HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1145 Administrative Procedures
SPONSOR(S): Government Operations Subcommittee, McClain
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Government Operations Subcommittee 15 Y, 0 N, As CS Villa Smith
2) Appropriations Committee 27 Y, 0 N Helpling Pridgeon
3) State Affairs Committee
SUMMARY ANALYSIS
The Administrative Procedure Act (APA) sets forth a uniform set of procedures agencies must follow when
exercising delegated rulemaking authority. A rule is an agency statement of general applicability that interprets,
implements, or prescribes law or policy, including the procedure and practice requirements of an agency as
well as certain types of forms. Agencies do not have the discretion in and of themselves to engage in
rulemaking. To adopt a rule, an agency must have a general grant of authority to implement a specific law.
The bill amends the APA rulemaking process and provides a mechanism for agencies to reduce unnecessary
rules. Specifically, the bill:
 Requires each agency to review its rules for consistency with the powers and duties granted by the
agency’s enabling statutes. If, after reviewing a rule, the agency determines substantive changes to
update a rule are not required, the agency must repromulgate the rule;
 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 their entirety;
 Requires an agency, in all notices of rulemaking that include material incorporated by reference, to
submit the incorporated material in the prescribed electronic format to the Department of State with the
full text available for free public access through an electronic hyperlink;
 Requires changes to material incorporated by reference to be in a strike-through and underline format.
 Requires the annual regulatory plan to identify and describe each rule, by rule number or proposed rule
number, which 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 to that end the agency is
diligently working toward lowering the total number of rules adopted;
 Specifies that an adverse impact on small business exists if certain specific criteria is met;
 Specifies that a lower cost regulatory alternative may be submitted after a notice of proposed rule or a
notice of change;
 Defines the term “technical change” and requires technical changes to be documented in the history of
the rule;
 Requires a period of at least seven days between the publication of a notice of rule development and a
notice of proposed rule; and
 Requires the Joint Administrative Procedures Committee to review all existing rules.
The bill may have a negative fiscal impact on state government. See Fiscal Comments.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Rulemaking
Background
The Legislature, as the sole branch of government with the inherent power to create laws,1 may
delegate to agencies in the executive branch the quasi-legislative ability, or authority, to create rules.2
The Administrative Procedure Act (APA)3 sets forth a uniform set of procedures agencies must follow
when exercising delegated rulemaking authority. A rule is an agency statement of general applicability
that interprets, implements, or prescribes law or policy, including the procedure and practice
requirements of an agency as well as certain types of forms.4 Rulemaking authority is delegated by the
Legislature through statute and authorizes agencies to “adopt, develop, establish, or otherwise create”5
rules. Usually, the Legislature delegates rulemaking authority to a given agency because an agency
has “expertise in a particular area for which they are charged with oversight.”6 Agencies do not have
the discretion in and of themselves to engage in rulemaking.7 To adopt a rule, an agency must have a
general grant of authority to implement a specific law by rulemaking.8 The grant of rulemaking authority
itself need not be detailed. The specific statute being interpreted or implemented through rulemaking
must provide specific standards and guidelines to preclude the administrative agency from exercising
unbridled discretion in creating policy or applying the law.9
An agency begins the formal rulemaking process10 by filing a notice of rule development of proposed
rules in the Florida Administrative Register (FAR) indicating the subject area to be addressed by the
rule development and including a short, plain explanation of the purpose and effect of the rule.11 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. Next, an agency must file, upon approval of the
agency head, a notice of proposed rule.12 The notice of proposed rule is published by the Department
of State (DOS) in the FAR13 and must contain the full text of the proposed rule or amendment and a
summary thereof.14 Prior to 2012, the FAR was published weekly, resulting in a period of at least seven
days between the publication of a notice of rule development and a notice of proposed rule.15 In 2012,
the Legislature passed HB 541 (2012) that changed the FAR from a weekly publication to a publication
that is continuously revised and, as a result, eliminated the seven day period between the two
notices.16
After publication of a notice of proposed rule, an agency must hold a hearing on the proposed rule if a
person requests a hearing within 21 days.17 If, after the hearing is held or after the time for requesting a
hearing has expired, the agency does not change the rule, other than a technical change, the agency
1 Article III, s. 1, FLA. CONST.; see also art. II, s. 3, FLA. CONST.
2 See Whiley v. Scott, 79 So. 3d 702, 710 (Fla. 2011), stating “[r]ulemaking is a derivative of lawmaking.”
3 Chapter 120, F.S.
4 Section 120.52(16), F.S.
5 Section 120.52(17), F.S.
6 Whiley v. Scott, 79 So. 3d 702, 711 (Fla. 2011).
7 Section 120.54(1)(a), F.S.
8 Sections 120.52(8) and 120.536(1), F.S.
9 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).
10 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.
11 Section 120.54(2), F.S.
12 Section 120.54(3), F.S.
13 Section 120.55(1)(b), F.S.
14 Section 120.54(3)(a)1., F.S.
15 Chapter 2012-63, L.O.F.
16 Id.
17 Section 120.54(3)(c), F.S.
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 must file a notice stating no changes have been made to the rule with the Joint Administrative
Procedures Committee (JAPC) at least seven days before filing the rule for adoption.18 However, if a
hearing is requested, the agency may, based upon the comments received at the hearing, publish a
notice of change.19
As an alternative to the agency initiated process delineated above, a person regulated by the agency or
having a substantial interest in an agency rule may petition the agency to adopt, amend, or repeal a
rule.20 The petitioner must specify the proposed rule and action requested.21 The agency can either
initiate rulemaking or decline to do so; however, if the agency chooses the latter, it must issue a written
statement of the reasons for the denial.22
Once an agency has completed the steps of rulemaking, the agency may file for rule adoption with
DOS and the rule becomes effective 20 days later, unless a different date is indicated in the rule.23
Most adopted rules are published in the Florida Administrative Code (FAC).24
The validity of a rule or a proposed rule may be challenged at the Division of Administrative Hearings
(DOAH)25 as an invalid delegation of legislative authority.26 An invalid delegation of legislative authority
is an action that goes beyond the powers, functions, and duties delegated by the Legislature.27 A rule
or proposed rule is an invalid delegation of legislative authority if:
 The agency has materially failed to follow the rulemaking procedures in the APA;
 The agency has exceeded its grant of rulemaking authority;
 The rule enlarges, modifies, or contravenes the specific provisions of the law implemented;
 The rule is vague, fails to establish adequate standards for agency decisions, or vests the
agency with unbridled discretion;
 The rule is arbitrary or capricious; or
 The rule imposes regulatory costs on the regulated person, county, or municipality that could
have been reduced by the adoption of less costly alternatives that substantially accomplish the
statutory objectives.28
An administrative law judge (ALJ) at DOAH hears the rule challenge in a de novo proceeding and,
within 30 days of the hearing, makes a determination on the rule’s validity based upon a preponderance
of the evidence standard.29 The ALJ’s decision constitutes final agency action, which means an agency
may not alter the decision after its issuance,30 but an agency may appeal the decision to the District
Court of Appeal where the agency maintains its headquarters.31
Effect of the Bill
The bill requires a notice of proposed rule to be filed within 12 months of a notice of rule development.
If a notice of proposed rule is not filed within 12 months of the notice of rule development, the agency
must withdraw the rule and give notice of the withdrawal in the next issue of the FAR. The bill also
18 Section 120.54(3)(d)1., F.S.
19 Id.
20 Section 120.54(7)(a), F.S.
21 Id.
22 Id.
23 Section 120.54(3)(e)6., F.S.
24 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.
25 DOAH is an agency in the executive branch, administratively housed under the Department of Management Services
but not subject to its control. DOAH employs ALJs who serve as neutral arbiters presiding over disputes arising under the
APA. Section 120.65, F.S.
26 Section 120.56(1), F.S.
27 Section 120.52(8), F.S.
28 Section 120.52(8)(a)-(f), F.S.
29 Section 120.56(1)(e), F.S.
30 Id.
31 Section 120.68(2)(a), F.S.
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 reestablishes the mandatory seven 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 prescribed timeframes in the APA. Once an agency has exceeded the
timeframe to adopt the rule, the bill requires JAPC to notify the agency of the failure. If the agency has
not withdrawn the rule within 30 days following the notice, JAPC must notify DOS that the date for
adoption of the rule has expired. DOS must then publish a notice of withdrawal of the proposed rule.
The bill requires an agency to file a copy of a petition to initiate rulemaking with JAPC.
The bill defines the term “technical change” to mean a change limited to correcting grammatical,
typographical, and similar errors not affecting the substance of the rule.
Joint Administrative Procedures Committee (JAPC)
Background
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.32 Specifically, JAPC may examine existing rules and must
examine each proposed rule to determine whether:
 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;
 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; or
 The rule will require additional appropriations.33
Effect of the Bill
The bill removes the permissive authority of JAPC to examine existing rules and makes such
examination mandatory to align with JAPCs mandate to examine proposed rules.
Agency Review of Rules
Background
The APA requires each agency to annually review its rules.34 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 the Bill
The bill creates a process called “repromulgation,” whereby each agency is required to review its rules
for consistency with the powers and duties granted by the agency’s enabling statutes. If, after reviewing
32 Fla. Leg. J. Rule 4.6; see also s. 120.545, F.S.
33 Section 120.545(1), F.S.
34 See 120.74, F.S.
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 the rule, the agency determines that substantive changes are not required, the agency must
repromulgate the rule to reflect the date of the review. 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 power 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, 2013, within five years after July 1, 2021; or
 If the rule was adopted after January 1, 2013, 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 DOS. The rule may not be filed for repromulgation less than 28 days before or
more than 90 days after the publication of the notice.
An agency must file a notice of repromulgation with JAPC at least 14 days before filing the rule with
DOS. JAPC must certify at the time of filing whether the agency has responded to all of JAPC’s
material or written inquiries. The bill specifies that a repromulgated rule is not subject to the hearing
requirements of the APA nor is it subject to challenge.
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 DOS and one certified copy of any material incorporated
by reference in the rule. The repromulgated rule is adopted upon its filing with DOS and becomes
effective 20 days later. DOS must then update the history of the rule in the FAC to reflect the new
effective date. The bill requires DOS to adopt rules to implement the bill’s repromulgation provision by
December 31, 2021.
If either an agency fails to meet the deadline to review the rule or the timeframe to file the rule for
repromulgation, the rule is deemed repealed. After such a failure, JAPC notifies DOS that the agency
has elected to repeal the rule. Thereafter, DOS must pu