Legislative Rule Ratification: Lessons from the First Four Years
On November 17, 2010, the legislature voted to override the governor’s veto of House Bill 1565, thereby enacting several changes to the rulemaking procedures in F.S. Ch.120, the Administrative Procedure Act (APA).1 One provision received a great deal of attention: the creation of F.S. §120.541(3), which requires legislative ratification of agency rules having adverse economic impacts or regulatory costs exceeding the threshold established by that same legislation in §120.541(2)(a).2
This article examines the implementation of legislative rule ratification since the enactment of the new law. In addition to a brief review of the development and enactment of ratification legislation, this article will provide information, insights, and practical guidance helpful to applying the ratification requirement in both rulemaking and rule challenges. As will be discussed, the keys to successful ratification are early and accurate identification of the need for ratification, prompt engagement on the issue with both the House and the Senate, and continued attention through passage of a ratification bill and its consideration by the governor.
Legislative Application of the Ratification Requirement
Following the enactment of §120.541(3), the Florida House of Representatives established a basic procedure for legislative ratification to be managed by the House Rulemaking and Regulation Subcommittee (rulemaking subcommittee).3 The procedure had to reflect a reliable interpretation and application of §120.541(3) while seeking to maintain the status of a rule after ratification as a rule under the APA. The procedure included the means by which the legislature would act on ratification requests and a determination of how agencies should submit such requests.
• Preliminary Interpretation of §120.541(3) — As codified in F.S. §120.541(3), the ratification requirement reads:
(3) If the adverse impact or regulatory costs of the rule exceed any of the criteria established in paragraph (2)(a), the rule shall be submitted to the President of the Senate and Speaker of the House of Representatives no later than 30 days prior to the next regular legislative session, and the rule may not take effect until it is ratified by the [l]egislature.
Unlike past ratification statutes applicable to particular rulemaking exercises,4 §120.541(3) applies broadly to any rule of an agency if the economic impact of the rule exceeds a specific threshold. Essentially, §120.54(3) makes ratification a condition precedent for such a rule to take effect. However, this requirement does not alter the definition of “rule,” F.S. §120.52(16),5 the substantive authority of any agency to make rules, or the APA rulemaking procedure. The last step in adopting a “rule” under the APA rulemaking procedure, F.S. §120.54, is filing the rule for adoption with the secretary of state. For this reason, the House requires a rule to be filed for adoption before being considered for ratification.
Under §120.541(3), only rules that exceed the statutory economic impact and regulatory cost threshold must be submitted to the legislature for ratification. Ch. 2010-279, Laws of Florida, also added a requirement that agencies must prepare a statement of estimated regulatory costs (SERC) if a rule is expected to increase regulatory costs by more than $200,000 within one year of implementation. Each SERC was also required to include an economic analysis showing whether the proposed rule is likely to have, within the first five years after implementation of the rule, adverse impacts of more than $1 million on any of three categories of factors: economic growth, employment, or investment; business competitiveness; or regulatory and compliance costs.6 Section 120.541(3) incorporates this million-dollar impact as the threshold for ratification. Consequently, a SERC should be a primary indicator whether a rule likely requires ratification.
• Review Procedure in the Florida House of Representatives — Section 120.541(3) requires agencies to initiate the ratification process by submitting separate requests to the Senate president and House speaker. From 2011-2014, the House speaker’s office forwarded each ratification request to the rulemaking subcommittee for initial review. After scrutiny of the request, rulemaking history, and supporting documents, the ratification request was circulated to the House substantive committee(s) with oversight responsibility for the subject matter of the rule. After such consultation, the rulemaking subcommittee chair would make an informal recommendation on whether and how to proceed on the request. Based on all committees’ input, the speaker would assign formal consideration of the ratification request to appropriate committees.
• The Form of Rule Ratification Legislation — The statutory phrase “ratified by the legislature” might have been susceptible to various interpretations. Clearly, the legislature may ratify some things by expressing its will in a concurrent or joint resolution rather than by enacting a general law.7 Nonetheless, the creation of general law is governed by the constitutional process for enacting bills into law.8 Valid administrative rules have the general effect of law.9 It follows that legislative ratification under §120.541(3) constitutes an act having that effect.10 Because of this clearly intended effect, the House determined to utilize passage of a general bill in order to ratify any rules submitted under §120.541(3).
A rule unconditionally ratified by enactment of a law may be treated as a statute, amendable thereafter only by the legislature. This likelihood is highest if the substance of the rule is incorporated in the enactment.11 A related concern was that unconditional ratification of a rule could have the effect of curing all rulemaking defects and depriving interested parties of their rights under the APA to challenge the validity of a rule. To avoid converting ratified rules into statutes and to preserve all substantive and procedural limitations on rulemaking, the House determined that each ratification bill should be drawn narrowly and precisely, expressly limited to the legal determination that the rule may take effect, in satisfaction of the condition of §120.541(3) on effectiveness.
After consultation with a number of agency general counsels and bill drafting experts, a model template was developed for a general bill limited in scope and purpose to ratifying a specific rule or rules. The first section specified the rule(s) being ratified, identified by the F.A.C. rule number.12 The second section expressed legislative intent limiting the bill’s legal effect only to ratifying the rule, expressly disclaiming any alteration of any delegated rulemaking authority or of the status of the adopted rule under the APA, and expressly disclaiming any cure of any rulemaking procedural defect or preemption of any challenge to the rule.13 The incorporated conditions are intended to leave the rule in the exact same legal circumstances as if adopted without a ratification requirement. The model template also directs that the ratification law not be codified in Florida statutes. This is to reinforce that a ratification law is not a continuing law, but a one-time limited validation of a rule whose continuance depends on the provisions of the APA and the substantive law authorizing the rulemaking.
From 2011 through the 2014 regular session, the legislature consistently used the recommended template, avoiding both enacting the substance of any rule into law or inadvertently validating rules that are otherwise invalid under the APA. The model template has a procedural benefit of sharply restricting substantive legislative amendments allowable under the germanity practice in both legislative chambers. Freed from concern with altering substantive law, the legislature has focused its ratification attention on the policy considerations inherent in the enactment of economic impact as the statutory threshold for ratification.
Rules Impacted by F.S. §120.541(3) to May 2014
From January 2011 through May 2014, the speaker of the House received a total of 36 valid ratification requests14 out of a total of 8,535 rules filed for adoption with DOS.15
• Ratifications Requested — For the 2011 regular session, the House received 13 ratification requests, but only seven were deemed actionable.16 Three of these requests, pertaining to pain management prescription regulations, were assigned to appropriate House health policy committees and became moot when the legislature enacted supervening substantive changes to the law being implemented.17 Four requests were revisions to the respective comprehensive plans for the City of Marathon, Village of Islamorada, and Monroe County, adopted as rules by the Administration Commission18 on April 11, 2011,19 and submitted to the legislature on April 12, 2011. These were ratified in Ch. 2011-179, Laws of Florida.
In 2012, two ratification requests were submitted to the House speaker.20 A Department of Agriculture and Consumer Services rule relating to fire safety standards for liquefied petroleum gas storage, handling, piping, and appliances21 was ratified in Ch. 2012-101, Laws of Fla. The legislature did not consider a Department of Financial Services (DFS) rule adopting a workers’ compensation provider reimbursement manual.22
For the 2013 regular session, the Department of Environmental Protection (DEP) requested ratification of 18 rules establishing Total Maximum Daily Load (TMDL) limits for particular pollutants in particular water bodies. late 2012, DEP anticipated thousands of such rules would be adopted in the near future to establish separate TMDLs for every Florida water body with hundreds likely to require ratification. Cooperative analysis and research between DEP and the House led to the final 2013 ratification requests, but also to legislation exempting the bulk of future TMDL rules from ratification. The 18 adopted TMDL rules were ratified in Ch. 2013-156, Laws of Fla.23 While no additional rule ratifications were requested prior to the 2013 regular session,24 H.B. 1165 (2013), was filed by a House member to ratify the DFS workers’ comp rule for which ratification had been requested in 2012. That bill was not considered.
In 2014, nine new ratification requests were received by the House25 resulting in four different ratification laws. Two DEP rules26 relating to contracting under a petroleum pollution cleanup program were ratified in Ch. 2014-149, Laws of Fla. One Financial Services Commission rule for the Office of Insurance Regulation, relating to statistical information gathering from title insurance agencies and underwriters,27 was ratified in Ch. 2014-152, Laws of Fla. One Department of Health rule relating to trauma center quality improvement programs28 was ratified in Ch. 2014-153, Laws of Fla. Five Department of Juvenile Justice (DJJ) rules relating to mandatory forms and documentation for medical services provided to youth in DJJ facilities and programs29 were ratified in Ch. 2014-222, Laws of Fla. A renewed request to ratify the pending 2011 rule adopting the workers’ comp provider reimbursement manual was submitted by DFS to the House speaker, but the legislature did not consider legislation ratifying the rule.30
• Exemptions from Ratification — The law creating §120.541(3) exempted rules adopting certain federal standards31 from ratification.32 Since enactment of the ratification requirements, a number of other exemptions have been considered and some enacted.
In the 2011 regular session, the following types of rulemaking were exempted categorically33 from ratification:
• Changes to the Florida Building Code and the Florida Fire Prevention Code.
• Adjustments to turnpike tolls by the Department of Transportation.
• Rules implementing the 2011 Student Success Act.34
As noted above, in 2013, the legislature amended F.S. §403.067(6)(c) to exempt rulemaking to establish TMDLs from legislative ratification.35 Also in 2013, rules establishing the format for notices of estimated premium impact of the federal Patient Protection and Affordable Care Act (ACA)36 Were exempted from ratification.
In addition to categorical exemptions from ratification, DEP has found it advisable to seek exemptions of particular proposed rules from ratification in each of the past three years. In each situation, pending or potential pre-adoption rule challenges could not be resolved in time for the legislature to ratify rules after filing for adoption, but public policy would be frustrated by delaying ratification until a subsequent session. These exemptions include:
• Proposed F.A.C. Rules 62-302.200, 62-302.530, 62.302.531, 62.302.532, 62-302.800, 62-303.150, 62-303.200, 62-303.310, 62-303.330, 62-303.350, 62-303.351, 62-303.352, 62-57 303.353, 62-303.354, 62-303.390, 62-303.420, 62-303.430, 62-58 303.450, 62-303.710, and 62-303.720,37 pertaining to nutrient pollution in Florida waters, exempted in Ch. 2012-3, Laws of Fla.
• Proposed F.A.C.R. 62-302.300(19),38 and other rules39 implementing Florida’s Numeric Nutrient Standards, exempted in Ch. 2013-71, Laws of Fla.
• Proposed F.A.C.R. 62-42.300,40 establishing minimum water flows and levels (MFLs) for the lower Santa Fe and Ichetucknee rivers, exempted in Ch. 2014-155, Laws of Fla.
As was provided in the model template legislation for rule ratification, such specific exemptions typically are not codified in the Florida statutes.
Analysis and Practical Considerations
From the legislative experience with rule development and economic analyses over the past four years, some practical guidance may be deduced for practitioners representing administrative agencies or parties interested in proposed rules. Substantial involvement in rule development, thorough SERC preparation, and early engagement with legislative staff are keys to the process. While each chamber of the legislature may alter its process from time to time, the following reflects the current practice in the Florida House of Representatives.
• Thorough SERC Preparation — Even before initiating formal rule development, agencies should begin developing any information relevant to SERC analysis of the rule contemplated. Initial analysis of the economic and other impacts of the proposed rule controls whether a SERC is mandatory41 and, if so, such information will assist the agency in meeting the statutory SERC requirements. Once the need for a new or amended rule is apparent, interested parties should consider potential adverse impacts and regulatory costs in addition to the substance of a new or revised policy. Identifying compliance issues and economic impacts enables interested parties to provide the agency with timely recommendations about factors to include as a SERC is developed. When the notice of rule development is published, all parties should review and refine their evaluations of those factors the SERC should include.
As described earlier, the 2010 legislation added requirements for SERC preparation.42 In 2013, the rulemaking subcommittee learned that agencies may have difficulty identifying and quantifying some relevant basic economic and cost factors required to develop a thorough SERC. Due to the ratification requirement, such difficulty might leave a rule subject to invalidation if an agency underestimates the economic impact, fails to develop an accurate SERC, or attempts to enforce the rule without required ratification. During 2014 committee meetings, the rulemaking subcommittee, drawing on the experiences of agencies, the business community, and affected parties, recommended improved guidance for agencies preparing SERCs. The subcommittee’s recommendations identified many factors impacting affected parties’ rule compliance costs and indirect economic impacts as well as factors relevant to an agency’s implementation costs. A bill codifying those recommendations, H.B. 7107 (2014),43 was passed by the House but not considered by the full Senate. Though not mandated by statute, many agencies and private parties, if lacking better analytical tools, would be well advised to consider the subcommittee’s recommendations44 when analyzing the direct and indirect impacts of proposed rules or adopted rules challenged for want of ratification.
• Preliminary Communication with the Legislature — Once the SERC is developed to the point of showing that the rule likely will require ratification, the agency should discuss the potential ratification with pertinent legislative offices. The agency should confer with the substantive committees in both chambers responsible for overseeing the agency and the subject matter of the rule, as well as any committee exercising general oversight of rule ratification. The agency should advise such legislative offices of the following: the date the rule is likely to be filed for adoption; the date the ratification request likely will be ready for formal submission to the presiding officers;45 and whether the rule involves any controversy, complexity, or other concerns that may delay ratification.
After submitting a ratification request, the agency should maintain regular contact with any legislative office handling the request. Such contact is significant not only to keep informed the agency personnel responsible for rulemaking, but also to address promptly any issues and concerns that may arise regarding the ratification request. Maintaining regular contact also has the practical effect of reminding relevant committees that the agency still seeks to ratify the rule as soon as possible. Both agency personnel and industry and trade representatives have been helpful in explaining a rule and the benefits or detriments of ratification during legislative consideration. If a bill is heard in committee, participation in the committee hearing is usually encouraged and beneficial.
• Exemptions from Ratification — As with ratification requests, if an agency seeks exemption from ratification for one or more specific rules, or in exceptional circumstances from an entire category of rulemaking, communication should begin early with the interested legislative committees. If an exemption is sought, the agency should be prepared to provide all relevant information on the rule or the rulemaking category. Previous successful exemption requests demonstrated comprehensive statutory control over the rule’s subject matter, including detailed guidance for agency rulemaking, or exceptional direct engagement by the legislature, another oversight body, or the public in developing and revising the public policy advanced by the rule. Such factors may render the unique oversight provided by ratification unnecessary or otherwise superfluous.
• Formal Ratification Request Submission and Review — Upon completion of rulemaking, if the agency believes the rule’s economic and cost impacts exceed the ratification threshold, it should promptly request ratification. Construed consistently with the rulemaking publication and filing requirements of the APA, F.S. §120.54(3)(a),(d), and (e), the ratification requirement requires submitting the full text of the rule filed for adoption to each of the presiding officers along with the agency’s request for the rule to be ratified at least 30 days prior to the next regular legislative session. Beyond the statutory requirement, agencies considering making a ratification request have been advised by the House to transmit the following with each ratification request to the speaker: the text of the adopted rule; a copy of the rule certification materials filed with DOS at the time the rule is filed for adoption; and a complete copy of the SERC showing the rule meets the ratification threshold.46 To promote earlier consideration, a copy of the complete transmittal to the presiding officer should be delivered simultaneously to any committee likely to consider the rule’s ratification.
• Introduction and Consideration of Legislation — All of the ratification bills that advanced in the House from 2011 to 2014 were introduced originally as proposed subcommittee bills47 by the rulemaking subcommittee and were drafted using the previously approved bill template. However, a ratification bill may also be filed by an individual member or as a proposed committee bill of another committee. Under the House rules, the speaker determines which committee is assigned responsibility for any member bill filed in the House and which committee may file a proposed committee bill on a particular subject. Due to the oversight nature of ratification, the proposed committee bill has proven the most functional procedure to initiate rule ratification in the House. The regular legislative order has governed consideration of ratification legislation once initiated.48 Thus, agency staff and others interested in the ratification should engage with the appropriate committees as a ratification bill advances.
As with any other bill, there are many reasons a ratification request may not be acted upon during the legislative session. If a request is not acted upon, the agency should inquire with the committee(s) in which the request was considered or reviewed, determine if there was a problem with the rule, and, if so, develop possible solutions to resolve the concern. One solution may be to seek separate legislation amending a substantive statute. If the problem is in the wording of the rule, the agency should promptly consider withdrawing the rule as permitted by the APA49 and initiating rulemaking that resolves the concern (if possible). Such rulemaking ought to be completed in time to adopt the revised rule and submit it for ratification before the next regular legislative session. In addition, an agency may choose to let a ratification request remain pending until the next legislative session, renewing the request during the legislative interim.
• Potential Consequences for Failing to Seek Rule Ratification — Strictly construing the ratification requirement as a mandatory contingency for a rule’s effectiveness, all parties should remember that no rule exceeding the statutory threshold is enforceable until ratified. If the agency implements such a rule without ratification, an affected party may later challenge the rule directly or defend against an enforcement or disciplinary action based on the rule. The affected party may succeed in the rule challenge by proving the rule has adverse impact or increases costs exceeding the criteria of the statute, and the rule was never ratified. Whether or not appealed, a DOAH decision invalidating an otherwise valid rule for lack of ratification should precipitate a prompt ratification request unless the agency intends to withdraw the rule. If the agency prevails on appeal, a ratification request would become moot.
Conclusion
While the legislature has acted with due deliberation on ratification requests since the enactment of §120.541(3), any legislative request is subject to the political processes of a legislative session. However, in the past four years, legislative rule ratification has become routine. Few rules adopted since enactment of §120.541(3) have required legislative ratification. For valid requests, the legislature has moved with dispatch either to ratify the rule submitted or determine not to proceed. Because the SERC has taken on increased importance in the rulemaking process, agencies should give thorough consideration to all relevant economic factors, including recommended factors identified by the House in H.B. 7107 (2014). Finally, once a ratification or exemption request is submitted, agencies and interested parties should communicate regularly with the legislative committees handling the request.
1 Ch. 2010-279, Laws of Fla.
2 Fla. Stat. §120.541(2)(a) requires a statement of estimated regulatory cost to show whether a rule will impose regulatory costs or adverse economic impacts in excess of “a million dollars within five years after the implementation of the rule.”
3 From 2012-2014, the relevant House subcommittee was named the Rulemaking Oversight and Repeal Subcommittee.
4 Fla. Stat. §373.421(1) (2013); Fla. Stat. §403.817 (1983).
5 “‘Rule’ means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include (a) internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum; (b) legal memoranda or opinions issued to an agency by the [a]ttorney [g]eneral or agency legal opinions prior to their use in connection with an agency action; (c) the preparation or modification of 1) agency budgets; 2) statements, memoranda, or instructions to state agencies issued by the [c]hief [f]inancial [o]fficer or [c]omptroller as chief fiscal officer of the state and relating or pertaining to claims for payment submitted by state agencies to the [c]hief [f]inancial [o]fficer or [c]omptroller; 3) contractual provisions reached as a result of collective bargaining; 4) memoranda issued by the [e]xecutive [o]ffice of the [g]overnor relating to information resources management.”
6 Ch. 2010-279, §2, Laws of Fla., amending Fla. Stat. §120.541. Previously, a SERC was required when a rule had an adverse impact on small business. Fla. Stat. §120.54(3)(b); Fla. Stat. §120.541(1)(b).
7 “Concurrent resolutions originating in the House shall present only questions pertaining to extension of a session, enactment of joint rules, ratification of federal constitutional amendments, communications with the judiciary, actions taken pursuant to federal law not requiring gubernatorial approval, or other exclusively legislative matters.” Florida House of Representatives, Rule 5.9, The Rules (2d ed. 2014). This rule constitutes an acknowledgement of the House that some legally binding legislative actions do not require presentment to the governor for approval or veto. In addition to such acts, there are constitutional provisions for enactment of legislative redistricting and submitting constitutional amendments to the voters by joint resolution without presentment to the governor. Fla. Const. art. III, §16(a); Fla. Const. art. XI, §1.
8 Fla. Const. art. III, §§ 6, 7, 8. Section 6 governs the form of laws and amendments to laws, limiting each enactment to “one subject and matter properly connected therewith,” §7 governs passage of bills requiring a recorded majority vote of each house of the legislature, and §8 governs executive approval and veto.
9 Coventry First, LLC v. State of Florida, Office of Insurance Regulation, 38 So. 3d 200 (Fla. 1st DCA 2010), quoting McDonald v. Dep’t of Banking & Fin., 346 So. 2d 569, 581 (Fla. 1st DCA 1977).
10 Fla. Stat. §120.54(3)(e)6 clearly states a rule requiring ratification only goes into effect once ratified.
11 Existing legal precedent held that if the legislature incorporated the substance of a rule or rule amendment in statute, the agency’s policy ceased to be a rule and became general law. Occidental Chemical Agricultural Products, Inc. v. Dept. of Environmental Regulation, 501 So. 2d 674 (Fla. 1st DCA 1987).
12 Subsequent to 2011, the agency-drafted title of the rule was also noted in ratification bills.
13 See Ch. 2011-179, Laws of Fla. for an example of the model text for §2 of the bill.
14 As discussed above, a ratification request is valid if the rule is filed for adoption and meets the economic impact threshold of the statute.
15 This total represents 2,259 rules filed for adoption in 2011; 2,760 in 2012; 2,561 in 2013; and 955 in January-May 2014. Florida Department of State, Florida Administrative Code and Florida Administrative Register Search, https://www.flrules.org/gateway/search.asp.
16 Of the remaining six, four were not rules filed for adoption, one was accompanied by no evidence showing the rule met the threshold for ratification
[64B8-9.0131(2)(n)], and one was withdrawn because the rule had already gone into effect due to its lower economic impact [64B8-9.0132]. House Rulemaking Oversight and Repeal Subcommittee , 2011 Session House Rule Ratification Requests (Jan. 9, 2012). The unnecessary 2011 requests reflected initial agency uncertainty over application of the ratification law.
17 Ch. 2011-141, Laws of Fla. The three rules were 64B8-9.0131 (filed for adoption on Nov. 8, 2010, notice of withdrawal no. 10326734 published Aug. 26, 2011); 64B8-9.0134 (filed for adoption on March 25, 2011, notice of withdrawal no. 10326637 published Aug. 26, 2011); and 64B15-14.0054 (filed for adoption on March 25, 2011, notice of withdrawal no. 10326928 published Aug. 26, 2011).
18 Fla. Stat. §380.0552(9)(b) (2013).
19 F.A.C.R. 28-18.100; F.A.C.R. 28-18.400; F.A.C.R. 28-19.310; F.A.C.R. 28-20.140,
20 House Rulemaking Oversight and Repeal Subcommittee , 2012 Session House Rule Ratification Requests (March 12, 2012).
21 F.A.C.R. 5F-11.002.
22 F.A.C.R. 69L-7.020. As of October 7, 2014, the rule was still pending ratification. 40 Fla. Admin. Reg. , No. 195 at 4428 (Oct. 7, 2014).
23 See the public law for a list of the rules. Because of unique rule codification practices used by DEP for TMDLs, the specific “rules” ratified are identified subparts of F.A.C. rule sections. Each rule subpart establishes particular distinct pollutant load limits for specific water bodies. The SERCs developed during rulemaking were specific to each TMDL.
24 2013 Session House Rule Ratification Requests (March 12, 2013). This listing shows as still pending the 2012 ratification request for F.A.C.R. 69L-7.020, the workers’ compensation provider reimbursement manual.
25 House Rulemaking Oversight and Repeal Subcommittee , 2014 Session House Rule Ratification Requests (March 3, 2014). The listing shows the 2012 request for F.A.C.R. 69L-7.020 as pending.
26 F.A.C.R. 62-772.300; F.A.C.R. 62-772.400.
27 F.A.C.R. 69O-186.013.
28 F.A.C.R. 64J-2.006.
29 F.A.C.R. 63M-2.0052; F.A.C.R. 63M-2.006; F.A.C.R. 63N-1.0076; F.A.C.R. 63N-1.0084; F.A.C.R. 63N-1.0085.
30 In 2013, the legislature enacted a revision of the law governing reimbursement for certain prescription medications. Although that law invalidates a provision of the pending reimbursement manual, the agency initiated no rulemaking to conform the adopted rule to the statutory change, in advance of the 2014 legislative session when the ratification request was renewed.
31 Fla. Stat. §120.54(6) creates the specific rulemaking process to adopt federal standards.
32 Ch. 2010-279, §2, Laws of Fla. (codified at Fla. Stat. §120.541(4) (2010)). This provision implied an attempt to exempt emergency rulemaking and rules adopting federal standards from the full ratification requirement, but the language referenced new §120.541(2)(a) (the economic impact and cost criteria), actually creating a narrow exception to the new economic analysis requirements for SERCs. This was meaningless because the SERC requirements do not apply to emergency rulemaking. This apparent drafting error was corrected in Ch. 2011-225, §2, Laws of Fla., exempting emergency rulemaking and rules adopting federal standards from legislative ratification. The exemption for emergency rulemaking was inexplicably removed by Ch. 2013-183, §92, Laws of Fla. An exemption for emergency rulemaking may not be necessary, however, given the numerous references in existing statutes distinguishing emergency rulemaking from nonemergency rulemaking to which the SERC and related requirements attaches. See, e.g., Fla. Stat. §§120.54(3)(a)1, 120.54(3)(b)1, 120.54(4)(a), 120.54(4)(c)2, 120.541(1)(b), 120.541(2)(a) (2013). Because no express exemption is presently codified, agencies should be prepared to argue the inapplicability of §120.541(3) if an emergency rule is challenged for lack of ratification.
33 Ch. 2011-225, Laws of Fla., §§8-9; Fla. Stat. §§120.80(16)(d), (17)-(18), 120.81(1)(l) (2013) ( Fla. Stat. §120.81(1)(l) more broadly exempts particular education rules from all SERC requirements).
34 Ch. 2011-1, Laws of Fla.
35 Ch. 2013-70, Laws of Fla.
36 Ch. 2013-174, §3, Laws of Fla.
37 Proposed rules published in 37 F.A.W., No. 45 at 3753-3775, modified by changes published in 37 F.A.W., No. 51 at 4444-4450.
38 Proposed rule published in 39 F.A.R., No. 54 at 1397-1398.
39 Nutrient criteria rules for estuaries adopted by the Department of Environmental Protection in 2013.
40 The bill specifies the proposed rule published in 40 F.A.R., No. 46 at 1069-1071 and modified by a notice of change, 40 F.A.R., No. 68 at 1536. The proposed rule was subsequently invalidated in part in a DOAH rule challenge, mooting the exemption that applied to the specified proposed rule.
41 Fla. Stat. §§120.54(3)(b)1 and 120.541(1)(b) (2013). Fla. Stat. §120.54(3)(b)1 “encourage[s]” agencies to develop a SERC when it is not mandated.
42 Fla. Stat. §120.541(2) (2013). See also note six and accompanying text.
43 Passed 116-0 in the House, C.S./C.S./H.B. 7107 (2014) did not come up for a vote in the Senate. Although the bill did not become law, its guidelines would be beneficial to any agency drafting a SERC. The bill’s contents and related staff analysis would also be useful in training on SERC development.
44 While the subcommittee’s final recommendations were incorporated in H.B. 7107, a preliminary discussion document from which such recommendations were developed is published in the January 8, 2014, committee meeting packet available at http://myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committees&CommitteeId=2727&Session=2014&DocumentType=Meeting Packets&FileName=rors 1-8-14.pdf.
45 The president of the Senate and the speaker of the House.
46 Although significant rulemaking history is accessible on the Internet through DOS and the Joint Administrative Procedures Committee, the certification documents and SERC are not available online.
47 A proposed committee or subcommittee bill in the House is one initiated by a committee or subcommittee with prior approval of the House speaker. Florida House of Representatives, Rule 7.9, The Rules (2d ed. 2012-14).
48 “Legislative order” means the manner of conducting business established by the rules of the particular legislative chamber or by the joint rules of the Florida House and Senate. The Senate has assigned most ratification bills to the substantive committee responsible for overseeing the agency submitting the rule, but in an expedited process has taken up House ratification bills lacking a Senate companion measure. See Ch. 2011-179, Laws of Fla. (passed as H.B. 7253, no Senate companion); Ch. 2012-101, Laws of Fla. (passed as H.B. 7121, the Senate companion bill, S.B. 2130, originated in the Committee on Commerce and Tourism); Ch. 2013-156, Laws of Fla. (passed as H.B. 7157, no Senate companion); Ch. 2014-149, Laws of Fla. (passed as H.B. 7089, S.B. 1674 originated in the Committee on Environmental Preservation and Conservation); Ch. 2014-152, Laws of Fla. (passed as H.B. 7097, S.B. 1698 originated in the Committee on Banking and Insurance); Ch. 2014-153 (passed as H.B. 7145) and Ch. 2014-222 (passed as H.B. 7163), Laws of Fla. ( neither had a Senate companion).
49 Fla. Stat. §120.54(3)(d)3 (2013).
Eric H. Miller was staff attorney for the House subcommittees described in this article from 2010 through 2014, and currently is the policy chief for local affairs. Receiving his J.D. with honors from Florida State University and admitted to practice in 1984, he is board certified in state and federal government and administrative practice.
Donald J. Rubottom has been a member of The Florida Bar since 1998 and the Oklahoma Bar since 1986. He was elected to serve two terms in the Oklahoma Senate, 1988-1996, before moving to Florida in 1996 to serve Speaker Dan Webster. He has since remained with the Florida House of Representatives in a variety of legal and administrative staff positions, including assistant general counsel and staff director of the Rules & Calendar Committee. He has been staff director of the Rulemaking & Regulation Subcommittee, now the Rulemaking Oversight & Repeal Subcommittee since its inception in 2010. In that role he oversees the development and legislative administration of rule ratification under F.S. § 120.541(3).
This column is submitted on behalf of the Administrative Law Section, Daniel E. Nordby, chair, and Stephen Emmanuel, editor.
