The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/SB 108
INTRODUCER: Rules Committee; Senators Grall and Burgess
SUBJECT: Administrative Procedures
DATE: March 13, 2025
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McVaney GO Favorable
2. Harmsen Yeatman RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 108 amends the Administrative Procedures Act (APA), which provides a uniform set of
procedures that agencies must follow when exercising rulemaking authority that has been
delegated by the Legislature. This bill amends the APA rulemaking process and mandates an
agency review of existing rules. The bill, in part:
• Requires each agency, in coordination with the Joint Administrative Procedures Committee,
to review its rules for consistency with the powers and duties granted by the agency’s
enabling statutes and for any general need for update.
• Provides that agency action to make no change or a technical change to a rule during its rule
review process is not subject to a hearing or challenge otherwise provided in ch. 120, F.S.
• Requires agency annual regulatory plans to include an outline of the agency’s proposed five-
year schedule of its rule review, with approximately 20 percent of the agency’s total existing
rules to be reviewed annually.
• Establishes a 90-day timeframe for an agency to publish a notice of intended agency action
from the effective date of legislation that delegates applicable rulemaking authority.
• Requires an agency, for all rules being adopted and reviewed, to electronically publish the
full text of any incorporated materials with the notice of proposed rulemaking and
necessitates changes to that material to be coded in a strike-through and underlined format,
and to make incorporated materials available in a text-searchable format.
• Directs an agency to publish emergency rules in the Florida Administrative Register and the
Florida Administrative Code, with an agency statement of the specific basis for the rule.
• Requires an agency to withdraw a rule that was not ratified by the Legislature within one
regular legislative session after its referral to the body. If an underlying mandatory delegation
REVISED: BILL: CS/SB 108 Page 2
of rulemaking authority persists at the time the agency withdraws the rule, then the agency
must reinitiate rulemaking within 90 days of adjournment sine die.
• Clarifies that an emergency rule that has been extended, in virtue of a successor rule being
subject to legislative ratification, expires at the time of adjournment sine die of the next
regular legislative session if that successor rule is not ratified.
• Permits an agency to withdraw an emergency rule, where it can show that the underlying
emergency no longer exists. An agency is also allowed to make a technical change to an
emergency rule or to supersede it with different language that will remain in effect for the
duration of the initial emergency rule.
• Defines the term “technical change” and directs an agency to publish technical changes in the
Florida Administrative Register and document the change in the history of the rule.
• Mandates that a notice of rule development and a notice of proposed rule include the
proposed rule number.
• Requires at least seven days to pass between the publication of a notice of rule development
and a notice of proposed rule.
The bill may have a negative fiscal impact on state government. The impact, however, is likely
indeterminate and not expected to impact agencies until a later date. See Section V. Fiscal
Impact Statement.
The bill grants rulemaking authority to the Department of State to implement certain provisions.
The bill will take effect July 1, 2025.
II. Present Situation:
Rulemaking Authority
The Legislature is the sole branch of government with the inherent power to create laws.
1
However, the Legislature may use laws to delegate to executive branch agencies the power to
create rules that have the force and effect of law.
2
Usually, the Legislature delegates rulemaking
authority to a given agency because an agency has “expertise in a particular area for which they
are charged with oversight.”
3
An agency must have both a general and a specific grant of
rulemaking authority from the Legislature.
4
The general grant of rulemaking authority is usually
broad, while the specific grant of rulemaking authority provides specific standards and
guidelines the agency must implement through rulemaking.
5
An agency, therefore, cannot create
rules at its discretion but instead must limit the rule to the specific empowerments and
1
Article III, s. 1, FLA. CONST.; see also Art. II, s. 3, FLA. CONST.
2
Section 120.52(17), F.S. See also, Whiley v. Scott, 79 So. 3d 702, 710 (Fla. 2011) (“Rulemaking is a derivative of
lawmaking.”).
3
Whiley, 79 So. 3d 702, 711 (Fla. 2011).
4
Sections 120.52(8) and 120.536(1), F.S.
5
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). BILL: CS/SB 108 Page 3
responsibilities delegated by the Legislature in law.
6
A rule can be an agency’s interpretation or
implementation of a law, and includes forms and applications used to administer a program.
7
The Florida Administrative Procedures Act (APA)
8
provides a framework for rulemaking to be
followed by agencies.
9
The APA provides that rulemaking is not a matter of agency discretion;
rather, each agency statement that is in effect a "rule" must be adopted by the rulemaking
procedure set forth in the APA as soon as feasible and practicable.
10
An agency must notice a
majority of these steps in the Florida Administrative Register as the rulemaking progresses, with
set times lines to promote the opportunity for public comment.
11
At the conclusion of the
rulemaking process, when a rule is adopted, it is typically published in the Florida
Administrative Code (FAC).
12
Generally, under the APA, rulemaking is a process consisting of a series of nondiscretionary
activities within specific timeframes. The rulemaking process includes the following steps:
• First, the Legislature enacts a statute granting an agency the authority to make a rule;
• Second, the agency initiates the formal rulemaking process by publishing a notice of rule
development in the Florida Administrative Register, which provides the public an initial
opportunity to provide input;
• Third, an agency files a notice of intended agency action, which may take the form of a
notice of proposed rule, amendment, or repeal. The agency is encouraged to engage in an
analysis of the costs related to rulemaking at this time;
• Fourth, an agency must send supporting materials of the proposed action to the Joint
Administrative Procedures Committee (JAPC);
• Fifth, the agency files the rule, amendment, or repeal for adoption with the Department of
State (DOS); and
• Sixth, the rule, amendment, or repeal becomes effective and is officially published in the
FAC.
As further discussed below, at several times throughout this process, citizens, and state bodies,
such as JAPC, and the Executive Office of the Governor, through the Office of Fiscal
Accountability and Regulatory Reform, have a right to intervene in the process and provide
feedback. Consequently, the rulemaking process at times is more complex.
6
Section 120.54(1)(a), F.S.
7
Section 120.52(16), F.S.
8
Sections 120.51 et seq., F.S.
9
Dep't. of Transp. v. Blackhawk Quarry Co. of Fla., 528 So. 2d 447, 449 (Fla. 4th DCA 1988); 2 FLA. JUR. Administrative
law s. 5.
10
Sections 120.52 and 120.54(1); 2 FLA. JUR. Administrative law s. 5.
11
Rosenzweig v. Dep't of Transp., 979 So. 2d 1050, 1053 (Fla. 1st DCA 2008) (citing Fla. Home Builders Ass'n v. Dep't of
Labor, 412 So.2d 351, 352-53 (Fla. 1982)). The FAR is a publication available online, maintained by the DOS, and subject to
continuous revision. See s. 120.55, F.S.
12
Rules general in form but applicable to only one school district, community college district, or county, or a part thereof, or
a state university rules relating to internal personnel or business and finance are not published in the FAC. Forms are not
published in the FAC. Section 120.55(1)(a), F.S. Emergency rules are also not published in the FAC. DOS, Florida
Administrative Code & Florida Federal Register, https://www.flrules.org/ (last visited on Feb. 3, 2025). BILL: CS/SB 108 Page 4
Florida Administrative Register Publication and Coding
Agencies must electronically submit any notice to be published in the Florida Administrative
Register (FAR) through DOS’s electronic rulemaking website.
13
All rule notices submitted for
publication in the FAR must be coded in the same manner used in legislative documents to aid
understanding of the proposed changes—new language is underlined, and deleted language is
stricken through. This coding requirement does not extend to documents incorporated into the
rule by reference.
The FAR must include the following: (1) all notices required prior to the adoption, amendment,
or repeal of any rule, along with the text of all proposed rules; (2) all notices of public meetings,
hearings, and workshops, including a statement of the manner in which a copy of the agenda may
be obtained; (3) a notice of each request for authorization to amend or repeal an existing uniform
rule or for the adoption of new uniform rules; (4) notice of petitions for declaratory statements or
administrative determinations; (5) a summary of each objection to any rule filed by the JAPC;
(6) a list of rules filed for adoption in the previous seven days; (7) a list of all rules filed for
adoption pending legislative ratification (a rule is withdrawn from this list once it is ratified or
withdrawn); and (8) any other material required or authorized by law or deemed useful by the
DOS.
14
Prior to 2012, the FAR was published weekly, resulting in a period of at least 7 days between the
agency’s publication of a notice of rule development and a notice of intended agency action. 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.
15
Now, theoretically, an agency can publish a notice of proposed rule development on Monday and
its notice of proposed rule on Tuesday, thereby limiting the public’s ability to request a public
rule workshop or negotiated rulemaking.
The Florida Administrative Code
The Florida Administrative Code (FAC) is an electronic compilation of all rules adopted by each
agency and maintained by the DOS.
16
While the FAR is generally a publication of rulemaking,
the FAC is the publication of rules that have completed rulemaking and are now effective—
which constitute administrative law. Each rule entry in the FAC must provide the rule’s text, 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.
17
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.
18
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;
13
Fla. Admin. Code R. 1-1.011.
14
See ss. 120.525, 120.54, and 120.55, F.S.
15
Chapter 2012-63, Laws of Fla.
16
Section 120.55(1)(a)1.,F.S. See also, Fla. Admin Code. R. 1-1.011(1)(b).
17
Id.
18
Section 120.55(1)(a)2., F.S. BILL: CS/SB 108 Page 5
• The manner by which the agency indexes its rules; and
• A listing of all rules of that agency excluded from publication in the FAC with a statement as
to where those rules may be inspected.
19
Joint Administrative Procedures Committee
Joint Administrative Procedures Committee (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.
20
The JAPC may examine existing rules, but must examine each proposed rule to
determine whether:
• The rule is a valid exercise of delegated legislative authority;
• The statutory authority for the rule has been repealed;
• The rule reiterates or paraphrases statutory material;
• The rule is in proper form;
• The notice given prior to adoption was sufficient;
• The rule is consistent with expressed legislative intent;
• The rule is necessary to accomplish the apparent or expressed objectives of the specific
provision of law that the rule implements;
• The rule is a reasonable implementation of the law as it affects the convenience of the
general public or persons particularly affected by the rule;
• The rule could be made less complex or more easily comprehensible to the general public;
• The rule’s statement of estimated regulatory costs (discussed below) 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; or
• The rule will require additional appropriations.
21
If, during its review, the JAPC has concerns that a proposed or existing rule may not be
authorized or exceeds the delegated rulemaking authority, it contacts the agency. Often the
agency agrees that there is no authority for the rule and withdraws or amends the rule to meet the
staff concerns.
22
If there is disagreement, the rule is scheduled for consideration by the full
committee. The agency may appear before the JAPC and present argument and evidence in
support of its rule. If, after hearing the agency's argument, the JAPC does not find statutory
authority for the rule, it votes on an objection and the agency must respond.
23
If the agency
refuses to modify or withdraw a rule to which the JAPC has objected, public notice of the
objection is given, and a notation accompanies the rule when it is published in the FAC. The
JAPC may also seek judicial review to establish the invalidity of a rule or proposed rule but has
not exercised this authority to date.
24
19
Section 120.55(1)(a)3., F.S.
20
2 Fla. Leg. J. Rule 4.6; see also s. 120.545, F.S.
21
Section 120.545(1), F.S.
22
JAPC, 2023 Annual Report at 1 (Jan. 11, 2024),
https://www.japc.state.fl.us/Documents/Publications/2023AnnualReport.pdf (last visited Jan. 30, 2025).
23
Section 120.545(3)-(7), F.S.
24
JAPC, 2023 Annual Report at 2 (Jan. 11, 2024),
https://www.japc.state.fl.us/Documents/Publications/2023AnnualReport.pdf (last visited Jan. 30, 2025). BILL: CS/SB 108 Page 6
The JAPC reviewed a total of 1,074 rules in 2023, the lowest reviewed in the prior 10 years (with
the highest number of 2,851 rule reviews in 2015).
25
Rulemaking Process
The Administrative Procedure Act (APA)
26
provides uniform procedures that agencies must
follow when they engage in rulemaking. An agency may initiate rulemaking either as the result
of a legislative mandate in statute, public request,
27
or its own agency initiative—presuming
sufficient rulemaking authority exists in statute.
Notice of Rule Development
An agency begins the formal rulemaking process
28
by filing a notice of rule development in the
FAR, which must indicate the subject area to be addressed by the rule development and provide
a short, plain explanation of the rule’s purpose and effect.
29
Such notice is required for all
rulemaking (including creation of a new rule and amendment of an existing rule) except for rule
repeals. A notice of rule development may, but is not required to, include the preliminary text of
the proposed rule or amendment.
30
The notice of rule development gives notice to the public, which provides an initial opportunity
to participate in the rulemaking process through either a request for a public rule development
workshop,
31
negotiated rulemaking,
32
or simply communication of one’s position to the agency.
33
Additionally, unless the agency is statutorily required to adopt the rule, it may abandon the
rulemaking process at this point.
34
Notice of Intended Agency Action
Next, an agency must file a notice of intended agency action, which may be a notice of proposed
rule, a notice of proposed amendment to an existing rule, or a notice of rule repeal. The notice
must contain the full text and a summary of the proposed rule or amendment, as well as a
reference to the grant of rulemaking authority and the specific statute or law the agency is
implementing or interpreting.
35
The agency must also include a summary of its statement of
25
Id. at 6-8.
26
Chapter 120, F.S.
27
Section 120.54(7)(a), F.S.
28
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.
29
Section 120.54(2), F.S.
30
Section 120.54(2), F.S., requires the agency to “include the preliminary text of the proposed rules, if available…”
31
Section 120.54(2)(c), F.S., requires an agency to hold a public workshop for the purposes of rule development, if requested
in writing by an affected person, unless the agency head explains in writing why a workshop is unnecessary.
32
Section 120.54(2)(d), F.S.
33
Jowanna Oates, The Florida Bar, Escaping the Labyrinth: A Practical Guide to Rulemaking, 29 FLA. BAR J. 61, available
at https://www.floridabar.org/the-florida-bar-journal/escaping-the-labyrinth-a-practical-guide-to-rulemaking/ (last visited
Feb. 3, 2025).
34
Section 120.54(3)(d)2., F.S.
35
Section 120.54(3)(a), F.S. BILL: CS/SB 108 Page 7
estimated regulatory costs (SERC), if it prepared one. The notice must be published in the FAR
at least 28 days before the agency may execute its intended action.
36
Public Input After the Notice of Intended Agency Action
The notice of intended agency action must also provide information detailing how a member of
the public can:
• Request that the agency hold a public hearing on the proposed rule. The requesting party
must be affected by the proposed rule and must request the hearing within 21 days of the
publication of the notice of proposed rule (or other intended agency action);
37
• Provide input regarding the agency’s SERC;
38
• Submit a lower cost regulatory alternative (LCRA) pursuant to s. 120.541(1)(a), F.S.; or
• Petition for an administrative hearing held by an administrative law judge at the Division of
Administrative Hearings (DOAH) on whether the proposed agency action is a proper
exercise of authority or is otherwise invalid.
39
Generally, a member of the public has 21 days from the agency’s publication of a notice of
intended agency action to request or take one of the above actions. To allow time for public
input, the time before an agency may file the rule for final adoption (discussed below) is
extended by 14-60 days upon the occurrence of one of the above actions.
40
Statements of Estimated Regulatory Costs (SERC) and Lower Cost Regulatory Alternatives
A SERC is an agency’s estimation of the impact of a rule on the public, focusing on the
implementation and compliance costs.
41
An agency is encouraged to prepare a SERC before
adopting, amending, or repealing any rule
42
but is not required to do so unless the proposed
action will have a negative impact on small businesses or increase regulatory costs by more than
$200,000 in the aggregate within 1 year.
43
If the SERC determines that the rule will exceed the
$200,000 impact threshold, then the rule must be referred for Legislative ratification after its
adoption; the rule does not take full effect until ratified by the Legislature.
44
If the agency created a SERC, it must provide a hyperlink to it in the applicable notice of
intended agency action. If the agency revises a rule before its adoption and the revision increases
the rule’s regulatory costs, then the agency must revise the SERC appropriately.
45
A person who is substantially affected by a proposed rule may submit a lower cost regulatory
alternative (LCRA) within 21 days of the publication of a notice of intended agency action to
36
Section 120.54(3)(a)2., F.S.
37
Section 120.54(3)(c), F.S. The agency cannot file the rule for adoption with the DOS until at least 14 days after the final
public hearing has occurred.
38
See “Statement of Estimated Regulatory Cost” section above.
39
Section 120.56(2)(a), F.S.
40
Section 120.54(3)(e)2., F.S.
41
Section 120.541(2), F.S.
42
Section 120.54(3)(b)1., F.S.
43
Id and s. 120.541(2)(a), F.S.
44
See s. 120.541(3), F.S., for exceptions for the adoption of specific federal standards and updates to the Florida Building
and Fire Prevention Codes. Fernandez v. Dep’t. of Health, Bd. of Medicine, 223 So. 3d 1055, 1057-8 (Fla. 1
st
DCA 2017).
45
Section 120.541(1)(c), F.S. BILL: CS/SB 108 Page 8
adopt, amend, or repeal the relevant rule. A LCRA may recommend that the rule not be adopted
at all, if it explains how the lower costs and objectives of the law will be achieved. The
submission of an LCRA extends the period for filing a rule by an additional 21 days.
46
If an agency receives an LCRA, it must prepare a SERC if it has not done so already or revise its
prior SERC to reflect the LCRA’s input. The agency must either adopt the LCRA or explain its
reasons for rejecting it.
47
In order to provide adequate time for review, the agency must provide
its new or revised SERC to the individual who submitted the LCRA and to the JAPC.
48
The
agency must also post a notice of the SERC’s availability on the agency website at least 21 days
before it files the rule for adoption.
49
Agencies must also separately consider the impact of a proposed rule, amendment, or rule repeal
on small businesses, small counties, and small cities, and consider alterations to the rule to lessen
any impact to these entities. If an agency determines that a proposed agency action will affect
small businesses, then it must forward the notice to the rules ombudsman, an appointee of the
Governor.
50
The rules ombudsman makes recommendations on any existing or proposed rules to
alleviate unnecessary or disproportionate adverse effects to business.
51
Each agency must adopt
recommendations made by the rules ombudsman to minimize impacts on small businesses,
unless the adopting agency finds the recommendation unfeasible or inconsistent with the
proposed rule’s objectives.
52
Notice of Supporting Materials Submitted to JAPC
At least 21 days before the date of adoption of a proposed rule, amendment, or repeal, the agency
must send a packet of supporting materials to the JAPC that includes a:
53
• Copy of each rule or amendment it proposes to adopt or repeal;
• Copy of any material incorporated by reference therein;
• Detailed written statement of the facts and circumstances which justify the proposed rule
amendment, or repeal;
• Copy of any SERC the agency prepared in relation to the proposed rule, amendment, or
repeal;
• Statement of how the proposed rule, amendment, or repeal relates to federal standards or
rules; and
• Copy of the Notice of Intended Agency Action.
At this time, the JAPC generally begins its review of a proposed rule pursuant to s. 120.545, F.S.
(see “Joint Administrative Procedures Committee” section, infra).
46
Section 120.541(1)(a), F.S.
47
Section 120.541(1)(d), F.S.
48
The Joint Administrative Procedures Committee (JPAC) “examines existing and proposed rules made by agencies in
accordance with [the Administrative Procedures Act].” Comm'n on Ethics v. Sullivan, 489 So. 2d 10, 14 (Fla. 1986); see s.
120.545, F.S. (referring to “the committee” which section 120.52, F.S., defines as the Administrative Procedures Committee).
49
Id.
50
Sections 120.54(3)(b)2. and 288.7015, F.S.
51
Section 288.7015(3), F.S. See also, E.O. 11-01 (establishing the Office of Fiscal Accountability and Regulatory Reform
(OFARR)) (renewed by E.O. 11-72 and 11-211).
52
Section 120.54(3)(b)2.b.(II)., F.S.
53
Section 120.54(3)(a)4., F.S. BILL: CS/SB 108 Page 9
Materials Incorporated by Reference
The APA allows an agency to incorporate material external to the text of the rule by reference.
54
The material to be incorporated must exist on the date the rule is adopted.
55
An agency may not
incorporate material by reference in a rule 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.
56
If an agency wishes to alter the material incorporated by reference after the rule is effective, the
rule itself must be amended.
57
However, an agency rule that incorporates another rule by
reference automatically incorporates subsequent amendments to the referenced rule.
58
Notice of Change Submitted to JAPC
If an agency substantively changes the proposed rule or amendment after its initial notice of
intended agency action, it must file a notice of change with the JAPC at least 21 days before it
files the rule for adoption; this deadline may coincide with the submission deadline of required
notice of supporting materials. An agency may substantially change a proposed rule or
amendment in response to a public hearing or materials timely submitted to the agency. The
notice of change must also be mailed to interested parties and published in the FAR.
59
The
agency must also amend any SERC to reflect the proposed rule’s substantive changes.
An agency cannot file the rule for adoption (discussed below) until at least 21 days after this
notice of change is filed; however, the period allowed for filing the rule for adoption is extended
by 45 days (from a range of 28-90 days to 73-135 days) upon timely filing of a notice of change.
If the agency makes no changes, or only technical changes, to the proposed rule, amendment, or
repeal, then it must file a notice of no change with the JAPC at least 7 days before it files the
matter for adoption.
60
Filing for Adoption of the Proposed Agency Action
Generally, an agency must file a rule or amendment for adoption between 28 and 90 days after
its notice of intended agency action is published in the FAR; this time can be extended and tolled
to accommodate public hearings, SERC revisions, formal hearings at the DOAH, and other
rulemaking processes provided for by the APA.
61
Once an agency has completed the rulemaking
54
Section 120.54(1)(i), F.S.; see also, Fla. Admin. Code R. 1-1.013.
55
Section 120.54(1)(i)1., F.S.
56
Section 120.54(1)(i)3., F.S.
57
Id.
58
Section 120.54(1)(i)2., F.S.
59
Section 120.54(3)(d)1., F.S.
60
Id.
61
120.54(3)(e)2., F.S. BILL: CS/SB 108 Page 10
steps within the appropriate timeframe, the agency may file the rule for adoption with the DOS.
62
This triggers JAPC’s duty to certify the agency’s compliance with its inquiries made pursuant to
s. 120.545, F.S., if any.
At the time the agency files the rule for adoption, the JAPC must certify to the DOS whether the
agency responded to all material and timely written comments or inquiries made on behalf of
JAPC (these inquiries are outlined in additional detail above in the “Joint Administrative
Procedures” section). If the JAPC notifies the agency that it is considering making an objection
to the adopted rule or amendment based on its inquiry, the agency may withdraw or modify the
rule by publication in the FAR and notice to interested parties. The agency’s rule withdrawal
must occur before the rule or amendment becomes effective.
63
An agency may restart rulemaking
on the same subject after it has withdrawn a rule and is not required to republish a notice of
proposed rulemaking in order to do so. However, if the agency’s rulemaking is performed
pursuant to a legislative delegation, it must continue the rulemaking process until a rule becomes
effective.
The DOS may approve an agency rule for adoption if it finds that the agency:
• Filed the rule for adoption within the applicable timeframes;
• Complied with all rulemaking requirements;
• Timely responded to all material and timely written inquiries or comments; and
• Is not engaged in pending administrative determination on the rule in question.
64
The rule becomes effective 20 days after such filing for adoption, unless a different date is
indicated in the rule.
65
Agency Review of Rules – Annual Regulatory Review
The APA requires each agency to formally review its rules and prepare an agency regulatory
plan annually.
66
A regulatory plan includes a list of each law enacted during the previous 12
months that creates or modifies the duties or authority of the agency, and a statement whether the
agency must adopt rules to implement the newly adopted laws.
67
The regulatory 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. The agency head or presiding officer and the principal
legal advisor to the agency must certify that they reviewed the regulatory plan and verify that the
agency regularly reviews all of its rules and identify the period during which the rules have most
recently been reviewed to determine their continued authority and consistent with implementing
laws.
68
62
120.54(3)(e), F.S.
63
Section 120.54(3)(d)3., F.S. An agency may also withdraw or modify a rule after it has become effective if a final order
that is not subject to appeal is entered in a pertinent rule challenge or withdraw but not modify the rule when the Legislature
did not timely ratify the rule.
64
Section 120.54(3)(e)4., F.S.
65
Section 120.54(3)(e)6., F.S.
66
See s. 120.74, F.S.
67
Section 120.74(1), F.S.
68
Section 120.74(1)(d), F.S. BILL: CS/SB 108 Page 11
By October 1 of each year, the regulatory plan must be published on the agency’s website or on
another state website. The agency must also deliver a copy of its certification to the JAPC and
publish a notice in the FAR identifying the date of publication of the agency’s regulatory plan.
69
If a newly-enacted law requires implementation by rule, s. 120.54(1)(b), F.S., requires the
agency charged with rulemaking to publish a notice of rule development by November 1 after
enactment for each law. The notice of intended agency action (usually a notice of proposed rule
in this circumstance) must be published by April 1 of the year following the regulatory plan.
However, agencies are allowed to file extensions to any rulemaking plans or amended notices
under this provision. Thus, this provision does not necessarily ensure that agencies adopt rules
mandated by the Legislature in a timely manner.
Emergency Rules
An agency is authorized to respond to immediate dangers to the public health, safety, or welfare
by adopting emergency rules.
70
An emergency rule is not adopted using the same procedures
required of other rules.
71
The notice of the emergency rule and the text of the rule is published in
the first available issue of the FAR. There is no requirement, however, that an emergency rule be
published in the FAC (because emergency rules are temporary in nature).
72
The agency must
publish prior to, or contemporaneously with, the rule’s promulgation the specific facts and
reasons for finding an immediate danger to the public health, safety, or welfare.
73
An emergency
rule takes effect immediately, or on a date less than 20 days after filing if specified in the rule.
74
An emergency rule is only effective for a period of no longer than 90 days.
75
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 rule is awaiting ratification by the Legislature.
76
These exceptions allow
for continuity of a needed rule where the agency has demonstrated its intent to maintain the
policy (via initiation of rulemaking), but the permanent implementation of the rule is delayed for
an unknown period of time. In at least one instance, however, an agency has renewed an
emergency rule 12 times while its proposed permanent rule successor awaits Legislative
ratification.
77
The validity of an emergency rule may be challenged at DOAH subject to an
expedited filing and hearing schedule.
78
69
Section 120.74(2), F.S.
70
Section 120.54(4), F.S.
71
Section 120.54(4)(a)1., F.S.
72
Section 120.54(4)(a)3, F.S.
73
Id.
74
Section 120.54(4)(d), F.S.
75
Section 120.54(4)(c), F.S.
76
Id.
77
See Emergency Rule 65CER22-1, history available at https://flrules.org/gateway/ruleNo.asp?id=65CER22-1 (last visited
Feb. 8, 2025). See also, proposed rule 65C-9.004 (not yet adopted), rulemaking history available at
https://flrules.org/gateway/ruleno.asp?id=65C-9.004 (last visited Feb. 8, 2025).
78
Id. BILL: CS/SB 108 Page 12
The Office of Legislative Services
The Office of Legislative Services (OLS) oversees the statutory revision plan, which involves
recommending the deletion of all laws which have expired, become obsolete, and/or had their
effect or served their purpose.
79
Similarly, the OLS is authorized to include duplicative,
redundant, or unused statutory rulemaking authority among its recommended repeals in revisers
bill recommendations.
80
The OLS is also authorized to:
• Award contracts or pay for editorial work, printing, and other things authorized for the
statutory revision program;
81
and
Exchange Florida Statutes, and other available publications, with the officers, boards, and
agencies of other states and of the United States, and with other governments;
82
and exercise all
other powers, duties, and functions necessary or convenient for properly carrying out the
provisions of law relating to statutory revision.
83
III. Effect of Proposed Changes:
Technical Changes
Section 1 amends s. 120.52, F.S., to define a “technical change” as a change “limited to
correcting grammatical, typographical, or similar errors not affecting the substance of the rule.”
Section 2, in part, creates s. 120.54(3)(a)5., F.S., to require an agency to publish a notice of
correction in the FAR to detail a technical change made to a notice of intended agency action
(rule adoption, amendment, or repeal) at least 7 days before the intended agency action.
Examples of such a change include a technical change to the proposed rule language, an updated
e-mail address for the agency employee contact, or a technical change to a SERC. A notice of
correction in this instance would not affect the timeframes for filing a rule for adoption.
Section 5 in part, creates s. 120.55(1)(a)6., F.S., to require the DOS to include the date of any
technical changes in the history note of the rule in the FAC, and clarifies that a technical change
does not affect the effective date of the rule. Additionally, a technical change made after the
adoption of a rule must be published as a notice of correction.
Timeline for Publishing a Notice of Proposed Rule
Section 2 amends s. 120.54, F.S., relating to rulemaking procedures, to include clarifying
language and to narrow the time an agency has to publish a notice of intended agency action to
90 days after the effective date of the act granting rulemaking authority.
84
Previously, an agency
was required to publish a notice of proposed rule by “April 1 of the year following the deadline
79
Section 11.241(1)(i), F.S.
80
Section 11.241(5)(j), F.S.
81
Section 11.241(6), F.S.
82
Section 11.241(7), F.S.
83
Section 11.241(8), F.S.
84
Prior to 2015, section 120.54, F.S., directed agencies to notice proposed rules within 180 days after the effective date of an
act requiring mandatory rulemaking. This provision was removed with the enactment of the annual regulatory provision -
s. 120.74, F.S. Adding the 180-day rulemaking requirement will likely give the JAPC greater oversight authority. BILL: CS/SB 108 Page 13
for the regulatory plan.”
85
Assuming a bill’s effective date of July 1, the former deadline to
publish a notice of proposed rule was approximately 270 days (9 months) after the delegating
law took effect.
Section 6 deletes language from s. 120.74, F.S., which tied agency rulemaking timeframes to the
agency regulatory plan, requiring that an agency publish a notice of rule development by
November 1 and a notice of proposed rule by April 1 of the year following the deadline for the
regulatory plan. The provisions also allowed for an extension for rulemaking upon agency
publication of a notice of extension in the FAR.
Public Notices
Section 2 amends s. 120.54(3), F.S., to expand the information required in notices of intended
agency action to include the proposed rule number and the name, e-mail address, and telephone
number of the agency employee who can be contacted with questions regarding the intended
action.
Additionally, the bill reinstates the requirement that an agency publish its notice of proposed
rulemaking for at least 7 days before it can publish a notice of intended agency action.
The bill allows the agency to electronically deliver notices of intended agency action to all
persons who are named in the proposed rule and to those who requested a notice of proceedings
at least 14 days before the agency’s delivery.
The bill expands the function of a notice of change to include it as a tool for public notice of
technical changes made to a Notice of Intended Agency Action (both to the notice itself, and to
proposed rule text). This notice must be published for at least 7 days in the FAR before the
agency’s intended action. Previously, a notice of change was used to notify the public of a
change to a proposed rule that occurred after the final hearing on the proposed rule or after time
for such a hearing had expired.
Material Incorporated by Reference in Rules
Section 2 amends s. 120.54(1) and (3), F.S., to require all rules proposed after July 1, 2025, and
adopted or reviewed to have the full text of any incorporated materials published electronically
within the notice of proposed rulemaking (if available) and the notice of intended agency action.
The material incorporated by reference must also be submitted to the DOS in a text-searchable
format, and made available via hyperlink in the FAC after the rule is adopted. If such posting
would violate federal copyright law, then the agency must make a statement to that effect and
provide the address of the location at DOS and the agency where the material available for public
inspection and examination.
Additionally, an agency update to material incorporated by reference into a rule, must be coded
by underlining new text and striking through deleted text to reflect the changes.
85
Section 120.74(5), F.S. BILL: CS/SB 108 Page 14
Section 5 amends the DOS’s rulemaking authority to allow it to prescribe rules requiring an
agency to provide in its rulemaking notices a coded copy of any documents it creates and
proposes to incorporate by reference.
Legislative Ratification
Section 2 amends s. 120.54(3)(d)3.c., F.S., to limit the time for legislative ratification of a
proposed rule submitted for ratification because it met the SERC threshold to one regular
legislative session after the agency submits the rule for ratification. If the Legislature does not
ratify a proposed rule during the regular session immediately following the filing for adoption,
the agency must withdraw the rule. Where the legislative delegation of rulemaking authority
requires that the agency adopt a rule, the agency must then restart the rulemaking process within
90 days of adjournment sine die, however this requirement does not apply if the rulemaking
authority no longer exists or is permissive.
Section 3 amends s. 120.541(3), F.S., to require an agency to notify the JAPC within 3 business
days of its submission of a rule to the Legislature for ratification.
Emergency Rules
Section 2 amends s. 120.54(4), F.S., to make several changes regarding the creation and duration
of emergency rules. The bill clarifies that an agency may adopt an emergency rule both where it
finds an immediate danger to the public health, safety, or welfare which requires emergency
action, or where the Legislature authorizes the agency to adopt emergency rules based on its own
finding of an immediate danger. While agencies have historically adopted administrative rules
pursuant to both authorities, the bill formalizes the agency action’s authority to do so.
The bill requires a notice of emergency rule to include the agency’s grant of emergency
rulemaking authority or finding of immediate danger, necessity, and procedural fairness. By
incorporating this information into the notice of emergency rule, it must be published in the FAR
and included in the publication of the final emergency rule to be published in the FAC.
Agencies are not currently allowed to edit an emergency rule after its publication. The bill would
allow an agency to:
• Make a technical change to the emergency rule within the first 7 days after it is adopted,
assuming the change is published in the FAR as a notice of correction;
• Supersede the emergency rule currently in effect with a new version of the rule—which may
only have effect for the remaining duration of the initial emergency rule. The agency’s
adoption of a superseding rule must be achieved through the same processes as initial
adoption of an emergency rule; and
• Repeal an emergency rule before its expiration by providing a notice in the FAR with a short,
plain explanation as to why the conditions of immediate danger specified in the adoption
notice no longer require the emergency rule.
This section further provides for the renewal of an emergency rule. The notice of the renewal
must be published in the FAR before the expiration of the existing emergency rule and must state
the specific facts and reasons for the renewal. For emergency rules intended to replace existing BILL: CS/SB 108 Page 15
rules with an effective period greater than 90 days, a note must be added to the history note of
the existing rule which specifically identifies the emergency rule that is intended to supersede the
existing rule and includes the date that the emergency rule was filed with the DOS.
Section 2 also addresses emergency rules that were renewed beyond the standard 90-day
timeframe as the result of a proposed successor rule that requires legislative ratification. If the
proposed successor rule fails to achieve ratification during the next regular legislative session,
then the underlying emergency rule expires at adjournment sine die of that regular legislative
session. Additionally, the agency must withdraw the proposed rule at adjournment sine die of
that session (assuming it failed to achieve legislative ratification), and must reinitiate rulemaking
if a mandatory delegation of rulemaking authority persists.
JAPC Notifications
Sections 2-3 amend ss. 120.54(3)(b), 120.54(7), and 120.541(1)(a), F.S., respectively, to require
the agency to provide the JAPC a copy of the following within 7 days of the agency’s receipt
thereof or response to:
• A LCRA received during the rulemaking proceeding;
• A petition to adopt, amend, or repeal a rule, or provide minimum public information required
by ch. 120, F.S. (the agency must also notify the committee of its intended action or response
to such requests within 7 days); and
• A regulatory alternative provided by the rules ombudsman.
Section 3 further provides that that an LCRA submitted after an agency’s change to a proposed
rule is deemed to be made “in good faith” if it states the person’s reasons for believing the
proposed rule as changed increases the regulatory costs or creates an adverse impact on small
business that the previous proposed rule did not.
Section 2 requires an agency to provide notice to the JAPC of any regulatory alternative offered
to the agency by the rules ombudsman of the Executive Office of the Governor before filing the
rule for adoption.
Licensing Performance Data
Section 5 requires an agency to submit, beginning October 1, 2026, as a part of their annual
agency regulatory plan specified data regarding its compliance with licensing timeframes
established in s. 120.60, F.S., Additionally, the OPPAGA must produce a consolidated report of
this agency licensing data beginning December 31, 2026. These reports must be published by a
hyperlink in the first available issue of the Florida Administrative Register.
Rule Review
Sections 4 and 6 create a rule review process that each agency, in coordination with the JAPC,
must undertake between July 1, 2025, and July 1, 2030. The goal of the review is to ensure
appropriate statutory authority; review the rule’s exercise of delegated legislative authority; bring
all rules under the same requirements (to have, for example, all materials incorporated by BILL: CS/SB 108 Page 16
reference electronically-available); and allow for general clean-up of text that may not have been
reviewed recently.
Beginning October 1, 2025, each agency must create a list of its existing rules and include the
list in its annual agency regulatory plan. The agency regulatory plan must further detail an annual
schedule of the rules the agency will review each year—totally approximately 20% of the total
existing rules annually. For purposes of this rule review only, a “rule” is defined as the rule
number assigned by the Department of State.
The agency must take one of four actions as part of its rule review: (1) make no change to the
rule; (2) make a technical change to the rule; (3) substantively amend the rule; or (4) repeal the
rule. By January 1 of each year of the review, the agency must submit a report to the President of
the Senate and Speaker of the House of Representatives to indicate which of the above actions
the agency plans to take on each rule subject to review during that fiscal year. The agency must
have completed (for instances where it makes no change, or a technical change) or commenced
the action (for instances where it will substantively amend or repeal the rule) by April 1.
Those rules to which the agency makes no change, or only a technical change, during its rule
review are not subject to challenge or hearing otherwise provided for in the APA. If the agency
chooses to make a substantive amendment or to repeal a reviewed rule, however, it must use the
procedures otherwise outlined in the APA to do so. Further, the amendment or repeal is subject
to challenge or hearing as otherwise prescribed in the APA.
The agency must support its actions in the rule review with a written statement of its intended
action, its assessment of specific factors outlined in statute, a coded version of the recommended
changes (if applicable), and a statement of the facts and circumstances justifying any
recommended change. The agency must submit these documents to the JAPC, which will then
examine the submissions and make additional inquiries, if needed. If the agency recommends no
change or a technical change, the JAPC must complete this examination within 90 days of its
receipt of the agency’s submissions and ultimately certify whether the agency responded
appropriately to its inquiries.
The agency may alter its rule review schedule in its next annual regulatory plan. If the agency
fails to timely conclude a rule review in accordance with its schedule, it must identify the
ongoing rule review and either list the rule in its next agency regulatory plan and notify the
JAPC of such action or explain why the rule review is no longer necessary. Additionally, section
5 amends s. 120.55(1)(b), F.S., to require the DOS to publish a list of all rules that were not
timely reviewed by their agency in the FAR and update the list at least annually.
After the agency has completed its rule review process and received a certification from the
JAPC, it may electronically file a certified copy of the reviewed rule (to which no change, or
technical changes were made) with the DOS. The agency completes its rule review for rules that
are substantively amended or repealed when it has filed a notice of proposed rule pursuant to
s. 120.54, F.S.
The DOS must document the rule review by notice in the FAR and update the rule’s history note
in the FAC to reflect the rule review’s date of completion. BILL: CS/SB 108 Page 17
The bill grants the DOS authority to adopt rules to implement the rule review process by no later
than December 31, 2025.
Section 120.5435, F.S., created by section 4, is scheduled to repeal on July 1, 2032, unless
reviewed and saved from repeal through reenactment by the Legislature.
DOS Publication of the FAR and the FAC
Section 2 amends s. 120.54(3)(e), F.S., to reduce paperwork requirements by requiring an
agency to file with the DOS one electronic, rather than three paper, certified copies of a proposed
rule and one certified copy of any material incorporated by reference in the rule.
Section 5 amends s. 120.55, F.S., which provides FAC publication requirements for the DOS.
This section incorporates changes to notices required during rulemaking made elsewhere in the
bill. Additionally, this section requires each agency to publish at the beginning of the section of
code that deals with its subject matter a list of all forms and materials incorporated by reference
into its rules.
Effective Date
Section 7 provides that the bill takes effect July 1, 2025.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The mandate restrictions do not apply because 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 identified.
C. Trust Funds Restrictions:
None identified.
D. State Tax or Fee Increases:
None identified.
E. Other Constitutional Issues:
None identified. BILL: CS/SB 108 Page 18
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None identified.
B. Private Sector Impact:
The bill provides additional public notice in rulemaking. This should make it easier for
the public to engage in rulemaking.
C. Government Sector Impact:
The bill may have an indeterminate, negative fiscal impact on state government. The
JAPC and agencies will be required to perform additional work relating to the rule review
over the next 5 years. Additionally, there are new notice and publication requirements
within the rulemaking process that may create additional workload. Agencies and the
JAPC will likely be required to spend funds to implement the bill’s requirements.
Whether these requirements may be absorbed within each agency’s existing resources is
not known.
Some entities have expressed that the 90-day timeframe to produce a notice of intended
agency action may be overly burdensome.
However, agencies should have sufficient time to request additional funding or personnel
should they determine a need for additional resources.
The DOS may have additional costs associated with rulemaking.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 120.52, 120.54,
120.541, 120.55, and 120.74. The bill additionally creates section 120.5435 of the Florida
Statutes. BILL: CS/SB 108 Page 19
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Rules on March 12, 2025:
• Clarifies that an agency must publish its intended agency action within 90 days of the
effective date of the underlying law.
• Requires an agency to submit materials that it will incorporate into a rule in text-
searchable format.
• Requires proposed rules that require ratification, but that fail to be ratified within 1
legislative session of their referral, to be withdrawn. If a mandatory delegation of
rulemaking persists at the time the agency withdraws the proposed rule, then the
agency must reinitiate rulemaking.
• Expires emergency rules that are extended beyond the 90-day effective period as a
result of a superseding proposed rule that requires ratification if the superseding
proposed rule fails to be timely ratified.
• Requires agencies to submit licensing performance data in their annual agency
regulatory plan, and the OPPAGA to submit a consolidated version of that data in
accordance with s. 286.001, F.S.
• Specifies that an agency must publish a non-substantive notice of correction in the
Florida Administrative Register at least 7 days before its intended agency action.
• Defines, for purposes of the rule review created by this bill, that a rule is the rule
number assigned by the Department of State.
• Clarifies that only an agency determination to make no change or a technical change
is not subject to a ch. 120, F.S. challenge.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.