This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0713e.SAC
DATE: 4/21/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/CS/HB 713 Administrative Procedures and Permitting Process Review
SPONSOR(S): State Affairs Committee, Agriculture, Conservation & Resiliency Subcommittee, Constitutional
Rights, Rule of Law & Government Operations Subcommittee, McFarland
TIED BILLS: IDEN./SIM. BILLS: CS/SB 742
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Constitutional Rights, Rule of Law &
Government Operations Subcommittee
11 Y, 2 N, As CS Wagoner Miller
2) Agriculture, Conservation & Resiliency
Subcommittee
17 Y, 0 N, As CS Gawin Moore
3) State Affairs Committee 11 Y, 6 N, As CS Wagoner 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. Executive branch agencies do not have inherent rulemaking
authority.
The bill amends the APA to increase transparency in rulemaking, provides a process for agencies to reduce
unnecessary rules, requires certain agencies to review coastal permitting and other permitting processes, and
ensures that regulatory cost impacts are considered for every rule. Specifically, 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.
Authorizes agencies to hold workshops to gather information to aid in the preparation of the SERC.
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.
Requires the agency annual regulatory plan to 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, and to include a declaration by the agency head and
general counsel.
Allows submitting a lower cost regulatory alternative after publication of a notice of change.
Defines the term “technical change” and requires documenting technical changes in a rule’s history.
Requires at least seven days between the publications of a notice of rule development and of a notice
of proposed rule.
Requires the Department of Environmental Protection and each water management district to review
and report on their permitting processes.
The bill may have a negative fiscal impact on state government. See Fiscal Comments.
STORAGE NAME: h0713e.SAC PAGE: 2
DATE: 4/21/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Rulemaking
Present Situation
The Legislature, as the sole branch of government with the inherent power to create laws,
1
may
delegate to executive branch agencies and certain political subdivisions the quasi-legislative authority
to create rules.
2
The Administrative Procedure Act (APA)
3
sets forth a uniform set of procedures
agencies
4
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.
5
Rulemaking authority is
delegated by the Legislature through statute and authorizes agencies to “adopt, develop, establish, or
otherwise create”
6
rules. The Legislature delegates rulemaking authority where the given agency has
“expertise in a particular area for which they are charged with oversight.”
7
Agencies do not have the
discretion in and of themselves to engage in rulemaking.
8
To adopt a rule, an agency must have
authority both to make rules and implement a specific law.
9
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.
10
Whether creating or amending a rule, an agency begins the formal rulemaking process
11
by publishing
a notice of rule development in the Florida Administrative Register (FAR) indicating the subject area to
be addressed and including a short, plain explanation of the purpose and effect of the rule.
12
The notice
may include the preliminary text of the proposed rule, but it is not necessary. An agency may hold
public workshops for rule development but must hold such workshops, including in various regions of
the state, if so requested in writing by any affected person.
13
After publishing the notice of rule development, and upon approval by the agency head, an agency
must publish a notice of proposed rule.
14
A rule cannot be amended by reference only.
15
The notice is
1
Art. 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
Ch. 120, F.S.
4
“Agency” includes the Governor; each state officer and state department, and each departmental unit described in
s. 20.04; the Board of Governors of the State University System; the Commission on Ethics; the Fish and Wildlife
Conservation Commission; a regional water supply authority; a regional planning agency; a multicounty special district,
but only if a majority of its governing board is comprised of nonelected persons; educational units; and each entity
described in chs. 163, 373, 380, and 582, F.S., and s. 186.504, F.S., each officer and governmental entity in the state
having statewide jurisdiction or jurisdiction in more than one county, and each officer and governmental entity with
jurisdiction within only one county but made subject to the APA by general or special law or judicial decision. The
definition excludes municipalities and other specifically identified governmental entities. S. 120.52(1), F.S.
5
S. 120.52(16), F.S.
6
S. 120.52(17), F.S.
7
Whiley v. Scott, 79 So. 3d 702, 711 (Fla. 2011).
8
S. 120.54(1)(a), F.S.
9
Ss. 120.52(8) and 120.536(1), F.S.
10
Sloban v. Florida Board of Pharmacy, 982 So. 2d 26, 29-30 (Fla. 1st DCA 2008); Board of Trustees of the Internal
Improvement Trust Fund v. Day Cruise Association, Inc., 794 So. 2d 696, 704 (Fla. 1st DCA 2001).
11
Alternatively, a person regulated by an agency or having substantial interest in an agency rule may petition the agency
to adopt, amend, or repeal a rule. Section 120.54(7), F.S.
12
S. 120.54(2), F.S.
13
S. 120.54(2)(c), F.S.
14
S. 120.54(3)(a)1., F.S.
15
S. 120.54(1)(i)4., F.S. STORAGE NAME: h0713e.SAC PAGE: 3
DATE: 4/21/2023
published by the Department of State (DOS) in the FAR
16
and must contain both the full text of the
proposed rule or amendment and a summary.
17
After publishing a notice of proposed rule, an agency must hold a hearing if requested within 21 days
from the date of publication.
18
After the hearing is held or the time for requesting a hearing has expired,
if 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.
19
However, if a hearing is requested, the
agency may, based upon the comments received at the hearing, publish a notice of change.
20
As an alternative to the agency initiated rulemaking 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. The petitioner must specify the proposed rule and action requested. The agency may
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.
21
Once an agency has completed the steps of rulemaking, the agency may file the rule for adoption with
DOS and the rule becomes effective 20 days later, on a later date specified in the notice, on a date
specified in statute, or upon ratification by the Legislature.
22
Most adopted rules are published in the
Florida Administrative Code (FAC).
23
The validity of a rule or a proposed rule may be challenged at the Division of Administrative Hearings
(DOAH)
24
as an invalid delegation of legislative authority.
25
An invalid delegation of legislative authority
is an action that goes beyond the powers, functions, and duties delegated by the Legislature.
26
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 adopting less costly alternatives that substantially accomplish the
statutory objectives.
27
An administrative law judge (ALJ) at DOAH hears the rule challenge in a de novo proceeding and,
within 30 days of the hearing, renders a final order determining the rule’s validity based upon a
16
S. 120.55(1)(b), F.S. 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. 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. See ch. 2012-63, Laws of Fla.
17
S. 120.54(3)(a)1., F.S.
18
S. 120.54(3)(c), F.S.
19
S. 120.54(3)(d)1., F.S.
20
Id.
21
S. 120.54(7)(a), F.S.
22
S. 120.54(3)(e)6., F.S.
23
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. S. 120.55(1)(a), F.S. Emergency rules are also not published in the FAC.
24
DOAH is an agency in the executive branch, administratively housed within 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. S. 120.65, F.S.
25
S.120.56(1), F.S.
26
S.120.52(8), F.S.
27
S. 120.52(8)(a)-(f), F.S. STORAGE NAME: h0713e.SAC PAGE: 4
DATE: 4/21/2023
preponderance of the evidence standard.
28
The agency may not alter the ALJ’s decision but may
appeal the decision to the District Court of Appeal where the agency maintains its headquarters.
29
Effect of the Bill
The bill requires a notice of proposed rule to be filed within 12 months of publishing a notice of rule
development. The bill requires that a proposed rule be withdrawn if, after issuing a notice of proposed
rule, the agency fails to adopt it within the APA prescribed timeframes. If an agency exceeds the time
allowed to adopt the rule, the bill requires JAPC to notify the agency of the failure. If the agency does
not withdraw 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 an agency to file a copy of a petition to initiate rulemaking with JAPC. The bill also
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
Present Situation
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.
30
JAPC may examine existing rules and must examine each
proposed rule to determine whether the:
Rule is an invalid exercise of delegated legislative authority;
Statutory authority for the rule has been repealed;
Rule reiterates or paraphrases statutory material;
Rule is in proper form;
Notice given prior to adoption was sufficient;
Rule is consistent with expressed legislative intent;
Rule is necessary to accomplish the apparent or expressed objectives of the specific provision
of law that the rule implements;
Rule is a reasonable implementation of the law as it affects the convenience of the general
public or persons particularly affected by the rule;
Rule could be made less complex or more easily comprehensible to the general public;
Rule’s statement of estimated regulatory cost (SERC) complies with the requirements of the
APA and whether the rule imposes 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
Rule will require additional appropriations.
31
28
S. 120.56(1)(e), F.S.
29
S. 120.68(2)(a), F.S.
30
Fla. Leg. J. Rule 4.6; see also s. 120.545, F.S.
31
S. 120.545(1), F.S. STORAGE NAME: h0713e.SAC PAGE: 5
DATE: 4/21/2023
Effect of the Bill
The bill requires JAPC to examine existing rules to align with its mandate to examine proposed rules.
Agency Review of Rules
Present Situation
The APA requires each agency to review its rules annually.
32
Rules generally do not expire or sunset
and many agencies have adopted rules that have not been updated in years.
Effect of the Bill
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 the agency
determines that substantive changes are not required after reviewing the rule, the agency must
repromulgate the rule to reflect the date of the review. The bill defines “repromulgation” to mean the
publication and adoption of an existing rule following an agency’s review of the rule for consistency with
the power and duties granted by its enabling statutes. Each agency must review its rules according to
the following schedule:
If the rule was adopted on or after January 1, 2019, within five years after its effective date, and
every five years thereafter.
For any rule existing as of July 1, 2023, no later than December 31, 2028.
No later than September 1, 2023, and annually thereafter, the bill requires JAPC to provide each
agency a list of existing rules and their effective dates for review in the next calendar year.
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. Under the bill, the APA hearing requirements do not apply to
repromulgation of a rule
33
and a repromulgated rule is not subject to challenge as a proposed rule.
34
The bill requires each agency, upon approval of the agency head, to submit electronically a certified
copy 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 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, 2023.
If an agency fails to adhere to deadlines imposed for repromulgation, any person regulated by the
agency or substantially interested in the rule may petition the agency to review the rule. Upon receiving
the petition to review, the agency has 30 days to comply with or deny the petition. Each agency must
submit a list of rules not being re-promulgated to the President of the Senate and the Speaker of the
House 30 days before each legislative session, and must identify whether the rulemaking authority for
each such rule remains in effect. If no action is taken by the Legislature with regard to a listed rule, by
July 1 following the legislative session, the agency must initiate rulemaking proceedings to repeal the
rule.
32
See s. 120.74, F.S.
33
See s. 120.54(3)(c), F.S.
34
See s. 120.56(2), F.S. STORAGE NAME: h0713e.SAC PAGE: 6
DATE: 4/21/2023
The bill exempts community development districts from the rule repromulgation requirements.
35
Statement of Estimated Regulatory Costs
Present Situation
A SERC is an agency estimate of the potential costs to the public of complying with a rule as well as to
the agency and other governmental entities to implement the rule.
36
Agencies are encouraged to
prepare a SERC before adopting, amending, or repealing any rule.
37
However, a SERC is required if
the proposed rule will have a negative impact on small businesses or increase regulatory costs by more
than $200,000 in the aggregate within one year after implementation of the rule.
38
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 increase.
39
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
40
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.
41
The SERC must also include an economic analysis on the likelihood that the proposed rule will have
direct or indirect adverse impacts 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.
42
A rule having any such impact must be ratified by the Legislature in order to take effect.
43
An agency’s failure to prepare a SERC or respond to a lower cost regulatory alternative may be used in
a challenge to invalidate the rule as an invalid exercise of delegated legislative authority only if raised in
a petition filed within one year of the effective date of the rule by a person whose substantial interests
are affected by the regulatory costs of the rule.
44
Effect of the Bill
The bill requires an agency to prepare a SERC for a rule repeal if such repeal would impose a
regulatory cost. In a challenge to a rule repeal that only reduces or eliminates regulations on those
35
The Florida Land and Water Adjudicatory Commission is authorized to create community development districts of 2,500
or more acres by administrative rulemaking, and community development districts are authorized to adopt rules and
orders pursuant to the APA. See ss. 190.005(1) and 190.011(5), F.S.
36
S. 120.541(2), F.S.
37
S. 120.54(3)(b)1., F.S.
38
S. 120.54(3)(b)1., F.S.
39
S. 120.541(1)(c), F.S.
40
“Transactional costs” are readily ascertainable direct costs based on standard business practices, including matters
such as filing fees, the cost to obtain a license, and costs of complying with the rule such as required equipment or
revised operating procedures. S. 120.541(2)(d), F.S.
41
S. 120.541(2)(b)-(e), F.S.
42
S. 120.541(2)(a), F.S.
43
S. 120.541(3), F.S.
44
S. 120.541(1)(f), F.S. STORAGE NAME: h0713e.SAC PAGE: 7
DATE: 4/21/2023
regulated by the rule, the repeal must be considered presumptively correct in any proceedings before
DOAH or a court.
If an agency revises a SERC, the bill requires the agency to provide notice of the revision and include
the agency website address where the revision may be viewed for publication on the FAR website.
The bill replaces the term “transactional costs” with “compliance costs.”
The bill allows agencies to survey individuals, businesses, business organizations, counties, and
municipalities to collect data helpful to estimate the costs and impacts of the proposed rule. The bill
authorizes agencies to hold workshops to gather information to aid in the preparation of the SERC.
Additionally, if an agency holds a hearing on a proposed rule, the bill requires the agency to ensure that
those responsible for preparing the SERC be made available to respond to questions or comments. If a
SERC is not required, the bill requires the notice to state the information that the agency relied upon in
reaching this conclusion.
Lower Cost Regulatory Alternative
Present Situation
Within 21 days after publication of a notice of rule adoption, amendment, or repeal, a person
substantially affected by the proposed rule may submit a lower cost regulatory alternative (LCRA).
45
The LCRA must be a written proposal, made in good faith, that substantially accomplishes the
objectives of the law being implemented.
46
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.”
47
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 explaining the
reasons for rejecting the LCRA.
48
Additionally, submitting a LCRA extends the 90-day period for filing a
rule for an additional 21 days.
49
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 revised SERC to the person
submitting the LCRA and to JAPC and must provide notice on the agency’s website that it is available
to the public.
50
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 filed in a petition within one year from the effective date of the rule and is raised by a person
whose substantial interests are affected by the regulatory costs of the rule.
51
Effect of the Bill
The bill specifies that a LCRA may be submitted either after a notice of proposed rule or a notice of
change. If submitted after the agency publishes a notice of change, the LCRA is deemed to be made in
good faith only if the person reasonably believes, and states such reasons in the proposal, that the
proposed rule as changed increases the regulatory costs or creates an adverse impact on small
business. If an agency receives a LCRA, the bill requires the agency to provide a copy to JAPC at least
21 days before filing the rule for adoption.
In addition to a rulemaking agency’s choice to adopt or reject with explanation a LCRA, the bill
authorizes an agency to modify the proposed rule to substantially reduce regulatory costs. If the rule is
modified, the agency must revise the SERC. 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.
45
S. 120.541(1)(a), F.S.
46
Id.
47
Id.
48
Id.
49
Id.
50
S. 120.541(1)(d), F.S.
51
S. 120.541(1)(f), F.S. STORAGE NAME: h0713e.SAC PAGE: 8
DATE: 4/21/2023
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 submitting the LCRA, and JAPC, and must be published in
the same manner as the original SERC.
Florida Administrative Code and Register
Present Situation
The FAC is the official electronic compilation of all rules adopted by each agency and maintained by
DOS. DOS retains the copyright over the FAC.
52
Each rule in the FAC must cite the grant of rulemaking authority and the specific law implemented, as
well as a history note detailing the initial promulgation of the rule and any subsequent changes.
53
Rules
applicable to only one school district, one 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.
54
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.
55
DOS must adopt rules allowing electronic filing of adopted rules and material incorporated by
reference,
56
and must prescribe by rule the style and form required for rules, notices, and other
materials submitted for filing in the FAC.
57
DOS requires rules that are being amended to be coded by
underlining new text and by striking through deleted text.
58
The FAR is the official publication of the APA published electronically on a free public website
59
managed by DOS as a continuous revision under the statute.
60
The FAR must contain all notices of rule
development and adoption, showing the full text of all rules proposed for consideration; all notices of
public meetings, hearings, and workshops under s. 120.525, F.S.; all notices of requests to adopt,
amend, or repeal a rule; all notices of petitions for a declaratory statement or an administrative
determination; summaries of objections to any rule filed by JAPC; a list of rules filed for adoption in the
previous seven days; a list of all rules filed for adoption pending legislative ratification; and all other
material required by law or deemed useful by DOS.
61
The FAR website must allow users to search for
notices by specific criteria,
62
search for notices published in the FAR for at least the preceding five
years, subscribe to automated e-mail notification of selected notices, view agency forms and other
materials submitted electronically to DOS, and comment on proposed rules.
63
Effect of the Bill
The bill requires the FAR be published once daily, by no later than 8 a.m., with the exception of state
holidays and emergency closures. If a rule is corrected and replaced, the FAR must indicate the rule
52
S. 120.55(1)a.1., F.S.
53
Id.
54
S. 120.55(1)(a)2., F.S.
55
S. 120.55(1)(a)3., F.S.
56
S. 120.55(1)(a)5., F.S.
57
S. 120.55(1)(c), F.S.
58
R. 1-1.010(5)(a), F.A.C., referencing r. 1-1.011(3)(c), F.A.C.
59
S. 120.55(7), F.S.
60
S. 120.55(1)(b), F.S.
61
S. 120.55(1)(b)1.-7., F.S.
62
By type, publication date, rule number, word, subject, and agency. S. 120.55(2)(a), F.S.
63
S. 120.55(2), F.S. STORAGE NAME: h0713e.SAC PAGE: 9
DATE: 4/21/2023
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.
Emergency Rules
Present Situation
Agencies are authorized to respond to immediate dangers to the public health, safety, or welfare by
adopting emergency rules.
64
Emergency rule adoption follows different procedures.
65
The notice of the
emergency rule and its text is published in the first available issue of the FAR. There is no requirement
that an emergency rule be published in the FAC.
66
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.
67
Emergency rules are effective immediately, or on a
date less than 20 days after filing if specified in the rule,
68
but are effective for no longer than 90 days.
69
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 either a challenge to the proposed rules has been filed
and remains pending or the proposed rule is awaiting ratification by the Legislature.
70
The validity of an
emergency rule may be challenged at DOAH subject to an expedited filing and hearing schedule.
71
Effect of the Bill
The bill requires emergency rules to be published in the FAC instead of the FAR. The bill also allows an
agency to make technical changes to the emergency rule within the first seven days after adoption and
permits an agency to supersede an emergency rule currently in effect through the adoption of another
emergency rule. The bill clarifies that an emergency rule is not subject to the legislative ratification
process.
72
Additionally, the bill:
Requires that any notice of renewal of an emergency rule be published in the FAR before
expiration of the emergency rule;
Requires emergency rules with an effective period longer than 90 days and intended to replace
existing rules to have a history note that specifically identifies the emergency rule and includes
the date the emergency rule was filed with DOS; and
Provides that an adopted emergency rule may be repealed at any time while the rule is in effect
by publishing a notice in the FAR.
64
S. 120.54(4), F.S.
65
S. 120.54(4)(a)1., F.S.
66
S. 120.54(4)(a)3., F.S.
67
Id.
68
S. 120.54(4)(d), F.S.
69
S. 120.54(4)(c), F.S.
70
Id.
71
Id.
72
In 2011, the Legislature passed two bills, CS/CS/HB 993 and CS/CS/CS/HB 849 that contained conflicting provisions
concerning the exemption of emergency rules from the legislative ratification process. In CS/CS/HB 993, the provision
exempting emergency rules from the legislative ratification process was expressly included in the bill. In CS/CS/CS/HB
849, the provision was deleted, leading to a statutory conflict. In 2013, the Legislature passed CS/CS/SB 1410, which
amended s. 120.541(4), F.S., to correct a cross reference and in the process the bill continued the omission of the
provision exempting emergency rules. This bill reinstates the provision exempting emergency rules from the legislative
ratification process. STORAGE NAME: h0713e.SAC PAGE: 10
DATE: 4/21/2023
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.
73
If the agency determines that the proposed action will affect small businesses,
the agency must send written notice to the rules ombudsman in the Executive Office of the Governor at
least 28 days before the intended action.
74
The agency must adopt the regulatory alternatives offered
by the rules ombudsman if the alternatives are feasible, consistent with the stated objectives of the
proposed rule, and would reduce the impact on small businesses.
75
If the agency does not adopt the
alternatives offered, and before rule adoption or amendment, the agency must file a detailed written
statement with JAPC explaining the reasons for not adopting such alternatives.
76
Effect of the Bill
If the rules ombudsman 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 proposed 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.
77
The
material to be incorporated must exist on the date the rule is adopted.
78
If the agency seeks to alter the
material incorporated by reference after the rule has been adopted, the rule itself must be amended for
the change to be effective.
79
However, an agency rule incorporating another rule by reference
automatically incorporates subsequent amendments to the referenced rule.
80
An agency may not incorporate material by reference unless:
The material is submitted in the prescribed electronic format to DOS and the full text of the
material may be made available for free public access through an electronic hyperlink from the
rule incorporating the material by reference in the FAC; or
If the agency determined that posting the material publicly on the Internet would violate federal
copyright law, a statement explaining such concern, 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.
81
DOS requires each agency incorporating material by reference in an administrative rule to certify the
materials incorporated have been filed with DOS electronically or, if the agency claims the posting of
the material would violate federal copyright law, the location where the public may view the material.
82
Effect of the Bill
Beginning July 1, 2023, the bill requires an agency, in all notices of rulemaking, repromulgating rules,
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
73
S. 120.54(3)(b)2., F.S.
74
S. 120.54(3)(b)2.b.(I), F.S.
75
S. 120.54(3)(b)2.b.(II), F.S.
76
S. 120.54(3)(b)2.b.(III), F.S.
77
S. 120.54(1)(i), F.S.; see also r. 1-1.013, F.A.C.
78
S. 120.54(1)(i)1., F.S.
79
Id.
80
S. 120.54(1)(i)2., F.S.
81
S. 120.54(1)(i)3., F.S.
82
R. 1-1.013(5)(d), F.A.C. STORAGE NAME: h0713e.SAC PAGE: 11
DATE: 4/21/2023
through an electronic hyperlink and include a summary of substantive revisions to any material
proposed to be incorporated by reference. Alternatively, if an agency determines that posting the
incorporated material on the internet would violate 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 that creates or modifies the duties or authority of the agency and state whether
the agency must adopt rules to implement the newly adopted laws.
83
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. 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 they reviewed the plan, that 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.
84
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. 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.
85
Effect of the Bill
The bill replaces the requirement that the annual regulatory plan include a listing of each law the
agency expects to implement through 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 also identify any rules required to be repromulgated during that 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.
Infrastructure Permitting Process Review
Present Situation
Coastal Construction Permits
Coastal construction is regulated by the Department of Environmental Protection (DEP) in order to
protect Florida’s beaches and dunes from imprudent construction that may jeopardize the stability of
Florida’s natural resources.
86
The coastal construction control line (CCCL) defines the portion of the
beach-dune system that is subject to severe fluctuations caused by a 100-year storm surge, storm
83
S. 120.74(1), F.S.
84
S. 120.74(1)(d), F.S.
85
S. 120.74(2), F.S.
86
S. 161.053(1)(a), F.S. STORAGE NAME: h0713e.SAC PAGE: 12
DATE: 4/21/2023
waves, or other forces such as wind, wave, or water level changes.
87
Seaward of the CCCL, new
construction and improvements to existing structures generally require a CCCL permit from DEP.
88
Permit applicants must show the proposed project will not result in a significant adverse impact.
89
DEP
makes 30-year erosion projections of the location of the seasonal high-water line on a site-specific
basis upon receipt of a CCCL permit application.
90
With certain exceptions, DEP and local governments
may not issue CCCL permits for the construction of major structures that are seaward of the 30-year
erosion projection.
91
For joint coastal permits, the Legislature does not require a detailed review of a previously permitted
project if there have been no substantial changes to the scope of the project and past performance
shows the project performed to design expectations.
92
Environmental Resource Permits
Part IV of chapter 373, F.S., regulates the construction, alteration, operation, maintenance,
abandonment, and removal of stormwater management systems, dams, impoundments, reservoirs,
works, and appurtenant works. DEP regulates activities in, on, or over surface waters, as well as any
activity that alters surface water flows, through environmental resource permits (ERPs). ERPs are
required for development or construction activities typically involving the dredging or filling of surface
waters, construction of flood protection facilities, building dams or reservoirs, or any other activities that
affect state waters.
93
A water management district (WMD) or DEP may require an ERP and impose
reasonable conditions necessary to assure the construction or alteration of any water management
system
94
complies with state law and applicable rules and will not be harmful to water resources.
95
Pursuant to specific statutory authority,
96
DEP adopted a comprehensive chapter of rules governing the
permitting process.
97
State Administered Federal Section 404 Dredge and Fill Permits
In 2018, Florida assumed responsibility under section 404 of the federal Clean Water Act
98
for dredge
and fill permitting.
99
DEP adopted rules implementing the assumption of the section 404 program.
100
The State 404 Program is responsible for overseeing permitting for any project proposing dredge or fill
activities within state assumed waters.
101
87
S. 161.053, F.S.; r. 62B-33.005(1), F.A.C.; DEP, The Homeowner’s Guide to the Coastal Construction Control Line
Program (2017), at 3, (last visited March 3, 2023).
88
S. 161.053, F.S.; DEP, The Homeowner’s Guide to the Coastal Construction Control Line Program (2017), at 3, (last
visited March 3, 2023).
89
R. 62B-33.005, F.A.C.
90
Id.
91
S. 161.053(5), F.S.
92
S. 161.041(8), F.S.
93
See s. 373.413, F.S.
94
S. 373.403(10), F.S.
95
S. 373.413(1), F.S.
96
S. 373.4131, F.S.
97
Ch. 62-330, F.A.C.
98
33 U.S.C. s. 1251, et seq.
99
S. 373.4146, F.S.
100
See ch. 62-330, F.A.C.
101
Fl. Dept. of Environmental Protection, State 404 Program, www.floridadep.gov/water/submerged-lands/content/state-
404-program (last visited March 3, 2023). STORAGE NAME: h0713e.SAC PAGE: 13
DATE: 4/21/2023
Permitting Process
Upon receiving an ERP permit application, DEP or the WMD evaluates the material to determine if the
application is complete.
102
If the application is incomplete, DEP or the WMD must request additional
information within 30 days after receiving the application.
103
The rules of DEP allow an applicant 90
days to respond to such requests.
104
Within 30 days after receiving such additional information, DEP or
the WMD must review the submittal.
105
Once the application is complete, DEP or the WMD must decide
whether to issue or deny an ERP within 60 days after receiving the original application, the last item of
timely requested additional material, or the applicant’s written request to begin processing the permit
application.
106
Any application that DEP or the WMD does not approve or deny within 60 days is
considered approved by default.
107
Effect of the Bill
The bill directs DEP and WMDs to conduct a holistic review of their current coastal permitting programs
and other permit programs. The review requires DEP and WMDs to identify areas of improvement to
increase efficiency. Factors required for review are:
Requirements to obtain a permit;
Areas for improved efficiency and decision-point consolidation within a single project’s process;
Areas of duplication across one or more permit programs;
Methods of requesting permits;
Any other factors that may increase the efficiency of permitting processes and may allow
improved storm recovery; and
Adequate staffing levels necessary for complete and efficient review.
DEP and WMDs must report their findings to the Governor, the President of the Senate, and the
Speaker of the House of Representatives by December 31, 2023.
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 and rule ratification by the Legislature.
Section 4 creates s. 120.5435, F.S., relating to the repromulgation of rules.
Section 5 amends s. 120.545, F.S, relating to JAPC review of agency rules.
Section 6 amends s. 120.55, F.S., relating to publication requirements in the FAC and FAR.
Section 7 amends s. 120.74, F.S., relating to agency annual rulemaking and regulatory plans.
Section 8 amends s. 120.57, F.S., relating to exceptions and special requirements.
Section 9 amends s. 120.81, F.S., conforming cross-references.
102
DEP, Environmental Resource Permit Applicant’s Handbook, Volume 1, AH 5.5.3, incorporated by reference in r. 62-
330.010(4), F.A.C. (October 1, 2013) available at: https://www.flrules.org/gateway/reference.asp?No=Ref-03174 (last
visited January 4, 2018).
103
S. 373.4141(1), F.S.
104
DEP, Environmental Resource Permit Applicant’s Handbook, Volume 1, AH 5.5.3.5, incorporated by reference in r. 62-
330.010(4), F.A.C. (October 1, 2013) available at: https://www.flrules.org/gateway/reference.asp?No=Ref-03174 (last
visited Mar. 3, 2023).
105
S. 373.4141(1), F.S.
106
S. 373.4141(2), F.S. Most state licensure decisions must be made within 90 days. S. 120.60(1), F.S.
107
S. 120.60(1), F.S. STORAGE NAME: h0713e.SAC PAGE: 14
DATE: 4/21/2023
Section 10 amends s. 420.9072, F.S., conforming cross-references.
Section 11 amends s. 420.9075, F.S., conforming cross-references.
Section 12 amends s. 443.091, F.S., conforming cross-references.
Section 13 creates an unnumbered section of Florida law relating to infrastructure permitting review.
Section 14 provides an effective date of July 1, 2023.
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:
See Fiscal Comments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill requires each agency to review and repromulgate its rules, which may require agencies to
expend funds to institute this new process, including dedicating staff to review existing rules and
engaging in rulemaking to repromulgate the rules. Although all agencies currently have the
responsibility to regularly review their rules, the publication requirement for repromulgation may have
an indeterminate negative fiscal impact.
DEP and each WMD may incur additional expenses to conduct the required review of all permitting
processes within the agency and make the required report by December 31, 2023.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other: STORAGE NAME: h0713e.SAC PAGE: 15
DATE: 4/21/2023
The inclusion of the infrastructure permit process review requirement in the bill may raise an issue
under s. 6, art. III of the State Constitution, the single subject requirement. Section 13 of the bill
requires the DEP and WMDs to review their internal processes for issuing the various permits under
their respective authorities and make a single report by December 31, 2023. The remainder of the
bill revises a number of requirements for developing, adopting, reviewing, and amending rules
implementing statutory authority and are applicable to all state and local entities defined as agencies,
with no termination date. The State Constitution requires every law to “embrace but one subject and
matter properly connected therewith, and the subject shall be briefly expressed in the title.”
108
As
applied by the Florida Supreme Court, the subject of the act is stated in the “relating to” clause.
109
However, the “relating to” clause cannot be so broad that it covers unrelated topics, providing
insufficient guidance about the body of the act.
110
The “relating to” clause in the bill title states the bill
pertains to administrative procedures “and permitting process review.” That description may be too
broad to provide sufficient guidance about the scope of the act since a number of state agencies and
local governments issue a variety of permits for many different purposes other than environmental
regulation
111
and “permitting process review” could refer to subjects outside of generally applicable
administrative procedures. If the “relating to” clause is overly broad, the Court requires the remainder
of the act “and history of the legislative process” be reviewed to determine if the act encompasses
more than one subject.
112
B. RULE-MAKING AUTHORITY:
The bill requires DOS to adopt rules to implement the provisions of the bill concerning repromulgation.
The bill gives DOS until December 31, 2023, to adopt such rules. The bill’s provisions regarding
repromulgation provide DOS with sufficient direction to guide the department in the creation of the
rules.
C. DRAFTING ISSUES OR OTHER COMMENTS:
The bill states the requirement for publication of emergency rules in the FAC twice, at lines 734 and
748.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 9, 2023 the Constitutional Rights, Rule of Law & Government Operations Subcommittee adopted
two amendments and reported the bill favorably as a committee substitute. The amendments clarified that an
agency must withdraw the notice of rule development if a notice of proposed rule is not published within 12
months and required the full text of all emergency rules that are currently active be published in the FAR.
On March 27, 2023, the Agriculture, Conservation & Resiliency Subcommittee adopted an amendment and
reported the bill favorably as a committee substitute. The amendment revised provisions related to the review
of DEP and WMD permitting processes as follows:
Specified the legislative intent related to the review;
Excluded coastal high-hazard areas from the review;
Specified that the review must include permits related to nature-based infrastructure;
Specified that review of state-administered 404 permits must be consistent with the Endangered
Species Act;
Removed time periods for review and approval of permit applications from factors that must be
considered during the review; and
Required the review to consider adequate staffing levels necessary for complete and efficient review.
108
Art. III, s. 6, Fla. Const.
109
Franklin v. State, 887 So. 2d 1063, 1075 (Fla. 2004). In the opinion the Court refers to the “relating to” clause as the
“short title.”
110
Franklin, supra at 1076.
111
See, e.g., ss. 125.022 and 166.033, F.S., local governments issuing land development permits; s. 552.091, F.S., State
Fire Marshal issuing blasting permits; and s. 550.054, F.S., pari-mutuel wagering permits.
112
Franklin, supra at 1076-1077. STORAGE NAME: h0713e.SAC PAGE: 16
DATE: 4/21/2023
On April 19, 2023, the State Affairs Committee adopted a strike-all amendment and reported the bill favorably
as a committee substitute. The strike-all amendment removed provisions defining adverse impacts on small
businesses, the requirement to prepare a SERC for every new rule, and exempted community development
districts from the rule repromulgation requirements.
This analysis is drafted to the committee substitute as passed by the State Affairs Committee.