STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIGMA INTERNATIONAL, INC., et al. )

)

Petitioners, )

)

vs. ) CASE NO. 92-5663RP

) MARINE FISHERIES COMMISSION, )

)

Respondent. )

)

FINAL ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on October 20, 21 and 22, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Richard S. Brightman, Esquire

C. Allen Culp, Esquire Hopping, Boyd, Green & Sams Post Office Box 6526 Tallahassee, Florida 32314

For Respondent: Jonathan A. Glogau, Esquire

Mary E. Greene, Esquire

Office of the Attorney General Special Projects Section

Plaza Level 01, The Capitol Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether proposed amendments to Rule 46-39.005 adopted by the Marine Fisheries Commission, setting maximum lengths for nets used for the commercial harvesting of mullet, establishing one week alternating closure periods for mullet harvests during the late fall/ early winter roe season, setting a 500 pound per vessel per day harvest limit during the pre-roe season and a one thousand pound limit if two licensed commercial fishermen fish together during the roe season, constitute invalid exercises of delegated legislative authority. The Petitioners assert that the economic impact statement which accompanied the notice of rulemaking is inadequate.

PRELIMINARY STATEMENT

This proceeding challenges the validity of the Marine Fisheries Commission's proposed amendments to Rule 46-39.005. A first iteration of the amendments was published in the Florida Administrative Weekly on August 28, 1992. The amendments restricted net gear to a total length of 600 yards, closed commercial mullet harvesting for the alternating two week periods of October 1-

15, November 1-15, and from December 15 to January 15 of each year; and limited the harvest, landing and possession of mullet to 500 pounds per vessel per day during the pre-roe period from July 1 to September 30 of each year.

The Florida Marine Fisheries Commission conducted a public hearing on these amendments on September 25-26, 1992, in Tampa, Florida. Changes to the text of the proposed amendments were made in response to written comments filed with the Commission and testimony taken before the Commission during the public hearing which occurred before the Commission debated and voted on the amendments. The Marine Fisheries Commission does not actually have the final word on rule adoption. Its rules must be submitted to the Governor and Cabinet for review before they can be filed with the Secretary of State for adoption. Section 370.027(1), Florida Statutes (1991). The Governor and Cabinet may disapprove, but may not amend rules proposed by the Commission. Section 370.027(3)(a), Florida Statutes (1991). Changes to the proposed amendments which had resulted from the comments, testimony, and the Commission's deliberations were published in Volume 18, No. 42 the Florida Administrative Weekly on October 16, 1992, at pages 6221 et seq. In their final form the amendments to Rule 46-39.005 retain the 600 yard net length restriction; the closure season was changed to alternating one week periods of October 1-7 and 15-21, November 1-7 and 15-21,

December 1-7 and 15-21, January 1-7 and 15-21; the trip limits were retained without change during the pre-roe season, but were modified to permit two licensed commercial fisherman to operate during alternating fishing weeks of the roe season from one vessel and harvest one thousand pounds of mullet per vessel per day.

The Petitioners challenge the amendments to the rule as inconsistent with the Legislative restrictions on the Commission's authority found in Sections 370.025, Florida Statutes (1991); they also contend the Commission failed to follow requirements for the preparation of an economic impact statement found in Section 120.54, Florida Statutes (1991), in significant ways which render the amendments invalid.

At the final hearing, the Petitioners called the following as witnesses: Mr. Earnie Mirabella (a commercial fisherman), Russell Nelson, Ph.D. (the Commission's Executive Director), Mr. Roy Williams, (the Commission's Assistant Executive Director), Behzad Mahmoudi, Ph.D. (an expert in fisheries biology), Mr. Robert Palmer (an economist), Mr. Daniel Woodson (a fish processor), Dr.

Brian Rothschild (by pre-filed testimony), and Mr. Thomas J. Murray (expert economist). Exhibits 1-9, portions of Exhibit 11, Exhibit 12, 14 and 15 were accepted into evidence. The Commission was permitted to reserve the right to object to the use of portions of Exhibit 12 to support any finding of fact. The Commission called as witnesses: Dr. Mahmoudi (by eliciting direct testimony from him while he had been called as a witness for Petitioners), Mr. Steven Berkeley (expert in fisheries biology), Mr. Robert Palmer (an economist), Jeffrey Isely, Ph.D. (expert in fisheries biology), and Dr. Russell Nelson (expert in fisheries biology and management). Composite Exhibit 1, which was the administrative record compiled during the rulemaking proceeding (made up of Exhibits 1-28), and Exhibit 30 were accepted into evidence. A transcript of the hearing was filed with the Division of Administrative Hearings on October 26, 1992. The parties agreed that proposed final orders would be filed on November 9, 1992. The parties filed supplemental briefs on January 7, 1993, expressing their views on how the opinion of the Court of Appeal in Florida Marine Fisheries Commission v. Organized Fishermen of Florida, 610 So.2d 92 (Fla. 1st DCA 1992), which upheld a final order of a hearing officer that had invalidated prior rules regulating mullet fishing, may affect the decision in this case.

FINDINGS OF FACT

The Parties

1. Sigma International, Inc., owns and operates a mullet processing, wholesaling and exporting business in Florida. The restrictions embodied in the proposed rules will substantially affect its interests.

   
   

2. Seafood Consumers and Producers Association is a non-profit association of businesses and consumers interested in fishery resources and fish harvesting in Florida and elsewhere. The rules would substantially affect interests of the association and the interests of individual members of the association. Bob Combs Fish Co. are fishermen, a first receiver of fish caught by others, and a fish wholesaler doing business in Florida. The proposed rules would substantially affect its interests. Everglades Fish Corporation are fishermen, are first receivers of fish caught by others, and fish wholesalers doing business in Florida. The proposed rules would substantially affect their interests. Houston Brown is a fisherman who does business in the State of Florida. The proposed rules would substantially affect his interests. Triad Seafood is a first receiver of fish caught by others, and a fish wholesaler which does business in Florida. The proposed rules would substantially affect its interests. Horse Weeks Fish Co. is a first receiver of fish caught by others, and a fish wholesaler which does business in Florida. The proposed rules would substantially affect its interest. A.P. Bell Fish Co. are fishermen, a first receiver of fish caught by others, a wholesaler, retailer, and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interests. SaltWater Enterprises, Inc., are fishermen, a first receiver of fish caught by others, a wholesaler, retailer and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interest. The Fisherman's Market, Inc., is a first receiver of fish caught by others, a wholesaler, retailer and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interest.

   
   

3. The Marine Fisheries Commission (Commission) is legislatively created and assigned to the Department of Natural Resources. It has authority to adopt rules. Sections 370.025, 370.026 and 370.027(1), Florida Statutes (1991). It adopts fishery conservation and management measures which promote the continued health and abundance of marine fisheries resources in Florida. Section 370.025(2)(a) and (c), Florida Statutes (1991).

   
   

   The Fish

   
   

4. Black or striped mullet is a popular food sought for the flesh of the fish and especially for its roe, which is available annually during the autumn spawning season beginning in October. Mullet roe is highly valued by the Japanese, and much of the roe is exported to Japan. Mullet is the most intensively harvested finfish in Florida; in 1989 mullet accounted for 19.3 percent of the state's total finfish catch. Florida is the source for 85 percent of the nation's black mullet catch. Since 1976 the demand for the export of black mullet roe has increased, which has increased fishing pressure on the species' egg bearing females. Roe-bearing fish caught during roe season are about four times as valuable as the fish would be if caught in the pre-roe season. Mullet has a shelf life as a fresh fish of no more than four days due to the oil in its flesh. Although it can be frozen, in the Florida retail market frozen mullet is not considered a desirable food. There is a California

   market for frozen mullet, however, where it is popular with Asians. Since the closures during the roe season proposed in the Commission's rules will be for periods of one week, there could be days when no fresh mullet would be available to Florida consumers.

   
   

   Earlier Regulation of the Black Mullet Fishery - 1989-1992

   
   

5. Black or striped mullet (mulgi cephalus) are regulated by the Commission as a restricted species. Section 370.01 (20), Florida Statutes (1991), and Rule 46-39.001(4), Florida Administrative Code. Size and bag limits are imposed on recreational takings of mullet. Commercial fishermen taking mullet must hold a saltwater products license with a restricted species endorsement. When they sell their catch they must provide a trip ticket to the purchaser of the fish which includes the fisherman's name and license number, the gear used in the catch, the place of the catch, the species caught and the number of pounds of fish caught. This information is then sent by the purchaser to the Department of Natural Resources, and is an important part of the Department's data base used in regulating the fishery.

   
   

6. The Marine Fisheries Commission began a study of black mullet in 1987, and adopted rules restricting commercial black mullet fishing in 1989. Those rules established gear restrictions, amended certain qualifications for licensure to catch mullet in commercial quantities, and set roe season closure periods for mullet fishing. During 15 weekends of the year, the fishery was closed for 36-hour periods. The minimum net size for mesh was set at three inches.

   
   

7. Amendments to the rules in 1990 closed new areas to fishing, set minimum net mesh size which could be used during the roe season at four inches, and prohibited commercial fishermen from using spotter aircraft to locate schools of fish. The weekend closures were extended from 36 to 54 hours, and two more weekends were closed for fishing. In drafting all its management measures, the Commission attempted to make it possible for fishermen to fish year round for mullet, and thus make fresh mullet available to consumers throughout most of the year; See the Purpose and Effect Statement of the rule published at 18 Florida Administrative Weekly at 4931, which reflects this Commission policy.

   
   

8. In 1991 the Commission debated whether additional regulation was necessary for the mullet stock and proposed new rules and amendments to existing rules which were published in Volume 17, No. 32, of the Florida Administrative Weekly on August 9, 1991, at pages 3593 et seq. but, as noted above, the validity of these rules was challenged. In a final order that was issued on December 9, 1991, provisions of those rules were found to be invalid exercises of delegated legislative authority (DOAH Case Nos. 91-5408R and 91-5422R). The District Court of Appeal affirmed that determination in the opinion entered in Florida Marine Fisheries Commission v. Organized Fishermen of Florida, 610 So.2d 92 (Fla. 1st DCA 1992).

   
   

9. Those invalidated rules had their genesis in a decision made by the Commission in February 1991 which set a statewide spawning potential ratio (SPR) for black mullet. The SPR is a measurement tool used by the Commission and by other regulatory groups, such as the Federal Fishery Management Councils, in the regulation of fish stocks. It is a measure of the biomass (essentially the total weight) of those fish capable of reproducing, divided by an estimate of what would have been the total biomass of fish of reproductive age if there were

   no fishing at all in the fishery. The goal the Commission set of maintaining a

   35 percent SPR for black mullet was chosen using the best information available. The goal is a reasonable tool for the Commission to use in assessing the effectiveness of any of its efforts to manage the black mullet population to produce maximum stock abundance. The 35 percent target is the minimum level which could be set to provide adequate management of the stock and avoid the risk of a dramatic reduction in the number of fish available.

   
   

10. The Commission was disappointed that its August 1991 efforts to increase regulation (and in its view, protection) of the mullet population had been turned back through litigation. It credited data on mullet landings showing a continuing decline in the mullet population. This led the Commission to believe that the spawning potential ratio for mullet in the 1991-1992 fishing year had declined to 18-25 percent, well below the target of 35 percent. Review of nine management options and debate at its August 1992 meeting led the Commission to advertise proposed new rules and amendments to existing rules published in Volume 18, No. 35 of the Florida Administrative Weekly at pages 4931 et seq. on August 28, 1992. According to the Purpose and Effect Statement and Summary for these rules the changes proposed to the regulatory regime for black mullet would do six things:

    
    

    1. proposed rule 46-39.0036 would prohibit the recreational harvesting of mullet from October 1 through October 15, from November 1 through November 15, and from December 15 through January 15 each year;

       
       

    2. an exception to the closures would be recognized for possessing cut mullet to be used on boats as bait;

       
       

    3. an amendment was proposed to existing rule 46-39.005 to prohibit the use of gill or trammel nets or beach or haul seine nets longer than 600 yards;

       
       

    4. subsection (4) of existing rule 46-39.005 was deleted, it had closed the fishery to commercial operation during weekends in the roe season;

       
       

    5. a new subsection (5) was proposed to rule 46-39.005, which would close the fishery to commercial harvests for the same periods specified for recreational closures;

       
       

    6. a new subsection (6) was also proposed for rule 46-39.005, which set a limit on commercial harvesting of mullet to 500 pounds of mullet per vessel per day from July 1 through September 30, which is the pre-roe season.

    
    

11. At its meeting of September 25-26, 1992, the Commission conducted a legislative-type hearing under Section 120.54(3), Florida Statutes (1991), for the rules it had noticed for adoption. More than 60 people commented on the proposed new rules and amendments to existing rules. On September 26, 1992, the staff of the Commission made a presentation of options it believed were available to the Commission to achieve increased SPR for black mullet and the Commission deliberated using all the information placed before it.

    
    

12. Based upon the rule making record compiled, the Commission voted to make changes to the text of the rules as they had been published for comment on August 28, 1992. The Commission decided that instead of two week alternating closures of the mullet fishery for 61 days during the roe season (from October 1-15, November 1-15 and December 15-January 15), it would close the fishery for

    56 days using alternating one week periods (from the first through the seventh and fifteen through the twenty-first days of the months of October, November,

    December and January). The proposed 600-yard maximum net length and 500-pound per fisherman trip limit during the pre-roe season remained, but an increased limit of 1,000 pounds per vessel during the roe season was added if two licensed commercial fishermen used a single vessel. These changes were published in Volume 18, No. 42, of the Florida Administrative Weekly, pages 6221 et seq., on October 16, 1992, as a notice of changes to the Commission's proposed rules.

    
    

    DSPOPS Model for Estimating Spawning Potential Ratio

    
    

13. Authorities which manage stocks of pelagic fishes commonly assess the condition of the stock with biological models. Models attempt to account for dynamics of a fishery represented by variables, in an effort to mimic the behavior of the population in its natural state. The models' results provide managers with as accurate an estimate of future fish populations as current science can provide. The choice of a particular model is significantly affected by the data available to be loaded into the model equation. How well any model mimics the natural population necessarily is affected by the accuracy of each of the values used in running the model.

    
    

14. The federal National Marine Fisheries Service uses models to assess the condition of stocks of king mackerel, Spanish mackerel and dolphin. The Florida Marine Fisheries Commission has used similar a model known as GXPOPS 1/ to manage the red drum population, with good results, and another for management of Spanish mackerel, which has been brought back from the point of collapse (i.e., a dramatic change in population from an insufficient number of juveniles reaching adulthood).

    
    

15. Commission staff chose the biological model known by the acronym DSPOPS 2/ to analyze the current spawning potential ratio of the black mullet fishery. The DSPOPS model is rather sophisticated and contains a significant number of input parameters or variables, such as growth rates, age at sexual maturity, observed harvest levels, recruitment and mortality. The value for some of these parameters are relatively well known through biological sampling, such as age, size, sex and maturity. Values for others, such as mortality of black mullet due to fishing, are subject to some debate. There is sufficient data available to use the DSPOPS model. The model can be run using the high and low estimates for input variables, which yields a range for the SPR, based on those runs.

    
    

16. Data the Commission staff used to run the model came from the southwest Florida area. About 75 percent of all mullet landings are made there (especially in the Tampa area), and there is no reason to believe that the dynamics of the black mullet population operate differently there than in the panhandle area or in eastern Florida waters. Catch and effort data for all areas of the state are sufficiently similar to show the fishery is a single unit. Analysis of mullet show Gulf and Atlantic mullet are part of a single gene pool. Moreover, the statute encourages the Commission to manage species populations as a single biological unit. Section 370.025(2)(d), Florida Statutes (1991). The Commission used data only for female mullet, which is appropriate when calculating the spawning potential for a fish where eggs are a limiting factor for the number of fish in a population.

    
    

17. Recruitment is a term that refers to those fish that survive the egg and larval stages and eventually mature into adults which can be harvested with fishing effort. There is a relationship between the number of fish able to spawn and the number of fish that are added or "recruited" into a fishery as the

    result of the spawning, which is known as the spawner recruit relationship. Unfortunately, the spawner recruit relationship cannot be estimated for mullet with enough precision to incorporate it into the model. To account for this, Commission staff ran the model assuming constant recruitment, that is, the assumption was made that there is no relationship between spawning stock and recruitment. This produces an estimate of spawning potential ratio that may be accurate or may be higher than it would be had a spawning recruitment relationship been determined (or assumed). Thus, use of a constant recruitment assumption tends to produce an optimistic assessment of the spawning potential ratio.

    
    

18. The most basic variables used in a biological model designed to predict future fish stock are those for mortality rates. In fisheries science, total mortality is universally represented as the variable "Z." It is equal to the rate of fishing mortality, represented as "F," plus the rate of natural mortality "M." 3/ Thus, the equation is that Z = F + M. This is as basic to fishery science as the equation "debits = credits" is to accounting. It is also significant that under this equation, if any two of the three variables are known, the third can be calculated.

    
    

    Non-Parametric Statistics and Independent Review

    
    

19. Many of the parameters used in the DSPOPS model have threshold values, they are not parameters which would be expected to have a normal or bell-curved type distribution (such as the average age of fish in a population). Threshold values are non-parametric statistics, and there are no confidence intervals or other measures of variation, such as coefficients of variation, associated with them. This does not mean that the expected SPR levels produced by the model lack utility, are unscientific, or are inherently untrustworthy. Other efforts are made to test the correctness of the parameters values used in the model, or in using the model's output. Using the model to estimate a range of SPR for various regulatory regimes is the best way to manage a fishery. It is for this reason that the Department convened an independent review panel to evaluate the values which its staff had loaded into runs of the DSPOPS model, to represent what would happen in the fishery if various management measures were imposed. This group of outside scientists met with the Commission staff on July 9-10, 1992, to review the data and reach a consensus on the appropriate values to be used for all parameters introduced into the model equation. They cross checked data, and evaluated its consistency with published studies. Although Petitioners complain that scientists who testified for them at the Section 120.54(4) final hearing on the 1991 rules were not invited to this meeting, the Commission's explanation for this is persuasive. The scientists invited were independent, had no association with the Commission, DNR or the Petitioners, and had no other prior associations or biases militating against reaching a consensus. The panel concluded that data available showed female SPR was in the range of from 15 percent to 26 percent, with the most likely value being 21 percent or less.

    
    

    F Value Determined by Tag/Recapture Data and Z Using Time Series of this Data

    
    

20. Dr. Behzad Mahmoudi, of the Florida Marine Research Institute, performed a tag/recapture experiment on mullet in southwest Florida in an attempt to determine the F value (fishing mortality) to be used in the DSPOPS biological model. The determination of F can be a problem; for some fish species it is not available.

21. In a few fisheries researchers are assigned to observe and record activity on commercial fishing vessels; there F (fishing mortality) may be calculated by analyzing catch per unit of fishing effort, i.e., the number of pounds of fish landed per hour or per day of fishing. Florida's data gathering through trip tickets does not permit this, since it provides no means to account for the common situation of a fishing trip which yielded no mullet catch. Dr. Mahmoudi's experiment for determining fishing mortality was a good one, which carefully accounted for the biases normally associated with studies designed to estimate F. In a tagging experiment mullet are handled, a smooth plastic filament streamer or tag inserted in a small slit, and then the fish is reintroduced into the waters of the Gulf. These streamers are thin enough to be pulled through the mesh of the crown of fishing caps, where they are sometimes worn by fishermen disinclined to return them to the Commission's researchers, although they are paid $5.00 per tag returned. These tags are then returned to the Florida Marine Research Institute by fishermen or fish processors when tagged fish are caught. When used in conjunction with data on landings of mullet, the proportion of tags returned from among those landed gives an indication of the fishing mortality for the species. The fish were tagged at the beginning of the '89-'90 and '90-'91 seasons, and captured over the following two seasons. Fish tagged in the first year may not be caught until the second year or later.

    
    

22. Dr. Mahmoudi also performed ancillary experiments. He put a sample of tagged fish in pools, and evaluated mortality over time caused by the tagging process itself. He also evaluated tag rejection by monitoring tagged fish placed in pools to determine the proportion of spontaneous tag loss. Lastly, he and associates evaluated the non-return rate for tagged fish commercially caught by going to fish processors, and examining commercial catches made by licensed fishermen. After the fishermen and processors had finished with the fish, and returned all tags that were going to be returned, researchers examined those fish to see how many tags yet remained and had not been removed or returned to the Commission. This permitted calculation of the rate at which tags on fish caught are returned. Through these three ancillary experiments, Dr. Mahmoudi accounted for the major variability likely to be introduced into estimations of F (fishing mortality) based on tag recovery. He did not add a specific adjustment to his F value for any increased predation on tagged fish, for there was no reason to believe that it would be anything other than de minimis. Due to the nature of the tag and the placement of the tags on the fish, it is unlikely that tagged fish were ensnared in nets at any higher rate than untagged fish. It is also significant to remember that the recovery rate for tags is not affected by fishing effort. It is based on the percentage of tags which are returned from among fish caught, and is a proportion of fish caught. The more fishermen fish, the larger the absolute number of tags returned, but if the price of fish falls, and fishermen make fewer fishing trips, the proportion of tags returned does not change, although fewer tags may be returned. The range of values which Dr. Mahmoudi estimated for F based on his tag return data of .88 through 1.13 are quite accurate. Moreover, the numbers are consistent with published studies and confirmed by separate calculations discussed below which are consistent with these F values.

    
    

23. By treating tagged fish as if they were the whole fish population, Dr. Mahmoudi was also able to determine how many tags were returned at different time intervals, and by using this time series data, was able to calculate a value for Z (total mortality) of 1.5. Since he then had values for both F and Z, he was able to calculate the value of M (natural mortality) as .3.

    Independent Calculation of Z Through Catch Curve Analysis

    
    

24. A commercial catch of fish contains individual fish of different ages. When gear such as gill nets are used, small fish escape, but after the fish reach a certain size, all but the biggest fish are caught (big fish may bounce off or swim around gill nets). The range of ages of the fish caught in gill nets mirrors the age distribution in the fish population, after an adjustment for the smallest and largest fish which escape gill net capture. It is possible then to calculate the slope of a line by plotting the age of fish versus the percent of fish of that age in the catch, and by this method to derive a value for Z (total mortality). Dr. Mahmoudi did this. He then went through an additional verification step. He made a catch of fish using a purse seine net which, unlike a gill net, catches all fish regardless of size. He was able to superimpose the catch curve analysis from this purse seine catch over that generated by the catch curve for fish caught with gill nets, and they matched. This gave him two additional independent and consistent estimates of Z, which also were consistent with his Z estimate of 1.5 from the tag/recapture data.

    
    

    Corroboration of Z value by Otolith Size

    
    

25. Mullet have bones in their ear which lay down layers of clear and opaque material creating rings. Counting the number of rings yields a determination of the fish's age. Dr. Mahmoudi counted otolith rings using a large sample of mullet, and he determined the average age of mullet in the fishery was 3.5 to 4 years. This is consistent with the estimates of Z as being 1.5, because use of 1.5 in the equation Z = F + M means that the average age of mullet in the fishery is 3.5 to 4 years old.

    
    

    Independent Calculations of M

    
    

26. Natural mortality, or M, is a significant parameter in the DSPOPS biological model, and it is important to have a good estimate for it. Dr. Mahmoudi used three independent methods to calculate a value for M. The first he used, Pauly's method 4/, is one which can be done with little data, but provides a somewhat weak estimate. It was developed for use in estimating sardine populations, and is based on water temperature readings, and the rate of the growth of fish. It yields an estimate of mortality which is accurate within a range of from one half to two times the actual mortality rate for the fish. The independent review panel determined that it was likely that the estimate for mullet of .58 using Pauly's method would be on the high side, i.e., closer to the twice than to one-half of the actual mortality rate. Dr. Mahmoudi then calculated an M value with a different method, Alagaraja's method 5/, which provides a stronger estimate, but requires knowing the maximum age of the fish attained in an unfished environment. This is somewhat difficult because black mullet have been fished in Florida waters for more than 50 years. Other experiments in the scholarly literature showed mullet have been found that were at least ten old, so an age of at least ten years was appropriate and when used in Alagaraja's method yielded a value for M of .4. The consensus of scientists on the independent review panel was that the maximum age of mullet in an unfished population was probably closer to 15 years of age, and using that value, the Alagaraja's method yielded a M value of .3, which was consistent with the M value generated in the tag/recapture study, and reasonably close to the .4 value computed for M under Alagaraja's method using a maximum age of ten years for mullet. The third method was to calculate M based on the values of F and Z determined from the tag/recapture study.

    Summary of Biological Data

    
    

27. For Z there were two independent estimates derived from catch curve analyses (one using gill nets and the other purse seine net catches) and the determination from otolith rings. There were two separate calculations of M using Pauly's and Alagaraja's methods. F was calculated from the tag/recapture study. Independent estimates for Z and M were derived from Dr. Mahmoudi's tag/recapture data, and all were consistent. There are number of reasons, therefore, to have great confidence in the values for the significant variables Z, F and M used by Dr. Mahmoudi in running the DSPOPS model.

    
    

28. As with the values for other parameters loaded into the DSPOPS model, which have no statistical confidence intervals associated with them, it is not possible to say that the value of 1.5 for Z is correct within plus or minus X thousandths of a point, at the .05 level of confidence, as is commonly done with parametric statistics, such as reports of opinion polling data. For this reason, separate computer runs were done using high and low estimates of significant variables such as Z (total mortality), F (fishing mortality), and M (natural mortality), paying special attention to the estimates likely to produce the highest SPR value.

    
    

    Effects of Cold Fronts on Catchability

    and the Effect of Effort-shifting by Fishermen.

    
    

29. The more cold fronts which occur during the closure season, the more likely it is that a higher proportion of fish will escape, and conversely if many cold fronts occurred during the open weeks, a larger proportion of fish ready to spawn would be caught. Dr. Mahmoudi ran simulations using data from 17 years on the occurrence of cold fronts, and using what is similar to a random number generator, performed a Monte Carlo simulation for likely occurrences of cold fronts based on the 17 years of data. This data was incorporated into the projections of likely SPRs for different regimes.

    
    

    Net Limitations

    
    

30. The Petitioners attack the 600-yard net limitation found in the rule as arbitrary. At the time the rule was being considered, the average net length used in the fishery was about 1,000 yards. The reduction in the maximum net length would have an effect on the catch, but while catch may vary inversely with maximum net length, it does not vary directly with a reduction in net length. Consequently, Dr. Mahmoudi estimated that the 40 percent reduction in the maximum net length would result in an approximately 15 percent reduction in catchability. While this assessment of the effect of the reduction in gear is judgmental rather than statistical, it is reasonable, and not arbitrary, i.e., a judgment unsupported by fact or logic.

    
    

    Regulatory Options

    
    

31. For the option proposed of two-week closures during the roe season of October through January of each year, coupled with the 600-yard net limitation and a 500-pound catch limit per vessel, the estimation of SPR mullet would achieve would be from 30 percent to 39 percent. This was the management option discussed at the Commission's August 1992 meeting which led it to the publication of the first iteration of the rule in the August 28, 1992 edition of the Florida Administrative Weekly.

32. After that publication and before the legislative-type public hearing on the rule which had been noticed for adoption, Dr. Mahmoudi ran the DSPOPS biological model to consider four more management options, three of which were suggested by commercial fishermen or their representatives. The option which suggested the highest SPR range was not necessarily the best option, however, because the Commission also had to consider what the escapement rate would be for roe-bearing mullet during the roe season for that option, and how enforceable that option was likely to be.

    
    

33. The commercial fishermen made it clear at the pubic hearing that they would prefer a one week open/one week closed regime, as opposed to the published text of the rule which would have closed the fishery for alternating two week periods. In addition, the rule was amended to allow two licensed fishermen on a single vessel to catch 1,000 pounds of mullet per boat trip during roe season. Fishermen believed that by fishing together when fish were more valuable they could lower their expenses and thus achieve a higher profit margin during the open weeks.

    
    

34. The Petitioners argue that had the Commission chosen option 1, a 72- hour-per-week closure during roe season, with one 10 day closure, the predicted SPR would be approximately 32.3 percent (with a range of 27.9 to 36.7 percent), while option 4, the proposal for week one/week off closures, would produce an average SPR of 34.2 percent (having a range of 29.8 to 34.2 percent). They see the options as essentially identical in the SPR but would find option 1 much easier to live with, since it would be easier for fish processors to maintain their labor forces with shorter closures. Option 1 would also make it less likely that there would be many periods when no mullet would be available to retail consumers of fresh mullet since with a four-day shelf life, week long closures could produce periods when fresh mullet could not be found and 72-hour closures do not.

    
    

35. The longer the closure period, the more likely closures will coincide with cold fronts; it is closures during these frontal periods which permit the escapement of the most fish. The significant differences between option 1 and option 4 are that under option 1, approximately 20 percent more spawning females would survive the roe season, but under option 4 (which is essentially the option the Commission adopted), the increase in the number of spawning females surviving through the roe season would be 48 percent. Option 4 intuitively is a better management option if the goal is to reach spawning potential ratio of 35 percent, the minimum ratio to sustain stock abundance over time. The Commission did adjust the closure period to help the commercial fishermen by switching the closures periods from a two-week on/two-week off regime to a one-week on/one- week off regime.

    
    

    The Economic and Small Business Impact Statement

    
    

36. As is often the case with legislation, the goals stated in Section 370.025(2), Florida Statutes (1991), can be harmonized, but only with some difficulty. Section 370.025(2)(b) requires the Commission to base its conservation and management measures upon "the best information available, including biological, sociological, economic and other information deemed relevant by the Commission." Section 370.025(2)(c), Florida Statutes, requires that those measures "shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis." The Petitioners interpret this to require the Commission to achieve its biological goals with the least possible negative impacts on the economics or social conditions in the fishery. This is simply not what the

    statute says. No doubt those regulated would hope that the Legislature would require the least possible impact on them. But what was enacted was the mandate that the Commission's primary goal is to insure the continuing health and abundance of the species, and after doing so, then to permit reasonable quantities of annual harvest which can be sustained over time.

    
    

37. The economic impact statement (EIS) was prepared by an economist, using data from a variety of sources. The statement itself is 16 pages long, it contains three pages of references, five figures to illustrate points, and six pages of tables of data to support its conclusions. Much of the important information was derived from a 1989 study published by the Institute of Food and Agriculture Science at the University of Florida by Robert Degner and others entitled "An Analysis of Potential Regulatory Changes on the Economic Structure of the Eastern Gulf of Mexico Finfish Industry Centered in Florida" (Reference 11). Section 3 of the EIS estimates the economic benefits and costs to persons directly affected by the proposed amendments. It analyzes who are the persons directly affected (Section 3.20); the costs and benefits of having no regulation, of maintaining current regulations, or of imposing the new regulations published in the August 28, 1992 edition of the Florida Administrative Weekly (Section 3.30); the result of changes in net lengths (Section 3.40); the result of the seasonal closures (Section 3.50), and of trip limits (Section 3.60). It contains as well an analysis of the impact of the proposed rules on competition in the open market for employment in Section 4.00, a small business impact statement in Section 5.00, and an analysis of alternatives in Section 6.00. Section 7.00 evaluates costs to the agency and to local governments. Section 8.00 describes the data and methods used by the Commission in making its estimates.

    
    

38. The Petitioners presented testimony at final hearing of an economist that many of the views expressed in the economic impact statement are misinterpretations of economic data or are in error. It is essential to remember that the purpose of rulemaking is not to produce assessments of potential economic impact which can withstand the intense scrutiny of a Ph.D. dissertation. Rather, the EIS is required to insure that the agency considers each of the topics required in the statutory economic impact analysis before settling on a policy which will be embodied in its rule, and to give affected persons the opportunity to bring to the attention of the Commission information which could lead to other regulatory choices, if the Commission is persuaded by that economic evidence or argument.

    
    

39. Basically, Mr. Murray's testimony at final hearing argued that the Commission's economic impact analysis focused on macro-economic results of the proposed regulations, but not enough on micro-economic results, that is, impacts on individual households and business (Tr. 458). The EIS concentrated on such things as estimates of total dollar losses caused by the regulation proposed.

    In Section 3.20 the EIS defines the persons directly affected by the rules as "those engaged in the directed harvest of mullet for commercial purposes;" and commercial harvesters (fishermen) were estimated to be between 455 and 3,150 persons, based on estimates in two sources (EIS at 5). The fishermen generally work alone, as two-man crews, and in a few instances in six to eight fishermen groups. These estimates of those directly affected appear to have an adequate basis. While a broader number of people will feel the pinch of the rule (for instance consumers wishing to buy fresh mullet at retail) they are indirectly rather than directly affected, since there is no prohibition against possession of mullet purchased at retail for home consumption during closure periods. The statute requires the analysis of the effect on those persons who will be prevented from harvesting mullet during closure periods and the EIS is not

    deficient for limiting its analysis to those whose actions would be directly regulated by the Commission.

    
    

40. The section of the EIS dealing with the impact on competition and the open market for employment acknowledged that the rule would have seasonal affects on employment and the incomes of persons in roe mullet fishing and processing businesses (EIS Section 4.00 at 9).

    
    

41. Most all of the fishermen are small businesses, so there is no effective way to tier the rules to impose lesser restrictions on small businessmen and ultimately achieve the impact the Commission intends to achieve. If small businesses were exempted, no regulation could be effective.

    
    

42. EIS has an analysis of the effect on the standing stock of fish and the dollar value of that stock under four scenarios, (1) under equilibrium conditions with no regulation, (2) the then current weekend closure and net size regulations, (3) under the proposed rule as published and (4) under the assumption that the rule would result in an increased recruitment to the fishing stock of an additional 10 percent. The dollar value for the fish used in the these evaluations is probably inappropriate (the value is $6.70 for each fish, which is the ecological value the Department of Environmental Regulation was considering establishing for fish killed through violations of ecologic regulations). What is significant is the comparison of the increase in standing stock in each scenario, as well as the dollar value ascribed to that stock. Commissioners, legislators, or anyone else could interpret the dollar value by making different dollar assumptions for the stocks levels projected. Mr. Murray's written comments pointed out to the Commission that a better value might be 60 per pound. The EIS does provide a means of comparing the benefits of not adopting the rule to the benefits of adopting the rule, at least as far as an increase in the size of the fish stock is concerned.

    
    

43. Proper notice of the proposed rule was sent to the Director of Economic Development, the Bureau Chief of Minority Business, and the Small and Minority Business Advocate, as well as to the Joint Administrative Procedure Committee. The Marine Fisheries Commission received neither a response nor an objection from any of these agencies. The Commission amended the proposed rules in significant ways in an attempt to relieve the burdens which the fishermen argued they would suffer if the rules were adopted with no changes. The one week on/one week off closure periods were substituted for the two week closure periods originally proposed, and the trip limit was amended to permit two licensed fishermen to fish in a single boat and bring in 1,000 pounds of fish during the roe season. The agency thus seriously considered alternatives to achieve their management goals while ameliorating the economic impact on those regulated. This shows that the economic information contained in the economic impact statement was seriously considered by the Commissioners.

    
    

44. The only economic objection actually voiced to the Commission on September 25, 1992, during public testimony by Mr. Murray was that the EIS did not ascribe sufficient value to mullet flesh taken during roe season, but concentrated on the value of the roe. He informed the Commission that for some sellers, fresh mullet flesh was 80 percent of their sales, and that two week closures could put them out of business. (Ex. 12, at 57-58). This error in the EIS was remedied by Mr. Murray's testimony.

    CONCLUSIONS OF LAW

    
    

45. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.54(4), Florida Statutes.

    
    

    Consistency with Legislative Standards

    
    

46. To prevail, Petitioners must demonstrate that the proposed rule is an invalid exercise of delegated legislative authority. Florida Marine Fisheries Commission v. Organized Fishermen of Florida, 610 So.2d 92 (Fla. 1st DCA 1992). An invalid exercise of delegated legislative authority is defined in this way by Section 120.52(8), Florida Statutes:

    
    

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

    legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

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

    2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

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

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

    5. The rule is arbitrary or capricious.

       
       

       Petitioners allege a violation of subsection (a) because they believe the economic impact statement is inadequate, and of subsections (b) and (e) based on their challenges to the estimates of SPR which the new rules should add to the mullet population.

       
       

47. The Commission's authority to adopt the proposed rule is found in Section 370.027, Florida Statutes, which grants the following power to the Commission:

    
    

    1. Pursuant to the policy and standards in

       s. 370.25, the Marine Fisheries Commission is delegated full rulemaking authority over marine life . . .

    2. Exclusive rulemaking authority in the following subject matter areas relating to marine life . . . is vested in the commission

    . . . :

    1. Gear specifications;

    2. Prohibited gear;

    3. Bag limits;

    4. Size limits;

    5. Species that may not be sold;

    6. Protected species;

    7. Closed areas, except for public health purposes;

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

    9. Seasons; and

    10. Special considerations relating to egg bearing females.

    
    

48. The final iteration of the rule amendments, based on the testimony at the public hearing, established a one week on, one week off closure during the October to January roe season. This falls within the Commission's authority to designate seasons under Section 370.027(2)(i). The 600-foot net limitation is a gear specification authorized under Section 370.027(2)(a) and the 500-pound trip limit is a bag limit allowed under Section 370.027(2)(c), as is the proviso that two licensed fishermen fishing on one boat can land a total of 1000 pounds of mullet during roe season. Imposition of greater catch restrictions applicable during the roe season is consistent with the authority conferred in Section 370.027(2)(j) to give special consideration to egg bearing females. The Legislature delegated the Commission the power to adopt these types of rules in Section 370.027, Florida Statutes. The rules at issue do not enlarge or contravene the Commission's rulemaking authority. See Marine Fisheries Commission v. Organized Fishermen of Florida, 503 So.2d 935 (Fla. 1st DCA), rev. den., 511 So.2d 999 (Fla. 1987).

    
    

49. The Commission's broad rulemaking authority established in section

    1. is limited by the broad policy declaration set out in Section 370.025, Florida Statutes. Marine Fisheries Commission v. Organized Fishermen of Florida, 503 So.2d at 938. That section provides:

       
       

       1. The legislature hereby declares the policy of the state to be management and preservation of its renewable marine fishery resources, based on 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 of the people of this state for present and future generations.

       2. All rules relating to saltwater fisheries adopted by the department pursuant to this chapter or adopted by the Marine Fisheries Commission and approved by the Governor and Cabinet as head of the department shall be consistent with the following standards:

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

          2. Conservation and management measures shall be based on the best information

             available, including biological, socio logical, 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, corpora tion, or entity acquires an excessive share of such privileges.

          8. Federal fishery management plans and fishery management plans of other states or interstate commissions should be considered when developing state marine fishery management plans. Inconsistencies should be avoided unless it is determined that it is in the best interest of the fisheries or residents of this state to be inconsistent.

    
    

50. The challenged rules do not exceed the Commission's rulemaking authority, and are consistent with the legislative policies.

    
    

    1. Optimum sustained benefits, Section 270.025(1), Florida Statutes,--The Commission established a reasonable level of spawning potential ratio for mullet to prevent overfishing which could result in collapse of the mullet stock. Regulation is not statutorily limited to that necessary to stave off a collapse. A 35 percent SPR does not destroy the economic potential of the commercial mullet fishery; rather it maintains it, along with an opportunity for recreational fishing. Commercial fishermen and fish processors have a natural interest in maximizing the short term commercial harvest, but low levels of SPR can have negative impacts on other fishes and birds which use mullet as prey, and ultimately on the fishermen if the mullet stock should collapse. The rule represents a reasonable balancing of competing interests, and allows for the year round availability of fresh mullet for consumers.

       
       

    2. Paramount concern with continuing health and abundance, Section 370.025(2)(a), Florida Statutes--The legislature has assigned the continuing health and abundance of the state's fisheries as the paramount concern of the Commission. The Commission's target of 35 percent SPR is a safe level, which will protect the stock from recruitment failure and allow it to compensate for any adverse conditions, such as poor years of recruitment of new fish into the fish stock.

       
       

    3. Using the best information available, Section 370.025(2)(b), Florida Statutes--In evaluating the current status of the mullet stock and the effect of various management alternatives, the Commission relied upon biological data from Dr. Mahmoudi of the Florida Marine Research Institute. The input parameters used in the DSPOPS biological model were carefully determined through experimentation and by comparison with other published estimates. The estimates of variables such as those obtained for F and Z with methods such as the

       tag/recapture study, catch curve analysis, counting otolith rings, and estimation of M with Pauly's and Alagaraja's methods were consistent with each other, and with known information about the fishery. The estimates of Z (total mortality) equaled the sum of F (fishing mortality) and M (natural mortality). The values experimentally determined were consistent with the known average age of fish in the fishery, 3.5 - 4 years. The Commission staff assembled a peer review group comprised of disinterested experts; their consensus was that the choices of inputs used by the Commission staff for the SPR estimates were appropriate. The results of the biological modeling which indicate a need for further regulation to reach the 35 percent SPR target is grounded in the best biologic information available. With regard to the EIS, the data and analysis contained in it largely come from the University of Florida study and independent surveys; no better information is available to aid the Commission in its decision-making. It must be borne in mind that the purpose of rulemaking proceedings is to adopt rules, not to conduct economic analyses. It is reasonable to expect the Commission to conduct independent research to estimate values of Z, F and M, for that is its area of expertise. It is not staffed or equipped to conduct micro-economic research, and the information available for use in an EIS is likely to be of a macro-economic nature.

       
       

    4. Reasonable means and quantities of harvest, Section 370.025(2)(c), Florida Statutes--The rules are designed to allow increased mullet escapement during cold fronts occurring during roe season to increase the spawning stock, while still allowing year round and seasonal fishermen an opportunity for commercial catches. The Commission rejected the method of management obviously best designed to increase mullet stock--total roe season closure--in the attempt to balance the needs of the fishermen and fish processors, consumers of fresh mullet, and the need to maintain the species at healthy levels. The restrictions will result in an initial reduction in landings, but the increase in SPR over a period of years will result in increased levels of long-term sustained yield.

       
       

    5. Fair and equitable, Section 370.025(2)(g), Florida Statutes--The proposed rules cause a reduction in harvest to permit stock recovery. It preserves access to those who fish in roe-season only and to year round commercial mullet fishermen, as well as to recreational fishermen. The rule treats all participants in this fishery evenhandedly. The Commission's rules are not an attempt to run the commercial fishermen out of this fishery and reserve it to the recreational fishermen. Some significant roe season closures are necessary in order to allow for recovery of the spawning stock. Stock recovery will benefit the commercial fishermen by allowing continued commercial harvest and by guaranteeing a future harvest, although it will cause significant financial hardship to fishermen who currently are just able to make a living in the current regulatory setting.

    
    

    The Rules are not Arbitrary and Capricious

    
    

51. To prove that these rules are arbitrary and capricious, Petitioners must demonstrate that they lack any rational bases; this standard of review is highly deferential to the agency's decision embodied in the rules' text. Florida League of Cities v. Department of Environmental Regulation, 603 So.2d 1363, 1369 (Fla. 1st DCA 1992). These rules were developed over a substantial period of time, based on scientific studies by Dr. Mahmoudi of the Florida Marine Research Institute and the Marine Fisheries Commission. A group of scientists with no relationship with the Commission discussed the alternatives and parameters used in the Commission's biological modeling, and reached consensus that the specific parameters and the model were being used

    appropriately. Information and criticism was presented to the Commission by Petitioners' experts in writing and in oral testimony at the public hearing. The rule adopted after the final public hearing resulted from critical analysis by qualified scientists and extensive discussion by the Commission, based on meaningful public input. Changes were made to the text of the rule as first published, by going to one week rather than two week closures and allowing two licensed fishermen to fish together, in an attempt to accommodate the needs of

    fishermen. This rule is based on the best information available and on fact and logic; it is not arbitrary or capricious agency action.

    
    

    The Commission Followed the Applicable Rulemaking Procedures

    
    

52. Section 120.54(3)(b), Florida Statutes, requires the Commission to notify the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce of the impact of the rule on small businesses. The Commission only has a statutory duty to act when a suggestion is received from one of these advocates, Section 120.54(3)(b) 2., 3., Florida Statutes. None was received for this rule. The Commission fully complied with this rulemaking requirement.

    
    

53. Section 120.54(2)(a), Florida Statutes, as amended by Chapter 92-166, Laws of Florida, requires the Commission to consider certain specified methods for reducing the disproportionate impact of rules on small businesses. Virtually all of the fishermen who will be directly affected by the gear specifications, closure periods and trip limits in the rule are small

    businesses. The alternatives listed in the statute are unavailable here because there is no disproportionate impact on small business--they are the business entities which "contribute significantly to the problem the rule is designed to regulate," Section 120.54(2)(a).

    
    

54. Petitioners argue that the EIS was inadequate and that the inadequacy impaired the fairness of the rulemaking proceedings. There is no proof in the record to show that the Commission failed either (1) to adhere to the procedure for preparation of an EIS or (2) to consider information submitted to it regarding specific concerns about the EIS. Chapter 92-166 [amending Section 120.54(2)(d)] narrowed the grounds for invalidation of an EIS to these two bases.

    
    

55. The EIS prepared by the Commission addressed all statutory requirements. Florida League of Cities v. DER, 603 So.2d 1363, 1371 (Fla. 1st DCA 1992) (EIS is sufficient if it addresses all areas required by section 120.54(2)(b); it is not necessary for the agency to speculate on estimates which are difficult to predict). Although the estimates found in the EIS may be subject to some debate, the Commission's EIS met all the procedural requirements of section 120.54(2)(c), as amended by Chapter 92-166, Laws of Florida. The failure to estimate in the EIS a value for the fresh mullet flesh fishermen or processors would have to forego during the closure periods did not impair the fairness of the rulemaking proceeding or the correctness of the Commission's decision. Florida Waterworks Assoc. v. Florida Public Service Comm., 473 So.2d

    237 (Fla. 1st DCA 1985), rev. den.,486 So.2d 596 (Fla. 1986); Brewster Phosphates v. DER, 444 So.2d 483 (Fla. 1st DCA 1984); Department of Insurance

    v. Insurance Service Office, 434 So.2d 908 (Fla. 1st DCA 1983); Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2nd DCA 1979).

56. Petitioners complain that because the Commission made changes to the text of the rules noticed for comment on August 28, 1992, based on public testimony and written comment received on or before the time the final public hearing was held on September 25, 1992, a new EIS analyzing those changes is required in order for the rule, as adopted, to be valid. No text in Section

    120.54 requires the preparation of a new EIS when a rule is modified at a final public hearing held pursuant to Section 120.54(3), Florida Statutes. Section 120.54(13)(b) states the procedural requirements for an agency to modify proposed rules based on information received at public hearings. They do not include redrafting of the EIS. The EIS prepared when the notice of rulemaking was published on August 28, 1992, fulfilled its function, i.e., to promote agency introspection, insure an accurate and comprehensive analysis of economic factors (although economists can always debate the "accuracy" of assumptions made in this or in any EIS), focus attention on key considerations, and thus facilitate informed decision making. Cataract Surgery Center v. Health Care Cost Containment Board, 581 So.2d 1359, 1363 (Fla. 1st DCA 1991); Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937, 940 (Fla. 1st DCA 1983). See also 1 England and Levison, Florida Administrative Practice Manual, Section 9.09 (1992). To the extent the final order in Waste Management of Florida, Inc. v. Department of Environmental Regulation 12 FALR 2522 (DOAH 1990), suggests otherwise, I believe the decision fails to focus on the statutory requirements for making changes to proposed rules based on rulemaking hearings found in Section 120.54(13)(b), and is probably inconsistent with the 1992 amendment to Section 120.54(2)(d) made in Chapter 92-166, Laws of Florida, which limits challenges based on an EIS to those specifically raised during the rulemaking proceeding.

    
    

57. Petitioners argued that the Commission's appeal to the First District Court of Appeal, concerning legal issues arising out of last year's rule challenge of related mullet regulations, estops the Commission from defending the present rule challenge proceeding. These proposed rules are based on the additional DSPOPS runs done after the data was reviewed by the independent panel of scientists in July 1992, not the information used by the Commission in adopting the 1991 rules. These changes in factual basis, i.e., the new rulemaking record which undergirds these rules, allow these proposed rules to stand on their own. The validity of the 1991 rules could only be assessed based on the rulemaking record assembled in that case. This rulemaking record is adequate.

    
    

    Public Access

    
    

58. There was no public notice given before the three independent fisheries biology experts met with Dr. Mahmoudi at the request of the Commission to review the assumptions and parameters he used in the stock assessment runs for the DSPOPS model. Petitioners allege the meeting deprived them of due process. Amended Petition, para. 8(k) and 9(l). No statute requires public notice or an opportunity for public participation in that type of meeting with Commission staff. Petitioners had the opportunity to assess the Mahmoudi data and present their criticism of it to the Commission in written comments or in testimony at the hearing held pursuant to Section 120.54(3), Florida Statutes, on September 25, 1992, in Tampa. Petitioners' procedural and substantive due process rights were not violated by the Commission's procedure.

    Equal Protection

    
    

59. Petitioners assert in paragraph 8(g) of their Amended Petition that the rule is invalid because it discriminates against some Florida citizens to the advantage of citizens of other states. Florida has no jurisdiction over fishermen who leave from another state's ports, fish in federal waters, and return to ports out of Florida. When the state regulates everyone equally within its jurisdiction, that action is not invalid, Marine Fisheries Commission

v. Organized Fishermen of Florida, 503 So.2d 935, 939 (Fla. 1st DCA), rev. den.,

511 So.2d 999 (Fla. 1987), nor is it a violation of equal protection rights, New York Transit Authority v. Beazer, 440 U.S. 568, 587 (1979). Even legislative classifications which applied different seasons or gear requirements to different fresh waters, were held not to unfairly discriminate between fishermen in the various areas of the state. State ex rel. Oglesby v. Hand, 119 So. 376,

379 (Fla. 1928). If these intra-state differences are constitutional, regulation of all those who fish in Florida waters is constitutional.

CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that Petitioner's Motion For Summary Final Order is denied,

proposed rule 46-39.005 is valid, and the Amended Petition challenging its validity is dismissed.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 3rd day of June 1993.

WILLIAM R. DORSEY, JR.

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 3rd day of June 1993.

ENDNOTES

1/ Generalized Exploited Population Simulation.

2/ Discrete Stochastic Population Simulation Model.

3/ Sometimes the additional mortality factor "X" is introduced, which represents mortality from unknown causes. This can be significant if there is a great deal of mortality other than that which can be ascribed to fishing mortality for that population. Here, because the amount of X was less than 10 percent of the amount computed for F, it did not need to be separately calculated or introduced into the equation.

4/ The equation describes M as a function of K, L, and ambient temperature (T), so that M = 0.8 * EXP[-0.0152-0.279*1n L +0.6543*1n K + 0.463* 1n T].

5/ Alagaraja's method is based on the mathematical relationship between natural mortality and longevity. M = -1n (0.01)/ T(m), where T(m) is maximum age and M is the natural morality correspondency to a 1 percent survival.

APPENDIX TO FINAL ORDER

Findings of fact proposed by Petitioners:

1. Adopted in Finding of Fact 1. 2-10. Adopted in Finding of Fact 2.

1. Adopted in Finding of Fact 3.

2. Rejected as a conclusion of law.

3. Generally adopted in Finding of Fact 6.

4. Adopted in Finding of Fact 6.

1. Adopted in Finding of Fact 7.

2. & 17. Adopted in Finding of Fact 8.

1. Adopted in Finding of Fact 10.

2. Adopted in Finding of Fact 10.

3. Rejected as unnecessary.

4. Adopted in Finding of Fact 11.

5. Adopted in Finding of Fact 12, but the 1000 pound limit applies to the roe season.

6. Adopted in Finding of Fact 13.

7. Adopted in Findings of Fact 9 and 15.

8. Adopted in Finding of Fact 13, except for the final sentence concerning natural mortality which is discussed in Findings of Fact 26 and 27.

9. Rejected for the reasons given in Findings of Fact 19 and 28, because the statistics are non-parametric.

10. Rejected because it attempts to invalidate, as a matter of law, non-parametric statistics, which is unreasonable.

11. Generally adopted in Finding of Fact 19.

12. Discussed in Finding of Fact 19, where the reasons for the choice of the scientists invited is explained.

13. Rejected, any model will mimic the real world imperfectly and that imperfection is no reason to characterize the model's results as arbitrary. The absence of a measure of inaccuracy in the results of the model is inherent in the use of non-parametric statistics.

14. Rejected for the reasons stated in Finding of Fact 16.

15. Rejected, the tagging began in 1989, but the study was done later. It was not unreasonable for the Commission to proceed with analysis of DSPOPS modeling based on data from 1989-90 and 1990-91, which was the best data available.

16. Rejected because the trip ticket data is an insufficient means for evaluating the fishery, see Finding of Fact 10.

17. Rejected for the reasons stated in Finding of Fact 21.

18. Rejected because there is insufficient reason to believe there are significant variations in the different regions of the state, especially when the Tampa Bay area accounts for approximately 75 percent of mullet landings, and the data used comes from Tampa Bay. See Findings of Fact 10, 16 and 21.

19. Rejected for the reasons stated for rejecting Finding of Fact 35.

20. Rejected for the reasons stated in Finding of Fact 17.

21. Rejected for the reasons stated in Finding of Fact 17.

22. Rejected because the constant recruitment assumption provides a high estimate of SPR, and there simply is no way, currently, to determine the stock/recruitment relationship. What was done was based on the best information available.

23. Rejected for the reasons stated for rejecting Finding of Fact 39.

24. Generally adopted in Finding of Fact 32.

25. Rejected for the reasons stated in Finding of Fact 30, the assumption on catchability is reasonable, even though not statistically based. It does not render the entire SPR analysis for the various regulatory options useless.

26. Rejected as a recitation of evidence.

27. Generally adopted in Findings of Fact 32 and 34.

28. Discussed in Finding of Fact 34.

29. Discussed in Findings of Fact 34 and 35. The Commission is not required to select the option imposing the least burden on commercial fishermen.

47 & 48. Rejected as conclusions of law.

49. Rejected as unnecessary, the statement of the Executive Director that the Commission must regulate in a manner providing the least possible negative impact on economics is simply inconsistent with the law.

50-53. Rejected as a conclusion of law.

1. Rejected as argument.

2. Rejected for the reasons stated in Finding of Fact 41, it is not possible to tier rules which are directed specifically to small businesses.

3. Rejected as inconsistent with the provisions of Section 120.54(13)(b), which does not state that a new EIS must be prepared if a change is made to the text of rules noticed for an adoption hearing under Section 120.54(3)(a).

4. Rejected for the reasons stated in Finding of Fact 39.

5. Rejected because the EIS did consider impact on competition in the open market for employment. It does not require an analysis of competition for fish among fishermen who are self employed. Nor does the law require the micro-economic analysis this finding implies.

6. Rejected because the EIS need not make projections on difficult matters such as possible displacement of Florida mullet suppliers, something which is essentially unknowable.

7. Provisions of Section 120.54(2)(c) do not demand analysis of all possible options.

8. Rejected for the reasons given for rejecting Finding of Fact 60, other options were rejected because they allowed lower escapement.

9. Rejected for the reasons given for rejecting Finding of Fact 60.

10. Rejected for the reasons stated in Finding of Fact 39.

11. Rejected because micro-economic analysis is not required.

12. Rejected because even if the estimates are imperfect, these failures do not impair the fairness of the rulemaking proceeding. Obviously, revenues from mullet roe export sales must suffer if the purpose of the rule is to protect breeding fish, and therefore reduce the roe catch.

13. While the EIS may under value the revenue loss from the roe export market, this does not demonstrate that the fairness of the rulemaking proceeding is impaired. See the reasons for rejecting Finding of Fact 65.

14. Rejected because there are different reasons for making different assumptions in the EIS and in DSPOPS. There is no basis for choosing a particular stock-recruitment relationship in the DSPOPS model, but if the regulations are successful in increasing escapement of mullet by 48 percent, it is not unreasonable to hope for a 10 percent increase in mullet stock as the result of the regulations, and to use this in assessing the economic affect of the regulation.

15. Discussed in Finding of Fact 42.

16. Rejected because it, essentially, returns to the issue of micro-economic analysis, which, while useful, is not required.

17. Rejected because there will necessarily be some price flexibility due to the more limited supply of mullet, at least in the short term. Long term projections are treacherous, and can be avoided.

18. Rejected because there is no requirement that the sociological and economic consequences of every possible management option, or even of all five management options up for discussion, be provided. The EIS was based upon the text of the rule proposed, which is what the statute requires, and options were discussed in Section 6.00.

Rulings of findings proposed by Respondent:

1. Adopted in Finding of Fact 3.

2-3. Rejected as unnecessary.

4. Implicit in Finding of Fact 9.

5-6. Adopted in Finding of Fact 16.

1. Rejected as a conclusion of law.

2. Adopted in Finding of Fact 13.

3. Adopted in Finding of Fact 9.

4. Adopted in Finding of Fact 7.

5. Adopted in Finding of Fact 9.

6. Adopted in Finding of Fact 14. 13-16. Adopted in Finding of Fact 9.

17. Adopted in Finding of Fact 7. 18-20. Adopted in Finding of Fact 21.

1. Implicit in Findings of Fact 13 and 15.

2. Adopted in Finding of Fact 10.

3. Adopted in Findings of Fact 19 and 29.

4. Adopted in Finding of Fact 20. 25-27. Adopted in Finding of Fact 10.

1. Adopted in Finding of Fact 15.

2. Adopted in Finding of Fact 13.

3. Adopted in Findings of Fact 13 and 15.

4. Adopted in Finding of Fact 15.

5. Adopted in Finding of Fact 13.

6. Rejected as unnecessary.

7. Adopted in Finding of Fact 15. 35-37. Adopted in Finding of Fact 16.

1. Adopted in Finding of Fact 15.

2. Adopted in Findings of Fact 19 and 28.

3. Adopted in Finding of Fact 28.

4. Adopted in Finding of Fact 15. 42-48. Adopted in Finding of Fact 17. 49-51. Adopted in Finding of Fact 18.

1. Adopted in Finding of Fact 27.

2. Adopted in Finding of Fact 21. 54-57. Adopted in Finding of Fact 16. 58-60. Adopted in Finding of Fact 22.

61 & 62. Rejected as unnecessary, although it is true that Dr. Mahmoudi's tag/recapture study accounted for gear selectivity because the fish caught had been caught with the gear authorized by rule.

63 & 64. Adopted in Finding of Fact 22.

65. Adopted in Finding of Fact 27. 66-73. Adopted in Finding of Fact 26.

1. Adopted in Finding of Fact 27.

2. Adopted in Findings of Fact 23 and 24.

76 & 77. Adopted in Finding of Fact 24.

1. Adopted in Finding of Fact 25.

2. Adopted in Finding of Fact 27.

3. Adopted in Findings of Fact 23 and 25.

81 & 82. Adopted in Finding of Fact 25.

1. Rejected as unnecessary.

2. Adopted in Finding of Fact 26. 85-93. Adopted in Finding of Fact 19.

94. Adopted in Findings of Fact 28 and 29. 95-98. Adopted in Finding of Fact 29.

99-102. Adopted in Finding of Fact 10.

103. Rejected as unnecessary.

104 & 105. Adopted in Finding of Fact 32.

1. Rejected as unnecessary.

2. Adopted in Finding of Fact 11.

COPIES FURNISHED:

Richard S. Brightman, Esquire

C. Allen Culp, Esquire Hopping, Boyd, Green & Sams

123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314

Jonathan A. Glogau, Esquire Mary E. Greene, Esquire

Office of the Attorney General Special Projects Section

PL-01, The Capitol Tallahassee, Florida 32399

Russell S. Nelson, Executive Director Marine Fisheries Commission

Suite 105

2540 Executive Center Circle W. Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Charles Shelfer, General Counsel Marine Fisheries Commission

2540 Executive Center Circle West 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: 92-005663RP

Orders for Case No: 92-005663RP