Legislative Rule Ratification: Lessons from the First Four Years

In 2010, Florida passed a law that required the legislature to approve any new agency rules that would have a big economic impact or cost a lot to enforce. Since then, the House of Representatives set up a process for agencies to submit these rules for approval. If a rule meets the criteria, it has to be sent to the leaders of the House and Senate 30 days before the next legislative session for approval. The rule can’t go into effect until the legislature approves it. Section 120.541(3) of Florida law requires that any rule made by a government agency, which will have a significant economic impact, must be approved by the legislature before it can take effect. The agency must also prepare a statement of estimated regulatory costs if the rule is expected to increase costs by more than $200,000 within one year. The statement must also show whether the rule is likely to have adverse impacts of more than $1 million on economic growth, employment, investment, business competitiveness, or regulatory and compliance costs within the first five years. This requirement helps determine whether a rule will need approval from the legislature before it can be implemented. The Florida House of Representatives has a process for reviewing and approving agency rules. Agencies have to submit requests to the Senate president and House speaker, and then the requests are reviewed by the rulemaking subcommittee and relevant committees. If the committees recommend approval, the speaker assigns the request to appropriate committees for formal consideration.

The legislature can approve rules either by passing a law or by a concurrent or joint resolution. The House decided to use a general bill to approve any rules submitted. This means that once a rule is approved by the legislature, it has the same effect as a law and can only be changed by the legislature. To avoid turning approved rules into laws and to protect people’s rights to challenge rules, each approval bill is narrowly focused on the legal determination that the rule can take effect. A model template was created to make it easy for the Florida legislature to pass a bill that just ratifies a specific rule without changing it. This template was used from 2011 to 2014 and helped the legislature focus on the impact of these rules on the economy. It also made sure that the rules were still subject to the normal law-making process. From January 2011 to May 2014, the speaker of the House received 36 requests to approve rules, out of over 8,500 filed. In 2011, 13 requests were received, but only 7 were considered. In 2012, 2 requests were received, and both were ratified. In 2013, 18 rules were requested to be approved by the Department of Environmental Protection, and they were all ratified. No additional requests were made in 2014. In 2014, the Florida House received nine requests to approve new rules, resulting in four new laws. These laws ratified rules related to contracting for a petroleum pollution cleanup program, statistical information gathering from title insurance agencies, trauma center quality improvement programs, and mandatory forms for medical services provided to youth in juvenile justice facilities. Some rules, like changes to the Florida Building Code and notices of premium impact from the Affordable Care Act, were exempt from approval by the legislature. DEP has been seeking exemptions from the legislature to ratify certain proposed rules for the past three years. These exemptions were necessary because there were pending challenges to the rules that couldn’t be resolved in time for ratification. The exemptions include rules related to nutrient pollution in Florida waters and establishing minimum water flows and levels for certain rivers. It’s important for agencies and parties involved in proposed rules to be heavily involved in the rule development process and engage with legislative staff early on. Before making a new rule, agencies should analyze the economic impact and other effects it will have. This analysis will help them figure out if they need to prepare a thorough SERC. Interested parties should also consider and give recommendations on the potential costs and impacts of the new rule. In 2013, it was found that agencies had a hard time figuring out these economic factors, which could lead to a rule being invalidated if they get it wrong. In 2014, a committee recommended better guidance for agencies preparing SERCs, but it wasn’t made into law. However, agencies are still advised to consider these recommendations when analyzing the impacts of new rules. Once a government agency has a rule that needs to be approved by the legislature, they need to talk to the right people in the legislature about it. They should let them know when they plan to ask for approval and if there are any issues that might cause a delay. After they ask for approval, they need to keep in touch with the legislature to make sure things keep moving. It’s also helpful to have people from the agency and other experts explain the rule to the legislature. If the agency wants to be exempt from getting approval for a rule, they also need to talk to the legislature early on and be ready to give a lot of information about the rule or the category of rules they want exempted. They would need to show that there are already a lot of rules about that topic, or that the legislature or public has been really involved in making the rule, so getting approval from the legislature isn’t necessary. After a new rule is made, the agency that made it needs to ask the legislature to officially approve it if it will have a big impact on the economy. They have to send the rule and some other paperwork to the speaker of the house at least 30 days before the next legislative session. The speaker decides which committee will review the rule. It’s best for the committee to introduce a bill to get the rule approved. Staff and others who care about the rule should talk to the committee as the bill moves forward. If a request for a new law isn’t approved by the government, the agency should figure out what went wrong and fix it. They might need to change the wording of the law or ask for a new law to be made. If a law is not approved, it can’t be enforced. If someone challenges the law and proves it was never approved, it could be invalidated. If this happens, the agency should ask for approval again or withdraw the law. Since the law was passed in 2010, the legislature has been careful about approving rules. In the past four years, they have mostly approved the rules without any problems. Now, the SERC plays a big role in making rules, so agencies should think about how they will affect the economy. And when they ask the legislature to approve or exempt a rule, they should keep talking to the committees in charge. A “rule” is a statement from a government agency that explains or sets a law or policy. It can also include forms that require information. Certain types of internal memos and legal opinions are not considered rules. When the Florida House of Representatives makes certain decisions, they don’t always need the governor’s approval. The Florida Constitution and laws have rules for making and passing laws and amendments. When a rule is made by a government agency, it has to be approved by the legislature before it becomes law. In 2011, there were some confusion and mistakes with this process, but it was fixed in 2011-141. These are lists of rules and regulations that were requested to be ratified by the Florida House of Representatives. Some of them were still pending approval as of certain dates mentioned. The lists include rules about things like workers’ compensation, water pollution limits, and prescription medications. The process for approving these rules follows a specific legal process set out by the state government. This passage discusses various laws and rules related to emergency rulemaking in Florida. It mentions some errors in the language of the laws and rules, and how they were corrected. It also talks about specific rules and proposals that were published. Finally, it explains the encouragement for agencies to develop a Statement of Estimated Regulatory Costs (SERC) when it is not mandated. A bill that would have been really helpful didn’t pass, but the guidelines in it could still be useful for making similar rules. The recommendations from a meeting about the bill are available online. The president of the Senate and the speaker of the House are important people in the government. Some important documents are not available online. There are rules about how bills are made in the House. The Senate has handled some bills quickly without a companion bill. There is a law that outlines how government agencies have to follow rules.

Source: https://www.floridabar.org/the-florida-bar-journal/legislative-rule-ratification-lessons-from-the-first-four-years/