The New and Improved Administrative Procedure Act
October 19, 2001
Applying the 1996 and 1999 amendments to the Administrative Procedure Act (APA),
the First District has ruled that a statute granting the Board of Trustees of
the Internal Improvement Trust Fund authority to "adopt rules governing all
uses of sovereignty submerged lands by vessels, floating homes or any other
watercraft" was not sufficient under the amended APA to authorize
the Trustees to promulgate a rule prohibiting the use of such sovereignty
submerged lands by vessels that engage in the business of off-shore gambling
(i.e., cruises to nowhere). State Bd. Of Trustees of Int. Imp. Tr. Fund v.
Day Cruise Ass’n, 2001 WL 1098261 (Fla. 1st DCA Sept. 13, 2001). The court noted that the general grant of authority was
followed immediately in the statute by limitations making it clear that the
trustees’ authority must relate to "anchoring, mooring or otherwise
attaching to the bottom" and other anchorage or sewage issues, and
"must not interfere with commerce or the transitory operation of vessels
through navigable water." Id. at *5 (quoting section 253.03(7)(b),
Fla. Stat. (1999)).
The First District in Day Cruise noted that "The question is
whether cruise ships and their tenders can moor or dock at facilities at which
the Trustees have authorized physically comparable craft to moor or dock."
2001 WL at *1. The court noted that the trustees’ proposed rule would have a
disparate impact on gambling cruise ships solely on the basis of legal,
off-shore activities. Id. The court reviewed in detail the recent
amendments to the APA, concluding that "it is now clear, agencies have
rulemaking authority only where the legislature has enacted a specific statute,
and authorized the agency to implement it, and then only if the (proposed) rule
implements or interprets specific powers or duties, as opposed to improvising in
an area that can be said to fall only generally within some class of powers or
duties the legislature has conferred on the agency." Id. at *3.
Because the proposed rule at issue in Day Cruise interfered with
commerce over navigable waters and had nothing to do with mooring, but instead
"deliberately and dramatically interferes with certain kinds of commerce
solely on account of activities that occur many leagues from any dock," it
was not valid. Id. at *5. The court ruled that absent specific
legislative authority to regulate cruises to nowhere, or gambling, or to
regulate on the basis of offshore activities, the proposed rule exceeded the
trustees’ rulemaking authority. Id. at *7.
The trustees’ motion for rehearing, rehearing en banc, clarification
and certification is pending.
For more information, contact Susan Kelsey at 1-888-688-8500 or via e-mail at
skelsey@hklaw.com.
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