| 1 | The Governmental Operations Committee recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 |
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| 6 | A bill to be entitled |
| 7 | An act relating to administrative procedures; amending s. |
| 8 | 11.60, F.S.; providing an additional duty of the |
| 9 | Administrative Procedures Committee; revising the contents |
| 10 | of a report by the committee to the Legislature; amending |
| 11 | s. 120.542, F.S.; revising procedure with respect to the |
| 12 | provision of copies of a petition requesting a variance or |
| 13 | waiver from an agency rule and an order granting or |
| 14 | denying the petition; including the committee as a |
| 15 | recipient of a specified report; amending s. 120.545, |
| 16 | F.S.; revising provisions with respect to committee |
| 17 | recommendations upon objection by the committee to a |
| 18 | proposed or existing rule, or portion thereof, and failure |
| 19 | by the subject agency to initiate administrative action or |
| 20 | to proceed to complete such action; revising provisions |
| 21 | with respect to preparation of bills by the committee for |
| 22 | introduction in the Legislature; requiring the committee |
| 23 | to undertake a study of its authority and legislative |
| 24 | oversight function; requiring a report; providing an |
| 25 | effective date. |
| 26 |
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| 27 | Be It Enacted by the Legislature of the State of Florida: |
| 28 |
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| 29 | Section 1. Paragraphs (d) through (m) of subsection (2) of |
| 30 | section 11.60, Florida Statutes, are redesignated as paragraphs |
| 31 | (e) through (n), respectively, a new paragraph (d) is added to |
| 32 | said subsection, and subsection (4) of said section is amended, |
| 33 | to read: |
| 34 | 11.60 Administrative Procedures Committee; creation; |
| 35 | membership; powers; duties.-- |
| 36 | (2) The committee shall: |
| 37 | (d) Consider the comments submitted by interested persons |
| 38 | in its review of agency rules. The committee shall act as an |
| 39 | ombudsman to Florida citizens regarding agency rules. |
| 40 | (4) The committee shall undertake and maintain a |
| 41 | systematic and continuous review of statutes that authorize |
| 42 | agencies to adopt rules and shall make recommendations to the |
| 43 | appropriate standing committees of the Senate and the House of |
| 44 | Representatives as to the advisability of considering changes to |
| 45 | the delegated legislative authority to adopt rules in specific |
| 46 | circumstances. The annual report submitted pursuant to paragraph |
| 47 | (2)(g)(f) shall include a schedule for the required systematic |
| 48 | review of existing statutes, a summary of the status of this |
| 49 | review, and any recommendations provided to the standing |
| 50 | committees during the preceding year. |
| 51 | Section 2. Subsections (5), (8), and (9) of section |
| 52 | 120.542, Florida Statutes, are amended to read: |
| 53 | 120.542 Variances and waivers.-- |
| 54 | (5) A person who is subject to regulation by an agency |
| 55 | rule may file a petition with that agency, with a copy to the |
| 56 | committee, requesting a variance or waiver from the agency's |
| 57 | rule. Upon receipt of the petition, the agency shall provide a |
| 58 | copy to the committee. In addition to any requirements mandated |
| 59 | by the uniform rules, each petition shall specify: |
| 60 | (a) The rule from which a variance or waiver is requested. |
| 61 | (b) The type of action requested. |
| 62 | (c) The specific facts that would justify a waiver or |
| 63 | variance for the petitioner. |
| 64 | (d) The reason why the variance or the waiver requested |
| 65 | would serve the purposes of the underlying statute. |
| 66 | (8) An agency shall grant or deny a petition for variance |
| 67 | or waiver within 90 days after receipt of the original petition, |
| 68 | the last item of timely requested additional material, or the |
| 69 | petitioner's written request to finish processing the petition. |
| 70 | A petition not granted or denied within 90 days after receipt of |
| 71 | a completed petition is deemed approved. Upon rendition, a copy |
| 72 | of the order granting or denying the petition shall be filed |
| 73 | with the committee and shall contain a statement of the relevant |
| 74 | facts and reasons supporting the agency's action. The agency |
| 75 | shall provide notice of the disposition of the petition to the |
| 76 | Department of State, which shall publish the notice in the next |
| 77 | available issue of the Florida Administrative Weekly. The notice |
| 78 | shall contain the name of the petitioner, the date the petition |
| 79 | was filed, the rule number and nature of the rule from which the |
| 80 | waiver or variance is sought, a reference to the place and date |
| 81 | of publication of the notice of the petition, the date of the |
| 82 | order denying or approving the variance or waiver, the general |
| 83 | basis for the agency decision, and an explanation of how a copy |
| 84 | of the order can be obtained. The agency's decision to grant or |
| 85 | deny the petition shall be supported by competent substantial |
| 86 | evidence and is subject to ss. 120.569 and 120.57. Any |
| 87 | proceeding pursuant to ss. 120.569 and 120.57 in regard to a |
| 88 | variance or waiver shall be limited to the agency action on the |
| 89 | request for the variance or waiver, except that a proceeding in |
| 90 | regard to a variance or waiver may be consolidated with any |
| 91 | other proceeding authorized by this chapter. |
| 92 | (9) Each agency shall maintain a record of the type and |
| 93 | disposition of each petition, including temporary or emergency |
| 94 | variances and waivers, filed pursuant to this section. On |
| 95 | October 1 of each year, each agency shall file a report with the |
| 96 | Governor, the President of the Senate, and the Speaker of the |
| 97 | House of Representatives, and the committee listing the number |
| 98 | of petitions filed requesting variances to each agency rule, the |
| 99 | number of petitions filed requesting waivers to each agency |
| 100 | rule, and the disposition of all petitions. Temporary or |
| 101 | emergency variances and waivers, and the reasons for granting or |
| 102 | denying temporary or emergency variances and waivers, shall be |
| 103 | identified separately from other waivers and variances. |
| 104 | Section 3. Subsection (10) of section 120.545, Florida |
| 105 | Statutes, is amended to read: |
| 106 | 120.545 Committee review of agency rules.-- |
| 107 | (10)(a) If the committee objects to a proposed or existing |
| 108 | rule, or portion thereof, and the agency fails to initiate |
| 109 | administrative action to modify, amend, withdraw, or repeal the |
| 110 | rule consistent with the objection within 60 days after the |
| 111 | objection, or thereafter fails to proceed in good faith to |
| 112 | complete such action, the committee may submit to the President |
| 113 | of the Senate and the Speaker of the House of Representatives a |
| 114 | recommendation that legislation be introduced to address the |
| 115 | objection. Such legislation may include the modification of the |
| 116 | proposed rule, the suspension of the rule, the repeal of the |
| 117 | rule or portion thereof, or the amendment of legislative |
| 118 | authority modify or suspend the adoption of the proposed rule, |
| 119 | or amend or repeal the rule, or portion thereof. |
| 120 | (b)1. If the committee votes to recommend the introduction |
| 121 | of legislation to modify or suspend the adoption of a proposed |
| 122 | rule, or amend or repeal a rule, the committee shall, within 5 |
| 123 | days after this determination, certify that fact to the agency |
| 124 | whose rule or proposed rule has been examined. The committee may |
| 125 | request that the agency temporarily suspend the rule or suspend |
| 126 | the adoption of the proposed rule, pending consideration of |
| 127 | proposed legislation during the next regular session of the |
| 128 | Legislature. |
| 129 | 2. Within 30 days after receipt of the certification, if |
| 130 | the agency is headed by an individual, or within 45 days after |
| 131 | receipt of the certification, if the agency is headed by a |
| 132 | collegial body, the agency shall either: |
| 133 | a. Temporarily suspend the rule or suspend the adoption of |
| 134 | the proposed rule; or |
| 135 | b. Notify the committee in writing that it refuses to |
| 136 | temporarily suspend the rule or suspend the adoption of the |
| 137 | proposed rule. |
| 138 | 3. If the agency elects to temporarily suspend the rule or |
| 139 | suspend the adoption of the proposed rule, it shall give notice |
| 140 | of the suspension in the Florida Administrative Weekly. The rule |
| 141 | or the rule adoption process shall be suspended upon publication |
| 142 | of the notice. An agency shall not base any agency action on a |
| 143 | suspended rule or suspended proposed rule, or portion thereof, |
| 144 | prior to expiration of the suspension. A suspended rule or |
| 145 | suspended proposed rule, or portion thereof, continues to be |
| 146 | subject to administrative determination and judicial review as |
| 147 | provided by law. |
| 148 | 4. Failure of an agency to respond to committee |
| 149 | certification within the time prescribed by subparagraph 2. |
| 150 | constitutes a refusal to suspend the rule or to suspend the |
| 151 | adoption of the proposed rule. |
| 152 | (c) The committee shall prepare bills to modify or suspend |
| 153 | the adoption of the proposed rule or amend or repeal the rule, |
| 154 | or portion thereof, in accordance with the rules of the Senate |
| 155 | and the House of Representatives for prefiling and introduction |
| 156 | in the next regular session of the Legislature. The proposed |
| 157 | bill shall be presented to the President of the Senate and the |
| 158 | Speaker of the House of Representatives with the committee |
| 159 | recommendation. |
| 160 | (d) If a bill to suspend the adoption of a proposed rule |
| 161 | is enacted into law, the proposed rule is suspended until |
| 162 | specific delegated legislative authority for the proposed rule |
| 163 | has been enacted. If a bill to suspend the adoption of a |
| 164 | proposed rule fails to become law, any temporary agency |
| 165 | suspension of the rule shall expire. If a bill to modify a |
| 166 | proposed rule or amend a rule is enacted into law, the |
| 167 | suspension shall expire upon publication of notice of |
| 168 | modification or amendment in the Florida Administrative Weekly. |
| 169 | If a bill to repeal a rule is enacted into law, the suspension |
| 170 | shall remain in effect until notification of repeal of the rule |
| 171 | is published in the Florida Administrative Weekly. |
| 172 | (e) The Department of State shall publish in the next |
| 173 | available issue of the Florida Administrative Weekly the final |
| 174 | legislative action taken. If a bill to modify or suspend the |
| 175 | adoption of the proposed rule or amend or repeal the rule, or |
| 176 | portion thereof, is enacted into law, the Department of State |
| 177 | shall conform the rule or portion of the rule to the provisions |
| 178 | of the law in the Florida Administrative Code and publish a |
| 179 | reference to the law as a history note to the rule. |
| 180 | Section 4. The Joint Administrative Procedures Committee |
| 181 | shall undertake a study of the authority and legislative |
| 182 | oversight function of the committee pursuant to s. 11.60 and |
| 183 | chapter 120, Florida Statutes. A report including any |
| 184 | recommendations for legislation shall be submitted to the |
| 185 | President of the Senate and the Speaker of the House of |
| 186 | Representatives by January 1, 2006. |
| 187 | Section 5. This act shall take effect July 1, 2005. |