Title: Rulemaking adoption procedures
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Permanent Link: http://ufdc.ufl.edu/UF00052752/00001
 Material Information
Title: Rulemaking adoption procedures
Alternate Title: Fla. Stat. 1979, Ch. 120.54 and 120.55, Rulemaking adoption procedures
Physical Description: 4p.
Language: English
Spatial Coverage: North America -- United States of America -- Florida
General Note: Box 5, Folder 18 ( SF Rules, Standardization of Numbering ), Item 18
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00052752
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

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1 (4) An agency may comply with paragraphs (2)(b) tion on competition and the open market for employ-
Sand (c) by designating by rule an official reporter ment, if applicable; and
S|which publishes and indexes by subject matter each 4. A detailed statement of the data and method
agency order rendered after a proceeding which af- used in making each of the above estimates.
fects substantial interests has been held. (b) If an economic impact statement is required
, History.-s. 1, ch. 74-310; s. 2, ch. 75-191; s. 2, ch. 76-131; s. 2, ch. 79-299 before an agency takes action on an application or
petition by any person, the statement shall be pre-
120.54 Rulemaking; adoption procedures.- pared within a reasonable time after the application
(1) Prior to the adoption, amendment, or repeal is made or the petition is filed.
of any rule not described in subsection (9), an agency (c) Failure to provide an adequate statement of
shall give notice of its intended action, setting forth economic impact is grounds for holding the rule in-
a short and plain explanation of the purpose and valid; however, beginning October 1, 1978, no rule
effect of the proposed rule, a summary of the pro- shall be declared invalid for want of an adequate
posed rule, the specific legal authority under which statement of economic impact unless the issue is
its adoption is authorized, and a summary of the raised in an administrative or judicial proceeding
S B estimate of the economic impact of the proposed rule within 1 year of the effective date of the rule to
on all persons affected by it. The notice shall contain which the statement applies.
i the location where the text of the proposed rule or (3) If the intended action concerns any rule other
economic impact statement can be obtained if such than one relating exclusively to organization, proce-
text is not included in the notice. dure, or practice, the agency shall, on the request of
(a) Except as otherwise provided in this para- any affected person received within 14 days after the
graph, the notice shall be mailed to the committee, date of publication of the notice, give affected per-
to all persons named in the proposed rule, and to all sons an opportunity to present evidence and argu-
persons who have made requests of the agency for ment on all issues under consideration appropriate
advance notice of its proceedings at least 14 days to inform it of their contentions. Prisoners, as de-
prior to such mailing. The agency shall also give fined in s. 944.02(5), may be limited by the Depart-
such notice as is prescribed by rule to those particu- ment of Corrections to an opportunity to submit
lar classes of persons to whom the intended action is written statements concerning intended action on
directed. Notice of intent by an educational unit to any department rule. The agency may schedule a
adopt, amend, or repeal any rule not described in public hearing on the rule and, if requested by any
subsection (9) shall be made: affected person, shall schedule a public hearing on
1. By publication in a newspaper of general cir- the rule. Any material pertinent to the issues under
H culation in the affected area; consideration submitted to the agency within 14
2. By mail to all persons who have made requests days after the date of publication of the notice shall
of the educational unit for advance notice of its pro- be considered by the agency and made a part of the
ceedings and to organizations representing persons record of the rulemaking proceeding.
affected by the proposed rule; and (4)(a) Any substantially affected person may
4 3. By posting in appropriate places so that those seek an administrative determination of the invalid-
particular classes of persons to whom the intended ity of any proposed rule on the ground that the pro-
action is directed may be duly notified. posed rule is an invalid exercise of delegated legisla-
tive authority.
SSuch publication, mailing, and posting of notice (b) The request seeking a determination under
shall occur at least 14 days prior to the intended this subsection shall be in writing and must be filed
action. with the division within 14 days after the date of
(b) The notice shall be published in the Florida publication of the notice. It must state with particu-
Administrative Weekly not less than 21 days prior to larity facts sufficient to show that the person chal-
the intended action, except that notice of actions lenging the proposed rule would be substantially af-
proposed by educational units or units of govern- fected by it and facts sufficient to show the invalidity
ment with jurisdiction in only one county or a part of the proposed rule.
thereof need not be published in the Florida Admin- (c) Immediately upon receipt of the petition, the
istrative Weekly or transmitted to the.committee. division shall forward copies of the petition to the
The proposed rule shall be available for inspection agency whose rule is challenged, the Department of
and copying by the public at the time of the publica- State, and the committee. Within 10 days after re-
tion of notice. ceiving the petition, the division director, if he deter-
(2)(a) Each agency, prior to the adoption, amend- mines that the petition complies with the above re-
ment, or repeal of any rule, shall provide informa- quirements, shall assign a hearing officer who shall
tion on its proposed action by preparing a detailed conduct a hearing within 30 days thereafter, unless
economic impact statement. The economic impact the petition is withdrawn. Within 30 days after con-
statement shall include: clusion of the hearing, the hearing officer shall
1. An estimate of the cost to the agency of the render his decision and state the reasons therefore in
implementation of the proposed action, including writing. The division shall forthwith transmit copies
the estimated amount of paperwork; of the hearing officer's decision to the Department of
2. An estimate of the cost or the economic benefit State and to the committee. The hearing officer may
to all persons directly affected by the proposed ac- declare the proposed rule wholly or partly invalid.
tion; The proposed rule or provision of a proposed rule
3. An estimate of the impact of the proposed ac- declared invalid shall be withdrawn from the com-


mittee by the adopting agency and shall not be stitution, or the United States Constitution.
adopted. No rule shall be filed for adoption until 21 2. The agency takes only that action necessary to
days after the notice required by subsection (1) or protect the public interest under the emergency pro-
until the hearing officer has rendered his decision, cedure.
as the case may be. However, the agency may pro- 3. The agency publishes in writing at the time of,
ceed with all other steps in the rulemaking process. or prior to, its action the specific facts and reasons
In the event part of a proposed rule is declared in- for finding an immediate danger to the public
valid, the adopting agency may, in its sole discretion, health, safety, or welfare and its reasons for conclud-
withdraw the proposed rule in its entirety. The agen- ing that the procedure used is fair under the circum-
cy whose proposed rule has been declared invalid in stances. In any event, notice of emergency rules, oth-
whole or part shall give notice of the decision in the. er than those of educational units or units of govern-
first available issue of the Florida Administrative ment with jurisdiction in only one county or a part
Weekly. thereof, shall be published in the first available issue
(d) Hearings held under this provision shall be of the Florida Administrative Weekly. The agency's
conducted in the same manner as provided in s. findings of immediate danger, necessity, and proce-
120.57 except that the hearing officer's order shall dural fairness shall be judicially reviewable..
be final agency action. The agency proposing the (b) Rules pertaining to the public health, safety,
rule and the person requesting the hearing shall be or welfare shall include, but not be limited to, those
adversary parties. Other substantially affected per- rules pertaining to perishable agricultural commodi-
sons may join the proceeding as parties or interven- ties.
ors on appropriate terms which will not substantial- (c) An emergency rule adopted under this subsec-
ly delay the proceedings. Failure to proceed under tion may not be effective for a period longer than 90
this subsection shall not constitute failure to ex- days and shall not be renewable. However, the agen-
haust administrative remedies.' cy may take identical action by normal rulemaking
(5) Any person regulated by an agency or having procedures.
a substantial interest in an agency rule may petition (d) Subject to applicable constitutional and stat-
an agency to adopt, amend, or repeal a rule or to utory provisions, an emergency rule becomes effec-
provide the minimum public information required tive immediately on filing, or at a date less than 20
by s. 120.53. The petition shall specify the proposed days thereafter if specified in the rule, if the adopt-
rule and action requested. Not later than 30 calen- ing agency finds that such effective date is necessary
dar days after the date of filing a petition, the agency because of immediate danger to the public health,
shall initiate rulemaking proceedings under this act, safety, or welfare.
otherwise comply with the requested action, or deny (10) The Administration Commission shall pro-
the petition with a written statement of its reasons mulgate one or more sets of model rules of procedure
for the denial. which shall be reviewed by the committee and filed
(6) In rulemaking proceedings, the agency may with the Department of State. On filing with the
recognize any material which may be judicially no- department, the appropriate model rules shall be
ticed, and it may provide that materials so recog- the rules of procedure for each agency subject to this
nized shall be incorporated into the record of the act to the extent that each agency does not adopt a
proceeding. Before the record of any proceeding is specific rule of procedure covering the subject mat-
completed, all parties shall be provided a list of such ter contained in the model rules applicable to that
materials and given a reasonable opportunity to ex- agency. An agency may seek modification of the
amine them and offer written comments thereon or model rules of procedure to the extent necessary to
written rebuttal thereto. conform to any requirement imposed as a condition ;
(7) Each rule adopted shall be accompanied by a precedent to receipt of federal funds or permit per-
reference to the specific rulemaking authority pur- sons in this state to receive tax benefits under feder-
suant to which the rule was adopted and a reference al law or as required for the most efficient operation :
to the section or subsection of the Florida Statutes or of the agency as determined by the Administration
the Laws of Florida being implemented, interpreted, Commission. The reasons for the modification shall 'i
or made specific, be published in the Florida Administrative Weekly.
(8) Each rule adopted shall contain only one sub- Agency rules adopted to comply with ss. 120.53 and
ject and shall be preceded by a concise statement of 120.565 must be in substantial compliance with the
the purpose of the rule and reference to the rules model rules.
repealed or amended, which statement need not be (ll)(a) The adopting agency shall file with the ;
printed in the Florida Administrative Code. No rule committee, at least 21 days prior to the proposed [;i
shall be amended by reference only. Amendments adoption date, a copy of each rule it proposes to I
shall set out the amended rule in full in the same adopt, a detailed written statement of the facts and
manner as required by the constitution for laws. circumstances justifying the proposed rule, a copy of
(9)(a) If an agency finds that an immediate dan- the estimate of economic impact required by subsec-
ger to the public health, safety, or welfare requires tion (1), a statement of the extent to which the pro-
emergency action, the agency may adopt any rule posed rule establishes standards more restrictive
necessitated by the immediate danger by any proce- than federal standards or a statement that the pro-
dure which is fair under the circumstances and nec- posed rule is no more restrictive than federal stand-
essary to protect the public interest, provided that: ards or that a federal rule on the same subject does
1. The procedure provides at least the procedural not exist, and the notice required by subsection (1).
protection given by other statutes, the Florida Con- After the final public hearing on the proposed rule, .


or after the time for requesting a hearing has ex- the agency within 14 days after the notice and made
pired, the adopting agency shall file any changes in a part of the record of the proceeding, or changes in
the proposed rule and the reasons therefore with the response to a proposed objection by the committee.
committee or advise the committee that there are no After adoption and before the effective date, a rule
changes. In addition, when any change is made in a may be modified or withdrawn only in response to an
proposed rule other than a technical change, the objection by the committee or may be modified to
adopting agency shall provide a detailed statement extend the effective date by not more than 60 days
of such change by certified mail or actual delivery to when the committee has notified the agency that an
any person who requests it in writing at the public objection to the rule is being considered. The agency
hearing. The agency shall file the change with the shall give notice of its decision to withdraw or modify
committee, and provide the statement of change to a rule in the first available issue of the publication
persons requesting it, at least 7 days prior to filing in which the original notice of rulemaking was pub-
the rule for adoption. Educational units, other than lished and shall notify the Department of State if the
units of the State University System, and local units rule is required to be filed with the Department of
of government with jurisdiction in only one county State. After a rule has become effective, it may be
S or part thereof shall not be required to make filings repealed or amended only through regular rulemak-
with the committee. This paragraph shall not apply ing procedures.
S to emergency rules adopted pursuant to subsection (13) If the committee disapproves a proposed rule
(9). However, agencies, other than those listed here- and the agency does not modify the rule, the commit-
in, adopting emergency rules shall file a copy of each tee shall file with the Department of State a notice
emergency rule with the committee. of the disapproval detailing with particularity its
(b) If the adopting agency is required to publish objection to the rule. The Department of State shall
its rules in the Florida Administrative Code, it shall publish this notice in the Florida Administrative
file with the Department of State,three certified cop- Weekly and shall publish, as a history note to the
ies of the rule it proposes to adopt, a summary of the rule when it is published in the Florida Administra-
7Ti"Tle, a summary of any hearings held on the rule, tive Code, a reference to the committee's disapproval
S and a detailed written statement of the facts and and to the issue of the Weekly in which the full text
circumstances justifying the rule. Agencies not re- thereof appears.
S quired to publish their rules in the Florida Adminis- (14) No agency has inherent rulemaking author-
trative Code shall file one certified copy of the pro- ity; nor has any agency authority to establish penal-
posed rule, and the other material required above, in ties for violation of a rule unless the Legislature,
the office of the agency head, and such rules shall be when establishing a penalty, specifically provides
open to the public pursuant to s. 120.53(2). Filings that the penalty applies to rules. However, an agen-
shall be made not less than 21 days or more than 90 cy may adopt rules necessary to the proper imple-
days after the notice required by subsection (1), if no mentation of a statute prior to the effective date of
public hearing is held. Ifa public hearing is held, the the statute, but the rules may not be enforced until
adopting agency shall file within 21 days after re- the statute upon which they are based is effective.
ceipt of all material authorized to be submitted at (15) The rulemaking provisions of this chapter
the hearing or after receipt of the transcript, if one shall not apply to compensation appeals referees.
is made, whichever is later. If a public hearing is (16) Rulemaking proceedings shall be governed
held and no material is authorized to be submitted solely by the provisions of this section unless a per-
and no transcript is made, filings shall be made not son timely asserts that his substantial interests will
less than 21 days or more than 90 days after the be affected in the proceeding and affirmatively dem-
notice required in subsection (1). At the time a rule onstrates to the agency that the proceeding does not
is filed, the agency shall certify that the time limita- provide adequate opportunity to protect those inter-
tions prescribed by this subsection have been com- ests. If the agency determines that the rulemaking
Splpied with and that there is no administrative deter-- proceeding is not adequate to protect his interests, it
mination pending on the rule. T1he fiaritent-s-in a shall suspend the rulemaking proceeding and con-
reject any rule not filed within the prescribed time vene a separate proceeding under the provisions of
limits or upon which an administrative determina- s. 120.57. Similarly situated persons may be request-
i tion is pending. ed to join and participate in the separate proceeding.
S(12)(a) The proposed rule shall be adopted on be- Upon conclusion of the separate proceeding, the
ing filed with the Department of State and become rulemaking proceeding shall be resumed.
effective 20 days after being filed, on a later date History.-s. 1. ch. 74-310; s. 3, ch. 75-191; s. 3. ch. 76-131; ss. 1, 2. ch. 76-276;
^s. n1, ch. 77-174; s. 13, ch. 77.290; s. 3, ch. 77-453; s. 2, ch. 78-28; s. 2, ch. 78-425;
specified in the rule, or on a date required by statute, s. 7, ch. 79-3; s. 3, ch. 79-299; s. 69, ch. 79-400.
Rules not required to be filed with the Department
of State shall become effective when adopted by the 120.545 Committee review of agency rules.-
agency head or on a later date specified by rule or (1) As a legislative check on legislatively created
statute,. authority, the committee shall examine each pro-
(b) After the notice required in subsection (1) and posed rule, except for those proposed rules exempted
prior to adoption, the-agency may withdraw the rule by paragraph 120.54(11)(a), and its accompanying
B in whole or in part, or may make such changes in the material, and may examine any existing rule, for the
1 \rule as are supported by the record of public hear- purpose of determining whether the rule is within
ings held on the rule, technical changes which do not the statutory authority upon which it is based,
affect the substance of the rule, changes in response whether the rule is in proper form, and whether the
! to written material relating to the rule received by notice given prior to its adoption was sufficient to


, give adequate notice of the purpose and effect of the posed rule shall be stricken from the files of the
rule. If the committee objects to a proposed or exist- Department of State and the files of the agency.
ing rule, it shall, within 5 days of the objection, certi- (7) Failure of the agency to respond to a commit-
fy the fact to the agency whose rule has been exam- tee objection to an existing rule within the time pre-
ined and include with the certification a statement scribed in subsection (2) shall constitute a refusal to
detailing its objections with particularity, repeal the rule.
(2) Within 30 days of receipt of the objection, if (8) If the committee objects to a proposed or exist-
the agency is headed by an individual, or within 45 ing rule and the agency refuses to modify, amend,
days of receipt of the objection, if the agency is head- withdraw, or repeal the rule, the committee shall file
ed by a collegial body, the agency shall: with the Department of State a notice of the objec-
(a) If the rule is a proposed rule: tion, detailing with particularity its objection to the
1. Modify the rule to meet the committee's objec- rule. The Department of State shall publish this no-
tion; twice in the Florida Administrative Weekly and shall
2. Withdraw the rule in its entirety; or publish, as a history note to the rule in the Florida
3. Refuse to modify or withdraw the rule. Administrative Code, a reference to the committee's
(b) If the rule is an existing rule: objection and to the issue of the Weekly in which the
1. Notify the committee that it has elected to full text thereof appears.
amend the rule to meet the committee's objection History.-s. 4, ch. 76-131; s. 1, ch. 77-174.
and initiate the amendment procedure;
2. Notify the committee that it has elected to 120.55 Publication.-
repeal the rule and initiate the repeal procedure; or (1) The Department of State shall:
3. Notify the committee that it refuses to amend (a) Conduct a systematic and continuing study of
or repeal the rule. the rules of this state for the purpose of reducing
(3) If the agency elects to modify a proposed rule their number and bulk and removing redundancies
to meet the committee's objection, it shall make only and unnecessary repetitions and make such changes
such modifications as are necessary to meet the ob- in style and form as are required by paragraph (d).
section and shall resubmit the rule to the committee. (b) Publish in a permanent compilation entitled
The agency shall give notice of its election to modify "Florida Administrative Code" all rules adopted by
a proposed rule to meet the committee's objection in each agency, citing the specific rulemaking authori-
the first available issue of the Florida Administra- ty pursuant to which each rule was adopted, all his-
tive Weekly, but shall not be required to conduct a tory notes as authorized in s. 120.545(8), and com-
public hearing. If the agencyelects to amend an ex- plete indexes to all rules contained in the code. Sup-
isting rule to meet the committee's objection, it shall plementation shall be made as often as practicable,
notify the committee in writing and shall initiate the but at least monthly. Rules general in form but ap-
amendment procedure by giving notice in the next plicable to only one school district, community col-
available issue of the Florida Administrative Week- lege district, or county, or a part thereof, or to the
ly. The committee shall give priority to rules so mod- Florida School for the Deaf and the Blind and uni-
ified or amended when setting its agenda, versity rules relating to internal personnel or busi-
(4) If the agency elects to withdraw a proposed ness and finance shall not be published in the Flori-
rule as a result of a committee objection, it shall da Administrative Code. Exclusion from publication
notify the committee, in writing, of its election and in the Florida Administrative Code shall not affect
shall give notice of the withdrawal in the next avail- their validity or effectiveness. The department shall
able issue of the Florida Administrative Weekly. The publish, at the beginning of the section of the code
rule shall be withdrawn without a public hearing, dealing with an agency that files copies of its rules
effective upon publication of the notice in the Flori- with the department, a summary or listing of all
da Administrative Weekly. If the agency elects to rules of said agency excluded from publication in the
repeal an existing rule as a result of a committee code and a statement as to where said rules may be
objection, it shall notify the committee, in writing, of inspected or examined. The department shall also
its election and shall initiate rulemaking procedures publish, at the beginning of the section of the code
for that purpose by giving notice in the next availa- dealing with an agency, any exemptions granted
ble issue of the Florida Administrative Weekly. that agency pursuant to s. 120.63, including the ter-
(5) If an agency elects to amend or repeal an ex- mination date of the exemption and a statement
isting rule as a result of a committee objection, it whether the exemption can be renewed pursuant to
shall complete the process within 90 days after giv- s. 120.63(2)(b).
ing notice in the Florida Administrative Weekly. (c) Publish a weekly publication entitled the
(6). Failure of the agency to respond to a commit- "Florida Administrative Weekly," which shall con-
tee objection to a proposed rule within the time pre- tain:
scribed in subsection (2) shall constitute withdrawal 1. A summary of, and an index to, all rules filed
of the rule in its entirety. In this event, the commit- during the preceding week.
tee shall notify the Department of State that the 2. All hearing notices required by subsection
agency, by its failure to respond to a committee ob- 120.54(1), showing the time, place, and date of the
jection, has elected to withdraw the proposed rule. hearings and the summaries of all rules proposed for
Upon receipt of the committee's notice, the Depart- consideration.
ment of State shall publish a notice to that effect in 3.. All notices of meetings, hearings, and work-
the next available issue of the Florida Administra- shops conducted in accordance with the provisions of
tive Weekly. Upon publication of the notice, the pro- paragraph 120.53(1)(d), including a statement of the

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