[*] Assistant Professor and Patricia A. Dore Professor of Florida Administrative Law, Florida State University College of Law. B.S., Arizona State University, 1988; J.D., University of Iowa College of Law, 1991; LL.M., Yale Law School, 1994. Email: <jrossi@law.fsu.edu>. I am grateful to Arthur Bonfield for his help in developing my ideas about state administrative procedure, and to Mark Seidenfeld for encouraging me to clarify them. Thanks also to Rob Atkinson, Donna Blanton, Scott Boyd, Debby Kearney, and Jeff Stempel for reading an early draft. Of course, remaining errors are mine alone. This Article arose from my contribution to a panel on "What Federal Reformers Can Learn from the States" at the Council meeting of the Section of Administrative Law and Regulatory Practice at the American Bar Association's 1996 annual meeting. An expanded and generalized version of the Article will appear at 49 ADMIN. L. REV. (forthcoming 1997). Return to text.

[1] Act effective Oct. 1, 1996, ch. 96-159, 1996 Fla. Laws 147 (codified in scattered sections of FLA. STAT. ch. 120 (Supp. 1996)). Return to text.

[2] Local Government Comprehensive Planning Act of 1975, ch. 75-257, 1975 Fla. Laws 794 (codified as amended at FLA. STAT. 163.3161-.3243 (1995)). The Act was one of a series of statutes that delegated mid-level policy decisions affecting landowners to administrative agencies. Return to text.

[3] See, e.g., David Gluckman, 1994 APA Legislation: The History, The Reasons, The Results, 22 FLA. ST. U. L. REV. 345, 349-50 (1994). Return to text.

[4] See Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385, 1456 (1992). Return to text.

[5] See Act effective Jan. 1, 1992, ch. 91-30, 3, 1991 Fla. Laws 241, 244-46 (current version at FLA. STAT. 120.54(1), .56(4), .595(4), .80(13)(a), .81(3)(a) (Supp. 1996)). The 1996 revisions subsume previous section 120.535, Florida Statutes, within the requirements of sections 120.54, 120.56, 120.595, 120.80, and 120.81. The text above, however, refers to section 120.535 for ease of discussing the concept. Return to text.

[6] FLA. STAT. 120.535(1) (1995) (repealed and recodified 1996). The revised APA moved this language to section 120.54(1)(a). See id. 120.54(1)(a) (Supp. 1996). Return to text.

[7] Id. 120.54(1) (Supp. 1996). Rulemaking is presumed "feasible" unless the agency proves: (1) it did not have "sufficient time to acquire the knowledge and experience reasonably necessary to address a statement by rulemaking"; (2) "[r]elated matters are not sufficiently resolved to enable the agency to address a statement by rulemaking"; or (3) it is currently attempting expeditiously and in good faith to pursue rulemaking. Id. 120.54 (1)(a)(1). Rulemaking is presumed "practicable" unless the agency proves that: (1) it is not reasonable under the circumstances for agency decisions to be based on detailed or precise principles, criteria, or standards; or (2) the particular questions addressed are so narrow in scope "that more specific resolution of the matter is impractical outside of adjudication. . . ." Id. 120.54(1)(a)(2). Return to text.

[8] See ARTHUR EARL BONFIELD, STATE ADMINISTRATIVE RULEMAKING 4.4.1, at 85-86 (Supp. 1993). Bonfield observes that agencies in Florida still have much discretion to make statements of "particular applicability" in adjudicative proceedings, which can be relied upon at some future time as "nonbinding persuasive precedent." Id. at 85. According to Bonfield, the language of section 2-101 of the 1981 Model State Administrative Procedure Act avoids this problem. See id. at 86. Return to text.

[9] See FLA. STAT. 120.54(1) (Supp. 1996). Return to text.

[10] See id. 120.56(4)(a). Return to text.

[11] The decision of a DOAH administrative law judge that a statement is or is not required to be promulgated by rulemaking procedures constitutes a final appealable order. See id. 120.56(4)(c). Return to text.

[12] See ARTHUR EARL BONFIELD, STATE ADMINISTRATIVE RULEMAKING 4.4.1, at 131 (1986); Model State Administrative Procedure Act 2-104(4). Return to text.

[13] The Oregon Supreme Court imposed mandatory rulemaking, based upon implied legislative intent in its state APA, in Megdal v. Oregon Board of Dental Examiners, 605 P.2d 273, 313 (Or. 1980) (requiring Oregon Board of Dental Examiners to elaborate the statutory standard of "unprofessional conduct" by rule). However, a more recent case, Trebesch v. Employment Division, 710 P.2d 136, 139 (Or. 1985), narrowed the potential applicability of this approach to a limited number of statutory interpretation considerations. Return to text.

[14] See TASKFORCE ON ADMIN. L. REFORM, IOWA ST. BAR ASS 'N, PROPOSED NEW IOWA ADMINISTRATIVE PROCEDURE ACT (SF 2404) 2-104(3) (1996) (proposed IOWA CODE 17A.4106) [hereinafter IOWA APA PROPOSAL]. A weaker standard appears in the Washington APA, which provides that "[e]ach agency that is authorized by law to exercise discretion in deciding individual cases is encouraged to formalize the general principles that may evolve from these decisions by adopting the principles as rules . . . ." WASH. REV. CODE 34.05.220(4) (1996); see also William R. Andersen, The 1988 Washington Administrative Procedure Act-An Introduction, 64 WASH. L. REV. 781, 799 (1989). Utah's APA provides that "[e]ach agency shall enact rules incorporating the principles of law not already in its rules that are established by final adjudicative decisions within 120 days after the decision is announced in its cases." UTAH CODE ANN. 63-46a-3(6) (1996). Return to text.

[15] See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974); SEC v. Chenery Corp., 332 U.S. 194, 202 (1947). Prior to 1991, agencies in Florida had this discretion as well. See McDonald v. Department of Banking & Fin., 346 So. 2d 569, 580 (Fla. 1st DCA 1977). Return to text.

[16] See FLA. LEGIS. JT. ADMIN. PROCS. COMM., ANNUAL REPORT 7 (1995). Return to text.

[17] See id. at 21. Because many of these rules were promulgated to implement new statutory programs, the entire increase cannot be attributed to section 120.535. Return to text.

[18] See id. Return to text.

[19] These proposals are discussed in Lawrence E. Sellers, Jr., 1994 Proposals for Rulemaking Reform, 22 FLA. ST. U. L. REV. 327, 344 (1994). Return to text.

[20] See Bill Douthat, Legislative Delegation Feels GOP Shift, PALM BCH. POST, Nov. 10, 1994, at A14; Phil Willon & Kevin Metz, Chiles Faces Assertive Opposition, TAMPA TRIB., Nov. 10, 1994, at 1. Return to text.

[21] See Gov. Lawton Chiles, Inaugural Address (Jan. 3, 1995), reprinted in 'Government Don't Work People Work', TALL. DEM., Jan. 4, 1995, at A11. Return to text.

[22] See id. Return to text.

[23] Fla. Exec. Order No. 95-74 (Feb. 27, 1995). Return to text.

[24] Id. Return to text.

[25] See id. Return to text.

[26] See Senate Passes Bill to Streamline Government, ST. PETE. TIMES, Apr. 4, 1996, at B5. Return to text.

[27] PHILIP K. HOWARD, THE DEATH OF COMMON SENSE: HOW LAW IS SUFFOCATING AMERICA (1994). Howard's book decries the explosion of rights, laws, rules, and procedures that have paralyzed government during the last 30 years. For discussion of the influence of Howard's book on Florida APA reform in 1994-95, see Bill Moss, The Monster that Nonsense Created, STATE LEGISLATURES, June 1995, at 16. Return to text.

[28] After the Governor read an advance copy of Howard's book, he invited Howard to the Governor's mansion for a breakfast chat and dug into his own pocket to buy copies of Howard's book for all state legislators, cabinet heads, and executive heads. See Moss, supra note 27, at 17-18. Return to text.

[29] Although Committee Substitute for Committee Substitute for Senate Bill 536 ostensibly repealed section 120.535, see Fla. CS for CS for SB 536, 5 (1995), the bill repositioned the mechanism for requiring rulemaking and the general preference for rulemaking to implement policy in a new section 120.547, see id. 10. Return to text.

[30] See id. 5. Return to text.

[31] See Veto of Fla. CS for CS for SB 536 (1995) (letter from Gov. Chiles to Sec'y of State Sandra B. Mortham, July 12, 1995) (on file with Sec'y of State, The Capitol, Tallahassee, Fla.). Return to text.

[32] The Legislature passed the 1996 revised APA on April 25, 1996. See Senate Passes Bill to Help Citizens Cut Through Red Tape, ORLANDO SENT., Apr. 26, 1996, at D5. The Governor signed it into law on May 1. See Act effective Oct. 1, 1996, ch. 96-159, 44, 1996 Fla. Laws 147, 213. Return to text.

[33] The point is made clearly, and with much more detail, in Stephen T. Maher, The Death of Rules: How Politics Is Suffocating Florida, 8 ST. THOMAS L. REV. 313, 325 (1996). For an argument that, in the federal administrative system, the executive branch, rather than Congress, has a comparative advantage in overseeing regulatory reform, see Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247, 286 (1996). The Governor's efforts at APA reform succeeded in the executive branch and the Legislature despite the fact that in Florida, unlike the federal system, the executive branch is fragmented between the Governor and elected cabinet heads. This suggests widespread electoral support for regulatory reform. Return to text.

[34] Fla. Exec. Order No. 95-256 (July 12, 1995). Return to text.

[35] See id. Return to text.

[36] See GOV.' S ADMIN. PROC. ACT REV. COMM'N, FINAL REPORT 6-8 (1996) [hereinafter REVIEW COMMISSION REPORT]. Return to text.

[37] See FLA. STAT. 120.54(4) (1995) (amended 1996) (proposed rules); id. 120.56 (amended 1996) (final rules); id. 120.535 (repealed and recodified 1996) (nonrule policy). Return to text.

[38] See id. 120.56 (Supp. 1996). The new section is entitled "Challenges to Rules." See id. Return to text.

[39] See REVIEW COMMISSION REPORT, supra note 36, at 1. Return to text.

[40] See infra Part III. Return to text.

[41] This Article does not address all of the legislative accountability provisions contained in the revisions. With the exception of section 120.536, Florida Statutes, discussed infra Part IV.A, this Article is in considerable agreement with most of the pre-adoption legislative oversight provisions that apply to rules in the revised APA. For further discussion of these provisions, see F. Scott Boyd, Legislative Checks on Rulemaking Under Florida's New APA, 24 FLA. ST. U. L. REV. 309 (1997). Return to text.

[42] See FLA. STAT. 120.536 (Supp. 1996); see also discussion infra Part IV.A. Return to text.

[43] See FLA. STAT. 120.541 (Supp. 1996); see also discussion infra Part IV.B. Return to text.

[44] See FLA. STAT. 120.56 (Supp. 1996); see also discussion infra Part IV.C. Return to text.

[45] Donna E. Blanton & Robert M. Rhodes, Loosening the Chains That Bind: The New Variance and Waiver Provision in Florida's Administrative Procedure Act, 24 FLA. ST. U. L. REV. 353 (1997). Return to text.

[46] See MINN. STAT. 14.05 (1996); see also id. 465.795-.797. Return to text.

[47] See FLA. STAT. 120.542 (Supp. 1996). Return to text.

[48] See id. 120.542(1). Return to text.

[49] Some states, in contrast to requiring waiver, have adopted provisions that prohibit agencies from granting waivers or variances unless they establish waiver guidelines or procedures by rule. See, e.g., N.H. REV. STAT. ANN. 541-A:22 (Supp. 1995) (stating that no agency shall grant waivers without amending its rules or "providing by rule for a waiver or variance procedure"); N.C. GEN. STAT. 150B-19 (1995) (prohibiting agencies from waiving regulations unless a rule establishes specific guidelines for the agency to follow); VT. STAT. ANN. tit. 3, 845 (WESTLAW through 1995 Sess.) (prohibiting agencies from granting routine waivers without amending the rules or providing for waiver by rule). Return to text.

[50] FLA. STAT. 120.542(2) (Supp. 1996). Return to text.

[51] Id. "Substantial hardship" is defined as "a demonstrated economic, technological, legal or other type of hardship to the person requesting the variance or waiver." Id. "Principles of fairness" are "violated when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule." Id. Return to text.

[52] See id. 120.542(6)-(7). Return to text.

[53] See id. 120.542(7). Return to text.

[54] IOWA APA PROPOSAL, supra note 14, 2-104(3). Return to text.

[55] See id. Return to text.

[56] See FLA. STAT. 120.542(2) (Supp. 1996). Return to text.

[57] See id. 120.542(7). Return to text.

[58] See id. 120.542(6). Return to text.

[59] See id. 120.542(8). Return to text.

[60] The language of previous section 120.535, which now appears in section 120.54, would suggest this. See id. 120.54(1)(a). Return to text.

[61] See supra notes 21-28 and accompanying text. Return to text.

[62] The language of Florida's APA at the time of the 1996 revisions provided for remand where an agency exercise of discretion is "inconsistent with an agency rule." FLA. STAT. 120.68(12) (1995) (amended 1996). At one time, Florida's APA expressly allowed for more flexibility. Section 120.68(12) of the APA used to provide that a court should remand a case to an agency if it finds the agency's exercise of discretion to be "[i]nconsistent with an agency rule, an officially stated agency policy, or a prior agency practice, if deviation therefrom is not explained by the agency." Id. 120.68(12)(b) (1983). Florida courts developed an "explication" doctrine, which allowed agencies to deviate from published rules when they explained the deviation. See General Tel. Co. v. Florida Pub. Serv. Comm'n, 446 So. 2d 1063, 1069 (Fla. 1984); Best Western Tivoli Inn v. Department of Transp., 435 So. 2d 321, 324 (Fla. 1st DCA 1983); see also F. Scott Boyd, How the Exception Makes the Rule: Agency Waiver of Statutes, Rules, and Precedent in Florida, 7 ST. THOMAS L. REV. 287, 301 (1995). In 1984, however, the Legislature amended section 120.68(12), directing remand where a court finds that an agency's exercise of discretion is "inconsistent with an agency rule." Act effective June 11, 1984, ch. 84-173, 4, 1984 Fla. Laws 519, 524. Return to text.

[63] See FLA. STAT. 120.535(1)(a)-(b) (1995) (repealed 1996) (current version at FLA. STAT. 120.54(1)(a)(1)-(2) (Supp. 1996)) (requiring rulemaking unless agency proves absence of feasibility or practicability). Return to text.

[64] For a discussion of the problems associated with courts policing the precision of rules, see Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65, 106 (1983). Return to text.

[65] See FLA. STAT. 120.545 (Supp. 1996). Return to text.

[66] See id. 120.56(4). Return to text.

[67] See WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (reasoning that authority to grant or deny waivers may be implied by Congress' directive to regulate in the public interest). For further examination of waiver in the federal regulatory context, see Jim Rossi, Making Policy Through the Waiver of Regulations at the Federal Energy Regulatory Commission, 47 ADMIN. L. REV. 255, 274 (1995); Peter H. Schuck, When the Exception Becomes the Rule: Regulatory Equity and the Formulation of Energy Policy Through an Exceptions Process, 1984 DUKE L.J. 163, 183; Alfred C. Aman, Jr., Administrative Equity: An Analysis of Exceptions to Administrative Rules, 1982 DUKE L.J. 277, 279. Return to text.

[68] Those who supported this particular provision certainly did not intend this. When he signed the revisions to Florida's APA, Governor Chiles stated, "This gives our agencies the flexibility to use a more common sense approach-encouraging state employees to solve problems rather than create roadblocks." Press Release from Exec. Office of the Gov. (May 1, 1996) (detailing changes in Florida's Administrative Procedure Act) (on file with Exec. Office of the Gov., Tallahassee, Fla.). Return to text.

[69] The APA reform proposals vetoed by Governor Chiles in 1995, for example, were produced by the same Legislature that passed Florida's landmark Bert J. Harris, Jr., Private Property Rights Protection Act. See FLA. STAT. 70.001 (1995). Return to text.

[70] A lookback process attempts to apply subsequently adopted regulatory analysis requirements to preexisting rules. See Leslie Kux, Looking Back at Existing Rules: Agency Perspectives on Analysis Requirements, 48 ADMIN. L. REV. 375, 375 (1996). Return to text.

[71] See FLA. STAT. 120.536 (Supp. 1996). Return to text.

[72] See id. 120.541. Return to text.

[73] See id. 120.56(a), (c). Return to text.

[74] See FLA. CONST. art. II, 3. Return to text.

[75] Askew v. Cross Key Waterways, 372 So. 2d 913, 924 (Fla. 1978) (holding unconstitutional a state statute delegating agency authority to define restrictiveness levels). Florida has expressly rejected Kenneth Culp Davis's widely accepted shift in emphasis in nondelegation doctrine from legislatively imposed standards to procedural safeguards. See id. For further discussion, see John E. Fennelly, Non-Delegation Doctrine and the Florida Supreme Court: What You See Is Not What You Get, 7 ST. THOMAS L. REV. 247, 254 (1995). Return to text.

[76] Phillips Petroleum Co. v. Anderson, 74 So. 2d 544, 547 (Fla. 1954). Return to text.

[77] Delta Truck Brokers, Inc. v. King, 142 So. 2d 273, 275 (Fla. 1962). Return to text.

[78] High Ridge Mgmt. Corp. v. State, 354 So. 2d 377, 380 (Fla. 1977). Return to text.

[79] Smith v. State, 537 So. 2d 982, 986 (Fla. 1989). Return to text.

[80] B.H. v. State, 645 So. 2d 987, 993 (Fla. 1994). Return to text.

[81] See Johnny C. Burris, Administrative Law: 1991 Survey of Florida Law, 16 NOVA L. REV. 7, 11 (1991). Return to text.

[82] FLA. STAT. 458.309(1) (1995). Return to text.

[83] Id. 120.536 (Supp. 1996) (emphasis added). Return to text.

[84] The Washington statutory language, which applies to major agencies, states that "an agency may not rely solely on the section of law stating a statute's intent or purpose, or on the enabling provisions of the statute establishing the agency, or on any combination of such provisions, for its statutory authority to adopt any rule." WASH. REV. CODE 34.05.322 (1995); see also id. 43.12.045 (Commissioner of Public Lands); id. 43.20A.075 (Department of Social and Health Services); id. 43.23.025 (Department of Agriculture); id. 43.24.023 (Department of Licensing); id. 43.70.040 (Department of Health). The legislative intent section of the session law amending the Washington APA states that "substantial policy decisions affecting the public [should] be made by those directly accountable to the public, namely the legislature, and . . . state agencies [should] not use their administrative authority to create or amend regulatory programs." Act of May 16, 1995, ch. 403, 1.2.a, 1995 Wash. Legis. Serv. (West, WESTLAW). Return to text.

[85] "[A]ny rule that expands Federal power or jurisdiction beyond the level of regulatory action needed to satisfy statutory requirements shall be prohibited." Comprehensive Regulatory Reform Act of 1995, S. 343, 104th Cong. 627 (1995). Return to text.

[86] FLA. STAT. 458.311(e) (1995). Return to text.

[87] Id. 458.309(1). Return to text.

[88] Federal reform proposals in the 104th Congress, such as Senate Bill 343 (the Dole regulatory reform bill), Senate Bill 291, and House Bill 994, also have toyed with the lookback process. See Kux, supra note 70, at 375. Return to text.

[89] This phase-in review process of regulation is discussed further in Boyd, supra note 41, at 342-44. Return to text.

[90] See FLA. STAT. 120.536 (Supp. 1996). Return to text.

[91] See id. Return to text.

[92] See id. Return to text.

[93] See id. Return to text.

[94] See FLA. STAT. 120.54(2)(b) (1991). Return to text.

[95] See Act effective July 1, 1992, ch. 92-166, 4, 1992 Fla. Laws 1670, 1673-76. Return to text.

[96] See Fla. Exec. Order No. 95-256 (July 12, 1995) (noting that mandates by the Legislature in the 1995 bill are an effort to "micromanage" government). However, in 1995, the Florida APA was successfully amended to require risk assessment by the Florida Department of Environmental Protection and Department of Agriculture. See Act effective June 15, 1995, ch. 95-295, 6, 1995 Fla. Laws 2719, 2723. Return to text.

[97] See FLA. STAT. 120.54(12)(b) (1995) (amended 1996). Return to text.

[98] Under the EIS provision in place at the time of the 1996 revisions, an agency was required to prepare an EIS only if: (1) the agency determined that proposed action would result in a substantial change in costs or prices, or result in significant adverse effects on competition, employment, investment, productivity, innovation, or international trade, and alternative approaches to the regulatory objective exist and are not precluded by law; or (2) within 14 days of notice of the rule, a written request was filed by the Governor, a corporation, or at least 100 people signing a request. See id. 120.54(2)(b). Return to text.

[99] See id. 120.54(2)(c). Return to text.

[100] See id. 120.54(12)(b). Return to text.

[101] See id. ("This paragraph shall not provide a basis for challenging a rule."). Return to text.

[102] The Florida Supreme Court endorsed reviewing the EIS only for substantial or material procedural errors in Florida-Texas Freight, Inc. v. Hawkins, 379 So. 2d 944, 946 (Fla. 1979). Return to text.

[103] See id. Return to text.

[104] See FLA. STAT. 120.541(1)(a) (Supp. 1996). Return to text.

[105] See id. 120.541(1)(b). Return to text.

[106] Id. 120.541(1)(c). Return to text.

[107] See id. 120.54(2)(b) (1995) (amended 1996). Return to text.

[108] Id. 120.541(1)(a) (Supp. 1996). Return to text.

[109] Id. Return to text.

[110] See id. 120.541(1)(b). Return to text.

[111] Agencies are "encouraged" to prepare a SERC for all proposed rules. See id. 120.54(3)(b)(1). Yet, they are only required to prepare a SERC where a challenger has submitted a good faith written proposal for a lower cost regulatory alternative. See id. 120.541(1)(b). The 1996 Florida APA revisions carry over, with minor amendments, a previous requirement that agencies consider the impacts of a proposed rule on small businesses, small counties, and small cities and tier rules to reduce disproportionate impacts on those entities. See id. 120.54(2)(a) (1995) (current version at FLA. STAT. 120.54(3)(b)(2) (Supp. 1996)). Return to text.

[112] See id. 120.541(2) (Supp. 1996). Return to text.

[113] Id. 120.541(1)(b). Return to text.

[114] Id. Return to text.

[115] See id. 120.52(8)(g). "An invalid exercise of delegated legislative authority" is listed as a grounds for reversal in the APA judicial review provision, see id. 120.68(9), as well as the provisions allowing for rule challenges before administrative law judges, see id. 120.56(1)(a). Return to text.

[116] Cf. id. 120.52(8)(e). Return to text.

[117] Id. 120.52(8)(g). Return to text.

[118] See id. 120.54(1)(d). Return to text.

[119] See id. 120.541(c). Return to text.

[120] "In adopting rules, all agencies must, among the alternative approaches to any regulatory objective and, to the extent allowed by law, choose the alternative that imposes the lowest net cost to society." Id. 120.54(1)(d); see also id. 120.541 (allowing for least-cost challenge of rules to be used as a ground for declaring a rule invalid). Return to text.

[121] Upon review, a rule can be reversed when it "imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives." Id. 120.52(8)(g). Return to text.

[122] Id. 120.541(1)(a). Return to text.

[123] See, e.g., Department of HRS v. Framat Realty, 407 So. 2d 238, 242 (Fla. 1st DCA 1981) ("[T]he judiciary must not, and we shall not, overly restrict the range of an agency's [statutory] interpretive powers."). Return to text.

[124] See THOMAS O. MCGARITY, REINVENTING RATIONALITY: THE ROLE OF REGULATORY ANALYSIS IN THE FEDERAL BUREAUCRACY (1991). Return to text.

[125] Florida appears to be returning to the approach of Department of Environmental Protection v. Leon County, 344 So. 2d 297, 299 (Fla. 1st DCA 1977) (holding that agency failure to prepare a correct EIS constitutes an invalid delegation of legislative authority), which the Florida Supreme Court disapproved in Florida-Texas Freight, Inc. v. Hawkins, 379 So. 2d 944, 946 (Fla. 1979). The earlier approach to challenging an EIS on substantive grounds had been criticized as "an unfair sport akin to shooting fish in a barrel." Patricia A. Dore, Seventh Administrative Law Conference Agenda and Report, 18 FLA. ST. U. L. REV. 703, 705 (1991). Return to text.

[126] See Department of Labor and Employ. Sec., Div. of Workers' Comp. v. Bradley, 636 So. 2d 802, 807 (Fla. 1st DCA 1994) (holding validity of regulations will be sustained as long as "they are reasonably related to the purposes of the enabling legislation, and are not arbitrary or capricious"); Framat Realty, 407 So. 2d at 241 (noting that an agency's interpretation of statutes was entitled to presumption of validity); Agrico Chem. Co. v. Department of Envtl. Reg., 365 So. 2d 759, 762 (Fla. 1st DCA 1978) ("Rulemaking by an agency is quasi-legislative action and must be considered with deference to that function."). Return to text.

[127] FLA. STAT. 120.56(2)(c) (Supp. 1996). Return to text.

[128] See id. 120.56(2)(a). Return to text.

[129] See id. Return to text.

[130] See id. 120.56(1). This presumption, which is rebuttable, contrasts with failure to follow applicable procedures in preparation of the SERC, which, in the APA's language, is a conclusive material error. See id. at 120.541(1)(b). Return to text.

[131] See id. 120.595(2). Return to text.

[132] See generally Elizabeth C. Williamson, Comment, The 1996 Florida Administrative Procedure Act's Attorney's Fees Reforms: Creating Innovative Solutions or New Problems?, 24 FLA. ST. U. L. REV. 439 (1997). Return to text.

[133] See Sunstein, supra note 33, at 251 (observing tension in federal reform efforts between technocratic forces and those who wish to stop social welfare-enhancing agency action). Return to text.

[134] Following the adoption of a major APA reform bill in the state of Washington, which, like Florida's 1996 APA revisions, included additional burdens regarding rulemaking authority, cost assessments and judicial review, as well as attorney's fees, initial evidence suggests that the volume of rulemaking is sharply down. See William R. Andersen, Of Babies and Bathwater-Washington's Experiment with Regulation Reform, ADMIN. & REG. L. NEWS, Fall 1996, at 15. Return to text.

[135] Pub. L. No. 104-121, 110 Stat. 847 (1996) (codified in scattered sections of 5 U.S.C.). Return to text.

[136] 5 U.S.C.A. 802(a) (West 1996). Following a legislative invalidation, an agency is prohibited from promulgating a rule in "substantially the same form." Id. 801(b)(2). In requiring a joint resolution of both houses and preserving the President's veto power, the measure is designed to avoid the separation-of-powers problem with the one-house veto at issue in INS v. Chadha, 462 U.S. 919 (1983). Return to text.

[137] See Pantelis Michalopoulos, Holding Back Time to Hold Back Rules, LEGAL TIMES, May 13, 1996, at 25. Return to text.

[138] See FLA. STAT. 120.54(4) (1995) (amended 1996). Return to text.

[139] See id. 120.56(2)(a) (Supp. 1996). Return to text.

[140] Fla. H.R. Comm. on Streamlining Govtl. Regs., CS for SBs 2290, 2288 (1996) Staff Analysis 32 (June 14, 1996) (on file with comm.). Return to text.

[141] Notably, because of this adverse incentive for filing rule challenges prematurely, the rulemaking process in Florida may never have worked as intended. If the process never worked as intended, many of the pre-notice participation innovations included in the 1996 APA revisions, such as mandatory workshops and negotiated rulemaking, see FLA. STAT. 120.54(2) (Supp. 1996), may be wholly unnecessary. Some praise the greater degree of participation such innovations afford. See generally Lawrence E. Sellers, Jr., The Third Time's the Charm: Florida Finally Enacts Rulemaking Reform, 48 FLA. L. REV. (forthcoming 1996). However, negotiated rulemaking at the federal level has met some criticism and, especially given improvements to Florida's post-notice rulemaking process, there is little reason to believe that it will work any better at the state level. See, e.g., Susan Rose-Ackerman, Consensus Versus Incentives: A Skeptical Look at Regulatory Negotation, 43 DUKE L.J. 1206, 1210-12, 1219-20 (1994). Return to text.

[142] See Jerry L. Mashaw, Reinventing Government and Regulatory Reform: Studies in the Neglect and Abuse of Administrative Law, 57 U. PITT. L. REV. 405, 420 (1996) (criticizing Senator Dole's proposals in S. 343). Return to text.

[143] Cf. Robert A. Kagan, Adversarial Legalism and American Government, 10 J. POL'Y ANALYSIS & MGMT. 369 (1991) (criticizing efforts to turn administrative process into legal wrangling). Return to text.

[144] Donna E. Blanton & Robert M. Rhodes, Florida's Revised Administrative Procedure Act, 70 FLA. B.J. 30, 30 (July/Aug. 1996). Return to text.

[145] For a recent effort defending the legalistic model of agency decisionmaking, see Keith Werhan, Delegalizing Administrative Law, 1996 U. ILL. L. REV. 423. Return to text.

[146] See, e.g., HOWARD, supra note 27. Return to text.