Senate Bill sb1592

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    Florida Senate - 2007                                  SB 1592

    By Senator Bennett





    21-444A-07

  1                      A bill to be entitled

  2         An act relating to administrative procedures;

  3         amending s. 120.52, F.S.; defining the term

  4         "unadopted rule"; amending s. 120.54, F.S.;

  5         revising standards for determining when

  6         rulemaking is presumed feasible; revising

  7         provisions with respect to petitions to

  8         initiate rulemaking; amending s. 120.545, F.S.;

  9         revising duties of the Administrative

10         Procedures Committee and agencies with respect

11         to review of agency rules; providing for a

12         legislative committee to request agency

13         information for examination of an unadopted

14         rule; prescribing responses that may be made by

15         an agency to a committee objection to a rule or

16         statement of estimated regulatory costs;

17         prescribing presumptions resulting from an

18         agency's refusal to respond to committee

19         objections; amending s. 120.56, F.S.; requiring

20         an agency to discontinue reliance on a

21         statement when an administrative determination

22         is sought with respect to the statement;

23         allowing continued reliance on a statement when

24         an administrative law judge determines that the

25         inability to rely on it would constitute an

26         immediate danger; deleting certain provisions

27         relating to actions before a final hearing is

28         held; amending s. 120.57, F.S.; prescribing

29         procedures with respect to challenges to

30         unadopted rules; amending s. 120.595, F.S.;

31         revising guidelines for award of attorney's

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 1         fees in challenges to agency action; amending

 2         s. 120.55, F.S.; conforming a cross-reference;

 3         providing effective dates.

 4  

 5  Be It Enacted by the Legislature of the State of Florida:

 6  

 7         Section 1.  Present subsections (18) and (19) of

 8  section 120.52, Florida Statutes, are renumbered as

 9  subsections (19) and (20), respectively, and a new subsection

10  (18) is added to that section to read:

11         120.52  Definitions.--As used in this act:

12         (18)  "Unadopted rule" means an agency statement that

13  meets the definition of "rule" but has not been adopted

14  pursuant to the requirements of s. 120.54.

15         Section 2.  Paragraph (a) of subsection (1) and

16  subsection (7) of section 120.54, Florida Statutes, are

17  amended to read:

18         120.54  Rulemaking.--

19         (1)  GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER

20  THAN EMERGENCY RULES.--

21         (a)  Rulemaking is not a matter of agency discretion.

22  Each agency statement defined as a rule by s. 120.52 shall be

23  adopted by the rulemaking procedure provided by this section

24  as soon as feasible and practicable.

25         1.  Rulemaking shall be presumed feasible unless the

26  agency proves that:

27         a.  The agency has not had sufficient time to acquire

28  the knowledge and experience reasonably necessary to address a

29  statement by rulemaking; or

30         b.  Related matters are not sufficiently resolved to

31  enable the agency to address a statement by rulemaking.; or

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 1         c.  The agency is currently using the rulemaking

 2  procedure expeditiously and in good faith to adopt rules which

 3  address the statement.

 4         2.  Rulemaking shall be presumed practicable to the

 5  extent necessary to provide fair notice to affected persons of

 6  relevant agency procedures and applicable principles,

 7  criteria, or standards for agency decisions unless the agency

 8  proves that:

 9         a.  Detail or precision in the establishment of

10  principles, criteria, or standards for agency decisions is not

11  reasonable under the circumstances; or

12         b.  The particular questions addressed are of such a

13  narrow scope that more specific resolution of the matter is

14  impractical outside of an adjudication to determine the

15  substantial interests of a party based on individual

16  circumstances.

17         (7)  PETITION TO INITIATE RULEMAKING.--

18         (a)  Any person regulated by an agency or having

19  substantial interest in an agency rule may petition an agency

20  to adopt, amend, or repeal a rule or to provide the minimum

21  public information required by this chapter. The petition

22  shall specify the proposed rule and action requested. Not

23  later than 30 calendar days following the date of filing a

24  petition, the agency shall initiate rulemaking proceedings

25  under this chapter, otherwise comply with the requested

26  action, or deny the petition with a written statement of its

27  reasons for the denial.

28         (b)  If the petition filed under this subsection is

29  directed to an existing rule which the agency has not adopted

30  by the rulemaking procedures or requirements set forth in this

31  chapter, the agency shall, not later than 30 days following

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 1  the date of filing a petition, initiate rulemaking, or provide

 2  notice in the Florida Administrative Weekly that the agency

 3  will hold a public hearing on the petition within 30 days

 4  after publication of the notice.  The purpose of the public

 5  hearing is to consider the comments of the public directed to

 6  the agency rule which has not been adopted by the rulemaking

 7  procedures or requirements of this chapter, its scope and

 8  application, and to consider whether the public interest is

 9  served adequately by the application of the rule on a

10  case-by-case basis, as contrasted with its adoption by the

11  rulemaking procedures or requirements set forth in this

12  chapter.

13         (c)  Within 30 days following the public hearing

14  provided for by paragraph (b), if the agency does not initiate

15  rulemaking or otherwise comply with the requested action, the

16  agency shall publish in the Florida Administrative Weekly a

17  statement of its reasons for not initiating rulemaking or

18  otherwise complying with the requested action, and of any

19  changes it will make in the scope or application of the

20  unadopted rule.  The agency shall file the statement with the

21  committee.  The committee shall forward a copy of the

22  statement to the substantive committee with primary oversight

23  jurisdiction of the agency in each house of the Legislature.

24  The committee or the committee with primary oversight

25  jurisdiction may hold a hearing directed to the statement of

26  the agency.  The committee holding the hearing may recommend

27  to the Legislature the introduction of legislation making the

28  rule a statutory standard or limiting or otherwise modifying

29  the authority of the agency.

30         Section 3.  Section 120.545, Florida Statutes, is

31  amended to read:

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 1         120.545  Committee review of agency rules.--

 2         (1)  As a legislative check on legislatively created

 3  authority, the committee shall examine each proposed rule,

 4  except for those proposed rules exempted by s. 120.81(1)(e)

 5  and (2), and its accompanying material, and each emergency

 6  rule, and may examine any existing rule, for the purpose of

 7  determining whether:

 8         (a)  The rule is an invalid exercise of delegated

 9  legislative authority.

10         (b)  The statutory authority for the rule has been

11  repealed.

12         (c)  The rule reiterates or paraphrases statutory

13  material.

14         (d)  The rule is in proper form.

15         (e)  The notice given prior to its adoption was

16  sufficient to give adequate notice of the purpose and effect

17  of the rule.

18         (f)  The rule is consistent with expressed legislative

19  intent pertaining to the specific provisions of law which the

20  rule implements.

21         (g)  The rule is necessary to accomplish the apparent

22  or expressed objectives of the specific provision of law which

23  the rule implements.

24         (h)  The rule is a reasonable implementation of the law

25  as it affects the convenience of the general public or persons

26  particularly affected by the rule.

27         (i)  The rule could be made less complex or more easily

28  comprehensible to the general public.

29         (j)  The rule does not impose regulatory costs on the

30  regulated person, county, or city which could be reduced by

31  

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 1  the adoption of less costly alternatives that substantially

 2  accomplish the statutory objectives.

 3         (k)  The rule will require additional appropriations.

 4         (l)  If the rule is an emergency rule, there exists an

 5  emergency justifying the adoption promulgation of such rule,

 6  the agency is within has exceeded the scope of its statutory

 7  authority, and the rule was adopted promulgated in compliance

 8  with the requirements and limitations of s. 120.54(4).

 9         (2)  The committee may request from an agency such

10  information as is reasonably necessary for examination of a

11  rule as required by subsection (1) or for examination of an

12  unadopted agency statement.  The committee shall consult with

13  legislative standing committees having with jurisdiction over

14  the subject areas.  If the committee objects to an emergency

15  rule or a proposed or existing rule, it shall, within 5 days

16  after of the objection, certify that fact to the agency whose

17  rule has been examined and include with the certification a

18  statement detailing its objections with particularity. The

19  committee shall notify the Speaker of the House of

20  Representatives and the President of the Senate of any

21  objection to an agency rule concurrent with certification of

22  that fact to the agency.  Such notice shall include a copy of

23  the rule and the statement detailing the committee's

24  objections to the rule.

25         (3)  Within 30 days after of receipt of the objection,

26  if the agency is headed by an individual, or within 45 days

27  after of receipt of the objection, if the agency is headed by

28  a collegial body, the agency shall:

29         (a)  If the rule is not yet in effect a proposed rule:

30  

31  

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 1         1.  File notice pursuant to s. 120.54(3)(d) of only

 2  such modifications as are necessary to address Modify the rule

 3  to meet the committee's objection;

 4         2.  File notice pursuant to s. 120.54(3)(d) of

 5  withdrawal of Withdraw the rule in its entirety; or

 6         3.  Notify the committee in writing that it refuses

 7  Refuse to modify or withdraw the rule.

 8         (b)  If the rule is in effect an existing rule:

 9         1.  File notice pursuant to s. 120.54(3)(a), without

10  prior notice of rule development, Notify the committee that it

11  has elected to amend the rule to address meet the committee's

12  objection and initiate the amendment procedure;

13         2.  File notice pursuant to s. 120.54(3)(a) Notify the

14  committee that it has elected to repeal the rule and initiate

15  the repeal procedure; or

16         3.  Notify the committee in writing that it refuses to

17  amend or repeal the rule.

18         (c)  If the rule is either an existing or a proposed

19  rule and the objection is to the statement of estimated

20  regulatory costs:

21         1.  Prepare a corrected statement of estimated

22  regulatory costs, give notice of the availability of the

23  corrected statement in the first available issue of the

24  Florida Administrative Weekly, and file a copy of the

25  corrected statement with the committee; or

26         2.  Notify the committee that it refuses to prepare a

27  corrected statement of estimated regulatory costs.

28         (d)  If the rule is unadopted:

29         1.  File notice pursuant to s. 120.54(3)(a), without

30  prior notice of rule development, of intent to adopt the rule;

31  

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 1         2.  File notice for publication in the Florida

 2  Administrative Weekly that the agency has abandoned all

 3  reliance upon the statement or any substantially similar

 4  statement as a basis for agency action; or

 5         3.  Notify the committee in writing that it refuses to

 6  adopt the rule or to abandon all reliance upon the statement

 7  or any substantially similar statement as a basis for agency

 8  action.

 9         (4)  If the agency elects to modify a proposed rule to

10  meet the committee's objection, it shall make only such

11  modifications as are necessary to meet the objection and shall

12  resubmit the rule to the committee.  The agency shall give

13  notice of its election to modify a proposed rule to meet the

14  committee's objection by publishing a notice of change in the

15  first available issue of the Florida Administrative Weekly,

16  but shall not be required to conduct a public hearing. If the

17  agency elects to amend an existing rule to meet the

18  committee's objection, it shall notify the committee in

19  writing and shall initiate the amendment procedure by giving

20  notice in the next available issue of the Florida

21  Administrative Weekly. The committee shall give priority to

22  rules so modified or amended when setting its agenda.

23         (5)  If the agency elects to withdraw a proposed rule

24  as a result of a committee objection, it shall notify the

25  committee, in writing, of its election and shall give notice

26  of the withdrawal in the next available issue of the Florida

27  Administrative Weekly.  The rule shall be withdrawn without a

28  public hearing, effective upon publication of the notice in

29  the Florida Administrative Weekly.  If the agency elects to

30  repeal an existing rule as a result of a committee objection,

31  it shall notify the committee, in writing, of its election and

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 1  shall initiate rulemaking procedures for that purpose by

 2  giving notice in the next available issue of the Florida

 3  Administrative Weekly.

 4         (6)  If an agency elects to amend or repeal an existing

 5  rule as a result of a committee objection, it shall complete

 6  the process within 90 days after giving notice in the Florida

 7  Administrative Weekly.

 8         (4)(7)  Failure of the agency to respond to a committee

 9  objection to a proposed rule that is not yet in effect within

10  the time prescribed in subsection (3) constitutes shall

11  constitute withdrawal of the rule in its entirety.  In this

12  event, the committee shall notify the Department of State that

13  the agency, by its failure to respond to a committee

14  objection, has elected to withdraw the proposed rule.  Upon

15  receipt of the committee's notice, the Department of State

16  shall publish a notice to that effect in the next available

17  issue of the Florida Administrative Weekly. Upon publication

18  of the notice, the proposed rule shall be stricken from the

19  files of the Department of State and the files of the agency.

20         (5)(8)  Failure of the agency to respond to a committee

21  objection to a an existing rule that is in effect within the

22  time prescribed in subsection (3) constitutes shall constitute

23  a refusal to amend or repeal the rule.

24         (6)  Failure of the agency to respond to a committee

25  objection to a statement of estimated regulatory costs within

26  the time prescribed in subsection (3) constitutes a refusal to

27  prepare a corrected statement of estimated regulatory costs.

28         (7)  Failure of the agency to respond to a committee

29  objection to an unadopted rule within the time prescribed in

30  subsection (3) constitutes a refusal to adopt the rule and a

31  

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 1  refusal to abandon all reliance upon the statement or any

 2  substantially similar statement as a basis for agency action.

 3         (8)(9)  If the committee objects to a proposed or

 4  existing rule and the agency refuses to adopt, abandon,

 5  modify, amend, withdraw, or repeal it the rule, the committee

 6  shall file with the Department of State a notice of the

 7  objection, detailing with particularity its objection to the

 8  rule.  The Department of State shall publish this notice in

 9  the Florida Administrative Weekly. If the rule is published

10  and shall publish, as a history note to the rule in the

11  Florida Administrative Code, a reference to the committee's

12  objection and to the issue of the Weekly in which the full

13  text thereof appears shall be recorded in a history note.

14         (9)(10)(a)  If the committee objects to a proposed or

15  existing rule, or portion thereof, and the agency fails to

16  initiate administrative action to adopt, abandon, modify,

17  amend, withdraw, or repeal the rule consistent with the

18  objection within 60 days after the objection, or thereafter

19  fails to proceed in good faith to complete such action, the

20  committee may submit to the President of the Senate and the

21  Speaker of the House of Representatives a recommendation that

22  legislation be introduced to address the committee objection

23  modify or suspend the adoption of the proposed rule, or amend

24  or repeal the rule, or portion thereof.

25         (b)1.  If the committee votes to recommend the

26  introduction of legislation to address the committee objection

27  modify or suspend the adoption of a proposed rule, or amend or

28  repeal a rule, the committee shall, within 5 days after this

29  determination, certify that fact to the agency whose rule or

30  proposed rule has been examined. The committee may request

31  that the agency temporarily suspend the rule, or suspend the

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 1  adoption of the proposed rule, or suspend all reliance upon

 2  the statement or any substantially similar statement as a

 3  basis for agency action, pending consideration of proposed

 4  legislation during the next regular session of the

 5  Legislature.

 6         2.  Within 30 days after receipt of the certification,

 7  if the agency is headed by an individual, or within 45 days

 8  after receipt of the certification, if the agency is headed by

 9  a collegial body, the agency shall either:

10         a.  Temporarily suspend the rule, or suspend the

11  adoption of the proposed rule, or suspend all reliance upon

12  the statement or any substantially similar statement as a

13  basis for agency action; or

14         b.  Notify the committee in writing that it refuses to

15  temporarily suspend the rule, or suspend the adoption of the

16  proposed rule, or suspend all reliance upon the statement or

17  any substantially similar statement as a basis for agency

18  action.

19         3.  If the agency elects to temporarily suspend the

20  rule, or suspend the adoption of the proposed rule, or suspend

21  all reliance upon the statement or any substantially similar

22  statement as a basis for agency action, it shall give notice

23  of the suspension in the Florida Administrative Weekly.  The

24  rule or the rule adoption process shall be suspended upon

25  publication of the notice.  An agency may shall not base any

26  agency action on a suspended rule, or suspended proposed rule,

27  or suspended statement or any substantially similar statement,

28  or portion thereof, prior to expiration of the suspension.  A

29  suspended rule, or suspended proposed rule, or suspended

30  statement or any substantially similar statement, or portion

31  

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 1  thereof, continues to be subject to administrative

 2  determination and judicial review as provided by law.

 3         4.  Failure of an agency to respond to committee

 4  certification within the time prescribed by subparagraph 2.

 5  constitutes a refusal to suspend the rule, or to suspend the

 6  adoption of the proposed rule, or suspend all reliance upon

 7  the statement or any substantially similar statement as a

 8  basis for agency action.

 9         (c)  The committee shall prepare bills to address the

10  committee objection modify or suspend the adoption of the

11  proposed rule or amend or repeal the rule, or portion thereof,

12  in accordance with the rules of the Senate and the House of

13  Representatives for prefiling and introduction in the next

14  regular session of the Legislature. The proposed bill shall be

15  presented to the President of the Senate and the Speaker of

16  the House of Representatives with the committee

17  recommendation.

18         (d)  If a bill to address the committee objection

19  suspend the adoption of a proposed rule is enacted into law,

20  the proposed rule is suspended until specific delegated

21  legislative authority for the proposed rule has been enacted.

22  If a bill to suspend the adoption of a proposed rule fails to

23  become law, any temporary agency suspension of the rule shall

24  expire.  If a bill to modify a proposed rule or amend a rule

25  is enacted into law, the suspension shall expire upon

26  publication of notice of modification or amendment in the

27  Florida Administrative Weekly. If a bill to repeal a rule is

28  enacted into law, the suspension shall remain in effect until

29  notification of repeal of the rule is published in the Florida

30  Administrative Weekly.

31  

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 1         (e)  The Department of State shall publish in the next

 2  available issue of the Florida Administrative Weekly the final

 3  legislative action taken. If a bill to modify or suspend the

 4  adoption of the proposed rule or amend or repeal the rule, or

 5  portion thereof, is enacted into law, the Department of State

 6  shall conform the rule or portion of the rule to the

 7  provisions of the law in the Florida Administrative Code and

 8  publish a reference to the law as a history note to the rule.

 9         Section 4.  Effective January 1, 2008, subsection (4)

10  of section 120.56, Florida Statutes, is amended to read:

11         120.56  Challenges to rules.--

12         (4)  CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;

13  SPECIAL PROVISIONS.--

14         (a)  Any person substantially affected by an agency

15  statement may seek an administrative determination that the

16  statement violates s. 120.54(1)(a). The petition must shall

17  include the text of the statement or a description of the

18  statement and shall state with particularity facts sufficient

19  to show that the statement constitutes a rule under s. 120.52

20  and that the agency has not adopted the statement by the

21  rulemaking procedure provided by s. 120.54. Upon the filing of

22  a petition for an administrative determination under this

23  subsection, the agency shall immediately discontinue all

24  reliance upon the statement or any substantially similar

25  statement as a basis for agency action until:

26         1.  The proceeding is dismissed;

27         2.  The statement is adopted and becomes effective as a

28  rule;

29         3.  A final order is issued which contains a

30  determination that the petitioner failed to prove that the

31  statement constitutes a rule under s. 120.52; or

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 1         4.  A final order is issued which contains a

 2  determination that rulemaking is not feasible or not

 3  practicable under s. 120.54(1)(a).

 4         (b)  If the administrative law judge determines that

 5  the agency's inability to rely upon the statement during the

 6  proceeding under this subsection would constitute an immediate

 7  danger to the public health, safety, or welfare, the

 8  administrative law judge shall grant an agency petition to

 9  allow application of the statement until the proceeding is

10  concluded.

11         (c)(b)  The administrative law judge may extend the

12  hearing date beyond 30 days after assignment of the case for

13  good cause. If a hearing is held and the petitioner proves the

14  allegations of the petition, the agency shall have the burden

15  of proving that rulemaking is not feasible or not and

16  practicable under s. 120.54(1)(a).

17         (d)(c)  The administrative law judge may determine

18  whether all or part of a statement violates s. 120.54(1)(a).

19  The decision of the administrative law judge shall constitute

20  a final order. The division shall transmit a copy of the final

21  order to the Department of State and the committee. The

22  Department of State shall publish notice of the final order in

23  the first available issue of the Florida Administrative

24  Weekly.

25         (d)  When an administrative law judge enters a final

26  order that all or part of an agency statement violates s.

27  120.54(1)(a), the agency shall immediately discontinue all

28  reliance upon the statement or any substantially similar

29  statement as a basis for agency action.

30         (e)1.  If, prior to a final hearing to determine

31  whether all or part of any agency statement violates s.

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 1  120.54(1)(a), an agency publishes, pursuant to s.

 2  120.54(3)(a), proposed rules that address the statement, then

 3  for purposes of this section, a presumption is created that

 4  the agency is acting expeditiously and in good faith to adopt

 5  rules that address the statement, and the agency shall be

 6  permitted to rely upon the statement or a substantially

 7  similar statement as a basis for agency action if the

 8  statement meets the requirements of s. 120.57(1)(e).

 9         2.  If, prior to the final hearing to determine whether

10  all or part of an agency statement violates s. 120.54(1)(a),

11  an agency publishes a notice of rule development which

12  addresses the statement pursuant to s. 120.54(2), or certifies

13  that such a notice has been transmitted to the Florida

14  Administrative Weekly for publication, then such publication

15  shall constitute good cause for the granting of a stay of the

16  proceedings and a continuance of the final hearing for 30

17  days. If the agency publishes proposed rules within this

18  30-day period or any extension of that period granted by an

19  administrative law judge upon showing of good cause, then the

20  administrative law judge shall place the case in abeyance

21  pending the outcome of rulemaking and any proceedings

22  involving challenges to proposed rules pursuant to subsection

23  (2).

24         3.  If, following the commencement of the final hearing

25  and prior to entry of a final order that all or part of an

26  agency statement violates s. 120.54(1)(a), an agency

27  publishes, pursuant to s. 120.54(3)(a), proposed rules that

28  address the statement and proceeds expeditiously and in good

29  faith to adopt rules that address the statement, the agency

30  shall be permitted to rely upon the statement or a

31  

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 1  substantially similar statement as a basis for agency action

 2  if the statement meets the requirements of s. 120.57(1)(e).

 3         4.  If an agency fails to adopt rules that address the

 4  statement within 180 days after publishing proposed rules, for

 5  purposes of this subsection, a presumption is created that the

 6  agency is not acting expeditiously and in good faith to adopt

 7  rules. If the agency's proposed rules are challenged pursuant

 8  to subsection (2), the 180-day period for adoption of rules is

 9  tolled until a final order is entered in that proceeding.

10         5.  If the proposed rules addressing the challenged

11  statement are determined to be an invalid exercise of

12  delegated legislative authority as defined in s.

13  120.52(8)(b)-(f), the agency must immediately discontinue

14  reliance on the statement and any substantially similar

15  statement until the rules addressing the subject are properly

16  adopted.

17         (e)(f)  All proceedings to determine a violation of s.

18  120.54(1)(a) shall be brought pursuant to this subsection. A

19  proceeding pursuant to this subsection may be consolidated

20  with a proceeding under subsection (3) or under any other

21  section of this chapter. Nothing in this paragraph shall be

22  construed to prevent a party whose substantial interests have

23  been determined by an agency action from bringing a proceeding

24  pursuant to s. 120.57(1)(e).

25         Section 5.  Effective January 1, 2008, paragraph (e) of

26  subsection (1) of section 120.57, Florida Statutes, is amended

27  to read:

28         120.57  Additional procedures for particular cases.--

29         (1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS

30  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--

31  

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 1         (e)1.  Any Agency action that determines the

 2  substantial interests of a party may not be and that is based

 3  on an agency statement that violates s. 120.54(1)(a). Neither

 4  an agency nor an administrative law judge has authority to

 5  enforce agency policy that constitutes an unadopted rule when

 6  the agency fails to prove that rulemaking is not feasible or

 7  not practicable. This subparagraph does not preclude

 8  application of adopted rules and applicable statutes to the

 9  facts unadopted rule is subject to de novo review by an

10  administrative law judge.

11         2.  The agency action shall not be presumed valid or

12  invalid.  The agency must demonstrate that the unadopted rule:

13         a.  Is within the powers, functions, and duties

14  delegated by the Legislature or, if the agency is operating

15  pursuant to authority derived from the State Constitution, is

16  within that authority;

17         b.  Does not enlarge, modify, or contravene the

18  specific provisions of law implemented;

19         c.  Is not vague, establishes adequate standards for

20  agency decisions, or does not vest unbridled discretion in the

21  agency;

22         d.  Is not arbitrary or capricious. A rule is arbitrary

23  if it is not supported by logic or the necessary facts; a rule

24  is capricious if it is adopted without thought or reason or is

25  irrational;

26         e.  Is not being applied to the substantially affected

27  party without due notice; and

28         f.  Does not impose excessive regulatory costs on the

29  regulated person, county, or city.

30         2.3.  The recommended and final orders in any

31  proceeding shall be governed by the provisions of paragraphs

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 1  (k) and (l), except that the administrative law judge's

 2  determination regarding the unadopted rule shall not be

 3  rejected by the agency unless the agency first determines from

 4  a review of the complete record, and states with particularity

 5  in the order, that such determination is clearly erroneous or

 6  does not comply with essential requirements of law.  In any

 7  proceeding for review under s. 120.68, if the court finds that

 8  the agency's rejection of the determination regarding the

 9  unadopted rule does not comport with the provisions of this

10  subparagraph, the agency action shall be set aside and the

11  court shall award to the prevailing party the reasonable costs

12  and a reasonable attorney's fee for the initial proceeding and

13  the proceeding for review.

14         Section 6.  Effective January 1, 2008, subsections (2)

15  and (3) and paragraph (a) of subsection (4) of section

16  120.595, Florida Statutes, are amended to read:

17         120.595  Attorney's fees.--

18         (2)  CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO

19  SECTION 120.56(2).--If the court or administrative law judge

20  declares a proposed rule or portion of a proposed rule invalid

21  pursuant to s. 120.56(2), a judgment or order shall be

22  rendered against the agency for reasonable costs and

23  reasonable attorney's fees, unless the agency demonstrates

24  that its actions were substantially justified or special

25  circumstances exist which would make the award unjust.  An

26  agency's actions are "substantially justified" if there was a

27  reasonable basis in law and fact at the time the actions were

28  taken by the agency.  If the agency prevails in the

29  proceedings, the court or administrative law judge shall award

30  reasonable costs and reasonable attorney's fees against a

31  party if the court or administrative law judge determines that

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 1  a party participated in the proceedings for an improper

 2  purpose as defined by paragraph (1)(e). No award of attorney's

 3  fees as provided by this subsection shall exceed $15,000.

 4         (3)  CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO

 5  SECTION 120.56(3).--If the court or administrative law judge

 6  declares a rule or portion of a rule invalid pursuant to s.

 7  120.56(3), a judgment or order shall be rendered against the

 8  agency for reasonable costs and reasonable attorney's fees,

 9  unless the agency demonstrates that its actions were

10  substantially justified or special circumstances exist which

11  would make the award unjust. An agency's actions are

12  "substantially justified" if there was a reasonable basis in

13  law and fact at the time the actions were taken by the agency.

14  If the agency prevails in the proceedings, the court or

15  administrative law judge shall award reasonable costs and

16  reasonable attorney's fees against a party if the court or

17  administrative law judge determines that a party participated

18  in the proceedings for an improper purpose as defined by

19  paragraph (1)(e). No award of attorney's fees as provided by

20  this subsection shall exceed $15,000.

21         (4)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

22  120.56(4).--

23         (a)  A judgment or final order shall be rendered

24  against the agency for Upon entry of a final order that all or

25  part of an agency statement violates s. 120.54(1)(a), the

26  administrative law judge shall award reasonable costs and

27  reasonable attorney's fees for a proceeding under s. 120.56(4)

28  to the petitioner, unless:

29         1.  The proceeding is dismissed;

30  

31  

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 1         2.  The judgment or final order contains a

 2  determination that the petitioner failed to prove that the

 3  statement constituted a rule under s. 120.52;

 4         3.  The judgment or final order contains a

 5  determination that rulemaking is not feasible or not

 6  practicable under s. 120.54(1)(a); or

 7         4.  The agency demonstrates that the statement is

 8  required by the Federal Government to implement or retain a

 9  delegated or approved program or to meet a condition to

10  receipt of federal funds.

11  

12  If the agency prevails in the proceedings, the court or

13  administrative law judge shall award reasonable costs and

14  reasonable attorney's fees against a party if the court or

15  administrative law judge determines that the party

16  participated in the proceedings for an improper purpose as

17  defined in paragraph (1)(e).

18         Section 7.  Paragraph (a) of subsection (1) of section

19  120.55, Florida Statutes, is amended to read:

20         120.55  Publication.--

21         (1)  The Department of State shall:

22         (a)1.  Through a continuous revision system, compile

23  and publish the "Florida Administrative Code." The Florida

24  Administrative Code shall contain all rules adopted by each

25  agency, citing the specific rulemaking authority pursuant to

26  which each rule was adopted, all history notes as authorized

27  in s. 120.545(8) s. 120.545(9), and complete indexes to all

28  rules contained in the code. Supplementation shall be made as

29  often as practicable, but at least monthly.  The department

30  may contract with a publishing firm for the publication, in a

31  timely and useful form, of the Florida Administrative Code;

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 1  however, the department shall retain responsibility for the

 2  code as provided in this section.  This publication shall be

 3  the official compilation of the administrative rules of this

 4  state. The Department of State shall retain the copyright over

 5  the Florida Administrative Code.

 6         2.  Rules general in form but applicable to only one

 7  school district, community college district, or county, or a

 8  part thereof, or state university rules relating to internal

 9  personnel or business and finance shall not be published in

10  the Florida Administrative Code. Exclusion from publication in

11  the Florida Administrative Code shall not affect the validity

12  or effectiveness of such rules.

13         3.  At the beginning of the section of the code dealing

14  with an agency that files copies of its rules with the

15  department, the department shall publish the address and

16  telephone number of the executive offices of each agency, the

17  manner by which the agency indexes its rules, a listing of all

18  rules of that agency excluded from publication in the code,

19  and a statement as to where those rules may be inspected.

20         4.  Forms shall not be published in the Florida

21  Administrative Code; but any form which an agency uses in its

22  dealings with the public, along with any accompanying

23  instructions, shall be filed with the committee before it is

24  used. Any form or instruction which meets the definition of

25  "rule" provided in s. 120.52 shall be incorporated by

26  reference into the appropriate rule.  The reference shall

27  specifically state that the form is being incorporated by

28  reference and shall include the number, title, and effective

29  date of the form and an explanation of how the form may be

30  obtained.

31  

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 1         Section 8.  Effective December 31, 2007, paragraph (a)

 2  of subsection (1) of section 120.55, Florida Statutes, as

 3  amended by section 4 of chapter 2006-82, Florida Statutes, is

 4  amended to read:

 5         120.55  Publication.--

 6         (1)  The Department of State shall:

 7         (a)1.  Through a continuous revision system, compile

 8  and publish the "Florida Administrative Code." The Florida

 9  Administrative Code shall contain all rules adopted by each

10  agency, citing the specific rulemaking authority pursuant to

11  which each rule was adopted, all history notes as authorized

12  in s. 120.545(8) s. 120.545(9), and complete indexes to all

13  rules contained in the code. Supplementation shall be made as

14  often as practicable, but at least monthly.  The department

15  may contract with a publishing firm for the publication, in a

16  timely and useful form, of the Florida Administrative Code;

17  however, the department shall retain responsibility for the

18  code as provided in this section.  This publication shall be

19  the official compilation of the administrative rules of this

20  state. The Department of State shall retain the copyright over

21  the Florida Administrative Code.

22         2.  Rules general in form but applicable to only one

23  school district, community college district, or county, or a

24  part thereof, or state university rules relating to internal

25  personnel or business and finance shall not be published in

26  the Florida Administrative Code. Exclusion from publication in

27  the Florida Administrative Code shall not affect the validity

28  or effectiveness of such rules.

29         3.  At the beginning of the section of the code dealing

30  with an agency that files copies of its rules with the

31  department, the department shall publish the address and

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    Florida Senate - 2007                                  SB 1592
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 1  telephone number of the executive offices of each agency, the

 2  manner by which the agency indexes its rules, a listing of all

 3  rules of that agency excluded from publication in the code,

 4  and a statement as to where those rules may be inspected.

 5         4.  Forms shall not be published in the Florida

 6  Administrative Code; but any form which an agency uses in its

 7  dealings with the public, along with any accompanying

 8  instructions, shall be filed with the committee before it is

 9  used. Any form or instruction which meets the definition of

10  "rule" provided in s. 120.52 shall be incorporated by

11  reference into the appropriate rule.  The reference shall

12  specifically state that the form is being incorporated by

13  reference and shall include the number, title, and effective

14  date of the form and an explanation of how the form may be

15  obtained. Each form created by an agency which is incorporated

16  by reference in a rule notice of which is given under s.

17  120.54(3)(a) after December 31, 2007, must clearly display the

18  number, title, and effective date of the form and the number

19  of the rule in which the form is incorporated.

20         Section 9.  Except as otherwise expressly provided in

21  this act, this act shall take effect July 1, 2007.

22  

23            *****************************************

24                          SENATE SUMMARY

25    Revises a variety of statutes dealing with unadopted
      rules and rule adoption, including petitions to initiate
26    rulemaking, Administrative Procedures Committee review of
      rules and agency actions with respect thereto, and
27    challenges to agency statements and consequences of such
      challenges. (See bill for details.)
28  

29  

30  

31  

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