HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/CS/HB 713 Administrative Procedures and Permitting Process Review
SPONSOR(S): State Affairs Committee, Agriculture, Conservation & Resiliency Subcommittee, Constitutional
Rights, Rule of Law & Government Operations Subcommittee, McFarland
TIED BILLS: IDEN./SIM. BILLS: CS/SB 742
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Constitutional Rights, Rule of Law & 11 Y, 2 N, As CS Wagoner Miller
Government Operations Subcommittee
2) Agriculture, Conservation & Resiliency 17 Y, 0 N, As CS Gawin Moore
Subcommittee
3) State Affairs Committee 11 Y, 6 N, As CS Wagoner Williamson
SUMMARY ANALYSIS
The Administrative Procedure Act (APA) sets forth a uniform set of procedures agencies must follow when
exercising delegated rulemaking authority. A “rule” is an agency statement of general applicability that
interprets, implements, or prescribes law or policy, including the procedure and practice requirements of an
agency as well as certain types of forms. Executive branch agencies do not have inherent rulemaking
authority.
The bill amends the APA to increase transparency in rulemaking, provides a process for agencies to reduce
unnecessary rules, requires certain agencies to review coastal permitting and other permitting processes, and
ensures that regulatory cost impacts are considered for every rule. Specifically, the bill:
 Requires each agency to review its rules for consistency with the powers and duties granted by the
agency’s enabling statutes. If, after reviewing a rule, the agency determines substantive changes to
update a rule are not required, the agency must repromulgate the rule.
 Authorizes agencies to hold workshops to gather information to aid in the preparation of the SERC.
 Requires an agency, in all notices of rulemaking that include material incorporated by reference, to
submit the incorporated material in the prescribed electronic format to the Department of State with the
full text available for free public access through an electronic hyperlink.
 Requires the agency annual regulatory plan to identify and describe each rule by rule number or
proposed rule number that the agency expects to develop, adopt, or repeal for the 12-month period
beginning October 1 and ending September 30, and to include a declaration by the agency head and
general counsel.
 Allows submitting a lower cost regulatory alternative after publication of a notice of change.
 Defines the term “technical change” and requires documenting technical changes in a rule’s history.
 Requires at least seven days between the publications of a notice of rule development and of a notice
of proposed rule.
 Requires the Department of Environmental Protection and each water management district to review
and report on their permitting processes.
The bill may have a negative fiscal impact on state government. See Fiscal Comments.
This docum ent 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
Present Situation
The Legislature, as the sole branch of government with the inherent power to create laws,1 may
delegate to executive branch agencies and certain political subdivisions the quasi-legislative authority
to create rules.2 The Administrative Procedure Act (APA)3 sets forth a uniform set of procedures
agencies 4 must follow when exercising delegated rulemaking authority. A “rule” is an agency statement
of general applicability that interprets, implements, or prescribes law or policy, including the procedure
and practice requirements of an agency as well as certain types of forms.5 Rulemaking authority is
delegated by the Legislature through statute and authorizes agencies to “adopt, develop, establish, or
otherwise create”6 rules. The Legislature delegates rulemaking authority where the given agency has
“expertise in a particular area for which they are charged with oversight.”7 Agencies do not have the
discretion in and of themselves to engage in rulemaking.8 To adopt a rule, an agency must have
authority both to make rules and implement a specific law.9 The grant of rulemaking authority itself
need not be detailed. The specific statute being interpreted or implemented through rulemaking must
provide specific standards and guidelines to preclude the administrative agency from exercising
unbridled discretion in creating policy or applying the law.10
Whether creating or amending a rule, an agency begins the formal rulemaking process 11 by publishing
a notice of rule development in the Florida Administrative Register (FAR) indicating the subject area to
be addressed and including a short, plain explanation of the purpose and effect of the rule. 12 The notice
may include the preliminary text of the proposed rule, but it is not necessary. An agency may hold
public workshops for rule development but must hold such workshops, including in various regions of
the state, if so requested in writing by any affected person. 13
After publishing the notice of rule development, and upon approval by the agency head, an agency
must publish a notice of proposed rule.14 A rule cannot be amended by reference only.15 The notice is
1 Art. III, s. 1, FLA . CONST.; see also art. II, s. 3, FLA . CONST.
2 See Whiley v. Scott, 79 So. 3d 702, 710 (Fla. 2011), stating “[r]ulemaking is a derivative of lawmaking.”
3 Ch. 120, F.S.
4 “Agency” includes the Governor; each state officer and state department, and each departmental unit described in
s. 20.04; the Board of Governors of the State University System; the Commission on Ethics; the Fish and Wildlife
Conservation Commission; a regional water supply authority; a regional planning agency; a multicounty special district,
but only if a majority of its governing board is comprised of nonelected persons; educational units; and each entity
described in chs. 163, 373, 380, and 582, F.S., and s. 186.504, F.S., each officer and governmental entity in the state
having statewide jurisdiction or jurisdiction in more than one county , and each officer and governmental entity with
jurisdiction within only one county but made subject to the APA by general or special law or judicial decision. The
definition excludes municipalities and other specifically identified governmental entities. S. 120.52(1), F.S.
5 S. 120.52(16), F.S.
6 S. 120.52(17), F.S.
7 Whiley v. Scott, 79 So. 3d 702, 711 (Fla. 2011).
8 S. 120.54(1)(a), F.S.
9 Ss. 120.52(8) and 120.536(1), F.S.
10 Sloban v. Florida Board of Pharmacy, 982 So. 2d 26, 29-30 (Fla. 1st DCA 2008); Board of Trustees of the Internal
Improvement Trust Fund v. Day Cruise Association, Inc., 794 So. 2d 696, 704 (Fla. 1st DCA 2001).
11 Alternatively, a person regulated by an agency or having substantial interest in an agency rule may petition the agency
to adopt, amend, or repeal a rule. Section 120.54(7), F.S.
12 S. 120.54(2), F.S.
13 S. 120.54(2)(c), F.S.
14 S. 120.54(3)(a)1., F.S.
15 S. 120.54(1)(i)4., F.S.
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 published by the Department of State (DOS) in the FAR 16 and must contain both the full text of the
proposed rule or amendment and a summary.17
After publishing a notice of proposed rule, an agency must hold a hearing if requested within 21 days
from the date of publication.18 After the hearing is held or the time for requesting a hearing has expired,
if the agency does not change the rule, other than a technical change, the agency must file a notice
stating no changes have been made to the rule with the Joint Administrative Procedures Committee
(JAPC) at least seven days before filing the rule for adoption. 19 However, if a hearing is requested, the
agency may, based upon the comments received at the hearing, publish a notice of change.20
As an alternative to the agency initiated rulemaking process delineated above, a person regulated by
the agency or having a substantial interest in an agency rule may petition the agency to adopt, amend,
or repeal a rule. The petitioner must specify the proposed rule and action requested. The agency may
either initiate rulemaking or decline to do so; however, if the agency chooses the latter it must issue a
written statement of the reasons for the denial.21
Once an agency has completed the steps of rulemaking, the agency may file the rule for adoption with
DOS and the rule becomes effective 20 days later, on a later date specified in the notice, on a date
specified in statute, or upon ratification by the Legislature.22 Most adopted rules are published in the
Florida Administrative Code (FAC).23
The validity of a rule or a proposed rule may be challenged at the Division of Administrative Hearings
(DOAH)24 as an invalid delegation of legislative authority.25 An invalid delegation of legislative authority
is an action that goes beyond the powers, functions, and duties delegated by the Legislature. 26 A rule
or proposed rule is an invalid delegation of legislative authority if:
 The agency has materially failed to follow the rulemaking procedures in the APA;
 The agency has exceeded its grant of rulemaking authority;
 The rule enlarges, modifies, or contravenes the specific provisions of the law implemented;
 The rule is vague, fails to establish adequate standards for agency decisions, or vests the
agency with unbridled discretion;
 The rule is arbitrary or capricious; or
 The rule imposes regulatory costs on the regulated person, county, or municipality that could
have been reduced by adopting less costly alternatives that substantially accomplish the
statutory objectives.27
An administrative law judge (ALJ) at DOAH hears the rule challenge in a de novo proceeding and,
within 30 days of the hearing, renders a final order determining the rule’s validity based upon a
16 S. 120.55(1)(b), F.S. Prior to 2012, the FAR was published weekly, resulting in a period of at least seven days between
the publication of a notice of rule development and a notice of proposed rule. In 2012, the Legislature passed HB 541
(2012) that changed the FAR from a weekly publication to a publication that is continuously revised and, as a result,
eliminated the seven day period between the two notices. See ch. 2012-63, Laws of Fla.
17 S. 120.54(3)(a)1., F.S.
18 S. 120.54(3)(c), F.S.
19 S. 120.54(3)(d)1., F.S.
20 Id.
21 S. 120.54(7)(a), F.S.
22 S. 120.54(3)(e)6., F.S.
23 Rules general in form but applicable to only one school district, community college district, or county, or a part thereof,
or a state university rules relating to internal personnel or business and finance are not published in the FAC. Forms are
not published in the FAC. S. 120.55(1)(a), F.S. Emergency rules are also not published in the FAC.
24 DOAH is an agency in the executive branch, administratively housed within the Department of Management Services
but not subject to its control. DOAH employs administrative law judges who serve as neutral arbiters presiding over
disputes arising under the APA. S. 120.65, F.S.
25 S.120.56(1), F.S.
26 S.120.52(8), F.S.
27 S. 120.52(8)(a)-(f), F.S.
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 preponderance of the evidence standard.28 The agency may not alter the ALJ’s decision but may
appeal the decision to the District Court of Appeal where the agency maintains its headquarters. 29
Effect of the Bill
The bill requires a notice of proposed rule to be filed within 12 months of publishing a notice of rule
development. The bill requires that a proposed rule be withdrawn if, after issuing a notice of proposed
rule, the agency fails to adopt it within the APA prescribed timeframes. If an agency exceeds the time
allowed to adopt the rule, the bill requires JAPC to notify the agency of the failure. If the agency does
not withdraw the rule within 30 days following the notice, JAPC must notify DOS that the date for
adoption of the rule has expired. DOS must then publish a notice of withdrawal of the proposed rule.
The bill requires an agency to file a copy of a petition to initiate rulemaking with JAPC. The bill also
defines the term “technical change” to mean a change limited to correcting grammatical, typographical,
and similar errors not affecting the substance of the rule.
Joint Administrative Procedures Committee
Present Situation
JAPC is a standing committee of the Legislature established by joint rule and created to maintain a
continuous review of administrative rules, the statutory authority upon which those rules are based, and
the administrative rulemaking process.30JAPC may examine existing rules and must examine each
proposed rule to determine whether the:
 Rule is an invalid exercise of delegated legislative authority;
 Statutory authority for the rule has been repealed;
 Rule reiterates or paraphrases statutory material;
 Rule is in proper form;
 Notice given prior to adoption was sufficient;
 Rule is consistent with expressed legislative intent;
 Rule is necessary to accomplish the apparent or expressed objectives of the specific provision
of law that the rule implements;
 Rule is a reasonable implementation of the law as it affects the convenience of the general
public or persons particularly affected by the rule;
 Rule could be made less complex or more easily comprehensible to the general public;
 Rule’s statement of estimated regulatory cost (SERC) complies with the requirements of the
APA and whether the rule imposes regulatory costs on the regulated person, county, or
municipality that could be reduced by the adoption of less costly alternatives that substantially
accomplish the statutory objectives; or
 Rule will require additional appropriations.31
28 S. 120.56(1)(e), F.S.
29 S. 120.68(2)(a), F.S.
30 Fla. Leg. J. Rule 4.6; see also s. 120.545, F.S.
31 S. 120.545(1), F.S.
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 Effect of the Bill
The bill requires JAPC to examine existing rules to align with its mandate to examine proposed rules.
Agency Review of Rules
Present Situation
The APA requires each agency to review its rules annually.32 Rules generally do not expire or sunset
and many agencies have adopted rules that have not been updated in years.
Effect of the Bill
The bill creates a process called “repromulgation,” whereby each agency is required to review its rules
for consistency with the powers and duties granted by the agency’s enabling statutes. If the agency
determines that substantive changes are not required after reviewing the rule, the agency must
repromulgate the rule to reflect the date of the review. The bill defines “repromulgation” to mean the
publication and adoption of an existing rule following an agency’s review of the rule for consistency with
the power and duties granted by its enabling statutes. Each agency must review its rules according to
the following schedule:
 If the rule was adopted on or after January 1, 2019, within five years after its effective date, and
every five years thereafter.
 For any rule existing as of July 1, 2023, no later than December 31, 2028.
No later than September 1, 2023, and annually thereafter, the bill requires JAPC to provide each
agency a list of existing rules and their effective dates for review in the next calendar year.
An agency, before repromulgation of a rule and upon approval of its agency head, must:
 Publish a notice of repromulgation in the FAR, which is not required to include the text of the
rule; and
 File the rule with DOS. The rule may not be filed for repromulgation less than 28 days before or
more than 90 days after the publication of the notice.
An agency must file a notice of repromulgation with JAPC at least 14 days before filing the rule with
DOS. JAPC must certify at the time of filing whether the agency has responded to all of JAPC’s
material or written inquiries. Under the bill, the APA hearing requirements do not apply to
repromulgation of a rule33 and a repromulgated rule is not subject to challenge as a proposed rule.34
The bill requires each agency, upon approval of the agency head, to submit electronically a certified
copy of the repromulgated rule it proposes to adopt with DOS and one certified copy of any material
incorporated by reference in the rule. The repromulgated rule is adopted upon its filing with DOS and
becomes effective 20 days later. DOS must then update the history of the rule in the FAC to refl