HB 1747CS


1The Transportation & Economic Development Appropriations
2Committee recommends the following:
4     Council/Committee Substitute
5     Remove the entire bill and insert:
A bill to be entitled
7An act relating to administrative procedures; amending s.
811.60, F.S.; revising duties of the Administrative
9Procedures Committee with respect to its review of
10statutes; amending s. 120.54, F.S.; revising times for
11filing rules for adoption; providing for the form and
12provisions of bonds; revising applicability of certain
13uniform rules; amending s. 120.55, F.S.; requiring that
14certain information be included in forms incorporated by
15reference in rules; requiring information to be published
16electronically on an Internet website; providing that such
17publication does not preclude other publications;
18providing additional duties of the Department of State
19with respect to publications; providing requirements for
20the Internet website; amending s. 120.551, F.S.;
21postponing the repeal of this section, relating to
22Internet publication; amending s. 120.56, F.S.; revising
23provisions relating to withdrawal of challenged rules;
24amending s. 120.569, F.S.; prescribing circumstances under
25which the time for filing a petition for hearing must be
26extended; amending s. 120.57, F.S.; requiring that
27additional information be included in notices relating to
28protests of contract solicitations or awards; amending s.
29120.74, F.S.; requiring agency reports to be filed with
30the Administrative Procedures Committee; requiring the
31Department of State to provide certain assistance to
32agencies in their transition to publishing on the Florida
33Administrative Weekly Internet website; amending s.
34120.80, F.S.; providing for the referral of certain
35matters affecting certain utilities to the Division of
36Administrative Hearings; providing effective dates.
38Be It Enacted by the Legislature of the State of Florida:
40     Section 1.  Subsection (4) of section 11.60, Florida
41Statutes, is amended to read:
42     11.60  Administrative Procedures Committee; creation;
43membership; powers; duties.--
44     (4)  The committee shall undertake and maintain a
45systematic and continuous review of statutes that authorize
46agencies to adopt rules and shall make recommendations to the
47appropriate standing committees of the Senate and the House of
48Representatives as to the advisability of considering changes to
49the delegated legislative authority to adopt rules in specific
50circumstances. The annual report submitted pursuant to paragraph
51(2)(f) shall include a schedule for the required systematic
52review of existing statutes, a summary of the status of this
53review, and any recommendations provided to the standing
54committees 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
57amended to read:
58     120.54  Rulemaking.--
60     (e)  Filing for final adoption; effective date.--
61     1.  If the adopting agency is required to publish its rules
62in the Florida Administrative Code, it shall file with the
63Department of State three certified copies of the rule it
64proposes to adopt, a summary of the rule, a summary of any
65hearings held on the rule, and a detailed written statement of
66the facts and circumstances justifying the rule. Agencies not
67required to publish their rules in the Florida Administrative
68Code shall file one certified copy of the proposed rule, and the
69other material required by this subparagraph, in the office of
70the 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
72or more than 90 days after the notice required by paragraph (a),
73until 21 days after the notice required by paragraph (d), until
7414 days after the final public hearing, until 21 days after
75preparation of a statement of estimated regulatory costs
76required under s. 120.541, or until the administrative law judge
77has rendered a decision under s. 120.56(2), whichever applies.
78Filings shall be made no less than 28 days nor more than 90 days
79after the notice required by paragraph (a). When a required
80notice of change is published prior to the expiration of the
81time to file the rule for adoption, the period during which a
82rule must be filed for adoption is extended to 45 days after the
83date of publication. If notice of a public hearing is published
84prior to the expiration of the time to file the rule for
85adoption, the period during which a rule must be filed for
86adoption is extended to 45 days after adjournment of the final
87hearing on the rule, 21 days after receipt of all material
88authorized to be submitted at the hearing, or 21 days after
89receipt of the transcript, if one is made, whichever is latest.
90The term "public hearing" includes any public meeting held by
91any agency at which the rule is considered. The filing of a
92petition for an administrative determination under the
93provisions of s. 120.56(2) shall toll the 90-day period during
94which a rule must be filed for adoption until 30 days after
95rendition of the final order or until judicial review of the
96final order is complete the administrative law judge has filed
97the final order with the clerk.
98     3.  At the time a rule is filed, the agency shall certify
99that the time limitations prescribed by this paragraph have been
100complied with, that all statutory rulemaking requirements have
101been met, and that there is no administrative determination
102pending on the rule. For the purposes of this paragraph, the
103term "administrative determination" does not include subsequent
104judicial review.
105     4.  At the time a rule is filed, the committee shall
106certify whether the agency has responded in writing to all
107material and timely written comments or written inquiries made
108on behalf of the committee. The department shall reject any rule
109not filed within the prescribed time limits; that does not
110satisfy all statutory rulemaking requirements; upon which an
111agency has not responded in writing to all material and timely
112written inquiries or written comments; upon which an
113administrative determination is pending; or which does not
114include a statement of estimated regulatory costs, if required.
115     5.  If a rule has not been adopted within the time limits
116imposed by this paragraph or has not been adopted in compliance
117with all statutory rulemaking requirements, the agency proposing
118the rule shall withdraw the rule and give notice of its action
119in the next available issue of the Florida Administrative
121     6.  The proposed rule shall be adopted on being filed with
122the Department of State and become effective 20 days after being
123filed, on a later date specified in the rule, or on a date
124required by statute. Rules not required to be filed with the
125Department of State shall become effective when adopted by the
126agency head or on a later date specified by rule or statute. If
127the committee notifies an agency that an objection to a rule is
128being considered, the agency may postpone the adoption of the
129rule to accommodate review of the rule by the committee. When an
130agency postpones adoption of a rule to accommodate review by the
131committee, the 90-day period for filing the rule is tolled until
132the committee notifies the agency that it has completed its
133review of the rule.
134     (5)  UNIFORM RULES.--
135     (b)  The uniform rules of procedure adopted by the
136commission pursuant to this subsection shall include, but are
137not limited to:
138     1.  Uniform rules for the scheduling of public meetings,
139hearings, and workshops.
140     2.  Uniform rules for use by each state agency that provide
141procedures for conducting public meetings, hearings, and
142workshops, and for taking evidence, testimony, and argument at
143such public meetings, hearings, and workshops, in person and by
144means of communications media technology. The rules shall
145provide that all evidence, testimony, and argument presented
146shall be afforded equal consideration, regardless of the method
147of communication. If a public meeting, hearing, or workshop is
148to be conducted by means of communications media technology, or
149if attendance may be provided by such means, the notice shall so
150state. The notice for public meetings, hearings, and workshops
151utilizing communications media technology shall state how
152persons interested in attending may do so and shall name
153locations, if any, where communications media technology
154facilities will be available. Nothing in this paragraph shall be
155construed to diminish the right to inspect public records under
156chapter 119. Limiting points of access to public meetings,
157hearings, and workshops subject to the provisions of s. 286.011
158to places not normally open to the public shall be presumed to
159violate the right of access of the public, and any official
160action taken under such circumstances is void and of no effect.
161Other laws relating to public meetings, hearings, and workshops,
162including penal and remedial provisions, shall apply to public
163meetings, hearings, and workshops conducted by means of
164communications media technology, and shall be liberally
165construed in their application to such public meetings,
166hearings, and workshops.  As used in this subparagraph,
167"communications media technology" means the electronic
168transmission of printed matter, audio, full-motion video,
169freeze-frame video, compressed video, and digital video by any
170method available.
171     3.  Uniform rules of procedure for the filing of notice of
172protests and formal written protests. The Administration
173Commission may prescribe the form and substantive provisions of
174a required bond.
175     4.  Uniform rules of procedure for the filing of petitions
176for administrative hearings pursuant to s. 120.569 or s. 120.57.
177For all actions other than agency enforcement and disciplinary
178actions against a licensee or other person, such rules shall
179require the petition to include:
180     a.  The identification of the petitioner.
181     b.  A statement of when and how the petitioner received
182notice of the agency's action or proposed action.
183     c.  An explanation of how the petitioner's substantial
184interests are or will be affected by the action or proposed
186     d.  A statement of all material facts disputed by the
187petitioner or a statement that there are no disputed facts.
188     e.  A statement of the ultimate facts alleged, including a
189statement of the specific facts the petitioner contends warrant
190reversal or modification of the agency's proposed action.
191     f.  A statement of the specific rules or statutes that the
192petitioner contends require reversal or modification of the
193agency's proposed action, including an explanation of how the
194alleged facts relate to the specific rules or statutes.
195     g.  A statement of the relief sought by the petitioner,
196stating precisely the action petitioner wishes the agency to
197take with respect to the proposed action.
198     5.  Uniform rules of procedure for the filing and prompt
199disposition of petitions for declaratory statements.
200     6.  Provision of a method by which each agency head shall
201provide a description of the agency's organization and general
202course of its operations.
203     7.  Uniform rules establishing procedures for granting or
204denying petitions for variances and waivers pursuant to s.
206     Section 3.  Effective December 31, 2006, section 120.55,
207Florida 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
211publish the "Florida Administrative Code." The Florida
212Administrative Code shall contain all rules adopted by each
213agency, citing the specific rulemaking authority pursuant to
214which each rule was adopted, all history notes as authorized in
215s. 120.545(9), and complete indexes to all rules contained in
216the code. Supplementation shall be made as often as practicable,
217but at least monthly. The department may contract with a
218publishing firm for the publication, in a timely and useful
219form, of the Florida Administrative Code; however, the
220department shall retain responsibility for the code as provided
221in this section. This publication shall be the official
222compilation of the administrative rules of this state. The
223Department of State shall retain the copyright over the Florida
224Administrative Code.
225     2.  Rules general in form but applicable to only one school
226district, community college district, or county, or a part
227thereof, or state university rules relating to internal
228personnel or business and finance shall not be published in the
229Florida Administrative Code. Exclusion from publication in the
230Florida Administrative Code shall not affect the validity or
231effectiveness of such rules.
232     3.  At the beginning of the section of the code dealing
233with an agency that files copies of its rules with the
234department, the department shall publish the address and
235telephone number of the executive offices of each agency, the
236manner by which the agency indexes its rules, a listing of all
237rules of that agency excluded from publication in the code, and
238a statement as to where those rules may be inspected.
239     4.  Forms shall not be published in the Florida
240Administrative Code; but any form which an agency uses in its
241dealings with the public, along with any accompanying
242instructions, shall be filed with the committee before it is
243used. Any form or instruction which meets the definition of
244"rule" provided in s. 120.52 shall be incorporated by reference
245into the appropriate rule.  The reference shall specifically
246state that the form is being incorporated by reference and shall
247include the number, title, and effective date of the form and an
248explanation of how the form may be obtained. Each form created
249by an agency which is incorporated by reference in a rule notice
250of which is given under s. 120.54(3)(a) after December 31, 2006,
251must clearly display the number, title, and effective date of
252the form and the number of the rule in which the form is
254     (b)  Electronically publish on an Internet website managed
255by the department a weekly publication entitled the "Florida
256Administrative Weekly," which shall serve as the official
257Internet website for such publication and must contain:
258     1.  Notice of adoption of, and an index to, all rules filed
259during the preceding week.
260     2.  All notices required by s. 120.54(3)(a), showing the
261text of all rules proposed for consideration or a reference to
262the location in the Florida Administrative Weekly where the text
263of the proposed rules is published.
264     3.  All notices of public meetings, hearings, and workshops
265conducted in accordance with the provisions of s. 120.525,
266including a statement of the manner in which a copy of the
267agenda may be obtained.
268     4.  A notice of each request for authorization to amend or
269repeal an existing uniform rule or for the adoption of new
270uniform rules.
271     5.  Notice of petitions for declaratory statements or
272administrative determinations.
273     6.  A summary of each objection to any rule filed by the
274Administrative Procedures Committee during the preceding week.
275     7.  A cumulative list of all rules that have been proposed
276but not filed for adoption.
277     8.7.  Any other material required or authorized by law or
278deemed useful by the department.
280The department shall publish a printed version of the Florida
281Administrative Weekly and make copies available on an annual
282subscription basis. The department may contract with a
283publishing firm for printed publication of the Florida
284Administrative Weekly.
285     (c)  Review notices for compliance with format and
286numbering requirements before publishing them on the Florida
287Administrative Weekly Internet website.
288     (d)(c)  Prescribe by rule the style and form required for
289rules submitted for filing and establish the form for their
291     (e)(d)  Correct grammatical, typographical, and like errors
292not affecting the construction or meaning of the rules, after
293having obtained the advice and consent of the appropriate
294agency, and insert history notes.
295     (e)  Make copies of the Florida Administrative Weekly
296available on an annual subscription basis computed to cover a
297pro rata share of 50 percent of the costs related to the
298publication of the Florida Administrative Weekly.
299     (f)  Charge each agency using the Florida Administrative
300Weekly a space rate computed to cover a pro rata share of 50
301percent of the costs related to the Florida Administrative
302Weekly and the Florida Administrative Code.
303     (g)  Maintain a permanent record of all notices published
304in the Florida Administrative Weekly.
305     (2)  The Florida Administrative Weekly Internet website
306must allow users to:
307     (a)  Search for notices by type, publication date, rule
308number, word, subject, and agency;
309     (b)  Search a database that makes available all notices
310published on the website for a period of at least 5 years;
311     (c)  Subscribe to an automated e-mail notification of
312selected notices; and
313     (d)  View agency forms incorporated by reference in
314proposed rules.
315     (3)  Publication of material required by paragraph (1)(b)
316on the Florida Administrative Weekly Internet website does not
317preclude publication of such material on an agency's website or
318by other means.
319     (4)(2)  Each agency shall provide copies of its rules upon
320request, with citations to the grant of rulemaking authority and
321the specific law implemented for each rule print or distribute
322copies of its rules, citing the specific rulemaking authority
323pursuant to which each rule was adopted.
324     (5)(3)  Any publication of a proposed rule promulgated by
325an agency, whether published in the Florida Administrative Code
326or elsewhere, shall include, along with the rule, the name of
327the person or persons originating such rule, the name of the
328supervisor or person who approved the rule, and the date upon
329which the rule was approved.
330     (6)  Access to the Florida Administrative Weekly Internet
331website and its contents, including the e-mail notification
332service, shall be free for the public.
333     (7)(4)(a)  Each year the Department of State shall furnish
334the Florida Administrative Weekly, without charge and upon
335request, as follows:
336     1.  One subscription to each federal and state court having
337jurisdiction over the residents of the state; the Legislative
338Library; each state university library; the State Library; each
339depository library designated pursuant to s. 257.05; and each
340standing committee of the Senate and House of Representatives
341and each state legislator.
342     2.  Two subscriptions to each state department.
343     3.  Three subscriptions to the library of the Supreme Court
344of Florida, the library of each state district court of appeal,
345the division, the library of the Attorney General, each law
346school library in Florida, the Secretary of the Senate, and the
347Clerk of the House of Representatives.
348     4.  Ten subscriptions to the committee.
349     (b)  The Department of State shall furnish one copy of the
350Florida Administrative Weekly, at no cost, to each clerk of the
351circuit court and each state department, for posting for public
353     (8)(5)(a)  All fees and moneys collected by the Department
354of State under this chapter shall be deposited in the Records
355Management Trust Fund for the purpose of paying for the
356publication and distribution of the Florida Administrative Code
357and the Florida Administrative Weekly and for associated costs
358incurred by the department in carrying out this chapter.
359     (b)  The unencumbered balance in the Records Management
360Trust Fund for fees collected pursuant to this chapter may shall
361not exceed $300,000 at the beginning of each fiscal year, and
362any excess shall be transferred to the General Revenue Fund.
363     (c)  It is the intent of the Legislature that the Florida
364Administrative Weekly be supported entirely from funds collected
365for subscriptions to and advertisements in the Florida
366Administrative Weekly.
367     Section 4.  Subsection (3) of section 120.551, Florida
368Statutes, is amended to read:
369     120.551  Internet publication.--
370     (3)  This section is repealed effective December 31, 2006
371July 1, 2005, unless reviewed and reenacted by the Legislature
372before that date.
373     Section 5.  Paragraph (b) of subsection (2) of section
374120.56, Florida Statutes, is amended to read:
375     120.56  Challenges to rules.--
377     (b)  The administrative law judge may declare the proposed
378rule wholly or partly invalid. Unless the decision of the
379administrative law judge is reversed on appeal, the proposed
380rule or provision of a proposed rule declared invalid shall be
381withdrawn by the adopting agency and shall not be adopted. No
382rule shall be filed for adoption until 28 days after the notice
383required by s. 120.54(3)(a), until 21 days after the notice
384required by s. 120.54(3)(d), until 14 days after the public
385hearing, until 21 days after preparation of a statement of
386estimated regulatory costs required pursuant to s. 120.541, or
387until the administrative law judge has rendered a decision,
388whichever applies. However, the agency may proceed with all
389other steps in the rulemaking process, including the holding of
390a factfinding hearing. In the event part of a proposed rule is
391declared invalid, the adopting agency may, in its sole
392discretion, withdraw the proposed rule in its entirety. The
393agency whose proposed rule has been declared invalid in whole or
394part shall give notice of the decision in the first available
395issue of the Florida Administrative Weekly.
396     Section 6.  Paragraph (c) of subsection (2) of section
397120.569, 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
401request for hearing shall include those items required by the
402uniform rules adopted pursuant to s. 120.54(5)(b)4.  Upon the
403receipt of a petition or request for hearing, the agency shall
404carefully review the petition to determine if it contains all of
405the required information.  A petition shall be dismissed if it
406is not in substantial compliance with these requirements or it
407has been untimely filed.  Dismissal of a petition shall, at
408least once, be without prejudice to petitioner's filing a timely
409amended petition curing the defect, unless it conclusively
410appears from the face of the petition that the defect cannot be
411cured.  The agency shall promptly give written notice to all
412parties of the action taken on the petition, shall state with
413particularity its reasons if the petition is not granted, and
414shall state the deadline for filing an amended petition if
415applicable. The time for filing a petition shall be extended if
416the petitioner has been misled or lulled into inaction, has in
417some extraordinary way been prevented from asserting his or her
418rights, or has timely asserted his or her rights mistakenly in
419the wrong forum.
420     Section 7.  Paragraph (a) of subsection (3) of section
421120.57, Florida Statutes, is amended to read:
422     120.57  Additional procedures for particular cases.--
424CONTRACT SOLICITATION OR AWARD.--Agencies subject to this
425chapter shall use the uniform rules of procedure, which provide
426procedures for the resolution of protests arising from the
427contract solicitation or award process. Such rules shall at
428least provide that:
429     (a)  The agency shall provide notice of a decision or
430intended decision concerning a solicitation, contract award, or
431exceptional purchase by electronic posting. This notice shall
432contain the following statement: "Failure to file a protest
433within the time prescribed in section 120.57(3), Florida
434Statutes, or failure to post the bond or other security required
435by law within the time allowed for filing a bond shall
436constitute a waiver of proceedings under chapter 120, Florida
438     Section 8.  Subsection (2) of section 120.74, Florida
439Statutes, is amended to read:
440     120.74  Agency review, revision, and report.--
441     (2)  Beginning October 1, 1997, and by October 1 of every
442other year thereafter, the head of each agency shall file a
443report with the President of the Senate, and the Speaker of the
444House of Representatives, and the committee, with a copy to each
445appropriate standing committee of the Legislature, which
446certifies that the agency has complied with the requirements of
447this subsection. The report must specify any changes made to its
448rules as a result of the review and, when appropriate, recommend
449statutory changes that will promote efficiency, reduce
450paperwork, or decrease costs to government and the private
452     Section 9.  The Department of State shall, before December
45331, 2006, make available, to all agencies required on the
454effective date of this act to publish materials in the Florida
455Administrative Weekly, training courses for the purpose of
456assisting the agencies with their transition to publishing on
457the Florida Administrative Weekly Internet website. The training
458courses may be provided in the form of workshops or software
459packages that allow self-training by agency personnel.
460     Section 10.  Paragraph (g) is added to subsection (13) of
461section 120.80, Florida Statutes, to read:
462     120.80  Exceptions and special requirements; agencies.--
464     (g)  When the Florida Public Service Commission initiates
465any agency action affecting the substantial interest of a
466utility regulated pursuant to chapter 367 on any matter
467pertaining to s. 120.60(5) and a formal administrative hearing
468is requested pursuant to s. 120.57, the commission shall refer
469the matter to the division for the assignment of an
470administrative law judge to conduct the hearing and enter a
471recommended order.
472     Section 11.  Except as otherwise expressly provided in this
473act, this act shall take effect July 1, 2005.

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