Abstract

LEGISLATIVE CHECKS ON RULEMAKING UNDER FLORIDA'S NEW APA

F. SCOTT BOYD

Copyright 1997 Florida State University Law Review

Legislation enacted in 1996 substantially amended Florida's Administrative Procedure Act (APA or the Act). This Article reviews the new provisions of the APA that involve legislative direction and oversight of agency rulemaking in Florida. 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.


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