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 Rules
BILL: CS/SB 536
INTRODUCER: Rules Committee and Senator Diaz
SUBJECT: Administrative Procedures
DATE: March 2, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Davis Cibula JU Favorable
2. Davis Sadberry AP Fav/1 amendment
3. Ponder Phelps RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 536 amends the Administrative Procedures Act (APA). The APA 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 enhances the regulatory plan
requirements. In part, the bill:
o Defines the term “technical change” and requires technical changes be documented in the
history of the rule.
o 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 its entirety.
o 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.
o 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.
o Requires an agency to deliver a written explanation upon request by designated person for
failing to comply with specified annual regulatory plan requirements.
o Specifies that an adverse impact on small business exists if certain specific criteria are met.
REVISED: BILL: CS/SB 536 Page 2
Specifies that a lower cost regulatory alternative may be submitted after a notice of proposed
rule or a notice of change.
o Requires a notice of rule development and a notice of proposed rule to include certain
information.
o 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 late date. See Section V, Fiscal Impact
Statement.
II. Present Situation:
The Administrative Procedures Act - Overview
The Administrative Procedure Act, which is commonly referred to as the “APA,” is contained in
ch. 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 APA 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
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). BILL: CS/SB 536 Page 3
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
state government.” Accordingly, the APA 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
6
Gopman v. Dep’t of Educ., 908 So. 2d 1118, 1120 (Fla. 1st DCA 2005).
7
See supra note 4.
8
FLA. CONST. art. III, s. 1; see also FLA. CONST. art. II, s. 3.
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). BILL: CS/SB 536 Page 4
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
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
15
Section 120.54(1)(a), F.S.
16
Sections 120.52(8) and 120.536(1), F.S.
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, Laws of Fla.
24
Id.
25
Section 120.54(3)(c), F.S.
26
Section 120.54(3)(d)1., F.S.
27
Id. BILL: CS/SB 536 Page 5
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
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 the 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:
o The agency has materially failed to follow the rulemaking procedures or requirements in the
APA.
o The agency has exceeded its grant of rulemaking authority.
o The rule enlarges, modifies, or contravenes the specific provisions of the law implemented.
o The rule is vague, fails to establish adequate standards for agency decisions, or vests the
agency with unbridled discretion.
o The rule is arbitrary or capricious.
o 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 an Administrative Law Judge
An administrative law judge (ALJ) at the 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
28
Section 120.54(7)(a), F.S.
29
Id.
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 Florida Administrative
Code (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
Division of Administrative Hearings (DOAH) is an agency in the executive branch, administratively housed under the
Department of Management Services (DMS) but not subject to its control. The DOAH employs administrative law judges
who serve as neutral arbiters presiding over disputes arising under the Administrative Procedures Act (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. BILL: CS/SB 536 Page 6
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
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 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 the JAPC to notify the agency of
the failure. If the agency has not withdrawn the rule within 30 days following the notice, the
JAPC must notify the DOS that the date for adoption of the rule has expired. The 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 also requires an agency to file a copy of a petition to initiate rulemaking with the JAPC.
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.
40
If the agency determines that the proposed action will affect small
businesses, the agency must send written notice to the rules ombudsman
41
in the Executive
Office of the Governor at least 28 days before the intended action.
42
The agency must adopt the
37
Section 120.56(1)(e), F.S.
38
Id.
39
Section 120.68(2)(a), F.S.
40
Section 120.54(3)(b)2., F.S.
41
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.
42
Section 120.54(3)(b)2.b.(I), F.S. BILL: CS/SB 536 Page 7
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.
43
If the agency does not adopt the alternatives offered, before rule adoption or amendment, the
agency must file a detailed written statement with the JAPC explaining the reasons for failure to
adopt such alternatives.
44
Effect of Proposed Changes (Section 2)
The bill requires an adverse impact on small business to be found if:
o 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;
o 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;
o Taxes or fees assessed on transactions are likely to increase by $500 or more in the aggregate
in one year because of the rule;
o Prices charged for goods and services are restricted or are likely to increase because of the
rule;
o Specially trained, licensed, or tested employees will be required;
o Operating costs are expected to increase by at least $1,000 annually; or
o 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 the 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.
45
The material to be incorporated must exist on the date the rule is adopted.
46
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.
47
However, an agency rule that incorporates
another rule by reference automatically incorporates subsequent amendments to the referenced
rule.
48
A rule cannot be amended by reference only.
49
An agency may not incorporate a rule by
reference unless:
o The material has been submitted in the prescribed electronic format to the 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
43
Section 120.54(3)(b)2.b.(II), F.S.
44
Section 120.54(3)(b)2.b.(III), F.S.
45
Section 120.54(1)(i)1., F.S.; see also r. 1-1.013, F.A.C.
46
Section 120.54(1)(i)1., F.S.
47
Id.
48
Section 120.54(1)(i)2., F.S.
49
Section 120.54(1)(i)4., F.S. BILL: CS/SB 536 Page 8
o 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 the DOS and the agency at which the material is available for public
inspection and examination, must be included in the notice.
50
The DOS has adopted a rule governing the requirements for materials incorporated by reference
through an adopted rule.
51
The rule requires each agency incorporating material by reference in
an administrative rule to certify that the materials incorporated have been filed with the 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.
52
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 the 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 the DOS and the agency at which the material is available for public inspection and
examination.
The bill requires the 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
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.
53
Agencies
are encouraged to prepare a SERC before adopting, amending, or repealing any rule.
54
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.
55
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.
56
A SERC must include:
50
Section 120.54(1)(i)3., F.S.
51
Rule 1-1.013, F.A.C.
52
Rule 1-1.013(5)(d), F.A.C.
53
Section 120.541(2), F.S.
54
Section 120.54(3)(b)1., F.S.
55
Id.
56
Section 120.541(1)(c), F.S. BILL: CS/SB 536 Page 9
o A good faith estimate of the number of people and entities affected by the proposed rule;
o A good faith estimate of the cost to the agency and other governmental entities to implement
the proposed rule;
o A good faith estimate of transactional costs likely to be incurred by people, entities, and
governmental agencies for compliance; and
o An analysis of the proposed rule’s impact on small businesses, small counties, and small
municipalities.
57
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 after implementation
on:
o Economic growth, private-sector job creation or employment, or private-sector investment;
o Business competitiveness, productivity, or innovation; or
o Regulatory costs, including any transactional costs.
58
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.
59
An agency’s failure to prepare an SERC can be raised in a proceeding at the 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.
60
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. The 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:
o Increased or decreased consumer prices or value of goods and services;
o Increased costs due to obtaining substitute or alternative products or services;
o The value of time expended by business owners and other business personnel to comply with
the proposed rule;
o Capital costs incurred to comply with the proposed rule; and
o Other impacts suggested by the rules ombudsman or interested persons.
57
Section 120.541(2)(b)-(e), F.S.
58
Section 120.541(2)(a), F.S.
59
Section 120.541(3), F.S.
60
Section 120.541(1)(f), F.S. BILL: CS/SB 536 Page 10
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:
o Filing fees;
o Costs of obtaining a license;
o Costs to obtain, install, and maintain equipment necessary for compliance;
o Costs related to accounting, financial, and information management processes, as well as
other administrative processes;
o Labor costs;
o Costs of education, training, and testing necessary for compliance; and
o 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
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).
61
The LCRA must be a written proposal, made in good faith, which substantially
accomplishes the objectives of the law being implemented.
62
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.”
63
If a LCRA is submitted to an agency, the agency must
prepare an 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.
64
Additionally, if a LCRA is submitted, the 90-day period for filing a rule is extended an additional
21 days.
65
At least 21 days before filing a rule for adoption, an agency that is required to revise
an SERC in response to a LCRA must provide the SERC to the person who submitted the LCRA
and to the JAPC and must provide notice on the agency’s website that it is available to the
public.
66
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 the DOAH to invalidate a rule as an invalid delegation of
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.
67
61
Section 120.541(1)(a), F.S.
62
Id.
63
Id.
64
Id.
65
Id.
66
Section 120.541(1)(d), F.S.
67
Section 120.541(1)(f), F.S. BILL: CS/SB 536 Page 11
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
the 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 the JAPC at least 21 days before
filing the rule for adoption.
Joint Administrative Procedures Committee
Present Situation
Background
The 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.
68
Specifically, the JAPC may
examine existing rules and must examine each proposed rule to determine whether:
o The rule is an invalid exercise of delegated legislative authority.
o The statutory authority for the rule has been repealed.
o The rule reiterates or paraphrases statutory material.
o The rule is in proper form.
o The notice given prior to adoption was sufficient.
o The rule is consistent with expressed legislative intent.
o The rule is necessary to accomplish the apparent or expressed objectives of the specific
provision of law that the rule implements.
o 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.
o The rule could be made less complex or more easily comprehensible to the general public.
o 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.
68
Fla. Leg. J. Rule 4.6; see also s. 120.545, F.S. BILL: CS/SB 536 Page 12
o The rule will require additional appropriations.
69
Upon examining a rule, JAPC may object to the rule.
70
If JAPC notifies an agency that a rule
objection is under consideration, the agency may postpone rule adoption to allow for review.
71
If
the issue cannot be resolved at the staff level, JAPC prepares a recommendation for formal
objection to be presented to the committee in a public forum.
72
The agency is advised of the
recommended objection and is invited before the committee to argue that the rule is authorized.
73
If the committee concludes that there is no authority for the rule, it votes an objection.
74
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.
75
Effect of Proposed Changes (Section 4)
The bill removes the permissive authority of the JAPC to examine existing rules and makes such
examination mandatory to align with the 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
Florida Administrative Code and the Florida Administrative Register
Present Situation
The FAC is an electronic compilation of all rules adopted by each agency and maintained by the
DOS.
76
The DOS retains the copyright over the FAC.
77
Each rule in the FAC must cite the grant of rulemaking authority and the specific law
implemented.
78
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.
79
The DOS is required to publish the following information
at the beginning of each section of the code concerning an agency:
o The address and telephone number of the executive offices of the agency.
o The manner by which the agency indexes its rules.
o 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.
80
69
Section 120.545(1), F.S.
70
Section 120.545(2), F.S.
71
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.
72
Id.
73
Id.
74
Id.
75
Id.
76
Section 120.55(1)(a)1., F.S.
77
Id.
78
Id.
79
Section 120.55(1)(a)2., F.S.
80
Section 120.55(1)(a)3., F.S. BILL: CS/SB 536 Page 13
The DOS is required to adopt rules allowing adopted rules and materials incorporated by
reference to be filed in electronic form.
81
Further, the DOS is required to prescribe by rule the
style and form required for rules, notices, and other materials submitted for filing in the FAC.
82
The DOS requires that rules being amended to be coded by underlining new text and by striking
through deleted text.
83
The FAR is an electronic publication also maintained by the DOS. The FAR serves as the
official publication and must contain:
o All notices required by s. 120.54(2) and (3)(a), showing the text of all rules proposed for
consideration.
o All notices of public meetings, hearings, and workshops conducted in accordance with s.
120.525, including a statement of the manner in which a copy of the agenda may be obtained.
o A notice of each request for authorization to amend or repeal an existing uniform rule or for
the adoption of new uniform rules.
o Notice of petitions for declaratory statements or administrative determinations.
o A summary of each objection to any rule filed by the JAPC.
o A list of rules filed for adoption in the previous 7 days.
o A list of all rules filed for adoption pending legislative ratification under s. 120.541(3). A
rule shall be removed from the list once notice of ratification or withdrawal of the rule is
received.
o Any other material required or authorized by law or deemed useful by the DOS.
The DOS may contract with a publishing firm for a printed publication of the FAR and make
copies available on an annual subscription basis.
Effect of Proposed Changes (Section 5)
The bill requires the FAC to include complete indexes to any material incorporated by reference
and publish a listing of all forms and material incorporated by reference adopted by rule which
are used by the agency. Material incorporated by reference in any part of an adopted rule after
December 31, 2022, is required to be filed in accordance with s. 120.54(1)(i)3.a. or b.
84
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. A technical change
made after the adoption of a rule must be published as a notice of correction.
81
Section 120.55(1)(a)5., F.S.
82
Section 120.55(1)(c), F.S.
83
Rule 1-1.010(5)(a), F.A.C. referencing r. 1-1.011(3)(c), F.A.C.
84
Section 120.54(1)(i)3, F.S., provides: In rules adopted after December 31, 2010, material may not be incorporated by
reference unless: a. The material has been submitted in the prescribed electronic format to the Department of State 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 Florida Administrative Code; or b. The agency has determined that posting the material on the Internet for
purposes of public examination and inspection would constitute a violation of federal copyright law, in which case a
statement to that effect, along with the address of locations at the Department of State and the agency at which the material is
available for public inspection and examination, must be included in the notice required by subparagraph (3)(a)1.
BILL: CS/SB 536 Page 14
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
the DOS has corrected it.
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.
85
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.
86
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.
87
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.
88
The
agency must also deliver a copy of the certification to the JAPC and publish a notice in the FAR
identifying the date of publication of the agency’s regulatory plan.
89
Effect of Proposed Changes (Section 6)
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:
o The rules reviewed that are consistent with the powers and duties granted by the enabling
statutes.
85
Section 120.74(1)(a), F.S.
86
Section 120.74(1)(b), F.S.
87
Section 120.74(1)(d), F.S.
88
Section 120.74(2)(a)1., F.S.
89
Sections 120.74(2)(a)2. and 120.74(2)(a)3., F.S. BILL: CS/SB 536 Page 15
o 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.
o The rules reviewed that will be repealed because there is no enabling statute. A schedule for
the repeal of the rules must be provided.
o 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
Remaining Sections
Section 1 defines the term “technical change” to mean a change limited to correcting
grammatical, typographical, and similar errors not affecting the substance of the rule.
The bill takes effect July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The bill does not require counties or municipalities to take action
requiring the expenditure of funds, reduce the authority that counties or municipalities
have to raise revenue in the aggregate, nor reduce the percentage of state tax shared with
counties or municipalities.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None. BILL: CS/SB 536 Page 16
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The bill may have an indeterminate, negative fiscal impact on state government. The bill
requires each agency to review its rules, and includes additional requirements for SERCs.
Agencies may 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. 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. The Department of
State may have additional costs associated with publishing the specified material in the
bill.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 120.52, 120.54,
120.541, 120.545, 120.55, and 120.74. BILL: CS/SB 536 Page 17
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Rules on March 1, 2022:
The committee substitute:
Removes the provisions addressing emergency rules, including:
o The requirement that emergency rules be published in the Florida Administrative
Code.
o The provision that prohibits an agency from making changes to emergency rules
by superseding the rule.
o The authorization to agencies to make technical changes to an emergency rule
during a specified timeframe.
Removes the repromulgation process and replaces it with additional requirements for
the annual regulatory plan.
Removes a provision that would have required automatic repeal of a rule if it was not
repromulgated and instead authorizes JAPC to file an objection if JAPC identifies a
rule as inconsistent with the powers and duties granted by law.
Provides that the annual regulatory plan must now include an agency review of all of
its 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.
Requires an agency to deliver a written explanation upon request by designated
persons for failing to comply with the annual regulatory plan requirements.
Clarifies that a notice of proposed rule must be published at least seven days after the
publication of the notice of rule development.
Requires an agency to provide a copy of any offered regulatory alternative to JAPC at
least 21 days before filing the rule for adoption
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.