This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0337e.SAC
DATE: 2/24/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 337 Administrative Procedures
SPONSOR(S): State Affairs Committee, Government Operations Subcommittee, McClain
TIED BILLS: IDEN./SIM. BILLS: SB 536
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Government Operations Subcommittee 12 Y, 5 N, As CS Skinner Toliver
2) Appropriations Committee 17 Y, 5 N Helpling Pridgeon
3) State Affairs Committee 23 Y, 0 N, As CS Skinner Williamson
SUMMARY ANALYSIS
The Administrative Procedure Act (APA) sets forth a uniform set of procedures agencies must follow when
exercising delegated rulemaking authority. A rule is an agency statement of general applicability that interprets,
implements, or prescribes law or policy, including the procedure and practice requirements of an agency as
well as certain types of forms. Agencies do not have the discretion in and of themselves to engage in
rulemaking. To adopt a rule, an agency must have a general grant of authority to implement a specific law.
The bill amends the APA rulemaking process and provides a mechanism for agencies to reduce unnecessary
rules. In part, the bill:
Specifies the economic impacts and compliance costs an agency must consider in creating a statement
of estimated regulatory costs (SERC) and requires each agency to have a website where each of its
SERCs may be viewed.
Requires an agency, in all notices of rulemaking that include material incorporated by reference, to
submit the incorporated material in the prescribed electronic format to the Department of State with the
full text available for free public access through an electronic hyperlink. It also requires changes to
material incorporated by reference to be in a strike-through and underline format and requires listings in
the Florida Administrative Code to make material incorporated by reference more publicly accessible.
Requires the annual regulatory plan to identify and describe each rule that the agency expects to
develop, adopt, or repeal for the 12-month period beginning October 1, and requires agencies to review
all of their current rules for consistency with the powers and duties granted by law by a date certain and
every 10 years thereafter, and requires certain information be included in the annual regulatory plan.
Requires an agency to deliver a written explanation upon request by designated persons for failing to
comply with the annual regulatory plan requirements.
Specifies that an adverse impact on small business exists if certain criteria is met.
Specifies that a lower cost regulatory alternative may be submitted after a notice of proposed rule or a
notice of change.
Requires a notice of rule development and a notice of proposed rule to include certain information.
Requires the Joint Administrative Procedures Committee to review all existing rules and authorizes it to
file an objection in certain instances.
The bill may have a negative fiscal impact on state government. However, the impact is indeterminate and not
expected to impact agencies until a later date. See Fiscal Comments. STORAGE NAME: h0337e.SAC PAGE: 2
DATE: 2/24/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Rulemaking
Background
The Legislature, as the sole branch of government with the inherent power to create laws,
1
may
delegate to agencies in the executive branch the quasi-legislative ability, or authority, to create rules.
2
The Administrative Procedure Act (APA)
3
sets forth a uniform set of procedures agencies must follow
when exercising delegated rulemaking authority. A rule is an agency statement of general applicability
that interprets, implements, or prescribes law or policy, including the procedure and practice
requirements of an agency as well as certain types of forms.
4
Rulemaking authority is delegated by the
Legislature through statute and authorizes agencies to “adopt, develop, establish, or otherwise create”
5
rules. Usually, the Legislature delegates rulemaking authority to a given agency because an agency
has “expertise in a particular area for which they are charged with oversight.”
6
Agencies do not have
the discretion in and of themselves to engage in rulemaking.
7
To adopt a rule, an agency must have a
general grant of authority to implement a specific law by rulemaking.
8
The grant of rulemaking authority
itself need not be detailed. The specific statute being interpreted or implemented through rulemaking
must provide specific standards and guidelines to preclude the administrative agency from exercising
unbridled discretion in creating policy or applying the law.
9
An agency begins the formal rulemaking process
10
by filing a notice of rule development of proposed
rules in the Florida Administrative Register (FAR) indicating the subject area to be addressed by the
rule development and including a short, plain explanation of the purpose and effect of the proposed
rule.
11
The notice may include the preliminary text of the proposed rule, but it is not necessary. Such
notice is required for all rulemaking, except for rule repeals. Next, an agency must file, upon approval of
the agency head, a notice of proposed rule.
12
The notice of proposed rule is published by the
Department of State (DOS) in the FAR
13
and must contain the full text of the proposed rule or
amendment and a summary thereof.
14
Prior to 2012, the FAR was published weekly, resulting in a
period of at least seven days between the publication of a notice of rule development and a notice of
proposed rule.
15
In 2012, the Legislature passed HB 541 (2012) that changed the FAR from a weekly
publication to a publication that is continuously revised and, as a result, eliminated the seven-day
period between the two notices.
16
After publication of a notice of proposed rule, an agency must hold a hearing on the proposed rule if a
person requests a hearing within 21 days.
17
If, after the hearing is held or after the time for requesting a
hearing has expired, the agency does not change the rule, other than a technical change, the agency
1
Article III, s. 1, FLA. CONST.; see also art. II, s. 3, FLA. CONST.
2
See Whiley v. Scott, 79 So. 3d 702, 710 (Fla. 2011), stating “[r]ulemaking is a derivative of lawmaking.”
3
Chapter 120, F.S.
4
Section 120.52(16), F.S.
5
Section 120.52(17), F.S.
6
Whiley v. Scott, 79 So. 3d 702, 711 (Fla. 2011).
7
Section 120.54(1)(a), F.S.
8
Sections 120.52(8) and 120.536(1), F.S.
9
Sloban v. Fla. Bd. of Pharmacy, 982 So. 2d 26, 29-30 (Fla. 1st DCA 2008); Bd. of Trustees of the Internal Improvement
Trust Fund v. Day Cruise Assoc., Inc., 794 So. 2d 696, 704 (Fla. 1st DCA 2001).
10
Alternatively, a person regulated by an agency or having a substantial interest in an agency rule may petition the
agency to adopt, amend, or repeal a rule. Section 120.54(7)(a), F.S.
11
Section 120.54(2)(a), F.S.
12
Section 120.54(3), F.S.
13
Section 120.55(1)(b), F.S.
14
Section 120.54(3)(a)1., F.S.
15
Chapter 2012-63, L.O.F.
16
Id.
17
Section 120.54(3)(c), F.S. STORAGE NAME: h0337e.SAC PAGE: 3
DATE: 2/24/2022
must file a notice stating no changes have been made to the rule with the Joint Administrative
Procedures Committee (JAPC) at least seven days before filing the rule for adoption.
18
However, if a
hearing is requested, the agency may, based upon the comments received at the hearing, publish a
notice of change.
19
As an alternative to the agency initiated process delineated above, a person regulated by the agency or
having a substantial interest in an agency rule may petition the agency to adopt, amend, or repeal a
rule.
20
The petitioner must specify the proposed rule and action requested.
21
The agency can either
initiate rulemaking or decline to do so; however, if the agency chooses the latter, it must issue a written
statement of the reasons for the denial.
22
Once an agency has completed the steps of rulemaking, the agency may file for rule adoption with
DOS and the rule becomes effective 20 days later, unless a different date is indicated in the rule.
23
Most adopted rules are published in the Florida Administrative Code (FAC).
24
The validity of a rule or a proposed rule may be challenged at the Division of Administrative Hearings
(DOAH)
25
as an invalid delegation of legislative authority.
26
An invalid delegation of legislative authority
is an action that goes beyond the powers, functions, and duties delegated by the Legislature.
27
A rule
or proposed rule is an invalid delegation of legislative authority if:
The agency has materially failed to follow the rulemaking procedures in the APA;
The agency has exceeded its grant of rulemaking authority;
The rule enlarges, modifies, or contravenes the specific provisions of the law implemented;
The rule is vague, fails to establish adequate standards for agency decisions, or vests the
agency with unbridled discretion;
The rule is arbitrary or capricious; or
The rule imposes regulatory costs on the regulated person, county, or municipality that could
have been reduced by the adoption of less costly alternatives that substantially accomplish the
statutory objectives.
28
An administrative law judge (ALJ) at DOAH hears the rule challenge in a de novo proceeding and,
within 30 days of the hearing, decides on the rule’s validity based upon a preponderance of the
evidence standard.
29
The ALJ’s decision constitutes final agency action, which means an agency may
not alter the decision after its issuance,
30
but an agency may appeal the decision to the District Court of
Appeal where the agency maintains its headquarters.
31
Effect of the Bill
The bill requires a notice of proposed rule to be filed within 12 months of a notice of rule development.
If a notice of proposed rule is not filed within 12 months of the notice of rule development, the agency
must withdraw the rule and give notice of the withdrawal in the next issue of the FAR. The bill also
18
Section 120.54(3)(d)1., F.S.
19
Id.
20
Section 120.54(7)(a), F.S.
21
Id.
22
Id.
23
Section 120.54(3)(e)6., F.S.
24
Rules general in form but applicable to only one school district, community college district, or county, or a part thereof,
or state university rules relating to internal personnel or business and finance are not published in the FAC. Forms are not
published in the FAC. Section 120.55(1)(a), F.S. Emergency rules are also not published in the FAC.
25
DOAH is an agency in the executive branch, administratively housed under the Department of Management Services
but not subject to its control. DOAH employs ALJs who serve as neutral arbiters presiding over disputes arising under the
APA. Section 120.65, F.S.
26
Section 120.56(1), F.S.
27
Section 120.52(8), F.S.
28
Section 120.52(8)(a)-(f), F.S.
29
Section 120.56(1)(e), F.S.
30
Id.
31
Section 120.68(2)(a), F.S. STORAGE NAME: h0337e.SAC PAGE: 4
DATE: 2/24/2022
reestablishes the mandatory seven-day period between the publication of a notice of rule development
and the publication of a notice of proposed rule in the FAR.
The bill further requires that a proposed rule be withdrawn if, after issuing a notice of proposed rule, the
agency fails to adopt it within the prescribed timeframes in the APA. Once an agency has exceeded the
timeframe to adopt the rule, the bill requires JAPC to notify the agency of the failure. If the agency has
not withdrawn the rule within 30 days following the notice, JAPC must notify DOS that the date for
adoption of the rule has expired. DOS must then publish a notice of withdrawal of the proposed rule.
The bill requires a notice of rule development and a notice of proposed rule to include the proposed rule
number.
The bill provides that if any of the required information for a notice, other than substantive changes to
the rule text, is omitted or incorrect, then the agency must publish a notice of correction. A notice of
correction does not affect rule adoption filing timeframes. The bill further provides that technical
changes are not required to be published as a notice of correction.
The bill requires an agency to file a copy of a petition to initiate rulemaking with JAPC.
The bill defines the term “technical change” to mean a change limited to correcting grammatical,
typographical, or similar errors not affecting the substance of the rule.
Joint Administrative Procedures Committee (JAPC)
Background
JAPC is a standing committee of the Legislature established by joint rule and created to maintain a
continuous review of administrative rules, the statutory authority upon which those rules are based, and
the administrative rulemaking process.
32
Specifically, JAPC may examine existing rules and must
examine each proposed rule to determine whether:
The rule is an invalid exercise of delegated legislative authority;
The statutory authority for the rule has been repealed;
The rule reiterates or paraphrases statutory material;
The rule is in proper form;
The notice given prior to adoption was sufficient;
The rule is consistent with expressed legislative intent;
The rule is necessary to accomplish the apparent or expressed objectives of the specific
provision of law that the rule implements;
The rule is a reasonable implementation of the law as it affects the convenience of the general
public or persons particularly affected by the rule;
The rule could be made less complex or more easily comprehensible to the general public;
The rule’s statement of estimated regulatory cost complies with the requirements of the APA
and whether the rule does not impose regulatory costs on the regulated person, county, or
municipality that could be reduced by the adoption of less costly alternatives that substantially
accomplish the statutory objectives; or
The rule will require additional appropriations.
33
Upon examining a rule, JAPC may object to the rule.
34
If JAPC notifies an agency that a rule objection
is under consideration, the agency may postpone rule adoption to allow for review.
35
If the issue cannot
be resolved at the staff level, JAPC prepares a recommendation for formal objection to be presented to
32
Fla. Leg. J. Rule 4.6; see also s. 120.545, F.S.
33
Section 120.545(1), F.S.
34
Section 120.545(2), F.S.
35
Joint Administrative Procedures Committee, A Primer on Florida’s Administrative Procedure Act (2020), available at
https://www.japc.state.fl.us/Documents/Publications/PocketGuideFloridaAPA.pdf (last visited February 23, 2022); See
also s. 120.545, F.S. STORAGE NAME: h0337e.SAC PAGE: 5
DATE: 2/24/2022
the committee in a public forum.
36
The agency is advised of the recommended objection and is invited
before the committee to argue that the rule is authorized.
37
If the committee concludes that there is no
authority for the rule, it votes an objection.
38
If the agency refuses to amend or repeal the rule, JAPC’s
objection is referenced in a footnote to the rule in the Florida Administrative Code.
39
Effect of the Bill
The bill removes the permissive authority of JAPC to examine existing rules and makes such
examination mandatory to align with JAPC’s mandate to examine proposed rules. The bill also
authorizes JAPC to file an objection for the failure of an agency to repeal or amend an existing rule that
JAPC identifies as being inconsistent with the powers and duties granted by its enabling statute or
having no enabling statute.
Statement of Estimated Regulatory Cost
Background
A statement of estimated regulatory cost (SERC) is an agency estimate of the potential impact of a
proposed rule on the public, particularly the potential costs to the public of complying with the rule as
well as to the agency and other governmental entities to implement the rule.
40
Agencies are
encouraged to prepare a SERC before adopting, amending, or repealing any rule.
41
However, a SERC
is required if the proposed rule will have an adverse impact on small businesses or increase regulatory
costs by more than $200,000 in the aggregate within one year after implementation of the rule.
42
If the
agency revises a rule before adoption and the revision increases the regulatory costs of the rule, the
agency must revise the SERC to reflect that alteration.
43
A SERC must include:
A good faith estimate of the number of people and entities affected by the proposed rule;
A good faith estimate of the cost to the agency and other governmental entities to implement the
proposed rule;
A good faith estimate of transactional costs likely to be incurred by people, entities, and
governmental agencies for compliance; and
An analysis of the proposed rule’s impact on small businesses, counties, and municipalities.
44
The SERC must also include an economic analysis on the likelihood that the proposed rule will have an
adverse impact in excess of $1 million within the first five years of implementation on:
Economic growth, private-sector job creation or employment, or private-sector investment;
Business competitiveness, productivity, or innovation; or
Regulatory costs, including any transactional costs.
45
If the economic analysis results in an adverse impact or regulatory costs in excess of $1 million within
five years after implementation of the rule, then the rule must be ratified by the Legislature in order to
take effect.
46
An agency’s failure to prepare a SERC can be raised in a proceeding at DOAH to invalidate a rule as
an invalid exercise of delegated legislative authority, if it is raised within one year of the effective date of
36
Id.
37
Id.
38
Id.
39
Id.
40
Section 120.541(2), F.S.
41
Section 120.54(3)(b)1., F.S.
42
Id.
43
Section 120.541(1)(c), F.S.
44
Section 120.541(2)(b)-(e), F.S.
45
Section 120.541(2)(a), F.S.
46
Section 120.541(3), F.S. STORAGE NAME: h0337e.SAC PAGE: 6
DATE: 2/24/2022
the rule and is raised by a person whose substantial interests are affected by the regulatory costs of the
rule.
47
Effect of the Bill
The bill requires each agency to have a website where each of its SERCs may be viewed in their
entirety. DOS must include on the FAR website the agency website addresses where the SERCs can
be viewed. An agency must provide in its notice of proposed rule the agency website address where
the SERC can be viewed. If an agency revises a SERC, it must provide a notice that a revision has
been made and include an agency website address where the revision can be viewed for publication on
the FAR website.
The bill clarifies the elements an agency must consider in a SERC when evaluating the economic
impacts of the rule. Specifically, the bill requires agency estimates of economic, market, and small
business impacts likely to result from compliance with the proposed rule to consider elements such as:
Increased or decreased consumer prices or value of goods and services;
Increased costs due to obtaining substitute or alternative products or services;
The value of time expended by business owners and other business personnel to comply with
the proposed rule;
Capital costs incurred to comply with the proposed rule; and
Other impacts suggested by the rules ombudsman or interested persons.
In addition, the bill replaces the term “transactional costs” with “compliance costs,” requires agencies to
consider all direct and indirect costs of compliance, and provides 18 specific types of compliance costs
as examples for agencies to consider in their evaluation, including:
Filing fees;
Costs of obtaining a license;
Costs to obtain, install, and maintain equipment necessary for compliance;
Costs related to accounting, financial, and information management processes, as well as other
administrative processes;
Labor costs;
Costs of education, training, and testing necessary for compliance; and
Allocation of administrative and other overhead costs.
The bill allows agencies to survey individuals, businesses, business organizations, counties, and
municipalities to collect data helpful to estimate and analyze the costs and impacts of the proposed
rule. Each notice of proposed rule must contain a summary of the SERC describing the regulatory
impact of the proposed rule in readable language.
47
Section 120.541(1)(f), F.S. STORAGE NAME: h0337e.SAC PAGE: 7
DATE: 2/24/2022
Lower Cost Regulatory Alternative
Background
A person substantially affected by a proposed rule may, within 21 days after the publication of a notice
of adoption, amendment, or repeal of a rule, submit a lower cost regulatory alternative (LCRA).
48
The
LCRA must be a written proposal, made in good faith, that substantially accomplishes the objectives of
the law being implemented.
49
A LCRA may recommend that a rule not be adopted at all, if it explains
how the “lower costs and objectives of the law will be achieved by not adopting any rule.”
50
If a LCRA is
submitted to an agency, the agency must prepare a SERC if one has not been previously prepared, or
revise its prior SERC, and either adopt the LCRA or provide a statement to explain the reasons for
rejecting the LCRA.
51
Additionally, if a LCRA is submitted, the 90-day period for filing a rule is extended
an additional 21 days.
52
At least 21 days before filing a rule for adoption, an agency that is required to
revise a SERC in response to a LCRA must provide the SERC to the person who submitted the LCRA
and to JAPC and must provide notice on the agency’s website that it is available to the public.
53
Just as in the case of an agency’s failure to prepare a SERC, an agency’s failure to respond to a LCRA
may be raised in a proceeding at DOAH to invalidate a rule as an invalid delegation of legislative
authority if it is raised within one year of the effective date of the rule and is raised by a person whose
substantial interests are affected by the regulatory costs of the rule.
54
Effect of the Bill
The bill specifies that a LCRA may be submitted after a notice of proposed rule or a notice of change. If
submitted after the latter, the LCRA is deemed to have been made in good faith only if the person
reasonably believes, and the proposal states the reasons for believing, that the proposed rule as
changed by the notice of change increases the regulatory costs or creates an adverse impact on small
business.
The bill allows an agency receiving a LCRA to have the choice of modifying the proposed rule to reduce
regulatory costs in addition to either adopting the LCRA or stating its reasons for rejecting it in favor of
the proposed rule. If the rule is modified, the agency must revise its SERC, if one has been prepared. If
the agency rejects the LCRA or modifies the proposed rule, the agency must state its reasons for
rejecting the LCRA in favor of the proposed or modified rule. When a SERC is revised because a
change to a proposed rule increases the projected regulatory costs or the agency modified the rule in
response to a LCRA, a summary of the revised SERC must be included in subsequent published
rulemaking notices. Under the bill, the revised SERC must be provided to the rules ombudsman, the
party that submitted the LCRA, and JAPC, and must be published in the same manner as the original
SERC.
The bill requires an agency to provide a copy of a LCRA to JAPC at least 21 days prior to filing the rule
for adoption.
48
Section 120.541(1)(a), F.S.
49
Id.
50
Id.
51
Id.
52
Id.
53
Section 120.541(1)(d), F.S.
54
Section 120.541(1)(f), F.S. STORAGE NAME: h0337e.SAC PAGE: 8
DATE: 2/24/2022
Emergency Rules
Background
Agencies are authorized to respond to immediate dangers to the public health, safety, or welfare by
adopting emergency rules.
55
Emergency rules are not adopted using the same procedures required of
other rules.
56
The notice of the emergency rule and the text of the rule is published in the first available
issue of the FAR, however, there is no requirement that an emergency rule be published in the FAC.
57
The agency must publish prior to, or contemporaneous with, the rule’s promulgation the specific facts
and reasons for finding an immediate danger to the public health, safety, or welfare.
58
The agency’s
findings of immediate danger are judicially reviewable.
59
Emergency rules are effective immediately, or
on a date less than 20 days after filing if specified in rule,
60
but are only effective for a period of no
longer than 90 days.
61
An emergency rule is not renewable, except when the agency has initiated
rulemaking to adopt a rule relating to the subject of the emergency rule and a challenge to the
proposed rule has been filed and remains pending or the proposed rule is awaiting ratification by the
Legislature.
62
Effect of the Bill
The bill requires emergency rules to be published in the FAC. The bill also allows an agency to make
technical changes to the emergency rule within the first seven days after adoption and in such
circumstance, requires a notice of the technical change to be published in the FAC. Further, the bill
prohibits an agency from superseding an emergency rule currently in effect. The bill clarifies that an
emergency rule is not subject to the legislative ratification process.
63
Small Business Impact in Rulemaking
Background
Each agency, before the adoption, amendment, or repeal of a rule, must consider the impact of the rule
on small businesses.
64
If the agency determines that the proposed action will affect small businesses,
the agency must send written notice to the rules ombudsman
65
in the Executive Office of the Governor
at least 28 days before the intended action.
66
The agency must adopt the regulatory alternatives offered
by the rules ombudsman if it finds the alternatives are feasible and consistent with the stated objectives
of the proposed rule and would reduce the impact on small businesses.
67
55
Section 120.54(4), F.S.
56
Section 120.54(4)(a), F.S.
57
Section 120.54(4)(a)3., F.S.
58
Id.
59
Id.
60
Section 120.54(4)(d), F.S.
61
Section 120.54(4)(c), F.S.
62
Id.
63
In 2011, the Legislature passed two bills, CS/CS/CS/HB 993 (2011) and CS/CS/CS/HB 849 (2011) that contained
conflicting provisions concerning the exemption of emergency rules from the legislative ratification process. In one bill,
CS/CS/CS/HB 993 (2011), the provision exempting emergency rules in s. 120.541(4), F.S., from the legislative ratification
process was expressly included in the bill. In the other, CS/CS/CS/HB 849 (2011), the provision was erroneously deleted,
leading to a statutory conflict. In 2013, the Legislature passed CS/CS/SB 1410 (2013), which amended s. 120.541(4),
F.S., to correct a cross reference and in the process the bill erroneously continued the omission of the provision
exempting emergency rules. This bill corrects those previous errors by reinstating the provision exempting emergency
rules from the legislative ratification process.
64
Section 120.54(3)(b)2., F.S.
65
The Governor must appoint a rules ombudsman in the Executive Office of the Governor for purposes of considering the
impact of agency rules on the state citizens and businesses. The rules ombudsman must carry out the duties related to
rule adoption procedures with respect to small businesses; review agency rules that adversely or disproportionately
impact businesses, particularly those relating to small and minority businesses; and make recommendations on any
existing or proposed rules to alleviate unnecessary or disproportionate adverse effects to business. Each agency must
cooperate fully with the rules ombudsman in identifying such rules and take the necessary steps to waive, modify, or
otherwise minimize the adverse effects of any such rules. Section 288.7015, F.S
66
Section 120.54(3)(b)2.b.(I), F.S.
67
Section 120.54(3)(b)2.b.(II), F.S. STORAGE NAME: h0337e.SAC PAGE: 9
DATE: 2/24/2022
If the agency does not adopt the alternatives offered, before rule adoption or amendment, the agency
must file a detailed written statement with JAPC explaining the reasons for failure to adopt such
alternatives.
68
Effect of the Bill
The bill requires an adverse impact on small business to be found if:
An owner, officer, operator, or manager of a small business must complete any education,
training, or testing to comply with the proposed rule in the first year;
An owner, officer, operator, or manager of a small business is likely to expend 10 hours or
purchase professional advice to understand and comply with the rule in the first year;
Taxes or fees assessed on transactions are likely to increase by $500 or more in the aggregate
in one year because of the rule;
Prices charged for goods and services are restricted or are likely to increase because of the
rule;
Specially trained, licensed, or tested employees will be required;
Operating costs are expected to increase by at least $1,000 annually; or
Capital expenditures in excess of $1,000 are necessary to comply with the rule.
If the rules ombudsman of the Executive Office of the Governor provides a regulatory alternative to the
agency to lessen the impact of the rule on small businesses, the bill requires the agency to provide a
copy of the regulatory alternative to JAPC at least 21 days before filing the rule for adoption.
Incorporation by Reference
Background
The APA allows an agency to incorporate material external to the text of the rule by reference.
69
The
material to be incorporated must exist on the date the rule is adopted.
70
If after the rule has been
adopted the agency wishes to alter the material incorporated by reference, the rule itself must be
amended for the change to be effective.
71
However, an agency rule that incorporates another rule by
reference automatically incorporates subsequent amendments to the referenced rule.
72
A rule cannot
be amended by reference only.
73
An agency may not incorporate a rule by reference unless:
The material has been submitted in the prescribed electronic format to DOS and the full text of
the material can be made available for free public access through an electronic hyperlink from
the rule making the reference in the FAC; or
The agency has determined that posting the material publicly on the internet would constitute a
violation of federal copyright law, in which case a statement stating such, along with the address
of locations at DOS and the agency at which the material is available for public inspection and
examination, must be included in the notice.
74
DOS has adopted a rule governing the requirements for materials incorporated by reference through an
adopted rule.
75
The rule requires each agency incorporating material by reference in an administrative
rule to certify that the materials incorporated have been filed with DOS electronically or, if the agency
claims the posting of the material would constitute a violation of federal copyright law, the location
where the public may view the material.
76
Effect of the Bill
68
Section 120.54(3)(b)2.b.(III), F.S.
69
Section 120.54(1)(i)1., F.S.; see also r. 1-1.013, F.A.C.
70
Section 120.54(1)(i)1., F.S.
71
Id.
72
Section 120.54(1)(i)2., F.S.
73
Section 120.54(1)(i)4., F.S.
74
Section 120.54(1)(i)3., F.S.
75
Rule 1-1.013, F.A.C.
76
Rule 1-1.013(5)(d), F.A.C. STORAGE NAME: h0337e.SAC PAGE: 10
DATE: 2/24/2022
Beginning December 31, 2022, the bill requires an agency, in all notices of rulemaking, or rule
modifications that include material incorporated by reference, to submit the incorporated material in the
prescribed electronic format to DOS with the full text available for free public access through an
electronic hyperlink. Alternatively, if an agency determines that posting the incorporated material on the
internet would constitute a violation of federal copyright law, the agency must include in the notice a
statement to that effect, along with the addresses of locations at DOS and the agency at which the
material is available for public inspection and examination.
The bill requires DOS to prescribe by rule that material incorporated by reference included in a notice of
proposed rule and a notice of change be formatted in such a way that additions to the text appear
underlined and deletions appear as text stricken through.
Annual Regulatory Review
Background
Annually, each agency must prepare a regulatory plan that includes a list of each law enacted during
the previous 12 months, which creates or modifies the duties or authority of the agency, and state
whether the agency must adopt rules to implement the newly adopted laws.
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The plan must also
include a list of each additional law not otherwise listed that the agency expects to implement by
rulemaking before the following July 1, except emergency rules.
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The plan must include a certification
by the agency head or, if the agency head is a collegial body, the presiding officer, and the individual
acting as principal legal advisor to the agency verifying the persons have reviewed the plan, verifying
the agency regularly reviews all of its rules, and identifying the period during which all rules have most
recently been reviewed to determine if the rules remain consistent with the agency’s rulemaking
authority and the laws implemented.
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By October 1 of each year, the plan must be published on the
agency’s website or on another state website established for publication of administrative law records
with a hyperlink to the plan.
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The agency must also deliver a copy of the certification to JAPC and
publish a notice in the FAR identifying the date of publication of the agency’s regulatory plan.
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Effect of the Bill
The bill replaces the requirement that the annual regulatory plan include a listing of each law it expects
to implement with rulemaking with the requirement that the plan identify and describe each rule, by rule
number or proposed rule number, that the agency expects to develop, adopt, or repeal for the 12-month
period beginning October 1 and ending September 30.
The bill requires the annual regulatory plan to include a schedule for the agency to review its rules for
consistency with the powers and duties granted by the enabling statutes. An agency must review all of
its rules existing before July 1, 2022, by July 1, 2027. All rules adopted on or after July 1, 2022, and all
existing rules reviewed initially by July 1, 2027, must be reviewed every 10 years after their respective
dates of adoption or review. The bill requires the schedule to be updated annually to ensure that all
rules are reviewed accordingly.
Further, the bill requires the annual regulatory plan to include an index and summary of rules reviewed
during the previous year that must be listed by number and title. The index must indicate:
The rules reviewed that are consistent with the powers and duties granted by the enabling
statutes.
The rules reviewed that require amendments to remove portions that are inconsistent with the
enabling statute. A summary of the required amendments and a schedule for the rulemaking
must be provided.
The rules reviewed that will be repealed because there is no enabling statute. A schedule for
the repeal of the rules must be provided.
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Section 120.74(1)(a), F.S.
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Section 120.74(1)(b), F.S.
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Section 120.74(1)(d), F.S.
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Section 120.74(2)(a)1., F.S.
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Sections 120.74(2)(a)2. and 120.74(2)(a)3., F.S. STORAGE NAME: h0337e.SAC PAGE: 11
DATE: 2/24/2022
A list of all statutes and laws that grant duplicative, redundant, or unused rulemaking authority,
and a recommendation of what statutes or laws should be repealed. The agency must also
provide this list to the Division of Law Revision.
The bill requires the annual regulatory plan to contain a declaration that the agency head and the
general counsel understand that regulatory accountability is necessary to ensure public confidence in
the integrity of state government and to that end, that the agency is diligently working toward reducing
the number of regulatory requirements consistent with the agency’s rulemaking authority and the laws
implemented. The bill requires the declaration to contain the total number of rules adopted and
repealed during the previous 12 months, as well as declare that all actions in the prior annual regulatory
plan have been completed or are on a schedule to be completed and that all materials incorporated by
reference in the rules reviewed are available in the required manner.
The bill further requires an agency to deliver a written explanation upon written demand from JAPC or
the chair of any other legislative committee for failing to comply with the annual regulatory
requirements. The written explanation must include the reasons for noncompliance and must be
submitted to JAPC, the President of the Senate, the Speaker of the House of Representatives, and the
chair of any legislative committee requesting the explanation.
Florida Administrative Code
Background
The FAC is an electronic compilation of all rules adopted by each agency and maintained by DOS.
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DOS retains the copyright over the FAC.
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Each rule in the FAC must cite the grant of rulemaking authority and the specific law implemented.
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Rules applicable to only one school district, community college district, or county or state university
rules relating to internal personnel or business and finance are not required to be included in the FAC.
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DOS is required to publish the following information at the beginning of each section of the code
concerning an agency:
The address and telephone number of the executive offices of the agency;
The manner by which the agency indexes its rules; and
A listing of all rules of that agency excluded from publication in the FAC and a statement as to
where those rules may be inspected.
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DOS is required to adopt rules allowing adopted rules and materials incorporated by reference to be
filed in electronic form.
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Further, DOS is required to prescribe by rule the style and form required for
rules, notices, and other materials submitted for filing in the FAC.
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The rule DOS has adopted requires
rules that are being amended to be coded by underlining new text and by striking through deleted
text.
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Effect of the Bill
The bill requires the FAR be published once daily, by no later than 8 a.m. If, after publication, a rule is
corrected and replaced, the FAR must indicate the rule has been republished and indicate DOS has
corrected it. The bill also requires the history note appended to each rule include the date of any
technical change to the rule and provides such change does not affect the rule’s effective date. Further,
a technical change made after the adoption of a rule must be published as a notice of correction.
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Section 120.55(1)(a)1., F.S.
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Id.
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Id.
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Section 120.55(1)(a)2., F.S.
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Section 120.55(1)(a)3., F.S.
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Section 120.55(1)(a)5., F.S.
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Section 120.55(1)(c), F.S.
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Rule 1-1.010(5)(a), F.A.C. referencing r. 1-1.011(3)(c), F.A.C. STORAGE NAME: h0337e.SAC PAGE: 12
DATE: 2/24/2022
The bill also requires the FAC to contain a complete index to any material incorporated by reference
contained in the code and, at the beginning of the section of an agency’s code, to contain a listing of all
forms and material incorporated by reference adopted by that agency’s rules.
B. SECTION DIRECTORY:
Section 1 amends s. 120.52, F.S., relating to definitions applicable to the APA.
Section 2 amends s. 120.54, F.S., relating to rulemaking procedures.
Section 3 amends s. 120.541, F.S., relating to SERCs.
Section 4 amends s. 120.545, F.S., relating to JAPC review of agency rules.
Section 5 amends s. 120.55, F.S., relating to publication requirements in the APA.
Section 6 amends s. 120.74, F.S., relating to agency annual rulemaking and regulatory plans.
Section 7 provides an effective date of July 1, 2022.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill requires each agency to review its rules; includes additional requirements to comply with
notice, publication, and hearing requirements of rules; and includes additional requirements for SERCs.
Agencies may be required to expend funds to implement the requirements of the bill. It is unclear
whether these new requirements could be absorbed within each agency’s existing resources. The bill
requires agencies to complete an initial rule review for all existing rules by July 1, 2027, and every 10
years thereafter. It also requires agencies to review rules adopted on or after July 1, 2022, every 10
years after their respective dates of adoption. Agencies should have sufficient time to request additional
resources through the Legislative Budget Request process should it be determined additional
resources will be required to implement the provisions of the bill. DOS may have additional costs
associated with publishing the specified material in the bill.
III. COMMENTS
STORAGE NAME: h0337e.SAC PAGE: 13
DATE: 2/24/2022
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not provide rulemaking authority nor does it require additional rulemaking authority for
DOS to implement any of its provisions.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On January 12, 2022, the Government Operations Subcommittee adopted a strike-all amendment and
reported the bill favorably as a committee substitute. The strike-all amendment altered the bill in the
following ways:
Removed the requirement that persons responsible for the proposed rule and SERC must be
available at a workshop or public hearing;
Required regulatory alternatives to be provided to JAPC prior to filing the rule for adoption, instead
of 21 days before filing;
Required a notice of correction when certain required information is omitted or incorrect in a notice;
Required that a notice of technical changes to an emergency rule be published in the FAR;
Provided a rule is repromulgated upon filing with DOS;
Required that all rules adopted or repromulgated on or after July 1, 2022, must be reviewed within
five years after their respective dates of adoption or repromulgation, and all existing rules must be
by July 1, 2027;
Required that the FAC contain a complete index to any material incorporated by reference;
Required DOS to publish a listing of all forms and material incorporated by reference adopted by an
agency;
Required that a technical change after rule adoption be published as a notice of correction; and
Created further requirements for the regulatory plan such as requiring the plan to include a five-year
schedule for rule review and repromulgation and requiring a list to be included that consists of
duplicative, redundant, or unused rulemaking authority which must be provided to the Division of
Law Revision.
On February 23, 2022, the State Affairs Committee adopted a strike-all amendment and reported the bill
favorably as a committee substitute. The strike-all amendment:
Removed the repromulgation process and replaced it with additional requirements for the annual
regulatory plan. The annual regulatory plan now requires agencies to review all of their current rules
for consistency with the powers and duties granted by law before July 1, 2027, and requires rules to
be reviewed every 10 years thereafter.
Required an agency to deliver a written explanation upon request by designated persons for failing
to comply with the annual regulatory plan requirements.
Authorized JAPC to file an objection to an agency rule if JAPC identifies a rule as inconsistent with
the powers and duties granted by law.
Required additional items to be included in the plan certification, such as certifying that all actions in
the prior annual regulatory plan have been completed or are on schedule to be completed and all
materials incorporated by reference in the rules reviewed are available in the required manner.
Clarified that a notice of proposed rule must be published at least seven days after the publication
of the notice of rule development. STORAGE NAME: h0337e.SAC PAGE: 14
DATE: 2/24/2022
Required an agency to provide a copy of any offered regulatory alternative to JAPC at least 21 days
before filing the rule for adoption.
Clarified that the Florida Administrative Register must be published once daily, not the FAC.
This analysis is drafted to the committee substitute as approved by the State Affairs Committee.