STATE OF FLORIDA DIVISION ADMINISTRATIVE HEARINGS

SHELLFISH FARMERS ASSOCIATION, )

INC., a Florida Corporation, ) not-for-profit; INDIAN RIVER ) MAR1CULTURE, INC., a Florida )

Corporation; and SEA CRITTERS, ) INC., a Florida Corporation, )

)

Petitioners, )

)

vs. ) CASE No. 89-3217RP

)

FLORIDA MARINE FISHERIES )

COMMISSION, )

)

Respondent. )

)

FINAL ORDER DISMISSING PETITION

This case was initiated by the filing of a petition to challenge proposed amendments to Rule 46-17, Florida Administrative Code relating to the harvesting and sale of hard clams. The Petitioners include the Shellfish Farmers Association, Inc. (Shellfish Farmers), a nonprofit association of persons engaged in the mariculture of shellfish including the culture and commercial harvesting of hard clams; Indian River Mariculture, Inc. (IRMI), a corporation engaged in the mariculture of shellfish including hard clams, (IRMI is a member of Shellfish Farmers); and Sea Critters, Inc., a Florida Corporation engaged in the mariculture of hard clams including the operation of a commercial hatchery and mariculture business

The proposed rule amendments being challenged by the Petitioners would amend Rule 46-17.003, Florida Administrative Code (the "existing Rule"), promulgated by the Respondent, Florida Marine Fisheries Commission (FMFC). As explained below, proposed amendments to the existing Rule were originally published on April 14, 1989, in Volume 15, No. 15, Florida Administrative Weekly. (Those original proposed amendments published on April 14, 1989, are hereinafter referred to as the "initial" proposed amendments.) The amendments challenged in this proceeding were published in Volume 15, No. 21, Florida Administrative Weekly on May 26, 1989, after a public hearing on the initial proposed amendments. (The proposed rule amendments published on May 26, 1989, have been treated by the FMFC as modifications of the initial proposed amendments and are hereinafter referred to as the "modified" proposed amendments.) The Petitioners assert that the modified proposed amendments are an invalid exercise of delegated legislative authority, and violate due process of law in contravention of Article I, Section 9, Florida Constitution and the Fifth and Fourteenth Amendments of the United States Constitution.

The existing Rule 46-17.003 governs the harvesting and sale of wild clams from waters of the state. The existing Rule specifically states that the minimum size requirement established by the Rule for wild clams does not apply to hard clams cultivated from eggs by licensed or lawfully allowed mariculture

operations. In addition, the existing Rule allows lease holders of clam beds and mariculture operators to take wild clams of less than 1 inch in size from closed areas for transport to their leased beds or mariculture facilities. The initial proposed amendments established a minimum size of 7/8" for harvesting, possession or sale of wild and foreign clams. The initial proposed amendments also allowed lease holders of clam beds and mariculture operators to take hard clams less than 7/8" in size from closed areas for the purpose of transporting them to their leased areas or to their mariculture facilities.

A duly noticed public hearing on the initial proposed amendments was held in Tallahassee, Florida, on May 10, 1989. As a result of the deliberations and testimony at the public hearing conducted on May 10, 1989, changes were made in the proposed amendments and a "modified" version of the proposed amendments was noticed by publication in the Florida Administrative Weekly on May 26, 1989.

This notice of modifications was published pursuant to Section 120.54(13)(b), Florida Statutes (1987). There is no dispute in this case that the Petitioners were present at the May 10, 1989 public hearing and the modifications made to the proposed rule were consistent with information adduced at that hearing.

The modified proposed amendments establish a minimum 1" size for the harvesting, possession and sale of both wild and farmed clams except that farmed clams no less than 7/8" in size may be possessed for the purpose of transporting and sale to out of state dealers The modified proposed amendments also prohibit leaseholders of clam beds and mariculture operators from taking hard clams of less than 1" in size from closed areas to their leased beds or mariculture facilities.

The Petition in this case challenges the modified proposed amendments under Section 120.54(4), Florida Statutes (1987). Under subsection b of Section 120.54(4), challenges to proposed rules must be filed within twenty one (21) days "after the date of publication of the notice." The Petition to Determine the Validity of a Proposed Rule was filed on June 12 1989.

Respondent has filed a Motion to Dismiss this action raising essentially two issues. First, the Respondent argues that the Division of Administrative Hearings does not have jurisdiction in this case because the challenged modifications are no longer a "proposed rule" after publication of the notice of modifications and the Division of Administrative Hearings only has jurisdiction over "proposed rules" in a Section 120.54 challenge. However, the record in this case indicates that the modifications in question have not yet been adopted under the provisions of Section 120.54(13)(a). Indeed, the May 26, 1989 notice indicates that the proposed rule amendments were to be presented to the Governor and Cabinet as head of the Department of Natural Resources at a meeting scheduled for June 13, 1989. This rule challenge was filed on June 12, 1989, and, therefore, appears to predate adoption. 1/ Therefore, Respondent's argument regarding lack of jurisdiction by the Division of Administrative Hearings must fail.

The second issue raised in Respondent's Motion to Dismiss is whether Petitioners have filed their rule challenge within the required jurisdictional time limit. See, Department of Health and Rehabilitative Services v. Alice P.,

367 So.2d 1045, 1053 (Fla. 1st DCA 1979). Respondent contends the twenty-one day period for filing a challenge under Section 120.54(4) expired on May 5, 1989, (twenty-one days after the April 14 publication of notice of the initial proposed amendments). Petitioners contend that their challenge to the proposed rule was timely filed for purposes of Section 120.54(4) because the petition was filed within twenty-one days of the May 26, 1989 notice published pursuant to

Section 120.54(13)(b) of changes made to the proposed rule as a result of the public hearing. In other words, Petitioners contend that the Section 120.54(13) notice of changes made to the proposed rule as a result of a public hearing created a new 21-day window within which they could file a challenge to the proposed rule under Section 120.54(4). In support of this position, Petitioners point out that the "notice" referred to in Section 120.54(4)(b) is not specifically limited to the initial publication of the proposed rule required by Section 120.54(1) and, therefore, should be read to include a notice of changes published pursuant to Section 120.54(13). However, Section 120.54(13) does not specifically establish a new point of entry for a rule challenge.

A review of the history of the existing statute does not support Petitioner's argument. The establishment of a time frame for filing a challenge under Section 120.54(4) (previously numbered as 120.54(3)) arose with the adoption of the 1974 version of the Administrative Procedures Act in Chapter 74- 310, Laws of Florida. That version of the statute did not include a requirement of publication of notice of modifications made as a result of information provided during a public hearing. The requirement for publication of a notice regarding such modifications was not added to the statute until several years later in Section 2 of Chapter 78-425, Laws of Florida. In adding this new notice requirement, the Legislature did not specifically provide for the creation of a new point of entry under Section 120.54(4). If the legislature had intended to establish a new point of entry, that intention could have been easily reflected in the 1978 changes by including a provision specifically recognizing the right to challenge before adoption any modifications made to the proposed rule as a result of the public hearing. However, it appears that the overriding goal of the rule-making process established by the legislature was to ensure that agencies interpret statutes under their regulatory charge by employing a public rule-making process in which all substantially affected parties have an equal opportunity for their ideas to be considered. In other words, it does not appear that the legislature intended to guarantee all affected persons the right to challenge proposed rules before they take effect. Instead, the statutory scheme focuses on insuring that an opportunity has been provided for meaningful public participation in the rule-making process. There is no dispute in this case that the Petitioners had an opportunity to present their position to the FMFC before the modified proposed amendments were adopted. Thus, the notice of modification published pursuant to 120.54(13) should not be viewed as automatically creating a new point of entry for purposes of challenging the proposed rule under Section 120.54(4). 2/

An agency does not have unlimited power to adopt modifications to proposed rules. Under Section 120.54(13)(b), the agency only has the authority to: (1) withdraw the rule in whole or in part, (2) make such changes as are supported by the record of the public hearings, (3) make technical changes which do not affect the substance of the rule, (4) make changes in response to timely filed written comments, or (5) make changes in response to objections by the Joint Administrative Procedures Committee. Significantly, there is no substantive limitation on changes or modifications that are supported by the record of the public hearing.

Whether modifications to a proposed rule create a new point of entry for purposes of a Section 120.54(4) rule challenge is a subject that has been raised in several cases before the Division of Administrative Hearings. At this point, each of the cases appears to be factually unique and there is no controlling precedent established by the appellate courts. See, Sierra Club v. Department of Environmental Regulation, 11 FALR 114, DOAH Case No. 88-4582R; Florida League of Cities v. Department of Administration, 11 FALR 102, DOAH Case No. 88-2235R

(modifications not supported by the record of the public hearing); Schmitz v. Department of Health and Rehabilitative Services, 11 FALR 1254, DOAH Case No. 88-6359R (challenged rule had already been adopted); Florida Medical Center v. Department of Health and Rehabilitative Services, 11 FALR 3904, DOAH Case No.

88-3970R (modifications to the proposed rule were not supported by the record of the public hearing). While the results are often fact specific, compare Florida Medical Center, supra, with Organized Fishermen of Florida v. Marine Fisheries Commission, 11 FALR 1258, DOAH 88-3821R per curiam affirmed, Case No. 88-2444 (Fla. 1st DCA May 3, 1989), there is apparently no case that has interpreted Section 120.54 as providing a guaranteed right to challenge a modified rule before it goes into effect.

The Respondent relies upon the Organized Fishermen case to support its position that modifications to a proposed rule made as a result of information gathered at a public hearing do not create a new point of entry for purposes of a Section 120.54(4) rule challenge. However, a key factor in that decision was that the initial notice of rule-making published in accordance with the requirements of Section 120.54(1) specifically alerted potentially affected parties that significantly different alternative language would be considered and possibly adopted at the hearing. It does not appear that a similar notice was provided in this case and, therefore, it is necessary to further analyze the statutory scheme.

There are several unique facts in this case which Petitioners contend mandate a different result from that reached in Organized Fishermen. In Petitioners' Response to Respondent's Motion to Dismiss, Petitioners contend they can produce evidence that they were actively involved in discussions with the FMFC regarding the initial proposed rule for over 4 months prior to publication of the initial proposed amendments and had reached an agreement with the FMFC which was embodied in the original form of the proposed rule amendments published in April. There was no indication in the initial publication that the FMFC was going to consider alternative language that would significantly impact upon Petitioners. Thus, Petitioners contend they had no reason or basis to file a challenge to the initial proposed amendments. Petitioners further contend that the proposed modifications were released in printed copy by the FMFC immediately prior to the last speaker at the public hearing and the modifications had been reviewed prior to release by representatives of the wild clam fishermen but not by Petitioners or their representatives. Petitioners argue that an agency should not be permitted to avoid the possibility of a Section 120.54(4) rule challenge on a controversial issue by publishing an innocuous proposed rule and then modifying that rule dramatically such that it has a drastic impact upon individuals who had not been alerted to and thus given an opportunity to challenge the rule before it goes into effect. However, the existing statutory scheme appears to countenance such a result if the amendments proposed by the agency were the result of written comments received or the record of the public hearing.

While Petitioners suggest that the modifications should be viewed as, in essence, a new proposed rule requiring renewed compliance with the notice requirements of Section 120.54(1) (and thereby creating a new point of entry for a Section 120.54 rule challenge), this result is only mandated if the purpose of the statutory scheme is viewed as providing a guaranteed right to challenge any modified rule before its enactment. However, the statute does not specifically provide such a right. Instead, the statute only guarantees an opportunity for public participation and input in the rule-making process. If Petitioners' argument was accepted, it would be necessary to hold an evidentiary hearing to determine whether the "modifications" were so drastically different from the

initial proposed amendments that they should be deemed to constitute a new rule requiring a new point of entry for substantially affected parties for purposes of a Section 120.54 rule challenge. There is no statutory support for introducing this additional delay and uncertainty in the rule-making process

Under the current statutory scheme, Petitioners are guaranteed the right to participate in the rule-making process prior to adoption of rules that substantially impact upon them. If their views are not accepted in the final version of the rules, Petitioners are not without recourse. Petitioners can challenge the adopted rules under Section 120.56, Florida Statutes (1987), or possibly seek judicial review of the final agency action adopting the rule. See City of Key West v. Askew, 324 So.2d 655 (Fla. 1st DCA 1976). 3/

In sum, unlike the petitioners in Organized Fishermen, supra, the Petitioners in this case were purportedly never on notice of the possible alternate course of regulation which the agency was apparently considering even though that ultimate course will dramatically impact upon them and had allegedly been revealed to other interested parties in advance. In other words, Petitioners were never put on notice that "their clear point of entry into the process had arrived." Cf., Organized Fishermen, supra. Nonetheless, the modifications at issue in this case were admittedly supported by the record of the public hearing and, therefore, the FMFC was authorized to modify the initial proposed rules pursuant to Section 120.13 without creating a new point of entry for a Section 120.54(4) rule challenge.

It is, accordingly, ORDERED:

The Motion to Dismiss is GRANTED and the petition is dismissed.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of October 1989.

J. STEPHEN MENTON 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 October 1989.

ENDNOTES

1/ Section 120.54(11)(a) requires a promulgating agency to provide notice of modifications to the Joint Administrative Procedures Committee and to requesting parties prior to filing the rule for adoption. Thus, there is a short window of time during which the rule remains "proposed." During this time period, the Division Of Administrative Hearings continues to have jurisdiction under Section

120.54 to hear a rule challenge which otherwise meets the criteria of that

statute. Cf., Schmitz v. Department of Health and Rehabilitative Services, 11 FALR 1254, DOAH Case No. 88-6359R. If the modifications proposed by the agency do not fit within one of the categories recognized by Section 120.54(13), a Section 120.54 challenge may be appropriate. See Florida League of Cities v.

Department of Administration, 11 FALR 102, DOAH Case No. 88-2235R

2/ Under Section 120.54(11) (a), changes to a proposed rule made as a result of information adduced at a final public hearing do not automatically require advance public notice. However, the statute does provide that if modifications are made, then seven days prior to filing the modified proposed rule with the Secretary of State for adoption, notice of any changes to the proposed rule must be given to the Administrative Procedures Committee and to those individuals who have requested it. There is no dispute that the MFC properly informed the Administrative Procedures Committee of the changes to the proposed rule by memorandum on May 22, 1989.

3/ It should be noted that Petitioner raises certain constitutional infirmities in its challenge to the proposed rules. While those arguments could be resolved in a Section 120.54 challenge to a proposed rule, Petitioner will be unable to obtain relief based upon its constitutional arguments in a Section 120.56 administrative rule challenge. Department of Environmental Regulation v. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977). However, the constitutional issues can be preserved in the administrative process for subsequent judicial review.

COPIES FURNISHED:

David D. Eastman, Esquire Parker, Skelding, Labasky

& Corry

Post Office Box 669 Tallahassee, Florida 32302

Charles Shelfer, Esquire Marine Fisheries Commission 2540 Executive Center Circle W Suite 106

Tallahassee, Florida 32301

Jonathan A. Glogau Assistant Attorney General Special Projects Section 111-36 South Magnolia Drive Tallahassee, Florida 32301

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: 89-003217RP

Orders for Case No: 89-003217RP