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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to administrative procedure; amending 2
s. 120.52, F.S.; specifying that issuance of a 3
guidance document or other statement interpreting a 4
statute without express statutory delegation to issue 5
such guidance is an invalid exercise of delegated 6
legislative authority; s. 120.536, F.S.; providing 7
that an agency may not adopt a rule or issue a 8
guidance document without statutory delegation; 9
reenacting and amending s. 120.541, F.S.; requiring a 10
statement of estimated regulatory costs for proposed 11
rules, notices of change, or final rules; providing 12
requirements for such estimates; requiring the agency 13
to conduct a retrospective cost -benefits analysis for 14
each adopted rule after a specified period; providing 15
requirements for such analysis; requiring re view of 16
prior cost benefit analyses as part of a specified 17
review; requiring agencies to use the findings of such 18
a review for specified purposes; requiring publication 19
of materials used to produce estimates of regulatory 20
costs in a specified manner; provi ding additional 21
requirements for cost -benefit analyses; amending s. 22
120.545, F.S.; revising requirements for review of 23
rules by the Administrative Procedures Committee; 24
amending s. 120.55, F.S.; requiring additional 25
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information to be published in the Flori da 26
Administrative Code; providing for expiration of rules 27
after a specified period unless readopted; providing 28
requirements for the readoption process; requiring the 29
Administrative Procedures Committee to set expiration 30
dates for existing rules; providing exceptions to rule 31
expiration; requiring review of such exempt rules; 32
providing for a limited extension of expiration in 33
certain circumstances; amending s. 120.555, F.S.; 34
requiring that specified information be published 35
concerning expired rules; amending s. 120.56, F.S.; 36
specifying that guidance documents are subject to 37
specified provisions; providing that a party subject 38
to an enforcement action may challenge the action on 39
the basis that the agency lacked statutory authority 40
for the rule or guidance docum ent; providing for award 41
of costs and attorney fees; providing for challenges 42
to rules for failure to comply with specified 43
provisions; conforming a provision to changes made by 44
the act; providing an effective date. 45
46
Be It Enacted by the Legislature of the State of Florida: 47
48
Section 1. Paragraphs (e) and (f) of subsection (8) of 49
section 120.52, Florida Statutes, are amended, and paragraph (g) 50
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is added to that subsection, to read: 51
120.52 Definitions. —As used in this act: 52
(8) "Invalid exercise of delegated legislative authority" 53
means action that goes beyond the powers, functions, and duties 54
delegated by the Legislature. A proposed or existing rule is an 55
invalid exercise of delegated legislative authority if any one 56
of the following applies: 57
(e) The rule is arbitrary or capricious. A rule is 58
arbitrary if it is not supported by logic or the necessary 59
facts; a rule is capricious if it is adopted without thought or 60
reason or is irrational; or 61
(f) The rule imposes regulatory costs on the regulated 62
person, county, or city which could be reduced by the adoption 63
of less costly alternatives that substantially accomplish the 64
statutory objectives ; or 65
(g) The agency has issued a guidance document or other 66
statement interpreting a statute without express s tatutory 67
delegation to issue such guidance . 68
69
A grant of rulemaking authority is necessary but not sufficient 70
to allow an agency to adopt a rule; a specific law to be 71
implemented is also required. An agency may adopt only rules 72
that implement or interpret t he specific powers and duties 73
granted by the enabling statute. No agency shall have authority 74
to adopt a rule only because it is reasonably related to the 75
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purpose of the enabling legislation and is not arbitrary and 76
capricious or is within the agency's cla ss of powers and duties, 77
nor shall an agency have the authority to implement statutory 78
provisions setting forth general legislative intent or policy. 79
Statutory language granting rulemaking authority or generally 80
describing the powers and functions of an ag ency shall be 81
construed to extend no further than implementing or interpreting 82
the specific powers and duties conferred by the enabling 83
statute. 84
Section 2. Subsection (1) of section 120.536, Florida 85
Statutes, is amended to read: 86
120.536 Rulemaking au thority; repeal; challenge. — 87
(1) A grant of rulemaking authority is necessary but not 88
sufficient to allow an agency to adopt a rule; a specific law to 89
be implemented is also required. An agency may adopt only rules 90
that implement or interpret the specifi c powers and duties 91
granted by the enabling statute. An agency may not adopt any 92
rule or issue any guidance document unless the agency has been 93
expressly granted the power to do so by a specific statutory 94
delegation. No agency shall have authority to adopt a rule only 95
because it is reasonably related to the purpose of the enabling 96
legislation and is not arbitrary and capricious or is within the 97
agency's class of powers and duties, nor shall an agency have 98
the authority to implement statutory provisions sett ing forth 99
general legislative intent or policy. Statutory language 100
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granting rulemaking authority or generally describing the powers 101
and functions of an agency shall be construed to extend no 102
further than implementing or interpreting the specific powers 103
and duties conferred by the enabling statute. 104
Section 3. Subsection (1), paragraph (g) of subsection 105
(2), and subsection (5) of section 120.541, Florida Statutes, 106
are amended, paragraph (h) is added to subsection (2), and 107
subsection (4) of that section is reenacted, to read: 108
120.541 Statement of estimated regulatory costs. — 109
(1)(a) An agency shall prepare a statement of estimated 110
regulatory costs for each proposed rule, notice of change, or 111
final rule, regardless of whether the proposed rule, notice of 112
change, or final rule will have an adverse impact on small 113
business or is likely to increase regulatory costs. The 114
statement must include a cost -benefit analysis that clearly 115
demonstrates that the projected benefits of the existing rule or 116
proposed rule exceed its projected costs. 117
(b)(a) Within 21 days after publication of the notice 118
required under s. 120.54(3)(a), a substantially affected person 119
may submit to an agency a good faith written proposal for a 120
lower cost regulatory alternative to a proposed ru le which 121
substantially accomplishes the objectives of the law being 122
implemented. The proposal may include the alternative of not 123
adopting any rule if the proposal explains how the lower costs 124
and objectives of the law will be achieved by not adopting any 125
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rule. If such a proposal is submitted, the 90 -day period for 126
filing the rule is extended 21 days. Upon the submission of the 127
lower cost regulatory alternative, the agency shall prepare a 128
statement of estimated regulatory costs as provided in 129
subsection (2), or shall revise its prior statement of estimated 130
regulatory costs, and either adopt the alternative or provide a 131
statement of the reasons for rejecting the alternative in favor 132
of the proposed rule. 133
(c)(b) If a proposed rule, notice of change, or final 134
rule will have an adverse impact on small business or if the 135
proposed rule, notice of change, or final rule is likely to 136
directly or indirectly increase regulatory costs in excess of 137
$200,000 in the aggregate within 1 year after the implementation 138
of the rule, the agency shall prepare a statement of estimated 139
regulatory costs as required by s. 120.54(3)(b). 140
(d)(c) The agency shall revise a statement of estimated 141
regulatory costs if any change to the rule made under s. 142
120.54(3)(d) increases the regulator y costs of the rule. 143
(e)(d) At least 21 days before filing the rule for 144
adoption, an agency that is required to revise a statement of 145
estimated regulatory costs shall provide the statement to the 146
person who submitted the lower cost regulatory alternative and 147
to the committee and shall provide notice on the agency's 148
website that it is available to the public. 149
(f)(e) Notwithstanding s. 120.56(1)(c), the failure of the 150
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agency to prepare a statement of estimated regulatory costs or 151
to respond to a written l ower cost regulatory alternative as 152
provided in this subsection is a material failure to follow the 153
applicable rulemaking procedures or requirements set forth in 154
this chapter. 155
(g)(f) An agency's failure to prepare a statement of 156
estimated regulatory cost s or to respond to a written lower cost 157
regulatory alternative may not be raised in a proceeding 158
challenging the validity of a rule pursuant to s. 120.52(8)(a) 159
unless: 160
1. Raised in a petition filed no later than 1 year after 161
the effective date of the rul e; and 162
2. Raised by a person whose substantial interests are 163
affected by the rule's regulatory costs. 164
(h)(g) A rule that is challenged pursuant to s. 165
120.52(8)(f) may not be declared invalid unless: 166
1. The issue is raised in an administrative proceed ing 167
within 1 year after the effective date of the rule; 168
2. The challenge is to the agency's rejection of a lower 169
cost regulatory alternative offered under paragraph (b) (a) or 170
s. 120.54(3)(b)2.b.; and 171
3. The substantial interests of the person challeng ing the 172
rule are materially affected by the rejection. 173
(i) An agency shall conduct a retrospective cost -benefit 174
analysis for each adopted rule 4 years after the rule's 175
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effective date. The analysis must compare the actual costs and 176
benefits of the rule to those projected in the initial statement 177
of estimated regulatory costs prepared under paragraph (a). 178
(j) When a rule is reviewed upon expiration pursuant to s. 179
120.55(9), the agency shall conduct a retrospective assessment 180
report comparing the initial p rojected cost-benefit analysis, 181
the retrospective analysis conducted under paragraph (i), and 182
the outcomes observed up to the time of expiration. The agency 183
shall incorporate the findings and lessons learned from this 184
comparison into the standards for futu re statements of estimated 185
regulatory costs and apply them to similar rules. 186
(2) A statement of estimated regulatory costs shall 187
include: 188
(g) In the statement or revised statement, whichever 189
applies, a description of any regulatory alternatives submitt ed 190
under paragraph (1)(b) (1)(a) and a statement adopting the 191
alternative or a statement of the reasons for rejecting the 192
alternative in favor of the proposed rule. 193
(h) All documentation, assumptions, methods, and data used 194
in preparing the statement of estimated regulatory costs shall 195
be published on a publicly accessible website and, where 196
relevant, in a machine -readable format readily available to the 197
public, including any supporting calculations, documents, data, 198
databases, or data tables, so that the results of the analysis 199
can be replicated. Uncertainties pertaining to these estimates 200
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must be reported. 201
(4) Subsection (3) does not apply to the adoption of: 202
(a) Federal standards pursuant to s. 120.54(6). 203
(b) Triennial updates of and amendments to the Florida 204
Building Code which are expressly authorized by s. 553.73. 205
(c) Triennial updates of and amendments to the Florida 206
Fire Prevention Code which are expressly authorized by s. 207
633.202. 208
(5) For purposes of subsections (2) and (3), adverse 209
impacts and regulatory costs likely to occur within 5 years 210
after implementation of the rule include adverse impacts and 211
regulatory costs estimated to occur within 5 years after the 212
effective date of the rule. However, if any provision of the 213
rule is not fully implemented upon the effective date of the 214
rule, the adverse impacts and regulatory costs associated with 215
such provision must be adjusted to include any additional 216
adverse impacts and regulatory costs estimated to occur within 5 217
years after implementation of such provision. However, an agency 218
may include longer periods of review but must, at a minimum, 219
provide a cost-benefit analysis that projects the first 5 years 220
after the rule goes into effect. If a discount rate is used in 221
the analysis, its use must be justified. The agency must also 222
provide an analysis without the use of discount rates. 223
Section 4. Subsection (1) of section 120.545, Florida 224
Statutes, is amended to read: 225
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120.545 Committee review of agency rules. — 226
(1) As a legislative check on legi slatively created 227
authority, the committee shall examine each proposed rule, 228
except for those proposed rules exempted by s. 120.81(1)(e) and 229
(2), and its accompanying material, and each emergency rule, and 230
may examine any existing rule, for the purpose of determining 231
whether: 232
(a) The rule is an invalid exercise of delegated 233
legislative authority. 234
(b) The statutory authority for the rule has been 235
repealed. 236
(c) The rule reiterates or paraphrases statutory material. 237
(d) The rule is in proper form. 238
(e) The notice given prior to its adoption was sufficient 239
to give adequate notice of the purpose and effect of the rule. 240
(f) The rule is consistent with expressed legislative 241
intent pertaining to the specific provisions of law which the 242
rule implements. 243
(g) The rule is necessary to accomplish the apparent or 244
expressed objectives of the specific provision of law which the 245
rule implements. 246
(h) The rule is a reasonable implementation of the law as 247
it affects the convenience of the general public or persons 248
particularly affected by the rule. 249
(i) The rule could be made less complex or more easily 250
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comprehensible to the general public. 251
(j) The rule's statement of estimated regulatory costs 252
complies with the requirements of s. 120.541 and whether the 253
rule does not impose regulatory costs on the regulated person, 254
county, or city which could be reduced by the adoption of less 255
costly alternatives that substantially accomplish the statutory 256
objectives. 257
(k) The rule will require additional appropriations. 258
(l) If the rule is an emergency rule, there exists an 259
emergency justifying the adoption of such rule, the agency is 260
within its statutory authority, and the rule was adopted in 261
compliance with the requirements and limitations of s. 262
120.54(4). 263
(m) The rule is scheduled to expire pursuant to s. 264
120.55(9) and whether the agency is complying with the 265
expiration and readoption requirements. 266
(n) The initial expiration date for the rule has been set 267
in accordance with s. 120.55(9)(b). 268
(o) The agency has properly reviewed exempt rules as 269
required under s. 120.55(9)(f). 270
Section 5. Subsection (9) of section 120.55, Florida 271
Statutes, is renumbered as subsection (10), paragraph (a) of 272
subsection (1) is amended, and a new subsection (9) is added to 273
that section, to read: 274
120.55 Publication. — 275
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(1) The Department of State shall: 276
(a)1. Through a continuous revision and publication 277
system, compile and publish electronically, on a website managed 278
by the department, the "Florida Administrative Code." The 279
Florida Administrative Code shall contain all rules adopted by 280
each agency, citing the grant of rulemaking authority and the 281
specific law implemented pursuant to which each rule was 282
adopted, including the effective date and expiration date of 283
each rule, all history notes as authorized in s. 120.545(7), 284
complete indexes to all rules contained in the code, and any 285
other material required or authorized by law or deemed useful by 286
the department. The electronic code shall display each rule 287
chapter currently in effect in browse mode and allow full text 288
search of the code and each rule chapter. The department may 289
contract with a publishing firm for a printed publication; 290
however, the department shall retain responsibility for the code 291
as provided in this section . The electronic publication shall be 292
the official compilation of the administrative rules of this 293
state. The Department of State shall retain the copyright over 294
the Florida Administrative Code. 295
2. Rules general in form but applicable to only one school 296
district, community college district, or county, or a part 297
thereof, or state university rules relating to internal 298
personnel or business and finance shall not be published in the 299
Florida Administrative Code. Exclusion from publication in the 300
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Florida Administrative Code shall not affect the validity or 301
effectiveness of such rules. 302
3. At the beginning of the section of the code dealing 303
with an agency that files copies of its rules with the 304
department, the department shall publish the address and 305
telephone number of the executive offices of each agency, the 306
manner by which the agency indexes its rules, a listing of all 307
rules of that agency excluded from publication in the code, and 308
a statement as to where those rules may be inspected. 309
4. Forms shall not be published in the Florida 310
Administrative Code; but any form which an agency uses in its 311
dealings with the public, along with any accompanying 312
instructions, shall be filed with the committee before it is 313
used. Any form or instruction which meets the definiti on of 314
"rule" provided in s. 120.52 shall be incorporated by reference 315
into the appropriate rule. The reference shall specifically 316
state that the form is being incorporated by reference and shall 317
include the number, title, and effective date of the form and an 318
explanation of how the form may be obtained. Each form created 319
by an agency which is incorporated by reference in a rule notice 320
of which is given under s. 120.54(3)(a) after December 31, 2007, 321
must clearly display the number, title, and effective date of 322
the form and the number of the rule in which the form is 323
incorporated. 324
5. The department shall allow adopted rules and material 325
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incorporated by reference to be filed in electronic form as 326
prescribed by department rule. When a rule is filed for adoptio n 327
with incorporated material in electronic form, the department's 328
publication of the Florida Administrative Code on its website 329
must contain a hyperlink from the incorporating reference in the 330
rule directly to that material. The department may not allow 331
hyperlinks from rules in the Florida Administrative Code to any 332
material other than that filed with and maintained by the 333
department, but may allow hyperlinks to incorporated material 334
maintained by the department from the adopting agency's website 335
or other sites. 336
(9)(a) All rules adopted by an agency shall expire 8 years 337
after their effective date unless readopted through the 338
rulemaking process outlined in s. 120.54, except as provided in 339
paragraph (e). The readoption process may not begin more than 1 340
year before the rule's expiration date. 341
(b) For all rules in effect on July 1, 2025, the committee 342
shall set the initial expiration dates, taking into 343
consideration the time and resources agencies will expend to 344
potentially readopt those rules. The initial ex piration dates 345
must be set between the second and twelfth calendar years after 346
the effective date of this subsection. A rule shall expire on 347
January 1 of the calendar year selected by the committee. 348
(c) An amendment to a rule through subsequent rulemakin g 349
does not affect the rule's expiration date unless the amendment 350
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completely repeals and readopts the rule. In such case, the new 351
expiration date shall be 8 years from the effective date of the 352
readopted rule. 353
(d) Every rule, if readopted, shall subseque ntly expire on 354
January 1 every 8 calendar years after its initial expiration 355
date unless reviewed and readopted pursuant to this subsection. 356
(e) The following rules do not expire: 357
1. Rules required to comply with federal law or to receive 358
federal funds. 359
2. Rules adopted pursuant to authority granted under the 360
State Constitution. 361
3. Rules of agencies that are headed by an elected 362
official. 363
(f) Rules exempt under paragraph (e) must be reviewed by 364
the agency according to the schedule set by the committee. The 365
agency may not begin its review more than 1 year prior to the 366
rule's scheduled review date. 367
(g) During the review, including any rev iew under 368
paragraph (f), the agency shall: 369
1. Notify the public of the review, including making the 370
text of the notice, the text of the rule, and all analyses 371
associated with the review available on the agency's website. 372
2. Hold a public comment period for at least 30 days. 373
3. Conduct all analyses that would be required if the rule 374
were being readopted pursuant to s. 120.54. 375
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4. Provide a reasoned response to unique public comments. 376
5. Publish a report on the agency's website that includes 377
the analyses and the agency's response to public comments. 378
(h) For each rule, the Governor may grant extensions 379
totaling no more than 365 days postponing the expiration date 380
upon a written request by the agency. In the agency's written 381
request, an explanation mu st be given by the agency explaining 382
why it cannot readopt the rule within the time allotted by this 383
subsection and why the expiration of the rule would harm the 384
public health, safety, or welfare. The Governor must affirm 385
these findings in writing before g ranting an extension. An 386
extension under this paragraph does not affect subsequent 387
expiration dates. Reviews under paragraph (f) may not be granted 388
extensions. 389
Section 6. Subsection (6) is added to section 120.555, 390
Florida Statutes, to read: 391
120.555 Summary removal of published rules no longer in 392
force and effect.—When, as part of the continuous revision 393
system authorized in s. 120.55(1)(a)1. or as otherwise provided 394
by law, the Department of State is in doubt whether a rule 395
published in the official version of the Florida Administrative 396
Code is still in full force and effect, the procedure in this 397
section shall be employed. 398
(6) When a rule has expired pursuant to s. 120.55(9), the 399
Department of State shall update the Florida Administrative Code 400
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to remove the rule and shall provide historical notes 401
identifying the manner in which the rule ceased to have effect, 402
including the expiration pursuant to s. 120.55(9). 403
Section 7. Subsection (1) and paragraph (a) of subsection 404
(2) of section 120.56, Florid a Statutes, are amended to read: 405
120.56 Challenges to rules. — 406
(1) GENERAL PROCEDURES. — 407
(a) Any person substantially affected by a rule , guidance 408
document, or a proposed rule may seek an administrative 409
determination of the invalidity of the rule or guidance document 410
on the ground that the rule or guidance document is an invalid 411
exercise of delegated legislative authority. All of the 412
provisions in this section apply to guidance documents as well 413
as adopted rules. 414
(b) The petition challenging the valid ity of a proposed or 415
adopted rule under this section must state: 416
1. The particular provisions alleged to be invalid and a 417
statement of the facts or grounds for the alleged invalidity. 418
2. Facts sufficient to show that the petitioner is 419
substantially affected by the challenged adopted rule or would 420
be substantially affected by the proposed rule. 421
(c) The petition shall be filed by electronic means with 422
the division which shall, immediately upon filing, forward by 423
electronic means copies to the agency who se rule is challenged, 424
the Department of State, and the committee. Within 10 days after 425
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receiving the petition, the division director shall, if the 426
petition complies with paragraph (b), assign an administrative 427
law judge who shall conduct a hearing within 30 days thereafter, 428
unless the petition is withdrawn or a continuance is granted by 429
agreement of the parties or for good cause shown. Evidence of 430
good cause includes, but is not limited to, written notice of an 431
agency's decision to modify or withdraw the p roposed rule or a 432
written notice from the chair of the committee stating that the 433
committee will consider an objection to the rule at its next 434
scheduled meeting. The failure of an agency to follow the 435
applicable rulemaking procedures or requirements set fo rth in 436
this chapter shall be presumed to be material; however, the 437
agency may rebut this presumption by showing that the 438
substantial interests of the petitioner and the fairness of the 439
proceedings have not been impaired. 440
(d) Within 30 days after the hear ing, the administrative 441
law judge shall render a decision and state the reasons for his 442
or her decision in writing. The division shall forthwith 443
transmit by electronic means copies of the administrative law 444
judge's decision to the agency, the Department of State, and the 445
committee. 446
(e) Hearings held under this section shall be de novo in 447
nature. The standard of proof shall be the preponderance of the 448
evidence. Hearings shall be conducted in the same manner as 449
provided by ss. 120.569 and 120.57, except tha t the 450
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administrative law judge's order shall be final agency action. 451
The petitioner and the agency whose rule is challenged shall be 452
adverse parties. Other substantially affected persons may join 453
the proceedings as intervenors on appropriate terms which sh all 454
not unduly delay the proceedings. Failure to proceed under this 455
section does not constitute failure to exhaust administrative 456
remedies. 457
(f) Any party subject to an enforcement action may 458
challenge the enforcement action based solely on the grounds 459
that the agency lacked express statutory authority to adopt the 460
rule or issue the guidance document upon which the enforcement 461
action is based. Any party that prevails on such a challenge 462
shall be entitled to recover reasonable costs and attorney fees. 463
(g)1. A person may challenge a rule on the grounds that 464
the agency failed to comply with s. 120.541 by: 465
a. Failing to prepare a statement of estimated regulatory 466
costs as required; 467
b. Preparing a statement of estimated regulatory costs 468
that does not include all the information required by s. 469
120.541(2); 470
c. Failing to make the statement or the underlying data 471
and analysis publicly available as required by s. 120.541(2)(h); 472
or 473
d. Failing to conduct the retrospective analyses required 474
by s. 120.541(1)(i) and (j). 475
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2. If an administrative law judge finds that the agency 476
has materially failed to comply with s. 120.541, the rule shall 477
be declared invalid and void. 478
(2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS. — 479
(a) A petition alleging the invalidity of a proposed rule 480
shall be filed within 21 days after the date of publication of 481
the notice required by s. 120.54(3)(a); within 10 days after the 482
final public hearing is held on the proposed rule as provided by 483
s. 120.54(3)(e)2.; within 20 days after the statement of 484
estimated regulatory costs or revised statement of estimated 485
regulatory costs, if applicable, has been prepared and made 486
available as provided in s. 120.541(1)(e) s. 120.541(1)(d); or 487
within 20 days after the date of publication of the notice 488
required by s. 120.54(3)(d). The petitioner has the burden to 489
prove by a preponderance of the evidence that the petitioner 490
would be substantially affected by the proposed rule. The agency 491
then has the burden to prove by a preponderance of the evidence 492
that the proposed rule is not an invalid exercise of delegated 493
legislative authority as to the objections raised. A person who 494
is not substantially affected by the proposed rule as initially 495
noticed, but who is substanti ally affected by the rule as a 496
result of a change, may challenge any provision of the resulting 497
proposed rule. 498
Section 8. This act shall take effect July 1, 2025. 499