HB 1747

CS

CHAMBER ACTION

1	The Transportation & Economic Development Appropriations
2	Committee recommends the following:
3
4	Council/Committee Substitute
5	Remove the entire bill and insert:
6	A bill to be entitled
7	An act relating to administrative procedures; amending s.
8	11.60, F.S.; revising duties of the Administrative
9	Procedures Committee with respect to its review of
10	statutes; amending s. 120.54, F.S.; revising times for
11	filing rules for adoption; providing for the form and
12	provisions of bonds; revising applicability of certain
13	uniform rules; amending s. 120.55, F.S.; requiring that
14	certain information be included in forms incorporated by
15	reference in rules; requiring information to be published
16	electronically on an Internet website; providing that such
17	publication does not preclude other publications;
18	providing additional duties of the Department of State
19	with respect to publications; providing requirements for
20	the Internet website; amending s. 120.551, F.S.;
21	postponing the repeal of this section, relating to
22	Internet publication; amending s. 120.56, F.S.; revising
23	provisions relating to withdrawal of challenged rules;
24	amending s. 120.569, F.S.; prescribing circumstances under
25	which the time for filing a petition for hearing must be
26	extended; amending s. 120.57, F.S.; requiring that
27	additional information be included in notices relating to
28	protests of contract solicitations or awards; amending s.
29	120.74, F.S.; requiring agency reports to be filed with
30	the Administrative Procedures Committee; requiring the
31	Department of State to provide certain assistance to
32	agencies in their transition to publishing on the Florida
33	Administrative Weekly Internet website; amending s.
34	120.80, F.S.; providing for the referral of certain
35	matters affecting certain utilities to the Division of
36	Administrative Hearings; providing effective dates.
37
38	Be It Enacted by the Legislature of the State of Florida:
39
40	Section 1.  Subsection (4) of section 11.60, Florida
41	Statutes, is amended to read:
42	11.60  Administrative Procedures Committee; creation;
43	membership; powers; duties.--
44	(4)  The committee shall undertake and maintain a
45	systematic and continuous review of statutes that authorize
46	agencies to adopt rules and shall make recommendations to the
47	appropriate standing committees of the Senate and the House of
48	Representatives as to the advisability of considering changes to
49	the delegated legislative authority to adopt rules in specific
50	circumstances. The annual report submitted pursuant to paragraph
51	(2)(f) shall include a schedule for the required systematic
52	review of existing statutes, a summary of the status of this
53	review, and any recommendations provided to the standing
54	committees during the preceding year.
55	Section 2.  Paragraph (e) of subsection (3) and paragraph
56	(b) of subsection (5) of section 120.54, Florida Statutes, are
57	amended to read:
58	120.54  Rulemaking.--
59	(3)  ADOPTION PROCEDURES.--
60	(e)  Filing for final adoption; effective date.--
61	1.  If the adopting agency is required to publish its rules
62	in the Florida Administrative Code, it shall file with the
63	Department of State three certified copies of the rule it
64	proposes to adopt, a summary of the rule, a summary of any
65	hearings held on the rule, and a detailed written statement of
66	the facts and circumstances justifying the rule. Agencies not
67	required to publish their rules in the Florida Administrative
68	Code shall file one certified copy of the proposed rule, and the
69	other material required by this subparagraph, in the office of
70	the agency head, and such rules shall be open to the public.
71	2.  A rule may not be filed for adoption less than 28 days
72	or more than 90 days after the notice required by paragraph (a),
73	until 21 days after the notice required by paragraph (d), until
74	14 days after the final public hearing, until 21 days after
75	preparation of a statement of estimated regulatory costs
76	required under s. 120.541, or until the administrative law judge
77	has rendered a decision under s. 120.56(2), whichever applies.
78	Filings shall be made no less than 28 days nor more than 90 days
79	after the notice required by paragraph (a). When a required
80	notice of change is published prior to the expiration of the
81	time to file the rule for adoption, the period during which a
82	rule must be filed for adoption is extended to 45 days after the
83	date of publication. If notice of a public hearing is published
84	prior to the expiration of the time to file the rule for
85	adoption, the period during which a rule must be filed for
86	adoption is extended to 45 days after adjournment of the final
87	hearing on the rule, 21 days after receipt of all material
88	authorized to be submitted at the hearing, or 21 days after
89	receipt of the transcript, if one is made, whichever is latest.
90	The term "public hearing" includes any public meeting held by
91	any agency at which the rule is considered. The filing of a
92	petition for an administrative determination under the
93	provisions of s. 120.56(2) shall toll the 90-day period during
94	which a rule must be filed for adoption until 30 days after
95	rendition of the final order or until judicial review of the
96	final order is complete the administrative law judge has filed
97	the final order with the clerk.
98	3.  At the time a rule is filed, the agency shall certify
99	that the time limitations prescribed by this paragraph have been
100	complied with, that all statutory rulemaking requirements have
101	been met, and that there is no administrative determination
102	pending on the rule. For the purposes of this paragraph, the
103	term "administrative determination" does not include subsequent
104	judicial review.
105	4.  At the time a rule is filed, the committee shall
106	certify whether the agency has responded in writing to all
107	material and timely written comments or written inquiries made
108	on behalf of the committee. The department shall reject any rule
109	not filed within the prescribed time limits; that does not
110	satisfy all statutory rulemaking requirements; upon which an
111	agency has not responded in writing to all material and timely
112	written inquiries or written comments; upon which an
113	administrative determination is pending; or which does not
114	include a statement of estimated regulatory costs, if required.
115	5.  If a rule has not been adopted within the time limits
116	imposed by this paragraph or has not been adopted in compliance
117	with all statutory rulemaking requirements, the agency proposing
118	the rule shall withdraw the rule and give notice of its action
119	in the next available issue of the Florida Administrative
120	Weekly.
121	6.  The proposed rule shall be adopted on being filed with
122	the Department of State and become effective 20 days after being
123	filed, on a later date specified in the rule, or on a date
124	required by statute. Rules not required to be filed with the
125	Department of State shall become effective when adopted by the
126	agency head or on a later date specified by rule or statute. If
127	the committee notifies an agency that an objection to a rule is
128	being considered, the agency may postpone the adoption of the
129	rule to accommodate review of the rule by the committee. When an
130	agency postpones adoption of a rule to accommodate review by the
131	committee, the 90-day period for filing the rule is tolled until
132	the committee notifies the agency that it has completed its
133	review of the rule.
134	(5)  UNIFORM RULES.--
135	(b)  The uniform rules of procedure adopted by the
136	commission pursuant to this subsection shall include, but are
137	not limited to:
138	1.  Uniform rules for the scheduling of public meetings,
139	hearings, and workshops.
140	2.  Uniform rules for use by each state agency that provide
141	procedures for conducting public meetings, hearings, and
142	workshops, and for taking evidence, testimony, and argument at
143	such public meetings, hearings, and workshops, in person and by
144	means of communications media technology. The rules shall
145	provide that all evidence, testimony, and argument presented
146	shall be afforded equal consideration, regardless of the method
147	of communication. If a public meeting, hearing, or workshop is
148	to be conducted by means of communications media technology, or
149	if attendance may be provided by such means, the notice shall so
150	state. The notice for public meetings, hearings, and workshops
151	utilizing communications media technology shall state how
152	persons interested in attending may do so and shall name
153	locations, if any, where communications media technology
154	facilities will be available. Nothing in this paragraph shall be
155	construed to diminish the right to inspect public records under
156	chapter 119. Limiting points of access to public meetings,
157	hearings, and workshops subject to the provisions of s. 286.011
158	to places not normally open to the public shall be presumed to
159	violate the right of access of the public, and any official
160	action taken under such circumstances is void and of no effect.
161	Other laws relating to public meetings, hearings, and workshops,
162	including penal and remedial provisions, shall apply to public
163	meetings, hearings, and workshops conducted by means of
164	communications media technology, and shall be liberally
165	construed in their application to such public meetings,
166	hearings, and workshops.  As used in this subparagraph,
167	"communications media technology" means the electronic
168	transmission of printed matter, audio, full-motion video,
169	freeze-frame video, compressed video, and digital video by any
170	method available.
171	3.  Uniform rules of procedure for the filing of notice of
172	protests and formal written protests. The Administration
173	Commission may prescribe the form and substantive provisions of
174	a required bond.
175	4.  Uniform rules of procedure for the filing of petitions
176	for administrative hearings pursuant to s. 120.569 or s. 120.57.
177	For all actions other than agency enforcement and disciplinary
178	actions against a licensee or other person, such rules shall
179	require the petition to include:
180	a.  The identification of the petitioner.
181	b.  A statement of when and how the petitioner received
182	notice of the agency's action or proposed action.
183	c.  An explanation of how the petitioner's substantial
184	interests are or will be affected by the action or proposed
185	action.
186	d.  A statement of all material facts disputed by the
187	petitioner or a statement that there are no disputed facts.
188	e.  A statement of the ultimate facts alleged, including a
189	statement of the specific facts the petitioner contends warrant
190	reversal or modification of the agency's proposed action.
191	f.  A statement of the specific rules or statutes that the
192	petitioner contends require reversal or modification of the
193	agency's proposed action, including an explanation of how the
194	alleged facts relate to the specific rules or statutes.
195	g.  A statement of the relief sought by the petitioner,
196	stating precisely the action petitioner wishes the agency to
197	take with respect to the proposed action.
198	5.  Uniform rules of procedure for the filing and prompt
199	disposition of petitions for declaratory statements.
200	6.  Provision of a method by which each agency head shall
201	provide a description of the agency's organization and general
202	course of its operations.
203	7.  Uniform rules establishing procedures for granting or
204	denying petitions for variances and waivers pursuant to s.
205	120.542.
206	Section 3.  Effective December 31, 2006, section 120.55,
207	Florida Statutes, is amended to read:
208	120.55  Publication.--
209	(1)  The Department of State shall:
210	(a)1.  Through a continuous revision system, compile and
211	publish the "Florida Administrative Code." The Florida
212	Administrative Code shall contain all rules adopted by each
213	agency, citing the specific rulemaking authority pursuant to
214	which each rule was adopted, all history notes as authorized in
215	s. 120.545(9), and complete indexes to all rules contained in
216	the code. Supplementation shall be made as often as practicable,
217	but at least monthly. The department may contract with a
218	publishing firm for the publication, in a timely and useful
219	form, of the Florida Administrative Code; however, the
220	department shall retain responsibility for the code as provided
221	in this section. This publication shall be the official
222	compilation of the administrative rules of this state. The
223	Department of State shall retain the copyright over the Florida
224	Administrative Code.
225	2.  Rules general in form but applicable to only one school
226	district, community college district, or county, or a part
227	thereof, or state university rules relating to internal
228	personnel or business and finance shall not be published in the
229	Florida Administrative Code. Exclusion from publication in the
230	Florida Administrative Code shall not affect the validity or
231	effectiveness of such rules.
232	3.  At the beginning of the section of the code dealing
233	with an agency that files copies of its rules with the
234	department, the department shall publish the address and
235	telephone number of the executive offices of each agency, the
236	manner by which the agency indexes its rules, a listing of all
237	rules of that agency excluded from publication in the code, and
238	a statement as to where those rules may be inspected.
239	4.  Forms shall not be published in the Florida
240	Administrative Code; but any form which an agency uses in its
241	dealings with the public, along with any accompanying
242	instructions, shall be filed with the committee before it is
243	used. Any form or instruction which meets the definition of
244	"rule" provided in s. 120.52 shall be incorporated by reference
245	into the appropriate rule.  The reference shall specifically
246	state that the form is being incorporated by reference and shall
247	include the number, title, and effective date of the form and an
248	explanation of how the form may be obtained. Each form created
249	by an agency which is incorporated by reference in a rule notice
250	of which is given under s. 120.54(3)(a) after December 31, 2006,
251	must clearly display the number, title, and effective date of
252	the form and the number of the rule in which the form is
253	incorporated.
254	(b)  Electronically publish on an Internet website managed
255	by the department a weekly publication entitled the "Florida
256	Administrative Weekly," which shall serve as the official
257	Internet website for such publication and must contain:
258	1.  Notice of adoption of, and an index to, all rules filed
259	during the preceding week.
260	2.  All notices required by s. 120.54(3)(a), showing the
261	text of all rules proposed for consideration or a reference to
262	the location in the Florida Administrative Weekly where the text
263	of the proposed rules is published.
264	3.  All notices of public meetings, hearings, and workshops
265	conducted in accordance with the provisions of s. 120.525,
266	including a statement of the manner in which a copy of the
267	agenda may be obtained.
268	4.  A notice of each request for authorization to amend or
269	repeal an existing uniform rule or for the adoption of new
270	uniform rules.
271	5.  Notice of petitions for declaratory statements or
272	administrative determinations.
273	6.  A summary of each objection to any rule filed by the
274	Administrative Procedures Committee during the preceding week.
275	7.  A cumulative list of all rules that have been proposed
276	but not filed for adoption.
277	8.7.  Any other material required or authorized by law or
278	deemed useful by the department.
279
280	The department shall publish a printed version of the Florida
281	Administrative Weekly and make copies available on an annual
282	subscription basis. The department may contract with a
283	publishing firm for printed publication of the Florida
284	Administrative Weekly.
285	(c)  Review notices for compliance with format and
286	numbering requirements before publishing them on the Florida
287	Administrative Weekly Internet website.
288	(d)(c)  Prescribe by rule the style and form required for
289	rules submitted for filing and establish the form for their
290	certification.
291	(e)(d)  Correct grammatical, typographical, and like errors
292	not affecting the construction or meaning of the rules, after
293	having obtained the advice and consent of the appropriate
294	agency, and insert history notes.
295	(e)  Make copies of the Florida Administrative Weekly
296	available on an annual subscription basis computed to cover a
297	pro rata share of 50 percent of the costs related to the
298	publication of the Florida Administrative Weekly.
299	(f)  Charge each agency using the Florida Administrative
300	Weekly a space rate computed to cover a pro rata share of 50
301	percent of the costs related to the Florida Administrative
302	Weekly and the Florida Administrative Code.
303	(g)  Maintain a permanent record of all notices published
304	in the Florida Administrative Weekly.
305	(2)  The Florida Administrative Weekly Internet website
306	must allow users to:
307	(a)  Search for notices by type, publication date, rule
308	number, word, subject, and agency;
309	(b)  Search a database that makes available all notices
310	published on the website for a period of at least 5 years;
311	(c)  Subscribe to an automated e-mail notification of
312	selected notices; and
313	(d)  View agency forms incorporated by reference in
314	proposed rules.
315	(3)  Publication of material required by paragraph (1)(b)
316	on the Florida Administrative Weekly Internet website does not
317	preclude publication of such material on an agency's website or
318	by other means.
319	(4)(2)  Each agency shall provide copies of its rules upon
320	request, with citations to the grant of rulemaking authority and
321	the specific law implemented for each rule print or distribute
322	copies of its rules, citing the specific rulemaking authority
323	pursuant to which each rule was adopted.
324	(5)(3)  Any publication of a proposed rule promulgated by
325	an agency, whether published in the Florida Administrative Code
326	or elsewhere, shall include, along with the rule, the name of
327	the person or persons originating such rule, the name of the
328	supervisor or person who approved the rule, and the date upon
329	which the rule was approved.
330	(6)  Access to the Florida Administrative Weekly Internet
331	website and its contents, including the e-mail notification
332	service, shall be free for the public.
333	(7)(4)(a)  Each year the Department of State shall furnish
334	the Florida Administrative Weekly, without charge and upon
335	request, as follows:
336	1.  One subscription to each federal and state court having
337	jurisdiction over the residents of the state; the Legislative
338	Library; each state university library; the State Library; each
339	depository library designated pursuant to s. 257.05; and each
340	standing committee of the Senate and House of Representatives
341	and each state legislator.
342	2.  Two subscriptions to each state department.
343	3.  Three subscriptions to the library of the Supreme Court
344	of Florida, the library of each state district court of appeal,
345	the division, the library of the Attorney General, each law
346	school library in Florida, the Secretary of the Senate, and the
347	Clerk of the House of Representatives.
348	4.  Ten subscriptions to the committee.
349	(b)  The Department of State shall furnish one copy of the
350	Florida Administrative Weekly, at no cost, to each clerk of the
351	circuit court and each state department, for posting for public
352	inspection.
353	(8)(5)(a)  All fees and moneys collected by the Department
354	of State under this chapter shall be deposited in the Records
355	Management Trust Fund for the purpose of paying for the
356	publication and distribution of the Florida Administrative Code
357	and the Florida Administrative Weekly and for associated costs
358	incurred by the department in carrying out this chapter.
359	(b)  The unencumbered balance in the Records Management
360	Trust Fund for fees collected pursuant to this chapter may shall
361	not exceed $300,000 at the beginning of each fiscal year, and
362	any excess shall be transferred to the General Revenue Fund.
363	(c)  It is the intent of the Legislature that the Florida
364	Administrative Weekly be supported entirely from funds collected
365	for subscriptions to and advertisements in the Florida
366	Administrative Weekly.
367	Section 4.  Subsection (3) of section 120.551, Florida
368	Statutes, is amended to read:
369	120.551  Internet publication.--
370	(3)  This section is repealed effective December 31, 2006
371	July 1, 2005, unless reviewed and reenacted by the Legislature
372	before that date.
373	Section 5.  Paragraph (b) of subsection (2) of section
374	120.56, Florida Statutes, is amended to read:
375	120.56  Challenges to rules.--
376	(2)  CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--
377	(b)  The administrative law judge may declare the proposed
378	rule wholly or partly invalid. Unless the decision of the
379	administrative law judge is reversed on appeal, the proposed
380	rule or provision of a proposed rule declared invalid shall be
381	withdrawn by the adopting agency and shall not be adopted. No
382	rule shall be filed for adoption until 28 days after the notice
383	required by s. 120.54(3)(a), until 21 days after the notice
384	required by s. 120.54(3)(d), until 14 days after the public
385	hearing, until 21 days after preparation of a statement of
386	estimated regulatory costs required pursuant to s. 120.541, or
387	until the administrative law judge has rendered a decision,
388	whichever applies. However, the agency may proceed with all
389	other steps in the rulemaking process, including the holding of
390	a factfinding hearing. In the event part of a proposed rule is
391	declared invalid, the adopting agency may, in its sole
392	discretion, withdraw the proposed rule in its entirety. The
393	agency whose proposed rule has been declared invalid in whole or
394	part shall give notice of the decision in the first available
395	issue of the Florida Administrative Weekly.
396	Section 6.  Paragraph (c) of subsection (2) of section
397	120.569, Florida Statutes, is amended to read:
398	120.569  Decisions which affect substantial interests.--
399	(2)
400	(c)  Unless otherwise provided by law, a petition or
401	request for hearing shall include those items required by the
402	uniform rules adopted pursuant to s. 120.54(5)(b)4.  Upon the
403	receipt of a petition or request for hearing, the agency shall
404	carefully review the petition to determine if it contains all of
405	the required information.  A petition shall be dismissed if it
406	is not in substantial compliance with these requirements or it
407	has been untimely filed.  Dismissal of a petition shall, at
408	least once, be without prejudice to petitioner's filing a timely
409	amended petition curing the defect, unless it conclusively
410	appears from the face of the petition that the defect cannot be
411	cured.  The agency shall promptly give written notice to all
412	parties of the action taken on the petition, shall state with
413	particularity its reasons if the petition is not granted, and
414	shall state the deadline for filing an amended petition if
415	applicable. The time for filing a petition shall be extended if
416	the petitioner has been misled or lulled into inaction, has in
417	some extraordinary way been prevented from asserting his or her
418	rights, or has timely asserted his or her rights mistakenly in
419	the wrong forum.
420	Section 7.  Paragraph (a) of subsection (3) of section
421	120.57, Florida Statutes, is amended to read:
422	120.57  Additional procedures for particular cases.--
423	(3)  ADDITIONAL PROCEDURES APPLICABLE TO PROTESTS TO
424	CONTRACT SOLICITATION OR AWARD.--Agencies subject to this
425	chapter shall use the uniform rules of procedure, which provide
426	procedures for the resolution of protests arising from the
427	contract solicitation or award process. Such rules shall at
428	least provide that:
429	(a)  The agency shall provide notice of a decision or
430	intended decision concerning a solicitation, contract award, or
431	exceptional purchase by electronic posting. This notice shall
432	contain the following statement: "Failure to file a protest
433	within the time prescribed in section 120.57(3), Florida
434	Statutes, or failure to post the bond or other security required
435	by law within the time allowed for filing a bond shall
436	constitute a waiver of proceedings under chapter 120, Florida
437	Statutes."
438	Section 8.  Subsection (2) of section 120.74, Florida
439	Statutes, is amended to read:
440	120.74  Agency review, revision, and report.--
441	(2)  Beginning October 1, 1997, and by October 1 of every
442	other year thereafter, the head of each agency shall file a
443	report with the President of the Senate, and the Speaker of the
444	House of Representatives, and the committee, with a copy to each
445	appropriate standing committee of the Legislature, which
446	certifies that the agency has complied with the requirements of
447	this subsection. The report must specify any changes made to its
448	rules as a result of the review and, when appropriate, recommend
449	statutory changes that will promote efficiency, reduce
450	paperwork, or decrease costs to government and the private
451	sector.
452	Section 9.  The Department of State shall, before December
453	31, 2006, make available, to all agencies required on the
454	effective date of this act to publish materials in the Florida
455	Administrative Weekly, training courses for the purpose of
456	assisting the agencies with their transition to publishing on
457	the Florida Administrative Weekly Internet website. The training
458	courses may be provided in the form of workshops or software
459	packages that allow self-training by agency personnel.
460	Section 10.  Paragraph (g) is added to subsection (13) of
461	section 120.80, Florida Statutes, to read:
462	120.80  Exceptions and special requirements; agencies.--
463	(13)  FLORIDA PUBLIC SERVICE COMMISSION.--
464	(g)  When the Florida Public Service Commission initiates
465	any agency action affecting the substantial interest of a
466	utility regulated pursuant to chapter 367 on any matter
467	pertaining to s. 120.60(5) and a formal administrative hearing
468	is requested pursuant to s. 120.57, the commission shall refer
469	the matter to the division for the assignment of an
470	administrative law judge to conduct the hearing and enter a
471	recommended order.
472	Section 11.  Except as otherwise expressly provided in this
473	act, this act shall take effect July 1, 2005.

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