CODING: Words stricken are deletions; words underlined are additions.
HOUSE AMENDMENT
Bill No. CS/CS/HB 2023
Amendment No. (for drafter's use only)
CHAMBER ACTION
Senate House
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5 ORIGINAL STAMP BELOW
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11 Representative(s) Frankel offered the following:
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13 Amendment to Amendment (782029) (with title amendment)
14 On page 12, between lines 14 and 15 of the amendment
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16 insert:
17 Section 7. Subsection (8) of section 120.52, Florida
18 Statutes, is amended to read:
19 120.52 Definitions.--As used in this act:
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 (c) The rule enlarges, modifies, or contravenes the
31 specific provisions of law implemented, citation to which is
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HOUSE AMENDMENT
Bill No. CS/CS/HB 2023
Amendment No. (for drafter's use only)
1 required by s. 120.54(3)(a)1.;
2 (d) The rule is vague, fails to establish adequate
3 standards for agency decisions, or vests unbridled discretion
4 in the agency;
5 (e) The rule is arbitrary or capricious;
6 (f) The rule is not supported by competent substantial
7 evidence; or
8 (g) The rule imposes regulatory costs on the regulated
9 person, county, or city which could be reduced by the adoption
10 of less costly alternatives that substantially accomplish the
11 statutory objectives.
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13 A grant of rulemaking authority is necessary but not
14 sufficient to allow an agency to adopt a rule; a specific law
15 to be implemented is also required. An agency may adopt only
16 rules that implement, interpret the or make specific the
17 particular powers and duties granted by the enabling statute.
18 No agency shall have authority to adopt a rule only because it
19 is reasonably related to the purpose of the enabling
20 legislation and is not arbitrary and capricious or is within
21 the agency's class of powers and duties, nor shall an agency
22 have the authority to implement statutory provisions setting
23 forth general legislative intent or policy. Statutory language
24 granting rulemaking authority or generally describing the
25 powers and functions of an agency shall be construed to extend
26 no further than implementing or interpreting the specific the
27 particular powers and duties conferred by the same statute.
28 Section 8. Section 120.536, Florida Statutes, is
29 amended to read:
30 120.536 Rulemaking authority; listing of rules
31 exceeding authority; repeal; challenge.--
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HOUSE AMENDMENT
Bill No. CS/CS/HB 2023
Amendment No. (for drafter's use only)
1 (1) A grant of rulemaking authority is necessary but
2 not sufficient to allow an agency to adopt a rule; a specific
3 law to be implemented is also required. An agency may adopt
4 only rules that implement, or interpret, the or make specific
5 the particular powers and duties granted by the enabling
6 statute. No agency shall have authority to adopt a rule only
7 because it is reasonably related to the purpose of the
8 enabling legislation and is not arbitrary and capricious or is
9 within the agency's class of powers and duties, nor shall an
10 agency have the authority to implement statutory provisions
11 setting forth general legislative intent or policy. Statutory
12 language granting rulemaking authority or generally describing
13 the powers and functions of an agency shall be construed to
14 extend no further than implementing or interpreting the
15 specific the particular powers and duties conferred by the
16 same statute.
17 (2)(a) By October 1, 1997, each agency shall provide
18 to the Administrative Procedures Committee a listing of each
19 rule, or portion thereof, adopted by that agency before
20 October 1, 1996, which exceeds the rulemaking authority
21 permitted by this section. For those rules of which only a
22 portion exceeds the rulemaking authority permitted by this
23 section, the agency shall also identify the language of the
24 rule which exceeds this authority. The Administrative
25 Procedures Committee shall combine the lists and provide the
26 cumulative listing to the President of the Senate and the
27 Speaker of the House of Representatives. The Legislature
28 shall, at the 1998 Regular Session, consider whether specific
29 legislation authorizing the identified rules, or portions
30 thereof, should be enacted. By January 1, 1999, each agency
31 shall initiate proceedings pursuant to s. 120.54 to repeal
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HOUSE AMENDMENT
Bill No. CS/CS/HB 2023
Amendment No. (for drafter's use only)
1 each rule, or portion thereof, identified as exceeding the
2 rulemaking authority permitted by this section for which
3 authorizing legislation does not exist. By February 1, 1999,
4 the Administrative Procedures Committee shall submit to the
5 President of the Senate and the Speaker of the House of
6 Representatives a report identifying those rules that an
7 agency had previously identified as exceeding the rulemaking
8 authority permitted by this section for which proceedings to
9 repeal the rule have not been initiated. As of July 1, 1999,
10 the Administrative Procedures Committee or any substantially
11 affected person may petition an agency to repeal any rule, or
12 portion thereof, because it exceeds the rulemaking authority
13 permitted by this section. Not later than 30 days after the
14 date of filing the petition if the agency is headed by an
15 individual, or not later than 45 days if the agency is headed
16 by a collegial body, the agency shall initiate rulemaking
17 proceedings to repeal the rule, or portion thereof, or deny
18 the petition, giving a written statement of its reasons for
19 the denial.
20 (b) By October 1, 1999, each agency shall provide to
21 the Administrative Procedures Committee a listing of each
22 rule, or portion thereof, adopted by that agency before the
23 effective date of the bill, which exceeds the rulemaking
24 authority permitted by this section. For those rules of which
25 only a portion exceeds the rulemaking authority permitted by
26 this section, the agency shall also identify the language of
27 the rule which exceeds this authority. The Administrative
28 Procedures Committee shall combine the lists and provide the
29 cumulative listing to the President of the Senate and the
30 Speaker of the House of Representatives. The Legislature
31 shall, at the 2000 Regular Session, consider whether specific
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HOUSE AMENDMENT
Bill No. CS/CS/HB 2023
Amendment No. (for drafter's use only)
1 legislation authorizing the identified rules, or portions
2 thereof, should be enacted. By January 1, 2001, each agency
3 shall initiate proceedings pursuant to s. 120.54 to repeal
4 each rule, or portion thereof, identified as exceeding the
5 rulemaking authority permitted by this section for which
6 authorizing legislation does not exist. By February 1, 2001,
7 the Administrative Procedures Committee shall submit to the
8 President of the Senate and the Speaker of the House of
9 Representatives a report identifying those rules that an
10 agency had previously identified as exceeding the rulemaking
11 authority permitted by this section for which proceedings to
12 repeal the rule have not been initiated. As of July 1, 2001,
13 the Administrative Procedures Committee or any substantially
14 affected person may petition an agency to repeal any rule, or
15 portion thereof, because it exceeds the rulemaking authority
16 permitted by this section. Not later than 30 days after the
17 date of filing the petition if the agency is headed by an
18 individual, or not later than 45 days if the agency is headed
19 by a collegial body, the agency shall initiate rulemaking
20 proceedings to repeal the rule, or portion thereof, or deny
21 the petition, giving a written statement of its reasons for
22 the denial.
23 (3) All proposed rules or amendments to existing rules
24 filed with the Department of State on or after October 1,
25 1996, shall be based on rulemaking authority no broader than
26 that permitted by this section. A rule adopted before October
27 1, 1996, and not included on a list submitted by an agency in
28 accordance with subsection (2) may not be challenged before
29 November 1, 1997, on the grounds that it exceeds the
30 rulemaking authority or law implemented as described by this
31 section. A rule adopted before October 1, 1996, and included
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HOUSE AMENDMENT
Bill No. CS/CS/HB 2023
Amendment No. (for drafter's use only)
1 on a list submitted by an agency in accordance with subsection
2 (2) may not be challenged before July 1, 1999, on the grounds
3 that it exceeds the rulemaking authority or law implemented as
4 described by this section. A rule adopted before the effective
5 date of the bill, and included on a list submitted by an
6 agency in accordance with paragraph (2)(b) may not be
7 challenged before July 1, 2001, on the grounds that it exceeds
8 the rulemaking authority or law implemented as described by
9 this section.
10 (4) Nothing in this section shall be construed to
11 change the legal status of a rule that has otherwise been
12 judicially or administratively determined to be invalid.
13 Section 9. Paragraph (a) of subsection (2) of section
14 120.56l, Florida Statutes, is amended to read:
15 (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--
16 (a) Any substantially affected person may seek an
17 administrative determination of the invalidity of any proposed
18 rule by filing a petition seeking such a determination with
19 the division within 21 days after the date of publication of
20 the notice required by s. 120.54(3)(a), within 10 days after
21 the final public hearing is held on the proposed rule as
22 provided by s. 120.54(3)(c), within 20 days after the
23 preparation of a statement of estimated regulatory costs
24 required pursuant to s. 120.541, if applicable, or within 20
25 days after the date of publication of the notice required by
26 s. 120.54(3)(d). The petition shall state with particularity
27 the objections to the proposed rule and the reasons that the
28 proposed rule is an invalid exercise of delegated legislative
29 authority. The petitioner has the burden of going forward. The
30 agency then has the burden to prove by a preponderance of the
31 evidence that the proposed rule is not an invalid exercise of
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HOUSE AMENDMENT
Bill No. CS/CS/HB 2023
Amendment No. (for drafter's use only)
1 delegated legislative authority as to the objections raised.
2 Any person who is substantially affected by a change in the
3 proposed rule may seek a determination of the validity of such
4 change. Any person not substantially affected by the proposed
5 rule as initially noticed, but who is substantially affected
6 by the rule as a result of a change, may challenge any
7 provision of the rule and is not limited to challenging the
8 change to the proposed rule.
9 Section 10. Paragraph (l) of subsection (1) of section
10 120.57, Florida Statutes, is amended to read:
11 120.57 Additional procedures for particular cases.--
12 (1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS
13 INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--
14 (l) The agency may adopt the recommended order as the
15 final order of the agency. The agency in its final order may
16 reject or modify the conclusions of law over which it has
17 substantive jurisdiction and interpretation of administrative
18 rules over which it has substantive jurisdiction. When
19 rejecting or modifying such conclusion of law or
20 interpretation of administrative rule, the agency must state
21 with particularity its reasons for rejecting or modifying such
22 conclusion of law or interpretation of administrative rule and
23 must make a finding that its substituted conclusion of law or
24 interpretation of administrative rule is as or more reasonable
25 than that which was rejected or modified. Rejection or
26 modification of conclusions of law may not form the basis for
27 rejection or modification of findings of fact. The agency may
28 not reject or modify the findings of fact unless the agency
29 first determines from a review of the entire record, and
30 states with particularity in the order, that the findings of
31 fact were not based upon competent substantial evidence or
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HOUSE AMENDMENT
Bill No. CS/CS/HB 2023
Amendment No. (for drafter's use only)
1 that the proceedings on which the findings were based did not
2 comply with essential requirements of law. The agency may
3 accept the recommended penalty in a recommended order, but may
4 not reduce or increase it without a review of the complete
5 record and without stating with particularity its reasons
6 therefor in the order, by citing to the record in justifying
7 the action.
8 Section 11. Section 1 of Chapter 99-379, Laws of
9 Florida, is hereby repealed.
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12 ================ T I T L E A M E N D M E N T ===============
13 And the title is amended as follows:
14 On page 13, line 19 of the amendment
15 remove: all of said line
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17 and insert in lieu thereof:
18 Procedure Act; amending 120.52, F.S.;
19 eliminating restrictions with respect to an
20 agency's rulemaking authority; amending s.
21 120.536, F.S.; eliminating restrictions with
22 respect to an agency's rulemaking authority;
23 eliminating requirements of agencies to repeal
24 rules as identified as exceeding rulemaking
25 authority, eliminating the requirement for the
26 Administrative Procedures Committee to report
27 to the legislature; eliminating the ability of
28 the committee or a substantially affected
29 person to petition for repeal of such rules
30 after a specified date; amending s. 120.56,
31 F.S., revising the agency's responsibilities in
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HOUSE AMENDMENT
Bill No. CS/CS/HB 2023
Amendment No. (for drafter's use only)
1 response to a challenge to a proposed rule;
2 eliminating the burden on the petitioner of
3 going forward; amending s. 120.57, F.S.,
4 related to hearings involving disputed issues
5 of material fact; revising an agency's
6 authority and requirements with respect to
7 rejection or modification of conclusions of law
8 in its final order; repealing legislative
9 intent rejecting the class of powers of duties
10 analysis; providing an effective date.
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