Florida Senate - 2007                      COMMITTEE AMENDMENT
    Bill No. CS for SB 1592
                        Barcode 785202
                            CHAMBER ACTION
              Senate                               House
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 1           Comm: RCS             .                    
       04/24/2007 04:57 PM         .                    
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11  The Committee on Transportation and Economic Development
12  Appropriations (Margolis) recommended the following amendment:
13  
14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16  
17  and insert:  
18         Section 1.  This act may be cited as the "Open
19  Government Act."
20         Section 2.  Subsection (8) of section 120.52, Florida
21  Statutes, is amended, present subsections (9) through (15) of
22  that section are renumbered as subsections (10) through (16),
23  respectively, present subsections (16) through (19) of that
24  section are renumbered as subsections (19) through (22),
25  respectively, and new subsections (9), (17), and (18) are
26  added to that section, to read:
27         120.52  Definitions.--As used in this act:
28         (8)  "Invalid exercise of delegated legislative
29  authority" means action that which goes beyond the powers,
30  functions, and duties delegated by the Legislature. A proposed
31  or existing rule is an invalid exercise of delegated
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Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 legislative authority if any one of the following applies: 2 (a) The agency has materially failed to follow the 3 applicable rulemaking procedures or requirements set forth in 4 this chapter; 5 (b) The agency has exceeded its grant of rulemaking 6 authority, citation to which is required by s. 120.54(3)(a)1.; 7 (c) The rule enlarges, modifies, or contravenes the 8 specific provisions of law implemented, citation to which is 9 required by s. 120.54(3)(a)1.; 10 (d) The rule is vague, fails to establish adequate 11 standards for agency decisions, or vests unbridled discretion 12 in the agency; 13 (e) The rule is arbitrary or capricious. A rule is 14 arbitrary if it is not supported by logic or the necessary 15 facts; a rule is capricious if it is adopted without thought 16 or reason or is irrational; or 17 (f) The rule imposes regulatory costs on the regulated 18 person, county, or city which could be reduced by the adoption 19 of less costly alternatives that substantially accomplish the 20 statutory objectives. 21 22 A grant of rulemaking authority is necessary but not 23 sufficient to allow an agency to adopt a rule; a specific law 24 to be implemented is also required. An agency may adopt only 25 rules that implement or interpret the specific powers and 26 duties granted by the enabling statute. No agency shall have 27 authority to adopt a rule only because it is reasonably 28 related to the purpose of the enabling legislation and is not 29 arbitrary and capricious or is within the agency's class of 30 powers and duties, nor shall an agency have the authority to 31 implement statutory provisions setting forth general 2 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 legislative intent or policy. Statutory language granting 2 rulemaking authority or generally describing the powers and 3 functions of an agency shall be construed to extend no further 4 than implementing or interpreting the specific powers and 5 duties conferred by the same statute. 6 (9) "Law implemented" means the statutory language 7 being carried out or interpreted by an agency through 8 rulemaking. 9 (17) "Rulemaking authority" means statutory language 10 that explicitly authorizes or requires an agency to adopt, 11 develop, establish, or otherwise create any statement coming 12 within the definition of "rule." 13 (18) "Unadopted rule" means an agency statement that 14 meets the definition of "rule" but has not been adopted 15 pursuant to the requirements of s. 120.54. 16 Section 3. Subsection (1) of section 120.536, Florida 17 Statutes, is amended to read: 18 120.536 Rulemaking authority; repeal; challenge.-- 19 (1) A grant of rulemaking authority is necessary but 20 not sufficient to allow an agency to adopt a rule; a specific 21 law to be implemented is also required. An agency may adopt 22 only rules that implement or interpret the specific powers and 23 duties granted by the enabling statute. No agency shall have 24 authority to adopt a rule only because it is reasonably 25 related to the purpose of the enabling legislation and is not 26 arbitrary and capricious or is within the agency's class of 27 powers and duties, nor shall an agency have the authority to 28 implement statutory provisions setting forth general 29 legislative intent or policy. Statutory language granting 30 rulemaking authority or generally describing the powers and 31 functions of an agency shall be construed to extend no further 3 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 than implementing or interpreting the specific powers and 2 duties conferred by the same statute. 3 Section 4. Paragraph (i) of subsection (1), paragraphs 4 (a), (c), and (e) of subsection (3), paragraph (a) of 5 subsection (4), and subsection (7) of section 120.54, Florida 6 Statutes, are amended, and paragraph (k) is added to 7 subsection (1) of that section, to read: 8 120.54 Rulemaking.-- 9 (1) GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER 10 THAN EMERGENCY RULES.-- 11 (i)1. A rule may incorporate material by reference but 12 only as the material exists on the date the rule is adopted. 13 For purposes of the rule, changes in the material are not 14 effective unless the rule is amended to incorporate the 15 changes. Material incorporated by reference in a rule may not 16 incorporate additional material by reference unless the rule 17 specifically identifies the additional material. 18 2. An agency rule that incorporates by specific 19 reference another rule of that agency automatically 20 incorporates subsequent amendments to the referenced rule, 21 unless a contrary intent is clearly indicated in the 22 referencing rule. Any notice of amendments to a rule that has 23 been incorporated by specific reference in other rules of that 24 agency must explain the effect of the amendments on the 25 referencing rules. 26 3. In rules adopted after December 31, 2009, material 27 may not be incorporated by reference unless: 28 a. The material has been submitted in the prescribed 29 electronic format to the Department of State and can be made 30 available for free public access through an electronic 31 hyperlink from the rule in the Florida Administrative Code 4 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 making the reference; or 2 b. The agency has determined that posting the material 3 on the Internet for purposes of public examination and 4 inspection would constitute a violation of federal copyright 5 law, in which case a statement to that effect, along with the 6 address of locations at the Department of State and the agency 7 at which the material is available for public examination and 8 inspection, is included in the notice required by subparagraph 9 (3)(a)1. 10 4. A rule may not be amended by reference only. 11 Amendments must set out the amended rule in full in the same 12 manner as required by the State Constitution for laws. The 13 Department of State may prescribe by rule requirements for 14 incorporating materials by reference pursuant to this 15 paragraph. 16 5.2. Notwithstanding any contrary provision in this 17 section, when an adopted rule of the Department of 18 Environmental Protection or a water management district is 19 incorporated by reference in the other agency's rule to 20 implement a provision of part IV of chapter 373, subsequent 21 amendments to the rule are not effective as to the 22 incorporating rule unless the agency incorporating by 23 reference notifies the committee and the Department of State 24 of its intent to adopt the subsequent amendment, publishes 25 notice of such intent in the Florida Administrative Weekly, 26 and files with the Department of State a copy of the amended 27 rule incorporated by reference. Changes in the rule 28 incorporated by reference are effective as to the other agency 29 20 days after the date of the published notice and filing with 30 the Department of State. The Department of State shall amend 31 the history note of the incorporating rule to show the 5 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 effective date of such change. Any substantially affected 2 person may, within 14 days after the date of publication of 3 the notice of intent in the Florida Administrative Weekly, 4 file an objection to rulemaking with the agency. The objection 5 shall specify the portions of the rule incorporated by 6 reference to which the person objects and the reasons for the 7 objection. The agency does shall not have the authority under 8 this subparagraph to adopt those portions of the rule 9 specified in such objection. The agency shall publish notice 10 of the objection and of its action in response in the next 11 available issue of the Florida Administrative Weekly. 12 6. The Department of State may prescribe by rule 13 requirements for incorporating materials pursuant to this 14 paragraph. 15 (k) Rulemaking responsibilities of an agency head 16 under subparagraph (3)(a)1., subparagraph (3)(e)1., or 17 subparagraph (3)(e)6. may not be delegated or transferred. 18 (3) ADOPTION PROCEDURES.-- 19 (a) Notices.-- 20 1. Prior to the adoption, amendment, or repeal of any 21 rule other than an emergency rule, an agency, upon approval of 22 the agency head, shall give notice of its intended action, 23 setting forth a short, plain explanation of the purpose and 24 effect of the proposed action; the full text of the proposed 25 rule or amendment and a summary thereof; a reference to the 26 grant of specific rulemaking authority pursuant to which the 27 rule is adopted; and a reference to the section or subsection 28 of the Florida Statutes or the Laws of Florida being 29 implemented or, interpreted, or made specific. The notice must 30 shall include a summary of the agency's statement of the 31 estimated regulatory costs, if one has been prepared, based on 6 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 the factors set forth in s. 120.541(2), and a statement that 2 any person who wishes to provide the agency with information 3 regarding the statement of estimated regulatory costs, or to 4 provide a proposal for a lower cost regulatory alternative as 5 provided by s. 120.541(1), must do so in writing within 21 6 days after publication of the notice. The notice must state 7 the procedure for requesting a public hearing on the proposed 8 rule. Except when the intended action is the repeal of a rule, 9 the notice must shall include a reference both to the date on 10 which and to the place where the notice of rule development 11 that is required by subsection (2) appeared. 12 2. The notice shall be published in the Florida 13 Administrative Weekly not less than 28 days prior to the 14 intended action. The proposed rule shall be available for 15 inspection and copying by the public at the time of the 16 publication of notice. 17 3. The notice shall be mailed to all persons named in 18 the proposed rule and to all persons who, at least 14 days 19 prior to such mailing, have made requests of the agency for 20 advance notice of its proceedings. The agency shall also give 21 such notice as is prescribed by rule to those particular 22 classes of persons to whom the intended action is directed. 23 4. The adopting agency shall file with the committee, 24 at least 21 days prior to the proposed adoption date, a copy 25 of each rule it proposes to adopt; a copy of any material 26 incorporated by reference in the rule; a detailed written 27 statement of the facts and circumstances justifying the 28 proposed rule; a copy of any statement of estimated regulatory 29 costs that has been prepared pursuant to s. 120.541; a 30 statement of the extent to which the proposed rule relates to 31 federal standards or rules on the same subject; and the notice 7 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 required by subparagraph 1. 2 (c) Hearings.-- 3 1. If the intended action concerns any rule other than 4 one relating exclusively to procedure or practice, the agency 5 shall, on the request of any affected person received within 6 21 days after the date of publication of the notice of 7 intended agency action, give affected persons an opportunity 8 to present evidence and argument on all issues under 9 consideration. The agency may schedule a public hearing on the 10 rule and, if requested by any affected person, shall schedule 11 a public hearing on the rule. If the agency head is a board or 12 other collegial body created under s. 20.165(4) or s. 13 20.43(3)(g), the board or other collegial body shall conduct 14 the requested public hearing itself and may not delegate this 15 responsibility without the consent of the persons requesting 16 the public hearing. Any material pertinent to the issues under 17 consideration submitted to the agency within 21 days after the 18 date of publication of the notice or submitted at a public 19 hearing shall be considered by the agency and made a part of 20 the record of the rulemaking proceeding. 21 2. Rulemaking proceedings shall be governed solely by 22 the provisions of this section unless a person timely asserts 23 that the person's substantial interests will be affected in 24 the proceeding and affirmatively demonstrates to the agency 25 that the proceeding does not provide adequate opportunity to 26 protect those interests. If the agency determines that the 27 rulemaking proceeding is not adequate to protect the person's 28 interests, it shall suspend the rulemaking proceeding and 29 convene a separate proceeding under the provisions of ss. 30 120.569 and 120.57. Similarly situated persons may be 31 requested to join and participate in the separate proceeding. 8 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 Upon conclusion of the separate proceeding, the rulemaking 2 proceeding shall be resumed. 3 (e) Filing for final adoption; effective date.-- 4 1. If the adopting agency is required to publish its 5 rules in the Florida Administrative Code, the agency, upon 6 approval of the agency head, it shall file with the Department 7 of State three certified copies of the rule it proposes to 8 adopt;, one copy of any material incorporated by reference in 9 the rule, certified by the agency; a summary of the rule;, a 10 summary of any hearings held on the rule;, and a detailed 11 written statement of the facts and circumstances justifying 12 the rule. Agencies not required to publish their rules in the 13 Florida Administrative Code shall file one certified copy of 14 the proposed rule, and the other material required by this 15 subparagraph, in the office of the agency head, and such rules 16 shall be open to the public. 17 2. A rule may not be filed for adoption less than 28 18 days or more than 90 days after the notice required by 19 paragraph (a), until 21 days after the notice of change 20 required by paragraph (d), until 14 days after the final 21 public hearing, until 21 days after preparation of a statement 22 of estimated regulatory costs required under s. 120.541 has 23 been provided to all persons who submitted a lower cost 24 regulatory alternative and made available to the public, or 25 until the administrative law judge has rendered a decision 26 under s. 120.56(2), whichever applies. When a required notice 27 of change is published prior to the expiration of the time to 28 file the rule for adoption, the period during which a rule 29 must be filed for adoption is extended to 45 days after the 30 date of publication. If notice of a public hearing is 31 published prior to the expiration of the time to file the rule 9 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 for adoption, the period during which a rule must be filed for 2 adoption is extended to 45 days after adjournment of the final 3 hearing on the rule, 21 days after receipt of all material 4 authorized to be submitted at the hearing, or 21 days after 5 receipt of the transcript, if one is made, whichever is 6 latest. The term "public hearing" includes any public meeting 7 held by any agency at which the rule is considered. If a 8 petition for an administrative determination under s. 9 120.56(2) is filed, the period during which a rule must be 10 filed for adoption is extended to 60 days after the 11 administrative law judge files the final order with the clerk 12 or until 60 days after subsequent judicial review is complete. 13 3. At the time a rule is filed, the agency shall 14 certify that the time limitations prescribed by this paragraph 15 have been complied with, that all statutory rulemaking 16 requirements have been met, and that there is no 17 administrative determination pending on the rule. 18 4. At the time a rule is filed, the committee shall 19 certify whether the agency has responded in writing to all 20 material and timely written comments or written inquiries made 21 on behalf of the committee. The department shall reject any 22 rule not filed within the prescribed time limits; that does 23 not comply with satisfy all statutory rulemaking requirements 24 and rules of the department; upon which an agency has not 25 responded in writing to all material and timely written 26 inquiries or written comments; upon which an administrative 27 determination is pending; or which does not include a 28 statement of estimated regulatory costs, if required. 29 5. If a rule has not been adopted within the time 30 limits imposed by this paragraph or has not been adopted in 31 compliance with all statutory rulemaking requirements, the 10 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 agency proposing the rule shall withdraw the rule and give 2 notice of its action in the next available issue of the 3 Florida Administrative Weekly. 4 6. The proposed rule shall be adopted on being filed 5 with the Department of State and become effective 20 days 6 after being filed, on a later date specified in the rule, or 7 on a date required by statute. Rules not required to be filed 8 with the Department of State shall become effective when 9 adopted by the agency head or on a later date specified by 10 rule or statute. If the committee notifies an agency that an 11 objection to a rule is being considered, the agency may 12 postpone the adoption of the rule to accommodate review of the 13 rule by the committee. When an agency postpones adoption of a 14 rule to accommodate review by the committee, the 90-day period 15 for filing the rule is tolled until the committee notifies the 16 agency that it has completed its review of the rule. 17 18 For the purposes of this paragraph, the term "administrative 19 determination" does not include subsequent judicial review. 20 (4) EMERGENCY RULES.-- 21 (a) If an agency finds that an immediate danger to the 22 public health, safety, or welfare requires emergency action, 23 the agency may adopt any rule necessitated by the immediate 24 danger. The agency may adopt a rule by any procedure which is 25 fair under the circumstances if: 26 1. The procedure provides at least the procedural 27 protection given by other statutes, the State Constitution, or 28 the United States Constitution. 29 2. The agency takes only that action necessary to 30 protect the public interest under the emergency procedure. 31 3. The agency publishes in writing at the time of, or 11 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 prior to, its action the specific facts and reasons for 2 finding an immediate danger to the public health, safety, or 3 welfare and its reasons for concluding that the procedure used 4 is fair under the circumstances. In any event, notice of 5 emergency rules, other than those of educational units or 6 units of government with jurisdiction in only one or a part of 7 one county, including the full text of the rules, shall be 8 published in the first available issue of the Florida 9 Administrative Weekly and provided to the committee along with 10 any material incorporated by reference in the rules. The 11 agency's findings of immediate danger, necessity, and 12 procedural fairness shall be judicially reviewable. 13 (7) PETITION TO INITIATE RULEMAKING.-- 14 (a) Any person regulated by an agency or having 15 substantial interest in an agency rule may petition an agency 16 to adopt, amend, or repeal a rule or to provide the minimum 17 public information required by this chapter. The petition 18 shall specify the proposed rule and action requested. Not 19 later than 30 calendar days following the date of filing a 20 petition, the agency shall initiate rulemaking proceedings 21 under this chapter, otherwise comply with the requested 22 action, or deny the petition with a written statement of its 23 reasons for the denial. 24 (b) If the petition filed under this subsection is 25 directed to an existing rule which the agency has not adopted 26 by the rulemaking procedures or requirements set forth in this 27 chapter, the agency shall, not later than 30 days following 28 the date of filing a petition, initiate rulemaking, or provide 29 notice in the Florida Administrative Weekly that the agency 30 will hold a public hearing on the petition within 30 days 31 after publication of the notice. The purpose of the public 12 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 hearing is to consider the comments of the public directed to 2 the agency rule which has not been adopted by the rulemaking 3 procedures or requirements of this chapter, its scope and 4 application, and to consider whether the public interest is 5 served adequately by the application of the rule on a 6 case-by-case basis, as contrasted with its adoption by the 7 rulemaking procedures or requirements set forth in this 8 chapter. 9 (c) Within 30 days following the public hearing 10 provided for by paragraph (b), if the agency does not initiate 11 rulemaking or otherwise comply with the requested action, the 12 agency shall publish in the Florida Administrative Weekly a 13 statement of its reasons for not initiating rulemaking or 14 otherwise complying with the requested action, and of any 15 changes it will make in the scope or application of the 16 unadopted rule. The agency shall file the statement with the 17 committee. The committee shall forward a copy of the 18 statement to the substantive committee with primary oversight 19 jurisdiction of the agency in each house of the Legislature. 20 The committee or the committee with primary oversight 21 jurisdiction may hold a hearing directed to the statement of 22 the agency. The committee holding the hearing may recommend 23 to the Legislature the introduction of legislation making the 24 rule a statutory standard or limiting or otherwise modifying 25 the authority of the agency. 26 Section 5. Section 120.545, Florida Statutes, is 27 amended to read: 28 120.545 Committee review of agency rules.-- 29 (1) As a legislative check on legislatively created 30 authority, the committee shall examine each proposed rule, 31 except for those proposed rules exempted by s. 120.81(1)(e) 13 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 and (2), and its accompanying material, and each emergency 2 rule, and may examine any existing rule, for the purpose of 3 determining whether: 4 (a) The rule is an invalid exercise of delegated 5 legislative authority. 6 (b) The statutory authority for the rule has been 7 repealed. 8 (c) The rule reiterates or paraphrases statutory 9 material. 10 (d) The rule is in proper form. 11 (e) The notice given prior to its adoption was 12 sufficient to give adequate notice of the purpose and effect 13 of the rule. 14 (f) The rule is consistent with expressed legislative 15 intent pertaining to the specific provisions of law which the 16 rule implements. 17 (g) The rule is necessary to accomplish the apparent 18 or expressed objectives of the specific provision of law which 19 the rule implements. 20 (h) The rule is a reasonable implementation of the law 21 as it affects the convenience of the general public or persons 22 particularly affected by the rule. 23 (i) The rule could be made less complex or more easily 24 comprehensible to the general public. 25 (j) The rule's statement of estimated regulatory costs 26 complies with the requirements of s. 120.541 and the rule does 27 not impose regulatory costs on the regulated person, county, 28 or city which could be reduced by the adoption of less costly 29 alternatives that substantially accomplish the statutory 30 objectives. 31 (k) The rule will require additional appropriations. 14 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 (l) If the rule is an emergency rule, there exists an 2 emergency justifying the adoption promulgation of such rule, 3 the agency is within has exceeded the scope of its statutory 4 authority, and the rule was adopted promulgated in compliance 5 with the requirements and limitations of s. 120.54(4). 6 (2) The committee may request from an agency such 7 information as is reasonably necessary for examination of a 8 rule as required by subsection (1) or for examination of an 9 unadopted agency statement. The committee shall consult with 10 legislative standing committees having with jurisdiction over 11 the subject areas. If the committee objects to an emergency 12 rule or a proposed or existing rule, it shall, within 5 days 13 after of the objection, certify that fact to the agency whose 14 rule has been examined and include with the certification a 15 statement detailing its objections with particularity. The 16 committee shall notify the Speaker of the House of 17 Representatives and the President of the Senate of any 18 objection to an agency rule concurrent with certification of 19 that fact to the agency. Such notice must shall include a copy 20 of the rule and the statement detailing the committee's 21 objections to the rule. 22 (3) Within 30 days after of receipt of the objection, 23 if the agency is headed by an individual, or within 45 days 24 after of receipt of the objection, if the agency is headed by 25 a collegial body, the agency shall: 26 (a) If the rule is not yet in effect a proposed rule: 27 1. File notice pursuant to s. 120.54(3)(d) of only 28 such modifications as are necessary to address Modify the rule 29 to meet the committee's objection; 30 2. File notice pursuant to s. 120.54(3)(d) of 31 withdrawal of Withdraw the rule in its entirety; or 15 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 3. Notify the committee in writing that it refuses 2 Refuse to modify or withdraw the rule. 3 (b) If the rule is in effect an existing rule: 4 1. File notice pursuant to s. 120.54(3)(a), without 5 prior notice of rule development, Notify the committee that it 6 has elected to amend the rule to address meet the committee's 7 objection and initiate the amendment procedure; 8 2. File notice pursuant to s. 120.54(3)(a) Notify the 9 committee that it has elected to repeal the rule and initiate 10 the repeal procedure; or 11 3. Notify the committee in writing that it refuses to 12 amend or repeal the rule. 13 (c) If the rule is either an existing or a proposed 14 rule and the objection is to the statement of estimated 15 regulatory costs: 16 1. Prepare a corrected statement of estimated 17 regulatory costs, give notice of the availability of the 18 corrected statement in the first available issue of the 19 Florida Administrative Weekly, and file a copy of the 20 corrected statement with the committee; or 21 2. Notify the committee that it refuses to prepare a 22 corrected statement of estimated regulatory costs. 23 (d) If the rule is unadopted: 24 1. File notice pursuant to s. 120.54(3)(a) of intent 25 to adopt the rule; 26 2. File notice for publication in the Florida 27 Administrative Weekly that the agency has abandoned all 28 reliance upon the statement or any substantially similar 29 statement as a basis for agency action; or 30 3. Notify the committee in writing that it refuses to 31 adopt the rule or to abandon all reliance upon the statement 16 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 or any substantially similar statement as a basis for agency 2 action. 3 (4) If the agency elects to modify a proposed rule to 4 meet the committee's objection, it shall make only such 5 modifications as are necessary to meet the objection and shall 6 resubmit the rule to the committee. The agency shall give 7 notice of its election to modify a proposed rule to meet the 8 committee's objection by publishing a notice of change in the 9 first available issue of the Florida Administrative Weekly, 10 but shall not be required to conduct a public hearing. If the 11 agency elects to amend an existing rule to meet the 12 committee's objection, it shall notify the committee in 13 writing and shall initiate the amendment procedure by giving 14 notice in the next available issue of the Florida 15 Administrative Weekly. The committee shall give priority to 16 rules so modified or amended when setting its agenda. 17 (5) If the agency elects to withdraw a proposed rule 18 as a result of a committee objection, it shall notify the 19 committee, in writing, of its election and shall give notice 20 of the withdrawal in the next available issue of the Florida 21 Administrative Weekly. The rule shall be withdrawn without a 22 public hearing, effective upon publication of the notice in 23 the Florida Administrative Weekly. If the agency elects to 24 repeal an existing rule as a result of a committee objection, 25 it shall notify the committee, in writing, of its election and 26 shall initiate rulemaking procedures for that purpose by 27 giving notice in the next available issue of the Florida 28 Administrative Weekly. 29 (6) If an agency elects to amend or repeal an existing 30 rule as a result of a committee objection, it shall complete 31 the process within 90 days after giving notice in the Florida 17 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 Administrative Weekly. 2 (4)(7) Failure of the agency to respond to a committee 3 objection to a proposed rule that is not yet in effect within 4 the time prescribed in subsection (3) constitutes shall 5 constitute withdrawal of the rule in its entirety. In this 6 event, the committee shall notify the Department of State that 7 the agency, by its failure to respond to a committee 8 objection, has elected to withdraw the proposed rule. Upon 9 receipt of the committee's notice, the Department of State 10 shall publish a notice to that effect in the next available 11 issue of the Florida Administrative Weekly. Upon publication 12 of the notice, the proposed rule shall be stricken from the 13 files of the Department of State and the files of the agency. 14 (5)(8) Failure of the agency to respond to a committee 15 objection to a an existing rule that is in effect within the 16 time prescribed in subsection (3) constitutes shall constitute 17 a refusal to amend or repeal the rule. 18 (6) Failure of the agency to respond to a committee 19 objection to a statement of estimated regulatory costs within 20 the time prescribed in subsection (3) constitutes a refusal to 21 prepare a corrected statement of estimated regulatory costs. 22 (7) Failure of the agency to respond to a committee 23 objection to an unadopted rule within the time prescribed in 24 subsection (3) constitutes a refusal to adopt the rule and a 25 refusal to abandon all reliance upon the statement or any 26 substantially similar statement as a basis for agency action. 27 (8)(9) If the committee objects to a proposed or 28 existing rule and the agency refuses to adopt, abandon, 29 modify, amend, withdraw, or repeal it the rule, the committee 30 shall file with the Department of State a notice of the 31 objection, detailing with particularity its objection to the 18 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 rule. The Department of State shall publish this notice in 2 the Florida Administrative Weekly. If the rule is published 3 and shall publish, as a history note to the rule in the 4 Florida Administrative Code, a reference to the committee's 5 objection and to the issue of the Weekly in which the full 6 text thereof appears shall be recorded in a history note. 7 (9)(10)(a) If the committee objects to a proposed or 8 existing rule, or portion thereof, and the agency fails to 9 initiate administrative action to adopt, abandon, modify, 10 amend, withdraw, or repeal the rule consistent with the 11 objection within 60 days after the objection, or thereafter 12 fails to proceed in good faith to complete such action, the 13 committee may submit to the President of the Senate and the 14 Speaker of the House of Representatives a recommendation that 15 legislation be introduced to address the committee objection 16 modify or suspend the adoption of the proposed rule, or amend 17 or repeal the rule, or portion thereof. 18 (b)1. If the committee votes to recommend the 19 introduction of legislation to address the committee objection 20 modify or suspend the adoption of a proposed rule, or amend or 21 repeal a rule, the committee shall, within 5 days after this 22 determination, certify that fact to the agency whose rule or 23 proposed rule has been examined. The committee may request 24 that the agency temporarily suspend the rule, or suspend the 25 adoption of the proposed rule, or suspend all reliance upon 26 the statement or any substantially similar statement as a 27 basis for agency action, pending consideration of proposed 28 legislation during the next regular session of the 29 Legislature. 30 2. Within 30 days after receipt of the certification, 31 if the agency is headed by an individual, or within 45 days 19 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 after receipt of the certification, if the agency is headed by 2 a collegial body, the agency shall either: 3 a. Temporarily suspend the rule, or suspend the 4 adoption of the proposed rule, or suspend all reliance upon 5 the statement or any substantially similar statement as a 6 basis for agency action; or 7 b. Notify the committee in writing that it refuses to 8 temporarily suspend the rule, or suspend the adoption of the 9 proposed rule, or suspend all reliance upon the statement or 10 any substantially similar statement as a basis for agency 11 action. 12 3. If the agency elects to temporarily suspend the 13 rule, or suspend the adoption of the proposed rule, or suspend 14 all reliance upon the statement or any substantially similar 15 statement as a basis for agency action, it shall give notice 16 of the suspension in the Florida Administrative Weekly. The 17 rule or the rule adoption process shall be suspended upon 18 publication of the notice. An agency may shall not base any 19 agency action on a suspended rule, or suspended proposed rule, 20 or suspended statement or any substantially similar statement, 21 or portion thereof, prior to expiration of the suspension. A 22 suspended rule, or suspended proposed rule, or suspended 23 statement or any substantially similar statement, or portion 24 thereof, continues to be subject to administrative 25 determination and judicial review as provided by law. 26 4. Failure of an agency to respond to committee 27 certification within the time prescribed by subparagraph 2. 28 constitutes a refusal to suspend the rule, or to suspend the 29 adoption of the proposed rule, or suspend all reliance upon 30 the statement or any substantially similar statement as a 31 basis for agency action. 20 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 (c) The committee shall prepare bills to address the 2 committee objection modify or suspend the adoption of the 3 proposed rule or amend or repeal the rule, or portion thereof, 4 in accordance with the rules of the Senate and the House of 5 Representatives for prefiling and introduction in the next 6 regular session of the Legislature. The proposed bill shall be 7 presented to the President of the Senate and the Speaker of 8 the House of Representatives with the committee 9 recommendation. 10 (d) If a bill to address the committee objection 11 suspend the adoption of a proposed rule is enacted into law, 12 the proposed rule is suspended until specific delegated 13 legislative authority for the proposed rule has been enacted. 14 If a bill to suspend the adoption of a proposed rule fails to 15 become law, any temporary agency suspension of the rule shall 16 expire. If a bill to modify a proposed rule or amend a rule is 17 enacted into law, the suspension shall expire upon publication 18 of notice of modification or amendment in the Florida 19 Administrative Weekly. If a bill to repeal a rule is enacted 20 into law, the suspension shall remain in effect until 21 notification of repeal of the rule is published in the Florida 22 Administrative Weekly. 23 (e) The Department of State shall publish in the next 24 available issue of the Florida Administrative Weekly the final 25 legislative action taken. If a bill to modify or suspend the 26 adoption of the proposed rule or amend or repeal the rule, or 27 portion thereof, is enacted into law, the Department of State 28 shall conform the rule or portion of the rule to the 29 provisions of the law in the Florida Administrative Code and 30 publish a reference to the law as a history note to the rule. 31 Section 6. Paragraphs (a) and (c) of subsection (1) 21 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 and subsection (3) of section 120.55, Florida Statutes, are 2 amended to read: 3 120.55 Publication.-- 4 (1) The Department of State shall: 5 (a)1. Through a continuous revision system, compile 6 and publish the "Florida Administrative Code." The Florida 7 Administrative Code shall contain all rules adopted by each 8 agency, citing the specific rulemaking authority pursuant to 9 which each rule was adopted, all history notes as authorized 10 in s. 120.545(8) s. 120.545(9), and complete indexes to all 11 rules contained in the code. Supplementation shall be made as 12 often as practicable, but at least monthly. The department 13 may contract with a publishing firm for the publication, in a 14 timely and useful form, of the Florida Administrative Code; 15 however, the department shall retain responsibility for the 16 code as provided in this section. This publication shall be 17 the official compilation of the administrative rules of this 18 state. The Department of State shall retain the copyright over 19 the Florida Administrative Code. 20 2. Rules general in form but applicable to only one 21 school district, community college district, or county, or a 22 part thereof, or state university rules relating to internal 23 personnel or business and finance shall not be published in 24 the Florida Administrative Code. Exclusion from publication in 25 the Florida Administrative Code shall not affect the validity 26 or effectiveness of such rules. 27 3. At the beginning of the section of the code dealing 28 with an agency that files copies of its rules with the 29 department, the department shall publish the address and 30 telephone number of the executive offices of each agency, the 31 manner by which the agency indexes its rules, a listing of all 22 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 rules of that agency excluded from publication in the code, 2 and a statement as to where those rules may be inspected. 3 4. Forms shall not be published in the Florida 4 Administrative Code; but any form which an agency uses in its 5 dealings with the public, along with any accompanying 6 instructions, shall be filed with the committee before it is 7 used. Any form or instruction which meets the definition of 8 "rule" provided in s. 120.52 shall be incorporated by 9 reference into the appropriate rule. The reference shall 10 specifically state that the form is being incorporated by 11 reference and shall include the number, title, and effective 12 date of the form and an explanation of how the form may be 13 obtained. 14 (c) Prescribe by rule the style, and form and content 15 requirements required for rules, notices, and other materials 16 submitted for filing and establish the form for their 17 certification. 18 (3) Any publication of a proposed rule promulgated by 19 an agency, whether published in the Florida Administrative 20 Code or elsewhere, shall include, along with the rule, the 21 name of the person or persons originating such rule, the name 22 of the agency head supervisor or person who approved the rule, 23 and the date upon which the rule was approved. 24 Section 7. Effective December 31, 2007, paragraphs (a) 25 and (d) of subsection (1) and subsections (2) and (5) of 26 section 120.55, Florida Statutes, as amended by section 4 of 27 chapter 2006-82, Laws of Florida, are amended to read: 28 120.55 Publication.-- 29 (1) The Department of State shall: 30 (a)1. Through a continuous revision system, compile 31 and publish the "Florida Administrative Code." The Florida 23 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 Administrative Code shall contain all rules adopted by each 2 agency, citing the specific rulemaking authority pursuant to 3 which each rule was adopted, all history notes as authorized 4 in s. 120.545(8) s. 120.545(9), and complete indexes to all 5 rules contained in the code. Supplementation shall be made as 6 often as practicable, but at least monthly. The department 7 may contract with a publishing firm for the publication, in a 8 timely and useful form, of the Florida Administrative Code; 9 however, the department shall retain responsibility for the 10 code as provided in this section. This publication shall be 11 the official compilation of the administrative rules of this 12 state. The Department of State shall retain the copyright over 13 the Florida Administrative Code. 14 2. Rules general in form but applicable to only one 15 school district, community college district, or county, or a 16 part thereof, or state university rules relating to internal 17 personnel or business and finance shall not be published in 18 the Florida Administrative Code. Exclusion from publication in 19 the Florida Administrative Code shall not affect the validity 20 or effectiveness of such rules. 21 3. At the beginning of the section of the code dealing 22 with an agency that files copies of its rules with the 23 department, the department shall publish the address and 24 telephone number of the executive offices of each agency, the 25 manner by which the agency indexes its rules, a listing of all 26 rules of that agency excluded from publication in the code, 27 and a statement as to where those rules may be inspected. 28 4. Forms shall not be published in the Florida 29 Administrative Code; but any form which an agency uses in its 30 dealings with the public, along with any accompanying 31 instructions, shall be filed with the committee before it is 24 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 used. Any form or instruction which meets the definition of 2 "rule" provided in s. 120.52 shall be incorporated by 3 reference into the appropriate rule. The reference shall 4 specifically state that the form is being incorporated by 5 reference and shall include the number, title, and effective 6 date of the form and an explanation of how the form may be 7 obtained. Each form created by an agency which is incorporated 8 by reference in a rule notice of which is given under s. 9 120.54(3)(a) after December 31, 2007, must clearly display the 10 number, title, and effective date of the form and the number 11 of the rule in which the form is incorporated. 12 (d) Prescribe by rule the style, and form, and content 13 requirements required for rules, notices, and other materials 14 submitted for filing and establish the form for their 15 certification. 16 (2) The Florida Administrative Weekly Internet website 17 must allow users to: 18 (a) Search for notices by type, publication date, rule 19 number, word, subject, and agency; 20 (b) Search a database that makes available all notices 21 published on the website for a period of at least 5 years; 22 (c) Subscribe to an automated e-mail notification of 23 selected notices to be sent out prior to or concurrently with 24 weekly publication of the printed and electronic Florida 25 Administrative Weekly. Such notification must include in the 26 text of the e-mail a summary of the content of each notice; 27 (d) View agency forms and other materials that have 28 been submitted to the department in electronic form and that 29 are being incorporated by reference in proposed rules; and 30 (e) Comment on proposed rules. 31 (5) Any publication of a proposed rule promulgated by 25 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 an agency, whether published in the Florida Administrative 2 Code or elsewhere, shall include, along with the rule, the 3 name of the person or persons originating such rule, the name 4 of the agency head supervisor or person who approved the rule, 5 and the date upon which the rule was approved. 6 Section 8. Effective December 31, 2008, paragraph (a) 7 of subsection (1) of section 120.55, Florida Statutes, as 8 amended by section 4 of chapter 2006-82, Laws of Florida, and 9 by this act, is amended to read: 10 120.55 Publication.-- 11 (1) The Department of State shall: 12 (a) 1. Through a continuous revision system, compile 13 and publish electronically the "Florida Administrative Code." 14 on an Internet website managed by the department. The Florida 15 Administrative Code shall contain all rules adopted by each 16 agency, citing the grant of specific rulemaking authority and 17 the specific law implemented pursuant to which each rule was 18 adopted, all history notes as authorized in s. 120.545(8), and 19 complete indexes to all rules contained in the code, and any 20 other material required or authorized by law or deemed useful 21 by the department. The electronic code shall display each rule 22 chapter currently in effect in browse mode and allow full text 23 search of the code and each rule chapter. Supplementation 24 shall be made as often as practicable, but at least monthly. 25 The department shall publish a printed version of the Florida 26 Administrative Code and may contract with a publishing firm 27 for such printed the publication, in a timely and useful form, 28 of the Florida Administrative Code; however, the department 29 shall retain responsibility for the code as provided in this 30 section. Supplementation of the printed code shall be made as 31 often as practicable, but at least monthly. The printed This 26 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 publication shall be the official compilation of the 2 administrative rules of this state. The Department of State 3 shall retain the copyright over the Florida Administrative 4 Code. 5 2. Rules general in form but applicable to only one 6 school district, community college district, or county, or a 7 part thereof, or state university rules relating to internal 8 personnel or business and finance shall not be published in 9 the Florida Administrative Code. Exclusion from publication in 10 the Florida Administrative Code shall not affect the validity 11 or effectiveness of such rules. 12 3. At the beginning of the section of the code dealing 13 with an agency that files copies of its rules with the 14 department, the department shall publish the address and 15 telephone number of the executive offices of each agency, the 16 manner by which the agency indexes its rules, a listing of all 17 rules of that agency excluded from publication in the code, 18 and a statement as to where those rules may be inspected. 19 4. Forms shall not be published in the Florida 20 Administrative Code; but any form which an agency uses in its 21 dealings with the public, along with any accompanying 22 instructions, shall be filed with the committee before it is 23 used. Any form or instruction which meets the definition of 24 "rule" provided in s. 120.52 shall be incorporated by 25 reference into the appropriate rule. The reference shall 26 specifically state that the form is being incorporated by 27 reference and shall include the number, title, and effective 28 date of the form and an explanation of how the form may be 29 obtained. Each form created by an agency which is incorporated 30 by reference in a rule notice of which is given under s. 31 120.54(3)(a) after December 31, 2007, must clearly display the 27 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 number, title, and effective date of the form and the number 2 of the rule in which the form is incorporated. 3 5. The department shall allow material incorporated by 4 reference to be filed in electronic form as prescribed by 5 department rule. When a rule is filed for adoption with 6 incorporated material in electronic form, the department's 7 publication of the Florida Administrative Code on its Internet 8 website must contain a hyperlink from the incorporating 9 reference in the rule directly to that material. The 10 department may not allow hyperlinks from rules in the Florida 11 Administrative Code to any material other than that filed with 12 and maintained by the department, but it may allow additional 13 hyperlinks to incorporated material maintained by the 14 department from the adopting agency's website or other sites. 15 Section 9. Paragraph (a) of subsection (2) and, 16 effective January 1, 2008, subsection (4) of section 120.56, 17 Florida Statutes, is amended to read: 18 120.56 Challenges to rules.-- 19 (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.-- 20 (a) Any substantially affected person may seek an 21 administrative determination of the invalidity of any proposed 22 rule by filing a petition seeking such a determination with 23 the division within 21 days after the date of publication of 24 the notice required by s. 120.54(3)(a), within 10 days after 25 the final public hearing is held on the proposed rule as 26 provided by s. 120.54(3)(e)2. s. 120.54(3)(c), within 20 days 27 after the preparation of a statement of estimated regulatory 28 costs required pursuant to s. 120.541, if applicable, has been 29 provided to all persons who submitted a lower cost regulatory 30 alternative and made available to the public or within 20 days 31 after the date of publication of the notice required by s. 28 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 120.54(3)(d). The petition shall state with particularity the 2 objections to the proposed rule and the reasons that the 3 proposed rule is an invalid exercise of delegated legislative 4 authority. The petitioner has the burden of going forward. The 5 agency then has the burden to prove by a preponderance of the 6 evidence that the proposed rule is not an invalid exercise of 7 delegated legislative authority as to the objections raised. 8 Any person who is substantially affected by a change in the 9 proposed rule may seek a determination of the validity of such 10 change. Any person not substantially affected by the proposed 11 rule as initially noticed, but who is substantially affected 12 by the rule as a result of a change, may challenge any 13 provision of the rule and is not limited to challenging the 14 change to the proposed rule. 15 (4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; 16 SPECIAL PROVISIONS.-- 17 (a) Any person substantially affected by an agency 18 statement may seek an administrative determination that the 19 statement violates s. 120.54(1)(a). The petition must shall 20 include the text of the statement or a description of the 21 statement and shall state with particularity facts sufficient 22 to show that the statement constitutes a rule under s. 120.52 23 and that the agency has not adopted the statement by the 24 rulemaking procedure provided by s. 120.54. Upon the filing of 25 a petition for an administrative determination under this 26 subsection, the agency shall immediately discontinue all 27 reliance upon the statement or any substantially similar 28 statement as a basis for agency action until: 29 1. The proceeding is dismissed for any reason other 30 than initiation of rulemaking under s. 120.54; 31 2. The statement is adopted and becomes effective as a 29 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 rule; 2 3. A final order is issued which contains a 3 determination that the petitioner failed to prove that the 4 statement constitutes a rule under s. 120.52; or 5 4. A final order is issued which contains a 6 determination that rulemaking is not feasible under s. 7 120.54(1)(a)1.a. or b. or not practicable under s. 8 120.54(1)(a)2. 9 (b) If the administrative law judge determines that 10 the agency's inability to rely upon the statement during the 11 proceeding under this subsection would constitute an immediate 12 danger to the public health, safety, or welfare, the 13 administrative law judge shall grant an agency petition to 14 allow application of the statement until the proceeding is 15 concluded. 16 (c)(b) The administrative law judge may extend the 17 hearing date beyond 30 days after assignment of the case for 18 good cause. If a hearing is held and the petitioner proves the 19 allegations of the petition, the agency shall have the burden 20 of proving that rulemaking is not feasible or not and 21 practicable under s. 120.54(1)(a). 22 (d)(c) The administrative law judge may determine 23 whether all or part of a statement violates s. 120.54(1)(a). 24 The decision of the administrative law judge shall constitute 25 a final order. The division shall transmit a copy of the final 26 order to the Department of State and the committee. The 27 Department of State shall publish notice of the final order in 28 the first available issue of the Florida Administrative 29 Weekly. 30 (d) When an administrative law judge enters a final 31 order that all or part of an agency statement violates s. 30 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 120.54(1)(a), the agency shall immediately discontinue all 2 reliance upon the statement or any substantially similar 3 statement as a basis for agency action. 4 (e)1. If, prior to a final hearing to determine 5 whether all or part of any agency statement violates s. 6 120.54(1)(a), an agency publishes, pursuant to s. 7 120.54(3)(a), proposed rules that address the statement, then 8 for purposes of this section, a presumption is created that 9 the agency is acting expeditiously and in good faith to adopt 10 rules that address the statement, and the agency shall be 11 permitted to rely upon the statement or a substantially 12 similar statement as a basis for agency action if the 13 statement meets the requirements of s. 120.57(1)(e). 14 2. If, prior to the final hearing to determine whether 15 all or part of an agency statement violates s. 120.54(1)(a), 16 an agency publishes a notice of rule development which 17 addresses the statement pursuant to s. 120.54(2), or certifies 18 that such a notice has been transmitted to the Florida 19 Administrative Weekly for publication, then such publication 20 shall constitute good cause for the granting of a stay of the 21 proceedings and a continuance of the final hearing for 30 22 days. If the agency publishes proposed rules within this 23 30-day period or any extension of that period granted by an 24 administrative law judge upon showing of good cause, then the 25 administrative law judge shall place the case in abeyance 26 pending the outcome of rulemaking and any proceedings 27 involving challenges to proposed rules pursuant to subsection 28 (2). 29 3. If, following the commencement of the final hearing 30 and prior to entry of a final order that all or part of an 31 agency statement violates s. 120.54(1)(a), an agency 31 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 publishes, pursuant to s. 120.54(3)(a), proposed rules that 2 address the statement and proceeds expeditiously and in good 3 faith to adopt rules that address the statement, the agency 4 shall be permitted to rely upon the statement or a 5 substantially similar statement as a basis for agency action 6 if the statement meets the requirements of s. 120.57(1)(e). 7 4. If an agency fails to adopt rules that address the 8 statement within 180 days after publishing proposed rules, for 9 purposes of this subsection, a presumption is created that the 10 agency is not acting expeditiously and in good faith to adopt 11 rules. If the agency's proposed rules are challenged pursuant 12 to subsection (2), the 180-day period for adoption of rules is 13 tolled until a final order is entered in that proceeding. 14 5. If the proposed rules addressing the challenged 15 statement are determined to be an invalid exercise of 16 delegated legislative authority as defined in s. 17 120.52(8)(b)-(f), the agency must immediately discontinue 18 reliance on the statement and any substantially similar 19 statement until the rules addressing the subject are properly 20 adopted. 21 (e)(f) All proceedings to determine a violation of s. 22 120.54(1)(a) shall be brought pursuant to this subsection. A 23 proceeding pursuant to this subsection may be consolidated 24 with a proceeding under subsection (3) or under any other 25 section of this chapter. Nothing in this paragraph shall be 26 construed to prevent a party whose substantial interests have 27 been determined by an agency action from bringing a proceeding 28 pursuant to s. 120.57(1)(e). 29 Section 10. Subsection (1) and paragraph (c) of 30 subsection (2) of section 120.569, Florida Statutes, are 31 amended to read: 32 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 120.569 Decisions which affect substantial 2 interests.-- 3 (1) The provisions of this section apply in all 4 proceedings in which the substantial interests of a party are 5 determined by an agency, unless the parties are proceeding 6 under s. 120.573 or s. 120.574. Unless waived by all parties, 7 s. 120.57(1) applies whenever the proceeding involves a 8 disputed issue of material fact. Unless otherwise agreed, s. 9 120.57(2) applies in all other cases. If a disputed issue of 10 material fact arises during a proceeding under s. 120.57(2), 11 unless waived by all parties, the proceeding under s. 12 120.57(2) shall be terminated and a proceeding under s. 13 120.57(1) shall be conducted. Parties shall be notified of any 14 order, including a final order. Unless waived, a copy of the 15 order shall be delivered or mailed to each party or the 16 party's attorney of record at the address of record. Each 17 notice shall inform the recipient of any administrative 18 hearing or judicial review that is available under this 19 section, s. 120.57, or s. 120.68; shall indicate the procedure 20 which must be followed to obtain the hearing or judicial 21 review; and shall state the time limits which apply. 22 (2) 23 (c) Unless otherwise provided by law, a petition or 24 request for hearing shall include those items required by the 25 uniform rules adopted pursuant to s. 120.54(5)(b) s. 26 120.54(5)(b)4. Upon the receipt of a petition or request for 27 hearing, the agency shall carefully review the petition to 28 determine if it contains all of the required information. A 29 petition shall be dismissed if it is not in substantial 30 compliance with these requirements or it has been untimely 31 filed. Dismissal of a petition shall, at least once, be 33 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 without prejudice to petitioner's filing a timely amended 2 petition curing the defect, unless it conclusively appears 3 from the face of the petition that the defect cannot be cured. 4 The agency shall promptly give written notice to all parties 5 of the action taken on the petition, shall state with 6 particularity its reasons if the petition is not granted, and 7 shall state the deadline for filing an amended petition if 8 applicable. This paragraph does not eliminate the availability 9 of equitable tolling as a defense to the untimely filing of a 10 petition. 11 Section 11. Effective January 1, 2008, paragraph (e) 12 of subsection (1) of section 120.57, Florida Statutes, is 13 amended to read: 14 120.57 Additional procedures for particular cases.-- 15 (1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS 16 INVOLVING DISPUTED ISSUES OF MATERIAL FACT.-- 17 (e)1. Any Agency action that determines the 18 substantial interests of a party may not be and that is based 19 on an agency statement that violates s. 120.54(1)(a). Neither 20 an agency nor an administrative law judge has authority to 21 enforce agency policy that constitutes an unadopted rule when 22 the agency fails to prove that rulemaking is not feasible or 23 not practicable. This subparagraph does not preclude 24 application of adopted rules and applicable statutes to the 25 facts unadopted rule is subject to de novo review by an 26 administrative law judge. 27 2. The agency action shall not be presumed valid or 28 invalid. The agency must demonstrate that the unadopted rule: 29 a. Is within the powers, functions, and duties 30 delegated by the Legislature or, if the agency is operating 31 pursuant to authority derived from the State Constitution, is 34 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 within that authority; 2 b. Does not enlarge, modify, or contravene the 3 specific provisions of law implemented; 4 c. Is not vague, establishes adequate standards for 5 agency decisions, or does not vest unbridled discretion in the 6 agency; 7 d. Is not arbitrary or capricious. A rule is arbitrary 8 if it is not supported by logic or the necessary facts; a rule 9 is capricious if it is adopted without thought or reason or is 10 irrational; 11 e. Is not being applied to the substantially affected 12 party without due notice; and 13 f. Does not impose excessive regulatory costs on the 14 regulated person, county, or city. 15 2.3. The recommended and final orders in any 16 proceeding shall be governed by the provisions of paragraphs 17 (k) and (l), except that the administrative law judge's 18 determination regarding the unadopted rule shall not be 19 rejected by the agency unless the agency first determines from 20 a review of the complete record, and states with particularity 21 in the order, that such determination is clearly erroneous or 22 does not comply with essential requirements of law. In any 23 proceeding for review under s. 120.68, if the court finds that 24 the agency's rejection of the determination regarding the 25 unadopted rule does not comport with the provisions of this 26 subparagraph, the agency action shall be set aside and the 27 court shall award to the prevailing party the reasonable costs 28 and a reasonable attorney's fee for the initial proceeding and 29 the proceeding for review. 30 Section 12. Effective January 1, 2008, subsections 31 (2), (3), and (4) of section 120.595, Florida Statutes, are 35 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 amended to read: 2 120.595 Attorney's fees.-- 3 (2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO 4 SECTION 120.56(2).--If the court or administrative law judge 5 declares a proposed rule or portion of a proposed rule invalid 6 pursuant to s. 120.56(2), a judgment or order shall be 7 rendered against the agency for reasonable costs and 8 reasonable attorney's fees, unless the agency demonstrates 9 that its actions were substantially justified or special 10 circumstances exist which would make the award unjust. An 11 agency's actions are "substantially justified" if there was a 12 reasonable basis in law and fact at the time the actions were 13 taken by the agency. If the agency prevails in the 14 proceedings, the court or administrative law judge shall award 15 reasonable costs and reasonable attorney's fees against a 16 party if the court or administrative law judge determines that 17 a party participated in the proceedings for an improper 18 purpose as defined by paragraph (1)(e). No award of attorney's 19 fees as provided by this subsection shall exceed $50,000 20 $15,000. 21 (3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO 22 SECTION 120.56(3) AND (5).--If the court or administrative law 23 judge declares a rule or portion of a rule invalid pursuant to 24 s. 120.56(3) or s. 120.56(5), a judgment or order shall be 25 rendered against the agency for reasonable costs and 26 reasonable attorney's fees, unless the agency demonstrates 27 that its actions were substantially justified or special 28 circumstances exist which would make the award unjust. An 29 agency's actions are "substantially justified" if there was a 30 reasonable basis in law and fact at the time the actions were 31 taken by the agency. If the agency prevails in the 36 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 proceedings, the court or administrative law judge shall award 2 reasonable costs and reasonable attorney's fees against a 3 party if the court or administrative law judge determines that 4 a party participated in the proceedings for an improper 5 purpose as defined by paragraph (1)(e). No award of attorney's 6 fees as provided by this subsection shall exceed $50,000 7 $15,000. 8 (4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION 9 120.56(4).-- 10 (a) Upon entry of a final order that all or part of an 11 agency statement violates s. 120.54(1)(a), the administrative 12 law judge shall award reasonable costs and reasonable 13 attorney's fees to the petitioner, unless the agency 14 demonstrates that the statement is required by the Federal 15 Government to implement or retain a delegated or approved 16 program or to meet a condition to receipt of federal funds. 17 (b) If prior to the final hearing the agency initiates 18 rulemaking under s. 120.54 and requests a stay of the 19 proceedings pending rulemaking, the administrative law judge 20 shall award reasonable costs and reasonable attorney's fees 21 accrued by the petitioner prior to the date the agency filed 22 its request for a stay pending rulemaking provided the agency 23 adopts the statement as a rule. A request for a stay shall be 24 granted when the petitioner and the agency agree to the stay. 25 If the petitioner objects to the stay, the stay may be denied 26 if the petitioner establishes good cause exists to deny the 27 stay. A stay granted under this paragraph shall remain in 28 effect until either the statement has been adopted as a rule 29 and has become effective or the proposed rule has been 30 withdrawn. A request for attorney's fees and costs under this 31 paragraph shall be granted only upon a finding that the agency 37 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 knew or should have known at the time the petition was filed 2 that the agency statement was an unadopted rule, and no award 3 of attorney's fees as provided by this paragraph may exceed 4 $50,000. 5 (c)(b) Notwithstanding the provisions of chapter 284, 6 an award shall be paid from the budget entity of the 7 secretary, executive director, or equivalent administrative 8 officer of the agency, and the agency shall not be entitled to 9 payment of an award or reimbursement for payment of an award 10 under any provision of law. 11 (d) If the agency prevails in the proceedings, the 12 court or administrative law judge shall award reasonable costs 13 and reasonable attorney's fees against a party if the court or 14 administrative law judge determines that the party 15 participated in the proceedings for an improper purpose as 16 defined in paragraph (1)(e). 17 Section 13. Subsection (2) of section 120.74, Florida 18 Statutes, is amended to read: 19 120.74 Agency review, revision, and report.-- 20 (2) Beginning October 1, 1997, and by October 1 of 21 every other year thereafter, the head of each agency shall 22 file a report with the President of the Senate, the Speaker of 23 the House of Representatives, and the committee, with a copy 24 to each appropriate standing committee of the Legislature, 25 which certifies that the agency has complied with the 26 requirements of this section subsection. The report must 27 specify any changes made to its rules as a result of the 28 review and, when appropriate, recommend statutory changes that 29 will promote efficiency, reduce paperwork, or decrease costs 30 to government and the private sector. The report must identify 31 the types of cases or disputes in which the agency is involved 38 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 which should be conducted under the summary hearing process 2 described in s. 120.574. 3 Section 14. For the 2007-2008 fiscal year, the 4 nonrecurring sum of $345,000 is appropriated from the Records 5 Management Trust Fund to the Department of State for the 6 purposes of carrying out the provisions of this act. 7 Section 15. Except as otherwise expressly provided in 8 this act, this act shall take effect July 1, 2007. 9 10 11 ================ T I T L E A M E N D M E N T =============== 12 And the title is amended as follows: 13 Delete everything before the enacting clause 14 15 and insert: 16 A bill to be entitled 17 An act relating to administrative procedures; 18 amending s. 120.52, F.S.; redefining the term 19 "invalid exercise of delegated legislative 20 authority"; defining the terms "law 21 implemented," "rulemaking authority," and 22 "unadopted rule"; amending s. 120.536, F.S.; 23 revising guidelines for the construction of 24 statutory language granting rulemaking 25 authority; amending s. 120.54, F.S.; 26 prescribing limits and guidelines with respect 27 to incorporation of material by reference; 28 prescribing requirements for materials being 29 incorporated by reference; providing for rules; 30 revising information to be included in notices 31 of proposed actions; requiring that specified 39 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 rulemaking responsibilities of an agency head, 2 including those relating to conducting a public 3 hearing, may not be delegated or transferred; 4 revising dates for filing rules for adoption; 5 revising provisions with respect to petitions 6 to initiate rulemaking; amending s. 120.545, 7 F.S.; revising duties of the Administrative 8 Procedures Committee and agencies with respect 9 to review of agency rules; providing for a 10 legislative committee to request agency 11 information for examination of an unadopted 12 rule; prescribing responses that may be made by 13 an agency to a committee objection to a rule or 14 statement of estimated regulatory costs; 15 prescribing presumptions resulting from an 16 agency's refusal to respond to committee 17 objections; amending s. 120.55, F.S.; requiring 18 electronic publication of the Florida 19 Administrative Code; prescribing requirements 20 with respect to content of such electronic 21 publication; providing for filing information 22 incorporated by reference in electronic form; 23 conforming a cross-reference; amending s. 24 120.56, F.S.; revising notice requirements with 25 respect to challenges of proposed rules; 26 requiring an agency to discontinue reliance on 27 a statement when an administrative 28 determination is sought with respect to the 29 statement; allowing continued reliance on a 30 statement when an administrative law judge 31 determines that the inability to rely on it 40 3:28 PM 04/20/07 s1592c1d-ta35-t02
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. CS for SB 1592 Barcode 785202 1 would constitute an immediate danger; deleting 2 certain provisions relating to actions before a 3 final hearing is held; amending s. 120.569, 4 F.S.; requiring that certain administrative 5 proceedings be terminated and subsequently 6 reinstated under different provisions of state 7 law if a disputed issue of material fact arises 8 during such a proceeding; providing for the 9 waiver of such termination; revising a 10 cross-reference; amending s. 120.57, F.S.; 11 prescribing procedures with respect to 12 challenges to unadopted rules; amending s. 13 120.595, F.S.; increasing maximum attorney's 14 fees; revising guidelines for award of 15 attorney's fees in challenges to agency action; 16 providing for attorney's fees and costs in 17 certain circumstances; amending s. 120.74, 18 F.S.; revising reporting requirements for 19 agency heads; providing an appropriation; 20 providing an effective date. 21 22 23 24 25 26 27 28 29 30 31 41 3:28 PM 04/20/07 s1592c1d-ta35-t02