An agency perspective on rulemaking in the 21st Century.

• Author: Downie, Robert C., II
• Position: Florida administrative agencies

Ever since the Administrative Procedure Act, F.S. Ch. 120, was introduced in its "modern" form in 1974, Florida's state agencies have been required to implement or enforce statutory law by use of "rules." The basic purpose of having rules has been to inform the regulated public how the agencies will apply laws and help prevent uneven execution of the duties of the executive branch of government. Rules have generally been necessary because the legislature often has neither the time nor the expertise to create statutes which contain all criteria necessary for enforcement, such as water quality standards, driveway spacing standards, or professional practice standards, to name a few.

The 1999 APA definition of a "rule" differs little from the 1974 APA:

"Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule.(1)

What has changed markedly in the last 25 years has been the interpretation of the phrase "implements, interprets, or prescribes law or policy" by the courts, the agencies, and the legislature. Agency rulemaking itself is now much more regulated and restricted than it once was. While the answer to the question "What is a rule?" may be the same, the answers to "When is rulemaking necessary?" and "How is rulemaking accomplished?" are not.(2) The purpose of this article is to briefly examine what the "rules of rulemaking" are at the dawn of the new millenium as contrasted to earlier interpretations, and to highlight several effects of those changes.

A Short History of Agency Rulemaking Authority

A key concept in rulemaking which has remained constant is that no agency has "inherent rulemaking authority."(3) Essentially, rules are little pieces of legislation, and in order not to violate the separation of powers doctrine, agencies cannot create rules without legislative instruction and direction. In 1974, the APA stated: "Each rule adopted shall be accompanied by a reference to the specific rulemaking authority pursuant to which the rule was adopted and a reference to the section or subsection of law being implemented, interpreted, or made specific."(4)

Early on, the legislature and courts provided agencies...