Limiting agency discretion in rulemaking under the federal and Florida Administrative Procedure Acts.

• Author: Stengle, Dan R.

Since their respective adoptions, both the federal Administrative Procedure Act and Florida's Administrative Procedure Act have become increasingly complex in their respective rulemaking requirements. The evolving and expanding processes of both the federal APA and the Florida APA appear to speak to a rather low level of trust and confidence in the rulemaking in which agencies engage, and constrain the discretion of agencies in adopting rules. Because of the myriad complexities imposed on the rulemaking process on the federal level, one rightly may question how practical rulemaking itself has become. In Florida, the noisy debate continues legislatively and judicially over the direct authority that the legislature has delegated to agencies to adopt rules, while the additions to the processes by which rules are required to be made also has limited the discretion of agencies in adopting rules.

The Federal Act

When the federal APA was developed and became law in 1946, it set "a pattern designed to achieve relative uniformity in the administrative machinery of the Federal Government."(1) Its rulemaking requirements for notice and comment allowed agencies to adopt and amend rules rapidly as circumstances warranted.(2)

In the evolution of the federal APA, the courts, Congress, and the President have imposed significant and extensive limitations and demands upon agency actions through rulemaking.(3) The process of federal rule adoption has become not only increasingly important, but also increasingly burdensome as agencies are required to demonstrate a need and rationality for the adoption of rules. In addition to the basic structure of the federal APA requiring notice and opportunities for public participation in the rulemaking process,(4) Congress has added a number of provisions that are also found, in some form, in the Florida APA, such as processes for negotiated rulemaking and defined alternative dispute resolution procedures encouraging mediation.(5)

Apart from direct requirements and constraints of the federal APA, agencies also must meet other Congressionally imposed rulemaking provisions. For instance, an environmental impact statement is required by the terms of the National Environmental Policy Act.(6) Other legal requirements mandate that agencies engage in a cost-benefit assessment for "economically significant rules," and agencies must consult with designated governmental officials before promulgating "significant" rules.(7) As well, the Regulatory Flexibility Act of 1980 stipulates that federal agencies must publish a description of any rules they expect to propose which are likely to have an economic impact on small entities.(8) The Unfunded Mandates Reform Act requires executive agencies to consider regulations that impose mandates on specified governmental entities, and requires preparation of specified regulatory analyses.(9) The Small Business Regulatory Enforcement Fairness Act of 1996 requires federal agencies to afford opportunities to small businesses and governments to allow them to comment effectively on proposed rules.(10)

These are but a few of the myriad rulemaking requirements imposed upon agencies of the federal government.(11) Indeed, federal mandates have become so extensive that commentators worry the analysis required for federal rulemaking has the potential to lead to regulatory paralysis.(12) A number of commentators have decried the "ossification" of federal rulemaking, making reference to the inefficient and even paralyzing requirements to which agencies must adhere in their regulatory programs.(13)

The ongoing debate concerns the balance to be struck between overly encumbering the federal administrative processes--which frustrates the ability of agencies to make rulemaking decisions--and unbridled discretion in rulemaking by largely unelected bureaucrats.

Florida Rulemaking Requirements

Florida has undergone a similar but less onerous expansion of its rulemaking requirements from its inception. As is the case with the federal APA, however, there can be little doubt that rulemaking under Florida's APA likewise has become more complex as it has developed from its origins in 1974.

In the APA of 1974, an agency was, as now, required to publish notice of its intended rulemaking action, setting forth a "short and plain" explanation of the purpose and effect of the proposed rule, a...