Senate Bill sb1594c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2007                           CS for SB 1594

    By the Committee on Judiciary; and Senator Bennett





    590-2610-07

  1                      A bill to be entitled

  2         An act relating to rules and rulemaking;

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

  4         "invalid exercise of delegated legislative

  5         authority"; defining the terms "law

  6         implemented" and "rulemaking authority";

  7         amending s. 120.536, F.S.; revising guidelines

  8         for the construction of statutory language

  9         granting rulemaking authority; amending s.

10         120.54, F.S.; prescribing limits and guidelines

11         with respect to incorporation of material by

12         reference; prescribing requirements for

13         materials being incorporated by reference;

14         providing for rules; revising information to be

15         included in notices of proposed actions;

16         requiring that specified rulemaking

17         responsibilities of an agency head, including

18         those relating to conducting a public hearing,

19         may not be delegated or transferred; amending

20         s. 120.545, F.S.; authorizing the

21         Administrative Procedures Committee to request

22         from agencies information to examine unadopted

23         agency statements; amending s. 120.55, F.S.;

24         requiring electronic publication of the Florida

25         Administrative Code; prescribing requirements

26         with respect to content of such electronic

27         publication; providing for filing information

28         incorporated by reference in electronic form;

29         amending s. 120.569, F.S.; requiring that

30         certain administrative proceedings be

31         terminated and subsequently reinstated under

                                  1

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1         different provisions of state law if a disputed

 2         issue of material fact arises during such a

 3         proceeding; providing for the waiver of such

 4         termination; revising a cross-reference;

 5         amending s. 120.595, F.S.; providing for

 6         attorney's fees and costs in certain

 7         circumstances; amending s. 120.74, F.S.;

 8         revising reporting requirements for agency

 9         heads; providing effective dates.

10  

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

12  

13         Section 1.  Subsection (8) of section 120.52, Florida

14  Statutes, is amended, present subsections (9) through (15) of

15  that section are renumbered as subsections (10) through (16),

16  respectively, present subsections (16) through (19) of that

17  section are renumbered  as subsections (18) through (21),

18  respectively, and new subsections (9) and (17) are added to

19  that section, to read:

20         120.52  Definitions.--As used in this act:

21         (8)  "Invalid exercise of delegated legislative

22  authority" means action that which goes beyond the powers,

23  functions, and duties delegated by the Legislature. A proposed

24  or existing rule is an invalid exercise of delegated

25  legislative authority if any one of the following applies:

26         (a)  The agency has materially failed to follow the

27  applicable rulemaking procedures or requirements set forth in

28  this chapter;

29         (b)  The agency has exceeded its grant of rulemaking

30  authority, citation to which is required by s. 120.54(3)(a)1.;

31  

                                  2

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1         (c)  The rule enlarges, modifies, or contravenes the

 2  specific provisions of law implemented, citation to which is

 3  required by s. 120.54(3)(a)1.;

 4         (d)  The rule is vague, fails to establish adequate

 5  standards for agency decisions, or vests unbridled discretion

 6  in the agency;

 7         (e)  The rule is arbitrary or capricious. A rule is

 8  arbitrary if it is not supported by logic or the necessary

 9  facts; a rule is capricious if it is adopted without thought

10  or reason or is irrational; or

11         (f)  The rule imposes regulatory costs on the regulated

12  person, county, or city which could be reduced by the adoption

13  of less costly alternatives that substantially accomplish the

14  statutory objectives.

15  

16  A grant of rulemaking authority is necessary but not

17  sufficient to allow an agency to adopt a rule; a specific law

18  to be implemented is also required. An agency may adopt only

19  rules that implement or interpret the specific powers and

20  duties granted by the enabling statute. No agency shall have

21  authority to adopt a rule only because it is reasonably

22  related to the purpose of the enabling legislation and is not

23  arbitrary and capricious or is within the agency's class of

24  powers and duties, nor shall an agency have the authority to

25  implement statutory provisions setting forth general

26  legislative intent or policy. Statutory language granting

27  rulemaking authority or generally describing the powers and

28  functions of an agency shall be construed to extend no further

29  than implementing or interpreting the specific powers and

30  duties conferred by the same statute.

31  

                                  3

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1         (9)  "Law implemented" means the statutory language

 2  being carried out or interpreted by an agency through

 3  rulemaking.

 4         (17)  "Rulemaking authority" means statutory language

 5  that explicitly authorizes or requires an agency to adopt,

 6  develop, establish, or otherwise create any statement coming

 7  within the definition of "rule."

 8         Section 2.  Subsection (1) of section 120.536, Florida

 9  Statutes, is amended to read:

10         120.536  Rulemaking authority; repeal; challenge.--

11         (1)  A grant of rulemaking authority is necessary but

12  not sufficient to allow an agency to adopt a rule; a specific

13  law to be implemented is also required. An agency may adopt

14  only rules that implement or interpret the specific powers and

15  duties granted by the enabling statute. No agency shall have

16  authority to adopt a rule only because it is reasonably

17  related to the purpose of the enabling legislation and is not

18  arbitrary and capricious or is within the agency's class of

19  powers and duties, nor shall an agency have the authority to

20  implement statutory provisions setting forth general

21  legislative intent or policy. Statutory language granting

22  rulemaking authority or generally describing the powers and

23  functions of an agency shall be construed to extend no further

24  than implementing or interpreting the specific powers and

25  duties conferred by the same statute.

26         Section 3.  Paragraph (i) of subsection (1), paragraphs

27  (a), (c), and (e) of subsection (3), and paragraph (a) of

28  subsection (4) of section 120.54, Florida Statutes, are

29  amended, and paragraph (k) is added to subsection (1) of that

30  section, to read:

31         120.54  Rulemaking.--

                                  4

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1         (1)  GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER

 2  THAN EMERGENCY RULES.--

 3         (i)1.  A rule may incorporate material by reference but

 4  only as the material exists on the date the rule is adopted.

 5  For purposes of the rule, changes in the material are not

 6  effective unless the rule is amended to incorporate the

 7  changes. Material incorporated by reference in a rule may not

 8  incorporate additional material by reference unless the rule

 9  specifically identifies the additional material.

10         2.  An agency rule that incorporates by specific

11  reference another rule of that agency automatically

12  incorporates subsequent amendments to the referenced rule,

13  unless a contrary intent is clearly indicated in the

14  referencing rule. Any notice of amendments to a rule that has

15  been incorporated by specific reference in other rules of that

16  agency must explain the effect of the amendments on the

17  referencing rules.

18         3.  In rules adopted after December 31, 2009, material

19  may not be incorporated by reference unless:

20         a.  The material has been submitted in the prescribed

21  electronic format to the Department of State and can be made

22  available for free public access through an electronic

23  hyperlink from the rule in the Florida Administrative Code

24  making the reference; or

25         b.  The agency has determined that posting the material

26  on the Internet for purposes of public examination and

27  inspection would constitute a violation of federal copyright

28  law, in which case a statement to that effect, along with the

29  address of locations at the Department of State and the agency

30  at which the material is available for public examination and

31  

                                  5

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1  inspection, is included in the notice required by subparagraph

 2  (3)(a)1.

 3         4.  A rule may not be amended by reference only.

 4  Amendments must set out the amended rule in full in the same

 5  manner as required by the State Constitution for laws. The

 6  Department of State may prescribe by rule requirements for

 7  incorporating materials by reference pursuant to this

 8  paragraph.

 9         5.2.  Notwithstanding any contrary provision in this

10  section, when an adopted rule of the Department of

11  Environmental Protection or a water management district is

12  incorporated by reference in the other agency's rule to

13  implement a provision of part IV of chapter 373, subsequent

14  amendments to the rule are not effective as to the

15  incorporating rule unless the agency incorporating by

16  reference notifies the committee and the Department of State

17  of its intent to adopt the subsequent amendment, publishes

18  notice of such intent in the Florida Administrative Weekly,

19  and files with the Department of State a copy of the amended

20  rule incorporated by reference. Changes in the rule

21  incorporated by reference are effective as to the other agency

22  20 days after the date of the published notice and filing with

23  the Department of State. The Department of State shall amend

24  the history note of the incorporating rule to show the

25  effective date of such change. Any substantially affected

26  person may, within 14 days after the date of publication of

27  the notice of intent in the Florida Administrative Weekly,

28  file an objection to rulemaking with the agency. The objection

29  shall specify the portions of the rule incorporated by

30  reference to which the person objects and the reasons for the

31  objection. The agency does shall not have the authority under

                                  6

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1  this subparagraph to adopt those portions of the rule

 2  specified in such objection. The agency shall publish notice

 3  of the objection and of its action in response in the next

 4  available issue of the Florida Administrative Weekly.

 5         6.  The Department of State may prescribe by rule

 6  requirements for incorporating materials pursuant to this

 7  paragraph.

 8         (k)  Rulemaking responsibilities of an agency head

 9  under subparagraph (3)(a)1., subparagraph (3)(e)1., or

10  subparagraph (3)(e)6. may not be delegated or transferred.

11         (3)  ADOPTION PROCEDURES.--

12         (a)  Notices.--

13         1.  Prior to the adoption, amendment, or repeal of any

14  rule other than an emergency rule, an agency, upon approval of

15  the agency head, shall give notice of its intended action,

16  setting forth a short, plain explanation of the purpose and

17  effect of the proposed action; the full text of the proposed

18  rule or amendment and a summary thereof; a reference to the

19  grant of specific rulemaking authority pursuant to which the

20  rule is adopted; and a reference to the section or subsection

21  of the Florida Statutes or the Laws of Florida being

22  implemented or, interpreted, or made specific. The notice must

23  shall include a summary of the agency's statement of the

24  estimated regulatory costs, if one has been prepared, based on

25  the factors set forth in s. 120.541(2), and a statement that

26  any person who wishes to provide the agency with information

27  regarding the statement of estimated regulatory costs, or to

28  provide a proposal for a lower cost regulatory alternative as

29  provided by s. 120.541(1), must do so in writing within 21

30  days after publication of the notice.  The notice must state

31  the procedure for requesting a public hearing on the proposed

                                  7

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1  rule. Except when the intended action is the repeal of a rule,

 2  the notice must shall include a reference both to the date on

 3  which and to the place where the notice of rule development

 4  that is required by subsection (2) appeared.

 5         2.  The notice shall be published in the Florida

 6  Administrative Weekly not less than 28 days prior to the

 7  intended action. The proposed rule shall be available for

 8  inspection and copying by the public at the time of the

 9  publication of notice.

10         3.  The notice shall be mailed to all persons named in

11  the proposed rule and to all persons who, at least 14 days

12  prior to such mailing, have made requests of the agency for

13  advance notice of its proceedings. The agency shall also give

14  such notice as is prescribed by rule to those particular

15  classes of persons to whom the intended action is directed.

16         4.  The adopting agency shall file with the committee,

17  at least 21 days prior to the proposed adoption date, a copy

18  of each rule it proposes to adopt; a copy of any material

19  incorporated by reference in the rule; a detailed written

20  statement of the facts and circumstances justifying the

21  proposed rule; a copy of any statement of estimated regulatory

22  costs that has been prepared pursuant to s. 120.541; a

23  statement of the extent to which the proposed rule relates to

24  federal standards or rules on the same subject; and the notice

25  required by subparagraph 1.

26         (c)  Hearings.--

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

28  one relating exclusively to procedure or practice, the agency

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

30  21 days after the date of publication of the notice of

31  intended agency action, give affected persons an opportunity

                                  8

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1  to present evidence and argument on all issues under

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

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

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

 5  other collegial body created under s. 20.165(4) or s.

 6  20.43(3)(g), the board or other collegial body shall conduct

 7  the requested public hearing itself and may not delegate this

 8  responsibility without the consent of the persons requesting

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

10  consideration submitted to the agency within 21 days after the

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

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

13  the record of the rulemaking proceeding.

14         2.  Rulemaking proceedings shall be governed solely by

15  the provisions of this section unless a person timely asserts

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

17  the proceeding and affirmatively demonstrates to the agency

18  that the proceeding does not provide adequate opportunity to

19  protect those interests. If the agency determines that the

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

21  interests, it shall suspend the rulemaking proceeding and

22  convene a separate proceeding under the provisions of ss.

23  120.569 and 120.57. Similarly situated persons may be

24  requested to join and participate in the separate proceeding.

25  Upon conclusion of the separate proceeding, the rulemaking

26  proceeding shall be resumed.

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

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

29  rules in the Florida Administrative Code, the agency, upon

30  approval of the agency head, it shall file with the Department

31  of State three certified copies of the rule it proposes to

                                  9

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1  adopt;, one copy of any material incorporated by reference in

 2  the rule, certified by the agency; a summary of the rule;, a

 3  summary of any hearings held on the rule;, and a detailed

 4  written statement of the facts and circumstances justifying

 5  the rule. Agencies not required to publish their rules in the

 6  Florida Administrative Code shall file one certified copy of

 7  the proposed rule, and the other material required by this

 8  subparagraph, in the office of the agency head, and such rules

 9  shall be open to the public.

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

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

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

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

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

15  of estimated regulatory costs required under s. 120.541, or

16  until the administrative law judge has rendered a decision

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

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

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

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

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

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

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

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

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

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

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

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

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

30  petition for an administrative determination under s.

31  120.56(2) is filed, the period during which a rule must be

                                  10

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1  filed for adoption is extended to 60 days after the

 2  administrative law judge files the final order with the clerk

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

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

 5  certify that the time limitations prescribed by this paragraph

 6  have been complied with, that all statutory rulemaking

 7  requirements have been met, and that there is no

 8  administrative determination pending on the rule.

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

10  certify whether the agency has responded in writing to all

11  material and timely written comments or written inquiries made

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

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

14  not comply with satisfy all statutory rulemaking requirements

15  and rules of the department; upon which an agency has not

16  responded in writing to all material and timely written

17  inquiries or written comments; upon which an administrative

18  determination is pending; or which does not include a

19  statement of estimated regulatory costs, if required.

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

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

22  compliance with all statutory rulemaking requirements, the

23  agency proposing the rule shall withdraw the rule and give

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

25  Florida Administrative Weekly.

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

27  with the Department of State and become effective 20 days

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

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

30  with the Department of State shall become effective when

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

                                  11

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




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

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

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

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

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

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

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

 8  

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

10  determination" does not include subsequent judicial review.

11         (4)  EMERGENCY RULES.--

12         (a)  If an agency finds that an immediate danger to the

13  public health, safety, or welfare requires emergency action,

14  the agency may adopt any rule necessitated by the immediate

15  danger. The agency may adopt a rule by any procedure which is

16  fair under the circumstances if:

17         1.  The procedure provides at least the procedural

18  protection given by other statutes, the State Constitution, or

19  the United States Constitution.

20         2.  The agency takes only that action necessary to

21  protect the public interest under the emergency procedure.

22         3.  The agency publishes in writing at the time of, or

23  prior to, its action the specific facts and reasons for

24  finding an immediate danger to the public health, safety, or

25  welfare and its reasons for concluding that the procedure used

26  is fair under the circumstances. In any event, notice of

27  emergency rules, other than those of educational units or

28  units of government with jurisdiction in only one or a part of

29  one county, including the full text of the rules, shall be

30  published in the first available issue of the Florida

31  Administrative Weekly and provided to the committee along with

                                  12

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1  any material incorporated by reference in the rules. The

 2  agency's findings of immediate danger, necessity, and

 3  procedural fairness shall be judicially reviewable.

 4         Section 4.  Subsection (2) of section 120.545, Florida

 5  Statutes, is amended to read:

 6         120.545  Committee review of agency rules.--

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

 8  information as is reasonably necessary for examination of a

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

10  unadopted agency statement. The committee shall consult with

11  legislative standing committees having with jurisdiction over

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

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

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

15  rule has been examined and include with the certification a

16  statement detailing its objections with particularity. The

17  committee shall notify the Speaker of the House of

18  Representatives and the President of the Senate of any

19  objection to an agency rule concurrent with certification of

20  that fact to the agency.  Such notice must shall include a

21  copy of the rule and the statement detailing the committee's

22  objections to the rule.

23         Section 5.  Paragraph (c) of subsection (1) and

24  subsection (3) of section 120.55, Florida Statutes, are

25  amended to read:

26         120.55  Publication.--

27         (1)  The Department of State shall:

28         (c)  Prescribe by rule the style, and form and content

29  requirements required for rules, notices, and other materials

30  submitted for filing and establish the form for their

31  certification.

                                  13

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1         (3)  Any publication of a proposed rule promulgated by

 2  an agency, whether published in the Florida Administrative

 3  Code or elsewhere, shall include, along with the rule, the

 4  name of the person or persons originating such rule, the name

 5  of the agency head supervisor or person who approved the rule,

 6  and the date upon which the rule was approved.

 7         Section 6.  Effective December 31, 2007, paragraph (d)

 8  of subsection (1) and subsections (2) and (5) of section

 9  120.55, Florida Statutes, as amended by section 4 of chapter

10  2006-82, Laws of Florida, are amended to read:

11         120.55  Publication.--

12         (1)  The Department of State shall:

13         (d)  Prescribe by rule the style, and form, and content

14  requirements required for rules, notices, and other materials

15  submitted for filing and establish the form for their

16  certification.

17         (2)  The Florida Administrative Weekly Internet website

18  must allow users to:

19         (a)  Search for notices by type, publication date, rule

20  number, word, subject, and agency;

21         (b)  Search a database that makes available all notices

22  published on the website for a period of at least 5 years;

23         (c)  Subscribe to an automated e-mail notification of

24  selected notices to be sent out prior to or concurrently with

25  weekly publication of the printed and electronic Florida

26  Administrative Weekly. Such notification must include in the

27  text of the e-mail a summary of the content of each notice;

28         (d)  View agency forms and other materials that have

29  been submitted to the department in electronic form and that

30  are being incorporated by reference in proposed rules; and

31         (e)  Comment on proposed rules.

                                  14

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1         (5)  Any publication of a proposed rule promulgated by

 2  an agency, whether published in the Florida Administrative

 3  Code or elsewhere, shall include, along with the rule, the

 4  name of the person or persons originating such rule, the name

 5  of the agency head supervisor or person who approved the rule,

 6  and the date upon which the rule was approved.

 7         Section 7.  Effective December 31, 2008, paragraph (a)

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

 9  amended by section 4 of chapter 2006-82, Laws of Florida, and

10  by this act, is amended to read:

11         120.55  Publication.--

12         (1)  The Department of State shall:

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

14  and publish electronically the "Florida Administrative Code."

15  on an Internet website managed by the department. The Florida

16  Administrative Code shall contain all rules adopted by each

17  agency, citing the grant of specific rulemaking authority and

18  the specific law implemented pursuant to which each rule was

19  adopted, all history notes as authorized in s. 120.545(9), and

20  complete indexes to all rules contained in the code, and any

21  other material required or authorized by law or deemed useful

22  by the department. The electronic code shall display each rule

23  chapter currently in effect in browse mode and allow full text

24  search of the code and each rule chapter. Supplementation

25  shall be made as often as practicable, but at least monthly.

26  The department shall publish a printed version of the Florida

27  Administrative Code and may contract with a publishing firm

28  for such printed the publication, in a timely and useful form,

29  of the Florida Administrative Code; however, the department

30  shall retain responsibility for the code as provided in this

31  section.  Supplementation of the printed code shall be made as

                                  15

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1  often as practicable, but at least monthly. The printed This

 2  publication shall be the official compilation of the

 3  administrative rules of this state. The Department of State

 4  shall retain the copyright over the Florida Administrative

 5  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. Each form created by an agency which is incorporated

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

                                  16

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1  120.54(3)(a) after December 31, 2007, must clearly display the

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

 3  of the rule in which the form is incorporated.

 4         5.  The department shall allow material incorporated by

 5  reference to be filed in electronic form as prescribed by

 6  department rule. When a rule is filed for adoption with

 7  incorporated material in electronic form, the department's

 8  publication of the Florida Administrative Code on its Internet

 9  website must contain a hyperlink from the incorporating

10  reference in the rule directly to that material. The

11  department may not allow hyperlinks from rules in the Florida

12  Administrative Code to any material other than that filed with

13  and maintained by the department, but it may allow additional

14  hyperlinks to incorporated material maintained by the

15  department from the adopting agency's website or other sites.

16         Section 8.  Subsection (1) and paragraph (c) of

17  subsection (2) of section 120.569, Florida Statutes, are

18  amended to read:

19         120.569  Decisions which affect substantial

20  interests.--

21         (1)  The provisions of this section apply in all

22  proceedings in which the substantial interests of a party are

23  determined by an agency, unless the parties are proceeding

24  under s. 120.573 or s. 120.574. Unless waived by all parties,

25  s. 120.57(1) applies whenever the proceeding involves a

26  disputed issue of material fact.  Unless otherwise agreed, s.

27  120.57(2) applies in all other cases. If a disputed issue of

28  material fact arises during a proceeding under s. 120.57(2),

29  unless waived by all parties, the proceeding under s.

30  120.57(2) shall be terminated and a proceeding under s.

31  120.57(1) shall be conducted. Parties shall be notified of any

                                  17

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1  order, including a final order. Unless waived, a copy of the

 2  order shall be delivered or mailed to each party or the

 3  party's attorney of record at the address of record. Each

 4  notice shall inform the recipient of any administrative

 5  hearing or judicial review that is available under this

 6  section, s. 120.57, or s. 120.68; shall indicate the procedure

 7  which must be followed to obtain the hearing or judicial

 8  review; and shall state the time limits which apply.

 9         (2)

10         (c)  Unless otherwise provided by law, a petition or

11  request for hearing shall include those items required by the

12  uniform rules adopted pursuant to s. 120.54(5)(b) s.

13  120.54(5)(b)4. Upon the receipt of a petition or request for

14  hearing, the agency shall carefully review the petition to

15  determine if it contains all of the required information. A

16  petition shall be dismissed if it is not in substantial

17  compliance with these requirements or it has been untimely

18  filed. Dismissal of a petition shall, at least once, be

19  without prejudice to petitioner's filing a timely amended

20  petition curing the defect, unless it conclusively appears

21  from the face of the petition that the defect cannot be cured.

22  The agency shall promptly give written notice to all parties

23  of the action taken on the petition, shall state with

24  particularity its reasons if the petition is not granted, and

25  shall state the deadline for filing an amended petition if

26  applicable. This paragraph does not eliminate the availability

27  of equitable tolling as a defense to the untimely filing of a

28  petition.

29         Section 9.  Present paragraph (b) of subsection (4) of

30  section 120.595, Florida Statutes, is redesignated as

31  

                                  18

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1  paragraph (c), and a new paragraph (b) is added to that

 2  subsection, to read:

 3         120.595  Attorney's fees.--

 4         (4)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

 5  120.56(4).--

 6         (b)  If prior to the final hearing the agency initiates

 7  rulemaking under s. 120.54 and requests a stay of the

 8  proceedings pending rulemaking, the administrative law judge

 9  shall award reasonable costs and reasonable attorney's fees

10  accrued by the petitioner prior to the date the agency filed

11  its request for a stay pending rulemaking provided the agency

12  adopts the statement as a rule. A request for a stay shall be

13  granted when the petitioner and the agency agree to the stay.

14  If the petitioner objects to the stay, the stay may be denied

15  if the petitioner establishes good cause exists to deny the

16  stay. A stay granted under this paragraph shall remain in

17  effect until either the statement has been adopted as a rule

18  and has become effective or the proposed rule has been

19  withdrawn. A request for attorney's fees and costs under this

20  paragraph shall be granted only upon a finding that the agency

21  knew or should have known at the time the petition was filed

22  that the agency statement was an unadopted rule, and no award

23  of attorney's fees as provided by this paragraph may exceed

24  $50,000.

25         Section 10.  Subsection (2) of section 120.74, Florida

26  Statutes, is amended to read:

27         120.74  Agency review, revision, and report.--

28         (2)  Beginning October 1, 1997, and by October 1 of

29  every other year thereafter, the head of each agency shall

30  file a report with the President of the Senate, the Speaker of

31  the House of Representatives, and the committee, with a copy

                                  19

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1  to each appropriate standing committee of the Legislature,

 2  which certifies that the agency has complied with the

 3  requirements of this section subsection. The report must

 4  specify any changes made to its rules as a result of the

 5  review and, when appropriate, recommend statutory changes that

 6  will promote efficiency, reduce paperwork, or decrease costs

 7  to government and the private sector. The report must identify

 8  the types of cases or disputes in which the agency is involved

 9  which should be conducted under the summary hearing process

10  described in s. 120.574.

11         Section 11.  Except as otherwise expressly provided in

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

13  

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  20

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






    Florida Senate - 2007                           CS for SB 1594
    590-2610-07




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                             SB 1594

 3                                 

 4  The committee substitute:

 5  --   Revises the definition of "rulemaking authority."

 6  --   Provides that an agency does not have to provide free
         public access to incorporated materials on the Florida
 7       Administrative Code website if posting the material on
         the website would constitute a violation of federal
 8       copyright law, as long as a statement to that effect and
         the address where the material is available are included
 9       in the notice of intended action.

10  --   Provides that certain rulemaking responsibilities of an
         agency head cannot be delegated or transferred.
11  
    --   Provides that if an agency head is a board or other
12       collegial body, then the agency head may not delegate the
         responsibility to conduct requested public hearings.
13  
    --   Requires the termination of an informal administrative
14       hearing and the commencement of a formal hearing upon the
         determination of the existence of a disputed issue of
15       material fact, unless the right to a formal hearing is
         waived by all parties.
16  
    --   Provides an award of attorney's fees, capped at $50,000,
17       to the petitioner in an unadopted rule challenge, if the
         agency initiates rulemaking prior to the final hearing
18       and the agency knew or should have known that the agency
         statement was an unadopted rule.
19  
    --   Provides that if, prior to a final hearing in an
20       unadopted rule challenge, an agency initiates rulemaking
         and requests a stay, the administrative law judge must
21       grant the stay as long as the petitioner agrees. The stay
         may be denied upon a showing of good cause by the
22       petitioner.

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  21

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