Florida Senate - 2018                                    SB 1410
       
       
        
       By Senator Rader
       
       
       
       
       
       29-01116-18                                           20181410__
    1                        A bill to be entitled                      
    2         An act relating to administrative procedures; amending
    3         s. 120.52, F.S.; revising and providing definitions;
    4         amending s. 120.536, F.S.; removing the authority of
    5         the Administrative Procedures Committee to petition an
    6         agency regarding a rule or a portion thereof exceeding
    7         the agency’s rulemaking authority; amending s. 120.54,
    8         F.S.; applying certain provisions applicable to all
    9         rules other than emergency rules to repromulgated
   10         rules; requiring that a proposed rule and material
   11         proposed to be incorporated by reference be available
   12         to the public; requiring that material proposed to be
   13         incorporated by reference be made available in a
   14         specified manner; requiring an agency to provide
   15         notice of any offered regulatory alternative to the
   16         committee by a certain date; requiring an agency to
   17         file a copy of a petition to initiate rulemaking with
   18         the committee; amending s. 120.541, F.S.; requiring an
   19         agency to provide a copy of any proposal for a lower
   20         cost regulatory alternative to the committee by a
   21         certain date; creating s. 120.5435, F.S.; providing
   22         legislative intent; requiring agency review of rules
   23         and the repromulgation of rules that do not require
   24         substantive changes; requiring an agency to publish a
   25         notice of repromulgation in the Florida Administrative
   26         Register and file a rule for repromulgation with the
   27         Department of State within a specified time period;
   28         requiring an agency to file a notice of repromulgation
   29         with the committee within a specified time period;
   30         requiring the committee to certify as to whether an
   31         agency has responded to the committee’s comments and
   32         inquiries; requiring withdrawal of a rule proposed for
   33         repromulgation if the rule is not filed within a
   34         specified time period; providing that a repromulgated
   35         rule is not subject to challenge as a proposed rule
   36         and that certain hearing requirements do not apply;
   37         requiring an agency to file a specified number of
   38         certified copies of a proposed repromulgated rule and
   39         any material incorporated by reference if a certain
   40         condition is met; providing that a repromulgated rule
   41         is adopted upon filing with the department and becomes
   42         effective after a specified time period; requiring the
   43         department to update certain information in the
   44         Florida Administrative Code; requiring the department
   45         to adopt rules by a certain date; amending s. 120.55,
   46         F.S.; providing that the department shall require
   47         material incorporated by reference in a rule to be
   48         filed in a certain manner after a specified date;
   49         requiring the department to include the date of a
   50         technical rule change in the Florida Administrative
   51         Code; providing that a technical change does not
   52         affect the effective date of a rule; requiring the
   53         department to adopt specified rules; amending s.
   54         120.569, F.S.; requiring that certain documents filed
   55         with the Division of Administrative Hearings be filed
   56         electronically; relieving certain parties to an
   57         administrative proceeding from a requirement to serve
   58         documents to other parties registered for electronic
   59         filing; amending ss. 120.80, 120.81, 420.9072,
   60         420.9075, and 443.091, F.S.; conforming cross
   61         references; providing an effective date.
   62          
   63  Be It Enacted by the Legislature of the State of Florida:
   64  
   65         Section 1. Present subsections (16) through (22) of section
   66  120.52, Florida Statutes, are renumbered as subsections (17)
   67  through (23), respectively, subsection (5) of that section is
   68  amended, and a new subsection (16) is added to that section, to
   69  read:
   70         120.52 Definitions.—As used in this act:
   71         (5) “Division” means the Division of Administrative
   72  Hearings. Any document filed with the division by a party
   73  represented by an attorney shall be filed by electronic means
   74  through the division’s website. Any document filed with the
   75  division by a party not represented by an attorney shall,
   76  whenever possible, be filed by electronic means through the
   77  division’s website.
   78         (16) “Repromulgate” or “repromulgation” means the
   79  publication and adoption of an existing rule following an
   80  agency’s review of the rule for consistency with the powers and
   81  duties granted by its enabling statutes.
   82         Section 2. Subsection (3) of section 120.536, Florida
   83  Statutes, is amended to read:
   84         120.536 Rulemaking authority; repeal; challenge.—
   85         (3) The Administrative Procedures Committee or Any
   86  substantially affected person may petition an agency to repeal
   87  any rule, or portion thereof, because it exceeds the rulemaking
   88  authority permitted by this section. Not later than 30 days
   89  after the date of filing the petition if the agency is headed by
   90  an individual, or not later than 45 days if the agency is headed
   91  by a collegial body, the agency shall initiate rulemaking
   92  proceedings to repeal the rule, or portion thereof, or deny the
   93  petition, giving a written statement of its reasons for the
   94  denial.
   95         Section 3. Paragraph (i) of subsection (1), subsection (3),
   96  and paragraph (a) of subsection (7) of section 120.54, Florida
   97  Statutes, are amended to read:
   98         120.54 Rulemaking.—
   99         (1) GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN
  100  EMERGENCY RULES.—
  101         (i)1. A rule may incorporate material by reference but only
  102  as the material exists on the date the rule is adopted. For
  103  purposes of the rule, changes in the material are not effective
  104  unless the rule is amended to incorporate the changes.
  105         2. An agency rule that incorporates by specific reference
  106  another rule of that agency automatically incorporates
  107  subsequent amendments to the referenced rule unless a contrary
  108  intent is clearly indicated in the referencing rule. A notice of
  109  amendments to a rule that has been incorporated by specific
  110  reference in other rules of that agency must explain the effect
  111  of those amendments on the referencing rules.
  112         3. In rules adopted after December 31, 2010, and rules
  113  repromulgated after December 31, 2018, material may not be
  114  incorporated by reference unless:
  115         a. The material has been submitted in the prescribed
  116  electronic format to the Department of State and the full text
  117  of the material can be made available for free public access
  118  through an electronic hyperlink from the rule making the
  119  reference in the Florida Administrative Code; or
  120         b. The agency has determined that posting the material on
  121  the Internet for purposes of public examination and inspection
  122  would constitute a violation of federal copyright law, in which
  123  case a statement to that effect, along with the address of
  124  locations at the Department of State and the agency at which the
  125  material is available for public inspection and examination,
  126  must be included in the notice required by subparagraph (3)(a)1.
  127         4. A rule may not be amended by reference only. Amendments
  128  must set out the amended rule in full in the same manner as
  129  required by the State Constitution for laws.
  130         5. Notwithstanding any contrary provision in this section,
  131  when an adopted rule of the Department of Environmental
  132  Protection or a water management district is incorporated by
  133  reference in the other agency’s rule to implement a provision of
  134  part IV of chapter 373, subsequent amendments to the rule are
  135  not effective as to the incorporating rule unless the agency
  136  incorporating by reference notifies the committee and the
  137  Department of State of its intent to adopt the subsequent
  138  amendment, publishes notice of such intent in the Florida
  139  Administrative Register, and files with the Department of State
  140  a copy of the amended rule incorporated by reference. Changes in
  141  the rule incorporated by reference are effective as to the other
  142  agency 20 days after the date of the published notice and filing
  143  with the Department of State. The Department of State shall
  144  amend the history note of the incorporating rule to show the
  145  effective date of such change. Any substantially affected person
  146  may, within 14 days after the date of publication of the notice
  147  of intent in the Florida Administrative Register, file an
  148  objection to rulemaking with the agency. The objection shall
  149  specify the portions of the rule incorporated by reference to
  150  which the person objects and the reasons for the objection. The
  151  agency shall not have the authority under this subparagraph to
  152  adopt those portions of the rule specified in such objection.
  153  The agency shall publish notice of the objection and of its
  154  action in response in the next available issue of the Florida
  155  Administrative Register.
  156         6. The Department of State may adopt by rule requirements
  157  for incorporating materials pursuant to this paragraph.
  158         (3) ADOPTION PROCEDURES.—
  159         (a) Notices.—
  160         1. Prior to the adoption, amendment, or repeal of any rule
  161  other than an emergency rule, an agency, upon approval of the
  162  agency head, shall give notice of its intended action, setting
  163  forth a short, plain explanation of the purpose and effect of
  164  the proposed action; the full text of the proposed rule or
  165  amendment and a summary thereof; a reference to the grant of
  166  rulemaking authority pursuant to which the rule is adopted; and
  167  a reference to the section or subsection of the Florida Statutes
  168  or the Laws of Florida being implemented or interpreted. The
  169  notice must include a summary of the agency’s statement of the
  170  estimated regulatory costs, if one has been prepared, based on
  171  the factors set forth in s. 120.541(2); a statement that any
  172  person who wishes to provide the agency with information
  173  regarding the statement of estimated regulatory costs, or to
  174  provide a proposal for a lower cost regulatory alternative as
  175  provided by s. 120.541(1), must do so in writing within 21 days
  176  after publication of the notice; and a statement as to whether,
  177  based on the statement of the estimated regulatory costs or
  178  other information expressly relied upon and described by the
  179  agency if no statement of regulatory costs is required, the
  180  proposed rule is expected to require legislative ratification
  181  pursuant to s. 120.541(3). The notice must state the procedure
  182  for requesting a public hearing on the proposed rule. Except
  183  when the intended action is the repeal of a rule, the notice
  184  must include a reference both to the date on which and to the
  185  place where the notice of rule development that is required by
  186  subsection (2) appeared.
  187         2. The notice shall be published in the Florida
  188  Administrative Register not less than 28 days prior to the
  189  intended action. The proposed rule, including all material
  190  proposed to be incorporated by reference, shall be available for
  191  inspection and copying by the public at the time of the
  192  publication of notice. After December 31, 2018, material
  193  proposed to be incorporated by reference in the notice required
  194  by this paragraph shall be made available in the manner
  195  prescribed by sub-subparagraph (1)(i)3.a. or (1)(i)3.b.
  196         3. The notice shall be mailed to all persons named in the
  197  proposed rule and to all persons who, at least 14 days prior to
  198  such mailing, have made requests of the agency for advance
  199  notice of its proceedings. The agency shall also give such
  200  notice as is prescribed by rule to those particular classes of
  201  persons to whom the intended action is directed.
  202         4. The adopting agency shall file with the committee, at
  203  least 21 days prior to the proposed adoption date, a copy of
  204  each rule it proposes to adopt; a copy of any material
  205  incorporated by reference in the rule; a detailed written
  206  statement of the facts and circumstances justifying the proposed
  207  rule; a copy of any statement of estimated regulatory costs that
  208  has been prepared pursuant to s. 120.541; a statement of the
  209  extent to which the proposed rule relates to federal standards
  210  or rules on the same subject; and the notice required by
  211  subparagraph 1.
  212         (b) Special matters to be considered in rule adoption.—
  213         1. Statement of estimated regulatory costs.—Before the
  214  adoption, amendment, or repeal of any rule other than an
  215  emergency rule, an agency is encouraged to prepare a statement
  216  of estimated regulatory costs of the proposed rule, as provided
  217  by s. 120.541. However, an agency must prepare a statement of
  218  estimated regulatory costs of the proposed rule, as provided by
  219  s. 120.541, if:
  220         a. The proposed rule will have an adverse impact on small
  221  business; or
  222         b. The proposed rule is likely to directly or indirectly
  223  increase regulatory costs in excess of $200,000 in the aggregate
  224  in this state within 1 year after the implementation of the
  225  rule.
  226         2. Small businesses, small counties, and small cities.—
  227         a. Each agency, before the adoption, amendment, or repeal
  228  of a rule, shall consider the impact of the rule on small
  229  businesses as defined by s. 288.703 and the impact of the rule
  230  on small counties or small cities as defined by s. 120.52.
  231  Whenever practicable, an agency shall tier its rules to reduce
  232  disproportionate impacts on small businesses, small counties, or
  233  small cities to avoid regulating small businesses, small
  234  counties, or small cities that do not contribute significantly
  235  to the problem the rule is designed to address. An agency may
  236  define “small business” to include businesses employing more
  237  than 200 persons, may define “small county” to include those
  238  with populations of more than 75,000, and may define “small
  239  city” to include those with populations of more than 10,000, if
  240  it finds that such a definition is necessary to adapt a rule to
  241  the needs and problems of small businesses, small counties, or
  242  small cities. The agency shall consider each of the following
  243  methods for reducing the impact of the proposed rule on small
  244  businesses, small counties, and small cities, or any combination
  245  of these entities:
  246         (I) Establishing less stringent compliance or reporting
  247  requirements in the rule.
  248         (II) Establishing less stringent schedules or deadlines in
  249  the rule for compliance or reporting requirements.
  250         (III) Consolidating or simplifying the rule’s compliance or
  251  reporting requirements.
  252         (IV) Establishing performance standards or best management
  253  practices to replace design or operational standards in the
  254  rule.
  255         (V) Exempting small businesses, small counties, or small
  256  cities from any or all requirements of the rule.
  257         b.(I) If the agency determines that the proposed action
  258  will affect small businesses as defined by the agency as
  259  provided in sub-subparagraph a., the agency shall send written
  260  notice of the rule to the rules ombudsman in the Executive
  261  Office of the Governor at least 28 days before the intended
  262  action.
  263         (II) Each agency shall adopt those regulatory alternatives
  264  offered by the rules ombudsman in the Executive Office of the
  265  Governor and provided to the agency no later than 21 days after
  266  the rules ombudsman’s receipt of the written notice of the rule
  267  which it finds are feasible and consistent with the stated
  268  objectives of the proposed rule and which would reduce the
  269  impact on small businesses. When regulatory alternatives are
  270  offered by the rules ombudsman in the Executive Office of the
  271  Governor, the 90-day period for filing the rule in subparagraph
  272  (e)2. is extended for a period of 21 days. The agency shall
  273  provide notice to the committee of any regulatory alternative
  274  offered to the agency pursuant to this sub-subparagraph at least
  275  21 days before filing the rule for adoption.
  276         (III) If an agency does not adopt all alternatives offered
  277  pursuant to this sub-subparagraph, it shall, before rule
  278  adoption or amendment and pursuant to subparagraph (d)1., file a
  279  detailed written statement with the committee explaining the
  280  reasons for failure to adopt such alternatives. Within 3 working
  281  days after the filing of such notice, the agency shall send a
  282  copy of such notice to the rules ombudsman in the Executive
  283  Office of the Governor.
  284         (c) Hearings.—
  285         1. If the intended action concerns any rule other than one
  286  relating exclusively to procedure or practice, the agency shall,
  287  on the request of any affected person received within 21 days
  288  after the date of publication of the notice of intended agency
  289  action, give affected persons an opportunity to present evidence
  290  and argument on all issues under consideration. The agency may
  291  schedule a public hearing on the rule and, if requested by any
  292  affected person, shall schedule a public hearing on the rule.
  293  When a public hearing is held, the agency must ensure that staff
  294  are available to explain the agency’s proposal and to respond to
  295  questions or comments regarding the rule. If the agency head is
  296  a board or other collegial body created under s. 20.165(4) or s.
  297  20.43(3)(g), and one or more requested public hearings is
  298  scheduled, the board or other collegial body shall conduct at
  299  least one of the public hearings itself and may not delegate
  300  this responsibility without the consent of those persons
  301  requesting the public hearing. Any material pertinent to the
  302  issues under consideration submitted to the agency within 21
  303  days after the date of publication of the notice or submitted to
  304  the agency between the date of publication of the notice and the
  305  end of the final public hearing shall be considered by the
  306  agency and made a part of the record of the rulemaking
  307  proceeding.
  308         2. Rulemaking proceedings shall be governed solely by the
  309  provisions of this section unless a person timely asserts that
  310  the person’s substantial interests will be affected in the
  311  proceeding and affirmatively demonstrates to the agency that the
  312  proceeding does not provide adequate opportunity to protect
  313  those interests. If the agency determines that the rulemaking
  314  proceeding is not adequate to protect the person’s interests, it
  315  shall suspend the rulemaking proceeding and convene a separate
  316  proceeding under the provisions of ss. 120.569 and 120.57.
  317  Similarly situated persons may be requested to join and
  318  participate in the separate proceeding. Upon conclusion of the
  319  separate proceeding, the rulemaking proceeding shall be resumed.
  320         (d) Modification or withdrawal of proposed rules.—
  321         1. After the final public hearing on the proposed rule, or
  322  after the time for requesting a hearing has expired, if the rule
  323  has not been changed from the rule as previously filed with the
  324  committee, or contains only technical changes, the adopting
  325  agency shall file a notice to that effect with the committee at
  326  least 7 days prior to filing the rule for adoption. Any change,
  327  other than a technical change that does not affect the substance
  328  of the rule, must be supported by the record of public hearings
  329  held on the rule, must be in response to written material
  330  submitted to the agency within 21 days after the date of
  331  publication of the notice of intended agency action or submitted
  332  to the agency between the date of publication of the notice and
  333  the end of the final public hearing, or must be in response to a
  334  proposed objection by the committee. In addition, when any
  335  change is made in the a proposed rule text or any material
  336  incorporated by reference, other than a technical change, the
  337  adopting agency shall provide a copy of a notice of change by
  338  certified mail or actual delivery to any person who requests it
  339  in writing no later than 21 days after the notice required in
  340  paragraph (a). The agency shall file the notice of change with
  341  the committee, along with the reasons for the change, and
  342  provide the notice of change to persons requesting it, at least
  343  21 days prior to filing the rule for adoption. The notice of
  344  change shall be published in the Florida Administrative Register
  345  at least 21 days prior to filing the rule for adoption. This
  346  subparagraph does not apply to emergency rules adopted pursuant
  347  to subsection (4). After December 31, 2018, material proposed to
  348  be incorporated by reference in the notice required by this
  349  subparagraph shall be made available in the manner prescribed by
  350  sub-subparagraph (1)(i)3.a. or (1)(i)3.b.
  351         2. After the notice required by paragraph (a) and prior to
  352  adoption, the agency may withdraw the rule in whole or in part.
  353         3. After adoption and before the rule becomes effective, a
  354  rule may be modified or withdrawn only in the following
  355  circumstances:
  356         a. When the committee objects to the rule;
  357         b. When a final order, which is not subject to further
  358  appeal, is entered in a rule challenge brought pursuant to s.
  359  120.56 after the date of adoption but before the rule becomes
  360  effective pursuant to subparagraph (e)6.;
  361         c. If the rule requires ratification, when more than 90
  362  days have passed since the rule was filed for adoption without
  363  the Legislature ratifying the rule, in which case the rule may
  364  be withdrawn but may not be modified; or
  365         d. When the committee notifies the agency that an objection
  366  to the rule is being considered, in which case the rule may be
  367  modified to extend the effective date by not more than 60 days.
  368         4. The agency shall give notice of its decision to withdraw
  369  or modify a rule in the first available issue of the publication
  370  in which the original notice of rulemaking was published, shall
  371  notify those persons described in subparagraph (a)3. in
  372  accordance with the requirements of that subparagraph, and shall
  373  notify the Department of State if the rule is required to be
  374  filed with the Department of State.
  375         5. After a rule has become effective, it may be repealed or
  376  amended only through the rulemaking procedures specified in this
  377  chapter.
  378         (e) Filing for final adoption; effective date.—
  379         1. If the adopting agency is required to publish its rules
  380  in the Florida Administrative Code, the agency, upon approval of
  381  the agency head, shall file with the Department of State three
  382  certified copies of the rule it proposes to adopt; one copy of
  383  any material incorporated by reference in the rule, certified by
  384  the agency; a summary of the rule; a summary of any hearings
  385  held on the rule; and a detailed written statement of the facts
  386  and circumstances justifying the rule. Agencies not required to
  387  publish their rules in the Florida Administrative Code shall
  388  file one certified copy of the proposed rule, and the other
  389  material required by this subparagraph, in the office of the
  390  agency head, and such rules shall be open to the public.
  391         2. A rule may not be filed for adoption less than 28 days
  392  or more than 90 days after the notice required by paragraph (a),
  393  until 21 days after the notice of change required by paragraph
  394  (d), until 14 days after the final public hearing, until 21 days
  395  after a statement of estimated regulatory costs required under
  396  s. 120.541 has been provided to all persons who submitted a
  397  lower cost regulatory alternative and made available to the
  398  public, or until the administrative law judge has rendered a
  399  decision under s. 120.56(2), whichever applies. When a required
  400  notice of change is published prior to the expiration of the
  401  time to file the rule for adoption, the period during which a
  402  rule must be filed for adoption is extended to 45 days after the
  403  date of publication. If notice of a public hearing is published
  404  prior to the expiration of the time to file the rule for
  405  adoption, the period during which a rule must be filed for
  406  adoption is extended to 45 days after adjournment of the final
  407  hearing on the rule, 21 days after receipt of all material
  408  authorized to be submitted at the hearing, or 21 days after
  409  receipt of the transcript, if one is made, whichever is latest.
  410  The term “public hearing” includes any public meeting held by
  411  any agency at which the rule is considered. If a petition for an
  412  administrative determination under s. 120.56(2) is filed, the
  413  period during which a rule must be filed for adoption is
  414  extended to 60 days after the administrative law judge files the
  415  final order with the clerk or until 60 days after subsequent
  416  judicial review is complete.
  417         3. At the time a rule is filed, the agency shall certify
  418  that the time limitations prescribed by this paragraph have been
  419  complied with, that all statutory rulemaking requirements have
  420  been met, and that there is no administrative determination
  421  pending on the rule.
  422         4. At the time a rule is filed, the committee shall certify
  423  whether the agency has responded in writing to all material and
  424  timely written comments or written inquiries made on behalf of
  425  the committee. The department shall reject any rule that is not
  426  filed within the prescribed time limits; that does not comply
  427  with all statutory rulemaking requirements and rules of the
  428  department; upon which an agency has not responded in writing to
  429  all material and timely written inquiries or written comments;
  430  upon which an administrative determination is pending; or which
  431  does not include a statement of estimated regulatory costs, if
  432  required.
  433         5. If a rule has not been adopted within the time limits
  434  imposed by this paragraph or has not been adopted in compliance
  435  with all statutory rulemaking requirements, the agency proposing
  436  the rule shall withdraw the rule and give notice of its action
  437  in the next available issue of the Florida Administrative
  438  Register.
  439         6. The proposed rule shall be adopted on being filed with
  440  the Department of State and become effective 20 days after being
  441  filed, on a later date specified in the notice required by
  442  subparagraph (a)1., on a date required by statute, or upon
  443  ratification by the Legislature pursuant to s. 120.541(3). Rules
  444  not required to be filed with the Department of State shall
  445  become effective when adopted by the agency head, on a later
  446  date specified by rule or statute, or upon ratification by the
  447  Legislature pursuant to s. 120.541(3). If the committee notifies
  448  an agency that an objection to a rule is being considered, the
  449  agency may postpone the adoption of the rule to accommodate
  450  review of the rule by the committee. When an agency postpones
  451  adoption of a rule to accommodate review by the committee, the
  452  90-day period for filing the rule is tolled until the committee
  453  notifies the agency that it has completed its review of the
  454  rule.
  455  
  456  For the purposes of this paragraph, the term “administrative
  457  determination” does not include subsequent judicial review.
  458         (7) PETITION TO INITIATE RULEMAKING.—
  459         (a) Any person regulated by an agency or having substantial
  460  interest in an agency rule may petition an agency to adopt,
  461  amend, or repeal a rule or to provide the minimum public
  462  information required by this chapter. The petition shall specify
  463  the proposed rule and action requested. The agency shall file a
  464  copy of the petition with the committee. Not later than 30
  465  calendar days following the date of filing a petition, the
  466  agency shall initiate rulemaking proceedings under this chapter,
  467  otherwise comply with the requested action, or deny the petition
  468  with a written statement of its reasons for the denial.
  469         Section 4. Paragraph (a) of subsection (1) of section
  470  120.541, Florida Statutes, is amended to read:
  471         120.541 Statement of estimated regulatory costs.—
  472         (1)(a) Within 21 days after publication of the notice
  473  required under s. 120.54(3)(a), a substantially affected person
  474  may submit to an agency a good faith written proposal for a
  475  lower cost regulatory alternative to a proposed rule which
  476  substantially accomplishes the objectives of the law being
  477  implemented. The agency shall provide a copy of any proposal for
  478  a lower cost regulatory alternative to the committee at least 21
  479  days before filing the rule for adoption. The proposal may
  480  include the alternative of not adopting any rule if the proposal
  481  explains how the lower costs and objectives of the law will be
  482  achieved by not adopting any rule. If such a proposal is
  483  submitted, the 90-day period for filing the rule is extended 21
  484  days. Upon the submission of the lower cost regulatory
  485  alternative, the agency shall prepare a statement of estimated
  486  regulatory costs as provided in subsection (2), or shall revise
  487  its prior statement of estimated regulatory costs, and either
  488  adopt the alternative or provide a statement of the reasons for
  489  rejecting the alternative in favor of the proposed rule.
  490         Section 5. Section 120.5435, Florida Statutes, is created
  491  to read:
  492         120.5435 Repromulgation of rules.—
  493         (1) It is the intent of the Legislature that each agency
  494  shall periodically review its rules for consistency with the
  495  powers and duties granted by its enabling statutes. If an agency
  496  determines after review that substantive changes to update a
  497  rule are not required, such agency shall repromulgate the rule
  498  to reflect the date of the review.
  499         (2) Before repromulgation of the rule, an agency shall,
  500  upon approval by the agency head:
  501         (a) Publish a notice of repromulgation in the Florida
  502  Administrative Register. A notice of repromulgation is not
  503  required to include the text of the rule being repromulgated.
  504         (b) File the rule for repromulgation with the Department of
  505  State. A rule may not be filed for repromulgation less than 28
  506  days before or more than 90 days after the publication of the
  507  notice required by paragraph (a).
  508         (3) The agency shall file a notice of repromulgation with
  509  the committee at least 14 days before filing the rule for
  510  repromulgation. At the time the rule is filed for
  511  repromulgation, the committee shall certify whether the agency
  512  has responded in writing to all material and timely written
  513  comments or written inquiries made on behalf of the committee.
  514         (4) If the rule is not filed for repromulgation within the
  515  time limit imposed by paragraph (2)(b), the agency must withdraw
  516  the rule for repromulgation and give notice of the withdrawal in
  517  the next available issue of the Florida Administrative Register.
  518         (5) A repromulgated rule is not subject to challenge as a
  519  proposed rule pursuant to s. 120.56(2).
  520         (6) The hearing requirements of s. 120.54 do not apply to
  521  repromulgation of a rule.
  522         (7)(a) The agency, upon approval of the agency head or his
  523  or her designee, shall file with the Department of State three
  524  certified copies of the repromulgated rule it proposes to adopt
  525  and one certified copy of any material incorporated by reference
  526  in the rule.
  527         (b) The repromulgated rule shall be adopted upon filing
  528  with the Department of State and becomes effective 20 days after
  529  being filed.
  530         (c) The Department of State shall update the history note
  531  of the rule in the Florida Administrative Code to reflect the
  532  effective date of the repromulgated rule.
  533         (8) The Department of State shall adopt rules to implement
  534  this section by December 31, 2018.
  535         Section 6. Paragraphs (a) and (c) of subsection (1) of
  536  section 120.55, Florida Statutes, are amended to read:
  537         120.55 Publication.—
  538         (1) The Department of State shall:
  539         (a)1. Through a continuous revision and publication system,
  540  compile and publish electronically, on a website managed by the
  541  department, the “Florida Administrative Code.” The Florida
  542  Administrative Code shall contain all rules adopted by each
  543  agency, citing the grant of rulemaking authority and the
  544  specific law implemented pursuant to which each rule was
  545  adopted, all history notes as authorized in s. 120.545(7),
  546  complete indexes to all rules contained in the code, and any
  547  other material required or authorized by law or deemed useful by
  548  the department. The electronic code shall display each rule
  549  chapter currently in effect in browse mode and allow full text
  550  search of the code and each rule chapter. The department may
  551  contract with a publishing firm for a printed publication;
  552  however, the department shall retain responsibility for the code
  553  as provided in this section. The electronic publication shall be
  554  the official compilation of the administrative rules of this
  555  state. The Department of State shall retain the copyright over
  556  the Florida Administrative Code.
  557         2. Rules general in form but applicable to only one school
  558  district, community college district, or county, or a part
  559  thereof, or state university rules relating to internal
  560  personnel or business and finance shall not be published in the
  561  Florida Administrative Code. Exclusion from publication in the
  562  Florida Administrative Code shall not affect the validity or
  563  effectiveness of such rules.
  564         3. At the beginning of the section of the code dealing with
  565  an agency that files copies of its rules with the department,
  566  the department shall publish the address and telephone number of
  567  the executive offices of each agency, the manner by which the
  568  agency indexes its rules, a listing of all rules of that agency
  569  excluded from publication in the code, and a statement as to
  570  where those rules may be inspected.
  571         4. Forms shall not be published in the Florida
  572  Administrative Code; but any form which an agency uses in its
  573  dealings with the public, along with any accompanying
  574  instructions, shall be filed with the committee before it is
  575  used. Any form or instruction which meets the definition of
  576  “rule” provided in s. 120.52 shall be incorporated by reference
  577  into the appropriate rule. The reference shall specifically
  578  state that the form is being incorporated by reference and shall
  579  include the number, title, and effective date of the form and an
  580  explanation of how the form may be obtained. Each form created
  581  by an agency which is incorporated by reference in a rule notice
  582  of which is given under s. 120.54(3)(a) after December 31, 2007,
  583  must clearly display the number, title, and effective date of
  584  the form and the number of the rule in which the form is
  585  incorporated.
  586         5. After December 31, 2018, the department shall require
  587  all material incorporated by reference in any part of an adopted
  588  rule and in any part of a repromulgated rule allow adopted rules
  589  and material incorporated by reference to be filed in the manner
  590  prescribed by s. 120.54(1)(i)3.a. or s. 120.54(1)(i)3.b.
  591  electronic form as prescribed by department rule. When a rule is
  592  filed for adoption or repromulgation with incorporated material
  593  in electronic form, the department’s publication of the Florida
  594  Administrative Code on its website must contain a hyperlink from
  595  the incorporating reference in the rule directly to that
  596  material. The department may not allow hyperlinks from rules in
  597  the Florida Administrative Code to any material other than that
  598  filed with and maintained by the department, but may allow
  599  hyperlinks to incorporated material maintained by the department
  600  from the adopting agency’s website or other sites.
  601         6. The Department of State shall include the date of any
  602  technical changes to a rule in the history note of the rule in
  603  the Florida Administrative Code. A technical change does not
  604  affect the effective date of the rule.
  605         (c) Prescribe by rule the style and form required for
  606  rules, notices, and other materials submitted for filing,
  607  including a rule requiring documents created by an agency which
  608  are proposed to be incorporated by reference in notices
  609  published pursuant to s. 120.54(3)(a) and (d) to be coded in the
  610  same manner as notices published pursuant to s. 120.54(3)(a)1.
  611         Section 7. Subsection (1) of section 120.569, Florida
  612  Statutes, is amended to read:
  613         120.569 Decisions which affect substantial interests.—
  614         (1)(a) The provisions of this section apply in all
  615  proceedings in which the substantial interests of a party are
  616  determined by an agency, unless the parties are proceeding under
  617  s. 120.573 or s. 120.574. Unless waived by all parties, s.
  618  120.57(1) applies whenever the proceeding involves a disputed
  619  issue of material fact. Unless otherwise agreed, s. 120.57(2)
  620  applies in all other cases. If a disputed issue of material fact
  621  arises during a proceeding under s. 120.57(2), then, unless
  622  waived by all parties, the proceeding under s. 120.57(2) shall
  623  be terminated and a proceeding under s. 120.57(1) shall be
  624  conducted. Parties shall be notified of any order, including a
  625  final order. Unless waived, a copy of the order shall be
  626  delivered or mailed to each party or the party’s attorney of
  627  record at the address of record. Each notice shall inform the
  628  recipient of any administrative hearing or judicial review that
  629  is available under this section, s. 120.57, or s. 120.68; shall
  630  indicate the procedure which must be followed to obtain the
  631  hearing or judicial review; and shall state the time limits
  632  which apply.
  633         (b) In all proceedings pursuant to this chapter conducted
  634  before the division, any document filed with the division by a
  635  party represented by an attorney shall be filed electronically
  636  through the division’s website. Any document filed with the
  637  division by a party not represented by an attorney shall,
  638  whenever possible, be filed electronically through the
  639  division’s website. The division shall serve all such documents
  640  on all parties of record electronically through the division’s
  641  website. The parties are relieved of any requirement to serve
  642  other parties who are registered for electronic filing when they
  643  file documents electronically with the division.
  644         Section 8. Subsection (11) of section 120.80, Florida
  645  Statutes, is amended to read:
  646         120.80 Exceptions and special requirements; agencies.—
  647         (11) NATIONAL GUARD.—Notwithstanding s. 120.52(17) s.
  648  120.52(16), the enlistment, organization, administration,
  649  equipment, maintenance, training, and discipline of the militia,
  650  National Guard, organized militia, and unorganized militia, as
  651  provided by s. 2, Art. X of the State Constitution, are not
  652  rules as defined by this chapter.
  653         Section 9. Paragraph (c) of subsection (1) of section
  654  120.81, Florida Statutes, is amended to read:
  655         120.81 Exceptions and special requirements; general areas.—
  656         (1) EDUCATIONAL UNITS.—
  657         (c) Notwithstanding s. 120.52(17) s. 120.52(16), any tests,
  658  test scoring criteria, or testing procedures relating to student
  659  assessment which are developed or administered by the Department
  660  of Education pursuant to s. 1003.4282, s. 1008.22, or s.
  661  1008.25, or any other statewide educational tests required by
  662  law, are not rules.
  663         Section 10. Paragraph (a) of subsection (1) of section
  664  420.9072, Florida Statutes, is amended to read:
  665         420.9072 State Housing Initiatives Partnership Program.—The
  666  State Housing Initiatives Partnership Program is created for the
  667  purpose of providing funds to counties and eligible
  668  municipalities as an incentive for the creation of local housing
  669  partnerships, to expand production of and preserve affordable
  670  housing, to further the housing element of the local government
  671  comprehensive plan specific to affordable housing, and to
  672  increase housing-related employment.
  673         (1)(a) In addition to the legislative findings set forth in
  674  s. 420.6015, the Legislature finds that affordable housing is
  675  most effectively provided by combining available public and
  676  private resources to conserve and improve existing housing and
  677  provide new housing for very-low-income households, low-income
  678  households, and moderate-income households. The Legislature
  679  intends to encourage partnerships in order to secure the
  680  benefits of cooperation by the public and private sectors and to
  681  reduce the cost of housing for the target group by effectively
  682  combining all available resources and cost-saving measures. The
  683  Legislature further intends that local governments achieve this
  684  combination of resources by encouraging active partnerships
  685  between government, lenders, builders and developers, real
  686  estate professionals, advocates for low-income persons, and
  687  community groups to produce affordable housing and provide
  688  related services. Extending the partnership concept to encompass
  689  cooperative efforts among small counties as defined in s.
  690  120.52(20) s. 120.52(19), and among counties and municipalities
  691  is specifically encouraged. Local governments are also intended
  692  to establish an affordable housing advisory committee to
  693  recommend monetary and nonmonetary incentives for affordable
  694  housing as provided in s. 420.9076.
  695         Section 11. Subsection (7) of section 420.9075, Florida
  696  Statutes, is amended to read:
  697         420.9075 Local housing assistance plans; partnerships.—
  698         (7) The moneys deposited in the local housing assistance
  699  trust fund shall be used to administer and implement the local
  700  housing assistance plan. The cost of administering the plan may
  701  not exceed 5 percent of the local housing distribution moneys
  702  and program income deposited into the trust fund. A county or an
  703  eligible municipality may not exceed the 5-percent limitation on
  704  administrative costs, unless its governing body finds, by
  705  resolution, that 5 percent of the local housing distribution
  706  plus 5 percent of program income is insufficient to adequately
  707  pay the necessary costs of administering the local housing
  708  assistance plan. The cost of administering the program may not
  709  exceed 10 percent of the local housing distribution plus 5
  710  percent of program income deposited into the trust fund, except
  711  that small counties, as defined in s. 120.52(20) s. 120.52(19),
  712  and eligible municipalities receiving a local housing
  713  distribution of up to $350,000 may use up to 10 percent of
  714  program income for administrative costs.
  715         Section 12. Paragraph (d) of subsection (1) of section
  716  443.091, Florida Statutes, is amended to read:
  717         443.091 Benefit eligibility conditions.—
  718         (1) An unemployed individual is eligible to receive
  719  benefits for any week only if the Department of Economic
  720  Opportunity finds that:
  721         (d) She or he is able to work and is available for work. In
  722  order to assess eligibility for a claimed week of unemployment,
  723  the department shall develop criteria to determine a claimant’s
  724  ability to work and availability for work. A claimant must be
  725  actively seeking work in order to be considered available for
  726  work. This means engaging in systematic and sustained efforts to
  727  find work, including contacting at least five prospective
  728  employers for each week of unemployment claimed. The department
  729  may require the claimant to provide proof of such efforts to the
  730  one-stop career center as part of reemployment services. A
  731  claimant’s proof of work search efforts may not include the same
  732  prospective employer at the same location in 3 consecutive
  733  weeks, unless the employer has indicated since the time of the
  734  initial contact that the employer is hiring. The department
  735  shall conduct random reviews of work search information provided
  736  by claimants. As an alternative to contacting at least five
  737  prospective employers for any week of unemployment claimed, a
  738  claimant may, for that same week, report in person to a one-stop
  739  career center to meet with a representative of the center and
  740  access reemployment services of the center. The center shall
  741  keep a record of the services or information provided to the
  742  claimant and shall provide the records to the department upon
  743  request by the department. However:
  744         1. Notwithstanding any other provision of this paragraph or
  745  paragraphs (b) and (e), an otherwise eligible individual may not
  746  be denied benefits for any week because she or he is in training
  747  with the approval of the department, or by reason of s.
  748  443.101(2) relating to failure to apply for, or refusal to
  749  accept, suitable work. Training may be approved by the
  750  department in accordance with criteria prescribed by rule. A
  751  claimant’s eligibility during approved training is contingent
  752  upon satisfying eligibility conditions prescribed by rule.
  753         2. Notwithstanding any other provision of this chapter, an
  754  otherwise eligible individual who is in training approved under
  755  s. 236(a)(1) of the Trade Act of 1974, as amended, may not be
  756  determined ineligible or disqualified for benefits due to
  757  enrollment in such training or because of leaving work that is
  758  not suitable employment to enter such training. As used in this
  759  subparagraph, the term “suitable employment” means work of a
  760  substantially equal or higher skill level than the worker’s past
  761  adversely affected employment, as defined for purposes of the
  762  Trade Act of 1974, as amended, the wages for which are at least
  763  80 percent of the worker’s average weekly wage as determined for
  764  purposes of the Trade Act of 1974, as amended.
  765         3. Notwithstanding any other provision of this section, an
  766  otherwise eligible individual may not be denied benefits for any
  767  week because she or he is before any state or federal court
  768  pursuant to a lawfully issued summons to appear for jury duty.
  769         4. Union members who customarily obtain employment through
  770  a union hiring hall may satisfy the work search requirements of
  771  this paragraph by reporting daily to their union hall.
  772         5. The work search requirements of this paragraph do not
  773  apply to persons who are unemployed as a result of a temporary
  774  layoff or who are claiming benefits under an approved short-time
  775  compensation plan as provided in s. 443.1116.
  776         6. In small counties as defined in s. 120.52(20) s.
  777  120.52(19), a claimant engaging in systematic and sustained
  778  efforts to find work must contact at least three prospective
  779  employers for each week of unemployment claimed.
  780         7. The work search requirements of this paragraph do not
  781  apply to persons required to participate in reemployment
  782  services under paragraph (e).
  783         Section 13. This act shall take effect July 1, 2018.