Before 1996, the Florida Administrative Procedures Act (APA) allowed challenges to proposed rules to be filed only 21 days after they were published. In 1996, the APA was changed to allow challenges to be filed at three additional times: 10 days after a public hearing, 20 days after a statement of estimated regulatory costs (SERC) is prepared, and 20 days after a notice of change is published. These changes were made to make it easier for people to challenge rules and to prevent unnecessary challenges. This article reviews the four times when challenges can be filed and discusses a recent court decision related to this issue. There are four points in the rule-making process where someone can challenge a proposed rule. The first is when the agency gives notice of the proposed rule. The second is after the final public hearing on the rule. The third is after the agency prepares a statement of estimated costs for the rule. And the fourth is when the agency publishes notice of the proposed rule. If someone is not affected by the original proposed rule but is affected by a change, they can challenge the rule at any of these points. The rules for giving notice about a public hearing are different for the second step compared to the other steps. The rules don’t specifically require notice for the final public hearing. It might be hard to always know when the final hearing will be, but making sure people know when it’s happening would make the process clearer for everyone. When a government agency is making new rules, they have to follow certain procedures. One of these procedures is to prepare a document called a Small Business Impact Statement if the new rule will affect small businesses or if it will increase regulatory costs by a lot. The agency also has to prepare this document if someone suggests a cheaper alternative to the new rule and the agency doesn’t respond. If the agency doesn’t follow these rules, their new rule could be challenged and invalidated. After the agency finishes making the new rule, they have to inform a government committee and publish a notice if there have been any changes to the rule. Florida’s administrative law allows challenges to proposed rules, but with limitations. If someone is affected by a proposed rule, they can only challenge changes made to the rule, not the original version. In the case of Florida Pulp & Paper, the court reversed a decision to dismiss a rule challenge, finding that a revised Statement of Estimated Regulatory Cost (SERC) triggered the opportunity to challenge the rule. The court also clarified that challengers can use any of the four points of entry specified in the law. The issue of whether a “Notice of Correction” triggers a point of entry was left unresolved. The court’s decision in Florida Pulp & Paper allows people affected by a proposed rule to challenge it, even when they previously thought they couldn’t. This gives people a chance to participate in the rule-making process and holds the government accountable. The Department of State recommended using a “notice of correction” to communicate technical changes to proposed rules, even though it’s not required by law. This goes against the exact wording of the law, but it seems to be a common practice. A couple of cases in Florida were challenged because the parties only tried to change the rules after they were already proposed. The court said it was their fault and they couldn’t challenge the rules later on. In one case, the court said it was like saying “nanny nanny boo boo” to the government. The Seminole Tribe also filed a petition late, so it was officially filed the next business day. The Seminole Tribe of Florida, City of Miami, Fla. Pulp & Paper, and Martin County challenged a proposed rule by the Department of Environmental Protection and the Florida Environmental Regulation Commission. The court initially ruled in favor of the Department and Commission, but the decision was later overturned by the First District Court of Appeal and then adopted by the Third District Court of Appeal. The main issue was whether the rule was valid under Florida law. The courts ultimately sided with the Seminole Tribe and the City of Miami, stating that the rule was invalid. The article discusses the importance of including all necessary information in notices for proposed rulemaking. It also mentions letters exchanged between different legal offices. The author is a lawyer and the article was submitted on behalf of a legal section. The Florida Bar aims to instill principles of duty and service in its members.
Source: https://www.floridabar.org/the-florida-bar-journal/the-points-of-entry-for-rule-challenges-post-florida-pulp-paper/
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