State agency rulemaking procedures and rule challenges.

• Author: Blanton, Donna E.
• Position: Florida

The most controversial concept in the Florida Administrative Procedure Act is agency rulemaking. Although courts, legislators, and regulated persons have struggled since the act's inception with how much discretion should be afforded state agencies to interpret statutes the agencies are charged with enforcing, the debate has reached fever pitch in the last decade.

With legislators enacting new rulemaking amendments in 1999(1) and the First District Court of Appeal now poised to interpret those new provisions,(2) the debate shows no sign of abating.(*)

Requiring agencies to articulate their policies as rules has always been a focus of the APA. Legislators created the modern APA in 1974 in large part to combat "phantom government," the idea that agency policies were neither widely known nor consistently applied.(3) Nonetheless, by the early 1990s many agencies eschewed rulemaking and chose to apply "incipient" policy, a means of implementing delegated legislative authority that was permitted by the courts but was frustrating to regulated persons and entities.(4)

Prodded by business groups, the legislature passed a series of laws in the 1990s designed to force agencies to adopt their policies as rules and to ensure that the rules were no more expansive than the statutes the rules were designed to implement.(5) The most significant change to rulemaking requirements occurred in 1996. Language was added to the definition of "invalid exercise of delegated legislative authority" in F.S. [sections] 120.52 that was designed to overrule a series of appellate cases holding that a rule was valid if it was reasonably related to its enabling statute and was not arbitrary and capricious.[6] The new language provided:

A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than the particular powers and duties conferred by the same statute.

Initially hailed as a far-reaching new standard that would sharply reduce agency discretion,(7) the language was quickly limited by the First District Court of Appeal. In Consolidated-Tomoka Land Co. v. St. Johns River Water Management District, 717 So. 2d 72 (Fla. 1st DCA 1998), the court found valid proposed rules creating new standards for managing and storing of surface waters in two basins within the district. In upholding the rules, the court stated that the test is whether a particular agency rule "falls within the range of powers the Legislature has granted to the agency for the purpose of enforcing or implementing the statutes within its jurisdiction. A rule is a valid exercise of delegated legislative authority if it regulates a matter directly within the class of powers and duties identified in the statute to be implemented."(8)

The legislature was not pleased with the court's interpretation of the standard, and legislation was passed in 1999 to overturn the Consolidated-Tomoka analysis.(9) The language was amended to state:

A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or, interpret the, or make specific the particular powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific the particular powers and duties conferred by the same statute.(10)

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