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 Governmental Oversight and Accountability
BILL: SB 742
INTRODUCER: Senators Grall and Hooper
SUBJECT: Administrative Procedures
DATE: March 14, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McVaney GO Pre-meeting
2. EN
3. FP
I. Summary:
SB 742 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 provides a new mechanism for an
agency to review, revise, and repeal its rules. The bill:
Requires each agency to review its rules for consistency with the powers and duties granted
by the agency’s enabling statutes. If, after reviewing a rule, the agency determines that
substantive changes to update a rule are not required, the agency must repromulgate the rule.
Specifies the economic impacts and compliance costs an agency must consider in creating a
statement of estimated regulatory costs (SERC). Each agency is required to have a website
where each of its SERCs may be viewed in its entirety.
Authorizes an agency to hold workshops and to survey the public to gather information
pertinent to the creation of a SERC.
Requires an agency, in all notices of rulemaking which include material incorporated by
reference, to submit the incorporated material in the prescribed electronic format to the
Department of State with the full text available on the Internet for free public access.
Requires changes to material incorporated by reference to be in a strike-through and
underline format.
Requires annual regulatory plans 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. The bill also requires the annual
regulatory plan to contain a declaration that the agency head and the general counsel
understand that regulatory accountability is necessary to ensure public confidence in the
integrity of state government and are working to lower the total number of rules adopted.
Specifies that an adverse impact on small business exists if certain specific criteria are met.
Specifies that a lower cost regulatory alternative may be submitted after a notice of proposed
rule or a notice of change.
REVISED: BILL: SB 742 Page 2
Defines the term “technical change” and requires technical changes to be documented in the
history of the rule.
Requires a notice of rule development and a notice of proposed rule to include the proposed
rule number.
Requires at least 7 days to pass between the publication of a notice of rule development and a
notice of proposed rule.
Requires the Joint Administrative Procedures Committee to review all existing rules.
Requires the Department of Environmental Protection and Water Management Districts to
review and report on their permitting processes.
The bill may have a negative fiscal impact on state government. However, the impact is
indeterminate and not expected to impact agencies until a later date. See Section V. Fiscal
Impact Statement.
The bill will take effect July 1, 2023.
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 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 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
1
Joint Administrative Procedures Committee, A Pocket Guide to Florida’s Administrative Procedure Act, 1 (2020),
https://www.japc.state.fl.us/Documents/Publications/PocketGuideFloridaAPA.pdf (last visited Mar. 14, 2023).
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 Governmental Oversight). BILL: SB 742 Page 3
Legislature enacts statutes granting power to the executive branch, the statutes “must clearly
announce adequate standards to guide…in the execution of the powers delegated.”
5
The First District Court of Appeal noted in Gopman v. Department of Education
6
that the APA
“presumptively governs the exercise of all authority statutorily vested in the executive branch of
state government.” Accordingly, the APA is the “mechanism used by state agencies to adopt
rules.”
7
A discussion 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 Procedures
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
5
Bush v. Schiavo, 885 So. 2d 321, 332 (Fla. 2004) quoting Lewis v. Bank of Pasco County, 346 So. 2d 53, 55-56 (Fla 1976).
6
Gopman v. Dep’t of Educ., 908 So. 2d 1118, 1120 (Fla. 1st DCA 2005).
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. BILL: SB 742 Page 4
which they are charged with oversight.”
14
Agencies do not have the discretion in and of
themselves to engage in rulemaking.
15
To adopt a rule, an agency must have a general grant of
authority to implement a specific law by rulemaking.
16
The grant of rulemaking authority itself
need not be detailed. However, the specific statute being interpreted or implemented through
agency 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 a
proposed rule in the Florida Administrative Register (FAR), which must indicate the subject area
that will be addressed by the rule development and include 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, which could result in a period of at least 7 days
between the publication of a notice of rule development and actual notice of the proposed rule.
23
In 2012, the Legislature changed the FAR from a weekly publication to a publication that is
continuously revised and, as a result, eliminated the 7-day period between the two notices.
24
Agency Hearing
An agency must hold a hearing on the proposed rule if a person requests one within 21 days of
publication of the notice of proposed rule in the FAR.
25
If the agency does not substantively
change the rule after the hearing (or if no hearing was timely requested), the agency must file a
notice with the Joint Administrative Procedures Committee (JAPC) stating that it did not make
any changes to the rule. This notice must be filed at least 7 days before the agency can file the
rule for adoption with the DOS.
26
However, if a hearing is requested, the agency may, based
upon the comments received at the hearing, publish a notice of change.
27
Any notice of
14
Whiley v. Scott, 79 So. 3d 702, 711 (Fla. 2011).
15
Section 120.54(1)(a), F.S.
16
Sections 120.52(8) and 120.536(1), F.S.
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: SB 742 Page 5
substantive change triggers a 21-day waiting period before the agency may file the rule for
adoption with the DOS, thereby allowing further input from the public.
28
Alternatively, if a person whose substantial interests will be affected by the agency action cannot
be provided adequate opportunity to protect his or her interests in the agency hearing described
above (or otherwise), and if the agency agrees, then the agency must suspend the rulemaking
proceeding and initiate a hearing at DOAH pursuant to ss. 120.569 and 120.57, F.S. The
rulemaking proceeding cannot be resumed until this separate hearing is concluded.
29
Petition Alternative
As an alternative to the agency initiated process delineated above, a person who is regulated by
the agency or who has a substantial interest in an agency rule may petition the agency to adopt,
amend, or repeal a rule.
30
The petitioner must specify the proposed rule and action requested.
31
The agency can initiate rulemaking or decline to do so; however, if the agency chooses the latter,
it must issue a written statement of its reasons for the denial.
32
Rule Adoption
Once an agency has completed the steps of rulemaking, the agency may file the rule for adoption
with the DOS, and the rule becomes effective 20 days later, unless a different date is indicated in
the rule.
33
Most adopted rules are published in the Florida Administrative Code (FAC).
34
Challenging a Rule for Invalid Delegation of Authority
An interested party may challenge the validity of a rule or a proposed rule at the Division of
Administrative Hearings (DOAH)
35
as an invalid delegation of legislative authority.
36
An invalid
delegation of legislative authority is an action that goes beyond the powers, functions, and duties
delegated by the Legislature.
37
A rule or proposed rule is an invalid delegation of legislative
authority if any of the following applies:
38
The agency has materially failed to follow the rulemaking procedures or requirements in the
APA.
The agency has exceeded its grant of rulemaking authority.
The rule enlarges, modifies, or contravenes the specific provisions of the law implemented.
28
Id.
29
Section 120.54(3)(c)2., F.S.
30
Section 120.54(7)(a), F.S.
31
Id.
32
Id.
33
Section 120.54(3)(e)6., F.S.
34
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.
35
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.
36
Section 120.56(1), F.S.
37
Section 120.52(8), F.S.
38
Section 120.52(8)(a)-(f), F.S. BILL: SB 742 Page 6
The rule is vague, fails to establish adequate standards for agency decisions, or vests the
agency with unbridled discretion.
The rule is arbitrary or capricious.
The rule imposes regulatory costs on the regulated person, county, or municipality that could
have been reduced by the adoption of less costly alternatives that substantially accomplish
the statutory objectives.
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
based upon a preponderance of the evidence standard. The petitioner and the agency whose rule
is challenged are adverse parties.
39
The ALJ’s decision constitutes final agency action, which
means an agency may not alter the decision after its issuance,
40
but an agency may appeal the
decision to the District Court of Appeal where the agency maintains its headquarters.
41
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 not, the agency must withdraw the rule and give notice of the withdrawal in the
next issue of the FAR. The bill also reestablishes the mandatory 7-day period between the
publication of a notice of rule development and the publication of a notice of proposed rule in the
FAR.
The bill further requires that a proposed rule be withdrawn if, after issuing a notice of proposed
rule, the agency fails to adopt it within the APA’s prescribed timeframes. Although not clearly
stated, the bill appears to contemplate that 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 also requires an agency to file a copy of a petition to initiate rulemaking with the JAPC.
The bill amends the separate hearing process provided for in s. 120.54(3)(c)2., F.S., for those
individuals whose substantial interests will be affected by the rulemaking, but who are not
provided adequate protection by the proceeding. Specifically, the agency must publish a notice in
the FAR that it is convening a separate proceeding. The bill also clarifies that all timelines in s.
120.54, F.S., regarding rulemaking procedures, are tolled beginning on the date of publication of
a separate proceeding in the FAR, and ending the day after the separate proceeding finishes.
39
Section 120.56(1)(e), F.S.
40
Id.
41
Section 120.68(2)(a), F.S. BILL: SB 742 Page 7
Finally, section 1 of the bill defines the term “technical change” to mean a change limited to
correcting grammatical, typographical, and similar errors not affecting the substance of the rule.
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 of complying with and
implementing the rule.
42
Agencies are encouraged to prepare a SERC before adopting,
amending, or repealing any rule.
43
The agency must seek public input in its creation of the
SERC. For example, in its notice of proposed rule, an agency must give notice that the public
may submit information relating to the agency SERC.
44
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 1 year after implementation of the rule.
45
If the
agency revises a rule before adoption and the revision increases the regulatory costs of the rule,
the agency must revise the SERC to reflect that alteration.
46
A SERC must include:
47
A good faith estimate of the number of people and entities affected by the proposed rule;
A good faith estimate of the cost to the agency and other governmental entities to implement
the proposed rule;
A good faith estimate of transactional costs likely to be incurred by people, entities, and
governmental agencies for compliance; and
An analysis of the proposed rule’s impact on small businesses, small counties, and small
municipalities.
The SERC must also include an economic analysis on the likelihood that the proposed rule will
have an adverse impact in excess of $1 million within the first 5 years after implementation on:
48
Economic growth, private-sector job creation or employment, or private-sector investment;
Business competitiveness, productivity, or innovation; or
Regulatory costs, including any transactional costs.
If the economic analysis results in an adverse impact or regulatory costs in excess of $1 million
within 5 years after implementation of the rule, then the rule must be ratified by the Legislature
in order to take effect.
49
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 1 year after
42
Section 120.541(2), F.S.
43
Section 120.54(3)(b)1., F.S.
44
Section 120.54(3)(a)1., F.S.
45
Id.
46
Section 120.541(1)(c), F.S.
47
Section 120.541(2)(b)-(e), F.S.
48
Section 120.541(2)(a), F.S.
49
Section 120.541(3), F.S. BILL: SB 742 Page 8
the effective date of the rule and is raised by a person whose substantial interests are affected by
the regulatory costs of the rule.
50
Effect of Proposed Changes (Sections 2 and 3)
The bill mandates a SERC before an agency may adopt or amend a rule, other than an emergency
rule. An agency’s failure to publish a SERC constitutes a material failure to meet the
requirements of the APA. However, an agency is not required to prepare a SERC for a rule
repeal process unless the repeal would impose a regulatory cost. The bill creates a presumption
in rule repeals challenges before the DOAH or in any court of competent jurisdiction that a rule
repeal that exclusively reduces or eliminates regulations on currently regulated individuals or
entities is correct.
The bill allows agencies to hold public workshops for the purpose of gathering information
pertinent to its preparation of the SERC. An agency may hold such a workshop at its own
discretion, but it must hold one if so requested in writing by any affected person. Additionally,
agencies can survey individuals, businesses, business organizations, counties, and municipalities
to collect helpful data and to analyze the impacts of the proposed rule.
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. The
agency must include elements such as:
Increased or decreased consumer prices or value of goods and services;
The value of time, training, or testing, or education, expended by business owners and other
business personnel to comply with the proposed rule;
Capital costs incurred to comply with the proposed rule; and
Any other impacts suggested by the rules ombudsman or an interested person.
In addition, the bill replaces the term “transactional costs” with “compliance costs,” and requires
agencies to consider all direct and indirect compliance costs, including but not limited to, costs
relating to:
Filing and licensing fees;
Expense of necessary equipment, and the installation and maintenance thereof;
Costs related to necessary operations and procedures, including accounting, financial,
information management, and other administrative processes;
Labor, materials, and supply costs;
Capital expenditures;
Professional and technical services, including monitoring and reporting;
Qualifying and recurring education, training and testing;
Travel;
Insurance and surety requirements;
Allocation of administrative and other overhead costs;
Reduced sales or other revenues; and
Other items suggested by the rules ombudsman or any interested person, or business.
50
Section 120.541(1)(f), F.S. BILL: SB 742 Page 9
The bill requires each agency to have a website where each of its SERCs may be viewed in their
entirety; the DOS must include a link to this website on any related FAR notice. If an agency
revises a SERC, it must provide a notice that a revision has been made and include a link to the
revised SERC on the FAR website.
The bill requires an agency notice of rule development to include a request for information that
would be helpful in the agency’s preparation of the SERC, and clear instructions for the
submission of such information. If an agency holds a hearing on a proposed rule, the bill requires
the agency to ensure that the person responsible for preparing the SERC be made available to
respond to questions or comments.
The bill amends the information required in a notice of proposed rule to include (1) a summary
of the SERC describing the regulatory impact of the proposed rule in readable language, (2) a
web address where the SERC can be viewed in full, and (3) a request for submission of any
information that could help the agency regarding the SERC.
The bill makes conforming changes throughout to reflect that a SERC must be performed in all
rule amendments or proposed rulemaking, and to accommodate the SERC public workshops that
are now permitted.
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.
51
If the agency determines that the proposed action will affect small
businesses, the agency must send written notice to the rules ombudsman
52
in the Executive
Office of the Governor at least 28 days before the intended action.
53
The agency must adopt the
regulatory alternatives that the rules ombudsman offers if the alternatives are feasible and
consistent with the stated objectives of the proposed rule, and would reduce the impact on small
businesses.
54
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.
55
51
Section 120.54(3)(b)2., F.S.
52
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.
53
Section 120.54(3)(b)2.b.(I), F.S.
54
Section 120.54(3)(b)2.b.(II), F.S.
55
Section 120.54(3)(b)2.b.(III), F.S. BILL: SB 742 Page 10
Effect of Proposed Changes (Section 2)
The bill declares that an adverse impact on small business exists if, in order to comply with the
rule:
An owner, officer, operator, or manager of a small business must complete any education,
training, or testing to comply with the proposed rule in the first year;
An owner, officer, operator, or manager of a small business is likely to expend 10 hours or
purchase professional advice to understand and comply with the rule in the first year;
Taxes or fees assessed on transactions are likely to increase by $500 or more in the aggregate
in one year because of the rule;
Prices charged for goods and services are restricted or are likely to increase because of the
rule;
Specially trained, licensed, or tested employees will be required;
Operating costs are expected to increase by at least $1,000 annually; or
Capital expenditures in excess of $1,000 are necessary to comply with the rule.
If the rules ombudsman of the Executive Office of the Governor provides a regulatory alternative
to the agency to lessen the impact of the rule on small businesses, the bill requires the agency to
provide the regulatory alternative to the JAPC at least 21 days before filing the rule for adoption.
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).
56
The LCRA must be a written proposal, made in good faith, which substantially
accomplishes the objectives of the law being implemented.
57
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.”
58
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.
59
Additionally, if a LCRA is submitted, the 90-day period for filing a rule is extended an additional
21 days.
60
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.
61
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
56
Section 120.541(1)(a), F.S.
57
Id.
58
Id.
59
Id.
60
Id.
61
Section 120.541(1)(d), F.S. BILL: SB 742 Page 11
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.
62
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 that receives a LCRA to choose whether to (1) modify the proposed
rule to reduce regulatory costs, (2) adopt the LCRA, or (3) reject the LCRA. If the agency rejects
or modifies the LCRA, it must state its reasons doing so. If the rule is modified in response to an
LCRA, the agency must revise its SERC. 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.
Section 2 of 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.
Additionally, an agency must ensure that a person who is responsible for preparing the proposed
rule and the SERC are present to respond to questions or comments regarding the agency’s
decision to adopt or reject a submitted LCRA.
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.
63
Specifically, the JAPC may
examine existing rules and must examine each proposed rule to determine whether:
64
The rule is an invalid exercise of delegated legislative authority.
The statutory authority for the rule has been repealed.
The rule reiterates or paraphrases statutory material.
The rule is in proper form.
The notice given prior to adoption was sufficient.
The rule is consistent with expressed legislative intent.
62
Section 120.541(1)(f), F.S.
63
Fla. Leg. J. Rule 4.6; see also s. 120.545, F.S.
64
Section 120.545(1), F.S. BILL: SB 742 Page 12
The rule is necessary to accomplish the apparent or expressed objectives of the specific
provision of law that the rule implements.
The rule is a reasonable implementation of the law as it affects the convenience of the
general public or persons particularly affected by the rule.
The rule could be made less complex or more easily comprehensible to the general public.
The rule’s statement of estimated regulatory cost complies with the requirements of the APA
and whether the rule does not impose regulatory costs on the regulated person, county, or
municipality that could be reduced by the adoption of less costly alternatives that
substantially accomplish the statutory objectives.
The rule will require additional appropriations.
Effect of Proposed Changes (Section 6)
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.
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.
65
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.
66
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.
67
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.
68
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.
69
Effect of Proposed Changes (Section 9)
The bill replaces the s. 120.74, F.S., requirement that the annual regulatory plan include a listing
of each law it expects to implement with rulemaking with a requirement that the plan identify
and describe each rule, by rule number or proposed rule number, that the agency expects to
develop, adopt, or repeal for the 12-month period beginning October 1 and ending September 30.
The annual regulatory plan must identify any rules required to be repromulgated for the 12-
month period. These publishing requirements do not apply to emergency rules.
65
Section 120.74(1)(a), F.S.
66
Section 120.74(1)(b), F.S.
67
Section 120.74(1)(d), F.S.
68
Section 120.74(2)(a)1., F.S.
69
Sections 120.74(2)(a)2. and 120.74(2)(a)3., F.S. BILL: SB 742 Page 13
The bill also requires that the annual regulatory plan contain a declaration that the agency head
and the general counsel understand that regulatory accountability is necessary to ensure public
confidence in the integrity of state government and to that end the agency is diligently working
toward lowering the total number of rules adopted. The bill requires the declaration to contain
the total number of rules adopted and repealed during the previous 12 months.
Repromulgation
Present Situation
The APA requires each agency to annually review its rules.
70
Although an agency may amend or
repeal the rule, rules generally do not expire or sunset and many agencies have adopted rules that
have not been updated in years.
Effect of Proposed Changes (Section 4)
The bill creates a process called “repromulgation,” whereby each agency is required to review its
rules for consistency with the powers and duties granted by the agency’s enabling statutes. If,
after reviewing the rule, the agency determines that substantive changes are not required, the
agency must repromulgate the rule to reflect the date of the review. Section 1 of the bill defines
the term “repromulgation” to mean the publication and adoption of an existing rule following an
agency’s review of the rule for consistency with the powers and duties granted by its enabling
statute. Each agency must review its rules according to the following schedule:
If the rule was adopted before January 1, 2010, within five years after July 1, 2023; or
If the rule was adopted on or after January 1, 2010, within 10 years after the rule is adopted.
An agency, before repromulgation of a rule and upon approval of its agency head, must:
Publish a notice of repromulgation in the FAR, which is not required to include the text of
the rule; and
File the rule with the 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 the JAPC at least 14 days before filing the
rule with the DOS. The JAPC must certify at the time of filing whether the agency has responded
to all of the JAPC’s material or written inquiries. The bill specifies that a repromulgated rule is
not subject to the hearing requirements of the APA, nor is it subject to challenge as a proposed
rule.
The bill requires each agency, upon approval of the agency head, to submit three certified copies
of the repromulgated rule it proposes to adopt with the DOS and one certified copy of any
material incorporated by reference in the rule. The repromulgated rule is adopted upon its filing
with the DOS and becomes effective 20 days later. The DOS must then update the history note of
the rule in the FAC to reflect the new effective date. The bill requires the DOS to adopt rules to
implement the bill’s repromulgation provision by December 31, 2023.
70
See s. 120.74. F.S. BILL: SB 742 Page 14
If an agency fails to meet the deadline to review the rule or the timeframe to file the rule for
repromulgation, the rule is subject to petition for request to review the rule by any person who is
regulated by the agency, or who otherwise has a substantial interest in the agency rule. The
agency has 30 days from such a petition to conduct a repromulgation review or deny the petition
on the basis that no duty of repromulgation applies to that rule at that time, with an explanation
to the petitioner of the basis for the denial.
If an agency does not repromulgate a rule, it must be submitted to the President of the Senate and
the Speaker of the House of Representatives within 7 days of such a decision. The agency
decision not to repromulgate may not become effective until the Legislature adjourns its next
regular session sine die, following the agency decision.
Incorporation by Reference
Present Situation
The APA allows an agency to incorporate material external to the text of the rule by reference.
71
The material to be incorporated must exist on the date the rule is adopted.
72
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.
73
However, an agency rule that incorporates
another rule by reference automatically incorporates subsequent amendments to the referenced
rule.
74
A rule cannot be amended by reference only.
75
An agency may not incorporate a rule by
reference unless:
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
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.
76
The DOS has adopted a rule governing the requirements for materials incorporated by reference
through an adopted rule.
77
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.
78
71
Section 120.54(1)(i)1., F.S.; see also r. 1-1.013, F.A.C.
72
Section 120.54(1)(i)1., F.S.
73
Id.
74
Section 120.54(1)(i)2., F.S.
75
Section 120.54(1)(i)4., F.S.
76
Section 120.54(1)(i)3., F.S.
77
Rule 1-1.013, F.A.C.
78
Rule 1-1.013(5)(d), F.A.C. BILL: SB 742 Page 15
Effect of Proposed Changes (Section 2)
Beginning July 1, 2023, 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.
Emergency Rules
Present Situation
Agencies are authorized to respond to immediate dangers to the public health, safety, or welfare
by adopting emergency rules.
79
Emergency rules are not adopted using the same procedures
required of other rules.
80
The notice of the emergency rule and the text of the rule is published in
the first available issue of the FAR, however, there is no requirement that an emergency rule be
published in the FAC.
81
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.
82
The agency’s findings of immediate danger are judicially reviewable.
83
Emergency rules are effective immediately, or on a date less than 20 days after filing if specified
in rule,
84
but are only effective for a period of no longer than 90 days.
85
An emergency rule is not
renewable, except when the agency has initiated rulemaking to adopt rules relating to the subject
of the emergency rule and a challenge to the proposed rules has been filed and remains pending
or the proposed rules are awaiting ratification by the Legislature.
86
Effect of Proposed Changes (Sections 2 and 3)
The bill requires emergency rules to be published in the FAC. The bill also allows an agency to
make technical changes to the emergency rule within the first seven days after adoption and
prohibits an agency from superseding an emergency rule currently in effect. The bill clarifies that
an emergency rule is not subject to the legislative ratification process.
87
79
Section 120.54(4), F.S.
80
Section 120.54(4)(a), F.S.
81
Section 120.54(4)(a)3., F.S.
82
Id.
83
Id.
84
Section 120.54(4)(d), F.S.
85
Section 120.54(4)(c), F.S.
86
Id.
87
In 2011, the Legislature passed two bills, CS/CS/CS/HB 993 (2011) and CS/CS/CS/HB 849 (2011) that contained
conflicting provisions concerning the exemption of emergency rules from the legislative ratification process. In one bill,
CS/CS/CS/HB 993 (2011), the provision exempting emergency rules in s. 120.541(4), F.S., from the legislative ratification
process was expressly included in the bill. In the other, CS/CS/CS/HB 849 (2011), the provision was erroneously deleted, BILL: SB 742 Page 16
Florida Administrative Code
Present Situation
The FAC is an electronic compilation of all rules adopted by each agency and maintained by the
DOS.
88
The DOS retains the copyright over the FAC.
89
Each rule in the FAC must cite the grant of rulemaking authority and the specific law
implemented.
90
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.
91
The 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.
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.
92
The DOS is required to adopt rules allowing adopted rules and materials incorporated by
reference to be filed in electronic form.
93
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.
94
The rule the DOS has adopted requires rules that are being amended to be coded by underlining
new text and by striking through deleted text.
95
Effect of Proposed Changes (Section 7)
The bill requires the FAC be published once daily, by no later than 8 a.m. If, after publication, a
rule is corrected and replaced, the FAC must indicate the rule has been republished and indicate
the DOS has corrected it. The bill also requires the history note appended to each rule include the
date of any technical changes to the rule and provides such change does not affect the rule’s
effective date.
leading to a statutory conflict. In 2013, the Legislature passed CS/CS/SB 1410 (2013), which amended s. 120.541(4), F.S., to
correct a cross reference and in the process the bill erroneously continued the omission of the provision exempting
emergency rules. This bill corrects those previous errors by reinstating the provision exempting emergency rules from the
legislative ratification process.
88
Section 120.55(1)(a)1., F.S.
89
Id.
90
Id.
91
Section 120.55(1)(a)2., F.S.
92
Section 120.55(1)(a)3., F.S.
93
Section 120.55(1)(a)5., F.S.
94
Section 120.55(1)(c), F.S.
95
Rule 1-1.010(5)(a), F.A.C. referencing r. 1-1.011(3)(c), F.A.C. BILL: SB 742 Page 17
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.
96
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 waves, or other forces such as wind, wave, or water level changes.
97
Seaward
of the CCCL, new construction and improvements to existing structures require a CCCL permit
from DEP.
98
The line defines the landward limit of DEP’s authority to regulate construction.
99
DEP’s CCCL Program regulates structures and activities which can cause beach erosion,
destabilize dunes, damage upland properties, or interfere with public access.
100
CCCLs currently
exist for large portions of Florida’s coast.
101
Due to the potential environmental impacts and greater risk of hazards from wind and flood, the
standards for construction seaward of the CCCL are often more stringent than those applied in
the rest of the coastal building zone.
102
Approval or denial of a permit application is based upon a
review of factors such as the location of structures and their potential impacts on the surrounding
area.
103
CCCLs are established by DEP on a county basis, but only after such a line has been
determined necessary for protecting upland structures and controlling beach erosion, and after a
public hearing has been held in the affected county.
104
These hearings are conducted in the
manner described in s. 120.54(3)(c), F.S., must be published in the FAR in the same manner as a
rule, and are subject to an invalidity challenge as described in s. 120.56(3), F.S. A petitioner may
challenge a rule under s. 120.56(3), F.S., on the basis that it is an invalid delegation of legislative
authority, and must substantiate this allegation by a preponderance of the evidence.
Environmental Resource Permits
Part IV of ch. 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 that usually involve the
96
Section 161.053(1)(a), F.S.
97
Section 161.053, F.S.; r. 62B-33.005(1), F.A.C; DEP, The Homeowner’s Guide to the Coastal Construction Control Line
Program p. 3 (2017),
https://floridadep.gov/sites/default/files/Homeowner%27s%20Guide%20to%20the%20CCCL%20Program%206_2012%20%
28002%29_0.pdf (last visited Mar. 14, 2023).
98
DEP, The Homeowner’s Guide to the Coastal Construction Control Line Program, 2 (2017).
99
Id.
100
DEP, Coastal Construction Control Line Program, https://floridadep.gov/water/coastal-construction-control-line (last
visited Mar. 9, 2019).
101
DEP Geospatial Open Data, Coastal Construction Control Lines (CCCL),
http://geodata.dep.state.fl.us/datasets/4674ee6d93894168933e99aa2f14b923_2?geometry=-102.41%2C25.011%2C-
60.596%2C31.77 (last visited Mar. 9, 2019).
102
Fla. Admin. Code Ch. 62B-33.
103
Fla. Admin. Code Ch. 62B-33.005.
104
Section 161.053(2), F.S. BILL: SB 742 Page 18
dredging or filling of surface waters, construction of flood protection facilities, building dams or
reservoirs, or any other activities that affect state waters.
105
A water management district (WMD)
or the DEP may require an ERP and impose conditions necessary to assure that the construction
or alteration of any water management system
106
complies with state law and rules, and will not
be harmful to water resources.
107
Pursuant to statutory authority,
108
the DEP adopted a
comprehensive chapter of rules that govern the permitting process.
109
Generally, to receive a permit for a proposed use of water resources, an applicant must
demonstrate that the proposed activity is a reasonable-beneficial use, will not interfere with any
existing legal use of water, and is consistent with the public interest.
110
State Administered Federal Section 404 Dredge and Fill Permits
In 2018, Florida assumed responsibility under section 404 of the federal Clean Water Act
111
for
dredge and fill permitting.
112
DEP adopted rules to implement the section 404 program.
113
The
State 404 Program is responsible for overseeing the permitting for any project that proposes
dredge or fill activities within state assumed waters.
114
Permitting Process
Upon receiving a permit application for use of water resources, DEP or the WMD evaluates the
material to determine if the application is complete.
115
If it is incomplete, DEP or the WMD must
request additional information within 30 days after its receipt of the application.
116
DEP’s rules
allow an applicant up to 90 days to respond to such a request.
117
Within 30 days after its receipt
of additional information, the DEP or the WMD must review the submissions.
118
If the
application is complete, the DEP or WMD must decide whether to issue or deny the ERP within
60 days.
119
Any application that the DEP or WMD does not approve or deny within 60 days of
completion of the application is deemed approved by default.
120
105
See, s. 373.413(1), F.S.
106
Section 373.403(10), F.S.
107
Section 373.413(1), F.S.
108
Section 373.4131, F.S.
109
Ch. 62-330, F.A.C.
110
Section 373.223(1), F.S.
111
33 U.S.C. s. 1251 et seq.
112
Section 373.4146, F.S.
113
See ch. 62-330, F.A.C.
114
Florida DEP, State 404 Program, https://floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/state-404-program (last visited Mar. 14, 2023).
115
DEP, Environmental Resource Permit Applicant’s Handbook, Vol. 1, AH 5.5.3, incorporated by reference in r. 62-
330.010(4), F.A.C. (Oct. 1, 2013), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-03174 (last visited
Mar. 14, 2023).
116
Section 373.4141(1), F.S.
117
Supra, note 115 at AH 5.5.3.5.
118
Section 373.4141(1), F.S.
119
Section 373.4141(2), F.S. Most state licensure decisions must be made within 90 days. Section 120.60(1), F.S.
120
Section 120.60(1), F.S. BILL: SB 742 Page 19
Effect of Proposed Changes (Section 5)
The bill directs the DEP and WMDs to conduct a holistic review of their current coastal
permitting programs and other permit programs in order to increase efficiency within each
process. These reviews must consider:
Requirements to obtain a permit;
Time periods for permit review and approval process;
Areas for improved efficiency and consolidation of decisions;
Whether there are areas of duplication across one or more permit programs;
The methods required to request a permit; and
Any other factors that can increase permitting efficiency, especially to allow for improved
storm recovery.
The DEP and WMDs must submit a report with their findings to the Governor, President of the
Senate, and Speaker of the House of Representatives by December 31, 2023.
Remaining Sections
Sections 6, 8, 10, 11, 12, 13, and 14 are amended to incorporate non-substantive, conforming
changes and to incorporate cross-references in the bill.
The bill takes effect July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The bill does not require counties and municipalities to spend funds,
reduce counties’ or municipalities’ ability to raise revenue, or reduce the percentage of
state tax shared with counties and municipalities.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None. BILL: SB 742 Page 20
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 and repromulgate its rules, includes additional
requirements to comply with notice, publication, and hearing requirements of rules, and
includes additional requirements for SERCs. Agencies will likely be required to spend
funds to implement the requirements of the bill. Whether these new requirements could
be absorbed within each agency’s existing resources is not known.
However, the bill specifies that agencies have to complete rule review within 5 years for
rules adopted before January 1, 2010, and within 10 years for rules adopted after
January 1, 2010. Agencies should have sufficient time to request additional funding or
personnel through the Legislative Budget Request process should it be determined
additional funding or personnel will be required to implement the provisions of the bill.
The Department of State may have additional costs associated with publishing the
specified material in the bill.
VI. Technical Deficiencies:
The bill’s change to s. 120.54(2)(a)2., F.S., requires an agency to file a notice of proposed rule
in the FAR within 12 months after the most recent notice of rule development; if it fails to, the
bill requires the agency to withdraw the rule. There may not be a rule to withdraw at this point.
From context, it appears that the agency should instead be directed to withdraw its notice of rule
development (however, the JAPC states that, “as a general rule, notices of rule development are
not withdrawn, nor do they always contain the language of the proposed rule…”).
121
VII. Related Issues:
The bill’s amendment to s. 120.54(3)(d)3., F.S., requires the JAPC to notify the DOS of the
expiration of an agency’s timeframe in which it may act to adopt a rule if the agency fails to
withdraw its notice of a proposed rule within 30 days of a notice from the JAPC about the
expiration. However, the bill does not direct the JAPC to send any notice to delinquent agencies.
The bill requires emergency rules to be published in the Florida Administrative Code. They may
be better situated in the Florida Administrative Register.
121
JAPC, SB 742 JAPC Reviews/Comments/Recommendations (on file with the Governmental Oversight and Accountability
Committee). BILL: SB 742 Page 21
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 120.52, 120.54,
120.541, 120.545, 120.55, 120.56, 120.74, 120.80, 120.81, 420.9072, 420.9075, and 443.091.
This bill creates the following sections of the Florida Statutes: 120.5435, and 120.5436.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.