House Bill 0107c1

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999              CS/HB 107

        By the Committee on Governmental Rules & Regulations and
    Representatives Pruitt, Wallace, Posey, Byrd and Argenziano





  1                      A bill to be entitled

  2         An act relating to the Administrative Procedure

  3         Act; amending s. 120.52, F.S.; removing

  4         entities described in ch. 298, F.S., relating

  5         to water control districts, from the definition

  6         of "agency"; providing additional restrictions

  7         with respect to an agency's rulemaking

  8         authority; amending s. 120.536, F.S.; providing

  9         additional restrictions with respect to an

10         agency's rulemaking authority; requiring

11         agencies to provide the Administrative

12         Procedures Committee with a list of existing

13         rules which exceed such rulemaking authority

14         and providing for legislative consideration of

15         such rules; requiring agencies to initiate

16         proceedings to repeal such rules for which

17         authorizing legislation is not adopted;

18         requiring a report to the Legislature;

19         providing that the committee or a substantially

20         affected person may petition for repeal of such

21         rules after a specified date; restricting

22         challenge of such rules before that date;

23         amending s. 120.54, F.S.; specifying when rules

24         may take effect; restricting adoption of

25         retroactive rules; amending s. 120.56, F.S.;

26         revising an agency's responsibilities in

27         response to a challenge to a proposed rule and

28         specifying the petitioner's responsibility of

29         going forward; amending s. 120.57, F.S.,

30         relating to hearings involving disputed issues

31         of material fact; revising an agency's

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999              CS/HB 107

    607-112-99






  1         authority with respect to rejection or

  2         modification of conclusions of law in its final

  3         order; amending s. 120.68, F.S., relating to

  4         judicial review; providing a directive with

  5         respect to consideration by the court of an

  6         agency's construction of a statute or rule;

  7         providing an effective date.

  8

  9  Be It Enacted by the Legislature of the State of Florida:

10

11         Section 1.  Subsections (1) and (8) of section 120.52,

12  Florida Statutes, 1998 Supplement, are amended to read:

13         120.52  Definitions.--As used in this act:

14         (1)  "Agency" means:

15         (a)  The Governor in the exercise of all executive

16  powers other than those derived from the constitution.

17         (b)  Each:

18         1.  State officer and state department, and each

19  departmental unit described in s. 20.04.,

20         2.  Authority.

21         3.  Board.

22         4.  Commission, including the Commission on Ethics and

23  the Game and Fresh Water Fish Commission when acting pursuant

24  to statutory authority derived from the Legislature.

25         5.  Regional planning agency., board,

26         6.  Multicounty special district with a majority of its

27  governing board comprised of nonelected persons., and

28  authority, including, but not limited to, the Commission on

29  Ethics and the Game and Fresh Water Fish Commission when

30  acting pursuant to statutory authority derived from the

31  Legislature,

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999              CS/HB 107

    607-112-99






  1         7.  Educational unit. units, and those entities

  2         8.  Entity described in chapters 163, 298, 373, 380,

  3  and 582 and s. 186.504, except any legal entity or agency

  4  created in whole or in part pursuant to chapter 361, part II,

  5  an expressway authority pursuant to chapter 348, or any legal

  6  or administrative entity created by an interlocal agreement

  7  pursuant to s. 163.01(7), unless any party to such agreement

  8  is otherwise an agency as defined in this subsection.

  9         (c)  Each other unit of government in the state,

10  including counties and municipalities, to the extent they are

11  expressly made subject to this act by general or special law

12  or existing judicial decisions.

13

14  This definition does not include any legal entity or agency

15  created in whole or in part pursuant to chapter 361, part II,

16  an expressway authority pursuant to chapter 348, or any legal

17  or administrative entity created by an interlocal agreement

18  pursuant to s. 163.01(7), unless any party to such agreement

19  is otherwise an agency as defined in this subsection.

20         (8)  "Invalid exercise of delegated legislative

21  authority" means action which goes beyond the powers,

22  functions, and duties delegated by the Legislature. A proposed

23  or existing rule is an invalid exercise of delegated

24  legislative authority if any one of the following applies:

25         (a)  The agency has materially failed to follow the

26  applicable rulemaking procedures or requirements set forth in

27  this chapter;

28         (b)  The agency has exceeded its grant of rulemaking

29  authority, citation to which is required by s. 120.54(3)(a)1.;

30

31

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999              CS/HB 107

    607-112-99






  1         (c)  The rule enlarges, modifies, or contravenes the

  2  specific provisions of law implemented, citation to which is

  3  required by s. 120.54(3)(a)1.;

  4         (d)  The rule is vague, fails to establish adequate

  5  standards for agency decisions, or vests unbridled discretion

  6  in the agency;

  7         (e)  The rule is arbitrary or capricious;

  8         (f)  The rule is not supported by competent substantial

  9  evidence; or

10         (g)  The rule imposes regulatory costs on the regulated

11  person, county, or city which could be reduced by the adoption

12  of less costly alternatives that substantially accomplish the

13  statutory objectives.

14

15  A grant of rulemaking authority is necessary but not

16  sufficient to allow an agency to adopt a rule; a specific law

17  to be implemented is also required. An agency may adopt only

18  rules that implement or, interpret the, or make specific the

19  particular powers and duties granted by the enabling statute.

20  No agency shall have authority to adopt a rule only because it

21  is reasonably related to the purpose of the enabling

22  legislation and is not arbitrary and capricious or is within

23  the agency's class of powers and duties, nor shall an agency

24  have the authority to implement statutory provisions setting

25  forth general legislative intent or policy. Statutory language

26  granting rulemaking authority or generally describing the

27  powers and functions of an agency shall be construed to extend

28  no further than implementing or interpreting the specific the

29  particular powers and duties conferred by the same statute.

30         Section 2.  Section 120.536, Florida Statutes, is

31  amended to read:

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999              CS/HB 107

    607-112-99






  1         120.536  Rulemaking authority; listing of rules

  2  exceeding authority; repeal; challenge.--

  3         (1)  A grant of rulemaking authority is necessary but

  4  not sufficient to allow an agency to adopt a rule; a specific

  5  law to be implemented is also required. An agency may adopt

  6  only rules that implement or, interpret the, or make specific

  7  the particular powers and duties granted by the enabling

  8  statute. No agency shall have authority to adopt a rule only

  9  because it is reasonably related to the purpose of the

10  enabling legislation and is not arbitrary and capricious or is

11  within the agency's class of powers and duties, nor shall an

12  agency have the authority to implement statutory provisions

13  setting forth general legislative intent or policy. Statutory

14  language granting rulemaking authority or generally describing

15  the powers and functions of an agency shall be construed to

16  extend no further than implementing or interpreting the

17  specific the particular powers and duties conferred by the

18  same statute.

19         (2)(a)  By October 1, 1997, each agency shall provide

20  to the Administrative Procedures Committee a listing of each

21  rule, or portion thereof, adopted by that agency before

22  October 1, 1996, which exceeds the rulemaking authority

23  permitted by this section.  For those rules of which only a

24  portion exceeds the rulemaking authority permitted by this

25  section, the agency shall also identify the language of the

26  rule which exceeds this authority.  The Administrative

27  Procedures Committee shall combine the lists and provide the

28  cumulative listing to the President of the Senate and the

29  Speaker of the House of Representatives.  The Legislature

30  shall, at the 1998 Regular Session, consider whether specific

31  legislation authorizing the identified rules, or portions

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999              CS/HB 107

    607-112-99






  1  thereof, should be enacted.  By January 1, 1999, each agency

  2  shall initiate proceedings pursuant to s. 120.54 to repeal

  3  each rule, or portion thereof, identified as exceeding the

  4  rulemaking authority permitted by this section for which

  5  authorizing legislation does not exist. By February 1, 1999,

  6  the Administrative Procedures Committee shall submit to the

  7  President of the Senate and the Speaker of the House of

  8  Representatives a report identifying those rules that an

  9  agency had previously identified as exceeding the rulemaking

10  authority permitted by this section for which proceedings to

11  repeal the rule have not been initiated.  As of July 1, 1999,

12  the Administrative Procedures Committee or any substantially

13  affected person may petition an agency to repeal any rule, or

14  portion thereof, because it exceeds the rulemaking authority

15  permitted by this section.  Not later than 30 days after the

16  date of filing the petition if the agency is headed by an

17  individual, or not later than 45 days if the agency is headed

18  by a collegial body, the agency shall initiate rulemaking

19  proceedings to repeal the rule, or portion thereof, or deny

20  the petition, giving a written statement of its reasons for

21  the denial.

22         (b)  By October 1, 1999, each agency shall provide to

23  the Administrative Procedures Committee a listing of each

24  rule, or portion thereof, adopted by that agency on or after

25  October 1, 1996, and before October 1, 1999, which exceeds the

26  rulemaking authority permitted by this section.  For those

27  rules of which only a portion exceeds the rulemaking authority

28  permitted by this section, the agency shall also identify the

29  language of the rule which exceeds this authority.  The

30  Administrative Procedures Committee shall combine the lists

31  and provide the cumulative listing to the President of the

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999              CS/HB 107

    607-112-99






  1  Senate and the Speaker of the House of Representatives.  The

  2  Legislature shall, at the 2000 Regular Session, consider

  3  whether specific legislation authorizing the identified rules,

  4  or portions thereof, should be enacted.  By January 1, 2001,

  5  each agency shall initiate proceedings pursuant to s. 120.54

  6  to repeal each rule, or portion thereof, identified as

  7  exceeding the rulemaking authority permitted by this section

  8  for which authorizing legislation does not exist. By February

  9  1, 2001, the Administrative Procedures Committee shall submit

10  to the President of the Senate and the Speaker of the House of

11  Representatives a report identifying those rules that an

12  agency had previously identified as exceeding the rulemaking

13  authority permitted by this section for which proceedings to

14  repeal the rule have not been initiated.  As of July 1, 2001,

15  the Administrative Procedures Committee or any substantially

16  affected person may petition an agency to repeal any rule, or

17  portion thereof, because it exceeds the rulemaking authority

18  permitted by this section.  Not later than 30 days after the

19  date of filing the petition if the agency is headed by an

20  individual, or not later than 45 days if the agency is headed

21  by a collegial body, the agency shall initiate rulemaking

22  proceedings to repeal the rule, or portion thereof, or deny

23  the petition, giving a written statement of its reasons for

24  the denial.

25         (3)  All proposed rules or amendments to existing rules

26  filed with the Department of State on or after October 1,

27  1996, shall be based on rulemaking authority no broader than

28  that permitted by this section. A rule adopted before October

29  1, 1996, and not included on a list submitted by an agency in

30  accordance with subsection (2) may not be challenged before

31  November 1, 1997, on the grounds that it exceeds the

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999              CS/HB 107

    607-112-99






  1  rulemaking authority or law implemented as described by this

  2  section. A rule adopted before October 1, 1996, and included

  3  on a list submitted by an agency in accordance with subsection

  4  (2) may not be challenged before July 1, 1999, on the grounds

  5  that it exceeds the rulemaking authority or law implemented as

  6  described by this section. A rule adopted on or after October

  7  1, 1996, and before October 1, 1999, and included on a list

  8  submitted by an agency in accordance with subsection (2) may

  9  not be challenged before July 1, 2001, on the grounds that it

10  exceeds the rulemaking authority or law implemented as

11  described by this section.

12         (4)  Nothing in this section shall be construed to

13  change the legal status of a rule that has otherwise been

14  judicially or administratively determined to be invalid.

15         Section 3.  Paragraph (f) of subsection (1) of section

16  120.54, Florida Statutes, 1998 Supplement, is amended to read:

17         120.54  Rulemaking.--

18         (1)  GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER

19  THAN EMERGENCY RULES.--

20         (f)  An agency may adopt rules authorized by law and

21  necessary to the proper implementation of a statute prior to

22  the effective date of the statute, but the rules may not be

23  effective enforced until the statute upon which they are based

24  is effective. An agency may not adopt retroactive rules,

25  including retroactive rules intended to clarify existing law,

26  unless that power is expressly authorized by statute.

27         Section 4.  Paragraph (a) of subsection (2) of section

28  120.56, Florida Statutes, is amended to read:

29         120.56  Challenges to rules.--

30         (2)  CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--

31

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999              CS/HB 107

    607-112-99






  1         (a)  Any substantially affected person may seek an

  2  administrative determination of the invalidity of any proposed

  3  rule by filing a petition seeking such a determination with

  4  the division within 21 days after the date of publication of

  5  the notice required by s. 120.54(3)(a), within 10 days after

  6  the final public hearing is held on the proposed rule as

  7  provided by s. 120.54(3)(c), within 20 days after the

  8  preparation of a statement of estimated regulatory costs

  9  required pursuant to s. 120.541, if applicable, or within 20

10  days after the date of publication of the notice required by

11  s. 120.54(3)(d). The petition shall state with particularity

12  the objections to the proposed rule and the reasons that the

13  proposed rule is an invalid exercise of delegated legislative

14  authority. The petitioner has the burden of going forward. The

15  agency then has the burden to prove by a preponderance of the

16  evidence that the proposed rule is not an invalid exercise of

17  delegated legislative authority as to the objections raised.

18  Any person who is substantially affected by a change in the

19  proposed rule may seek a determination of the validity of such

20  change.  Any person not substantially affected by the proposed

21  rule as initially noticed, but who is substantially affected

22  by the rule as a result of a change, may challenge any

23  provision of the rule and is not limited to challenging the

24  change to the proposed rule.

25         Section 5.  Paragraph (l) of subsection (1) of section

26  120.57, Florida Statutes, 1998 Supplement, is amended to read:

27         120.57  Additional procedures for particular cases.--

28         (1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS

29  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--

30         (l)  The agency may adopt the recommended order as the

31  final order of the agency. The agency in its final order may

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999              CS/HB 107

    607-112-99






  1  reject or modify the clearly erroneous conclusions of law over

  2  which it has substantive jurisdiction and interpretation of

  3  administrative rules over which it has substantive

  4  jurisdiction.  Rejection or modification of conclusions of law

  5  may not form the basis for rejection or modification of

  6  findings of fact.  The agency may not reject or modify the

  7  findings of fact unless the agency first determines from a

  8  review of the entire record, and states with particularity in

  9  the order, that the findings of fact were not based upon

10  competent substantial evidence or that the proceedings on

11  which the findings were based did not comply with essential

12  requirements of law. The agency may accept the recommended

13  penalty in a recommended order, but may not reduce or increase

14  it without a review of the complete record and without stating

15  with particularity its reasons therefor in the order, by

16  citing to the record in justifying the action.

17         Section 6.  Paragraph (d) of subsection (7) of section

18  120.68, Florida Statutes, is amended to read:

19         120.68  Judicial review.--

20         (7)  The court shall remand a case to the agency for

21  further proceedings consistent with the court's decision or

22  set aside agency action, as appropriate, when it finds that:

23         (d)  The agency has erroneously interpreted a provision

24  of law and a correct interpretation compels a particular

25  action. The court shall not defer to an agency's construction

26  of a statute or rule or otherwise afford any special weight to

27  the agency's interpretation of a statute or rule; or

28         Section 7.  This act shall take effect upon becoming a

29  law.

30

31

                                  10