AGENDA BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND NOVEMBER 29, 1995 MARINE FISHERIES COMMISSION Item A Minutes Submittal of February 28, March 29, August 22, September 14, and October 12, 1995 minutes. (See Attachment A, Pages 1-5) RECOMMEND: APPROVAL Item B Rules of Organization, Practice, Rule Chapter 46-1 and Procedure Consideration of proposed rule amendments for Rule Chapter 46-1, F.A.C., relating to the organization, practice, and procedure of the marine Fisheries Commission. PURPOSE AND EFFECT: The primary purpose of these rule amendments is to codify specific procedures governing Marine Fisheries Commission rulemaking and confirm the Commission's ability to hold multiple hearings at different locations in a single rulemaking proceeding. The changes will have the effect of increasing public participation in Commission rulemaking by providing more hearings in disparate geographic areas of Florida. Another purpose of these rule amendments is to clarify the Commission's interpretation of its enabling legislation with regard to special acts of the Legislature that were converted into rules of the Department of Environmental Protection (formerly the Department of Natural Resources) subject to the Commission's jurisdiction. It is these rules of the Department that the Commission considers "rules derived from local laws" for which hearings in the particular county affected are required before Commission action regarding them. Finally, technical amendments are proposed for the chapter which update obsolete references. SUMMARY: Subsection (2) of Rule 46-1.001, F.A.C., is amended to reflect the current organizational position of the Marine Fisheries Commission within the Board of Trustees of the Internal Improvement Trust Fund. Subsection (4) of Rule 46-1.004, F.A.C., is amended to require the Commission to specify, prior to publishing a notice of proposed rulemaking, whether the Chairman, another Commissioner, or a staff member will serve as presiding officer at a rulemaking hearing. The rulemaking hearing may be held, at the option of the Commission, at one or more regular meetings of the Commission, at one or more special meetings of the board, at such other locations as deemed necessary by the Commission to assure adequate public participation from disparate geographic locations around the state, or at any combination of such locations. If a Commissioner or staff member serves as the presiding officer at a hearing in absence of a quorum of the Commission, the factual record of the proceeding must remain open for an additional 14 days for submission of further written comment. Final decisions of the Commission concerning a proposed rule are to be made after the record is closed, at a regular or special meeting of the Commission. The Commission would have the option to reopen the rulemaking hearing for additional fact-finding. Subsection (5) of Rule 46-1.004 is amended to clarify that the Commission considers special acts which became rules of the Department of Environmental Protection upon creation of the Commission to be rules derived from local laws for purposes of the local hearing requirement of Chapter 83-134, Laws of Florida. Subsection (6) of Rule 46-1.004 is amended technically to conform to the amendment made to subsection (5). Rule 46-1.006, F.A.C., is amended to eliminate a reference to Board of Trustees Agenda Marine Fisheries Commission November 29, 1995 Page Two the Department of Natural Resources. Rule 46-1.008, F.A.C., is amended to update references in the delegations to the Commission from the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund. In subsection (2) of the rule, a reference to recommended orders of the department in Section 120.57, F.S., proceedings is deleted as not applicable to the Commission. In subsection (3), a reference to the Governor and Cabinet is updated to refer to the Board of Trustees. Notice of Proposed Rulemaking was published in the September 1, 1995 issue of the Florida Administrative Weekly. No public hearing regarding organizational, practice, and procedural rules is required by Chapter 120, F.S., and none was held on these proposed rule amendments. Notice of this meeting of the Board of Trustees was published as part of the original notice. (See Attachment B, Pages 1-25) RECOMMEND: APPROVAL Item C Governor's Rule Reduction Initiative: Title 46, F.A.C. Rule Repeals Consideration of the proposed repeal of 60 rules of the Marine Fisheries Commission. PURPOSE AND EFFECT: The purpose of these rule repeals is to eliminate obsolete or otherwise substantively unnecessary rules from Title 46 of the Florida Administrative Code. The repeals are in response to a call from the Governor to reduce the number of state agency regulations. Many of the 60 rules being repealed are local law rules of the Commission which, after the adoption of the net ban, have had substantive provisions rendered obsolete and only serve as a record of local law repeals. Rules establishing severability for various rule chapters are recommended for repeal on the basis that severability is a principle of judicial and administrative construction that will apply regardless of the existence of a rule. Penalty rules are to be repealed, since the omnibus penalties provisions of Section 370.021, Florida Statutes, have superseded any ability the Commission ever had to establish penalties. The remainder of the rules recommended for repeal have been found to be substantively unnecessary. SUMMARY: The rules being repealed in this item are summarized in the various Notices of Proposed Rulemaking contained in the attachments. Notices of proposed rulemaking for these repeals were published in the September 1, 1995 issue of the Florida Administrative Weekly. No hearing was requested or held on the proposed rule repeals. Three rules that were originally proposed to be repealed - Rules 46-3.031, 46-25.001, and 46-25.0002, F.A.C. - were withdrawn by the Commission in action taken at the October 2-4, 1995 meeting in Sarasota. Notice of this meeting of the Board of Trustees was published as part of the original notices. (See Attachment C, Pages 1-140) RECOMMEND: APPROVAL Board of Trustees Agenda Marine Fisheries Commission November 29, 1995 Page Three Item D King Mackerel - Rule 46-12.0046 Gulf-Atlantic Fishery Consideration of proposed amendment of Rule 46-12.0046, F.A.C., relating to commercial harvest of king mackerel from the Gulf- Atlantic Fishery. PURPOSE AND EFFECT: In 1994, most of the commercial quota for king mackerel in federal Gulf of Mexico Exclusive Economic Zone (EEZ) waters was captured early in the season off the Florida Panhandle, leaving no remaining quota for the Florida Keys where, traditionally, most of the Gulf quota has been captured. Consequently, the federal Gulf of Mexico Fishery Management Council made an emergency allocation of 300,000 pounds beginning February 1, 1994, and applied a 125 fish daily vessel limit in the federal zone. There was no comparable daily vessel limit in Florida state waters, and many large scale boats escaped the federal trip limit by fishing in Florida state waters 35-40 miles west of Key West. To solve the allocation problem between the Panhandle and Southwest Florida, and between large and small boats, the Gulf Council is proposing a 125 fish daily vessel limit until 75% of the regional quota is captured, then 50 fish per vessel per day until the full quota is captured. To enhance enforceability of these federal regulations, it is necessary for Florida to adopt the same limits. The purpose of these rule amendments is to establish a new commercial daily vessel limit for king mackerel fished in the state waters of the Gulf coast. The effect will be to bring Florida regulations in line with federal regulations, thus aiding in the overall enforcement of the federal king mackerel fishery management plan for the Gulf of Mexico. SUMMARY: Rule 46-12.0046, F.A.C, is amended in paragraph (a) of subsection (4), to allow a daily 125 fish per vessel limit for the Gulf-Atlantic king mackerel fishery, from July 1, until harvest in adjacent EEZ waters is reduced to 50 fish per vessel per day. Language is amended in (b) of this subsection for consistency. Notice of proposed rulemaking was published in the September 1, 1995 issue of the Florida Administrative Weekly. No hearing was requested or held on the proposed rule amendment. Notice of this meeting of the Board of Trustees was published in the October 20, 1995 issue of the F.A.W. (See Attachment D, Pages 1-15) RECOMMEND: APPROVAL Item E Reef Fish Commercial Harvest Rule 46-14.0045 Consideration of proposed amendment of Rule 46-14.0045, F.A.C., relating to requirements for commercial reef fish harvest in the Gulf of Mexico. PURPOSE AND EFFECT: In October, 1993, requirements for the harvest and sale of reef fish (except red snapper) for commercial purposes in state waters of the Gulf of Mexico were amended to delay the need to possess a federal Gulf of Mexico reef fish permit during a federally imposed moratorium on the issuance of such permits. That moratorium was supposed to have been lifted by May, 1995, and then, after another amendment, by January 1, 1996. It is likely that the moratorium will again be extended beyond that date. The purpose of Board of Trustees Agenda Marine Fisheries Commission November 29, 1995 Page Four this amendment of subsection (1) of Rule 46-14.0045, F.A.C., is to continue current provisions, which allow commercial harvesters of reef fish in state waters of the Gulf to have either the federal Gulf permit or the federal South Atlantic snapper-grouper permit, until January 1, 1997. The effect of this rule amendment will be to allow commercial harvesters of reef fish species in state waters of the Gulf of Mexico, particularly those who harvest in the Atlantic and Gulf waters around the Florida Keys, to continue such harvest. SUMMARY: Subsection (1) of Rule 46-14.0045, F.A.C., is amended to delay requirement of a Gulf of Mexico reef fish permit for those commercially harvesting and selling reef fish species (except red snapper) from state waters of the Gulf of Mexico until January 1, 1997. Notice of proposed rulemaking was published in the October 6, 1995 issue of the Florida Administrative Weekly. No hearing was requested or held on the proposed rule amendment. Notice of this meeting of the Board of Trustees was published as part of the original notice. (See Attachment E, Pages 1-8) RECOMMEND: APPROVAL Item F Red Snapper Rule 46-14.007 Consideration of proposed amendment of Rule 46-14.007, F.A.C., relating to red snapper. PURPOSE AND EFFECT: Red snapper have been under restrictive federal management in the Gulf of Mexico Exclusive Economic Zone (EEZ) since April 1, 1990, when a commercial quota and recreational bag limit were first implemented. Considered overfished, federal managers targeted a 20% spawning potential ratio. Presently, the actual ratio is estimated at about 2%. In December, 1994, the National Marine Fisheries Service (NMFS) approved a Gulf of Mexico Fishery Management Council proposal to further reduce red snapper recreational bag limits from 7 fish to 5, and to prohibit all sale during closures of the commercial fishery. Florida regulations presently allow a 2 fish bag limit and continued commercial harvest and sale even when commercial harvest is prohibited in neighboring EEZ waters. In early January, 1995, federal regulators requested the Florida Marine Fisheries Commission, "to the maximum extent practical in Florida waters" enact regulations compatible with the new federal regulations. The action was requested to enhance enforceability of the new federal regulations. The purpose of these rule amendments is to establish a new bag limit for recreational fishers fishing for red snapper in state waters, and to prohibit the sale of red snapper during the corresponding closure to commercial harvest in the EEZ. The effect will be to bring Florida regulations in line with federal regulations, thus aiding in the overall enforcement of the federal fishery management plan for the rebuilding of red snapper. SUMMARY: Rule 46-14.007, is amended in paragraph (a) of subsection 3, to establish that the Gulf of Mexico recreational bag limit of 2 red snapper per day shall last until January 1, 1996, after which it shall be raised to 5 red snapper, per person, per day. Language is eliminated in subparagraphs 1. and 2. of the same subsection for consistency, and paragraph (b) of subsection (3), is amended to make it an affirmative violation for any person to fail to maintain Board of Trustees Agenda Marine Fisheries Commission November 29, 1995 Page Five the appropriate documentation evidencing that possession of red snapper greater than the established bag limit was purchased from a licensed wholesale or retail dealer. Subsection (4) of the same rule is amended to establish that should commercial harvest of red snapper be closed in federal waters, so too will adjacent state waters be closed until such time as the EEZ is reopened. Paragraph (a) of this subsection is amended to clarify that notice of such closure shall be given by the Secretary of the Department of Environmental Protection. Paragraph (b) of this subsection is added to establish that the purchase, sale, or exchange of red snapper shall be prohibited 5 days after the closure, & that such prohibition shall be announced in the notice mentioned above. Notice of proposed rulemaking was published in the September 1, 1995 issue of the Florida Administrative Weekly. No hearing was requested or held on the proposed rule amendment. Notice of this meeting of the Board of Trustees was published in the October 20, 1995 issue of the F.A.W. (See Attachment F, Pages 1-16) RECOMMEND: APPROVAL Item G Red Drum (Redfish) Rule Chapter 46-22 Consideration of proposed amendments for Rule Chapter 46-22, F.A.C., relating to red drum (redfish). PURPOSE AND EFFECT: During the mid 1980's, the red drum fishery (also known as redfish) was near collapse. Abundance levels were low, catch per unit of effort was poor, and it was estimated that only 0.2% of juveniles joined the adult spawning population. In an attempt to recover the redfish resources of the state, the Marine Fisheries Commission passed a management plan which severely curtailed harvest in state waters. The regulations have had a positive effect on this fishery, and redfish stocks in Florida have begun the process of recovery faster than had previously been anticipated. The purpose of these rule amendments is to allow increased access to this resource by eliminating a closed season, while still safeguarding the health and abundance of the fishery. The effect will be to provide some relief to other species such as snook and spotted seatrout, the latter of which is severely overfished in most areas of the state. Another purpose of these rule amendments is to respond to a Florida Marine Patrol request to require persons harvesting redfish on a fishing pier to keep the fish in a whole condition, and to prohibit the possession of a redfish aboard a vessel while simultaneously possessing a gill net. The effect of this language will be to aid enforcement of the redfish size limit and the prohibition against the harvest of redfish in federal waters. Finally, in compliance with the Governor's rule reduction program, an unnecessary rule providing for severability is repealed. SUMMARY: Rule 46-22.002, F.A.C., is amended to add a definition for "fishing pier". Additionally, the definition of the term "total length" is amended to clarify that such length is to be determined from the most forward point of the head to the hindmost point of the tail. In subsection (1) of Rule 46-22.005, F.A.C., language delineating a specific season for the harvest of redfish, is removed, while subsection (4) of the same rule is amended to Board of Trustees Agenda Marine Fisheries Commission November 29, 1995 Page Six eliminate a closed season. In renumbered subsection (2) prohibiting the sale of native redfish, the rule is amended to flatly assert that it is a violation of this rule to fail to maintain or produce the appropriate documentation evidencing that nonnative redfish entering the State of Florida in interstate commerce, originated from a point outside the waters of the state. Subsection (3) of Rule 46-22.006 is amended to make it an affirmative violation for the operator of a vessel to allow possession on board the vessel of redfish not in compliance with Chapters 46-4, or 46-22, F.A.C. Subsection (4) of the same rule requires the maintenance of harvested red drum in a whole condition on fishing piers and bridges where fishing is allowed. The rule was again amended in subsection (5) to clarify that the aquaculture exemption contained in this rule only applies to commercial aquaculture ventures, and further, to make it an affirmative offense to fail to maintain the appropriate documentation evidencing that such redfish was artificially spawned and raised in such commercial aquaculture facilities. Finally, with regard to this rule, subsection (6) is amended to prohibit the simultaneous possession aboard a vessel of redfish and an entangling net. The last amendment to this rule chapter was the repeal of Rule 46-22.007, F.A.C., which established the severability of the various rules within this chapter. Notice of proposed rulemaking was published in the June 30, 1995 issue of the Florida Administrative Weekly. A public rulemaking hearing was held by the Commission on August 7, 1995, in Daytona Beach, Florida. Notice of changes, withdrawal of proposed amendment of Rule 46-22.003, F.A.C., and this meeting of the Board of Trustees was published in the August 25, 1995 issue of the F.A.W. (See Attachment G, Pages 1-27) RECOMMEND: APPROVAL Item H Tarpon Rule Chapter 46-32 Consideration of proposed amendment of Rule 46-32.003, F.A.C., and proposed repeal of Rule 46-32.001, F.A.C., relating to tarpon. PURPOSE AND EFFECT: The primary purpose of this proposed rule amendment is to set the total number of tarpon tags to be issued by the Department of Environmental Protection in calendar year 1996 and also to establish the portion of those tags reserved for professional fishing guides for subsequent transfer to their customers, as required by Section 370.062(2), Florida Statutes. The number of tags thus authorized to be issued will continue to be 2,500, 1,250 of which will be for professional fishing guides for subsequent transfer to their customers. The continuing effect of the law and this rule will be to promote catch-and-release conservation practices and provide funding for tarpon research. A sceondary purpose of this rulemaking is to repeal a rule that is unnecessary. The repeal is one of a number of repeals in response to a call from the Governor to reduce the number of state agency regulations. The rule to be repealed establishes the Commission's purpose and intent in adopting the rule chapter on tarpon. While such rules are informative to the public and explain the necessity for regulation, they are not directive of behavior or necessary. The effect of this and other such repeals will be to unburden the Florida Administrative Code of rules that are not absolutely necessary to effective fisheries management. SUMMARY: Rule 46-32.001, F.A.C., which declares the purpose and Board of Trustees Agenda Marine Fisheries Commission November 29, 1995 Page Seven intent of the Marine Fisheries Commission in adopting Rule Chapter 46-32, F.A.C., is repealed. Rule 46-32.003 is amended to limit the total number of tarpon tags to be issued by the Department of Environmental Protection in calendar year 1996 to 2,500, 1,250 of which will be for professional fishing guides for subsequent transfer to their customers. Notice of proposed rulemaking was published in the September 1, 1995 issue of the Florida Administrative Weekly. No hearing was requested or held on the proposed rule amendment and repeal. Notice of this meeting of the Board of Trustees was published as part of the original notice. (See Attachment H, Pages 1-9) RECOMMEND: APPROVAL Item I Pompano, African Pompano, Permit Rule Chapter 46-35 Consideration of proposed amendments for Rule Chapter 46-35, F.A.C., relating to pompano, African pompano, and permit. These rule amendments were considered by the Marine Fisheries Commission in conjunction with rules governing a larger complex of finfishes, including flounder and sheepshead (see Item J), and tripletail (see Item K). PURPOSE AND EFFECT: Amendments to rule chapter 46-35, are proposed to establish a comprehensive management plan for: African pompano, any fish of the species Alectis ciliaris; pompano, any fish of the species Trachinotus carolinus; and permit, any fish of the species Trachinotus falcatus. Although data is scarce for permit and African pompano, there is strong public concern that these fisheries are overharvested. Florida pompano, on the other hand, is not yet overfished, nonetheless, it is the Commission's intent is to ensure the protection and conservation of each of these species, to avoid future crisis management while promoting the fisheries economic growth and maintaining future availability of these species for anglers. To develop these amendments, numerous workshops were held throughout the state in which extensive testimony was presented on the biological, social, economic and enforcement issues concerning these fisheries. Based on public comment and available scientific data, the Commission determined that similar biological properties between the species justified managing them in the same rule chapter, thus securing a benefit to the public through the simplification of regulations. The purpose of these proposed amendments is to provide a management plan that will protect these species from future potential overfishing. The effect will be to provide for these fisheries an increase in stocks for greater abundance and economic growth, while providing simple regulations to assist the public and aid in enforcement. SUMMARY: In subsection (1), amendments to Rule 46-35.001, F.A.C., include African pompano and pompano within the management plan established in this rule chapter to ensure the continued health and abundance of these species. Subsection (2) of this rule repeals Section 370.1125, Florida Statutes as it pertains to permit, subsection (3) designates pompano, African pompano, and permit, as restricted species, and subsection (4) provides an exemption from the requirements of this rule chapter, for pompano artificially spawned and raised in commercial aquaculture facilities. Rule section 46-35.002, F.A.C., is amended to add definitions for "African pompano", "permit", and "fishing pier", and the Board of Trustees Agenda Marine Fisheries Commission November 29, 1995 Page Eight definition of "fork Length" is modified to now refer to this measurement as "length", and to provide a clarification to this technical definition. Rule 46-35.003, F.A.C., is amended in paragraph (a) of subsection (1), to add to the existing minimum length of 10 inches for the harvest of pompano, the same minimum length for the harvest of permit, and a maximum length for the harvest of both species, of no greater than 20 inches. Paragraph (b) of subsection (1), establishes a prohibition against the harvest or possession in or on state waters, of African pompano with a length less than 24 inches, while the requirement that these species be maintained in a whole condition on fishing piers, jetties, and bridges where fishing is allowed, is moved from Rule 46-35.004, to paragraph (c) of subsection (1) of this rule. Paragraph (a) of subsection (2) establishes an aggregate bag limit of 10 pompano or permit per day, with an allowance that one fish may be greater than the maximum 20 inch size limit. Paragraph (b) of the same subsection provides for a 2 fish per person daily bag limit for African pompano, with a maximum daily possession of 2 fish per vessel. Finally, Rule 46-35.004 is amended to designate gear specifications and prohibited gear for these fisheries. Subsection (1) prohibits the landing or harvest of these species in or from state waters by or with the use of any multiple hook in conjunction with live or dead natural bait. Snagging (snatch hooking) is also prohibited. Paragraph (a) of subsection (2) prohibits the use of any gear other than hook and line for the harvest of African pompano or permit in or from state waters, and paragraph (b) of the same subsection prohibits the harvest of pompano by the use of any gear other than a beach or haul seine, a cast net, or hook and line gear. Notice of proposed rulemaking was published in the September 1, 1995 issue of the Florida Administrative Weekly. A public rulemaking hearing was held by the Commission on October 3, 1995, in Sarasota, Florida. Notice of changes made to the rule amendments and this meeting of the Board of Trustees was published in the October 20, 1995 issue of the F.A.W. (See Attachment I, Pages 1-59) RECOMMEND: APPROVAL Item J Flounder and Sheepshead Rule Chapter 46-48 Consideration of proposed new Rule Chapter 46-48, relating to flounder and sheepshead. PURPOSE AND EFFORT: New rule chapter 46-48, is proposed to establish a comprehensive management plan for flounder: fish of the species Paralichthys albigutta (Gulf flounder), Paralichthys lethostigma (Southern flounder), Paralichthys dentatus (summer flounder), or Etropus crossotus (fringed flounder), and for sheepshead: fish of the species Archosargus probatocephalus. While exploited at maximum yield per recruit, these species are not yet overfished. Accordingly, the Commission's intent is to protect and conserve these species, to avoid future crisis management while promoting the fisheries economic growth and maintaining their availability for anglers. To develop this rule chapter numerous workshops were held throughout the state in which extensive testimony was presented on the biological, social, economic and enforcement issues concerning these fisheries. Based on public comment and available scientific data, the Commission determined that similar biological properties between the species justified categorizing them together, thus Board of Trustees Agenda Marine Fisheries Commission November 29, 1995 Page Nine securing a benefit to the public through the simplification of regulations. The purpose of this proposed new rule chapter is to provide a management plan to protect these species from future overfishing. The effect will be to provide for these fisheries, an increase in stocks for greater abundance and economic growth, while providing simple regulations to assist the public and aid in enforcement. SUMMARY: Proposed new Rule 46-48.001 provides the purpose and intent in establishing this new rule chapter, effects the repeal of Section 370.11(2)(a)2., Florida Statutes and the remainder of Section 370.11(2)(a), Florida Statutes as it pertains to flounder, designates both flounder and sheepshead as restricted species, and provides an exemption from the rule chapter's requirements for flounder or sheepshead artificially spawned and raised in commercial aquaculture facilities. New Rule 46-48.002 establishes definitions for "fishing pier", "flounder", "harvest", "land", "length", "sheepshead", and "spear", or "lance". Size and bag limits are instituted in proposed new Rule 46-48.003. Paragraph (a) of subsection (1), prohibits harvest of these species if the total length is less than 12 inches, while paragraph (b) requires the maintenance of harvested flounder or sheepshead in a whole condition on fishing piers, jetties, and bridges where fishing is allowed. In paragraph (a) of subsection (2) a bag limit of 10 fish per person per day is established for flounder, while in paragraph (b), the same bag limit is established for sheepshead. Proposed new Rule 46-48.004 designates gear specifications and prohibited gear for these fisheries. Subsection (1) prohibits the landing or harvest of these species in or from state waters by or with the use of any multiple hook in conjunction with live or dead natural bait. Snagging (snatch hooking) is also prohibited. Paragraph (a) of subsection (2) permits the harvest of flounder or sheepshead with a spear, as long as the harvest does not exceed the recreational bag limit established in this rule. Paragraph (b)2. of subsection (2), prohibits the use of any gear other than a beach or haul seine, cast net, hook and line gear, or spear, to fish for sheepshead, while (b)1. of the subsection, allows the same gear for flounder with the additional use of a gig. Finally, paragraph (c) creates an exception to the gear requirements of this rule, for persons possessing a valid saltwater products license, who harvest flounder or sheepshead as an incidental bycatch of other target species with gear not specifically authorized by this rule, as long as the number of flounder so harvested and in possession of such person does not exceed 50 lbs, and the number of sheepshead so harvested and in possession of such person does not exceed 50 lbs. Notice of proposed rulemaking was published in the September 1, 1995 issue of the Florida Administrative Weekly. A public rulemaking hearing was held by the Commission on October 3, 1995, in Sarasota, Florida. Notice of changes made to the rule amendments and this meeting of the Board of Trustees was published in the October 20, 1995 issue of the F.A.W. (See Attachment J, Pages 1-20) RECOMMEND: APPROVAL Item K Tripletail Rule Chapter 46-49 Consideration of proposed new Rule Chapter 46-49, relating to tripletail. PURPOSE AND EFFECT: New rule chapter 46-49, is being proposed in Board of Trustees Agenda Marine Fisheries Commission November 29, 1995 Page Ten order to establish a comprehensive management plan for tripletail, any fish of the species Lobotes surinamensis. To develop this rule chapter, numerous workshops were held throughout the state in which extensive testimony was presented on the biological, social, economic and enforcement issues concerning this fishery. Not yet overfished, it is the Commission's intention to protect and conserve this species, and avoid future crisis management while promoting the fisheries economic growth and maintaining its availability for fishers. The purpose of this proposed new rule chapter is to provide a management plan to protect tripletail from future overfishing. The effect will be to provide an increase in stocks and greater abundance and economic growth for this fishery. SUMMARY: Proposed new Rule 46-49.001 establishes definitions for "fishing pier", "harvest", "land", "length", and "tripletail". Size and bag limits are instituted in proposed new Rule 46-49.002. Subsection (1) of this rule provides in paragraph (a), for a minimum size limit of 15 inches for tripletail harvested and possessed on state waters, while paragraph (b) requires the maintenance of harvested tripletail in a whole condition on fishing piers, jetties, and bridges where fishing is allowed. Subsection (2)(a) of this rule establishes a daily bag limit of two tripletail per person, while subsection (2)(b) establishes a daily commercial vessel limit of 10 tripletail per day for commercial harvesters possessing a valid saltwater products license with a restricted species endorsement. Finally, subsection (3) of this rule designates tripletail as a restricted species. Gear specifications and prohibited gear are delineated in proposed new Rule 46-49.003. Subsection (1) prohibits the harvest of tripletail in or from state waters by or with the use of any multiple hook in conjunction with live or dead natural bait. Snagging (snatch hooking) is also prohibited. Subsection (2) prohibits the use of any gear other than hook and line gear for the harvest of tripletail, while subsection (3) creates an exception to the rule's gear specifications for commercial harvesters who harvest tripletail as an incidental bycatch of other target species using other than hook and line, so long as the number of such tripletail does not exceed the recreational bag limit established in proposed new Rule 46-49.002(2)(a). Notice of proposed rulemaking was published in the September 1, 1995 issue of the Florida Administrative Weekly. A public rulemaking hearing was held by the Commission on October 3, 1995, in Sarasota, Florida. Notice of changes made to the rule amendments and this meeting of the Board of Trustees was published in the October 20, 1995 issue of the F.A.W. (See Attachment K, Pages 1-14) RECOMMEND: APPROVAL Item L Spotted Seatrout Rule Chapter 46-37 Consideration of proposed rule amendments for Rule Chapter 46-37, F.A.C., relating to spotted seatrout. PURPOSE AND EFFECT: Spotted seatrout, while being one of the most targeted fish in inshore Florida waters, is considered by scientists to be overfished. Present spawning potential ratio (SPR) for the species (the measure by which the Commission determines whether a fish is in being harvested in excess of its reproductive capacity) is estimated to be approximately 12.4% on the east coast and 14.8% on the west coast of the state. The Board of Trustees Agenda Marine Fisheries Commission November 29, 1995 Page Eleven Commission has determined that 35% SPR is the minimum safe level for spotted seatrout. To achieve this level of biological viability, fishing mortality for the species must be reduced by 50%. With implementation of Article X, Section 16 of the Florida Constitution on July 1, 1995, one source of spotted seatrout mortality, gill nets, will be removed from Florida waters. These proposed rule amendments are designed to implement the measures necessary to reduce fishing mortality 50% and achieve the 35% SPR biological goal in all regions of the state. The measures include reduction in the recreational bag limit to 5 fish per day on the east coast and in southwest Florida and 7 fish in northwest Florida (north and west of the Pasco-Pinellas County line); a narrowing of the recreational slot limit to 15 to 20 inches total length on the east and southwest coasts and 15 to 24 inches total length on the northwest coast (with an allowance for one larger trophy fish as part of the bag limit for recreational harvesters only); a closed season for all harvest during November and December on the east coast and in southwest Florida, and during February in northwest Florida, each year; and a daily commercial harvest and possession limit of 75 spotted seatrout (within the size range of 15 to 24 inches total length) during a limited commercial season between June 1 and August 31 each year. In accord with the new constitutional amendment, all reference to gill and trammel nets is deleted and allowable gear is limited to hook and line gear and cast nets. Upon reaching equilibrium in the fishery, spotted seatrout abundance should increase to safe levels and the long term health of the species should be assured. Many provisions of this rule chapter, originally adopted in 1989, are being deleted to make way for the stricter, though simpler, measures. SUMMARY: Rule 46-37.002, F.A.C., is amended to add definitions of the terms "East Region", "fishing pier", "Northwest Region", and "Southwest Region" for purposes of the rule chapter. Additionally, the definition of the term "harvest for commercial purposes" is amended to delete reference to nets and to flatly state that harvest of spotted seatrout in excess of the recreational bag limit constitutes harvest for commercial purposes. The definition of the term "total length" is amended to clarify that such length is to be determined from the most forward point of the head to the hindmost point of the tail. Subsection (1) of Rule 46-37.003 is amended to increase the minimum size limit for spotted seatrout to 15 inches and to decrease the maximum size for recreational harvesters in the east and southwest Florida regions to 20 inches and maintain the maximum size in the northwest region at 24 inches. Provisions allowing the harvest of one spotted seatrout per day larger than the maximum size limit are retained. Subsection (2) of the rule is amended to increase the minimum size of spotted seatrout for purposes of sale to 15 inches and impose a maximum size limit for such purposes of 24 inches. Subsection (3) is amended to require the maintenance of harvested seatrout in a whole condition on fishing piers, bridges, and jetties where fishing is allowed. Subsection (1) of Rule 46-37.004 is amended to establish East, Southwest, and Northeast Regions and decrease the daily recreational bag and possession limit from 10 to 5 spotted seatrout in the East and Southwest Regions and to 7 fish in the Northwest Region. Subsection (2) of the rule, which provides a mechanism for annual season harvest limit adjustment, is deleted. A closed season during the months of November and December is established for the East and Southwest Regions and a February closure is set for the Northwest Region. Rule 46-37.005, F.A.C., is amended to delete the current regionalization of commercial seatrout harvest, daily vessel limits, and season harvest limits and replace the provisions with a June through August annual commercial seatrout season with 75 fish daily vessel and possession limits. Sale of spotted seatrout Board of Trustees Agenda Marine Fisheries Commission November 29, 1995 Page Twelve is prohibited outside specified season related dates, though documented spotted seatrout entering the state in interstate commerce may still be sold during the closed season. A mechanism for annual season harvest limit adjustment, is deleted. Subsection (2) of Rule 46-37.006 is amended to delete obsolete minimum mesh size provisions and to specify what gear - hook and line gear and cast nets - will be allowed in the harvest of spotted seatrout. Subsection (3) is amended to delete obsolete bycatch allowance provisions and to prohibit simultaneous possession of any gill or entangling net together with any spotted seatrout. Notice of proposed rulemaking was published in the June 30, 1995 issue of the Florida Administrative Weekly. A public rulemaking hearing was held by the Commission on August 7-8, 1995, in Daytona Beach, Florida, and reopened and continued on October 2, 1995, in Sarasota, Florida. Notices of chnages in the proposed rule amendments were published in the August 25 and October 20, 1995 issues of the Florida Administrative Weekly. Notice of this meeting of the Board of Trustees was published as part of the notice in the latter issue. (See Attachment L, Pages 1-79) RECOMMEND: APPROVAL Item M Shrimping Rule Chapter 46-31 Consideration of proposed rule amendments and new rule for Rule Chapter 46-31, F.A.C., relating to shrimping and trawl gear specifications. THIS ITEM WAS DEFERRED FROM THE AUGUST 22, 1995 BOARD OF TRUSTEES MFC AGENDA. PURPOSE AND EFFECT: On November 8, 1994, the electorate of the State of Florida adopted Article X, Section 16 to the State Constitution. The provision prohibits the use of gill or entangling nets to take marine animals and places limitations on other nets, including shrimp trawls, in nearshore and inshore Florida waters. The constitutional provision effectively changes the direction of marine fisheries regulation in the state. The primary purpose of these rule amendments and new rule is to conform the Marine Fisheries Commission's shrimp and trawl gear rules to this new direction, implement new prohibitions and specifications to enhance enforcement of the amendment, and provide guidance to Florida citizens in complying with the requirements of the new provision. The new constitutional provision limits trawls and other nonentangling nets used in nearshore and inshore Florida waters to no more than 500 square feet in mesh area. A judicial construction of the wording of Article X, Section 16 was sought in the case of Millender, et al. v. State of Florida, Department of Environmental Protection, Florida Marine Patrol, and the Florida Marine Fisheries Commission. On May 11, 1995, a decision was rendered in that case. The Court ruled that a trawl with a 65.75 foot perimeter and a 29 foot length (stretched) met the constitutional requirement. That decision is incorporated in these rules by the specification of a perimeter no greater than 66 feet for otter trawls used in nearshore and inshore Florida waters. The specification of the maximum perimeter will assist in the enforcement of the amendment, which will, in turn, have the effect of minimizing the unnecessary mortality of marine species in this type of fishing gear, the primary goal of the constitutional amendment. The goal of the amendment is consistent with the standards set forth in Section 370.025, Florida Statutes, for Commission rulemaking. Trawl gear is very nonselective and tends to capture and kill Board of Trustees Agenda Marine Fisheries Commission November 29, 1995 Page Thirteen many species of marine animals in addition to its traditional target, shrimp. Trawl bycatch has been recognized as a major fisheries problem throughout the Southeastern United States. Major research and testing has been undertaken to reduce bycatch in shrimp trawls to the lowest levels possible. An important component of these rule amendments and new rule is, therefore, the declaration that trawls are an allowable gear for the directed harvest of shrimp only. The Commission has determined that the use of trawls in the directed harvest of finfish at this time is not in the best interest of the continuing health and abundance of the marine resources of the state, and is particularly inconsistent with the new direction mandated for the regulation of the state's fisheries by Article X, Section 16 of the Constitution. SUMMARY: Rule 46-31.001, F.A.C., is amended to reflect the intention that rules governing the Northeast Florida Live Bait Shrimp Fishery apply to nearshore and inshore Florida waters and delete obsolete language. Rule 46-31.002, F.A.C., is amended to delete definition of the term "inland water", and update the definition of the term "licensed live bait shrimp producer." Subsection (1) of Rule 46-31.003, F.A.C., is amended to limit the mesh area of trawls used in the northeast live bait fishery to the amount allowed by Article X, Section 10 of the Florida Constitution. Subsection (1) of new Rule 46-31.0035 declares that trawls are allowable gear for the direct harvest of shrimp only. Subsection (2) limits the size of all trawls used in nearshore and inshore Florida waters to 500 square feet of mesh area. Subsection (3) defines the terms "mesh area", "nearshore and inshore Florida waters", "Florida waters", "coastline", and "unconnected" for purposes of the rule chapter. Paragraph (2)(d) of Rule 46-31.004, F.A.C., which exempts small trawls from Turtle Excluder Device (TED) requirements and clarifies that TEDs are required in specified waters of Wakulla County, is deleted as obsolete. Obsolete definitions of the terms "headrope" and "inside waters" are deleted in subsection (4) of the rule. Rule 46-31.007, F.A.C., is amended to limit the size of cast nets and beach or haul seines used in the recreational harvest of shrimp to 500 square feet of mesh area. Otter trawls are deleted as allowed gear for the recreational harvest of shrimp in paragraph (2)(g) of the rule. Subsection (1) of Rule 46-31.008, F.A.C., is amended to limit roller frame trawls used to harvest live shrimp for bait to 500 square feet of mesh area and assure that when two such trawls are used, they are unconnected. Subsection (3) of Rule 46-31.009, F.A.C., is amended to limit the size of try nets used in nearshore and inshore Florida waters for food shrimp production to a headrope of 10 feet and a maximum perimeter of 30 feet and to clarify that the try net will be considered as one of the two unconnected nets allowed in such waters. Subsection (1) of Rule 46-31.010, F.A.C., is amended to limit the size of roller frame and otter trawls used in food shrimp production in nearshore and inshore waters of the Northwest Region to 500 square feet of mesh area, and to assure that two such trawls are not connected and include any try net. Otter trawls used in nearshore and inshore waters of the region are limited to a maximum perimeter around the mouth of the net of 66 feet. Subsection (1) of Rule 46-31.011, F.A.C., is amended to limit the size of roller frame trawls used in food shrimp production in the Big Bend Region to 500 square feet of mesh area, and to assure that two such trawls are not connected. Subsection (1) of Rule 46- 31.012, F.A.C., is amended to limit the size of roller frame and otter trawls used in food shrimp production in nearshore and inshore waters of the Southwest Region to 500 square feet of mesh area, and to assure that two such trawls (where allowed) are not connected and include any try net. Otter trawls used in nearshore Board of Trustees Agenda Marine Fisheries Commission November 29, 1995 Page Fourteen and inshore waters of the region are limited to a maximum perimeter around the mouth of the net of 66 feet. The limitation to one trawl in inside waters of the region (other than Tampa Bay) is maintained. Rule 46-31.013, F.A.C., is amended to limit the size of wing nets and frame nets used in food shrimp production in nearshore and inshore waters of the Southeast Region to 500 square feet of mesh area, and to assure that two such nets are not connected. Subsection (1) of Rule 46-31.014, F.A.C., is amended to limit the size of roller frame and otter trawls used in food shrimp production in nearshore and inshore waters of the Northeast Region to 500 square feet of mesh area, and to assure that two such trawls are not connected and include any try net. The rule will now allow two unconnected otter trawls to be used in nearshore and inshore waters of the region, each with a maximum perimeter around the mouth of the net of 66 feet. Rule 46-31.015, F.A.C., is amended to delete reference to recreational otter trawls used in the Northeast region. Notice of proposed rulemaking was published in the June 30, 1995 issue of the Florida Administrative Weekly. A public rulemaking hearing was held on August 8, 1995, in Daytona Beach, Florida. Notice of the changes made at the hearing were published in the August 25, 1995 issue of the F.A.W. After deferral of this item at the August 22, 1995 meeting of the Board of Trustees, the Commission met on September 8, 1995, in an emergency meeting in Tallahassee and decided to reopen the public rulemaking hearing at its October 1995 meeting. Pursuant to a notice published in the September 22, 1995 issue of the F.A.W., the public hearing was reopened on October 2, 1995, in Sarasota, Florida. No substantive changes were made in this reopened hearing. Notice of this meeting of the Board of Trustees was published in the October 20, 1995 issue of the F.A.W. Be advised that if these rule amendments and new rule are approved by the Board of Trustees, two pending rule challenges will have to be dismissed before the rules can be filed for adoption with the Department of State. The challenges were filed in late September to allow the Commission to extend the period of effectiveness of Emergency Rule 46ER95-1, which allowed two 66-foot trawls to be used in the Northeast Region of Florida. The emergency rule remains in effect until these permanent rules become effective. (See Attachment M, Pages 1-121) RECOMMEND: APPROVAL