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 Environment and Natural Resources
BILL: CS/SB 742
INTRODUCER: Environment and Natural Resources Committee and Senators Grall and Hooper
SUBJECT: Administrative Procedures
DATE: March 28, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McVaney GO Favorable
2. Barriero Rogers EN Fav/CS
3. FP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 742 amends the Administrative Procedures Act (APA). The APA contains a uniform set
of procedures that agencies must follow when exercising rulemaking authority delegated by the
Legislature. This bill amends the APA rulemaking process and provides a new mechanism for an
agency to review, revise, and repeal its rules. The bill:
 Requires each agency to review its rules for consistency with the powers and duties granted
by the agency’s enabling statutes. If no substantive changes are required, the agency must
repromulgate the rule;
 Requires agencies to prepare a statement of estimated regulatory costs (SERC) before
adopting or amending a rule, other than an emergency rule, and specifies the economic
impacts and compliance costs an agency must consider in creating a SERC. Each agency is
required to have a website where each of its SERCs may be viewed in their entirety;
 Authorizes an agency to hold workshops and to survey the public to gather information
pertinent to the creation of a SERC;
 Requires an agency, in all notices of rulemaking which include material incorporated by
reference, to submit the incorporated material in the prescribed electronic format to the
Department of State with the full text available on the Internet for free public access. A
notice of change must include a summary of substantive revisions to any material proposed
to be incorporated by reference in the proposed rule. For rules amended on or after July 1,
2023, material may not be incorporated by reference unless certain criteria are met;
 Requires annual regulatory plans to identify each rule the agency expects to develop, adopt,
or repeal for the 12-month period beginning October 1 and ending September 30;
BILL: CS/SB 742 Page 2
 Specifies that an adverse impact on small business exists if certain specific criteria are met;
 Specifies that a lower cost regulatory alternative may be submitted after a notice of proposed
rule or a notice of change;
 Requires at least seven days to pass between the publication of a notice of rule development
and a notice of proposed rule; and
 Requires the Department of Environmental Protection and each water management districts
to review and report on their permitting processes.
II. Present Situation:
The Administrative Procedure Act
The Administrative Procedure Act (APA) is contained in Chapter 120, F.S. The first version of
the APA was adopted in 1961 in an attempt to produce a comprehensive and uniform
administrative process to govern executive branch agency actions.1 The modern version of the
APA was adopted in 1974 and is amended almost every year. In addition to creating a
standardized process for agencies to enact rules and issue orders, the APA also provides citizens
the opportunity to be involved and challenge agency decisions.2
Delegation of Authority
The Legislature, as the sole branch of government having the inherent power to create laws,3
may delegate to agencies in the executive branch the quasi-legislative ability, or authority, to
create rules.4 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.5 An
agency is empowered to adopt rules if two requirements are satisfied. First, there must be a
statutory grant of rulemaking authority,6 and second, there must be a specific law to be
implemented.7 The APA8 sets forth the uniform set of procedures agencies must follow when
exercising delegated rulemaking authority.
Rulemaking Process – Filing a Notice of Rule Development
An agency begins the formal rulemaking process9 by filing a notice of rule development of a
proposed rule in the Florida Administrative Register (FAR), which must indicate the subject area
that will be addressed by the rule development and include a short, plain explanation of the
purpose and effect of the proposed rule.10 The notice may include the preliminary text of the
1
Joint Administrative Procedures Committee, A Pocket Guide to Florida’s Administrative Procedure Act, 1 (2020),
https://www.japc.state.fl.us/Documents/Publications/PocketGuideFloridaAPA.pdf (last visited Mar. 20, 2023).
2
Id.
3
FLA. CONST. art. III, s. 1; see also FLA. CONST. art. II, s. 3.
4
See Whiley v. Scott, 79 So. 3d 702, 710 (Fla. 2011).
5
Section 120.52(16), F.S.
6
“Rulemaking authority” means statutory language that explicitly authorizes or requires an agency to adopt, develop,
establish, or otherwise create any statement coming within the definition of the term “rule.” Section 120.52(17), F.S.
7
Id.
8
Chapter 120, F.S.
9
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.
10
Section 120.54(2)(a), F.S.
BILL: CS/SB 742 Page 3
proposed rule, if available, or a statement of how a person may promptly obtain, without cost, a
copy of any preliminary draft.11 Such notice is required for all rulemaking, except for rule
repeals.12
An agency may hold public workshops for purposes of rule development; however, an agency is
required to hold such workshops if requested in writing by any affected person, unless the
agency head explains in writing why a workshop is unnecessary.13
Rulemaking Process – Filing a Notice of Proposed Rule
Next, an agency must file, upon approval of the agency head, a notice of proposed rule.14 The
notice of proposed rule is published by the Department of State (DOS) in the FAR15 and must
contain the full text of the proposed rule or amendment and a summary thereof.16 Before 2012,
the FAR was published weekly, which could result in a period of at least seven days between the
publication of a notice of rule development and actual notice of the proposed rule.17 In 2012, the
Legislature 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.18
The adopting agency must file with the Joint Administrative Procedures Committee (JAPC), at
least 21 days prior to the proposed adoption date, a copy of each rule it proposes to adopt; a copy
of any material incorporated by reference in the rule; a detailed written statement of the facts and
circumstances justifying the proposed rule; a copy of any SERC that has been prepared; a
statement of the extent to which the proposed rule relates to federal standards or rules on the
same subject; and the notice of proposed rule.19
Agency Hearing
An agency must hold a hearing on the proposed rule if a person requests one within 21 days of
publication of the notice of proposed rule in the FAR.20 If the agency does not substantively
change the rule after the hearing (or if no hearing was timely requested), the agency must file a
notice with the JAPC stating that it did not make any changes to the rule.21 This notice must be
filed at least seven days before the agency can file the rule for adoption with the DOS.22
However, if a hearing is requested, the agency may, based upon the comments received at the
hearing, publish a notice of change.23 Any notice of substantive change triggers a 21-day waiting
11
Id.
12
Id.
13
Section 120.54(2)(c), F.S.
14
Section 120.54(3), F.S.
15
Section 120.55(1)(b), F.S.
16
Section 120.54(3)(a)1., F.S.
17
Chapter 2012-63, Laws of Fla.
18
Id.
19
Section 120.54(3)(a)4., F.S.
20
Section 120.54(3)(c), F.S.
21
Section 120.54(3)(d)1., F.S.
22
Id.
23
Id.
BILL: CS/SB 742 Page 4
period before the agency may file the rule for adoption with the DOS, thereby allowing further
input from the public.24
Alternatively, if a person whose substantial interests will be affected by the agency action cannot
be provided adequate opportunity to protect his or her interests in the agency hearing described
above (or otherwise), and if the agency agrees, then the agency must suspend the rulemaking
proceeding and initiate a hearing at the Division of Administrative Hearings (DOAH)25 pursuant
to ss. 120.569 and 120.57, F.S. The rulemaking proceeding cannot be resumed until this separate
hearing is concluded.26
Petition Alternative
As an alternative to the agency initiated process delineated above, a person who is regulated by
the agency or who has a substantial interest in an agency rule may petition the agency to adopt,
amend, or repeal a rule.27 The petitioner must specify the proposed rule and action requested.28
The agency can initiate rulemaking or decline to do so; however, if the agency chooses the latter,
it must issue a written statement of its reasons for the denial.29
Rule Adoption
Once an agency has completed the steps of rulemaking, the agency may file the rule for adoption
with the DOS, and the rule becomes effective 20 days later, unless a different date is indicated in
the rule.30 Most adopted rules are published in the Florida Administrative Code (FAC).31
Challenging a Rule for Invalid Delegation of Authority
An interested party may challenge the validity of a rule or a proposed rule at DOAH as an invalid
delegation of legislative authority.32 An invalid delegation of legislative authority is an action
that goes beyond the powers, functions, and duties delegated by the Legislature.33 A rule or
proposed rule is an invalid delegation of legislative authority if any of the following applies:34
 The agency has materially failed to follow the rulemaking procedures or requirements in the
APA;
 The agency has exceed its grant of rulemaking authority;
 The rule enlarges, modifies, or contravenes the specific provisions of the law implemented;
24
Id.
25
DOAH is an agency in the executive branch, administratively housed under the Department of Management Services but
not subject to its control. The DOAH employs administrative law judges who serve as neutral arbiters presiding over disputes
arising under the APA. Section 120.65, F.S.
26
Section 120.54(3)(c)2., F.S.
27
Section 120.54(7)(a), F.S.
28
Id.
29
Id.
30
Section 120.54(3)(e)6., F.S.
31
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.
32
Section 120.56(1), F.S.
33
Section 120.52(8), F.S.
34
Section 120.52(8)(a)-(f), F.S.
BILL: CS/SB 742 Page 5
 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, municipality that could
have been reduced by the adoption of less costly alternatives that substantially accomplish
the statutory objectives.
Hearing Before an Administrative Law Judge
An administrative law judge (ALJ) at the DOAH hears the rule challenge in a de novo
proceeding and, within 30 days after the hearing, makes a determination on the rule’s validity
based upon a preponderance of the evidence standard.35 The petitioner and the agency whose
rule is challenged are adverse parties.36 The ALJ’s decision constitutes final agency action,
which means an agency may not alter the decision after its issuance,37 but an agency may appeal
the decision to the District Court of Appeal where the agency maintains its headquarters.38
Statement of Estimated Regulatory Cost
A statement of estimated regulatory cost (SERC) is an agency estimate of the potential impact of
a proposed rule on the public, particularly the potential costs of complying with and
implementing the rule.39 Agencies are encouraged to prepare a SERC before adopting,
amending, or repealing any rule.40 The agency must seek public input in its creation of the
SERC. For example, in its notice of proposed rule, an agency must give notice that the public
may submit information relating to the agency SERC.41 A SERC is required if the proposed rule
will have an adverse impact on small businesses or increase regulatory costs by more than
$200,000 in the aggregate in this state within 1 year after implementation of the rule.42 If the
agency revises a rule before adoption and the revision increases the regulatory costs of the rule,
the agency must revise the SERC to reflect that alteration.43
A SERC must include:44
 A good faith estimate of the number of people and entities affected by the proposed rule;
 A good faith estimate of the cost to the agency and other governmental entities to implement
the proposed rule;
 A good faith estimate of transactional costs likely to be incurred by people, entities, and
governmental agencies for compliance; and
 An analysis of the proposed rule’s impact on small businesses, small counties, and small
municipalities.
35
Section 120.56(1), F.S.
36
Section 120.56(1)(e), F.S.
37
Id.
38
Section 120.68(2)(a), F.S.
39
Section 120.541(2), F.S.
40
Section 120.54(3)(b)1., F.S.
41
Section 120.54(3)(a)1., F.S.
42
Sections 120.54(3)(b) and 120.541(1)(b), F.S.
43
Section 120.541(1)(c), F.S.
44
Section 120.541(2)(b)-(e), F.S.
BILL: CS/SB 742 Page 6
The SERC must also include an economic analysis on the likelihood that the proposed rule will
have an adverse impact in excess of $1 million within the first five years after implementation
on:45
 Economic growth, private-sector job creation or employment, or private-sector investment;
 Business competitiveness, productivity, or innovation; or
 Regulatory costs, including any transactional costs.
If the economic analysis results in an adverse impact or regulatory costs in excess of $1 million
within five years after implementation of the rule, then the rule must be ratified by the
Legislature in order to take effect.46
An agency’s failure to prepare an SERC can be raised in a proceeding at the DOAH to invalidate
a rule as an invalid exercise of delegated legislative authority, if it is raised within one year after
the effective date of the rule and is raised by a person whose substantial interests are affected by
the regulatory costs of the rule.47
Small Business Impact in Rulemaking
Each agency, before the adoption, amendment, or repeal of a rule, must consider the impact of
the rule on small businesses.48 If the agency determines that the proposed action will affect small
businesses, the agency must send written notice to the rules ombudsman49 in the Executive
Office of the Governor at least 28 days before the intended action.50 The agency must adopt the
regulatory alternatives that the rules ombudsman offers if the alternatives are feasible and
consistent with the stated objectives of the proposed rule, and would reduce the impact on small
businesses.51
If the agency does not adopt the alternatives offered, before rule adoption or amendment, the
agency must file a detailed written statement with the JAPC explaining the reasons for failure to
adopt such alternatives.52
Lower Cost Regulatory Alternat