035, 46-3.037 and 46-4.038 have a factual and logical basis and are not arbitrary and capricious.

      1. Chapter 46-4

         
         

   10. This chapter is entitled "Gear Specifications and Prohibited Gear." As stated in the FAW, the purpose of the changes is "to implement new prohibitions and specifications to enhance enforcement of the (constitutional) amendment, and provide guidance to Florida citizens in complying with the requirements of the new provision."

       
       

   11. In new rule 46-4.001, the FMC prescribes new limitations on marine net fishing. More specifically, it prohibits the use of any gill or entangling net to harvest any marine species in state waters, prohibits possession of nets on the waters of the state except for those persons who have a legitimate need for legal harvest elsewhere, prohibits the use of any net in nearshore or inshore Florida waters to harvest marine species other than certain equipment of specified dimension, prohibits the use of any purse seine in nearshore and inshore Florida waters, and provides an exception for nets fished pursuant to a special activities license issued for public or scientific purposes.

       
       

   12. Rule 46-4.002, which contains gear definitions, provides new or amended definitions of the terms "entangling net," "gill net," and "mesh area," and repeals the definition of an "airboat." At the same time, rule 46-4.0025, which contains other definitions, provides new or amended definitions for the terms "coastline," "Florida waters," "harvest," and "nearshore and inshore Florida waters." According to the FAW, these changes make the definitions "consistent" with the new constitutional amendment.

       
       

   13. In proposed rule 46-4.004, as later modified in the notice of changes to proposed rules, the MFC expands the scope of the rule banning the use of certain gear with power to include nearshore and inshore waters.

       
       

   14. As to rule 46-4.005, it is unclear from the record whether the changes regarding the issuance of a special activities license first proposed in paragraph (2)(a)3. were later eliminated by the notice of changes to proposed rules. Assuming they were not, the revisions to the remaining part of the rule simply substitute the word "governmental" for "public" and redesignate the Department of Natural Resources as the Department of Environmental Protection.

       
       

   15. The MFC has also proposed to repeal rules 46-4.006, 46-4.007(1)and (3), 46-4.008(1)-(4), 46-4.0081, 46-4.0085, 46-4.015(1), 46-4.016, and 46- 4.017(1) and (5). The MFC says these changes are required in order to eliminate obsolete language, some of which is derived from special laws.

       
       

   16. Finally, the minor changes in rules 46-4.013 and 46-4.014 prohibit the use of spotter planes in harvesting Spanish mackerel and prescribe gear specifications for using purse seines in certain waters of Pinellas, Hillsborough and Manatee Counties, respectively. These changes have been made in order to conform the rules to what the MFC perceives to be existing law.

       
       

   17. Where the above revisions simply delete obsolete or conflicting language, or make other changes which are not more restrictive in nature, as described in finding of fact 24, there is a sufficient record basis to support a finding that the amendments are grounded in fact and logic and are thus not arbitrary and capricious.

       
       

       1. Chapter 46-23

   18. This chapter governs the harvest of fishing for Spanish mackerel. By the rule changes, the MFC proposes to prohibit the commercial harvest of this species of fish in state waters by gill nets after July 1, 1995, and to allow only hook and line gear to be thereafter used.

       
       

   19. Specific changes have been made to rules 46-23.001, 46-23.002, 46-

       23.003 and 46-23.004 to eliminate all reference to gill nets, and to describe other restricted activities relating to this species. To the extent these changes do not create more restrictions than are found in the new amendment, as more specifically described in finding of fact 24, they conform to the new law and will ease the fishing pressure exerted on Spanish mackerel. Because the changes in chapter 46-23 enhance the state policy of preserving marine fishery resources, there is insufficient evidence to support a finding that they are arbitrary and capricious.

       
       

       1. Chapter 46-24

          
          

   20. Chapter 46-24 governs the harvest of Spiny Lobster (Crawfish) and Slipper Lobster. The only rule affected by the changes is rule 46-24.007, which has been amended to specify the maximum size of bully nets and hoop nets used in the spiny lobster fishery. More specifically, the changes in subsection (5) of the rule limit bully nets to a diameter no larger than 3 feet while hoop nets are limited to a diameter no larger than 10 feet.

       
       

   21. Because the only change has been previously found to be arbitrary and capricious, the additional argument that the rule lacks "scientific certainty" need not be addressed.

       
       

       1. Chapter 46-36

          
          

   22. This chapter, which relates to Black Drum, is amended in one respect by changing language in rule 46-36.002(2) to delete reference to nets and seines in the definition of the term "commercial harvest."

       
       

   23. Because the change is necessary to conform the rule with the new amendment, and there will be no appreciable change in the number of fish that can be caught, there is a sufficient factual predicate to support the change.

       
       

       1. Chapter 46-37

       
       

   24. This chapter specifies regulations pertaining to the harvest of spotted seatrout. Only two rules are affected, those being rules 46-37.002 and 46-37.006. According to the FAW, the effect of the changes will be to "clearly indicate that hook and line gear is the only allowable gear for the harvest of spotted seatrout and that spotted seatrout harvest in excess of recreational bag limits will be considered commercial harvest after (the constitutional amendment) become(s) effective July 1, 1995."

       
       

   25. The only change in rule 46-37.002 is found in section (2), which defines the term "harvest for commercial purposes." There, the MFC has proposed to delete reference to the use of nets. In addition, sections (2) and (3) of rule 46-37.006 have been amended to delete all gill and trammel net mesh size requirements. Since both changes exceed the constitutional mandate and are based solely on law enforcement considerations, and have already been determined to be arbitrary, it is unnecessary to address petitioners' remaining contentions.

       1. Chapter 46-39

          
          

   26. Chapter 46-39 governs the harvest of mullet, which has traditionally been a gill net fishery. All or parts of rules 46-39.002, 46-39.0035, 46- 39.005, 46-39.006, 46-39.007, 46-39.008, 46-39.009, 46-39.010, 46-39.011 and 46-

       30.012 have been amended or repealed to conform these rules to the new amendment. More specifically, the species will now be available to a limited extent only through the use of cast nets, and thus all provisions pertaining to gill net specifications, spotter planes, daily vessel limits, and weekend closures and other closed seasons have been deleted.

       
       

   27. To the extent these rules do not exceed the constitutional mandate, as previously discussed, they are based on facts and logic and are not arbitrary or capricious.

       
       

       1. Chapter 46-42

          
          

   28. This chapter pertains to the broad subject of "Marine Life." As stated in the FAW, the purpose of the single rule amendment is to "specify the maximum size of barrier nets and drop nets used to harvest tropical fish."

       
       

   29. Rule 46-42.007 provides gear specifications for the harvest of tropical fish. Paragraphs (1)(b) and (c) have been amended to establish a maximum length for barrier nets of 60 feet, with a maximum depth of 8 feet, and a maximum dimension of 12 feet for drop nets. Because these changes have been previously found to be arbitrary and capricious by virtue of being based solely on law enforcement considerations, it is unnecessary to determine if they are arbritrary and capricious for other reasons.

       
       

       1. Chapter 46-43

       
       

   30. The final chapter being amended governs the bluefish harvest and changes one rule "to provide gear specifications to apply to the commercial harvest of bluefish in the federal Exclusive Economic Zone (EEZ) waters adjacent to east coast Florida waters in the Atlantic Ocean, in accordance with the Fishery Management Plan for the Bluefish Fishery . . . as implemented through federal rules."

       
       

   31. Specifically, subsection (2) of rule 46-43.005 has been amended to delete references to current statewide gear rules and provide new net gear requirements applicable to commercial bluefish harvest in federal waters adjacent to Florida east coast waters, including tending requirements, net marking specifications, maximum net length and minimum mesh size, and soak requirements. The new language also allows only one net to be fished at a time from a single vessel, but allows possession of a maximum of two nets, including the one being fished. Finally, the term "net" is defined to exclude purse seines.

       
       

   32. These changes apply only to the bluefish fishery in adjacent federal waters which are subject to Florida rulemaking by virtue of an interstate compact. The proposed changes have been approved by the Atlantic States Marine Fisheries Commission, are necessary in order for Florida to meet its state quota under the compact, and have a basis in fact and logic. Accordingly, the rule changes are not found to be arbitrary or capricious.

5. Do the Rules Conflict with the Law Implemented?

1. Petitioners further allege that the proposed rules conflict with the law implemented. More specifically, they have alleged that the proposed rules do not conform with the criteria established in Section 370.025, Florida Statutes, one of the two statutes relied upon by the MFC as the law implemented for all rules. Subsection (1) of the law declares that the state policy of managing and preserving its renewable marine fishery resources shall be

   
   

   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.

   
   

   Subsection (2) requires that all rules adopted by the MFC relating to saltwater fisheries 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, sociologi-cal, 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 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. Incon- sistencies 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.

      
      

2. To show conformity with the above standards, the MFC staff prepared a document entitled "Adherence to Commission Standards" for each of the affected chapters. These documents, which are a part of the rule file, are found in

   respondent's exhibit 1 received in evidence, and they were considered by the MFC as a part of the rulemaking process. They provide an analysis on how the proposed rules comply with the standards enumerated in subsection 370.025(2), to the extent such standards are applicable. This analysis was not credibly contradicted at hearing.

   
   

3. In their proposed order, petitioners focus principally on the rules in chapter 46-4, which relate to gear standards and specifications, and contend these rules are illustrative of the fact that none of the rules are consistent with the statutory standards.

   
   

4. As to whether the changes in all of the chapters are consistent with the criteria in Subsection 370.025(1), Florida Statutes, the rule changes were based on oral and written comments from laypersons, law enforcement personnel and experts and thus were based on the best available information. In addition, many of the changes were necessary by virtue of the constitutional amendment, and to this extent, they protect and enhance the marine environment for the benefit of all present and future generations. Accordingly, they are found to be consistent with the criteria in Subsection 370.025(1), Florida Statutes.

   
   

5. As to whether the changes in chapter 46-4 are consistent with the standards in Subsection 370.025(2), Florida Statutes, the MFC's analysis indicates they "reduce fishing mortality on most inshore finfish species" and do not "jeopardize the health or abundance of inshore finfish stocks" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], eliminate obsolete provisions and "allow for alternative gear fisheries to develop after the new constitutional provision becomes effective" [paragraph (c)], "complement and affect the provisions of already developed management plans" and "maintain consistency" [paragraph (f)], "apply equally to all persons" [paragraph (g)], and "are consistent as possible with federal management plans" [paragraph (g)]. The standards in paragraphs (d) and (e) do not apply. Given these considerations, it is found that the rule changes in chapter 46-4 are consistent with the criteria and standards in Subsection 370.025(2), Florida Statutes.

   
   

6. In a similar vein, the rule changes in chapter 46-23 "affect a reduction in fishing mortality on Spanish mackerel in state waters" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], allow the species to "continue to be available to commercial harvesters in state waters with hook-and-line and cast net gear" [paragraph (c)], conduct the management of the species "on the unit stock" [paragraph (d)], amend the fishery management plan [paragraph (f)], "apply equally to all persons" [paragraph (g)], and are "consistent as possible with federal management plans" [paragraph (h)]. The standard in paragraph (e) does not apply. As such, the changes are consistent with the statutory criteria.

   
   

7. With respect to the changes in chapter 46-37, they "affect a reduction in fishing mortality on spotted seatrout in state waters" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], allow the species to "continue to be available to commercial and recreational fishers with hook-and-line gear" [paragraph (c)], conduct "the managment of spotted seatrout . . . on the unit stock" [paragraph (d)], amend the fishery managment plan [paragraph (f)], "apply equally to all persons seeking to harvest spotted seatrout" [paragraph (g)], and are not "inconsistent with recommended management plans initiated by the interstate commissions" [paragraph (h)]. The standard in paragraph (e) does not apply. On this basis, the rule changes are found to consistent with the standards.

8. As to the consistency of the changes in chapter 46-39, they "affect a substantial reduction in fishing mortality on mullet in state waters" [paragraph (a)], "implement and aid enforcement of the recently adopted revisions to the Florida Constitution" [paragraph (b)], make "available to harvesters with cast net, and to a much lesser extent, hook-and-line gear" and "aid in the development of alternative gear fisheries for mullet" [paragraph (c)], continue to conduct the management of mullet on the unit stock [paragraph (d)], amend the fishery management plan [paragraph (f)], and "apply to anyone attemting to harvest mullet" [paragraph (g)]. The standards in paragraphs (e) and (h) do not apply. Accordingly, the rule changes are found to be consistent with the statutory standards.

   
   

9. The revisions in chapter 46-43 "will not change the substantial conservation measures heretofore in place" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], "continue the current regulatory regime in place in the bluefish management plan" [paragraph (c)], allow the management of Atlantic bluefish to be continued to be conducted on the basis of the U. S. Atlantic coast unit stock" [paragraph (d)], amend the fishery management plan [paragraph (f)], "continue the regulatory regime currently in place and allow a fair and equitable distribution of the available bluefish harvest among commercial and recreational fishers" [paragraph (g)], and "are consistent with federal management plans" [paragraph (h)]. The standard in paragraph (e) does not apply. Again, it is found that the rule changes are consistent with the statutory standards.

   
   

   G. Were Procedural Requirements Met in Adopting the Rules?

   
   

10. Petitioners complain that the MFC materially failed to follow the applicable rulemaking procedures set forth in Section 120.54, Florida Statutes, in three respects. First, it is alleged that the MFC failed to provide petitioners with a timely draft of the EIS prepared for each of the rule changes. Second, petitioners contend that the MFC erred by refusing to take public comment at the final adoption meeting in violation of Rule 46- 1.004(4)(b), Florida Administrative Code. Finally, petitioners argue that the MFC amended or repealed rules derived from local laws without holding a mandatory meeting in each affected county. These contentions will be considered separately below.

    
    

    1. Was the EIS submitted on a timely basis?

       
       

11. The Organized Fishermen of Florida, Inc., Southeastern Fisheries Association, Inc., and Seafood Consumers and Producers Association, Inc. are organizations representing at least one hundred persons. Under Section 120.54(2)(b), Florida Statutes, an agency must prepare an EIS if

    
    

    within 14 days after the publication of the notice provided pursuant to paragraph (1)(c)

    or, if no notice of rule development is provided, within 21 days after the notice required by paragraphs (1)(a) and (b), a written request

    is filed with the appropriate agency by . . .

    an organization representing at least 100 persons.

    The same statute goes on to provide in part that:

    
    

    If an economic impact statement is prepared pursuant to paragraph (2)(b), at least 14 days prior to any public hearing on a proposed rule held pursuant to subsection (3), the agency shall make a draft copy of the economic impact statement available to any person who requests a copy of the statement.

    
    

12. On January 20, 1995, or just four days before the first public hearing, petitioners filed with the MFC a written request for preparation of an EIS on each of the proposed rules. They also asked that they be provided with a copy of a draft of the statement.

    
    

13. Notwithstanding this request, the hearing on the proposed rules was held on January 24-26, 1995, as previously scheduled. The official record of the rulemaking proceedings was closed on February 9, 1995. On the same day, petitioners were provided with a draft EIS.

    
    

14. There is no evidence as to how petitioners were prejudiced in the conduct of this proceeding by virtue of not receiving a copy of the EIS prior to the public hearings. Indeed, petitioners never made the MFC aware of any specific concerns regarding the EIS, and they made no claim that the EIS itself is deficient. Therefore, even if an error in procedure occurred, it was harmless and did not impair the fairness of the proceeding.

    
    

    1. Did the MFC improperly refuse to hear public comment?

       
       

15. Rule 46-1.004(4)(b), Florida Administrative Code, provides that during a MFC rulemaking hearing

    
    

    any person present shall be heard on any issue under consideration, subject to control by the presiding officer of irrelevant, repetitious or unduly extended comment.

    
    

16. The rules under consideration here were revised and approved for adoption at a MFC meeting held on February 16, 1995. It is undisputed that no public comment was permitted at that meeting.

    
    

17. Prior to the final adoption meeting, the MFC conducted public hearings on the proposed rules in Lee, Orange and Leon Counties. The MFC general counsel was appointed as a hearing officer to conduct those meetings, and at least one commissioner attended each meeting. Members of the public who attended the meetings were allowed to offer both written and oral comment on the rules. The meetings were not transcribed, but they were videotaped in order to preserve the record.

    
    

18. After the meetings were completed, the MFC general counsel prepared a summary of the public comment and a staff recommendation for use by the MFC at its regularly scheduled meeting on February 16, 1995. Since three public hearings had already been conducted, including one in Tallahassee, the MFC opted to dispense with public comment at the February 16 meeting and to deliberate and vote on the proposed rule changes. It is undisputed that, prior to voting on the changes, the commissioners who had not attended the public hearings did not watch the videotaped record. Instead, they relied upon the summary of comments prepared by their staff.

19. Even if the MFC's decision to dispense with public comment was in violation of rule 46-1.004(4)(b), there is no evidence as to how petitioners were prejudiced. This is especially true since a public hearing had already been held in Tallahassee less than a month earlier, at which time public comment was invited. Therefore, if an error in procedure occurred, it was not material, and it did not impair the fairness of the proceeding.

    
    

    1. Were hearings required in each affected county?

    
    

20. Each of the twelve affected rules in chapter 46-3 is derived from local laws identified in Chapter 83-134, Laws of Florida, as amended by Chapter 84-121, Laws of Florida. Although these rules affect Lee, Volusia, Collier, Duval, Escambia, Santa Rosa, Hernando, Manatee, Martin, Pinellas, Sarasota, Walton and Brevard Counties, a public hearing was held only in Lee County.

    
    

21. Rule 46-1.004(5), Florida Administrative Code, provides in relevant part as follows:

    
    

    (5) Before adopting any rule amending or repealing any rule derived from local laws identified in Section 2(5)(a), (b), or (c) of Ch. 83-134, Laws of Florida, . . . the Commission or, at the direction of the Commission, one or more Commissioners or staff members shall hold a public hearing. When acting on rules derived from such local laws, a hearing shall be held in the county or counties affected. (emphasis added)

    
    

    This rule tracks language in Section 2(5)(d) of Chapter 83-134, Laws of Florida, which requires the MFC to "hold a hearing in the affected county or counties" before amending or repealing any rules derived from local law. Petitioners contend that the foregoing rule and law were violated since a hearing was held in only one of the thirteen affected counties.

    
    

22. As noted earlier, when the MFC was created by Chapter 83-134 as a part of the DNR, numerous local laws were in effect regulating fishing practices on a county by county basis. Section 2(5)(a) of Chapter 83-134 provided as follows:

    
    

    Effective upon the appointment of the commission, the following local laws pertaining to saltwater fishing, to the extent they relate to those areas specified in subsection (2), shall be repealed and shall continue as rules of the department:

    
    

    Chapter 83-134 was amended by Chapter 84-120, Laws of Florida, which, among other things, repealed additional local laws but provided that they continue in effect as DNR rules.

    
    

23. It is a commonly recognized fact that in 1993 the DNR was abolished through a merger with the Department of Environmental Protection (DEP). Respondent takes the position that when the DNR was merged with the DEP, the DNR rules were repealed and readopted as MFC rules, and thus the present rules found in chapter 46-3 are no longer "derived from local laws." As a consequence, the MFC contends that a public hearing in each affected county is not required.

24. The history notes to the challenged rules reflect that they were amended at various times in 1992, or before the merger of DNR and DEP occurred. No amendments have occurred since that time. Whether the 1992 changes constitute the readoption that the MFC relies upon is not apparent from the record. In any event, the rules are clearly derived from local laws, and thus they are subject to the requirements of Chapter 83-134, Laws of Florida, and Rule 46-1.004(4)(b) Florida Administrative Code. This finding is buttressed by the fact that in the FAW, the MFC describes its changes in chapter 46-3 as being for the purpose of conforming its rules "readopting portions of various special acts (local laws)" to the constitution. Moreover, the rules themselves contain language that the MFC intends "to readopt certain provisions of (the local law)."

    
    

25. Even though the requirement in chapter 83-134 was not followed, there was no showing by petitioners that they were prejudiced by this error or that the fairness of the proceeding was impaired. Therefore, the error is deemed to be harmless.

    
    

    G. Do the Rules Conflict with the Constitution?

    
    

26. Although petitioners' amended petition does not contain the allegation that the rules conflict with the new constitutional provision, in the main body of their proposed order they argue that eighteen rules "enlarge, modify or contravene the specific provisions of the constitution implemented." In contrast, the appendix to their proposed order cites twenty, rather than eighteen, rules which are allegedly constitutionally infirm.

    
    

27. More specifically, petitioners complain that rules 46-3.008, 46-3.029, 46-3.032, 46-4.001, 46-4.005, 46-4.007, 46-4.015, 46-4.017, 46-23.001, 46- 23.002, 46-23.003, 46-24.007, 46-36.002, 46-37.002, 46-37.006, 46-39.002, 46-

    42.007 and 46-43.005 make certain conduct unlawful even though such conduct is permissible under Section 16, Article X. By way of example, the rules make the possession (as opposed to the use) of gill or entangling nets unlawful even though the possession of such equipment is not barred by the constitutional amendment.

    
    

28. Assuming, but not conceding, that the constitutional claim has been timely raised, Subsection (f) of Section 16, Article X provides in part that "nothing in this section prohibits the establishment by law or pursuant to law of more restrictions on the use of nets for the purpose of catching or taking any saltwater finfish, shellfish, or other marine life." (Emphasis added) Since the changes to the rules under challenge arguably relate to the "use of nets," and they have been made "pursuant to law," that is, pursuant to MFC's statutory rulemaking authority, the cited rules, even if more restrictive than the amendment, do not contravene the constitutional provision.

    
    

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsections 120.54 and 120.57(1), Florida Statutes.

    
    

30. As the parties challenging the proposed rules, petitioners have the burden of proving by a preponderance of the evidence that the challenged rules are an invalid exercise of delegated legislative authority. Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st

    DCA 1978). This burden has been characterized as being "a stringent one indeed." Agrico, 365 So.2d at 763.

    
    

31. Subsection 120.52(9), Florida Statutes, defines an invalid exercise of authority as follows:

    
    

    Invalid exercise of delegated legislative authority means action which goes beyond the powers, functions, and duties delegated by the legislature.

    
    

    The same statute goes on to provide that a proposed rule is invalid if:

    
    

    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 contra- venes the specific provisions of law imple- mented, 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.

       
       

32. As grounds for invalidating the rules, petitioners contend that the rules, or at least some of them, are an invalid exercise of delegated legislative authority because (a) the MFC failed to materially follow the applicable rulemaking procedures in three respects, (b) the MFC exceeded its rulemaking authority by deriving such authority from a constitutional provision rather than statutory law and by basing the rules on a consideration not found in its statutes, (c) the rules are in conflict with the law implemented, and (d) the rules are arbitrary and capricious.

    
    

33. It is well-established that an agency cannot exceed its grant of rulemaking authority, see, e. g., The Board of Trustees of the Internal Improvement Trust Fund v. Board of Professional Land Surveyors, 566 So.2d 1358, 1360 (Fla. 1st DCA 1990), nor can it enlarge, modify or contravene the provisions of a statute through rulemaking. See, e. g., Cataract Surgery Center

    v. Health Care Cost Containment Board, 581 So.2d 1359 (Fla. 1st DCA 1991). At the same time, a rule which is not supported by fact or logic, or that is adopted without thought or reason, is arbitrary and capricious. Agrico, 365 So.2d at 763. Further, any deficiency regarding the EIS must be "so grave as to have impaired the fairness of the proceeding." Health Care and Retirement Corp. of America v. Dept. of Health and Rehabilitative Services, 463 So.2d 1175, 1178 (Fla. 1st DCA 1984). Finally, any errors in rulemaking procedures are subject to the harmless error test and, absent a showing by petitioners that they were prejudiced and that the fairness of the proceeding was impaired, an error in procedure will not render the rules invalid.

    
    

34. The evidence supports a conclusion that the proposed rules, to the extent they merely delete obsolete or conflicting language in order to conform the rules with the new amendment, are derived from the MFC's statutory authority and thus do not exceed the MFC's rulemaking authority in violation of Subsection

    120.52(8)(b), Florida Statutes. In so ruling, the undersigned has considered petitioners' argument that the rules are actually derived from a constitutional provision, and not statutory law, and are thus invalid. The MFC, however, has cited appropriate statutory rulemaking authority to support each of the above changes, and where the history notes to the rules cite the constitutional provision as additional rulemaking authority, the citation is harmless error.

    
    

35. For those rule amendments which impose more restrictive measures than are found in the constitutional amendment, the evidence supports a conclusion that the MFC exceeded its rulemaking authority. This is because the MFC has no statutory authority to adopt rules based solely on law enforcement considerations. Rather, its statutory charge is to manage and preserve renewable marine fisheries resources. By imposing more restrictive requirements than are found in the new constitutional amendment solely on the basis of law enforcement considerations, and nothing more, the MFC has exceeded its authority under Section 370.027, Florida Statutes. Parenthetically, it is noted that if the FMP and MFC deem more restrictive measures to be necessary and appropriate, their remedy is to seek changes in the organic law rather than through illicit rulemaking. Accordingly, the proposed rules cited in finding of fact 20 are deemed to be an invalid exercise of delegated legislative authority on the ground the agency has exceeded its delegated legislative authority.

    
    

36. The evidence further supports a conclusion that in the context of petitioners' claim, the rules do not enlarge, modify or contravene the specific provisions of law implemented. This conclusion is based on the facts found in paragraphs 53-60 of this order, which demonstrate the consistency of the rules with the law implemented. Therefore, the contention that the proposed rules violate Subsection 120.52(8)(c), Florida Statutes, has been rejected.

    
    

37. Because the established facts in paragraphs 26-52 show that, to the extent they simply make existing provisions consistent with Article X, Section 16, or otherwise do not exceed the constitutional mandate, the rule changes are supported by fact and logic and were adopted with thought and reason.

    Therefore, they are not deemed to be arbitrary and capricious within the meaning of Subsection 120.52(8)(e), Florida Statutes. In reaching this conclusion, the undersigned has rejected the contention that the rules must be based on "scientific certainty" in order to be valid. The undersigned is unaware of any precedent, and petitioners have cited none, which holds that "scientific certainty" is a necessary predicate for adopting a rule.

    
    

38. As to the amendments which impose more restrictive requirements than the constitutional amendment, they lack a factual and logical basis in that they are not based on furthering the MFC's charge of managing and preserving marine fisheries resources. ordingly, the rules cited in finding of fact 24 are an invalid exercise of delegated legislative authority on the ground they are arbitrary and capricious.

    
    

39. The allegation is also made that the MFC failed to materially follow a rulemaking procedure in section 120.54 in three respects. First, while the MFC did not provide a copy of the EIS to petitioners at least fourteen days prior to its public hearing, petitioners did not submit the request until four days before the scheduled public hearing. Under circumstances such as these, the agency could not reasonably be expected to delay the public hearing so that an EIS could be prepared. But even if this omission constitutes a violation in procedure, there was no evidence as to how petitioners' rights were prejudiced by this error in procedure, or how the fairness of the proceeding was impaired. This is especially true here since petitioners offered no evidence regarding

    information that would have been provided to the MFC had they been given an EIS on a timely basis. The error is accordingly deemed to be harmless.

    
    

40. Petitioners next contend that the MFC did not follow the requirements of rule 46-1.004(4)(b) when it declined to hear public comment at its February 16, 1995 meeting. However, this procedural requirement is not found in Section 120.54, Florida Statutes, and thus does not fall within the purview of Subsection 120.52(8)(a), Florida Statutes. Assuming that such an error in procedure can be raised in a rule challenge proceeding, and that the MFC violated its own rule, there was no prejudice shown by petitioners nor was there a showing as to how the fairness of the proceeding was impaired. This conclusion is supported by the fact that a public hearing (inviting public comment) had been held in Tallahassee less than a month earlier. Therefore, the error, if germane to this proceeding, is deemed to be harmless.

    
    

41. The final error in procedure involves a claim that the MFC failed to comply with Section 2(5)(2) of Chapter 83-134, Laws of Florida, and rule 46- 1.004(5), which require that before a rule derived from local law is amended or repealed, the MFC must conduct a public meeting in the affected county. In this case, thirteen counties have rules derived from local law which are being repealed or amended, but the MFC conducted a public meeting in only one county. Although this requirement is not found in Section 120.54, Florida Statutes, and thus would not be a ground for invalidating the rules under Subsection 120.52(8)(a), Florida Statutes, the MFC has not questioned petitioners' right to raise this contention in a proceeding brought under Subsection 120.54(4), Florida Statutes. In any event, if the argument is meritorious, the rules would be declared invalid, not on the theory that the agency failed to materially follow a rulemaking procedure in Section 120.54, Florida Statutes, but because the agency failed to comply with another law during its rulemaking process.

    
    

42. Like the statutory ground found in Subsection 120.52(8)(a), Florida Statutes, a failure to comply with Chapter 83-134 is subject to the harmless error test. Here, the MFC acknowledges that it failed to comply with the law, but reasons that the rules in chapter 46-3 are not derived from local law since they were repealed and readopted after the merger of DNR and DEP. However, having found in finding of fact 76 that the rules are derived from local law, it must be concluded that the MFC failed to comply with Chapter 83-134 and its rule. Even so, in the absence of any showing by petitioners that they were prejudiced, or that the fairness of the proceeding was impaired by this procedural deficiency, the error is deemed to be harmless and insufficient to invalidate the amendments.

    
    

43. Petitioners have also contended in their proposed order that eighteen rules are constitutionally infirm on the ground they conflict with the new amendment. Because this ground was not raised in the amended petition, it is untimely and need not be addressed. Even if it was timely raised, however, it is noted that subsection (f) of the amendment specifically provides that "nothing in this section prohibits the establishment by law or pursuant to law of more restrictions on the use of nets for the purpose of catching or taking any saltwater finfish, shellfish, or other marine life." Since the more restrictive provisions in the rules have been promulgated "pursuant to law," that is, pursuant to the MFC's statutory rulemaking authority, and they arguably relate to the "use of nets," they do not conflict with the new amendment.

    
    

44. Finally, over the objection of respondent, at hearing the undersigned received into evidence as petitioners' exhibits 6-9 the depositions of the MFC executive director, a MFC fisheries management analyst, a MFC economist, and the

DEP director of the division of law enforcement. Having revisited this issue by virtue of respondent's renewed argument, the ruling is hereby reaffirmed. See, for example, Subsections 90.803(18) and 120.58(1)(a), Florida Statutes; Fla. R. Civ. P. 1.330(a)(1). Respondent's motion to strike is also denied.

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that the proposed rules enumerated in findings of fact 20 and 24

are determined to be an invalid exercise of delegated legislative authority on

the grounds they exceed the agency's rulemaking authority and they are arbitrary and capricious. In all other respects, the petition is denied.

DONE AND ORDERED this 5th day of June, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 6th day of June, 1995.

APPENDIX TO FINAL ORDER, CASE NO. 95-0269RP

Petitioners:

50-51. Partially accepted in findings of fact 23 and 24. 52-53. Rejected as being unnecessary.

54-61. Partially accepted in findings of fact 63-66. 62-68. Partially accepted in findings of fact 67-71. 69-72. Partially accepted in findings of fact 72-77.

Respondent and Intervenors:

1. Partially accepted in finding of fact 23.

2. Rejected as being unnecessary.

3. Partially accepted in finding of fact 26.

4. Rejected as being unnecessary.

NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, cumulative, subordinate, not supported by the evidence, or a conclusion of law.

COPIES FURNISHED:

V. Carroll Webb, Director

Joint Administrative Procedures Committee Holland Building, Room 120

Tallahassee, FL 32399-1300

Liz Cloud, Chief

Bureau of Laws and Administrative Code The Capitol, Room 1802

Tallahassee, FL 32399-0250

Frank J. Santry, III, Esquire Sharon A. Dimuro, Esquire Post Office Box 14129 Tallahassee, FL 32317-4129

Jonathan A. Glogau, Esquire Department of Legal Affairs The Capitol, PL-01 Tallahassee, FL 32399-1050

David Gluckman, Esquire Route 5, Box 3965

Tallahassee, FL 32311-8803

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.

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DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA, MARINE NOT FINAL UNTIL TIME EXPIRES TO FISHERIES COMMISSION FILE MOTION FOR REHEARING AND FLORIDA LEAGUE OF ANGLERS DISPOSITION THEREOF IF FILED. and FLORIDA WILDLIFE FEDERATION,

Appellants, CASE NO. 95-2128

DOAH CASE NO. 95-269RP

vs.

ORGANIZED FISHERMEN OF FLORIDA,

Appellee.

/ Opinion filed June 10, 1996.

An appeal from order of the Division of Administrative Hearings.

Robert A. Butterworth, Attorney General; Jonathan A. Glogau, Assistant Attorney General, Tallahassee for Appellant/Marine Fisheries Commission.

David Gluckman of Gluckman and Gluckman, Crawfordville for Intervenors/Florida League of Anglers, et al.

Frank J. Santry, Sharon A. DiMuro, and Elizabeth J. Maykut of Granger, Santry, Mitchell & Heath, P.A. Tallahassee, for Appellees.

PER CURIAM.

AFFIRMED.

ERVIN, KAHN and DAVIS, JJ., CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable, Donald R. Alexander, Hearing Officer

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

ORGANIZED FISHERMEN OF FLORIDA, INC., SOUTHEASTERN FISHERIES ASSOCIATION, INC., SEAFOOD CONSUMERS AND PRODUCERS ASSOCIATION, INC., GLEN BLACK, RONALD E. BLACK, HENRY CRANE, DEWEY DESTIN, CECIL LANE, DENISE LEEK, GERALD PACK, HAROLD RAFFIELD, RICHARD VAN MUNSTER, D.W. WILSON, ET AL.

v. Case No. 95-2128

Your Case No. 95-269RP

MARINE FISHERIES COMMISSION, ET AL.

The attached opinion was rendered on June 10, 1996.

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 Edward T. Barfield

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 26th day of June, 1996.

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 95-000269RP

Orders for Case No: 95-000269RP