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        AGENDA
        BOARD OF TRUSTEES OF THE
        INTERNAL IMPROVEMENT TRUST FUND
        JUNE 25, 1996

        MARINE FISHERIES COMMISSION
        (Contact: Charles L. Shelfer, 487-0554)


Item A     Emergency Suspension of                        46ER96-2
             Special Act Closing Inshore
             Waters of Bay and Okaloosa
             Counties to Shrimping

Consideration of Emergency Rule 46ER96-2, suspending seasonal and area closure for shrimp harvest in inshore waters in Bay and Okaloosa Counties.

PURPOSE AND EFFECT:  Chapter 24111, Laws of Florida (1947), as amended by Chapter 25423, Laws of Florida, is a special act of the Legislature that was converted into a rule of the Department of Environmental Protection (formerly the Department of Natural Resources) upon creation of the Marine Fisheries Commission.  The law is subject to the jurisdiction of the Commission for repeal or amendment pursuant to the Commission's enabling law, Chapter 83-134, Laws of Florida, as amended by Chapter 84-121, Laws of Florida.  Chapter 24111, as amended, applies to Bay, Okaloosa, and Washington Counties.  Section 1 of the law effectively closes all the inside waters of these counties to all harvest of shrimp from July 1 through September 30 each year, and from December 1 through March 31 of the succeeding year.  This provision has remained on the books for all the years since 1949, but at some point, enforcement of the closures was discontinued.  The origins of this discontinuation are now lost to time, but the Florida Marine Patrol has announced that it has no choice but to fully enforce this seemingly valid provision, beginning July 1, 1996.
        Shrimp harvesters in Bay and Okaloosa Counties have consistently fished the inside waters of the two counties during these closure periods for as long as anyone can remember.  These areas account for a substantial portion of the annual harvest of food shrimp in Bay and Okaloosa Counties.  Enforcement of the closed areas on a seasonal basis will impose a severe economic burden on these food shrimp producers while not significantly contributing to the continuing health and abundance of the shrimp resources of Bay and Okaloosa Counties.  There is no food shrimp production in inland Washington County.  Food shrimp producers in Bay and Okaloosa Counties are still adjusting to the effects of the downsizing of shrimp trawls mandated by Article X, Section 16 of the State Constitution, which became effective July 1, 1995.
        The Marine Fisheries Commission is presently reviewing the special acts relating to shrimping applicable in these areas and is considering shrimping area closures in the inshore waters of the Northwest Region of Florida to perhaps allow for the removal of minimum size requirements on shrimp.  A permanent solution to the circumstances giving rise to this emergency rule will be undertaken separately from that consideration, prior the emergency rule's expiration.
        The Florida Marine Fisheries Commission has found that there is an immediate danger to the public welfare if immediate action is not taken to suspend the current seasonal area closures in Bay and Okaloosa Counties imposed by Section 1 of Chapter 24111, Laws of Florida (1947), as amended by Chapter 25423, Laws of Florida (1949).  The Commission has also found that the most appropriate and least restrictive means to alleviate the hardship caused by these circumstances is to allow the harvest of shrimp in the inshore waters of Bay and Okaloosa Counties while undertaking a permanent solution to the problems giving rise to this emergency rule during its pendency by regular rulemaking.

SUMMARY:  Emergency Rule 46ER96-2 suspends provisions of Chapter 24111, Laws of Florida (1947), as amended by Chapter 25423, Laws of Florida (1949), which close inside waters of Bay, Okaloosa, and 

Board of Trustees Agenda
Marine Fisheries Commission
June 25, 1996
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Washington Counties to shrimp harvest during the months of January, February, March, July, August, and September each year, as those provisions affect Bay and Okaloosa Counties.

In early May, 1996, the office of the Marine Fisheries Commission received notice that the Florida Marine Patrol would begin enforcing the seasonal closures of the inside waters of Bay and Okaloosa Counties to shrimp harvest, as mandated by Chapter 24111, Laws of Florida (1947), as amended by Chapter 25423, Laws of Florida (1949).  After a meeting on this subject between Commission staff and representatives of the Florida Marine Patrol, the Commission Chairman and Executive Director agreed to schedule consideration of this emergency rule as part of a discussion of shrimp trawl bycatch reduction already agendaed for the regular Commission meeting to be held on June 3-5, 1996 in Gainesville, Florida.  Members of the food shrimp production communities of Bay and Okaloosa Counties were notified of this meeting.  On June 4, 1996, the Marine Fisheries Commission met to discuss this matter.  The Commission determined that an emergency exists with respect to the seasonal closure of inside waters of Bay and Okaloosa Counties to shrimp harvest and approved the wording of this emergency rule, 46ER96-2.  The Commission voted to submit the emergency rule to the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund, for approval at the June 25, 1996 regular meeting of the board.  The entire text of this emergency rule is to be published in the Florida Administrative Weekly and distributed to the Joint Administrative Procedures Committee of the Florida Legislature as required by Section 370.54(9), Florida Statutes.  Notice of the action taken by the Governor and Cabinet in approving the rule will be distributed following the meeting to 1,300 persons and organizations, including major state newspapers and electronic media, maintained on the Commission's regular mailing list.

(See Attachment A, Pages 1-6)

RECOMMEND:     APPROVAL



Item B     Emergency Mullet Regulations                   46ER96-3

Consideration of Emergency Rule 46ER96-3, relating to commercial harvest of mullet.

PURPOSE AND EFFECT:  In early 1996, the Florida Legislature and the Marine Fisheries Commission became apprised of an unacceptable number of violations of Article X, Section 16 of the State Constitution, which limits marine net fishing.  The preponderance of these violations involved the harvest of mullet in state waters with prohibited entangling net gear.  The Florida Marine Patrol has documented the ongoing nature of this illegal netting activity.
In response to this situation, the Legislature amended CS/HB 817 in the final days of the 1996 Session to affirmatively prohibit simultaneous possession of any gill or entangling net with any species of mullet beyond the recreational bag limit aboard a vessel.  Through an oversight, the effective date of the legislation, January 1, 1997, was not altered.  The Marine Fisheries Commission has received communications from Legislators acknowledging the oversight and requesting the Commission, as the agency with full and exclusive statutory authority to adopt gear specifications and prohibited gear, to implement the prohibition in advance of the January 1, 1997 effective date.
        Additionally, the current rules governing the commercial harvest of mullet impose a limit of 500 pounds (1,000 pounds for two licensed commercial harvesters) per vessel per day on the 
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amount of mullet that can be landed from a single vessel, during 
the period beginning July 1 and continuing through September 30 each year.  This daily vessel limit was necessary when full-scale gill net harvest of mullet was allowed, to enhance the value of the later roe season fishery.  Initially, the Marine Fisheries Commission proposed rules to eliminate this commercial daily vessel limit as unnecessary.  Those rules were the subject of a rule challenge proceeding and subsequent appeal.  Recently, the Commission withdrew the proposed rule amendments to narrow the issues before the First District Court of Appeal.  Without further action, the daily vessel limit will apply again on July 1, 1996, serving no other purpose than to limit the income of commercial mullet harvesters using legal cast nets during the three month pre-roe season.  With implementation of the prohibition on the use of gill and entangling nets, the continuing health and abundance of the mullet resource is not threatened by the elimination of the daily vessel limit.
        The Florida Marine Fisheries Commission has found that there is an immediate danger to the public welfare if immediate action is not taken to (1) immediately prohibit the simultaneous possession of any species of mullet in excess of the recreational bag limit and any gill or entangling net aboard a vessel and (2) suspend the commercial daily vessel limit contained in Rule 46-39.005(5), F.A.C.  The Commission has also found that this immediate action is the most appropriate and least restrictive means to alleviate the harm caused by continued wilful and illegal use of gill and entangling nets to harvest mullet and by the overly-burdensome limitation on daily harvest of mullet during the pre-roe season.  Regular rulemaking will be immediately instituted to address the problems raised in this emergency rule on a permanent basis.

SUMMARY:  Subsection (1) of 46ER96-3 prohibits the simultaneous possession of any species of mullet beyond the recreational bag limit and any gill or entangling net aboard a vessel and specifies that simultaneous possession includes a vessel being operated in coordination with another.  Subsection (2) suspends the commercial daily vessel limits on mullet imposed by Rule 46-39.005(5), F.A.C., during the pendency of the emergency rule.

On June 4, 1996, the Marine Fisheries Commission met to discuss the issue of current mullet regulation and gear issues arising under enforcement of Article X, Section 16 of the State Constitution.  After discussion of these issues, the Commission determined that an emergency exists with respect to illegal netting of mullet and economic hardship from overly-burdensome commercial daily vessel limits.  As at all regular meetings of the Marine Fisheries Commission, representatives of the electronic and print media as well as statewide organizations interested in Commission activities were present.  The Commission approved the wording of this emergency rule, 46ER96-3, on June 5, 1996.  The Commission voted to submit the emergency rule to the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund, for approval at the June 25, 1996 regular meeting of the board.   The entire text of this emergency rule is to be published in the Florida Administrative Weekly and distributed to the Joint Administrative Procedures Committee of the Florida Legislature as required by Section 370.54(9), Florida Statutes.  Notice of the action taken by the Governor and Cabinet in approving the rule will be distributed following the meeting to 1,300 persons and organizations, including major state newspapers and electronic media, maintained on the Commission's regular mailing list.

(See Attachment B, Pages 1-5)

RECOMMEND:     APPROVAL

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June 25, 1996
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Item C     King Mackerel: Atlantic Fishery          Rule 46-30.0025

Consideration of proposed amendment of Rule 46-30.0025, F.A.C., relating to the Atlantic group of king mackerel.

PURPOSE AND EFFECT:  In November, 1993, the Florida Marine Fisheries Commission adopted the federal 20 inch size limit for Atlantic group king mackerel.  The Commission did not include a provision at that time, which would require that all such king mackerel be landed in a whole condition with heads and fins intact.  Without such language, a species size limit cannot be effectively enforced.  Accordingly, the purpose of this rule amendment is to provide language requiring the maintenance of all king mackerel harvested in the Atlantic fishery in a whole condition in and on state waters as well as at fishing sites on adjacent public and private lands.  The effect will be to ensure enforcement of the size limit and thus, greater protection for the species.

SUMMARY:  A new subsection (2) has been added to Rule 46-30.0025, requiring the maintenance of all king mackerel in a whole condition, in and on state waters, and on fishing piers, jetties, and bridges where fishing is allowed.

Notice of proposed rulemaking was published in the May 10, 1996 issue of the Florida Administrative Weekly.  No public rulemaking hearing was requested or held on the proposed rule amendment.  Notice of this meeting of the Board of Trustees was published in the June 14, 1996 issue of the F.A.W.

(See Attachment C, Pages 1-8)

RECOMMEND:     APPROVAL



Item D     Deletion of Rule Provisions           Rules: 46-4.012
             Establishing Prima Facie                   46-11.004
             Evidence                                   46-12.002
                                                        46-12.004
                                                        46-14.005
                                                        46-14.006
                                                        46-16.001
                                                        46-16.003
                                                        46-18.003
                                                        46-18.0055
                                                        46-27.014
                                                        46-27.019
                                                        46-29.002
                                                        46-31.016
                                                        46-33.003
                                                        46-36.002
                                                        46-39.002
                                                        46-41.002
                                                        46-42.002
                                                        46-42.004
                                                        46-42.009

Consideration of rule amendments for various rule chapters, deleting language establishing what constitutes prima facie evidence for violation or establishing a presumption.

PURPOSE AND EFFECT:  Pursuant to the First District Court of Appeal opinion in the case of Little v. Department of Labor and Employment Security, 652 So. 2d 927 (Fla. 1st D.C.A., 1995), in which it was Board of Trustees Agenda
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held that absent specific statutory or constitutional language, a state agency lacks the implied or inherent authority to adopt or apply a legal presumption, the staff of the Joint Administrative Procedures Committee has asked that the Commission eliminate all presumptions and prima facie language from its rules.  The purpose of these rule amendments is to thus remove the prima facie construct and presumptions from numerous MFC rules.  The effect will be to change what were previously presumptions into clear violations or more precise definitions.

SUMMARY:  Rules of the Commission regarding gear, Biscayne Bay - Card Sound Spiny Lobster Sanctuary, king mackerel, reef fish, queen conch, bay scallops, oysters, sardines, shrimp, billfish, black drum, mullet, dolphin, and marine life are amended to remove prima facie or presumption language. 

Notices of proposed rulemaking were published in either the March 22 or April 19, 1996 issues of the Florida Administrative Weekly.  A public rulemaking hearing was neither requested or held regarding these proposed rule amendments.  Notices of this meeting of the Board of Trustees were published in the June 14, 1996 issue of the F.A.W.

(See Attachment D, Pages 1-120)

RECOMMEND:     APPROVAL



Item E     Franklin, Wakulla, and Gulf          Rule Chapter 46-31

Consideration of proposed rule amendments and new rule for Rule Chapter 46-31, F.A.C., relating to shrimping in Franklin, Wakulla, and Gulf Counties.

PURPOSE AND EFFECT:  The purpose of this proposed rule amendment and new rule is to eliminate the current minimum size (count law) regulation of food shrimp production in the most eastern portion of the Northwest Region (including portions of Franklin and Wakulla Counties, and, minimally, Gulf County) and replace it with a system of allowable shrimp harvesting areas, general and variable closures, to protect small shrimp and other species occurring in shallow water nursery habitats and to maximize yield-per-recruit in the shrimp fishery.  In order to effectuate this purpose, it is necessary to repeal special acts of the Legislature that were made rules of the Department of Environmental Protection (formerly the Department of Natural Resources) subject to the Commission's jurisdiction upon its creation.
        The effect of this rulemaking will be to eliminate reliance on the establishment of an average count of shrimp on board food shrimp production vessels by law enforcement personnel, a time consuming and controversial activity, in favor of the more easily-enforced inshore areal closures.  If this transition results in more effective protection of small shrimp in this region's nursery areas, the yield-per-recruit in the shrimp fishery should be maintained and the economic value of the fishery safeguarded.
        This rule amendment and new rule will also serve to replace 46ER96-1, an emergency rule of the Commission that reopened an area immediately south of John Gorrie Memorial Bridge to shrimp harvest.  The area is seemingly closed by a Special Act (now a rule of the Department of Environmental Protection subject to the Commission's jurisdiction), but the closure has not been enforced for at least 16 years.  

SUMMARY:  A new paragraph (2)(d) is added to Rule 46-31.009, F.A.C., to eliminate minimum size limit (count) regulation on food Board of Trustees Agenda
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shrimp production in the Northwest Region east of a line of longitude running from Indian Pass south to the edge of state waters.
        Subsection (1) of proposed new Rule 46-31.018 repeals the following Special Acts, which are rules of the Department of Environmental Protection subject to Marine Fisheries Commission jurisdiction:
        1.  Subsections (2)-(6), (8)-(11), and (13) of section 4 of Chapter 65-905, Laws of Florida, as amended by Chapters 68-77 and 76-380, Laws of Florida, applicable to Gulf, Franklin, and Wakulla Counties.
        2.  Chapter 67-1063, Laws of Florida, as amended by Chapter 81-377, Laws of Florida, applicable to Franklin County.
        3.  Chapter 72-546, Laws of Florida, as amended by Chapter 79-460, Laws of Florida, applicable to Franklin County.
        Subsection (2) of the proposed new rule closes specified waters of Franklin County (Apalachicola Bay north of John Gorrie Memorial Bridge, all of the Carabelle River, and all waters of Sheepshead and Big Bayous on St. Vincent Island) to all harvest of shrimp year-round.  Subsection (3) closes Apalachicola Bay and St. Vincent Sound in Franklin County to all daytime shrimp harvest from July 15 through September 14 each year.  Subsection (4) closes specified waters of St. George Sound in Franklin County south of Green Point to all shrimp harvest from September 15 through December 31 each year.  Subsection (5) closes specified waters of Apalachicola Bay in Franklin County between the shipping channel and the mouth of St. Vincent Sound to all shrimp harvest from March 1 through May 31 each year.  Subsection (6) closes all waters of Indian Lagoon and St. Vincent Sound in Gulf County to all shrimp harvest year-round.  Subsection (7) closes Ochlockonee Bay west of the U.S. Highway 98 bridge in Franklin and Wakulla Counties and Chaires Creek in Franklin County to all harvest of shrimp year-round.  Subsection (8) closes specified inshore waters of Apalachee Bay and its tributaries, bays, and bayous in Wakulla County to food shrimp production and live bait shrimping year-round.

Notice of proposed rulemaking was published in the April 19, 1996 issue of the Florida Administrative Weekly.  A public rulemaking hearing was held on June 5, 1996, in Gainesville, Florida.  No changes were made to the rules as a result of the hearing.  Notice of this meeting of the Board of Trustees was published in the June 7, 1996 issue of the F.A.W.

(See Attachment E, Pages 1-26)

RECOMMEND:     APPROVAL