Senate Bill sb1592c1

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    Florida Senate - 2007                           CS for SB 1592

    By the Committee on Judiciary; and Senator Bennett





    590-2504-07

  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         prohibiting any agency from delegating

  6         responsibilities to conduct a public hearing;

  7         revising dates for filing rules for adoption;

  8         revising provisions with respect to petitions

  9         to initiate rulemaking; amending s. 120.545,

10         F.S.; revising duties of the Administrative

11         Procedures Committee and agencies with respect

12         to review of agency rules; providing for a

13         legislative committee to request agency

14         information for examination of an unadopted

15         rule; prescribing responses that may be made by

16         an agency to a committee objection to a rule or

17         statement of estimated regulatory costs;

18         prescribing presumptions resulting from an

19         agency's refusal to respond to committee

20         objections; amending s. 120.56, F.S.; revising

21         notice requirements with respect to challenges

22         of proposed rules; requiring an agency to

23         discontinue reliance on a statement when an

24         administrative determination is sought with

25         respect to the statement; allowing continued

26         reliance on a statement when an administrative

27         law judge determines that the inability to rely

28         on it would constitute an immediate danger;

29         deleting certain provisions relating to actions

30         before a final hearing is held; amending s.

31         120.57, F.S.; prescribing procedures with

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 1         respect to challenges to unadopted rules;

 2         amending s. 120.595, F.S.; increasing maximum

 3         attorney's fees; revising guidelines for award

 4         of attorney's fees in challenges to agency

 5         action; providing for attorney's fees and costs

 6         in certain circumstances; amending s. 120.55,

 7         F.S.; conforming a cross-reference; providing

 8         effective dates.

 9  

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

11  

12         Section 1.  This act may be cited as the "Open

13  Government Act."

14         Section 2.  Present subsections (18) and (19) of

15  section 120.52, Florida Statutes, are renumbered as

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

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

18         120.52  Definitions.--As used in this act:

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

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

21  pursuant to the requirements of s. 120.54.

22         Section 3.  Paragraphs (c) and (e) of subsection (3)

23  and subsection (7) of section 120.54, Florida Statutes, are

24  amended to read:

25         120.54  Rulemaking.--

26         (3)  ADOPTION PROCEDURES.--

27         (c)  Hearings.--

28         1.  If the intended action concerns any rule other than

29  one relating exclusively to procedure or practice, the agency

30  shall, on the request of any affected person received within

31  21 days after the date of publication of the notice of

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 1  intended agency action, give affected persons an opportunity

 2  to present evidence and argument on all issues under

 3  consideration. The agency may schedule a public hearing on the

 4  rule and, if requested by any affected person, shall schedule

 5  a public hearing on the rule. If the agency head is a board or

 6  other collegial body, other than one comprised of the Governor

 7  and Cabinet, the board or other collegial body shall conduct

 8  the requested public hearing itself and may not delegate this

 9  responsibility without the consent of the persons requesting

10  the public hearing. Any material pertinent to the issues under

11  consideration submitted to the agency within 21 days after the

12  date of publication of the notice or submitted at a public

13  hearing shall be considered by the agency and made a part of

14  the record of the rulemaking proceeding.

15         2.  Rulemaking proceedings shall be governed solely by

16  the provisions of this section unless a person timely asserts

17  that the person's substantial interests will be affected in

18  the proceeding and affirmatively demonstrates to the agency

19  that the proceeding does not provide adequate opportunity to

20  protect those interests. If the agency determines that the

21  rulemaking proceeding is not adequate to protect the person's

22  interests, it shall suspend the rulemaking proceeding and

23  convene a separate proceeding under the provisions of ss.

24  120.569 and 120.57. Similarly situated persons may be

25  requested to join and participate in the separate proceeding.

26  Upon conclusion of the separate proceeding, the rulemaking

27  proceeding shall be resumed.

28         (e)  Filing for final adoption; effective date.--

29         1.  If the adopting agency is required to publish its

30  rules in the Florida Administrative Code, it shall file with

31  the Department of State three certified copies of the rule it

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 1  proposes to adopt, a summary of the rule, a summary of any

 2  hearings held on the rule, and a detailed written statement of

 3  the facts and circumstances justifying the rule. Agencies not

 4  required to publish their rules in the Florida Administrative

 5  Code shall file one certified copy of the proposed rule, and

 6  the other material required by this subparagraph, in the

 7  office of the agency head, and such rules shall be open to the

 8  public.

 9         2.  A rule may not be filed for adoption less than 28

10  days or more than 90 days after the notice required by

11  paragraph (a), until 21 days after the notice of change

12  required by paragraph (d), until 14 days after the final

13  public hearing, until 21 days after preparation of a statement

14  of estimated regulatory costs required under s. 120.541 has

15  been provided to all persons who submitted a lower cost

16  regulatory alternative and made available to the public, or

17  until the administrative law judge has rendered a decision

18  under s. 120.56(2), whichever applies. When a required notice

19  of change is published prior to the expiration of the time to

20  file the rule for adoption, the period during which a rule

21  must be filed for adoption is extended to 45 days after the

22  date of publication. If notice of a public hearing is

23  published prior to the expiration of the time to file the rule

24  for adoption, the period during which a rule must be filed for

25  adoption is extended to 45 days after adjournment of the final

26  hearing on the rule, 21 days after receipt of all material

27  authorized to be submitted at the hearing, or 21 days after

28  receipt of the transcript, if one is made, whichever is

29  latest. The term "public hearing" includes any public meeting

30  held by any agency at which the rule is considered. If a

31  petition for an administrative determination under s.

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 1  120.56(2) is filed, the period during which a rule must be

 2  filed for adoption is extended to 60 days after the

 3  administrative law judge files the final order with the clerk

 4  or until 60 days after subsequent judicial review is complete.

 5         3.  At the time a rule is filed, the agency shall

 6  certify that the time limitations prescribed by this paragraph

 7  have been complied with, that all statutory rulemaking

 8  requirements have been met, and that there is no

 9  administrative determination pending on the rule.

10         4.  At the time a rule is filed, the committee shall

11  certify whether the agency has responded in writing to all

12  material and timely written comments or written inquiries made

13  on behalf of the committee. The department shall reject any

14  rule not filed within the prescribed time limits; that does

15  not satisfy all statutory rulemaking requirements; upon which

16  an agency has not responded in writing to all material and

17  timely written inquiries or written comments; upon which an

18  administrative determination is pending; or which does not

19  include a statement of estimated regulatory costs, if

20  required.

21         5.  If a rule has not been adopted within the time

22  limits imposed by this paragraph or has not been adopted in

23  compliance with all statutory rulemaking requirements, the

24  agency proposing the rule shall withdraw the rule and give

25  notice of its action in the next available issue of the

26  Florida Administrative Weekly.

27         6.  The proposed rule shall be adopted on being filed

28  with the Department of State and become effective 20 days

29  after being filed, on a later date specified in the rule, or

30  on a date required by statute. Rules not required to be filed

31  with the Department of State shall become effective when

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 1  adopted by the agency head or on a later date specified by

 2  rule or statute. If the committee notifies an agency that an

 3  objection to a rule is being considered, the agency may

 4  postpone the adoption of the rule to accommodate review of the

 5  rule by the committee.  When an agency postpones adoption of a

 6  rule to accommodate review by the committee, the 90-day period

 7  for filing the rule is tolled until the committee notifies the

 8  agency that it has completed its review of the rule.

 9  

10  For the purposes of this paragraph, the term "administrative

11  determination" does not include subsequent judicial review.

12         (7)  PETITION TO INITIATE RULEMAKING.--

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

14  substantial interest in an agency rule may petition an agency

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

16  public information required by this chapter. The petition

17  shall specify the proposed rule and action requested. Not

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

19  petition, the agency shall initiate rulemaking proceedings

20  under this chapter, otherwise comply with the requested

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

22  reasons for the denial.

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

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

25  by the rulemaking procedures or requirements set forth in this

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

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

28  notice in the Florida Administrative Weekly that the agency

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

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

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

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

 2  procedures or requirements of this chapter, its scope and

 3  application, and to consider whether the public interest is

 4  served adequately by the application of the rule on a

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

 6  rulemaking procedures or requirements set forth in this

 7  chapter.

 8         (c)  Within 30 days following the public hearing

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

10  rulemaking or otherwise comply with the requested action, the

11  agency shall publish in the Florida Administrative Weekly a

12  statement of its reasons for not initiating rulemaking or

13  otherwise complying with the requested action, and of any

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

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

16  committee.  The committee shall forward a copy of the

17  statement to the substantive committee with primary oversight

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

19  The committee or the committee with primary oversight

20  jurisdiction may hold a hearing directed to the statement of

21  the agency.  The committee holding the hearing may recommend

22  to the Legislature the introduction of legislation making the

23  rule a statutory standard or limiting or otherwise modifying

24  the authority of the agency.

25         Section 4.  Section 120.545, Florida Statutes, is

26  amended to read:

27         120.545  Committee review of agency rules.--

28         (1)  As a legislative check on legislatively created

29  authority, the committee shall examine each proposed rule,

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

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

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

 2  determining whether:

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

 4  legislative authority.

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

 6  repealed.

 7         (c)  The rule reiterates or paraphrases statutory

 8  material.

 9         (d)  The rule is in proper form.

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

11  sufficient to give adequate notice of the purpose and effect

12  of the rule.

13         (f)  The rule is consistent with expressed legislative

14  intent pertaining to the specific provisions of law which the

15  rule implements.

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

17  or expressed objectives of the specific provision of law which

18  the rule implements.

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

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

21  particularly affected by the rule.

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

23  comprehensible to the general public.

24         (j)  The rule's statement of estimated regulatory costs

25  complies with the requirements of s. 120.541 and the rule does

26  not impose regulatory costs on the regulated person, county,

27  or city which could be reduced by the adoption of less costly

28  alternatives that substantially accomplish the statutory

29  objectives.

30         (k)  The rule will require additional appropriations.

31  

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 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 shall include a copy of

20  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

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 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

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 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  

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

 2  Administrative Weekly.

 3         (4)(7)  Failure of the agency to respond to a committee

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

 5  the time prescribed in subsection (3) constitutes shall

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

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

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

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

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

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

12  issue of the Florida Administrative Weekly. Upon publication

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

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

15         (5)(8)  Failure of the agency to respond to a committee

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

17  time prescribed in subsection (3) constitutes shall constitute

18  a refusal to amend or repeal the rule.

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

20  objection to a statement of estimated regulatory costs within

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

22  prepare a corrected statement of estimated regulatory costs.

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

24  objection to an unadopted rule within the time prescribed in

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

26  refusal to abandon all reliance upon the statement or any

27  substantially similar statement as a basis for agency action.

28         (8)(9)  If the committee objects to a proposed or

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

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

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

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 1  objection, detailing with particularity its objection to the

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

 3  the Florida Administrative Weekly. If the rule is published

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

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

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

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

 8         (9)(10)(a)  If the committee objects to a proposed or

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

10  initiate administrative action to adopt, abandon, modify,

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

12  objection within 60 days after the objection, or thereafter

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

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

15  Speaker of the House of Representatives a recommendation that

16  legislation be introduced to address the committee objection

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

18  or repeal the rule, or portion thereof.

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

20  introduction of legislation to address the committee objection

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

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

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

24  proposed rule has been examined. The committee may request

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

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

27  the statement or any substantially similar statement as a

28  basis for agency action, pending consideration of proposed

29  legislation during the next regular session of the

30  Legislature.

31  

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

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

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

 4  a collegial body, the agency shall either:

 5         a.  Temporarily suspend the rule, or 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; or

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

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

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

12  any substantially similar statement as a basis for agency

13  action.

14         3.  If the agency elects to temporarily suspend the

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

16  all reliance upon the statement or any substantially similar

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

18  of the suspension in the Florida Administrative Weekly.  The

19  rule or the rule adoption process shall be suspended upon

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

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

22  or suspended statement or any substantially similar statement,

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

24  suspended rule, or suspended proposed rule, or suspended

25  statement or any substantially similar statement, or portion

26  thereof, continues to be subject to administrative

27  determination and judicial review as provided by law.

28         4.  Failure of an agency to respond to committee

29  certification within the time prescribed by subparagraph 2.

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

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

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 1  the statement or any substantially similar statement as a

 2  basis for agency action.

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

 4  committee objection modify or suspend the adoption of the

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

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

 7  Representatives for prefiling and introduction in the next

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

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

10  the House of Representatives with the committee

11  recommendation.

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

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

14  the proposed rule is suspended until specific delegated

15  legislative authority for the proposed rule has been enacted.

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

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

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

19  is enacted into law, the suspension shall expire upon

20  publication of notice of modification or amendment in the

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

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

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

24  Administrative Weekly.

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

26  available issue of the Florida Administrative Weekly the final

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

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

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

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

31  

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 1  provisions of the law in the Florida Administrative Code and

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

 3         Section 5.  Paragraph (a) of subsection (2) and,

 4  effective January 1, 2008, subsection (4) of section 120.56,

 5  Florida Statutes, is amended to read:

 6         120.56  Challenges to rules.--

 7         (2)  CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--

 8         (a)  Any substantially affected person may seek an

 9  administrative determination of the invalidity of any proposed

10  rule by filing a petition seeking such a determination with

11  the division within 21 days after the date of publication of

12  the notice required by s. 120.54(3)(a), within 10 days after

13  the final public hearing is held on the proposed rule as

14  provided by s. 120.54(3)(e)2. s. 120.54(3)(c), within 20 days

15  after the preparation of a statement of estimated regulatory

16  costs required pursuant to s. 120.541, if applicable, has been

17  provided to all persons who submitted a lower cost regulatory

18  alternative and made available to the public or within 20 days

19  after the date of publication of the notice required by s.

20  120.54(3)(d). The petition shall state with particularity the

21  objections to the proposed rule and the reasons that the

22  proposed rule is an invalid exercise of delegated legislative

23  authority. The petitioner has the burden of going forward. The

24  agency then has the burden to prove by a preponderance of the

25  evidence that the proposed rule is not an invalid exercise of

26  delegated legislative authority as to the objections raised.

27  Any person who is substantially affected by a change in the

28  proposed rule may seek a determination of the validity of such

29  change.  Any person not substantially affected by the proposed

30  rule as initially noticed, but who is substantially affected

31  by the rule as a result of a change, may challenge any

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 1  provision of the rule and is not limited to challenging the

 2  change to the proposed rule.

 3         (4)  CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;

 4  SPECIAL PROVISIONS.--

 5         (a)  Any person substantially affected by an agency

 6  statement may seek an administrative determination that the

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

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

 9  statement and shall state with particularity facts sufficient

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

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

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

13  a petition for an administrative determination under this

14  subsection, the agency shall immediately discontinue all

15  reliance upon the statement or any substantially similar

16  statement as a basis for agency action until:

17         1.  The proceeding is dismissed for any reason other

18  than initiation of rulemaking under s. 120.54;

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

20  rule;

21         3.  A final order is issued which contains a

22  determination that the petitioner failed to prove that the

23  statement constitutes a rule under s. 120.52; or

24         4.  A final order is issued which contains a

25  determination that rulemaking is not feasible under s.

26  120.54(1)(a)1.a. or b. or not practicable under s.

27  120.54(1)(a)2.

28         (b)  If the administrative law judge determines that

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

30  proceeding under this subsection would constitute an immediate

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

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 1  administrative law judge shall grant an agency petition to

 2  allow application of the statement until the proceeding is

 3  concluded.

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

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

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

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

 8  of proving that rulemaking is not feasible or not and

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

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

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

12  The decision of the administrative law judge shall constitute

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

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

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

16  the first available issue of the Florida Administrative

17  Weekly.

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

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

20  120.54(1)(a), the agency shall immediately discontinue all

21  reliance upon the statement or any substantially similar

22  statement as a basis for agency action.

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

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

25  120.54(1)(a), an agency publishes, pursuant to s.

26  120.54(3)(a), proposed rules that address the statement, then

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

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

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

30  permitted to rely upon the statement or a substantially

31  

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 1  similar statement as a basis for agency action if the

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

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

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

 5  an agency publishes a notice of rule development which

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

 7  that such a notice has been transmitted to the Florida

 8  Administrative Weekly for publication, then such publication

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

10  proceedings and a continuance of the final hearing for 30

11  days. If the agency publishes proposed rules within this

12  30-day period or any extension of that period granted by an

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

14  administrative law judge shall place the case in abeyance

15  pending the outcome of rulemaking and any proceedings

16  involving challenges to proposed rules pursuant to subsection

17  (2).

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

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

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

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

22  address the statement and proceeds expeditiously and in good

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

24  shall be permitted to rely upon the statement or a

25  substantially similar statement as a basis for agency action

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

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

28  statement within 180 days after publishing proposed rules, for

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

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

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

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

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

 3         5.  If the proposed rules addressing the challenged

 4  statement are determined to be an invalid exercise of

 5  delegated legislative authority as defined in s.

 6  120.52(8)(b)-(f), the agency must immediately discontinue

 7  reliance on the statement and any substantially similar

 8  statement until the rules addressing the subject are properly

 9  adopted.

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

11  120.54(1)(a) shall be brought pursuant to this subsection. A

12  proceeding pursuant to this subsection may be consolidated

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

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

15  construed to prevent a party whose substantial interests have

16  been determined by an agency action from bringing a proceeding

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

18         Section 6.  Effective January 1, 2008, paragraph (e) of

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

20  to read:

21         120.57  Additional procedures for particular cases.--

22         (1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS

23  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--

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

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

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

27  an agency nor an administrative law judge has authority to

28  enforce agency policy that constitutes an unadopted rule when

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

30  not practicable. This subparagraph does not preclude

31  application of adopted rules and applicable statutes to the

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

 2  administrative law judge.

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

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

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

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

 7  pursuant to authority derived from the State Constitution, is

 8  within that authority;

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

10  specific provisions of law implemented;

11         c.  Is not vague, establishes adequate standards for

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

13  agency;

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

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

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

17  irrational;

18         e.  Is not being applied to the substantially affected

19  party without due notice; and

20         f.  Does not impose excessive regulatory costs on the

21  regulated person, county, or city.

22         2.3.  The recommended and final orders in any

23  proceeding shall be governed by the provisions of paragraphs

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

25  determination regarding the unadopted rule shall not be

26  rejected by the agency unless the agency first determines from

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

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

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

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

31  the agency's rejection of the determination regarding the

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 1  unadopted rule does not comport with the provisions of this

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

 3  court shall award to the prevailing party the reasonable costs

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

 5  the proceeding for review.

 6         Section 7.  Effective January 1, 2008, subsections (2),

 7  (3), and (4) of section 120.595, Florida Statutes, are amended

 8  to read:

 9         120.595  Attorney's fees.--

10         (2)  CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO

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

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

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

14  rendered against the agency for reasonable costs and

15  reasonable attorney's fees, unless the agency demonstrates

16  that its actions were substantially justified or special

17  circumstances exist which would make the award unjust.  An

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

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

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

21  proceedings, the court or administrative law judge shall award

22  reasonable costs and reasonable attorney's fees against a

23  party if the court or administrative law judge determines that

24  a party participated in the proceedings for an improper

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

26  fees as provided by this subsection shall exceed $50,000

27  $15,000.

28         (3)  CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO

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

30  judge declares a rule or portion of a rule invalid pursuant to

31  s. 120.56(3) or s. 120.56(5), a judgment or order shall be

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 1  rendered against the agency for reasonable costs and

 2  reasonable attorney's fees, unless the agency demonstrates

 3  that its actions were substantially justified or special

 4  circumstances exist which would make the award unjust. An

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

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

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

 8  proceedings, the court or administrative law judge shall award

 9  reasonable costs and reasonable attorney's fees against a

10  party if the court or administrative law judge determines that

11  a party participated in the proceedings for an improper

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

13  fees as provided by this subsection shall exceed $50,000

14  $15,000.

15         (4)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

16  120.56(4).--

17         (a)  Upon entry of a final order that all or part of an

18  agency statement violates s. 120.54(1)(a), the administrative

19  law judge shall award reasonable costs and reasonable

20  attorney's fees to the petitioner, unless the agency

21  demonstrates that the statement is required by the Federal

22  Government to implement or retain a delegated or approved

23  program or to meet a condition to receipt of federal funds.

24         (b)  If the agency initiates rulemaking under s. 120.54

25  during a rule challenge under s. 120.56(4) and the statement

26  is adopted and becomes effective as a rule, the administrative

27  law judge shall award reasonable costs and reasonable

28  attorney's fees accrued to the date the agency initiated

29  rulemaking upon a finding that the agency knew or should have

30  known that the agency statement was an unadopted rule. The

31  administrative law judge may consider, among other factors,

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 1  whether or not the petitioner or other person had requested or

 2  formally petitioned the agency to adopt the statement as a

 3  rule prior to the filing of the s. 120.56(4) challenge.

 4         (c)(b)  Notwithstanding the provisions of chapter 284,

 5  an award shall be paid from the budget entity of the

 6  secretary, executive director, or equivalent administrative

 7  officer of the agency, and the agency shall not be entitled to

 8  payment of an award or reimbursement for payment of an award

 9  under any provision of law.

10         (d)  If the agency prevails in the proceedings, the

11  court or administrative law judge shall award reasonable costs

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

13  administrative law judge determines that the party

14  participated in the proceedings for an improper purpose as

15  defined in paragraph (1)(e).

16         Section 8.  Paragraph (a) of subsection (1) of section

17  120.55, Florida Statutes, is amended to read:

18         120.55  Publication.--

19         (1)  The Department of State shall:

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

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

22  Administrative Code shall contain all rules adopted by each

23  agency, citing the specific rulemaking authority pursuant to

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

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

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

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

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

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

30  however, the department shall retain responsibility for the

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

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 1  the official compilation of the administrative rules of this

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

 3  the Florida Administrative Code.

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

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

 6  part thereof, or state university rules relating to internal

 7  personnel or business and finance shall not be published in

 8  the Florida Administrative Code. Exclusion from publication in

 9  the Florida Administrative Code shall not affect the validity

10  or effectiveness of such rules.

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

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

13  department, the department shall publish the address and

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

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

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

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

18         4.  Forms shall not be published in the Florida

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

20  dealings with the public, along with any accompanying

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

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

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

24  reference into the appropriate rule.  The reference shall

25  specifically state that the form is being incorporated by

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

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

28  obtained.

29         Section 9.  Effective December 31, 2007, paragraph (a)

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

31  

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 1  amended by section 4 of chapter 2006-82, Laws of Florida, is

 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

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 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. Each form created by an agency which is incorporated

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

15  120.54(3)(a) after December 31, 2007, must clearly display the

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

17  of the rule in which the form is incorporated.

18         Section 10.  Except as otherwise expressly provided in

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

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                             SB 1592

 3                                 

 4  The committee substitute:

 5  --   Creates a short title, providing that the act may be
         cited as the "Open Government Act."
 6  
    --   Reinstates a provision of existing law, deleted by the
 7       bill, which provides that rulemaking is presumed feasible
         unless the agency establishes that it is currently using
 8       the rulemaking procedure expeditiously and in good faith.

 9  --   Provides that if an agency head is a board or other
         collegial body, other than one comprised of the Governor
10       and Cabinet, then the agency head may not delegate the
         responsibility to conduct requested public hearings.
11  
    --   Provides that a statement of estimated regulatory costs
12       be provided to the public and all persons who submitted a
         lower cost regulatory alternative.
13  
    --   Authorizes the Joint Administrative Procedures Committee
14       to examine whether a rule's statement of estimated
         regulatory costs complies with statutory requirements.
15  
    --   Reinstates and raises the cap on attorney's fees, which
16       was deleted by the bill, by establishing that an award of
         attorney's fees shall not exceed $50,000.
17  
    --   Reinstates a provision of existing law, deleted by the
18       bill, which provides that an administrative law judge
         must award reasonable attorney's fees and costs to the
19       petitioner upon entry of a final order that an agency
         statement is an unadopted rule, unless the agency
20       demonstrates that the statement is required by the
         Federal Government.
21  
    --   Provides an award of attorney's fees to the petitioner in
22       an unadopted rule challenge, even if the agency initiates
         rulemaking during the rule challenge and the statement is
23       later adopted and becomes effective as a rule, as long as
         the agency knew or should have known that the agency
24       statement was an unadopted rule.

25  

26  

27  

28  

29  

30  

31  

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