The Issue The central issue in this case is whether Petitioner is entitled to the renewal of its application for a wholesale dealer's license for its Monroe County license (WD 000988). The issues of discipline against the Monroe license and denial of the renewal of its Dade license (WD 000008) are addressed in Case No. 86-1470.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearings I make the following Findings of Fact: On January 9, 1986, Didi's Seafood Corporation pled guilty in federal court to a crime constituting a violation of Section 370.14(2)(a)(1), Florida Statutes and Title 16, U.S. Code Sections 3372(a)(2)(A) and 3373(d)(1)(B) which is known as the Lacy Act. Respondent was then convicted as charged for the offense of knowingly transporting with the intent to sell and offer for sale, and knowingly selling, in interstate commerce, approximately 400 pounds of undersized spiny lobster tails with a market value in excess of $350.00, knowing that said spiny lobster tails were possessed in violation of the law. Respondent was ordered to pay a fine of $1000.00. Didi's Seafood Corporation has been in business since 1973. Each year prior to January, 1986, Respondent had successfully renewed its wholesale dealer's licenses for Dade County (WD 000008) and Monroe County (WD 000988). The licenses did not run on the calendar year, but expired on June 30 of each year. The Monroe license (WD 000988) therefore expired on June 30; 1986. The Dade license (WD 000008) was denied renewal on April 7, 1986 and is the subject matter of a separate proceeding. On June 29, 1986, Ernesto Pichardo, the plant manager for Respondent's Monroe County business, executed an affidavit as to the wholesale dealer's law abiding reputation and attempted to renew the Monroe license. The renewal was denied based upon the conviction described in Finding of Fact paragraph 1. Any criminal acts which may have occurred took place in connection with the Dade County license (WD 000008). There is no evidence to suggest that either Ernesto Pichardo or any other person connected with Respondent's Monroe County business has been arrested or convicted of any crime. Didi's Seafood Corporation pled guilty to the federal charges described in Finding of Fact paragraph 1 to avoid the time and cost of continuing the defense of the violations. Mr. Suarez denied knowingly receiving undersized lobster tails. The lobster tails were from Nicaragua and were in transit when seized. Because about 10,000 pounds of lobster tails were seized and mixed, frozen, it was impossible to determine if any of the tails seized at Didi's plant were undersized. Respondent received payment for a portion of the alleged undersized lobsters tails since some percentage, still unknown to the parties, was of legal size. The exact number, if any, of undersized lobsters tails was not determined. The federal identification number for Respondent's Monroe County business and Dade County business is the same, ID #59-1465901.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Natural Resources enter a Final Order granting the renewal of Petitioner's Monroe County license, but placing it on probation for a period of two years. DONE and ORDERED this 1st day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4512 Rulings of the Proposed Findings of Fact submitted by Respondent: The unnumbered paragraphs are accepted and, in relevant part, are addressed in finding of fact paragraph 1. The Recommended Order in Case No. 86-1470 is being issued with this Order and does, in fact, address similar questions of fact. COPIES FURNISHED: Michael I. Rose, Esquire Suite 303, Robert Building 28 West Flagler Street Miami, Florida 33130 Henri C. Cawthon, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399-3000 Tom Gardner- Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas G. Tomasello Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether the Florida Fish and Wildlife Conservation Commission (“the Commission”) correctly determined that a sailboat owned by Jeffrey Sundwall was a “derelict vessel” within the meaning of section 823.11(1)(b)1., Florida Statutes (2017),1 and thus subject to sections 376.15(3)(a) and 705.103, Florida Statutes.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Commission is empowered to remove, or cause to be removed, derelict vessels from Florida’s public waters. §§ 376.15(3)(a) and 823.11(3), Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon any public waters of this state.” § 823.11(1)(b)1., Fla. Stat. Mr. Sundwall was the registered owner of a 28-foot sailboat named the Sea Joy. Facts Specific to the Instant Case Lieutenant Andy Cox of the Commission found the Sea Joy anchored off Wisteria Island in the Florida Keys on March 27, 2017. The Sea Joy had an expired registration decal, and a large amount of seaweed on the outboard motor, which probably rendered the motor inoperative. The Sea Joy had been left open and exposed to the elements, and Lieutenant Cox observed one-inch deep, green water inside the vessel. Lieutenant Cox also determined that the Sea Joy had no working bilge pumps or battery power. Lieutenant Cox initiated a derelict vessel investigation. While the Commission did not take custody of the Sea Joy at that time, Lieutenant Cox affixed a large, red sticker to the Sea Joy announcing that the vessel’s owner had 5 days before the Commission disposed of it pursuant to its authority under chapter 705. Lieutenant Cox met with Mr. Sundwall on approximately March 28, 2017, in a Florida Keys jail and served him with three infraction citations. Lieutenant Cox also provided Mr. Sundwall with a written notice indicating the Commission considered the Sea Joy to be a derelict vessel. On July 24, 2017, the County Court for Monroe County issued an Order requiring the Monroe County Sheriff’s Office and the Commission to preserve the Sea Joy as essential evidence in a criminal case against Mr. Sundwall. Thus, the Sea Joy could not be “destroyed, removed, altered, moved, or otherwise disposed of.” After Hurricane Irma struck Florida in September of 2017 and wrecked several hundred vessels, the Commission partnered with the Coast Guard in an effort to identify and remove derelict vessels. If an owner of a derelict vessel waived his or her ownership interest, then the State of Florida would not charge for a vessel’s removal and disposal.2 Wisteria Island is owned by the FEB Corporation. In November of 2017, the Commission found the Sea Joy hard aground on the shore of Wisteria Island, and the Sea Joy could not be moved without mechanical assistance. The Sea Joy had no mast or sail, and the vessel was still left open and exposed to the elements. In sum, the Sea Joy was nothing more than a hull at that point. Contemporaneous photographs and video of the Sea Joy indicate that it was resting on “wrack lines” left by the tide. Those wrack lines demonstrated that the Sea Joy was on public waters at high tide.3 In response to a request for reconsideration from the State of Florida, the Monroe County Court issued an Order on December 12, 2017, allowing the State to remove the Sea Joy from Wisteria Island. On December 17, 2017, the Commission transported the Sea Joy to a marina in Marathon, Florida. 2 The Commission’s attorney announced during the final hearing that the Commission would not seek to recover the costs of removing and disposing of the Sea Joy from Mr. Sundwall. Ordinarily, the owner of a derelict vessel is responsible for all costs associated with its removal and destruction. See §§ 376.15(3)(a), 705.103(4), and 823.11(3)(b), Fla. Stat. However, in the aftermath of Hurricane Irma, the State of Florida assumed all of those costs. 3 This finding is based on the testimony of Major Robert Rowe of the Commission, and the undersigned found him to be a credible and persuasive witness. Officer David Bellville of the Commission met with Mr. Sundwall on January 4, 2018, at the Stock Island Detention Center in Key West. Officer Bellville served Mr. Sundwall with a notice stating that he had 30 days to take possession of the Sea Joy or it would be destroyed pursuant to the Commission’s authority under chapter 705. Officer Bellville also served Mr. Sundwall with an election of rights form stating he had 21 days to protest the Commission’s proposed action. Mr. Sundwall declined to waive his property interest in the Sea Joy and ultimately executed the election of rights form and a request for an administrative hearing on January 20, 2018. Mr. Sundwall’s hearing request was postmarked on January 23, 2018, and received by the Commission on January 29, 2018. Because Mr. Sundwall’s documents were received after the 21-day deadline, the Commission had the Sea Joy destroyed on February 21, 2018, and issued an Order on March 6, 2018, dismissing Mr. Sundwall’s hearing request with prejudice. Mr. Sundwall appealed the Commission’s Order to the First District Court of Appeal, and the appellate court issued an opinion in Sundwall v. Florida Fish & Wildlife Conservation Commission, 271 So. 3d 1239 (Fla. 1st DCA 2019), on May 16, 2019, reversing and remanding the Commission’s dismissal: After Hurricane Irma struck Florida in 2017, the Florida Fish and Wildlife Conservation Commission (FWC) identified Mr. Sundwall as the owner of a boat declared derelict upon the waters of Florida. See § 823.11, Fla. Stat. (2017) (defining derelict vessels and empowering FWC to deal with them). Mr. Sundwall was incarcerated at the time. FWC sent Mr. Sundwall notice of the declaration, an explanation of his rights, an Election of Rights form, and a form for a Petition for Administrative Proceeding. The notice stated that a failure to make any election within twenty-one days from receipt of the notice would constitute a waiver of the right to a hearing. Mr. Sundwall signed a receipt for these documents on January 4, 2018. The twenty-first day after that fell on January 25, 2018. He signed the Election of Rights form, requesting a hearing; and also completed the Petition for Administrative Proceeding, dating both of his signatures January 20, 2018. There was no certificate of service or institutional date stamp on any of the papers, nor any institutional mail log indicating when he gave the papers to prison officials. The envelope was postmarked January 23, 2018. FWC stamped it as received on January 29, 2018. FWC dismissed the petition with prejudice because FWC did not receive it within twenty-one days and Mr. Sundwall did not request an extension within that period. FWC's order of dismissal acknowledged that the envelope from Mr. Sundwall was postmarked January 23, 2018. However, FWC relied on Florida Administrative Code Rule 28- 106.104(1), which defines filing as receipt by the agency clerk during normal business hours. In his pro-se brief, Mr. Sundwall relies on the January 20 date of his signatures and the January 23 postmark date, arguing that he is entitled to the benefit of the prison mailbox rule under Haag v. State, 591 So. 2d 614 (Fla. 1992). FWC does not dispute that argument, but argues that Mr. Sundwall provided no proof that he placed his papers in the hands of prison officials before expiration of the deadline; i.e., no institutional mail stamp or log and no certificate of service. The record does not reflect whether Mr. Sundwall’s institution utilizes dated mail stamps or logs, but one reason there were no certificates of service is because none of the forms that FWC supplied to him contained a certificate of service. In a literal sense, however, Mr. Sundwall "provided" FWC a postmarked envelope that evidences timeliness. He argues on appeal that FWC calculated the time erroneously, and he points out that the envelope was postmarked on January 23. The postmark date was before expiration of the twenty-one-day period for requesting a hearing, and therefore the petition necessarily was submitted to prison officials before the deadline. FWC acknowledged the postmark date in its order of dismissal, and the postmarked envelope is in the record. We therefore reverse the order of dismissal and remand for further proceedings on Mr. Sundwall's petition.[4] Ultimate Findings There is no dispute that the Sea Joy was a “vessel” within the meaning of section 327.02(46), Florida Statutes. When it was beached on Wisteria Island, the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. It was left or abandoned in a wrecked, junked, or substantially dismantled condition upon the public waters of this state. While the Sea Joy no longer exists, the photographic evidence and the witness testimony conclusively demonstrate that it was wrecked or substantially dismantled by the time it ran aground on Wisteria Island. The photographic evidence also demonstrated that the Sea Joy was upon the State of Florida’s public waters at high tide. Mr. Sundwall made several factual arguments during the final hearing. For instance, section 823.11(1)(b)3. defines a “derelict vessel” as one that is “[d]ocked, grounded, or beached upon the property of another without the consent of the owner of the property.” Mr. Sundwall testified that he had permission for the Sea Joy to be on Wisteria Island. Mr. Sundwall’s argument is not persuasive because the Commission determined the Sea Joy to be a 4 To whatever extent that Mr. Sundwall is seeking damages from the Commission for the Sea Joy’s destruction, he must pursue that claim before a different tribunal. DOAH’s role in this matter is limited to making findings as to whether the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. and thus subject to sections 376.15(3)(a) and 705.103. derelict vessel pursuant to section 823.11(1)(b)1., not section 823.11(1)(b)3. However, even if the Commission had deemed the Sea Joy to be derelict pursuant to section 823.11(1)(b)3., Mr. Sundwall’s testimony that he had permission to keep the Sea Joy on the shore of Wisteria Island was uncorroborated and unpersuasive. In preparation to take control of the Sea Joy, Mr. Sundwall asserted that a friend of his had attempted to inspect the Sea Joy while it was beached on Wisteria Island. He claimed that the Commission forced Mr. Sundwall’s friend away from the wrecked vessel. Because the Commission was dealing with several hundred displaced vessels in the aftermath of Hurricane Irma, it is very unlikely that the Commission would have been in a position (or to have been inclined) to prevent any willing person from removing the derelict Sea Joy from Wisteria Island or inspecting it. Moreover, the undersigned generally found Mr. Sundwall’s testimony on this point to be unpersuasive and self-serving. Mr. Sundwall’s witnesses did not present any persuasive testimony to corroborate his assertions. Mr. Sundwall also argued that the instant case is part of the Commission’s ongoing effort to retaliate against him for undermining a criminal investigation. Even if that were the case, there is no evidence that the Commission left the Sea Joy anchored off Wisteria Island or caused it to become a derelict vessel. Mr. Sundwall asserts that he has been denied due process. However, the facts refute that assertion because: (a) he was given notice of the Commission’s proposed action to dispose of the Sea Joy; (b) he had an opportunity to request a hearing; (c) his case was referred to DOAH; and (d) a formal administrative hearing was conducted on February 7, 2020, at which he fully participated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order deeming the Sea Joy to have been a “derelict vessel” within the meaning of section 823.11(1)(b)1. and that the Commission was authorized under section 376.15(3)(a) to relocate or remove the Sea Joy. DONE AND ENTERED this 1st day of June, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2020. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish & Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Jeffrey Ray Sundwall, 829113 Jackson Correctional Institution 5563 10th Street Malone, Florida 32445 Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
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.
Findings Of Fact The Parties 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. 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. 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 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 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. 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. 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. 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). 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. 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: 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; an exception to the closures would be recognized for possessing cut mullet to be used on boats as bait; 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; subsection (4) of existing rule 46-39.005 was deleted, it had closed the fishery to commercial operation during weekends in the roe season; 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; 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. 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. 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 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. 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). 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. 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. 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. 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 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 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. 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. 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. 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 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 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 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 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. 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. 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 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 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. 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. 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. 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. 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 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. 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. 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. 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. 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). 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. 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. 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. 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.
Findings Of Fact Petitioner is the owner and developer of real property in Brevard County, Florida. Petitioner applied to DER for a development permit to construct three wooden docks and retain an existing wooden dock on its property. The docks were designed to provide a total of 58 mooring slips. On March 13, 1983, the Department issued an Intent to Deny the requested permit, On March 10, 1983, Petitioner filed a petition for a formal 120.57(1), Florida Statutes, hearing on DER's intent to deny the permit application. DER's Intent to Deny asserted DER jurisdiction under Chapters 403 and 253, Florida Statutes and Rule 17-4.28 and 17- 4.29, Florida Administrative Code. DER contends that the construction of the proposed docks was to be conducted in areas within DER jurisdiction under Rules 17-4.28(2) and 17- 4.29(1). Additionally, DER asserted that the proposed project was located in Class II waters approved for shellfish harvesting, and that dredging in those areas was prohibited by Rule 17-4.28(8)(a), Florida Administrative Code, which provides, in pertinent part, as follows: The Department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish. Therefore, it shall be the department's policy to deny applications for permits for certifications for dredging or filling activities in Class II waters, except where the applicant has submitted a plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage. The department shall not issue a permit for dredging or filling directly in areas approved for shellfish harvesting by the Department of Natural Resources. . . . The parties have stipulated, and the record otherwise established, that Petitioner is substantially affected by Rule 17-4.28(8)(a), which is challenged in this proceeding, by virtue of the fact that DER asserts that rule as a grounds for denying the requested permit. Both Petitioner and Respondent have submitted proposed findings of fact concerning whether the driving of pilings for the construction of the dock constitutes "dredging", so as to invoke the prohibition against such activities contained in Rule 17-4.28(8)(a). It is specifically determined that these facts are irrelevant to the issue to be determined in this cause, as will more fully hereinafter appear.
Findings Of Fact Respondent, Norman Padgett, holds a haul seine permit, issued by the Commission, which authorizes Respondent to operate a haul seine net on Lake Okeechobee. The permit is renewable annually and is one of ten such permits issued by the Commission. The Lake Okeechobee Haul Seine Permits authorize their holders to fish by haul seine and to harvest game fish in commercial quantities, activities not legal absent such a permit. To minimize conflicts between sport fishermen and commercial haul seine permittees on Lake Okeechobee, the Commission has, by rule, prohibited seining activities in certain areas. Among the areas closed by rule to haul seining is the area south of a line that connects the northernmost point of Kreamer Island to the northernmost point of Ritta Island. That line is approximately five miles long and can be readily determined since the northernmost point of either island is visible from the other island. Also closed by rule to haul seining are those areas shoreward of a line delineated by the Commission's commercial fishing boundary buoys. The boundary line is approximately one mile lakeward of emergent aquatic vegetation. The Commission, by rule, has prohibited the use of "short" haul seines as an aid to its enforcement against haul seining in closed areas. "Sport" nets are prohibited because of the ease with which they can be deployed and retrieved. During the time period pertinent to these proceedings, the Commission's rules prohibited use of haul seine nets of less than 350 yards in length. On June 18, 1984, a crew was conducting haul seining operations under the authority of Respondent's haul seine permit. The crew was operating in the closed area south of the line established by the northernmost points of Kreamer and Ritta Islands and was warned by a Commission employee that use of a haul seine in that area was prohibited. On June 19, 1984, a crew was again conducting haul seining operations under the authority of Respondent's haul seine permit in the closed area south of the line established by the northernmost points of Kreamer and Ritta Islands. The seining operations were being conducted from one-half to one mile within the closed area. On June 20, 1984, a crew was again conducting haul seining operations under the authority of Respondent's haul seine permit. On this occasion the crew was operating in a closed area shoreward of a line delineated by the Commission's commercial fishing boundary buoys. The haul seine net being used measured 277 yards in length. Respondent was not on board the fishing vessels during the foregoing events. However, consistent with the Commission's rule, the crews were in possession of his permit. At hearing Respondent offered no evidence of what, if any, efforts he took to supervise or maintain control of the haul seine crews. His testimony established, however, that he was aware the haul seine net was less than 350 yards in length. By letter dated March 28, 1985, the Commission informed Respondent of its intent to revoke his Lake Okeechobee Haul Seine Permit. Respondent timely requested a formal hearing. The case was forwarded to the Division of Administrative Hearings and assigned Case No. 85-1312. By letter dated July 23, 1985, the Commission informed Respondent of its intent to deny his application for renewal of his haul seine permit, predicated on their prior decision to revoke his permit. Respondent timely requested a formal hearing. The case was forwarded to the Division of Administrative Hearings, assigned Case No 85-2612, and consolidated with Case No. 85-1312.
Findings Of Fact Background On July 7, 1989, respondent, Florida Marine Fisheries Commission (Commission), duly noticed proposed rule 46-31.002 in volume 15, number 27, of the Florida Administrative Weekly. The notice also advised all interested persons that a public hearing would be held on August 3, 1989, before the Commission on the proposed rule. On August 3-4, 1989, the Commission held a public hearing at which time it considered the proposed rule. During the course of this hearing, the Commission approved the proposed rule with certain changes. These changes, as well as the complete rule text, were duly noticed in volume 15, number 35, of the Florida Administrative Weekly on September 1, 1989. Petitioner, Concerned Shrimpers of America, Inc., Florida Chapter, by petition filed with the Division of Administrative Hearings on July 28, 1989, timely challenged the proposed rule pursuant to Section 120.54, Florida Statutes, as an invalid exercise of delegated legislative authority. Petitioner and Intervenors Petitioner has, pursuant to stipulation of the parties, standing to contest the validity of the proposed rule. Intervenor, Center for Marine Conservation, Inc., is, pursuant to stipulation of the parties: ... a non profit environmental protection and education organization incorporated under the laws of the District of Columbia and authorized to do business in Florida. It has in excess of 7,000 members throughout the state. Its major purpose is the protection of marine wildlife for this and future generations, including sea turtles, for the benefit of the species, the corporation and its members... Members of the organization observe, study and photograph sea turtles for educational and recreational purposes and their demise or decline from the failure to require the use of TED's will severely hamper and diminish these activities to their detriment. The organization and its members are further concerned with the total marine ecosystem that could be severely damaged should top order predators such as the sea turtle become extinct or their populations be severely diminished.... Intervenor, Florida Audubon Society, is, pursuant to stipulation of the parties: ... a non profit Florida corporation with over 35,000 members within the state whose main purpose is to protect Florida's natural outdoor environment and wildlife, including the marine environment and sea turtles, for the benefit of the organization and its members. The members of the organization observe, study and photograph sea turtles for educational and recreational purposes and their demise or decline from the failure to require the use of TED's will severely hamper and diminish these activities to their detriment. The organization and its members are further concerned with the total marine ecosystem that could be severely damaged should top order predators such as the sea turtle become extinct or their populations be severely diminished.... Intervenor, Greenpeace-U.S.A., is, pursuant to stipulation of the parties: ...headquartered in Washington, D.C., [and] is the United States office of Greenpeace, an international environmental organization with offices in over twenty countries and approximately two and one-half million supporters worldwide. Greenpeace- U.S.A has more than one million supporters in this country, including over 60,000 who live in the State of Florida. Greenpeace- U.S.A. has two offices in Florida, located in Ft. Lauderdale and Jacksonville Beach.... On behalf of its members and threatened and endangered species, Greenpeace-U.S.A. places special emphasis on the preservation of marine species and the marine environment and has worked extensively for the protection of threatened and endangered marine animals. The sea turtle campaign is one of the principal campaigns of the organization.... For the past five years, Greenpeace-U.S.A. has operated the Beach Patrol Project. The Project seeks to maintain protected nesting areas for threatened and endangered sea turtles in the coastal areas of the southern United States. Based in the Jacksonville Beach office, the Project places approximately 250 Greenpeace-U.S.A. volunteers on Florida beaches every year. The Beach Patrol Project has also contributed to the conservation effort in its documentation and identification of species of sea turtles which have been stranded and washed ashore.... Intervenor, Florida League of Anglers, Inc., is a party of unknown capacity, origin, or interest. No evidence was presented on its behalf to demonstrate that its substantial interests would be affected by the proposed rule. The proposed rule The proposed rule at issue in this case prohibits the use of any trawl (net) in state waters that does not have a qualified turtle excluder device (TED) installed therein, as well as the possession aboard any vessel in state waters of a trawl rigged for fishing that does not have a qualified TED installed in it. Excepted from the rule, under specified conditions, are test nets, roller frame trawls, trawls used for experimentation purposes authorized by the National Marine Fisheries Service (NMFS), and trawls operated on the inside waters of the state. The purpose of the proposed rule is to protect sea turtles from extinction, primarily the endangered Kemp's ridley turtle, by reducing the incidental catch and mortality of sea turtles in shrimp trawls. 1/ Currently, five species of sea turtles occur in state waters. These species are the Atlantic green turtle (Chelonia mydas mydas); Atlantic hawksbill turtle (Erelmochelys imbricata imbricata); Atlanta ridley turtle (Lepidochelys kempi), also known as the Kemp's ridley; Leatherback turtle (Dermochelys coriacea); and Loggerhead sea turtle (Caretta caretta). Persuasive proof demonstrates that the incidental catch and drowning of sea turtles by shrimp trawls is a significant source of mortality for the species, and that absent the elimination of that mortality factor the green turtle, hawksbill turtle, Kemp's ridley turtle, leatherback turtle, and loggerhead turtle are threatened with extinction. 2/ Use of the TEDs mandated by the proposed rule will substantially reduce the incidental capture of sea turtles by shrimp trawls, and thereby eliminate shrimp trawls as a significant source of mortality for the species. Currently, the proposed rule permits the use of any one of six TEDs approved by the NMFS, which have demonstrated a turtle exclusion rate of at least 97 percent. The rule also permits the use of any TED that may subsequently be approved by the NMFS as demonstrating a turtle exclusion rate of at least 97 percent. 3/ The rule challenge In challenging the proposed rule, petitioner does not question the need for the rule to protect the sea turtles from extinction, nor the effectiveness of the TED to eliminate a significant threat to the survival of the species. Rather, petitioner contends that: (1) the Commission exceeded its grant of rulemaking authority, which will be discussed in the conclusions of law, infra; (2) that the Commission materially failed to follow the applicable rulemaking procedures set forth in section 120.54 by failing 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 at least 21 days prior to the public hearing on the proposed rule, as well as by failing to prepare an adequate economic impact statement; and, (3) that the proposed rule contravenes the specific provisions of law implemented because the Commission failed to consider the "best information available" concerning the sociological implications of the proposed rule on shrimp fisherman, and because the proposed rule is inconsistent with the federal regulations regarding the mandatory use of TEDs. Notice regrading the impact of the proposed rule on small business Section 120.54(3)(b), Florida Statutes, mandates that where, as here, the proposed rule will affect small business, that "the agency shall send written notice of such rule to the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce not less than 21 days prior to the intended action." Here, the proof demonstrates that the Commission held its public hearing on the proposed rule, and approved it, on August 3-4, 1989, but that it did not provide written notice to the previously mentioned agencies until July 21, 1989, a date less than 21 days before the public hearing. While the Commission failed to accord the named agencies with the minimum 21-day notice mandated by section 120.54(3)(b), the proof fails to demonstrate that such failure constituted a material failure to follow the applicable rule making procedures. Here, the agencies never objected to the inadequacy of the notice; the agencies have never requested an opportunity to present evidence and argument or to offer alternatives regarding the impact of the proposed rule on small business; and there was no showing that the Commission's failure to accord the agencies the full 21-day notice impaired their ability to, or influenced their decision not to, participate in the rule making process. In sum, petitioner failed to demonstrate that the Commission's failure to accord 21 days notice to the named agencies resulted in any incorrectness or unfairness in the proposed adoption of the rule. The economic impact statement Pursuant to the provisions of Section 120.54(2)(b), Florida Statutes, the Commission prepared an economic impact statement for the proposed rule. The economic impact statement was prepared by Robert Palmer, the Commission's economic analyst, an expert in economics. Petitioner challenges the adequacy of the economic impact statement (EIS) prepared for the proposed rule by contesting its accuracy in some respects, its failure in other respects to address the costs to the agency for implementation of the proposed rule, and its failure to address the cost and economic benefit to persons directly affected by the proposed rule. Here, while it is arguable that the Commission's EIS could have been more thorough in some respects, the proof fails to demonstrate any material error that impaired the fairness of the rule making proceeding or the correctness of the Commission's decision to approve the proposed rule. Rather, the proof demonstrates that where errors or omissions occurred in the EIS that the Commission was supplied with the correct information at the public hearing, their impact was of de minimis import, or the costs and benefits were speculative or incapable of estimation. Compliance with statutory standards Pertinent to this case, Section 370.027(1), Florida Statutes, contemplates that the Commission will, in exercising its rule making authority, apply the policy and standards set forth in Section 370.025, Florida Statutes. In this regard, section 370.025 provides: The Legislature hereby declares the policy of the state to be management and preservation of its renewable marine fishery resources, based upon the best available information, emphasizing protection and enhancement of the marine and estuarine environment in such a manner as to provide for optimum sustained benefits and use to all the people of this state for present and future generations. 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: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Conservation and management measures shall be based upon the best information available, including biological, sociological, economic, and other information deemed relevant by the commission. Conservation and management measures shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis. When possible and practicable, stocks of fish shall be managed as a biological unit. Conservation and management measures shall assure proper quality control of marine resources that enter commerce. State marine fishery management plans shall be developed to implement management of important marine fishery resources. Conservation and management decisions shall be fair and equitable to all the people of this state and carried out in such a manner that no individual, corporation, or entity acquires an excessive share of such privileges. 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. (Emphasis added). Petitioner's final challenge to the validity of the proposed rule is its contention that the Commission's action in approving the proposed rule contravenes the provisions of section 370.025 because the Commission failed to consider the "best information available" concerning the sociological implications of the proposed rule on shrimp fishermen, and because the proposed rule is inconsistent with the federal regulations regarding the mandatory use of TEDs. Petitioner's contentions are not persuasive. First, with regard to petitioner's contention that the proposed rule contravenes section 370.025(2)(h) because it is inconsistent with the federal regulation regarding the mandatory use of TEDs, the proof demonstrates that, due to the presence of sea turtles in state waters all year round, mandating the use of TEDs at only particular times of the year along certain areas of the coast, as the federal regulations do, would not achieve the Commission's preservation goal, and therefore would not be in the best interest of the sea turtles or residents of the state. Therefore, the Commission's action was not inconsistent with section 370.025(2)(h) Second, with regard to petitioner's contention that the proposed rule contravenes section 370.025(2)(b) because it failed to consider the best sociological information available, section 370.025(2)(a) is informative since it mandates that any rule of the Commission be consistent, before all else, with the following standard: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Faced with persuasive proof that the incidental catch and drowning of sea turtles by shrimp trawls was a significant source of mortality for the species, and that absent the elimination of that mortality factor the species inhabiting state waters were threatened with extinction, the Commission reasonably concluded that it had two options to protect the sea turtles: to prohibit shrimp trawling in state waters or mandate the use of TEDs and permit shrimp trawling to continue. 4/ Such being the options, very little, if any, sociological information was necessary to support the Commission's conclusions that the mandatory use of TEDs, as opposed to a prohibition on shrimp trawling in state waters, would be the least disruptive management measure to the sociological structure of the shrimp fishing community. While almost irrelevant to the instant case, the proof does, however, demonstrate that the Commission had before it the pertinent sociological information it needed to appreciate the impact of the proposed rule on the shrimp fishery community. Such information included an appreciation of the fact that the shrimping community constitutes a societal segment, or self-contained entity, that is in large measure divorced from society in general; that unique familial relationships exist within the shrimp fishing community; that the mandatory use of TEDs had led to a feeling of uncertainty among shrimp fishermen concerning the continued survival of the industry; and that should shrimp fishermen experience significant losses as a consequence of the mandated use of TEDs that they may be forced from the shrimp fishing business, and their community and family relationships disrupted. Under the circumstances of this case, the Commission's action was consistent with section 370.025(2) (b).
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as those facts stipulated to by the parties, the following relevant facts are found: Petitioner, Southeastern Fisheries Association, Inc., is a not-for- profit incorporated association of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, employing approximately 14,000 employees, and including 450 corporate and individual members. The executive offices of Southeastern Fisheries Association, Inc. are located at 312 East Georgia Street, Tallahassee, Florida 32301-1791. The members of Southeastern Fisheries Association, Inc., either catch, process, transport or sell Spanish mackerel and Spanish mackerel constitutes a major part of their business and livelihood. Petitioner, Organized Fishermen of Florida, Inc., is a not-for-profit incorporated association of 2,000 commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, with its headquarters at P. O. Box 740, Melbourne, Florida 32901. Petitioner, Harry H. Bell & Sons, Inc., is a fish processor and sales company employing about 210 employees, located at 756-28th Street South, St. Petersburg, Florida 33712. A large percentage of the fish processed by Harry H. Bell & Sons, Inc., are Spanish mackerel. Petitioner, Bayside Shellfish, Inc., is a fish processor and fish seller, located at P.O. Box 176, Apalachicola, Florida 32320. This petitioner also obtains a substantial amount of its business through the processing and sale of Spanish mackerel. Petitioner, Inlet Fisheries, Inc., is a corporation with its headquarters at P. O. Box 3604, Ft. Pierce, Florida 33450, which unloads and ships fish, and, in particular, Spanish mackerel. Petitioner, J. O. Guthrie, Inc., is a fish processor located at P.O. Box 895, Ruskin, Florida 33570. This petitioner processes fish, including Spanish mackerel, which makes up a high percentage of its fish processing. Petitioner, C. & W. Fish Co., Inc., is a company which unloads and ships fresh fish, located at P.O. Box 1356, Port Salerno, Florida 33492. This petitioner earns its living from the loading and shipping of fresh fish including Spanish mackerel. Petitioner, City Fish Company, Inc., also unloads and ships fish and is located at 3880 Gulf View Avenue, Marathon, Florida 33050. Intervenor, Florida Conservation Association, located at 402 West College Avenue, Tallahassee, Florida 32301, is an affiliate of the Coastal Conservation Association, a non-profit corporation incorporated under the laws of Texas. Effective November 28, 1985, the Marine Fisheries Commission (MFC) adopted rules relating to the commercial harvesting of Spanish mackerel on the East Coast of Florida. As pertinent to this proceeding, those rules prohibited the harvesting of Spanish mackerel by power-assisted gill netting in Dade and Palm Beach Counties, and imposed a 3 and one half-inch mesh size minimum for the monofilament portion of gill nets used to take Spanish mackerel from the remainder of the East Coast of Florida until March 15, 1990. After that date, the entire net was to have a minimum mesh size of 3 and one half inch stretched mesh. These net size requirements were applicable to all gill nets used on the East Coast to harvest Spanish mackerel during the period from November 15th to March 15th. The existing rule allows the harvest of Spanish mackerel as an incidental by-catch of other lawfully targeted species, so long as the combined weight does not exceed 15 percent of the total weight of the lawfully harvested species. The challenged proposed amendments to the MFC's Spanish mackerel rules continue the Palm Beach and Dade Counties gill net closures; establish gill net minimum sizes for three different regions of Florida; closes the weekend harvesting of Spanish mackerel by use of any nets; establishes set seasons for operators of vessels greater than 40 feet in length using power- assisted gill nets, said seasons subject to being shortened if the total regional commercial catch is projected to reach a specified poundage; and imposes a limit on the number of Spanish mackerel which recreational fishermen may possess per day. More specifically, the challenged proposed rules impose the following net size requirements on the harvesting of Spanish mackerel for the three regions of Florida. For the East Coast, defined as those state waters north of the Dade-Monroe County line, the period of the 3 and one half inch mesh size for the monofilament portion of gill nets is shortened to October 1, 1988, with the required minimum size being increased to 3 5/8- inches thereafter until October 1, 1990, whereupon all portions of gill nets are to be 3 5/5 inches stretched mesh. For the Southwest Coast, defined as state waters between the Taylor-Dixie County line and the Dade-Monroe County line, the minimum monofilament portion mesh size is 3 3/8 inches until October 1, 1988, increasing to 3 5/8 thereafter until October 1, 1990, whereupon the entire net is to have a minimum mesh size of 3 5/8 inches stretched mesh. The corresponding requirement for the Northwest Coast, defined as state waters west of the Taylor-Dixie County line, is 3 inches until October 1, 1988, increasing to 3 5/8 inches thereafter. Except for the 15 percent by-catch allowance provided in the existing rule, harvesting Spanish mackerel by use of any net is prohibited in all three regions on weekends, defined as commencing at sunset on Friday and ending at sunset on the following Sunday. Identical commercial fishing seasons for the use of power-assisted gill net gear by vessels greater than 40 feet in length are set for all three regions of Florida. That season opens on December 15 of each year and closes on November 1 of the following year. For other forms of commercial harvesting of Spanish mackerel, the season is year-round, or defined as from December 15 through December 14 of the following year. However, the proposed rule, Rule 46- 23.004, provides a mechanism for shortening the seasons in each region for all forms of commercial fishing (except for the various by-catch allowances) when the total harvest for each region reaches a specified number of pounds. For the larger vessels using power-assisted gill nets, the seasons for the East Coast, Southwest Coast and Northwest Coast close prior to November 1st if the total regional commercial harvest is projected to reach, respectively, 1,670,400 pounds, 1,350,900 pounds and 354,600 pounds. For commercial fishermen using other types of gear, the year-round season will close when the total regional commercial harvest in the season reaches, before December 14, 1,856,000 pounds (East Coast), 1,501,000 pounds (Southwest Coast) and 394,000 pounds (Northwest Coast). In addition to the 15 percent by-catch allowance previously mentioned, the proposed rule also excepts from the required season closures Spanish mackerel harvested as an incidental by-catch of other lawfully targeted species so long as the total weight of mackerel does not exceed 500 pounds, as well as those harvested with a net size greater than 4 inches stretched mesh used to lawfully harvest another target species. When the specified poundages which trigger the closing of the seasons are projected to be reached, the proposed rule provides for the giving of notice by the Executive Director of the Department of Natural Resources in the manner provided in Section 120.52(15)(d), Florida Statutes. Proposed Rule 46-23.005 sets forth a bag limit for recreational fishermen which applies during all times of the year. That limit is four Spanish mackerel per person per day. Because of evidence indicating that the abundance of Spanish mackerel in Florida is declining, the MFC began considering that fishery as a subject of possible regulation in March of 1984. Stock assessments were performed and updated, federal studies and mackerel fishery management plans were considered, various workshops and meetings were held, and numerous management option papers and alternatives were considered. Many of the witnesses in the instant rule- challenge proceeding appeared before, testified or otherwise provided input to the MFC during the rule promulgation process. In considering the proposed regulations, the MFC had before it evidence that commercial and recreational landings of Spanish mackerel had substantially decreased since the 1970's and that seasonal and areal compression had occurred in this fishery. While it could not be concluded with certainty whether the resource was experiencing recruitment overfishing or growth overfishing, the MFC determined that the resource was being overfished to the extent that a reduction in effort and an increase in the size of the fish caught was necessary to protect, conserve and recover the resource. While single year or seasonal commercial and recreational landing statistics may not be entirely accurate due to under-reporting, they are reliable indicators of trends and can be utilized to indicate abundance. Likewise, declining commercial landing statistics can be indicative of a decline in the effort directed toward harvesting and/or market conditions. In approximately 1977, there were over 120 large roller rig boats in the Spanish mackerel fishery. At the present time, there are approximately 41 large roller rig vessels utilized to commercially harvest Spanish mackerel. The size of fish desired in the market has changed somewhat, with a declining demand for the smaller fish. While the price of Spanish mackerel per pound has remained relatively stable over the past ten or more years, its price in relationship to other species of fish and shellfish has declined. The above factors, as well as the voluntary use of larger mesh size nets and the recent closure of Palm Beach and Dade Counties, may provide some rationale for the decline in commercial landing statistics since the 1970's. However, given the evidence concerning a decline in recreational landings, seasonal and areal compressions, and the increased capacity of large power-assisted gill netting vessels, it was not unreasonable for the MFC to conclude that the decline in commercial landings is indicative of a decline in abundance resulting from overfishing. The conceptual goal of the proposed rules is to return the Spanish mackerel fishery to the condition in which it was in the early 1970's. In order to accomplish this goal, the MFC determined to effect an approximate 45 percent reduction in efforts devoted to harvesting and to effect an increase in the size of the fish harvested for commercial purposes. The minimum gear size proposed is directed toward the desired fish size, and the reduction in effort goal is to be accomplished through continued closures of certain areas, weekend closures, and the establishment of commercial seasons, commercial season catch limits and recreational bag limits. Gill mesh nets are highly selective for a specific size of fish. A 1/8 inch difference in gill net mesh size makes a significant amount of difference in the size of the fish caught. The large nets utilized for Spanish mackerel harvesting can cost up to $20,000.00, with the monofilament portion of the net costing between $3,000.00 and $4,000.00. Due to destruction by sharks and normal wear and tear, the life expectancy of the monofilament portion of a gill net is between 1/2 to 3 seasons. The initial minimum mesh sizes proposed in the challenged rules for the monofilament portion of gill nets are reflective of the sizes currently being utilized in the industry in each of the three regions specified in the rule. No conclusive scientific data exists on a statewide basis as to the size of fish that will be captured using a 3 5/8 inch gill net mesh size. The MFC does intend to gather more data concerning gill net mesh size selectivity, and that is one of the reasons the proposed rule delays imposition of the 3 5/8 inch requirement until October of 1988. The evidence does demonstrate that Spanish mackerel in the Northwest Coast region or Panhandle area tend to be longer and thinner with less yield per fish than those found in the East Coast or Southwest Coast areas. There is insufficient evidence to conclude, however, that the Gulf Spanish mackerel stock and the Atlantic Spanish mackerel stock constitute two separate populations. Due to the seasonal migration of the Spanish mackerel in a southerly and northerly direction along the East Coast of Florida, it is impossible to determine the precise impact on effort reduction of the closure of Palm Beach and Dade Counties. The MFC heard evidence from commercial fishermen that the impact from closing those areas could result in a reduction in catch of at least 30 percent. The MFC's calculation of a lower percentage was not unreasonable given the large capacity of the power-assisted gill net industry and the potential for harvesting Spanish mackerel while en route to or from these closed counties. The proposed season catch limits for commercial fishermen are intended to provide a backup to the other effort reduction measures in the proposed rules. It is intended that if the commercial seasons for larger power-assisted rigs, the weekend closures, the increased net sizes, and the areal closures do not significantly reduce the actual landings of Spanish mackerel in Florida, then the season for all commercial fishing can be shortened to effectuate such a result. The quota for each region constitutes a fixed cap on commercial landings per season. Consequently, if abundance does increase, there is no automatic mechanism in the proposed rule for increasing season catch limits. This, of course, will result in the unreliability of landing statistics alone as an indicator of stock abundance. Because the proposed rule contains no restrictions upon the number of recreational fishermen who may enter the fishery, no season for recreational fishing and no limit upon the number of fish caught, as opposed to possessed, by recreational fishermen, the rule could cause some reallocation of the Spanish mackerel fishery from the commercial sector to the recreational sector. In recent years, the commercial sector has maintained at least a 75 percent share of the Spanish mackerel resource. Within the commercial sector, there is no domestic substitute for Spanish mackerel.
