Florida Administrative Law Central Online Network (FALCON)
Frequently Asked Questions (FAQs)
I’m new to the rulemaking process; where can I go for help?
The staff of the Joint Administrative Procedures Committee is available to answer questions and offer assistance. The committee may be contacted at (850) 488-9110. Another valuable resource is the Department of State’s Florida Administrative Register & Florida Administrative Code website at www.flrules.org.
What materials are required to be sent to the Committee when a rule is noticed?
When a proposed rule is noticed in the Florida Administrative Register, the agency is required to file one copy of the following materials with the committee at least 21 days prior to the proposed adoption date:
The agency is not required to file a copy of the notice of rule development with the committee.
How long must an agency wait after it publishes a notice of rule development before it can publish the notice of proposed rulemaking?
Chapter 120 does not provide any time limitations other than that the notice of rule development is to be published before the notice of proposed rulemaking. Arguably, a notice of proposed rulemaking can be published as early as in the following day’s Florida Administrative Register. However, paragraph 120.54(2)(c), F.S., directs that the notice of rule development be published not less than 14 days prior to the date of any workshop. By publishing a notice of proposed rulemaking immediately following the date of publication of the notice of rule development, the agency may be creating confusion if there are requests for rule development workshops and requests for a 21-day hearing associated with the notice of proposed rulemaking. A more prudent practice would be to wait at least three weeks prior to publishing the notice of proposed rulemaking.
What is the difference between "rulemaking authority" and "law implemented"?
Rulemaking authority is the law that authorizes an agency to adopt rules. Generally, the statute will contain language that expressly mentions the authority or duty to adopt rules or that authorizes or requires an agency to establish or otherwise create any statement coming within the definition of a “rule.” For example: “The department has authority to adopt rules pursuant to ss. 120.54 and 120.536(1), F.S., to implement the provisions of this chapter conferring duties upon it,” or “The department shall establish criteria for obtaining a permit.” Law implemented is the particular law that an agency is interpreting or administering in its rules. It sets out the powers and duties that an agency is required or authorized to implement by rule. For example: “The department shall establish standards for licensure by endorsement.” Section 120.536(1), F.S., provides that an agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. Both rulemaking authority and a specific law to be implemented are required for an agency to adopt a rule.
What is the statement of facts and circumstances justifying a rule, and how does it differ from the statement of purpose and effect?
The statement of facts and circumstances justifying a rule is a detailed statement explaining why the rule is being adopted or amended; i.e., what circumstances changed, such as a change in the industry, to justify the amendment or what new facts, such as an amendment to the law implemented, exist to justify the new or amended rule. The statement of purpose and effect is a brief explanation of the reason for the proposed action and outcome sought to be achieved.
Can a rule incorporate by reference a document as it changes from time to time?
No. Section 120.54(1)(i)1., F.S., provides that a rule may incorporate material by reference only as the material exists on the date of rule adoption. For purposes of the rule, changes in the material are not effective unless the rule is amended to incorporate the changes. Since material may only be adopted as it exists on the date of adoption, the reference to the material must include a date or other designation, so that the reader will know exactly what version of the material has been adopted and made part of the rule.
Is a published notice of change required for all changes to a proposed rule?
No. A published notice of change is not required for technical changes to a proposed rule. Technical changes are limited to matters not changing the meaning or construction of the rule, such as punctuation, misspellings, correction of tense or gender, misprints, change of address or telephone number. The Department of State may be notified of technical changes by a letter specifically noting the changes. Any changes to a proposed rule must be incorporated in the final rule when it is filed with the department. See section 120.54(3)(d)1., F.S.
Although the rule contains technical terms or undefined acronyms, everyone in the trade knows what they mean. Do we have to provide explanations?
Yes. Section 120.54(2)(b), F.S., provides that all rules should be drafted in readable language. The language is readable if:
Likewise, section 120.545(1)(i), F.S., directs this committee to examine rules for the purpose of determining whether the rules “could be made less complex or more easily comprehensible to the general public.”
Our agency wants to adopt certain federal standards verbatim. Is there a "fast track" procedure available?
Yes. Section 120.54(6), F.S., can be used to adopt rules substantively identical to federal regulations in the pursuance of state implementation, operation, or enforcement of federal programs. Briefly, a notice of intent to adopt federal rules is published in the FAR at least 21 days before filing the rule for adoption with the Department of State. The agency must consider written comments within 14 days after publication of the notice. The rule becomes effective on the date designated therein; however, no rule can take effect prior than the effective date of the substantively identical federal regulation. In any event, section 120.54(6), F.S., should be carefully reviewed prior to using this expedited procedure.
Why does the use of the term “may” in a rule create a problem?
Depending upon the context in which it is used, the term “may” can create the opportunity for the exercise of unbridled discretion by the agency. If a rule states that the agency “may” take a particular action, courts have interpreted this to mean that the agency may or may not take the action. See City of Miami v. Save Brickell Avenue, 426 So.2d 1100 (Fla. 3rd DCA 1983). For example, if a rule states that a hospital “may” be reimbursed for a surgical procedure, it is necessarily implied that the hospital may not be reimbursed. The hospital must not be required to guess whether or not it will be reimbursed, and the agency may not make the decision based upon whim or caprice. In order to avoid the possibility of unbridled discretion, a rule should state what an agency will do, and include any conditions under which the policy will not be applied.
Can changes to a proposed rule be based upon in-house staff comments?
Section 120.54(3)(d)1., F.S., provides that any change, other than a technical change, must be supported by the record of public hearings held on the rule, must be in response to written material submitted to the agency within 21 days after the date of publication of the notice of proposed rulemaking or submitted to the agency between the date of publication of the notice and the end of the final public hearing, or must be in response to a proposed objection by the committee. If in-house staff comments are discussed at a public hearing at which the proposed rule is considered, changes to the rule may be based on the comments.
I’m coming to the end of the 90 days for rule adoption. Are there any exceptions to the 90-day time limit?
Several options may be available to extend the time for filing a rule for adoption, depending upon the circumstances of the particular rule.
If I have questions or comments about an agency rule, may I contact the committee with my concerns?
Yes. Any citizen is welcome to contact the committee regarding agency rules. The committee is authorized by section 120.545, F.S., to examine proposed and existing rules to determine whether the rules are consistent with delegated legislative authority and comply with the rule adoption requirements of Chapter 120, F.S. It should be noted that in reviewing agency rules, the committee does not consider whether the rules are “good” or “bad,” nor does it question the legislative policy underlying the rules. The committee’s review is confined solely to the consideration of factors set out in Chapter 120, F.S.
The committee may be contacted at:
Joint Administrative Procedures Committee
Joint Administrative Procedures Committee ♦ 680 Pepper Building ♦ 111 W. Madison Street ♦ Tallahassee, FL 32399-1400 ♦ (850) 488-9110 ♦ (850) 922-6934 Fax