Escaping the labyrinth: a practical guide to rulemaking.

• Author: Oates, Jowanna Nicole
• Position: Administrative Law

In ancient Greek mythology, the labyrinth was a complex structure built to hold the Minotaur. At times, navigating the rule promulgation process may be as difficult as escaping a labyrinth. This article provides a brief guide to the rulemaking process and identifies some of the commonly encountered problems.

Notice of Rule Development

Once an agency determines that rulemaking is necessary, the publication of the notice of rule development is the first step in the rulemaking process. The publication of a notice of rule development is required for new rules and amendments to existing rules. (1) F.S. [section]120.54(2)(a) states in part: "Except when the intended action is the repeal of a rule, agencies shall provide notice of the development of proposed

rules by publication of a notice of rule development in the Florida Administrative Register before providing notice of a proposed rule...." (2) The notice of rule development gives the public the opportunity to participate in the rulemaking process. (3) The notice of proposed rule development must include the subject area of the proposed rule; a short explanation of the purpose and effect of the proposed rule; citation to the specific legal authority for the proposed rule; and the preliminary text of the proposed rule, if available, or a statement of how a person may obtain without a cost, a copy of the proposed rule. (4)

F.S. [section]120.54(2)(c) allows an agency to hold a rule development workshop. An agency is not required to hold a rule development workshop unless it is requested in writing by an affected person; however, a requested workshop is not required if the agency head explains in writing why the workshop is unnecessary. (5) If a rule development workshop is held, notice must be published at least 14 days in advance in the Florida Administrative Register. (6) F.S. Ch. 120 does not prescribe the time period that an agency must wait after the publication of the notice of rule development to publish the notice of rule proposed rulemaking. However, since [section]120.54(2)(a) requires the notice of proposed rule development to be published prior to the publication of the notice of proposed rulemaking, it appears that the earliest that a notice of proposed rulemaking may be published is the next day.

Notice of Proposed Rulemaking

A notice of proposed rulemaking is required "[p]rior to the adoption, amendment, or repeal of any rule other than an emergency rule." (7) A notice of proposed rulemaking (8) must include a statement of the purpose and effect of the proposed rule; a summary of the proposed rule; citation to rulemaking authority and law implemented; the text of the proposed rule; the procedure for requesting a public hearing; a summary of the statement of estimated regulatory costs (SERC), if one has been prepared; and a statement that an individual may provide the agency with information regarding the SERC or submit a proposal for a lower cost regulatory alternative in writing within 21 days after the publication of the notice of proposed rulemaking. The notice of proposed rulemaking must also include a statement indicating whether legislative ratification is necessary based upon the SERC; however, if a SERC has not been prepared, the notice must describe the information used by the agency in determining that legislative ratification is unnecessary. (9) Additionally, the notice of proposed rulemaking must include the name of the agency head that approved the rule and the date of approval. (10) An agency head may not delegate or transfer the responsibility to approve the notice of proposed rulemaking. (11) Finally, the notice of proposed rulemaking must include a reference to the date that the notice of proposed rule development was published in the Florida Administrative Register; (12) this information is not required for a rule repeal.

An agency must file with the Joint Administrative Procedures Committee (JAPC), at least 21 days prior to filing the proposed rule for adoption, the following documents: the proposed rule; materials incorporated by reference; a statement of the facts and circumstances justifying the proposed rule; any SERC that has been prepared; and a statement describing the extent to which the proposed rule relates to federal standards or rules on the same subject. (13) These documents assist JAPC in reviewing the proposed rule. F.S. [section]120.545 and Joint Rule 4.6 of the Florida Legislature authorize JAPC to examine a proposed rule to determine whether the rule adheres to the rulemaking requirements located in F.S. Ch. 120.

Section "120.54(3)(c)1 requires an agency to hold a hearing on the proposed rule if requested by an affected person, within 21 days after the publication of the notice of proposed rulemaking. The statute also allows an agency to hold a hearing even if not requested by an affected person. With regard to the purpose of the public hearing, the First District Court of Appeal has observed:

The purpose of a rule-making hearing under [F.S. [section]1120.54(3) is two-fold: (1) [t]o allow the agency to inform itself of matters bearing on the proposed rules or modifications thereof, and (2) [t]o allow the public, and specifically individuals and groups having particular interests and/or information, to participate in the rulemaking process. (14)

At the public hearing, agency staff must be present to explain the proposed rule and to respond to questions. (15) An agency may hold multiple public hearings on the proposed rule. (16)

Changes to a Proposed Rule

After the publication of the proposed rule, an agency may find that it needs to make changes. If the changes to the proposed rule are only technical, the agency must provide...