The Points of Entry for Rule Challenges Post Florida Pulp & Paper.

• Author: Ponder, Virginia
• Position: Administrative Law

Prior to the 1996 revision, the Florida Administrative Procedures Act (APA), F.S. Ch. 120, provided a single "point of entry" or "window of time" for filing a challenge to a proposed rule--21 days after publication of proposed rulemaking. (1) In explaining the underlying purpose behind providing the rule challenge remedy, the late Patricia A. Dore, professor of law at Florida State University, acknowledged that while its "history. offers little insight into legislative intent," it was "intended to create an opportunity for a citizen-initiated check on rulemaking that exceeded delegated statutory authority" and "implements the 'ideal of participatory democracy.'" (2)

The 1996 revision of the APA fortified the rule challenge remedy by creating three additional points of entry--1) 10 days after the final public hearing is held on the proposed rule; 2) 20 days after the statement of estimated regulatory costs (SERC) or revised SERC has been prepared and made available; and 3) 20 days after publication of a notice of change. (3) The rationale for the establishment of these new points of entry was to 1) provide a meaningful opportunity to challenge where the existing timelines related to SERCs and public hearings made the filing of a challenge triggered by these activities "virtually impossible"; 2) "minimize unnecessary challenges to proposed rules" where an agency has addressed comments or objections during a public hearing; and 3) permit challenges in the circumstance when an agency has made changes to its rule such that it is altered from its initial introduction to the public. (4)

This article reviews the four points of entry provided by the APA and the recent decision of Fla. Pulp & Paper Ass'n Envtl. Affairs, Inc. v. Dep't of Envtl. Prot. and Fla. Envtl. Regulation Comm'n, 223 So. 3d 417 (Fla. 1st DCA 2017) (Florida Pulp & Paper).

The Four Points of Entry

As set forth above, [section]120.56(2)(a) governs the time frames for when a rule challenge may be filed, and provides:

A petition alleging the invalidity of a proposed rule shall be filed within 21 days after the date of publication of the notice required by s. 120.54(3)(a); within 10 days after the final public hearing is held on the proposed rule as provided by s. 120.54(3) (e)2.; within 20 days after the statement of estimated regulatory costs or revised statement of estimated regulatory costs, if applicable, has been prepared and made available as provided in s. 120.541(1)(d); or within 20 days after the date of publication of the notice required by s. 120.54(3)(d).... A person who is not substantially affected by the proposed rule as initially noticed, but who is substantially affected by the rule as a result of a change, may challenge any provision of the resulting proposed rule. (5)

Each of the four points of entry correlates to and is triggered by distinctive activities within the rule adoption process as found in F.S. [section]120.54(3).

Via [section]120.54(3)(a)1, the APA requires agencies to provide notice of intended action prior to the adoption, amendment, or repeal of any rule (other than an emergency rule). This notice initiates the adoption process, and the publication of this notice triggers the first point of entry. (6)

The second window opens following the final public hearing as provided by F.S. [section]120.54(3)(e)2. Notably, the term "public hearing" is broadly defined within [section]120.54(3)(e)2 to encompass "any public meeting held by any agency at which the rule is considered." Within the adoption procedures, F.S. [section]120.54(3)(c) provides an agency may schedule a public hearing on the proposed rule; however, it is required to do so if an affected party requests a public hearing within 21 days of the publication of the notice of intended action. (7) Thus, the statutory text permits circumstances in which a rule could reach adoption without the occurrence of a public hearing, thereby leaving the second window unopened.

A point of contrast between this second window of time and the other three is the noticing scheme. While the uniform rules adopted pursuant to F.S. [section]120.54(5) address notice for a public hearing, both the uniform rules and the APA lack an explicit notice requirement for the final public hearing as contemplated by the second point of entry. As a practical matter, such a specific notice requirement may well be unworkable because there are instances in which an agency would not know whether a hearing/workshop constitutes the "final" public hearing until the conclusion of that particular hearing/workshop. However, requiring notice to convey the occurrence of the final public hearing would be more consistent with the contemporaneous noticing associated with the other points of entry and may bring more clarity to this part of the rulemaking process.

The preparation or revision of a SERC triggers the third point of entry. The rule adoption procedures "encourage" agencies to prepare a SERC of the proposed rule; however, under [section]120.54(3)(b)1, agencies must prepare a SERC in two instances: if the proposed rule will have an adverse impact on a small business or if the proposed rule is likely to directly or indirectly increase total regulatory costs in excess of $200,000 within one year after the implementation of the rule. (8) Section 120.541 generally addresses SERCs and sets forth a third circumstance in which an agency is obligated to prepare (or revise) a SERC--in response to a lower cost regulatory alternative (LCRA) submitted by a substantially affected person. (9) The agency's failure to respond to the LCRA or prepare a SERC is a material failure to follow required procedures; thus, it constitutes an invalid exercise of legislative authority. (10) To contest a rule based on this material failure, the SERC provision of [section]120.541(1)(f) imposes a one-year challenge limitation from the effective date of the rule and requires the challenger be substantially affected by the rule's regulatory costs. (11)

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