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Florida REINS-style state law

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What is a REINS-style state law?

REINS-style state laws refer to state laws in the spirit of the federal Regulations from the Executive in Need of Scrutiny (REINS) Act that require legislative approval of proposed state agency rules with associated costs in excess of a certain monetary threshold. REINS-style state laws aim to give state legislators the preemptive authority to halt the initial enactment of certain administrative regulations.

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The Florida REINS-style state law (Laws of Florida, Chapter 2010-279) is a REINS-style state law enacted by the Florida State Legislature on November 16, 2010, over the veto of then-Republican Florida Governor Charlie Crist that amended the Florida Administrative Procedure Act to require legislative approval of agency rules with associated economic costs of $1 million or more over five years before they can take effect, among other provisions.[1]

Laws of Florida, Chapter 2010-279, includes the following provisions, according to an analysis by the Florida State Legislature:[2]

“
  • Requires agencies to prepare statements of [estimated] regulatory costs (SERCs) and economic analyses for certain proposed rules, amended rules, and rule repeals;
  • Stays the implementation of rules that trigger economic-development thresholds until the Legislature has had an opportunity to review and ratify them; and
  • Gives 'substantially affected persons' additional time to review rules and submit lower-cost regulatory alternatives to the agencies.[3]
 ”


REINS-style state laws refer to state laws in the spirit of the federal Regulations from the Executive in Need of Scrutiny (REINS) Act. These laws require legislative approval of proposed state agency rules that carry associated costs in excess of a certain monetary threshold.

Background

See also: Rulemaking, REINS Act, Reform proposals related to the nondelegation doctrine

The federal REINS Act, which provisions of the Florida state law were modeled on, was initially designed by Tea Party activist Lloyd Rogers in 2009. Rogers contacted former U.S. Representative Geoff Davis (R-Ky.) to propose legislation requiring that "all rules, regulations, or mandates that require citizens, state or local government financial expenditures must first be approved by the U.S. Congress before they can become effective." The proposal was incorporated into the Republican Party's Pledge to America legislative agenda leading up to the 2010 election cycle and was later introduced as legislation. It has since been introduced in the 112th Congress (2011-2013) through the 118th Congress (2023-2025).[4][5]

Legislative history

House Bill (HB) 1565 was introduced to the Florida House of Representatives on March 2, 2010, by the Economic Development & Community Affairs Policy Council, the Governmental Affairs Policy Committee, and Republican state Representatives Chris Dorworth, Clay Ford, and Matt Gaetz. The bill proposed several changes to the agency rulemaking process in the Florida Administrative Procedure Act, including a REINS-style provision requiring the state legislature to ratify all agency rules with economic costs in excess of $1 million over five years. The bill unanimously passed both chambers of the Florida Legislature.[6][2]

Governor Charlie Crist (R) vetoed the bill, arguing in his veto message that "instead of addressing regulatory costs, this bill encroaches on the separation of powers." Crist argued that agency rulemaking is a lawful exercise of executive—not legislative—power. He also suggested that HB 1565 could harm the state's economy by slowing down the rulemaking process.[7]

State lawmakers later voted in a special session to override the governor's veto. The House voted 99-21 and the Senate voted 32-7 to override the veto. The bill took effect on November 17, 2010, in Laws of Florida, Chapter 2010-279.[1][8]

Below is an abbreviated timeline of the legislative history of 2010 House Bill 1565 - Rulemaking:[1]

  • March 2, 2010: HB 1565 was introduced to the Florida House of Representatives by the Economic Development & Community Affairs Policy Council, the Governmental Affairs Policy Committee, and Republican state Representatives Chris Dorworth, Clay Ford, and Matt Gaetz and read for the first time.
  • March 10, 2010: The bill was referred to the Governmental Affairs Policy Committee.
  • March 24, 2010: The bill was reported favorably with a committee substitute by the Governmental Affairs Policy Committee.
  • April 1, 2010: The bill was referred to the Economic Development and Community Affairs Policy Council.
  • April 16, 2010: The bill was reported favorably with a committee substitute by the Economic Development and Community Affairs Policy Council.
  • April 26, 2010: The bill passed the House as amended with a vote of 113-0.
  • April 29, 2010: The bill passed the Senate with a vote of 36-0.
  • May 28, 2010: The bill was vetoed by Governor Charlie Crist (R).
  • November 16, 2010: The House voted to override the governor's veto with a vote of 99-21 and the Senate voted to override the governor's veto with a vote of 32-7.
  • November 17, 2010: HB 1565 became effective as Laws of Florida, Chapter 2010-279.

Ratification and the rulemaking process

See also: Florida Administrative Procedure Act

The Florida REINS-style state law requires that lawmakers ratify applicable rules before the rules can take effect. Agencies must submit ratification requests to the President of the Senate and the Speaker of the House of Representatives no later than 30 days prior to the start of the next regular legislative session.[1]

Ratified rule requests are not codified as state statutes, nor does ratification replace the rulemaking process. Instead, ratified rule requests serve as validation for state agencies to promulgate the rules through the rulemaking process put forth in the Florida Administrative Procedure Act.[9]

Provisions

The sections below contain a series of quotes explaining the major provisions of the law, according to an analysis by the Florida Senate. The quotes outline the proposed changes in the law that impact "when agencies must prepare SERCs; what information those SERCs must evaluate; the Legislature’s role in reviewing and acting on proposed rules that impact economic-development issues; and how much time persons substantially affected by a rule have to review it and to submit an alternative."[2]

Statements of estimated regulatory costs

The following section outlines amendments to requirements regarding agency preparation of statements of estimated regulatory costs (SERCs):

“

Section 1 amends s. 120.54, F.S., to require agencies to prepare SERCs on any proposed rule that either has an adverse impact (rather than simply an impact, as expressed in previous law) on small business, or is likely to directly or indirectly increase regulatory costs in excess of $200,000 in the aggregate in Florida within 1 year after implementation of the rule. The term 'regulatory costs' is not defined, but implies adverse impacts on the private-sector and individuals, not only small businesses.

The bill amends s. 120.54(4)(c), F.S., to provide that emergency rules are only effective for 90 days and not renewable unless the agency has initiated rulemaking on the subject of the emergency rule and either:

  • A filed challenge to the proposed rules remains pending; or
  • The proposed rules are awaiting ratification by the Legislature.[3]
 ”

Rulemaking and review process

The following section outlines amendments to regulations regarding procedures for submitting and reviewing SERCs and proposed rules:

“ Section 2 amends s. 120.541, F.S., to make a number of changes, such as extending certain deadlines, establishing thresholds for SERC review, and involving the Legislature in reviewing and acting on proposed rules. It deletes or rearranges existing provisions related to when a rule may be declared invalid to reflect the changes to this section of law.

The language in Section 1 referring to the $200,000 threshold of impact is repeated in this section. Additionally, an agency would be required to revise its SERC if any further change to the proposed rule increases regulatory costs. At least 45 days before filing a proposed rule for final adoption, an agency must provide a copy of its revised SERC to the person who submitted the lower cost regulatory alternative and to JAPC, and provide notice on its website that the document is available to the public.

An agency that fails to prepare or revise a SERC pursuant to these new conditions has committed a material failure to follow the state’s rulemaking procedures, notwithstanding provisions in s. 120.56(1)(c), F.S., that allow an agency to rebut charges that it has committed a material failure. Additionally, any rule that is challenged by a substantially affected person because it is an 'invalid exercise of delegated legislative authority' imposing regulatory costs on a regulated person, city, or county that could be reduced by a lower cost alternative, may not be automatically declared invalid unless:

  • This issue is raised in an administrative proceeding within 1 year after the rule’s effective date;
  • The challenge is to the agency’s rejection of a lower-cost regulatory alternative pursuant to s.120.541(1)(a), F.S.,23 or under s. 120.54(3)(b)2.b., F.S., related to notification to SBRAC that the proposed rule impacts small businesses; and
  • The substantial interests of the person challenging the agency on its proposed rule are materially affected by the rejection of the lower cost alternative.

Section 120.541(2)(a), F.S., is amended to require SERCs to include an economic analysis of whether the proposed rule, directly or indirectly:

  • 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 implementation of the rule;
  • Is likely to have an adverse impact on business competitiveness, including the ability of persons doing business in Florida 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 implementation of the rule; or
  • Is likely to increase regulatory costs, including any transactional costs, in excess of $1 million in the aggregate within 5 years after implementation of the rule.

Additionally, SERCs must include:

  • Any transactional costs likely to be incurred by individuals, entities, or small businesses, 'any other costs necessary to comply with the rule;'
  • The basis for the agency’s decision not to implement alternatives that would reduce adverse impacts on small businesses; and
  • A description of any regulatory alternatives, rather than “good faith written proposals,” submitted by the parties and a statement by the agency that it is adopting the alternative or giving the reasons why it is rejecting the alternative.

Emergency rules adopted pursuant to s. 120.54(4), F.S., or federal standards adopted pursuant to s. 120.54(6), F.S., are exempt from this new economic analysis component of the SERC.

A new subsection (3) is created in s. 120.541, F.S., to require that any proposed rule which has an adverse impact or regulatory costs in excess of the criteria listed above may not go into effect until it is ratified by the Legislature. In such cases, the rule must be submitted to the President of the Senate and the Speaker of the House of Representatives no later than 30 days prior to the next regular legislative session.[3]

”

Challenging rules

The following section outlines amendments to regulations regarding the authority to challenge rules:

“ Section 3 amends s. 120.56(2)(a), F.S., to allow a person substantially affected by a proposed rule to challenge the rule within 44 – rather than 20 – days after the SERC or revised SERC has been prepared and made available.[3] ”

Requests for additional information

The following section outlines amendments to regulations regarding the time period for requesting or submitting additional information related to licensing:

“ Section 4 amends s. 120.60(1), F.S., to provide that an agency may establish by rule the time period for submitting any additional information requested by the agency related to licensing. For good cause shown, the agency must grant a request for an extension of time for submitting the additional information. If the applicant believes the agency’s request for additional information is not authorized by law or rule, the agency, at the applicant’s request, must proceed to process the application.[3] ”

Noteworthy use of the Florida REINS-style state law

The following sections identify a selection of noteworthy applications of the Florida REINS-style state law since its enactment in 2010.

Proposed Styrofoam packaging ban (2022)

The Florida State Legislature in 2022 used the REINS-style provision of Laws of Florida, Chapter 2010-279, to withhold legislative approval of an agency proposal to ban Styrofoam packaging in grocery stores. Florida Agriculture Commissioner Nikki Fried in 2021 proposed the ban through the rulemaking process, but state lawmakers did not advance a bill to approve the proposal.[6][10]

Early use of the Florida REINS-style state law (2011-2014)

In a study of the four-year period after HB 1565 became law, the Florida Bar Journal found that the state legislature received 36 valid rule ratification requests out of the 8,535 rules filed by state agencies (roughly 2,100 rules per year).[9]

See also

External links

Footnotes

  1. ↑ 1.0 1.1 1.2 1.3 Florida House of Representative, "CS/CS/HB 1565 (2010) - Rulemaking," accessed October 20, 2022
  2. ↑ 2.0 2.1 2.2 Florida House of Representatives, "Veto Message Bill Analysis - CS/CS/HB 1565," accessed October 20, 2022
  3. ↑ 3.0 3.1 3.2 3.3 3.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  4. ↑ The Jackson Sun, "We were never closer to seeing REINS Act become law," January 4, 2017
  5. ↑ Boston Herald, "Smith: Congress can regain power with REINS," January 6, 2017
  6. ↑ 6.0 6.1 Foundation for Government Accountability, "Why Florida is a National Model for Regulatory Reform," September 21, 2022
  7. ↑ Governor Charlie Crist, "Veto Message—HB 1565," May 28, 2010
  8. ↑ The Florida Bar Journal, "THE 2010 AMENDMENTS TO THE APA: LEGISLATURE OVERRIDES VETO OF LAW TO REQUIRE LEGISLATIVE RATIFICATION OF “MILLION DOLLAR RULES," May 2011
  9. ↑ 9.0 9.1 Florida Bar Journal, "LEGISLATIVE RULE RATIFICATION: LESSONS FROM THE FIRST FOUR YEARS," accessed October 2022
  10. ↑ Florida Retail Foundation, "2022 Legislative Session Report," accessed October 21, 2022
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