ELULS.orgThe Environmental and Land Use Law Section of The Florida Bar
Section Reporter

July 2007

ARTICLES  
     

ELULS.org  The 2007 Amendments to the APA
  Larry Sellers

      

Author's note: As of this writing, HB 7183 has not yet been presented to the Governor. After the bill is presented, the Governor will have the opportunity to sign it, veto it or allow it to become law without his signature.

Update: The Governor vetoed this bill on June 26, 2007. 



HB 7183 makes a number of changes to Florida's Administrative Procedure Act (APA). Many of those changes are based on recommendations by the Joint Administrative Procedures Committee.

Defines "Rulemaking Authority." HB 7183 adds new definitions, including a definition of "rulemaking authority." The term is defined to mean "statutory language that explicitly authorizes or requires an agency to adopt, develop, establish, or otherwise create any statement coming within the definition of ‘rule’." The purported purpose of defining the term is clarify that agencies have the duty or authority to adopt rules pursuant to the APA in cases where the statutory language directs or authorizes them to "adopt policies,” or “establish criteria” or the like, even though the word “rule” is not used in the authorizing statute.
Expands Statutes that may Confer Rulemaking Authority. HB 7183 also revises the "flush left" language following the definition of "invalid exercise of delegated legislative authority" to eliminate the requirement that statutory language granting rulemaking authority shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred "by the same statute." The reference to "by the same statute" is removed. A similar change is made to s. 120.536.

Restricts Delegation of Rulemaking Responsibilities. HB 7183 provides that certain rulemaking responsibilities of an agency head may not be delegated or transferred. These include approval of the notice of intended action and the filing of the approved rule with the Department of State.

Expands JAPC Authority. HB 7183 makes a number of changes to the duties and powers of the Joint Administrative Procedures Committee (JAPC). Among other things, JAPC is now authorized to review and object to unadopted agency statements. JAPC also is authorized to consider whether a SERC complies with all applicable requirements and to object to a proposed rule where the accompanying SERC does not comply.
Clarifies Cross References to Other Rules of the Same Agency. The APA provides that a rule may incorporate material by reference but only material that exists on the date the rule is adopted; for purposes of the rule, changes in the material are not effective unless the rule is amended to incorporate the changes. As such, questions have arisen as to whether an agency rule that incorporates by specific reference another rule of that same agency automatically incorporates subsequent amendments to the referenced rule. HB 7183 clarifies this by providing that an agency rule that incorporates by specific reference another rule of that agency automatically incorporates subsequent amendments to the referenced rule, unless a contrary intent is clearly indicated in the referencing rule. Any notice of amendments to a rule that has been incorporated by specific reference in other rules of that agency must explain the effect of the amendments on the referencing rules.

Limits Materials that may be Incorporated by Reference. For rules adopted after 2008, material may not be incorporated by reference unless the full text of the material can be made available for free public access through an electronic hyperlink from the rule in the Florida Administrative Code making the reference, unless the agency has determined that posting of the material would constitute a violation of federal copyright law, in which case a statement to that effect, along with the address of locations at the Department of State and the agency at which the material is available for public inspection and examination is included in the notice.
Requires Electronic Publication of Code. Effective December 31, 2008, HB 7183 requires the Department of State to publish electronically the Florida Administrative Code on an Internet website managed by the department. The electronic code is to display each rule chapter currently in effect in browse mode and must allow full text search of the code and each rule chapter.

Effect of Filing of Challenge to Agency Statements Defined as Rules. The APA establishes a legislative preference for rulemaking, and requires that agency statements meeting the definition of a rule must be adopted as soon as practicable and feasible. The APA also provides a procedure for challenging agency statements defined as rules. Agencies typically have responded to these challenges by initiating rulemaking to adopt the challenged statement, because the initiation of rulemaking generally results in a stay of the challenge to the unadopted statement (and the subsequent adoption of the rule moots the challenge). In such cases, the agency may continue to rely on the challenged statement if the statement meets the requirements in s.120.57(1)(e). This paragraph generally requires that the agency "prove up" that the unadopted rule is not an invalid exercise of delegated legislative authority (i.e., it does not enlarge, modify, or contravene the specific provisions of law implemented, etc.) and that the rule is not being applied without due notice. HB 7183 make significant changes to these provisions. Effective January 1, 2008, HB 7183 provides that upon the filing of a petition for an administrative determination that an agency statement violates the rulemaking requirement, the agency shall immediately discontinue all reliance upon the statement or any substantially similar statement as a basis for agency action until either of the following occurs: (1) the proceeding is dismissed, (2) the statement is adopted and becomes effective as a rule, (3) a final order is issued that contains a determination that the petitioner failed to prove the statement constitutes a rule, or (4) a final order is issued that contains a determination that rulemaking is not feasible or not practicable. However, if the administrative law judge determines that the agency's inability to rely upon the statement during the proceeding will constitute an immediate danger to the public health, safety, or welfare, then the administrative law judge may grant an agency petition to allow application of the statement until the proceeding is concluded.

Agencies May Not Rely on Unadopted Statements. As noted, the APA currently allows an agency to rely on a challenged unadopted statement if the agency is proceeding expeditiously and in good faith to adopt rules that address the challenged unadopted statement and the agency complies with s.120.57(1)(e). However, effective January 1, 2008, HB 7183 repeals the "prove up" provisions in s. 120.57(1)(e) and expressly provides that an agency or an administrative law judge may not enforce any agency policy that constitutes an unadopted rule when the agency fails to prove that rulemaking is not feasible or practicable. This requirement does not preclude application of properly adopted rules and applicable provisions of law to the facts.
Increases Limits on Attorney's Fees. HB 7183 increases from $15,000 to $50,000 the limit on attorney's fees that may be awarded to the prevailing party in challenges to proposed and existing rules.

Revises Attorney's Fees in Challenges to Unadopted Rules. HB 7183 makes two changes to the provision governing attorney's fees in cases involving challenges to unadopted rules. The first change provides that where the agency initiates rulemaking and adopts the challenged statement, a request for attorney's fees and costs may be granted, but only upon a finding that the agency knew or should have known at the time the petition was filed that the agency statement was an unadopted rule, and no such award of attorney's fees may exceed $50,000. The second change provides that, if the agency prevails in the challenge to the unadopted statement, the administrative law judge shall award reasonable costs and attorney's fees against the party if the party participated in the proceedings for an improper purpose.
Effective Date. The Act takes effect July 1, 2007, except as otherwise expressly provided. Several of the sections have delayed effective dates. For example, the provisions governing challenges to agency statements defined as rules, reliance on unadopted rules, and changes to attorney's fees, all become effective January 1, 2008. The provision requiring the publication of an electronic version of the Florida Administrative Code becomes effective December 31, 2008.

Larry Sellers is a partner in the Tallahassee office of Holland & Knight LLP.
 

 

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