Legislation enacted in 1996 substantially amended Florida's Administrative Procedure Act (APA or the Act). The APA now includes provisions for uniform procedural rules, summary proceedings, and additional opportunities to challenge proposed rules. It includes new sections on mediation, negotiated rulemaking, and waiver of rules. The entire Act has been renumbered, reorganized, and simplified. But the most significant change ultimately may evolve from a series of amendments relating to legislative checks on the rulemaking process. Although these changes have drawn scant attention, they alone have the potential to substantially alter the structure of administrative law in Florida.
This Article reviews the new provisions of the APA that involve legislative direction and oversight of agency rulemaking in Florida. Analysis of these new provisions must be grounded in an understanding of the basic legislative and executive branch prerogatives with respect to rulemaking. Part II of this Article provides a brief overview of the principle of separation of powers and Florida's nondelegation doctrine. The new Act's apparently disparate legislative checks on rulemaking are in fact best understood as elements of a rather ambitious plan to return mid-level policy formulation to the Legislature.
Part III considers several new provisions relating to day-to-day oversight of the rulemaking process. The Joint Administrative Procedures Committee (JAPC) has been given new responsibilities. Not only is JAPC to more closely monitor agency rulemaking, but, for the first time, it also must establish measurement criteria to evaluate whether agencies are complying with delegated legislative authority when adopting and implementing rules. The information gathered by JAPC may later help the Legislature decide whether to tighten or loosen some of the new provisions of the Act.
Part IV discusses the controversial "legislative veto," which provides the context for analysis of the new suspension provisions of the Act. Rule suspension in the APA has been carefully constructed to avoid any question of constitutionality. The suspension provisions signal agencies that rule objections have a new importance and bring information about an agency's refusal to accede to objections made by JAPC to the attention of the legislative leadership.
Part V examines the new limitations on an agency's power to adopt rules, the heart of the plan to return mid-level policymaking to the legislative branch. A brief review of historically competing standards of judicial review sets the stage for the APA's rejection of the more liberal standard. After analyzing the new standard, this Article describes the elaborate plan designed to bring existing rules into compliance.
Part VI discusses the expressed legislative intent to provide more specific statutory guidance for rulemaking. Inherent pressures exist that compel the Legislature toward generality. These pressures will have to be overcome if this effort is to succeed. Recognizing the need for a more comprehensive revision of statutory delegation provisions, the new APA prompts legislative reconsideration of grants made in the past and establishes a review mechanism for the future.
Finally, Part VII concludes that the formidable goal of shifting the distribution of policymaking authority away from agencies in favor of the Legislature will be difficult to achieve. Meeting this goal will require effort by agencies, administrative law judges, the courts, and the Legislature itself.
One major purpose behind the enactment of the APA in 1974 was to eliminate phantom government by curbing administrative agencies that the Legislature perceived were acting beyond their delegated authority. Twenty years later, many legislators were disappointed with the results. Some were convinced that major amendments were again needed to move toward this elusive goal. In 1994, each house passed an APA reform bill, but the differences between them could not be fully resolved prior to the end of the legislative session. In 1995, a major reform bill passed both houses but was vetoed by Governor Lawton Chiles. In 1996, portions of the previous year's bill were combined with recommendations of the Governor's Administrative Procedure Act Review Commission and enacted by the 1996 Legislature. The amendments examined here are best understood as a product of the continuing legislative objective to constrain agencies from adopting rules beyond their delegated authority. Before examining specific provisions of the new APA, some background information on the separation of powers and the delegation of legislative authority must be considered.
The purpose of separation of powers was best described by James Madison. He wrote, "[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny." Separation of powers was deeply rooted in the political philosophies of Locke and especially Montesquieu, and was a foundation for the text or interpretation not only of the Constitution of the new nation, but also those of all fifty of its states. The doctrine continues to shape our legal system.
The philosophy of Montesquieu takes form in article II, section 3 of the Florida Constitution: "The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any of the powers appertaining to either of the other branches unless expressly provided herein." The Florida Constitution goes on to vest the lawmaking power in the two houses of the Florida Legislature. The constitution provides limited executive involvement in the lawmaking power in its gubernatorial veto provisions, but contains no grant of quasi-legislative power to administrative agencies.
Despite this stringent limitation, Florida courts have found the delegation of some lawmaking power to administrative agencies inevitable. This exception allowing delegated rulemaking is not based upon conceptual distinction, but upon practical reality. Legislation cannot be so specific that it anticipates every eventuality and addresses every detail. If government is to work, agencies must have latitude to "fill in the details" of a statutory program. The power to adopt rules is not inherent in the executive branch, however; therefore, the Legislature must delegate this lawmaking power.
Nevertheless, the Florida Supreme Court also has stated that there are limitations on the Legislature's ability to delegate lawmaking power. Cases over the years have referred to the need for delegations to contain "an intelligible principle," have "adequate standards to guide the ministerial agency," have "objective guidelines and standards," be "accompanied by adequate guidelines," or have "reasonably definite standards." In a frequently quoted passage on delegation, the court expressed the limits of delegated rulemaking power: "Flexibility by an administrative agency to administer a legislatively articulated policy is essential to meet the complexities of our modern society, but flexibility in administration of a legislative program is essentially different from reposing in an administrative body the power to establish fundamental policy." The purpose of the statutory guidelines, then, is to establish public policy, so that a court may have a standard against which to evaluate the agency's rules. Without such guidelines, the courts proclaim, a statute attempting delegation is itself invalid.
The distinction, however, between establishing public policy and filling in details is not always easy to see. In one sense, all of the statutes mentioned above contained some general guideline, but the statutes were nevertheless invalidated because the Florida Supreme Court realized that too broad a standard is illusory and delegates the choice of basic policy to the administering agency.
The details routinely left for agency explication are not mere technical issues without policy impact. The hordes of lobbyists targeting executive branch agencies make it impossible to deny the political nature of agency decisionmaking. This is an inevitable result of the delegation of power. As Professor Theodore J. Lowi succinctly put it, "politics will always flow to the point of discretion." The process restraints of administrative procedure acts have been imposed largely because of the political nature of agency decisionmaking. As one able observer of the administrative process noted, "[i]ncreasingly, the function of administrative law is . . . the provision of a surrogate political process to ensure the fair representation of a wide range of affected interests in the process of administrative decision." Indeed, the very structure of many agencies reflects a deliberate attempt to create a politically responsive decisionmaking process to serve in lieu of specific policy direction from the Legislature. However, a surrogate political process can never be a fully satisfactory substitute for the general consensus possible when the Legislature itself establishes policy. The imperfect, but still effective, constitutional structures that pit one interest group against another, one branch of government against another, one political party against another, and one legislative house against another, do not operate at the administrative level.
One serious concern is that the delegation of policy questions to an administrative agency may enhance the power of regulated industries or of other special interests at the expense of the overall public good. This may result from the relatively narrower focus of the agency on a single area of the law that can make it impossible to evaluate proposed programs in a broader context. With delegation, each separate agency controls the political process relating to a given set of issues, and the interest groups concerned with those issues are able to exert their influence unopposed by more general interests. In what might be viewed as an attempt to artificially broaden agency perspective, legislation has been filed in Florida over the years requiring agencies to give specific consideration in their rulemaking to economic impact, small businesses, family values, and small counties and cities.
The challenge is to decide how much delegation should be allowed. This is an important question. The United States and Florida constitutions require at least a majority vote of both houses of a representative legislative body and the approval of the chief executive as a prerequisite to adoption of public policy. This significant hurdle is not simply a matter of parliamentary procedure. The procedure reflects a profound understanding that, in the long run, a government that acts to implement policies unsupported by general consensus ceases to be a democracy and will eventually become unstable. The process was not designed to be efficient, but to achieve other goals, one of which was to prevent the adoption of controversial policies not enjoying broad public support. Delegation of the power to make policy decisions from a democratically elected legislative branch to any entity able to act in the absence of consensus reduces the power of democratic institutions and divorces the government from the people. One result may be an increase in public frustration with government arising from perceived lack of control.
The nondelegation doctrine is used to evaluate statutes. The doctrine prescribes the maximum extent to which the lawmaking power may be delegated to an agency of the executive branch. However, while the Florida Constitution authorizes delegation of the power to adopt rules, it does not require it. The cases recognize that within constitutional limits, delegation is a matter of political choice. In Askew v. Cross Key Waterways, the Florida Supreme Court, describing the constitutional provisions assigning lawmaking power to the Legislature, declared: "We believe that one of the legislative powers granted by these provisions is the power to determine the amount of discretion an administrative agency should exercise in carrying out the duties granted to it by the legislature." Thus, Florida may choose to delegate less rulemaking authority to its administrative agencies, or may choose to delegate no rulemaking authority at all. In the new APA, Florida has expressed its intent to delegate less authority for agencies to formulate policy by rule. The Legislature has created a stricter test to be applied in determining the validity of agency rules by requiring more specific statutory authority than that minimally required by the Florida Constitution.
The new statutory test is applied to rules, not to statutes. But the intended effect of the statutory rulemaking provision differs from the constitutional nondelegation doctrine only in degree, not in direction. The nondelegation doctrine compels the Legislature to enact more detailed laws in response to judicial invalidation of extremely broad delegations of legislative authority. The new rulemaking provision is intended to compel the agency to return to the Legislature for more detailed laws as a response to an invalidation of rules by the Division of Administrative Hearings (DOAH) based upon very broad delegations of legislative authority.
This decision to delegate less is a deceptively simple solution to the perceived problem of administrative agencies exceeding their delegated authority. In fact, it comes with a host of potential problems. First, unless rulemaking is completely prohibited, some level of authority for an agency to adopt policy by rule will still exist. It reasonably might be supposed that the very pressures that before resulted (from the legislative perspective) in an agency going beyond its (larger) grant of authority will still remain. Thus, is it not predictable that the decision to delegate less will similarly result in the agency going beyond its new (smaller) grant of authority? There might even be additional excesses as an agency adjusts to the new stricter standard.
Second, if it were possible to devise a clear test to determine the point at which an agency exceeds delegated authority, such a test would have been discovered long ago. A new, more restrictive grant of delegated authority is unlikely to be much easier to define. A statutory intent to delegate less may be clear, but the problems inherent in determining exactly where the boundary lies will undoubtedly remain.
A third problem concerns existing rules. Delegation of less authority to adopt rules has no immediate effect upon the thousands of administrative rules currently in effect. If they are all simply grandfathered in as valid rules, the effect of less delegation is tremendously diminished. If they are all declared immediately invalid, great disruption in government programs results.
Finally, not only must agencies redraft rules, but the Legislature also must redraft statutes. The concept of less delegation is linked to the requirement that the Legislature give more policy direction in enabling legislation. If the Legislature declines to delegate very broad power, the agency will be unable to establish the mid-level policy that in the past has been adopted by rule. The burden will then fall on the Legislature to provide this guidance if the legislative program is to be effectively implemented. This may be difficult for the Legislature. Also, there is again the problem of existing statutes. Must they all be repealed or rewritten to provide additional guidance? What process should the Legislature use to review existing statutory delegations?
In the provisions discussed in this Article, the Legislature has tried to address some of the problems mentioned herein and has accepted the challenge of returning mid-level policy formulation to the Legislature. It is indeed a formidable dream.
The 1996 amendments to the APA and to the statute governing the operation of the JAPC attempt to improve legislative oversight of the rule adoption process. JAPC already is active in this function, and the amendments do not fundamentally change its role. JAPC has new responsibility to establish measurement criteria, maintain a continuous review of agency procedure, and certify that an agency has responded to committee inquiries.
The Legislature has long been concerned that executive branch agencies not exceed their delegated powers when adopting rules. However, it is hard to determine exactly when and to what extent Florida agencies exceed delegated authority. Constituents bombard their legislators with specific tales of abuse, but these complaints provide little information of a systemic nature. It would be easier to determine if periodic adjustments to Florida's administrative law system were needed if there were a more structured and continuous monitoring process in place.
One step toward implementing a monitoring process for the exercise of administrative powers is found in section 11.60, Florida Statutes. This section now provides that JAPC shall "[e]stablish measurement criteria to evaluate whether agencies are complying with the delegation of legislative authority in adopting and implementing rules." This will be a difficult task. The nature of the criteria and the means of collecting data are not yet clear. Still, several preliminary observations are possible. First, the phrase "measurement criteria" suggests some sort of quantitative yardstick against which agency rulemaking can be evaluated. Such a measure could never be completely objective, but nevertheless it could provide a valuable tool to indicate agency and statewide trends.
Second, the statute directs the committee to measure agencies' compliance with authority not only in adopting, but also in implementing rules. Concern with implementation of rules is relatively new ground for JAPC. In the past, JAPC oversight has focused on the adoption of rules, not on how a rule is actually implemented after it has been adopted. This may prove to be the most challenging part of the new assignment.
Most importantly, the new requirement indicates a desire to establish a statistical measure of compliance with delegated authority. While the measure is likely to be crude, it still should provide a valuable supplement to the anecdotal information that has to this point been the only information available for legislative consideration. In directing JAPC to adopt these criteria, the Legislature has expressed a desire to have more information about what happens after a statute is passed and an agency adopts its rules. Whatever criteria are adopted, they will undoubtedly be refined over time. One factor that might reasonably be included would be the number of complaints reviewed by JAPC.
JAPC is required to examine each proposed ruleand is authorized to examine any existing rule. JAPC has always welcomed information and comments from any person about a specific rule or about the rulemaking process, either in a particular case or a more general setting. If a rule is determined to violate the criteria set forth in section 120.545(1), Florida Statutes, it is JAPC's responsibility to object. JAPC cannot decline to do so based upon the source of the information leading to examination of the rule. In this sense, JAPC has always received citizen complaints. Section 11.60(2)(l), Florida Statutes, now also requires that JAPC "[m]aintain a continuous review of the administrative rulemaking process, including a review of agency procedure and of complaints based on such agency procedure." JAPC review of a rule has always included a review of the procedures followed when adopting the rule. This review ensures that all statutory requirements were met. However, the first phrase of the new statute seems to place more emphasis on the rulemaking process itself than on the review of any particular rule.
Complaints about agency rulemaking procedure will certainly include complaints about procedures that were not violations of any specific statutory rulemaking requirement. The new charge to JAPC, therefore, slightly expands the concern of JAPC beyond violations of legally required procedures. An agency following all required procedures can still generate complaints from people who believed the procedures were inadequate to address their concerns, failed to give them sufficient opportunity for participation, or were simply unfair. While these individuals may have no immediate legal recourse, JAPC can at least document their concerns.
This emphasis on the overall rulemaking process, as well as the phrase "continuous review," may be intended to provide a constant source of information upon which to base possible future changes to the APA. JAPC may wish to include the results of its continuous review as part of its annual report.
In conducting its examination of an agency rule, JAPC frequently sends comments and questions to the agency. These comments and questions alert the agency that JAPC has concerns about the rule. Often, the agency can make technical or substantive changes and resolve these potential committee objections before the rule is adopted. Most agencies promptly respond to letters sent by JAPC, stating that they agree with the JAPC comment and will change the rule, that they disagree with the comment and decline to change the rule, or that they invite further dialogue on the rule to resolve the concerns. With some complicated rules, numerous letters are exchanged between JAPC and the agency. A few agencies, however, have simply not responded to letters from JAPC.
A provision requiring JAPC to certify that the agency had responded to all JAPC inquiries before a rule could be filed for adoption was included in the vetoed 1995 bill, and was enacted as part of the new legislation. Section 120.54(3)(e)(4), Florida Statutes, now provides:
At the time a rule is filed, the committee shall certify whether the agency has responded in writing to all material and timely written comments or written inquiries made on behalf of the committee. The [Department of State] shall reject any rule not filed within the prescribed time limits; that does not satisfy all statutory rulemaking requirements; upon which an agency has not responded in writing to all material and timely written inquiries or written comments; upon which an administrative determination is pending; or which does not include a statement of estimated regulatory costs, if required.If the Department of State (DOS) rejects a rule for any reason, there is no provision in the APA prohibiting resubmission of the rule after the problem has been corrected. In the meantime, the statutory deadline for filing rules continues to run. If the time expires before DOS accepts the rule, the rule must be withdrawn.
Under the new certification provision, the authority and responsibility to reject the rule is vested solely with DOS and is predicated upon a factual determination. Regardless of the content or lack of a certification by JAPC, if DOS determines that an agency has not responded in writing to all material and timely written inquiries or written comments, then DOS must reject the rule. Naturally, the certification from JAPC will serve as prima facie evidence, and, in most cases, this will allow DOS to act consistently with the statement in the certification. However, if contrary evidence appears, DOS, not JAPC, must make the determination. In rare circumstances, this may become a difficult decision.
It is unclear how the requirement that JAPC certify a rule at the time it is filed will work in practice. Unless JAPC is specifically notified, only the agency is aware of exactly when a rule will be filed. JAPC will be aware of the earliest date that a rule could be adopted because it must receive in advance a notice of changes or a notice that the rule has not been changed. After this notice, if JAPC has received responses to all of its comments and inquiries—and has nothing further to add—it might be possible for JAPC to prepare its certification. However, it would apparently not meet the statute's requirements to send it to DOS before the rule filing. Also, advance preparation of the certification would not be possible if there were unanswered letters that still might receive responses in the time remaining before filing. The certification process will work most efficiently if the agency filing the rule will notify JAPC of the exact date of filing.
More esoteric questions also may arise. What are "material and timely" comments and inquiries? It seems self-evident that the usual correspondence from JAPC regarding a particular rule would be material. Still, agencies may wish to keep the issue in mind because the requirement to respond does not arise if comments and inquiries are not material. Dispute seems more likely over the question of timeliness.
In approaching the timeliness issue, two thoughts come to mind. First, the requirement seems to be for the benefit of the agency, and usually should be considered from that perspective. Second, in routine rulemaking, timeliness seems to be relative to the deadlines for filing the rule. An agency may not reasonably be expected to immediately respond to comments and inquiries received on the eighty-ninth day if taking time to do so would cause them to miss the filing deadline and force them to begin rulemaking anew. On the other hand, comments and inquiries received on the thirtieth day after notice should not be considered untimely just because an agency had planned on filing the rule on the thirty-first day, as there is no requirement that the agency do so. Because JAPC has always received prompt written responses from the vast majority of agencies and maintains a professional working relationship with them, these issues can undoubtedly be resolved in most cases.
Other issues concern the requirement that there be a response. The modifying phrase "in writing" does not seem too hard to understand, or too burdensome, although it will require adjustment in the practice of a few agencies. But exactly what does it mean to respond? It is not reasonable to suggest that an agency has not responded to JAPC comments just because the agency disagrees with JAPC's position and declines to change its rule. The agency is compelled to respond to JAPC, not to adopt its point of view. At the other extreme, an agency cannot be said to have responded simply because a return letter was received. As a simplistic example, consider a JAPC inquiry as to the day on which the public hearing was held and a return letter with the answer "blue." Classification of this as a legitimate response would defeat the entire purpose of the new provision. The problem is not limited to such extreme examples because failure to respond to the content of an inquiry need not be intentional. When numerous issues are raised, as is often done by JAPC, it is easy to overlook one. But if an agency makes a good faith effort to address all comments and inquiries raised and JAPC quickly points out any failure to respond to an issue, disputes should seldom arise.
Finally, DOS is directed to reject the rule if the agency has not responded in writing to all material and timely written inquiries or written comments. No specific reference is made to comments and inquiries from JAPC. While the use of identical language leaves no room to doubt that JAPC's comments and inquiries are included, the duty to reject appears broader. If the courts were to confirm such an interpretation, an agency would have the duty to respond to correspondence from the general public.
The new APA legislation does more than effect relatively minor changes to JAPC's oversight of rulemaking. The legislation creates, for the first time in Florida, a process to legislatively suspend an agency rule. Before reviewing these provisions, an examination of the contentious legal debate surrounding legislative veto and suspension powers is necessary.
As discussed above, the separation of powers doctrine has been found flexible enough to permit the delegation of legislative power to agencies in the form of rulemaking. However, the result has been less than satisfactory to many legislative bodies. They are convinced that agencies have gone beyond the bounds of the delegation to formulate and execute unintended and undesirable policies. In an effort to stop these perceived excesses, legislative bodies have tried many remedies, but have found most to be ineffective. One proposed remedy legislators have found attractive is the legislative veto.
The basic concept of a legislative veto is quite simple. If an administrative agency adopts a rule that the legislature doesn't like, the legislature vetoes the rule, much as the President or a governor vetoes legislation. A legislative suspension does the same thing, but is often effected by only a part of the full legislature and is temporary. Actual implementation of this concept has proved to be considerably more difficult. The legislative veto is often held to be a violation of the same "flexible" separation of powers doctrine that initially allowed the legislature to delegate the power. Decisions invalidating the legislative veto essentially conclude that the veto is an exercise of the lawmaking power and therefore must involve the entire legislature and the chief executive, notwithstanding that the more extensive power to craft the same rule in the first place can be carried out without their participation. This logic has confounded more than one member of the bench, and dissents and splits of judicial authority are common. Although opinions on the legislative veto are inconsistent in their holdings, they do identify a few relevant factors for analysis
The first group of factors relates to the structure of the veto process. Statutes may allow veto or suspension of a rule by a committee or subcommittee of the legislature; they may allow veto by a resolution of a single house of the legislature; they may allow veto by a resolution to be passed by both houses; or they may allow veto only upon passage of a general bill with presentment to the chief executive.
A second group of factors relates to the state's organic law. One factor relates to whether the applicable constitution has a strict separation of powers clause, a general clause, or only an implied one. Another factor is whether the rulemaking power is considered essentially an executive power or a legislative one.
A third group of factors relates to the nature of the power being exercised in the veto. Some veto provisions include the power to amend, while others include only the power to negate. Some statutes require the application of specific criteria, while others are silent as to the grounds for veto. Some veto provisions apply to all agency rulemaking, while others are applicable only to more discrete sets of agency action.
With so many factors and so many possible judicial approaches, it is impossible to predict what a Florida court might conclude with respect to a true legislative veto, but it is reasonably safe to predict that a court would uphold the provisions of section 120.545(10), Florida Statutes. The new suspension process is structured to rely almost exclusively upon traditional legislative powers so as not to encroach upon the executive branch.
If an agency fails to initiate action to modify, amend, withdraw, or repeal a rule consistent with a JAPC objection, then under section 120.545(10), Florida Statutes, JAPC may recommend that legislation be introduced to achieve any of those results. Initiation of action in the case of a proposed rule refers to the publication of a notice of change or withdrawal and, in the case of an existing rule, presumably refers to the first step in the rulemaking process, which now is publication of a notice of rule development. Legislation may be recommended if publication does not take place within sixty days following the objection. Even if publication does take place within this time, legislation may be recommended if the agency fails to adopt the modified rule or amend or repeal the existing rule in good faith. A JAPC recommendation has no effect on the rule itself. Despite the recommendation, it is clear that the agency remains free to adopt and enforce the rule, which is neither suspended nor vetoed. Thus, none of the constitutional concerns surrounding a legislative veto come into play at this stage.
JAPC is required to certify the fact of its recommendation to the agency within five days and may request that the agency temporarily suspend the rule or suspend adoption of the proposed rule pending consideration of the legislation during the next regular session. The statute requires that the agency respond to this request within a set time, advising JAPC either that it will suspend the rule or adoption, or that it refuses to do so. If the agency chooses to suspend the rule or adoption, it must give notice of the suspension in the Florida Administrative Weekly, which activates the suspension. Failure of an agency to respond within the allotted time constitutes a refusal to suspend. Again, this new provision for voluntary suspension by the agency avoids any encroachment on the executive authority of the agency. The agency is granted new statutory authority to suspend a rule or the adoption of a rule under limited circumstances, but the decision to exercise that option is left to the agency.
JAPC is directed to prepare the bills to modify or suspend the adoption of a proposed rule or to amend or repeal a rule. While this is new authority for JAPC, it is certainly nothing controversial. Legislative committees routinely draft bills for the Senate and the House of Representatives. Upon enactment by both houses, the bill must be presented to the Governor; thus the procedure meets all constitutional requirements for passage of any general bill.
While the validity of a general law that modifies, suspends, amends, or repeals a rule may not be in doubt, the precise effect of such a law is less clear. If the bill was drafted to suspend a proposed rule or to repeal an existing rule, there may be few problems, but what if the bill modifies or amends a rule? DOS is directed to conform the rule in the Florida Administrative Code to the enacted law and to reference the law as a history note. Such legislative amendment creates a hybrid that is neither statute nor rule, and raises many questions. How is the rule to be amended in the future? Must it be resubmitted to the Legislature each time? If an affected party wishes to challenge the particular language passed by the Legislature, must that be done in court? Does statutory enactment of one small portion that is dependent upon the remainder of a rule for meaning demonstrate tacit legislative approval of the overall scheme? The Legislature has tried to address some of these questions when ratifying other rules, and it might be wise to do so again.
The suspension provisions of section 120.545(10) take no constitutional chances. They do not do anything that is not clearly within legislative authority. Indeed, with the exception of the new grant of authority to the agency to voluntarily suspend its rule, and to JAPC to draft bills, the Legislature could have employed just such a suspension process without any amendment to the APA. What, then, is the real purpose of the new procedures? It seems the amendments are simply a mechanism to focus legislative attention on disputes regarding the scope of delegated legislative authority. JAPC's experience with this issue makes it the logical choice to draft the bills. Submission directly to the President of the Senate and the Speaker of the House of Representatives assures that the highest levels of leadership are aware of the delegation issue, and that its significance is not lost in consideration of the particular subject matter involved.
Section 120.536, Florida Statutes, is the keystone of the new legislative check provisions. Subsection (1) restricts the power of administrative agencies to adopt rules. Subsection (2) sets up a procedure to evaluate existing rules—those already adopted before the effective date of the law—under this new, more restrictive rulemaking standard. Subsection (3) establishes some shields for these existing rules to temporarily protect them from rule challenges based upon the new standard. Finally, subsection (4) clarifies that enactment of the new standard shall not require re-evaluation of any rule that has been declared invalid on other grounds.
Subsection (1) is best understood as a legislative rejection of a long line of cases frequently cited and relied upon by administrative law judges in determining whether rules constitute an invalid exercise of delegated legislative authority. Before examining the language, then, it is helpful to briefly review the historical struggle of the Florida courts to determine standards for review of administrative rules.
As discussed above, the power to adopt rules is a legislative power, delegated within constitutional restrictions. Rules adopted pursuant to such lawfully delegated authority are valid only if they are adopted in accordance with prescribed procedures, conform to controlling provisions of organic and statutory law other than those relating to the scope and extent of delegated power, are supported by an adequate factual basis, are an appropriate exercise of agency discretion, and are within the scope and extent of the power delegated by the Legislature. Concern here is only with the last of these requirements.
While the courts have employed a wide array of standards to determine whether a rule is within the power delegated to an agency by its enabling statute, two have been preeminent. The first is that a rule cannot "enlarge, modify, or contravene the provisions of a statute." The second is that a rule must be "reasonably related to the purposes of the enabling legislation." In generally comparing these two standards, one can immediately see that while the first relates to the provisions of a statute, the second relates to the purposes of a statute. This alone is a significant distinction.
Many statutes include a section containing a statement of purpose or intent. However, a statute almost never consists solely of such a statement. Rather, a statute customarily includes many other provisions that establish the particular programs and means to be employed to achieve the expressed or implied purposes of the statute. Since there are numerous ways to achieve a given purpose, the provisions of a statute are invariably more specific than its purpose.
Because the standard that a rule cannot "enlarge, modify, or contravene the provisions of a statute" requires a more specific relation to the statute, one might expect that it would be a stricter standard. In applying this standard, fewer rules should be found valid. Conversely, the standard that a rule must be "reasonably related to the purposes of the enabling legislation" does not require such a specific relation to the statute. One might expect that it would be an easier standard to meet, so that in applying that standard, more rules would be found valid. Application of these two standards in Florida has in fact dramatically followed this pattern. Out of nineteen court cases applying the "enlarge the provisions" standard, fifteen cases resulted in invalidation of the rule, while only four cases found the rule to be valid. The application of the "reasonably related to the purposes" standard in fourteen cases resulted in invalidation of only one rule, while the rules in the other thirteen cases were upheld. Most telling of all, perhaps, are three cases in which both the "reasonably related" and "enlarge the provisions" standards were cited. In the first, the majority held a rule invalid as amending a statutory provision, while the dissent argued the rule was reasonably related to the purposes of the statute. In the second, the majority held a rule valid as being reasonably related to the purposes of the statute, while the dissent would have found it invalid because it enlarged, modified, and contravened the statute's provisions. In the third, portions of a rule were upheld based upon the "reasonably related to the purposes" standard, while other portions were held invalid as modifying or amending the statute. The fact that application of one standard or the other is apparently so predictive of the outcome might give rise to a suspicion that they are not really employed as standards at all, but rather as justifications. Consciously or unconsciously, the choice of a standard may not precede evaluation of the rule, but in fact may be determined after the decision on whether to uphold the rule is made on other, less well-defined grounds.
It also is possible that circumstances other than the decision of whether to uphold the rule dictate the choice of a standard. Even though both standards, by their own terms, attempt to measure a rule against the scope and extent of the power delegated by the enabling act, administrative law judges and the courts may find it impractical or impossible to apply a particular standard in some situations. One immediate thought is that the "enlarge the provisions" standard cannot be applied in some instances precisely because there are no specific provisions that can be reasonably identified as the law being implemented by the rule.
Regardless of the reasons dictating the choice of a standard, if the standard is determined before a rule is considered against its requirements, two points are clear. First, the initial choice of a standard is vitally important. Second, the "enlarge the provisions" standard is considerably more strict than the "related to the purpose" standard.
After a review of case law, the Legislature in 1987 enacted subsection 120.52(8), Florida Statutes, defining "invalid exercise of delegated legislative authority." The legislation listed several independent grounds for administrative law judges to apply in evaluating a rule. In paragraph (c) of that subsection, the Legislature codified the "enlarge the provisions" standard discussed above as the standard to be applied by administrative law judges. Significantly, the Legislature did not codify the "related to the purpose" standard.
Two years after the 1987 amendments, with the decision in Adam Smith Enterprises, Inc. v. Department of Environmental Regulation, one might have supposed that the "related to the purpose" standard would have largely disappeared. If administrative law judges followed the direction of section 120.52(8), and courts reviewed their orders, not the underlying rule, few opportunities to invoke the "related to the purpose" standard would seem to arise. However, some administrative law judges' orders and court opinions continued to apply this standard.
In the new APA, section 120.536(1) has been created to read:
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than the particular powers and duties conferred by the same statute.Identical language is found in section 120.52(8), immediately following the paragraphs delineating the independent criteria defining an "invalid exercise of delegated legislative authority." Because DOAH's responsibility in a rule challenge proceeding is to determine whether a rule is an invalid exercise of delegated legislative authority, the new language is a clear direction to administrative law judges.
The first sentence of 120.536(1) states that "[a] grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required." This language is apparently intended to stress that under Florida's APA, a rule is not within delegated authority solely because the agency has a valid grant of rulemaking power. Under the statutory scheme, a grant of power to adopt rules is certainly required, but normally should be of little interest. Almost all agencies have a general grant—usually found in the first part of their enabling statute—which basically states that the agency "may adopt rules necessary to carry out the provisions of this chapter." The first sentence emphasizes that such a general grant is sufficient to allow an agency to adopt a rule only when relied upon in conjunction with a specific provision of law to be implemented that grants particular powers and duties, which might be found anywhere in that chapter.
The second sentence states that "[a]n agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute." This language is a restatement of a longstanding APA requirement, but it adds for the first time that only "particular" powers and duties may be implemented, as opposed, presumably, to "general" ones.
The first part of the third sentence, "[n]o agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious," expressly directs administrative law judges not to apply the "reasonably related to the purposes of the enabling legislation" standard discussed above. Use of the term "only" indicates that a rule that is reasonably related to the purpose of the enabling legislation and is not arbitrary or capricious may not be adopted without more. The second part of this sentence, "nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy," further instructs administrative law judges that in the absence of more particular statutory provisions, the power to adopt rules may not be exercised to implement general declarations of intent or policy found in the statutes.
The final sentence states that "[s]tatutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than the particular powers and duties conferred by the same statute." This sentence further clarifies that only express powers and duties conferred upon an agency may be implemented, interpreted, or made specific through rulemaking. The language appears to have been adapted from the dissent in a recent case of the First District Court of Appeal. The majority determined that a general rulemaking authority grant to "adopt such rules as it deems necessary or proper" and the general power to regulate the "licensing of motor vehicle dealers and manufacturers" allowed the agency to adopt a rule creating an automatic expiration of a granted license after one year. The dissent maintained that the particular powers and duties were not assigned by the rulemaking grant, but by more specific sections of the statute, such as section 320.642, Florida Statutes. These more specific sections of the statute established the procedures governing the license application process. Though the statute contained a twelve-month delay after denial before reapplication was allowed, there was no section of the statute that even remotely implied that the agency could impose a time limit on the license. Thus, the dissent concluded that the agency could not rely upon the general grants to create such a requirement. The language of section 120.536(1) is a clear endorsement of the approach reflected in the dissent. The powers and duties of an agency that may be implemented are only those particularly granted by sections of a statute; rulemaking grants and general descriptions of functions of the agency cannot be used to expand these particular powers and duties.
The four sentences of 120.536(1) are potentially the most far-reaching of any in the 1996 amendments. They are a simple but clear rejection of the concept that a mere statement of legislative policy or purpose coupled with a broad grant of rulemaking power constitute sufficient authorization for agency rulemaking. Policy choice involves not simply what ends are to be sought, but what means are to be employed to get there. Few, indeed, disagree that it is desirable to have clean air and water, economic prosperity, and good public health. Rather, given limited resources, the controversies arise over the choice of programs. The true formulation of basic policy occurs in determining the approach to achieving these universally shared goals. It is these mid-level policy decisions that require compromises and involve the most difficult political choices.
Thus, even though it is constitutionally permitted to do so, the Legislature declined to delegate the authority for agencies to implement the general intent or policy language that commonly appears in the statutes. The new APA explicitly rejects the review standard that would uphold an agency rule because it is "reasonably related to the purposes of the enabling legislation." In evaluating rules, administrative law judges are not to apply the extremely deferential standards minimally required by the separation of powers or the void-for-vagueness doctrines, but rather a stricter test imposed by the statute. Rules cannot implement statutes that merely describe ends to be sought, but only statutes that describe specific programs and means to those ends. Rules may be adopted only if there is both a grant of rulemaking authority and a specific law to be implemented that details particular powers and duties.
Section 120.536(2) demonstrates legislative understanding that the new rulemaking standard established in section 120.536(1) represents a fundamental change in Florida administrative law. Section 120.536(2) establishes an elaborate three-year plan designed to bring the nearly 25,000 existing rules in the Florida Administrative Code into compliance with the new standard.
The statute places the initial burden of evaluating existing rules on agencies themselves. Each agency is to divide all of its existing rules into two categories: those that exceed the new rulemaking authority and those that do not. If the agency can identify a statutory section assigning the particular powers and duties being implemented, interpreted, or made specific, the rule meets the new standard. Any rule or portion of a rule for which this cannot be done is to be included on a list to be submitted to JAPC by October 1, 1997. If only part of a rule exceeds the new rulemaking authority, the list also is to identify the violating portion. Agencies are given a full year to complete their reviews.
JAPC is to submit the combined lists of all of the agencies to the President of the Senate and the Speaker of the House of Representatives. This will give the Legislature the opportunity during the 1998 Regular Session to consider all of the rules that the agencies have determined exceed the new rulemaking authority. If the Legislature finds that the rules contain wise public policy, it may pass specific provisions of law to provide statutory support for the rules under the new rulemaking standard. Alternatively, if the Legislature finds that the policies contained in the rules can be improved, it may pass different provisions of law providing guidance in that direction, or it may pass nothing at all, leaving the rules unsupported by any authorizing legislation.
At the close of the 1998 Regular Session, the agencies will begin to amend their rules, if necessary, to conform them to the specific statutory provisions passed, or to repeal those rules submitted on the list for which no statutory authority was enacted into law. The statute directs that all of these repeals are to be initiated no later than January 1, 1999. JAPC is directed to submit a report to the President of the Senate and the Speaker of the House of Representatives by February 1, 1999, identifying any rules without authority that the agencies have not yet begun to repeal. A special right for JAPC or any substantially affected person to petition an agency to repeal a rule which exceeds the new rulemaking authority standard is granted beginning July 1, 1999.
As noted earlier, the language establishing the new rulemaking standard in section 120.536(1) also is to be found as part of the definition of "invalid exercise of delegated legislative authority." As part of this definition, the new standard is to be applied by administrative law judges in rule challenge proceedings. Rules filed for adoption with DOS on or after October 1, 1996, are immediately subject to the new standard. Thus, the law is expressly given a retroactive effect in the sense that the new rulemaking standard is to be applied to all rules noticed before October 1, 1996, but filed for adoption on or after that date.
The new amendments temporarily protect all rules filed for adoption before October 1, 1996, from challenges based upon the new rulemaking standard. The length of time these rules are protected depends upon whether they are included on the list submitted to JAPC. As shown in Figure 1, rules included on the list are covered by the long shield and are protected from challenge until July 1, 1999. The long shield thus lasts for almost three years from the effective date of the new APA, allowing the Legislature to consider the listed rules during the 1998 Regular Session, the agency to amend and repeal its rules in response to this legislative action, and the Legislature to act again during the 1999 Regular Session. Rules not included on a list are covered by the short shield and are protected from challenge only until November 1, 1997. This shorter protection, lasting a little over one year, is given to allow the agency to examine all of its rules under the new rulemaking standard. Rules that the agency concludes do meet the new standard are not included on the list when it is submitted, and the shield over them expires shortly thereafter.
The new provisions are not exclusively restraints on agency authority. The 1996 APA reflects an understanding that the Legislature itself must be more specific when enacting enabling legislation. It may seem, at first, that nothing could be easier than for the Legislature to write the statutes exactly as it likes. If there is too much delegation in the statutes, they can simply be written to delegate less. However, when the inherent institutional pressures that make specificity so difficult to achieve are considered, the task seems more daunting. It is helpful to consider some of these pressures briefly before moving to consideration of three mechanisms in the new law designed to help focus legislative attention on the need for more specific delegations.
One pressure compelling delegation of lawmaking authority involves the specialized expertise held by an administrative agency. Expertise is acquired through the very process of administering. Agencies are required to apply the law within a relatively narrow area of responsibility to the realities of the everyday world. They have scientific and technical staff that understand the factual basis behind public policy approaches and are able to determine operative facts as questions arise during implementation of a law.
Legislatures are not unaware of their relative institutional ineffectiveness in addressing highly scientific and technical questions. The particular specialized knowledge or scientific competence sometimes required to implement a program is not a matter suited for political debate and is often irrelevant as a matter of public policy. Rather than allow legislation to become bogged down through the inclusion of inconsequential detail, legislators may choose to leave such matters to the technical experts. Legislators may then focus on making basic policy decisions on behalf of the constituents they were elected to represent.
A related, but distinct, pressure to delegate stems from the relatively greater flexibility that an agency has in addressing problems that arise. The real world to which an agency must apply the law is changing. New technological, sociological, political, and economic developments constantly alter the problems that government regulation attempts to address. Amendment of a statute by a legislature that meets in a sixty-day regular session each year does not allow for a great deal of flexibility. Special sessions can be called to address major problems, but this is not a realistic solution for more routine issues. Amendment of rules is more flexible. Rule amendments can be drafted in response to new circumstances and can be adopted at any time during a year. Administrative agencies thus are better able to adapt policy to changing conditions as they are encountered or anticipated.
A third pressure contributing to delegation is the desire to ease the often difficult process of passing legislation. One expedient solution to immediate political impasse in the legislature is simply to relegate the contentious policy decision on which no agreement is possible to an administrative agency to resolve in rulemaking. The more general the provisions of a bill, the greater the likelihood that a majority will support it; disagreements arise if a bill is made more specific. Thus, the solution to dispute often lies in intentional generality. Legislators can retain the level of generality necessary to ensure majority support, and then rely upon the agency to use rulemaking authority to fill out the policy, hopefully in accordance with their unexpressed desires. This pressure to avoid the celebrated evil of gridlock is certainly understandable, but it raises serious concerns in light of our constitutional structure. Our democratic institutions were designed precisely to ensure that policies unable to command majority support would not become the policy of the state.
Another pressure for delegation has been suggested with the assertion that legislators find it in their political interest to pass vague legislation because they can then blame agencies for unacceptable results. Economic models have been employed in an attempt to demonstrate that with broadly worded statutes, legislators can claim credit for the agency's specific implementation with those constituents pleased with the results, while at the same time denying responsibility with those constituents unhappy with the agency's actions. If delegation does in fact allow legislators to shift responsibility for political decisions, this might create a powerful incentive to delegate, especially in the most controversial policy areas.
If delegation is to be restricted, it might be necessary to bolster the legislature's ability to resist these subtle inherent pressures toward generality in legislation. The Florida Legislature recognized that special mechanisms could be created that would help focus legislative attention on delegation issues. The Legislature first resolved to consider these issues with respect to proposed legislation. Section 1 of chapter 96-159, Florida Laws, not codified in the Florida Statutes, provides:
It is the intent of the Legislature to consider the impact of any agency rulemaking required by proposed legislation and to determine whether the proposed legislation provides adequate and appropriate standards and guidelines to direct the agency's implementation of the proposed legislation.This language does not require the Legislature to take any particular action, but it does demonstrate an understanding that the adequacy of statutory standards is directly related to the delegation problem.
Even if all future legislation were to be carefully drafted to include specific guidance to implementing agencies, and thus avoid excessive delegation, concerns would remain with existing statutes. After all, the perceived problems of the past with agency actions exceeding delegated authority occurred under existing statutory language. The responsibility of each agency to review its rules and submit a list of those without authority under the new rulemaking standard provides one mechanism for the Legislature to examine existing statutes. The rules included on the list may well express good policies that the Legislature will wish to validate. New statutory language can be enacted to more clearly authorize the agency to do what it has already done. On the other hand, in the event the Legislature determines that the agency rule policy is ill-advised, or if it prefers another policy, it can enact more specific legislation giving that direction. Some existing statutes will be reviewed under this ratification process. As for rules not included on the list, the rule challenge provisions should occasionally compel some agencies to return to the Legislature to seek more specific provisions of law to implement.
Chapter 96-159, Florida Laws, also constructs a more methodical process to review statutes delegating rulemaking authority. Chapter 159 creates section 11.60(4), Florida Statutes, which provides:
The committee shall undertake and maintain a systematic and continuous review of statutes that authorize agencies to adopt rules and shall make recommendations to the appropriate standing committees of the Senate and the House of Representatives as to the advisability of considering changes to the delegated authority to adopt rules in specific circumstances. The annual report submitted pursuant to paragraph (2)(f) shall include a schedule for the required systematic review of existing statutes, a summary of the status of this review, and any recommendations provided to the standing committees during the preceding year.This section creates an entirely new role for the JAPC. While it has long examined rules adopted pursuant to delegated authority, JAPC has never before had a responsibility to make recommendations to standing committees regarding the statutes delegating that authority.
It is still too early to know what form this systematic and continuous review will take. The fact that a schedule is to be established suggests that existing statutes will have to be divided into smaller groups to be reviewed over time. JAPC might decide to organize the review by statute number, simply beginning at the front of the statute books and moving through to the end. Another possibility would be to divide statutes by implementing agency, scheduling all of the statutes that a single agency implements for consecutive review, then moving on to the next agency's statutes.
"Systematic" and "continuous" also are broad enough to include, in addition to the scheduled reviews, consideration of delegations of authority in conjunction with JAPC's usual rule review process. As each agency proposes new rules and amendments, JAPC must carefully examine the statutes cited as rulemaking authority and as law implemented. This would appear to be an excellent opportunity to consider the statutory delegation, as well as the rule, and to make any recommendations to the appropriate standing committees.
Whatever the form of this statutory review, it will provide the Legislature for the first time with a mechanism to routinely evaluate statutory delegations in light of the rules the agency actually adopted to implement them. At the time a statute is originally enacted, consideration given to delegation is necessarily abstract—it is impossible to anticipate all possible contingencies and constructions. After an agency has adopted or attempted to adopt rules, it becomes easier to conduct a review of the statute and identify delegations that might be clarified. Chapter 96-159 creates a statutory review mechanism to ensure that this is done in a regular and orderly fashion.
Taken together, these legislative check provisions have the potential to substantially change the structure of administrative law in Florida. The heart of these amendments, section 120.536, Florida Statutes, restricts agency power to adopt rules. The other provisions are designed either to monitor or enforce this restriction, or to assist the Legislature in its corresponding duty to enact more specific laws.
Under the new APA scheme, the goals set forth in statements of general legislative intent or policy are no longer capable of supporting rulemaking. It is no longer sufficient that a rule be reasonably related to the purposes of the statute. Only statutes granting particular powers and duties may be implemented through rulemaking. The goal is for agencies to stop formulating mid-level policies, and for the Legislature to begin doing so. It is an ambitious undertaking, opposed by natural political forces and one strand of Florida's legal tradition. It is by no means clear that it will succeed. It is problematic because it involves so many different players in Florida's administrative law system.
Agencies will have to prepare lists of existing rules that are in need of more specific authority for submission to the Legislature. They will have to keep the new stricter rule standard in mind as they draft rules and, perhaps even more importantly, as they draft proposed legislation, for the law will now have to include more definite policy standards and guidance.
Administrative law judges will have a critical role, for they will initially apply the new rulemaking standard. Should they fail to require that every rule be supported not only by a rulemaking grant and general statutory purpose, but also by specific laws being implemented that set forth the duties and programs to be carried out by the rule, then the entire legislative scheme will fail.
Courts, too, will have to give effect to the legislative intent to delegate no rulemaking authority in the absence of detailed policy guidance within the statute. They will have to abandon the "reasonably related" standard. Courts hearing rule challenge appeals must review the administrative law judge's order, not the rule, and uphold it unless it contains a conclusion of law which is erroneous or a finding of fact unsupported by competent, substantial evidence.
The greatest burden, however, may fall upon the Legislature. It is the Legislature that ultimately must overcome inherent institutional resistance, make the difficult mid-level political decisions, and express these policies in statutes assigning particular powers and duties to the agencies. It is the Legislature that must quickly respond to unanticipated problems that may arise as programs are implemented.
One of American administrative law's greatest struggles has been to decide what is to be done when the legislative branch fails to speak clearly and comprehensively. Some have vehemently insisted that only the judiciary has the power to declare what the law is. Others have as strongly maintained that the courts must defer to whatever the agency decides. These issues will remain, but Florida's APA now suggests that a third option is preferable when important mid-level policy decisions are at issue. The new legislative check provisions, operating in concert, urge the possibility that policy not clearly established in the statute should simply not be enforced until it is clarified by the Legislature itself.