APA: legislative oversight.

• Author: Imhof, Patrick L.
• Position: Florida

Legislative oversight of agency rulemaking is an issue that the Florida Legislature has struggled with since it first adopted the Administrative Procedure Act (APA) in 1974.(1) The issue became somewhat more acute, however, during the 1990s. First, due to the development of case law standards which provided much deference to agency rulemaking, there was a perception that agency rules often went far beyond the intentions of the legislature as expressed in the enabling statutes, the very authority on which these rules were to be based. Second, in an era when the benefits of deregulation were widely touted, the impact of increasing numbers of rules on government and private sector efficiency caused concern. Additionally, as the legislature began permitting agencies greater flexibility in the performance of their duties, such as through performance-based budgeting, the competing ideals of regulatory certainty and regulatory flexibility were pushed to the fore.

The conflict between regulatory certainty and regulatory flexibility hampered enactment of revisions to the APA in general and to provisions affecting legislative oversight in particular until the 1996 regular legislative session. More specifically, conflict over whether to retain the requirements of F.S. [sections] 120.53 that agency statements that meet the definition of a rule must be adopted as soon as feasible and practicable, was a primary reason for the veto of the 1995 APA reform bill, Committee Substitute for Committee Substitute for Senate Bill 536 (CS/CS/SB 536). Reform of the APA was stymied until the executive and legislative branches were able to resolve their differences on this issue.

Resolution of this conflict was aided by the Governor's Administrative Procedure Act Review Commission. Somewhat surprisingly, the final report of the commission was in agreement with many of the fundamental provisions of the vetoed CS/CS/SB 536. Significantly, the final report recommended that the requirement that agencies adopt rules as soon as feasible and practicable be retained, while also recommending that agencies be authorized to grant waivers of and variances from these rules, a position that was favorably received by the legislature.

In 1996, Senate Bill 2290, which was identical to the vetoed CS/CS/SB 536, and Senate Bill 2288, which contained many of the recommendations of the commission's final report, were filed. In the House of Representatives, House Bill 1179 was filed as a short form bill. Ultimately, a Committee Substitute for Senate Bills 2290 and 2288 (CS/CS/SB 2290 and 2288) was adopted which contained provisions of House Bill 1179. CS/SB 2290 and 2288 were passed by both houses of the legislature, presented to the Governor, and signed into law. The CS/SB 2290 and 2288 brought about the most comprehensive revision to the APA since the 1974 act.

Consideration of Rulemaking Prior to Enacting Law

While there are practical reasons why some statutes are not as specific as may be desirable, the lack of specificity in enabling statutes at times results in the adoption of rules which do not adequately implement "legislative intent." One of the most obvious means of improving legislative oversight of agency rulemaking is through legislative consideration of rulemaking prior to enacting laws that will require implementation through rule.

Chapter 96-159 of the Laws of Florida provides a statement of intent that the legislature will consider the impact of any agency rulemaking required by proposed legislation and determine whether the proposed legislation provides adequate and appropriate standards and guidelines to direct the agency's implementation of that legislation. There is, however, no sanction for legislation that passes without legislative consideration of whether adequate standards are explicated or of what the impact of rulemaking will be. Two practical means of encouraging legislative consideration of rulemaking prior to enacting law are by requiring such consideration through legislative rule or through the bill analysis process. Whether each house of the legislature adopts a rule requiring such consideration or amends its analysis forms to encourage rulemaking consideration remains to be seen.

Probably one of the most effective means of ensuring legislative consideration of these issues, however, is through involvement in the legislative process by the regulated public and regulatory agencies. Pro-active agencies may wish to monitor closely legislation which affects their duties and responsibilities in order to advise the legislature whether the standards are clear or whether revisions need to be made to clarify legislative intent. Legislative consideration of adequate rulemaking standards and rulemaking impacts also could result in a more detailed legislative record and, as a result, aid in determining legislative intent.

Restricted Statutory Rulemaking Standards

In 1991, the legislature disapproved the judicial notion that rulemaking was a matter of agency discretion by enacting F.S. [sections] 120.535. In 1996, the legislature repealed F.S. [sections] 120.535 but retained the standards of that section. As a result, each agency statement that meets the definition of a rule still must be adopted as soon as feasible and practicable. F.S. [subsections] 120.54(1), 120.56(4), 120.595(4).

The legislature also attempted to improve legislative oversight by enacting statutory restrictions on agency rulemaking. Legislative action to limit rulemaking authority has been an ongoing process. In 1974, the legislature authorized rule challenges if a rule was an "invalid exercise of delegated legislative authority." This term, however, was not defined by statute until 1987.

While the courts used a variety of standards to determine rule invalidity, legislative discontent tended to focus on expansive judicial interpretations, such as the standard that agencies have "wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and consistent with the agencies' general statutory duties."(2) Of particular legislative concern was the standard which found that agency authority to adopt rules could be "fairly implied" from several statutory sections when coupled with the authority to adopt such rules as the agency deems necessary to effectively administer and enforce the law, consistent with the legislative intent.(3) Also of concern was the standard that a rule would be upheld if it was reasonably related to the purposes of the enabling legislation and was not arbitrary and capricious.

The legislature provided a definition for the term "invalid exercise of delegated legislative authority" in 1987, after a review of the case law. F.S...