Volume 49, Number 2
Spring 1997 - Abstracts

The 1996 Revised Florida Administrative Procedure Act: A Rulemaking Revolution or Counter-Revolution?
- Jim Rossi

In the spring of 1996, Florida radically overhauled its Administrative Procedure Act (APA) in ways that make it substantially different from the status quo. A proliferation the number of administrative rules created after the adoption of 1991 amendments that made rule creation easier inspired a "counter-revolution" that led to the 1996 revisions. The goal of the revision is to simply the APA by making it more precise, less duplicative, and better organized. More specifically, the 1996 revisions are designed to increase flexibility and create greater accountability. However, Rossi argues that these changes threaten to make rulemaking more difficult for administrative agencies without any guarantee that the quality of the regulations created will improve. While the idea of accountability may increase the opportunity for direct participation by the public in the rulemaking process, Rossi argues many of the reforms may go too far toward debilitating regulatory programs. The result, he posits, may be a system that benefits special interest groups, creates fewer new rules, and favors non-rulemaking mechanisms for making policy.

To increase flexibility, the revisions include a "waiver of rules" provision that grants an agency the discretion to apply rules more prudently. While this is theoretically seen as a benefit, Rossi is concerned the result may be to open agency floodgates to requests for special treatment from regulated parties. To increase accountability, the 1996 revisions include three additions. The first is an extreme limitation on an agency's ability to promulgate rules without express legislative direction. The second is a strict cost assessment of new regulations and a new "least-cost" review standard for rules. The third is a shifting of the burden of proof to agencies in rule challenge proceedings. Overall, Rossi believes there is reason to be skeptical of Florida's reforms and suggest the whole process should serve as a learning experience for any other state considering such regulatory reforms.

Abstract by Vikram Dhawer

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