(1)(a) Within 21 days after publication of the notice required under s. 120.54(3)(a), a substantially affected person may submit to an agency a good faith written proposal for a lower cost regulatory alternative to a proposed rule which substantially accomplishes the objectives of the law being implemented. The proposal may include the alternative of not adopting any rule if the proposal explains how the lower costs and objectives of the law will be achieved by not adopting any rule. If submitted after a notice of change, a proposal for a lower cost regulatory alternative is deemed to be made in good faith only if the person reasonably believes, and the proposal states the person’s reasons for believing, that the proposed rule, as changed by the notice of change, increases the regulatory costs or creates an adverse impact on small businesses which was not created by the previously proposed rule. If such a proposal is submitted, the 90-day period for filing the rule is extended 21 days. Upon the submission of the lower cost regulatory alternative, the agency shall prepare a statement of estimated regulatory costs as provided in subsection (2), or shall revise its prior statement of estimated regulatory costs, and either adopt the alternative or provide a statement of the reasons for rejecting the alternative in favor of the proposed rule. The agency shall provide to the committee, within 7 days after its receipt, a copy of any proposal for a lower cost regulatory alternative, and within 7 days after its release, a copy of the agency’s response thereto. The agency may not file a rule for adoption before such documents, if applicable, have been provided to the committee.
(b) If a proposed rule will have an adverse impact on small business or if the proposed rule is likely to directly or indirectly increase regulatory costs in excess of $200,000 in the aggregate within 1 year after the implementation of the rule, the agency shall prepare a statement of estimated regulatory costs as required by s. 120.54(3)(b).
(c) The agency shall revise a statement of estimated regulatory costs if any change to the rule made under s. 120.54(3)(d) increases the regulatory costs of the rule.
(d) At least 21 days before filing the rule for adoption, an agency that is required to revise a statement of estimated regulatory costs shall provide the statement to the person who submitted the lower cost regulatory alternative and to the committee and shall provide notice on the agency’s website that it is available to the public.
(e) Notwithstanding s. 120.56(1)(c), the failure of the agency to prepare a statement of estimated regulatory costs or to respond to a written lower cost regulatory alternative as provided in this subsection is a material failure to follow the applicable rulemaking procedures or requirements set forth in this chapter.
(f) An agency’s failure to prepare a statement of estimated regulatory costs or to respond to a written lower cost regulatory alternative may not be raised in a proceeding challenging the validity of a rule pursuant to s. 120.52(8)(a) unless:
1. Raised in a petition filed no later than 1 year after the effective date of the rule; and
2. Raised by a person whose substantial interests are affected by the rule’s regulatory costs.
(g) A rule that is challenged pursuant to s. 120.52(8)(f) may not be declared invalid unless:
1. The issue is raised in an administrative proceeding within 1 year after the effective date of the rule;
2. The challenge is to the agency’s rejection of a lower cost regulatory alternative offered under paragraph (a) or s. 120.54(3)(b)2.b.; and
3. The substantial interests of the person challenging the rule are materially affected by the rejection.
(2) A statement of estimated regulatory costs shall include:
(a) An economic analysis showing whether the rule directly or indirectly:
1. Is likely to have an adverse impact on economic growth, private sector job creation or employment, or private sector investment in excess of $1 million in the aggregate within 5 years after the implementation of the rule;
2. Is likely to have an adverse impact on business competitiveness, including the ability of persons doing business in the state to compete with persons doing business in other states or domestic markets, productivity, or innovation in excess of $1 million in the aggregate within 5 years after the implementation of the rule; or
3. Is likely to increase regulatory costs, including any transactional costs, in excess of $1 million in the aggregate within 5 years after the implementation of the rule.
(b) A good faith estimate of the number of individuals and entities likely to be required to comply with the rule, together with a general description of the types of individuals likely to be affected by the rule.
(c) A good faith estimate of the cost to the agency, and to any other state and local government entities, of implementing and enforcing the proposed rule, and any anticipated effect on state or local revenues.
(d) A good faith estimate of the transactional costs likely to be incurred by individuals and entities, including local government entities, required to comply with the requirements of the rule. As used in this section, “transactional costs” are direct costs that are readily ascertainable by the agency based upon standard business practices, and may include:
1. Filing fees.
2. Expenses to obtain a license.
3. Necessary equipment.
4. Installation, utilities for, and maintenance of necessary equipment.
5. Necessary operations or procedures.
6. Accounting, financial, information management, and other administrative processes.
7. Labor, based on relevant wages, salaries, and benefits.
8. Materials and supplies.
9. Capital expenditures, including financing costs.
10. Professional and technical services, including contracted services necessary to implement and maintain compliance.
11. Monitoring and reporting.
12. Qualifying and recurring education, training, and testing.
13. Travel.
14. Insurance and surety requirements.
15. A fair and reasonable allocation of administrative costs and other overhead.
16. Reduced sales or other revenue.
17. Other items suggested by the rules ombudsman in the Executive Office of the Governor or by any interested person, business organization, or business representative.
(e) An analysis of the impact on small businesses as defined by s. 288.703, and an analysis of the impact on small counties and small cities as defined in s. 120.52. The impact analysis for small businesses must include the basis for the agency’s decision not to implement alternatives that would reduce adverse impacts on small businesses.
(f) In evaluating the impacts described in paragraphs (a) and (e), an agency must include, if applicable, the market impacts likely to result from compliance with the proposed rule, including:
1. Changes to customer charges for goods or services.
2. Changes to the market value of goods or services produced, provided, or sold.
3. Changes to costs resulting from the purchase of substitute or alternative goods or services.
4. The reasonable value of time to be spent by owners, officers, operators, and managers to understand and comply with the proposed rule, including, but not limited to, time to be spent completing requiring education, training, or testing.
(g) Any additional information that the agency determines may be useful.
(h) In the statement or revised statement, whichever applies, a description of any regulatory alternatives submitted under paragraph (1)(a) and a statement adopting the alternative or a statement of the reasons for rejecting the alternative in favor of the proposed rule.
(3) If the adverse impact or regulatory costs of the rule exceed any of the criteria established in paragraph (2)(a), the rule must be submitted to the President of the Senate and Speaker of the House of Representatives no later than 30 days before the next regular legislative session, and the rule may not take effect until it is ratified by the Legislature. The agency shall notify the committee of its submission of the rule to the Legislature for ratification within 3 business days after submittal.
1(4) Subsection (3) does not apply to the adoption of:
(b) Triennial updates of and amendments to the Florida Building Code which are expressly authorized by s. 553.73.
(c) Triennial updates of and amendments to the Florida Fire Prevention Code which are expressly authorized by s. 633.202.
(d) Emergency rules adopted pursuant to s. 120.54(4).
(5) For purposes of subsections (2) and (3), adverse impacts and regulatory costs likely to occur within 5 years after implementation of the rule include adverse impacts and regulatory costs estimated to occur within 5 years after the effective date of the rule. However, if any provision of the rule is not fully implemented upon the effective date of the rule, the adverse impacts and regulatory costs associated with such provision must be adjusted to include any additional adverse impacts and regulatory costs estimated to occur within 5 years after implementation of such provision.
(6)(a) The Department of State shall include on the Florida Administrative Register website the agency website addresses where statements of estimated regulatory costs can be viewed in their entirety.
(b) An agency that prepares a statement of estimated regulatory costs must provide, as part of the notice required under s. 120.54(3)(a), the agency website address where the statement of estimated regulatory costs can be read in its entirety to the Department of State for publication in the Florida Administrative Register.
(c) If an agency revises its statement of estimated regulatory costs, the agency must provide notice that a revision has been made in the manner provided under s. 120.54(3)(d)1. Such notice must also include the agency website address where the revision can be viewed in its entirety.
(7) The rules ombudsman in the Executive Office of the Governor must prescribe and post on a publicly accessible website a form that incorporates the factors in subsection (2). Agencies must use this form to prepare a statement of estimated regulatory costs as required by this section.
1Note.—As amended by s. 92, ch. 2013-183, which amended subsection (4) as amended by s. 1, ch. 2011-222. Section 2, ch. 2011-225, also amended subsection (4), and the language of that version conflicted with the version by s. 1, ch. 2011-222. The introductory paragraph of subsection (4) as amended by s. 92, ch. 2013-183, was published without change by s. 4, ch. 2025-189, for the purpose of adding paragraph (d) to the text version. As amended by s. 2, ch. 2011-225, subsection (4) reads:
(4) This section does not apply to the adoption of emergency rules pursuant to s. 120.54(4) or the adoption of federal standards pursuant to s. 120.54(6).
Cited 13 times | Published | Florida 1st District Court of Appeal | 2002 WL 83679
...invalidate a rule on the ground that it "imposes regulatory costs on the regulated person ... which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives," the challenger must comply with section 120.541(1)(a), Florida Statutes (1999)....
...proposed action "a good faith written proposal for a lower cost regulatory alternative to a proposed rule which substantially accomplishes the objectives of the law being implemented." Appellants argue that, because nobody submitted such a proposal, section 120.541(1)(c), Florida Statutes (1999), prohibited the ALJ from declaring the proposed rule an invalid exercise of delegated legislative authority pursuant to section 120.52(8)(g)....
Cited 1 times | Published | Florida 1st District Court of Appeal
...on of the agency
since it adopted the designated player rules.” 2
The ALJ found this rule was invalid because the Division failed to
materially follow rulemaking procedures by failing to file a SERC in response to
the LCRA as required by section 120.541, Florida Statutes....
...The Proposed Rule Was Invalid
We also find the ALJ correctly concluded that the repeal was an invalid
exercise of delegated legislative authority because the Division failed to follow
rulemaking procedures by failing to prepare a SERC as required by section
120.541, Florida Statutes, which is a factual finding not challenged by the
Division....
...ding in a revised statement of regulatory cost, the PSC took the position that the alternative did not facilitate just, reasonable, and compensatory rates, and did not therefore "substantially accomplish the objectives of the law being implemented." § 120.541(1)(a), Fla....
...rcise of delegated legislative authority and may not be utilized by the PSC for its stated regulatory purposes." A wide-ranging final order concluded that (1) the PSC's revised statement of estimated regulatory costs did not meet the requirements of section 120.541 and was so deficient as to be a material failure to follow rulemaking procedures under section 120.52(8)(a); (2) the proposed rule made it "impossible for a utility to determine the nature and extent of the presentation necessary to o...
...Among the requirements effective October 1, 1996, is that an agency make a statement of estimated regulatory costs [1] whenever a substantially affected person submits "a good faith written proposal for a lower cost regulatory alternative to a proposed rule." § 120.541(1)(a), Fla....
...(f) In the statement or revised statement, whichever applies, a description of any good faith written proposal submitted under paragraph (1)(a) and either a statement adopting the alternative or a statement of the reasons for rejecting the alternative in favor of the proposed rule. § 120.541(2), Fla....
...was received on July
1
The Commission is part of the Department and exercises the Department’s
“standard-setting authority” under chapter 403 and parts of chapter 373, Florida
Statutes. See §§ 20.255(6), 403.804(1), Fla Stat.
2
Statement of estimated regulatory costs. See § 120.541, Fla....
...120.54(3)(a);
[2] 10 days after the final public hearing is held on the
proposed rule as provided by s. 120.54(3)(e)2.;
[3] 20 days after the [SERC] or revised [SERC], if
applicable, has been prepared and made available as
provided in s. 120.541(1)(d); or
[4] 20 days after the date of publication of the notice
required by s....
...Accordingly, we
need not address whether the fourth point of entry was also triggered by the Notice
of Correction and/or the Notice of Change.
The third point of entry is triggered when a revised SERC is “prepared and
made available as provided in s. 120.541(1)(d).” Section 120.541(1)(d) provides
that “an agency that is required to revise a [SERC] . . . shall provide notice on the
agency’s website that it is available to the public.” One circumstance in which the
agency is required to revise a SERC is when a LCRA is submitted. § 120.541(1)(a),
Fla....
...of the fact that the LCRA was subsequently withdrawn. We need not resolve this
dispute because, whether it was required to or not, the Department did prepare a
revised SERC and did make it available to the public on its website in accordance
with section 120.541(1)(d)....
...By doing so, the Department triggered the third point
of entry in section 120.56(2)(a).
The Department argues that the revised SERC did not trigger a new point of
6
entry because, as the ALJ stated in the dismissal order, “the ‘revision’ contemplated
by section 120.541 is a revision to the estimated costs, not a change in the narrative
accompanying the estimated costs that has no effect on the costs.” We reject this
argument because it is inconsistent with section 120.541(1)(a), which specifically
contemplates that the revision to a SERC could simply be a “statement of the
[agency’s] reasons for rejecting the [LCRA] in favor of the proposed rule.”
We also reject the Department’s argume...
...determination of the invalidity of the rule . . . .”), (1)(b)2. (“The petition challenging
the validity of a proposed rule . . . must state . . . [f]acts sufficient to show that the
petitioner . . . would be substantially affected by the proposed rule”), Fla. Stat.; but
cf. § 120.541(1)(g) (stating that a rule cannot be invalidated based on the
agency’s wrongful rejection of a LCRA unless it is raised by a person whose
“substantial interests ....
...On March 4, 2015, at the tenth public hearing, the
Board determined that the amendment would increase regulatory costs to such an
extent that a revised statement of estimated regulatory costs (SERC) was necessary
and that in order for the amendment to take effect legislative ratification was
required. See § 120.541(2)-(3), Fla....
...Thereafter, the Board submitted the proposed amendment to the President of
3
the Senate and Speaker of the House of Representatives with a request for
legislative ratification during the 2016 legislative session. See § 120.541(3), Fla.
Stat. The Board also filed the rule amendment with the Department of State for
adoption, pursuant to section 120.54(3)(e), Florida Statutes. Pursuant to section
120.541(3), however, even though adopted, the amendment to rule 64B8-10.003
could not “take effect until it is ratified by the Legislature.”
The rule amendment was not ratified during the 2016 legislative session, but
the Board...
...“adopted” and when “effective.”).
We first address the status of the adopted amendment to the rule and whether
the amendment and therefore this appeal of the ALJ’s order is moot due to the lack
of legislative ratification of the amendment as required by section 120.541(3),
Florida Statutes (2016)....
...The failure of the Legislature to take up the Board’s request for ratification
of the amended rule upon its submission to the President of the Senate and Speaker
of the House does not preclude ratification in future legislative sessions. Although
section 120.541(3) is a fairly recent statute — adopted in 2010 — renewals of
other rule ratification requests which carried over to successive years’ legislative
sessions have already occurred....
...Rubottom,
Legislative Rule Ratification: Lessons from the First Four Years, 89 Fla. Bar J. 36,
40 (February 2015). For instance, a Department of Financial Services rule
adopting a workers’ compensation provider reimbursement manual was first
submitted for legislative ratification under section 120.541(3) in the 2012 session,
but was not considered by the Legislature during that session....
...during which it was submitted. There are
statutory deadlines for submission of a rule to the President of the Senate and
Speaker of the House for ratification, but no deadline for the Legislature to act
upon a rule submitted for ratification. See § 120.541(3), Fla....
