Florida Senate - 2025 SB 448
By Senator Burgess
23-00576A-25 2025448__
1 A bill to be entitled
2 An act relating to administrative procedure; amending
3 s. 120.52, F.S.; specifying that an agency’s issuance
4 of a guidance document or other statement interpreting
5 a statute without express statutory delegation to
6 issue such guidance is an invalid exercise of
7 delegated legislative authority; amending s. 120.536,
8 F.S.; prohibiting an agency from adopting a rule or
9 issuing a guidance document without statutory
10 delegation; reenacting and amending s. 120.541, F.S.;
11 requiring an agency to prepare a statement of
12 estimated regulatory costs for proposed rules, notices
13 of change, and final rules; providing requirements for
14 such statements; requiring the agency to conduct a
15 retrospective cost-benefit analysis for each adopted
16 rule after a specified period; providing requirements
17 for such analysis; requiring review of prior cost
18 benefit analyses as part of a specified review;
19 requiring agencies to use the findings of such a
20 review for specified purposes; requiring publication
21 of materials used to produce estimates of regulatory
22 costs in a specified manner; providing additional
23 requirements for cost-benefit analyses; amending s.
24 120.545, F.S.; revising requirements for review of
25 rules by the Administrative Procedures Committee;
26 amending s. 120.55, F.S.; requiring that additional
27 information be published in the Florida Administrative
28 Code; providing for the expiration of rules after a
29 specified period unless readopted; providing
30 requirements for the readoption process; requiring the
31 Administrative Procedures Committee to set expiration
32 dates for existing rules; providing exceptions to rule
33 expiration; requiring review of such exempt rules;
34 requiring the agency to perform specified actions
35 during reviews; providing for a limited extension of
36 expiration in certain circumstances; amending s.
37 120.555, F.S.; requiring that specified information be
38 published concerning expired rules; amending s.
39 120.56, F.S.; specifying that guidance documents are
40 subject to specified provisions; providing that a
41 party subject to an enforcement action may challenge
42 the action on the basis that the agency lacked
43 statutory authority for the rule or guidance document;
44 providing for award of costs and attorney fees;
45 providing for challenges to rules on the grounds that
46 the agency failed to comply with specified provisions;
47 conforming a cross-reference; providing an effective
48 date.
49
50 Be It Enacted by the Legislature of the State of Florida:
51
52 Section 1. Subsection (8) of section 120.52, Florida
53 Statutes, is amended to read:
54 120.52 Definitions.—As used in this act:
55 (8) “Invalid exercise of delegated legislative authority”
56 means action that goes beyond the powers, functions, and duties
57 delegated by the Legislature. A proposed or existing rule is an
58 invalid exercise of delegated legislative authority if any one
59 of the following applies:
60 (a) The agency has materially failed to follow the
61 applicable rulemaking procedures or requirements set forth in
62 this chapter;
63 (b) The agency has exceeded its grant of rulemaking
64 authority, citation to which is required by s. 120.54(3)(a)1.;
65 (c) The rule enlarges, modifies, or contravenes the
66 specific provisions of law implemented, citation to which is
67 required by s. 120.54(3)(a)1.;
68 (d) The rule is vague, fails to establish adequate
69 standards for agency decisions, or vests unbridled discretion in
70 the agency;
71 (e) The rule is arbitrary or capricious. A rule is
72 arbitrary if it is not supported by logic or the necessary
73 facts; a rule is capricious if it is adopted without thought or
74 reason or is irrational; or
75 (f) The rule imposes regulatory costs on the regulated
76 person, county, or city which could be reduced by the adoption
77 of less costly alternatives that substantially accomplish the
78 statutory objectives; or
79 (g) The agency has issued a guidance document or other
80 statement interpreting a statute without express statutory
81 delegation to issue such guidance.
82
83 A grant of rulemaking authority is necessary but not sufficient
84 to allow an agency to adopt a rule; a specific law to be
85 implemented is also required. An agency may adopt only rules
86 that implement or interpret the specific powers and duties
87 granted by the enabling statute. No agency shall have authority
88 to adopt a rule only because it is reasonably related to the
89 purpose of the enabling legislation and is not arbitrary and
90 capricious or is within the agency’s class of powers and duties,
91 nor shall an agency have the authority to implement statutory
92 provisions setting forth general legislative intent or policy.
93 Statutory language granting rulemaking authority or generally
94 describing the powers and functions of an agency shall be
95 construed to extend no further than implementing or interpreting
96 the specific powers and duties conferred by the enabling
97 statute.
98 Section 2. Subsection (1) of section 120.536, Florida
99 Statutes, is amended to read:
100 120.536 Rulemaking authority; repeal; challenge.—
101 (1) A grant of rulemaking authority is necessary but not
102 sufficient to allow an agency to adopt a rule; a specific law to
103 be implemented is also required. An agency may adopt only rules
104 that implement or interpret the specific powers and duties
105 granted by the enabling statute. An agency may not adopt any
106 rule or issue any guidance document unless the agency has been
107 expressly granted the power to do so by a specific statutory
108 delegation. No agency shall have authority to adopt a rule only
109 because it is reasonably related to the purpose of the enabling
110 legislation and is not arbitrary and capricious or is within the
111 agency’s class of powers and duties, nor shall an agency have
112 the authority to implement statutory provisions setting forth
113 general legislative intent or policy. Statutory language
114 granting rulemaking authority or generally describing the powers
115 and functions of an agency shall be construed to extend no
116 further than implementing or interpreting the specific powers
117 and duties conferred by the enabling statute.
118 Section 3. Subsection (1), paragraph (g) of subsection (2),
119 and subsection (5) of section 120.541, Florida Statutes, are
120 amended, paragraph (h) is added to subsection (2) of that
121 section, and subsection (4) of that section is reenacted, to
122 read:
123 120.541 Statement of estimated regulatory costs.—
124 (1)(a) An agency shall prepare a statement of estimated
125 regulatory costs for each proposed rule, notice of change, or
126 final rule, regardless of whether the proposed rule, notice of
127 change, or final rule will have an adverse impact on small
128 business or is likely to increase regulatory costs. The
129 statement must include a cost-benefit analysis that clearly
130 demonstrates that the projected benefits of the proposed rule,
131 notice of change, or final rule exceed its projected costs.
132 (b)(a) Within 21 days after publication of the notice
133 required under s. 120.54(3)(a), a substantially affected person
134 may submit to an agency a good faith written proposal for a
135 lower cost regulatory alternative to a proposed rule which
136 substantially accomplishes the objectives of the law being
137 implemented. The proposal may include the alternative of not
138 adopting any rule if the proposal explains how the lower costs
139 and objectives of the law will be achieved by not adopting any
140 rule. If such a proposal is submitted, the 90-day period for
141 filing the rule is extended 21 days. Upon the submission of the
142 lower cost regulatory alternative, the agency shall prepare a
143 statement of estimated regulatory costs as provided in
144 subsection (2), or shall revise its prior statement of estimated
145 regulatory costs, and either adopt the alternative or provide a
146 statement of the reasons for rejecting the alternative in favor
147 of the proposed rule.
148 (c)(b) If a proposed rule, notice of change, or final rule
149 will have an adverse impact on small business or if the proposed
150 rule, notice of change, or final rule is likely to directly or
151 indirectly increase regulatory costs in excess of $200,000 in
152 the aggregate within 1 year after the implementation of the
153 rule, the agency shall prepare a statement of estimated
154 regulatory costs as required by s. 120.54(3)(b).
155 (d)(c) The agency shall revise a statement of estimated
156 regulatory costs if any change to the rule made under s.
157 120.54(3)(d) increases the regulatory costs of the rule.
158 (e)(d) At least 21 days before filing the rule for
159 adoption, an agency that is required to revise a statement of
160 estimated regulatory costs shall provide the statement to the
161 person who submitted the lower cost regulatory alternative and
162 to the committee and shall provide notice on the agency’s
163 website that it is available to the public.
164 (f)(e) Notwithstanding s. 120.56(1)(c), the failure of the
165 agency to prepare a statement of estimated regulatory costs or
166 to respond to a written lower cost regulatory alternative as
167 provided in this subsection is a material failure to follow the
168 applicable rulemaking procedures or requirements set forth in
169 this chapter.
170 (g)(f) An agency’s failure to prepare a statement of
171 estimated regulatory costs or to respond to a written lower cost
172 regulatory alternative may not be raised in a proceeding
173 challenging the validity of a rule pursuant to s. 120.52(8)(a)
174 unless:
175 1. Raised in a petition filed no later than 1 year after
176 the effective date of the rule; and
177 2. Raised by a person whose substantial interests are
178 affected by the rule’s regulatory costs.
179 (h)(g) A rule that is challenged pursuant to s.
180 120.52(8)(f) may not be declared invalid unless:
181 1. The issue is raised in an administrative proceeding
182 within 1 year after the effective date of the rule;
183 2. The challenge is to the agency’s rejection of a lower
184 cost regulatory alternative offered under paragraph (b) (a) or
185 s. 120.54(3)(b)2.b.; and
186 3. The substantial interests of the person challenging the
187 rule are materially affected by the rejection.
188 (i) An agency shall conduct a retrospective cost-benefit
189 analysis for each adopted rule 4 years after the rule’s
190 effective date. The analysis must compare the actual costs and
191 benefits of the rule to those projected in the initial statement
192 of estimated regulatory costs prepared under paragraph (a).
193 (j) When a rule is reviewed upon expiration pursuant to s.
194 120.55(9), the agency shall conduct a retrospective assessment
195 report comparing the initial projected cost-benefit analysis,
196 the retrospective analysis conducted under paragraph (i), and
197 the outcomes observed up to the time of expiration. The agency
198 shall incorporate the findings and lessons learned from this
199 comparison into the standards for future statements of estimated
200 regulatory costs and apply them to similar rules.
201 (2) A statement of estimated regulatory costs shall
202 include:
203 (g) In the statement or revised statement, whichever
204 applies, a description of any regulatory alternatives submitted
205 under paragraph (1)(b) (1)(a) and a statement adopting the
206 alternative or a statement of the reasons for rejecting the
207 alternative in favor of the proposed rule.
208 (h) All documentation, assumptions, methods, and data used
209 in preparing the statement of estimated regulatory costs must be
210 published on a publicly accessible website and, where relevant,
211 in a machine-readable format readily available to the public,
212 including any supporting calculations, documents, data,
213 databases, or data tables, so that the results of the analysis
214 can be replicated. Uncertainties pertaining to these estimates
215 must be reported.
216 (4) Subsection (3) does not apply to the adoption of:
217 (a) Federal standards pursuant to s. 120.54(6).
218 (b) Triennial updates of and amendments to the Florida
219 Building Code which are expressly authorized by s. 553.73.
220 (c) Triennial updates of and amendments to the Florida Fire
221 Prevention Code which are expressly authorized by s. 633.202.
222 (5) For purposes of subsections (2) and (3), adverse
223 impacts and regulatory costs likely to occur within 5 years
224 after implementation of the rule include adverse impacts and
225 regulatory costs estimated to occur within 5 years after the
226 effective date of the rule. However, if any provision of the
227 rule is not fully implemented upon the effective date of the
228 rule, the adverse impacts and regulatory costs associated with
229 such provision must be adjusted to include any additional
230 adverse impacts and regulatory costs estimated to occur within 5
231 years after implementation of such provision. However, an agency
232 may include longer periods of review but must, at a minimum,
233 provide a cost-benefit analysis that projects the first 5 years
234 after the rule goes into effect. If a discount rate is used in
235 the analysis, its use must be justified. The agency must also
236 provide an analysis without the use of discount rates.
237 Section 4. Paragraphs (m), (n), and (o) are added to
238 subsection (1) of section 120.545, Florida Statutes, to read:
239 120.545 Committee review of agency rules.—
240 (1) As a legislative check on legislatively created
241 authority, the committee shall examine each proposed rule,
242 except for those proposed rules exempted by s. 120.81(1)(e) and
243 (2), and its accompanying material, and each emergency rule, and
244 may examine any existing rule, for the purpose of determining
245 whether:
246 (m) The rule is scheduled to expire pursuant to s.
247 120.55(9) and whether the agency is complying with the
248 expiration and readoption requirements.
249 (n) The initial expiration date for the rule has been set
250 in accordance with s. 120.55(9)(b).
251 (o) The agency has properly reviewed exempt rules as
252 required under s. 120.55(9)(f).
253 Section 5. Present subsection (9) of section 120.55,
254 Florida Statutes, is redesignated as subsection (10), a new
255 subsection (9) is added to that section, and paragraph (a) of
256 subsection (1) of that section is amended, to read:
257 120.55 Publication.—
258 (1) The Department of State shall:
259 (a)1. Through a continuous revision and publication system,
260 compile and publish electronically, on a website managed by the
261 department, the “Florida Administrative Code.” The Florida
262 Administrative Code shall contain all rules adopted by each
263 agency, citing the grant of rulemaking authority and the
264 specific law implemented pursuant to which each rule was
265 adopted, including the effective date and expiration date of
266 each rule, all history notes as authorized in s. 120.545(7),
267 complete indexes to all rules contained in the code, and any
268 other material required or authorized by law or deemed useful by
269 the department. The electronic code shall display each rule
270 chapter currently in effect in browse mode and allow full text
271 search of the code and each rule chapter. The department may
272 contract with a publishing firm for a printed publication;
273 however, the department shall retain responsibility for the code
274 as provided in this section. The electronic publication shall be
275 the official compilation of the administrative rules of this
276 state. The Department of State shall retain the copyright over
277 the Florida Administrative Code.
278 2. Rules general in form but applicable to only one school
279 district, community college district, or county, or a part
280 thereof, or state university rules relating to internal
281 personnel or business and finance shall not be published in the
282 Florida Administrative Code. Exclusion from publication in the
283 Florida Administrative Code shall not affect the validity or
284 effectiveness of such rules.
285 3. At the beginning of the section of the code dealing with
286 an agency that files copies of its rules with the department,
287 the department shall publish the address and telephone number of
288 the executive offices of each agency, the manner by which the
289 agency indexes its rules, a listing of all rules of that agency
290 excluded from publication in the code, and a statement as to
291 where those rules may be inspected.
292 4. Forms shall not be published in the Florida
293 Administrative Code; but any form which an agency uses in its
294 dealings with the public, along with any accompanying
295 instructions, shall be filed with the committee before it is
296 used. Any form or instruction which meets the definition of
297 “rule” provided in s. 120.52 shall be incorporated by reference
298 into the appropriate rule. The reference shall specifically
299 state that the form is being incorporated by reference and shall
300 include the number, title, and effective date of the form and an
301 explanation of how the form may be obtained. Each form created
302 by an agency which is incorporated by reference in a rule notice
303 of which is given under s. 120.54(3)(a) after December 31, 2007,
304 must clearly display the number, title, and effective date of
305 the form and the number of the rule in which the form is
306 incorporated.
307 5. The department shall allow adopted rules and material
308 incorporated by reference to be filed in electronic form as
309 prescribed by department rule. When a rule is filed for adoption
310 with incorporated material in electronic form, the department’s
311 publication of the Florida Administrative Code on its website
312 must contain a hyperlink from the incorporating reference in the
313 rule directly to that material. The department may not allow
314 hyperlinks from rules in the Florida Administrative Code to any
315 material other than that filed with and maintained by the
316 department, but may allow hyperlinks to incorporated material
317 maintained by the department from the adopting agency’s website
318 or other sites.
319 (9)(a) All rules adopted by an agency shall expire 8 years
320 after their effective date unless readopted through the
321 rulemaking process outlined in s. 120.54, except as provided in
322 paragraph (e). The readoption process may not begin more than 1
323 year before the rule’s expiration date.
324 (b) For all rules in effect on July 1, 2025, the committee
325 shall set the initial expiration dates, taking into
326 consideration the time and resources agencies will expend to
327 potentially readopt those rules. The initial expiration dates
328 must be set between the second and twelfth calendar years after
329 the effective date of this subsection. A rule shall expire on
330 January 1 of the calendar year selected by the committee.
331 (c) An amendment to a rule through subsequent rulemaking
332 does not affect the rule’s expiration date unless the amendment
333 completely repeals and readopts the rule. In such case, the new
334 expiration date must be 8 years from the effective date of the
335 readopted rule.
336 (d) Every rule, if readopted, must subsequently expire on
337 January 1 every 8 calendar years after its initial expiration
338 date unless reviewed and readopted pursuant to this subsection.
339 (e) The following rules do not expire:
340 1. Rules required to comply with federal law or to receive
341 federal funds.
342 2. Rules adopted pursuant to authority granted under the
343 State Constitution.
344 3. Rules of agencies that are headed by an elected
345 official.
346 (f) Rules exempt under paragraph (e) must be reviewed by
347 the agency according to the schedule set by the committee. The
348 agency may not begin its review more than 1 year before the
349 rule’s scheduled review date.
350 (g) During the review, including any review under paragraph
351 (f), the agency shall:
352 1. Notify the public of the review, including making the
353 text of the notice, the text of the rule, and all analyses
354 associated with the review available on the agency’s website.
355 2. Hold a public comment period for at least 30 days.
356 3. Conduct all analyses that would be required if the rule
357 were being readopted pursuant to s. 120.54.
358 4. Provide a reasoned response to unique public comments.
359 5. Publish a report on the agency’s website which includes
360 the analyses and the agency’s response to public comments.
361 (h) For each rule, the Governor may grant extensions
362 totaling no more than 365 days postponing the expiration date
363 upon a written request by the agency. In the agency’s written
364 request, an explanation must be given by the agency explaining
365 why it cannot readopt the rule within the time allotted by this
366 subsection and why the expiration of the rule would harm the
367 public health, safety, or welfare. The Governor must affirm
368 these findings in writing before granting an extension. An
369 extension under this paragraph does not affect subsequent
370 expiration dates. Reviews under paragraph (f) may not be granted
371 extensions.
372 Section 6. Subsection (6) is added to section 120.555,
373 Florida Statutes, to read:
374 120.555 Summary removal of published rules no longer in
375 force and effect.—When, as part of the continuous revision
376 system authorized in s. 120.55(1)(a)1. or as otherwise provided
377 by law, the Department of State is in doubt whether a rule
378 published in the official version of the Florida Administrative
379 Code is still in full force and effect, the procedure in this
380 section shall be employed.
381 (6) When a rule has expired pursuant to s. 120.55(9), the
382 Department of State shall update the Florida Administrative Code
383 to remove the rule and shall provide historical notes
384 identifying the manner in which the rule ceased to have effect,
385 including the expiration pursuant to s. 120.55(9).
386 Section 7. Subsection (1) and paragraph (a) of subsection
387 (2) of section 120.56, Florida Statutes, are amended to read:
388 120.56 Challenges to rules.—
389 (1) GENERAL PROCEDURES.—
390 (a) Any person substantially affected by a rule, a guidance
391 document, or a proposed rule may seek an administrative
392 determination of the invalidity of the rule or guidance document
393 on the ground that the rule or guidance document is an invalid
394 exercise of delegated legislative authority. All of the
395 provisions in this section apply to guidance documents as well
396 as adopted rules.
397 (b) The petition challenging the validity of a proposed or
398 adopted rule under this section must state:
399 1. The particular provisions alleged to be invalid and a
400 statement of the facts or grounds for the alleged invalidity.
401 2. Facts sufficient to show that the petitioner is
402 substantially affected by the challenged adopted rule or would
403 be substantially affected by the proposed rule.
404 (c) The petition shall be filed by electronic means with
405 the division which shall, immediately upon filing, forward by
406 electronic means copies to the agency whose rule is challenged,
407 the Department of State, and the committee. Within 10 days after
408 receiving the petition, the division director shall, if the
409 petition complies with paragraph (b), assign an administrative
410 law judge who shall conduct a hearing within 30 days thereafter,
411 unless the petition is withdrawn or a continuance is granted by
412 agreement of the parties or for good cause shown. Evidence of
413 good cause includes, but is not limited to, written notice of an
414 agency’s decision to modify or withdraw the proposed rule or a
415 written notice from the chair of the committee stating that the
416 committee will consider an objection to the rule at its next
417 scheduled meeting. The failure of an agency to follow the
418 applicable rulemaking procedures or requirements set forth in
419 this chapter shall be presumed to be material; however, the
420 agency may rebut this presumption by showing that the
421 substantial interests of the petitioner and the fairness of the
422 proceedings have not been impaired.
423 (d) Within 30 days after the hearing, the administrative
424 law judge shall render a decision and state the reasons for his
425 or her decision in writing. The division shall forthwith
426 transmit by electronic means copies of the administrative law
427 judge’s decision to the agency, the Department of State, and the
428 committee.
429 (e) Hearings held under this section shall be de novo in
430 nature. The standard of proof shall be the preponderance of the
431 evidence. Hearings shall be conducted in the same manner as
432 provided by ss. 120.569 and 120.57, except that the
433 administrative law judge’s order shall be final agency action.
434 The petitioner and the agency whose rule is challenged shall be
435 adverse parties. Other substantially affected persons may join
436 the proceedings as intervenors on appropriate terms which shall
437 not unduly delay the proceedings. Failure to proceed under this
438 section does not constitute failure to exhaust administrative
439 remedies.
440 (f) Any party subject to an enforcement action may
441 challenge the enforcement action based solely on the grounds
442 that the agency lacked express statutory authority to adopt the
443 rule or issue a guidance document upon which the enforcement
444 action is based. Any party that prevails on such a challenge
445 shall be entitled to recover reasonable costs and attorney fees.
446 (g)1. A person may challenge a rule on the grounds that the
447 agency failed to comply with s. 120.541 by:
448 a. Failing to prepare a statement of estimated regulatory
449 costs as required;
450 b. Preparing a statement of estimated regulatory costs that
451 does not include all the information required by s. 120.541(2);
452 c. Failing to make the statement or the underlying data and
453 analysis publicly available as required by s. 120.541(2)(h); or
454 d. Failing to conduct the retrospective analyses required
455 by s. 120.541(1)(i) and (j).
456 2. If an administrative law judge finds that the agency has
457 materially failed to comply with s. 120.541, the rule must be
458 declared invalid and void.
459 (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.—
460 (a) A petition alleging the invalidity of a proposed rule
461 shall be filed within 21 days after the date of publication of
462 the notice required by s. 120.54(3)(a); within 10 days after the
463 final public hearing is held on the proposed rule as provided by
464 s. 120.54(3)(e)2.; within 20 days after the statement of
465 estimated regulatory costs or revised statement of estimated
466 regulatory costs, if applicable, has been prepared and made
467 available as provided in s. 120.541(1)(e) s. 120.541(1)(d); or
468 within 20 days after the date of publication of the notice
469 required by s. 120.54(3)(d). The petitioner has the burden to
470 prove by a preponderance of the evidence that the petitioner
471 would be substantially affected by the proposed rule. The agency
472 then has the burden to prove by a preponderance of the evidence
473 that the proposed rule is not an invalid exercise of delegated
474 legislative authority as to the objections raised. A person who
475 is not substantially affected by the proposed rule as initially
476 noticed, but who is substantially affected by the rule as a
477 result of a change, may challenge any provision of the resulting
478 proposed rule.
479 Section 8. This act shall take effect July 1, 2025.