The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Judiciary
BILL: SB 536
INTRODUCER: Senator Diaz
SUBJECT: Administrative Procedures
DATE: January 21, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Davis Cibula JU Pre-meeting
2. AP
3. RC
I. Summary:
SB 536 amends the Administrative Procedures Act (APA). The act contains a uniform set of
procedures that agencies must follow when exercising rulemaking authority delegated by the
Legislature. This bill amends the APA rulemaking process and provides a new mechanism for
agencies to review, revise, and repeal their rules. The bill:
Requires each agency to review its rules for consistency with the powers and duties granted
by the agency’s enabling statutes. If, after reviewing a rule, the agency determines
substantive changes to update a rule are not required, the agency must repromulgate the rule.
Specifies the economic impacts and compliance costs an agency must consider in creating a
statement of estimated regulatory costs (SERC). Each agency is required to have a website
where each of its SERCs may be viewed in their entirety.
Requires an agency, in all notices of rulemaking which 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.
Requires changes to material incorporated by reference to be in a strike-through and
underline format.
Requires the annual regulatory plan to identify and describe each rule, by rule number or
proposed rule number, which the agency expects to develop, adopt, or repeal for the 12-
month period beginning October 1 and ending September 30. The bill also 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 the agency is diligently working toward
lowering the total number of rules adopted.
Specifies that an adverse impact on small business exists if certain specific criteria is met.
Specifies that a lower cost regulatory alternative may be submitted after a notice of proposed
rule or a notice of change.
REVISED: BILL: SB 536 Page 2
Defines the term “technical change” and requires technical changes to be documented in the
history of the rule.
Requires a notice of rule development and a notice of proposed rule to include the proposed
rule number.
Requires a period of at least seven days between the publication of a notice of rule
development and a notice of proposed rule.
Requires the Joint Administrative Procedures Committee to review all existing rules.
II. Present Situation:
The Administrative Procedures Act - Overview
The Administrative Procedure Act, which is commonly referred to as the “APA,” is contained in
Chapter 120, F.S. The first version of the APA was adopted in 1961 in an attempt to produce a
comprehensive and uniform administrative process, or framework, to govern executive branch
agency actions. The “modern version” of the APA was adopted in 1974 and is amended almost
every year. In addition to creating a standardized process for agencies to enact rules and issue
orders, the act also provides citizens the opportunity to be involved and challenge agency
decisions.
1
The Florida Constitution vests in the Legislature the sole authority to create laws.
2
However, the
Legislature may delegate to agencies in the Executive branch the quasi-legislative ability, or
authority, to create rules and not be in violation of the separation of powers doctrine. Almost 100
years ago, in 1930, the Florida Supreme Court noted
The Legislature is in session only during limited periods, and statutes cannot
always anticipate and provide for complicated and contingent conditions in
governmental affairs; therefore functions that are quasi legislative in their
nature are with appropriate limitations conferred by statute upon
administrative officers to effectuate the statutory purpose.
3
The Legislature establishes the regulatory program to be implemented and the agencies supply
the details. Even though rules are created by executive agencies, it is the legislative branch that
maintains ownership over the product that is eventually adopted and promulgated.
4
When the
Legislature enacts statutes granting power to the executive branch, the statutes “must clearly
announce adequate standards to guide … in the execution of the powers delegated.”
5
The First District Court of Appeal noted in Gopman v. Department of Education,
6
that the APA
“presumptively governs the exercise of all authority statutorily vested in the executive branch of
1
Joint Administrative Procedures Committee, A Primer on Florida’s Administrative Procedure Act, 1 (2020),
https://www.japc.state.fl.us/Documents/Publications/PocketGuideFloridaAPA.pdf.
2
FLA. CONST. art III, s. 1.
3
Florida Motor Lines, Inc., v. Railroad Commissioners, 129 So. 876, 881 (Fla. 1930), and note 1, supra.
4
Joint Administrative Procedures Committee, The Florida Legislature, An Overview of Chapter 120 Rulemaking, (Jan. 28,
2021) (on file with the Senate Committee on Judiciary).
5
Bush v. Schiavo, 885 So. 2d 321, 332 (Fla. 2004) quoting Lewis v. Bank of Pasco County, 346 So. 2d 53, 55-56 (Fla 1976).
6
Gopman v. Dep’t of Educ., 908 So. 2d 1118, 1120 (Fla. 1st DCA 2005). BILL: SB 536 Page 3
state government.” Accordingly, the Administrative Procedures Act is the “mechanism used by
state agencies to adopt rules.”
7
A detailed description of the present situation for each section of the bill is included in the
“Effect of Proposed Changes” section of this bill analysis.
III. Effect of Proposed Changes:
Rulemaking
Present Situation
Delegation of Authority
The Legislature, as the sole branch of government having the inherent power to create laws,
8
may delegate to agencies in the executive branch the quasi-legislative ability, or authority, to
create rules.
9
As the Florida Supreme Court has noted
Rulemaking is a derivative of lawmaking. An agency is empowered to adopt
rules if two requirements are satisfied. First, there must be a statutory grant
of rulemaking authority, and second, there must be a specific law to be
implemented.
10
The Administrative Procedure Act (APA)
11
sets forth the uniform set of procedures agencies
must follow when exercising delegated rulemaking authority.
Rules
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.
12
Rulemaking Authority
Rulemaking authority is delegated by the Legislature through statute and authorizes agencies to
“adopt, develop, establish, or otherwise create”
13
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.”
14
Agencies do not have the discretion in and of
themselves to engage in rulemaking.
15
To adopt a rule, an agency must have a general grant of
authority to implement a specific law by rulemaking.
16
The grant of rulemaking authority itself
need not be detailed. The specific statute being interpreted or implemented through rulemaking
7
See supra note 4.
8
Article III, s. 1, FLA. CONST.; see also art. II, s. 3, FLA. CONST.
9
See Whiley v. Scott, 79 So. 3d 702, 710 (Fla. 2011),
10
Id.
11
Chapter 120, F.S.
12
Section 120.52(16), F.S.
13
Section 120.52(17), F.S.
14
Whiley v. Scott, 79 So. 3d 702, 711 (Fla. 2011).
15
Section 120.54(1)(a), F.S.
16
Sections 120.52(8) and 120.536(1), F.S. BILL: SB 536 Page 4
must provide specific standards and guidelines to preclude the administrative agency from
exercising unbridled discretion in creating policy or applying the law.
17
Rulemaking Process - Filing a Notice of Rule Development
An agency begins the formal rulemaking process
18
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.
19
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.
Rulemaking Process - Filing a Notice of Proposed Rule
Next, an agency must file, upon approval of the agency head, a notice of proposed rule.
20
The
notice of proposed rule is published by the Department of State (DOS) in the FAR
21
and must
contain the full text of the proposed rule or amendment and a summary thereof.
22
Before 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.
23
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.
24
Agency Hearing
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.
25
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 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.
26
However, if a hearing is requested, the agency may, based upon the comments
received at the hearing, publish a notice of change.
27
Petition Alternative
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.
28
The petitioner must specify the proposed rule and action requested.
29
17
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).
18
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.
19
Section 120.54(2)(a), F.S.
20
Section 120.54(3), F.S.
21
Section 120.55(1)(b), F.S.
22
Section 120.54(3)(a)1., F.S.
23
Chapter 2012-63, L.O.F.
24
Id.
25
Section 120.54(3)(c), F.S.
26
Section 120.54(3)(d)1., F.S.
27
Id.
28
Section 120.54(7)(a), F.S.
29
Id. BILL: SB 536 Page 5
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.
30
Rule Adoption
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.
31
Most adopted rules are published in the Florida Administrative Code (FAC).
32
Challenging a Rule for Invalid Delegation of Authority
The validity of a rule or a proposed rule may be challenged at the Division of Administrative
Hearings (DOAH)
33
as an invalid delegation of legislative authority.
34
An invalid delegation of
legislative authority is an action that goes beyond the powers, functions, and duties delegated by
the Legislature.
35
A rule or proposed rule is an invalid delegation of legislative authority if any of
the following applies:
The agency has materially failed to follow the rulemaking procedures or requirements 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.
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.
36
Hearing Before Administrative Law Judge
An administrative law judge (ALJ) at DOAH hears the rule challenge in a de novo proceeding
and, within 30 days after the hearing, makes a determination on the rule’s validity based upon a
preponderance of the evidence standard. The petitioner and the agency whose rule is challenged
are adverse parties.
37
The ALJ’s decision constitutes final agency action, which means an agency
may not alter the decision after its issuance,
38
but an agency may appeal the decision to the
District Court of Appeal where the agency maintains its headquarters.
39
30
Id.
31
Section 120.54(3)(e)6., F.S.
32
Rules general in form but applicable to only one school district, community college district, or county, or a part thereof, or
a 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.
33
DOAH is an agency in the executive branch, administratively housed under the Department of Management Services but
not subject to its control. DOAH employs administrative law judges who serve as neutral arbiters presiding over disputes
arising under the APA. Section 120.65, F.S.
34
Section 120.56(1), F.S.
35
Section 120.52(8), F.S.
36
Section 120.52(8)(a)-(f), F.S.
37
Section 120.56(1)(e), F.S.
38
Id.
39
Section 120.68(2)(a), F.S. BILL: SB 536 Page 6
Effect of Proposed Changes (Section 2)
The bill requires a notice of proposed rule to be filed within 12 months after a notice of rule
development. If a notice of proposed rule is not filed within 12 months after 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 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 also requires an agency to file a copy of a petition to initiate rulemaking with JAPC.
Finally, the bill defines the term “technical change” to mean a change limited to correcting
grammatical, typographical, and similar errors not affecting the substance of the rule.
Joint Administrative Procedures Committee (JAPC)
Present Situation
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.
40
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
40
Fla. Leg. J. Rule 4.6; see also s. 120.545, F.S. BILL: SB 536 Page 7
municipality that could be reduced by the adoption of less costly alternatives that
substantially accomplish the statutory objectives.
The rule will require additional appropriations.
41
Effect of Proposed Changes (Section 5)
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.
Agency Review of Rules
Present Situation
The APA requires each agency to annually review its rules.
42
Although an agency may amend or
repeal the rule, rules generally do not expire or sunset and many agencies have adopted rules that
have not been updated in years.
Effect of Proposed Changes (Section 4)
The bill creates a process called “repromulgation,” whereby each agency is required to review its
rules for consistency with the powers and duties granted by the agency’s enabling statutes. If,
after reviewing the rule, the agency determines that substantive changes are not required, the
agency must repromulgate the rule to reflect the date of the review. The bill defines the term
“repromulgation” to mean the publication and adoption of an existing rule following an agency’s
review of the rule for consistency with the powers and duties granted by its enabling statute.
Each agency must review its rules according to the following schedule:
If the rule was adopted before January 1, 2014, within five years after July 1, 2022; or
If the rule was adopted on or after January 1, 2014, within 10 years after the rule is adopted.
An agency, before repromulgation of a rule and upon approval of its agency head, must:
Publish a notice of repromulgation in the FAR, which is not required to include the text of
the rule; and
File the rule with DOS. The rule may not be filed for repromulgation less than 28 days before
or more than 90 days after the publication of the notice.
An agency must file a notice of repromulgation with JAPC at least 14 days before filing the rule
with DOS. JAPC must certify at the time of filing whether the agency has responded to all of
JAPC’s material or written inquiries. The bill specifies that a repromulgated rule is not subject to
the hearing requirements of the APA nor is it subject to challenge as a proposed rule.
The bill requires each agency, upon approval of the agency head, to submit three certified copies
of the repromulgated rule it proposes to adopt with DOS and one certified copy of any material
incorporated by reference in the rule. The repromulgated rule is adopted upon its filing with DOS
and becomes effective 20 days later. DOS must then update the history note of the rule in the
FAC to reflect the new effective date. The bill requires DOS to adopt rules to implement the
bill’s repromulgation provision by December 31, 2022.
41
Section 120.545(1), F.S.
42
See 120.74, F.S. BILL: SB 536 Page 8
If an agency fails to meet the deadline to review the rule or the timeframe to file the rule for
repromulgation, the rule is deemed repealed. After such a failure, JAPC notifies DOS that the
agency has elected to repeal the rule. Thereafter, DOS must publish a notice of the repeal in the
next issue of the FAR and the rule is then stricken from the files of DOS and the agency.
Statement of Estimated Regulatory Cost
Present Situation
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.
43
Agencies
are encouraged to prepare a SERC before adopting, amending, or repealing any rule.
44
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 in this state within one year
after implementation of the rule.
45
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.
46
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, small counties, and small
municipalities.
47
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 5 years after 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.
48
If the economic analysis results in an adverse impact or regulatory costs in excess of $1 million
within 5 years after implementation of the rule, then the rule must be ratified by the Legislature
in order to take effect.
49
43
Section 120.541(2), F.S.
44
Section 120.54(3)(b)1., F.S.
45
Id.
46
Section 120.541(1)(c), F.S.
47
Section 120.541(2)(b)-(e), F.S.
48
Section 120.541(2)(a), F.S.
49
Section 120.541(3), F.S. BILL: SB 536 Page 9
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 after
the effective date of the rule and is raised by a person whose substantial interests are affected by
the regulatory costs of the rule.
50
Effect of Proposed Changes (Section 3)
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 also contain a summary of the SERC
describing the regulatory impact of the proposed rule in readable language. Additionally, if an
agency holds a hearing on a proposed rule, the bill requires the agency to ensure that the person
responsible for preparing the SERC be made available to respond to questions or comments.
50
Section 120.541(1)(f), F.S. BILL: SB 536 Page 10
Lower Cost Regulatory Alternative
Present Situation
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).
51
The LCRA must be a written proposal, made in good faith, which substantially
accomplishes the objectives of the law being implemented.
52
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.”
53
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.
54
Additionally, if a LCRA is submitted, the 90-day period for filing a rule is extended an additional
21 days.
55
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.
56
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 1 year after the effective date of the rule and is raised by
a person whose substantial interests are affected by the regulatory costs of the rule.
57
Effect of Proposed Changes (Section 3)
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.
51
Section 120.541(1)(a), F.S.
52
Id.
53
Id.
54
Id.
55
Id.
56
Section 120.541(1)(d), F.S.
57
Section 120.541(1)(f), F.S. BILL: SB 536 Page 11
The bill requires an agency to provide a copy of a LCRA to JAPC at least 21 days before filing
the rule for adoption.
Emergency Rules
Present Situation
Agencies are authorized to respond to immediate dangers to the public health, safety, or welfare
by adopting emergency rules.
58
Emergency rules are not adopted using the same procedures
required of other rules.
59
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.
60
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.
61
The agency’s findings of immediate danger are judicially reviewable.
62
Emergency rules are effective immediately, or on a date less than 20 days after filing if specified
in rule,
63
but are only effective for a period of no longer than 90 days.
64
An emergency rule is not
renewable, except when the agency has initiated rulemaking to adopt rules relating to the subject
of the emergency rule and a challenge to the proposed rules has been filed and remains pending
or the proposed rules are awaiting ratification by the Legislature.
65
Effect of Proposed Changes (Sections 2 and 3)
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
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.
66
Small Business Impact in Rulemaking
Present Situation
Each agency, before the adoption, amendment, or repeal of a rule, must consider the impact of
the rule on small businesses.
67
If the agency determines that the proposed action will affect small
58
Section 120.54(4), F.S.
59
Section 120.54(4)(a), F.S.
60
Section 120.54(4)(a)3., F.S.
61
Id.
62
Id.
63
Section 120.54(4)(d), F.S.
64
Section 120.54(4)(c), F.S.
65
Id.
66
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.
67
Section 120.54(3)(b)2., F.S. BILL: SB 536 Page 12
businesses, the agency must send written notice to the rules ombudsman
68
in the Executive
Office of the Governor at least 28 days before the intended action.
69
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.
70
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.
71
Effect of Proposed Changes (Section 2)
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 the regulatory alternative to JAPC at least 21 days before filing the rule for adoption.
Incorporation by Reference
Present Situation
The APA allows an agency to incorporate material external to the text of the rule by reference.
72
The material to be incorporated must exist on the date the rule is adopted.
73
If after the rule has
been adopted the agency wishes to alter the material incorporated by reference, the rule itself
68
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
69
Section 120.54(3)(b)2.b.(I), F.S.
70
Section 120.54(3)(b)2.b.(II), F.S.
71
Section 120.54(3)(b)2.b.(III), F.S.
72
Section 120.54(1)(i)1., F.S.; see also r. 1-1.013, F.A.C.
73
Section 120.54(1)(i)1., F.S. BILL: SB 536 Page 13
must be amended for the change to be effective.
74
However, an agency rule that incorporates
another rule by reference automatically incorporates subsequent amendments to the referenced
rule.
75
A rule cannot be amended by reference only.
76
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.
77
The DOS has adopted a rule governing the requirements for materials incorporated by reference
through an adopted rule.
78
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.
79
Effect of Proposed Changes (Section 2)
Beginning July 1, 2022, the bill requires an agency, in all notices of rulemaking, repromulgated
rules, or rule modifications which 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
Present Situation
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.
80
The plan
must also include a list of each additional law not otherwise listed that the agency expects to
74
Id.
75
Section 120.54(1)(i)2., F.S.
76
Section 120.54(1)(i)4., F.S.
77
Section 120.54(1)(i)3., F.S.
78
Rule 1-1.013, F.A.C.
79
Rule 1-1.013(5)(d), F.A.C.
80
Section 120.74(1)(a), F.S. BILL: SB 536 Page 14
implement by rulemaking before the following July 1, except emergency rules.
81
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.
82
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.
83
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.
84
Effect of Proposed Changes (Section 7)
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 annual
regulatory plan must identify any rules required to be repromulgated for the 12-month period.
The bill also requires that the annual regulatory plan 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 the agency is diligently working
toward lowering the total number of rules adopted. The bill requires the declaration to contain
the total number of rules adopted and repealed during the previous 12 months.
Florida Administrative Code
Present Situation
The FAC is an electronic compilation of all rules adopted by each agency and maintained by
DOS.
85
DOS retains the copyright over the FAC.
86
Each rule in the FAC must cite the grant of rulemaking authority and the specific law
implemented.
87
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.
88
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.
81
Section 120.74(1)(b), F.S.
82
Section 120.74(1)(d), F.S.
83
Section 120.74(2)(a)1., F.S.
84
Sections 120.74(2)(a)2. and 120.74(2)(a)3., F.S.
85
Section 120.55(1)(a)1., F.S.
86
Id.
87
Id.
88
Section 120.55(1)(a)2., F.S. BILL: SB 536 Page 15
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.
89
DOS is required to adopt rules allowing adopted rules and materials incorporated by reference to
be filed in electronic form.
90
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.
91
The rule DOS
has adopted requires rules that are being amended to be coded by underlining new text and by
striking through deleted text.
92
Effect of Proposed Changes (Section 6)
The bill requires the FAC be published once daily, by no later than 8 a.m. If, after publication, a
rule is corrected and replaced, the FAC 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 changes to the rule and provides such change does not affect the rule’s
effective date.
Remaining Sections
Sections 8, 9, 10, 11, and 12 are amended to incorporate technical changes to conform cross-
references in the bill.
The bill takes effect July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
89
Section 120.55(1)(a)3., F.S.
90
Section 120.55(1)(a)5., F.S.
91
Section 120.55(1)(c), F.S.
92
Rule 1-1.010(5)(a), F.A.C. referencing r. 1-1.011(3)(c), F.A.C. BILL: SB 536 Page 16
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
SB 536 requires each agency to review and repromulgate its rules, includes additional
requirements to comply with notice, publication, and hearing requirements of rules, and
includes additional requirements for SERCs. Agencies will likely be required to spend
funds to implement the requirements of the bill. Whether these new requirements could
be absorbed within each agency’s existing resources is not known. For example,
regulatory agencies such as the Department of Business and Professional Regulation and
the Department of Health may need additional personnel to comply with repromulgation
of rules. However, the bill specifies that agencies have to complete rule review within
five years for rules adopted before January 1, 2014 and within 10 years for rules adopted
after January 1, 2014. Agencies should have sufficient time to request additional funding
or personnel through the Legislative Budget Request process should it be determined
additional funding or personnel will be required to implement the provisions of the bill.
VI. Technical Deficiencies:
Several sections of the bill could be revised for clarity or consistency.
Line 120 – The definition of “repromulgation” should be amended for consistency with the
provisions in line 891 by adding the phrase “of a notice of repromulgation” so that the
definition would read:
(16) “Repromulgation” means the publication of a notice of repromulgation and adoption of
an existing rule following an agency’s review of the rule for consistency with the powers an
duties granted by its enabling statute.
Lines 206-209 should be amended to clarify that a notice of a proposed rule is “published”
rather than “filed.”
Lines 918 – 957 contain s. 120.545, F.S., “Committee review of agency rules.” This
provision could be amended to give JAPC permission to examine a rule that has not been
reviewed and amended, repealed, or repromulgated pursuant to the deadlines set forth in
s. 120.5435, F.S. As such, the failure to repromulgate would result in an objection by JAPC
rather than an automatic repeal.
VII. Related Issues:
None. BILL: SB 536 Page 17
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 120.52, 120.54,
120.541, 120.545, 120.55, 120.74, 120.80, 120.81, 420.9072, 420.9075, and 443.091.
This bill creates section 120.5435 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.