HB 1565 -

Next Tuesday’s special session will include overrides of Gov. Crist’s vetoes for up to nine bills, including HB 1565 - Rulemaking by Rep. Dorworth. If (when) the Governor’s veto is overridden, the bill will immediately become law and go into effect. The environmental community’s chief concern is that any rule having an “adverse” impact on small businesses of $1 million over five years will have to be ratified by the legislature.

The “adverse” fiscal impact threshold equals just over a penny for each Floridian for five years.

Almost any rule that requires polluters to clean up their act or restricts land use could trigger the ratification provision, making it almost impossible to do anything to protect clean water, stop sprawl, or reduce Florida ’s waste stream. And it’s not just the environment. Traffic safety, physicians and hospitals, insurance regulations, child care, public and private schools, and scores of other areas will feel the impact too. At best, ratification will mean a one year delay to adopt rules. At worst, nothing will ever get done.

The rationale offered by incoming House leaders says the bill merely “changes the criteria for how certain rule-making authority granted to agencies is addressed.” Though they don’t offer any examples of agency overreach, it goes on to warn, “Failure to override the Governor’s veto will allow executive agencies to continue adopting administrative rules with significant negative economic impacts at a time when the state’s economy is struggling to recover from the most serious economic downturn.”

State agencies only make rules when authorized to do so in a law passed by the legislature. Requiring ratification of proposed rules means they have to go through the entire lawmaking process all over again. Since over 2600 bills are filed each session and fewer than 400 become law, it is expected that few rules will make it through. Opponents of a rule will only have to persuade a committee chair not to agenda it to block its passage.

Rule-making is important because law sets policy without (usually) establishing all of the details to implement it. (See an example here: Phosphate Mine Reclamation) If agency rules are suspended pending ratification, there will be no way to enforce the law that authorized the rule in the first place.

There are already extensive safeguards in place to prevent agencies from overstepping their bounds, especially with respect to small businesses and small counties. Even the House staff analysis acknowledges that proposed rules must pass muster with the Joint Administrative Procedures Committee (JAPC) to ensure the rule is a valid exercise of delegated legislative authority and that the costs it imposes are reasonable.

Not only that, agencies must prepare a Statement of Estimated Regulatory Costs (SERC) that calculates how much it will cost business to comply, how much it will cost to enforce, and any costs to local governments and impacts on revenues. Further, if anyone has presented a lower-cost alternative to the proposed rule, the SERC must include that as well, and the agency must either adopt the alternative or give a detailed explanation of why not.

The staff analysis points out: “In addition to other required elements of a SERC, the bill requires the inclusion of an economic analysis of whether the proposed rule directly or indirectly is likely to have an adverse impact within five years after rule implementation, on Business competitiveness, including private-sector investment, productivity, innovation, or ability of persons doing business in Florida to compete with out-of-state businesses or domestic markets, in excess of $1 million in the aggregate.”

These requirements will increase the workload and expense for agencies and JAPC, making it harder for them to perform their core mission. It may require agencies to hire outside contractors to assist in preparing an increased number of SERCs covering significantly more material. The staff analysis notes that even businesses may suffer because of delays in review and ratification. Or, businesses may benefit if the delayed rule is hostile to their interests.

It will probably cost agencies considerably more than the ratification threshold of $200,000 per year to provide the added information.

Sierra Club Florida opposes overriding Gov. Crist’s veto of HB 1565. Contact incoming House Speaker Cannon dean.cannon@myfloridahouse.gov and incoming Senate President Haridopolos haridopolos.mike.web@flsenate.gov and urge them not to put the override of 1565 on the special session agenda. If your local legislators were incumbents their emails are the same as last year. If they are new, their emails have not yet been assigned.

David J. Cullen
941-323-2404 (cell)