HB 7179

1	A bill to be entitled
2	An act relating to administrative procedures; providing a
3	short title; amending s. 120.52, F.S.; defining the term
4	"unadopted rule"; amending s. 120.54, F.S.; providing
5	additional procedures for rule adoption hearings; revising
6	requirements for filing rules; revising provisions with
7	respect to petitions to initiate rulemaking; amending s.
8	120.545, F.S.; revising duties and procedures of the
9	Administrative Procedures Committee and agencies with
10	respect to review of agency rules; deleting procedures for
11	agency election to modify, withdraw, amend, or repeal a
12	proposed rule; providing for a legislative committee to
13	request agency information for examination of an unadopted
14	rule; prescribing responses that may be made by an agency
15	to a committee objection to a rule or statement of
16	estimated regulatory costs; prescribing presumptions
17	resulting from an agency's refusal to respond to committee
18	objections; amending s. 120.55, F.S.; conforming a cross-
19	reference; amending s. 120.56, F.S.; revising procedures
20	for administrative determinations of invalidity of
21	proposed rules; requiring an agency to discontinue
22	reliance on a statement under certain circumstances;
23	allowing continued reliance on a statement under certain
24	circumstances; deleting certain provisions relating to
25	actions before a final hearing is held; amending s.
26	120.57, F.S.; revising procedures applicable to hearings
27	involving disputed issues of material fact; prohibiting
28	enforcement of unadopted agency rules under certain
29	circumstances; amending s. 120.595, F.S.; revising
30	guidelines for award of attorney's fees and reasonable
31	costs in certain challenges to agency actions; providing
32	effective dates.
33
34	Be It Enacted by the Legislature of the State of Florida:
35
36	Section 1.  This act may be cited as "The Open Government
37	Act."
38	Section 2.  Subsections (18) and (19) of section 120.52,
39	Florida Statutes, are renumbered as subsections (19) and (20),
40	respectively, and new subsection (18) is added to that section,
41	to read:
42	120.52  Definitions.--As used in this act:
43	(18)  "Unadopted rule" means an agency statement that meets
44	the definition of the term "rule" but has not been adopted
45	pursuant to the requirements of s. 120.54.
46	Section 3.  Paragraphs (c) and (e) of subsection (3) and
47	subsection (7) of section 120.54, Florida Statutes, are amended
48	to read:
49	120.54  Rulemaking.--
50	(3)  ADOPTION PROCEDURES.--
51	(c)  Hearings.--
52	1.  If the intended action concerns any rule other than one
53	relating exclusively to procedure or practice, the agency shall,
54	on the request of any affected person received within 21 days
55	after the date of publication of the notice of intended agency
56	action, give affected persons an opportunity to present evidence
57	and argument on all issues under consideration. The agency may
58	schedule a public hearing on the rule and, if requested by any
59	affected person, shall schedule a public hearing on the rule. If
60	the agency head is a board or other collegial body, other than
61	one comprised of the Governor and Cabinet, the board or other
62	collegial body shall conduct the requested public hearing itself
63	and may not delegate this responsibility without the consent of
64	those persons requesting the public hearing. Any material
65	pertinent to the issues under consideration submitted to the
66	agency within 21 days after the date of publication of the
67	notice or submitted at a public hearing shall be considered by
68	the agency and made a part of the record of the rulemaking
69	proceeding.
70	2.  Rulemaking proceedings shall be governed solely by the
71	provisions of this section unless a person timely asserts that
72	the person's substantial interests will be affected in the
73	proceeding and affirmatively demonstrates to the agency that the
74	proceeding does not provide adequate opportunity to protect
75	those interests. If the agency determines that the rulemaking
76	proceeding is not adequate to protect the person's interests, it
77	shall suspend the rulemaking proceeding and convene a separate
78	proceeding under the provisions of ss. 120.569 and 120.57.
79	Similarly situated persons may be requested to join and
80	participate in the separate proceeding. Upon conclusion of the
81	separate proceeding, the rulemaking proceeding shall be resumed.
82	(e)  Filing for final adoption; effective date.--
83	1.  If the adopting agency is required to publish its rules
84	in the Florida Administrative Code, it shall file with the
85	Department of State three certified copies of the rule it
86	proposes to adopt, a summary of the rule, a summary of any
87	hearings held on the rule, and a detailed written statement of
88	the facts and circumstances justifying the rule. Agencies not
89	required to publish their rules in the Florida Administrative
90	Code shall file one certified copy of the proposed rule, and the
91	other material required by this subparagraph, in the office of
92	the agency head, and such rules shall be open to the public.
93	2.  A rule may not be filed for adoption less than 28 days
94	or more than 90 days after the notice required by paragraph (a),
95	until 21 days after the notice of change required by paragraph
96	(d), until 14 days after the final public hearing, until 21 days
97	after preparation of a statement of estimated regulatory costs
98	required under s. 120.541 has been provided to all persons who
99	submitted a lower cost regulatory alternative and made available
100	to the public, or until the administrative law judge has
101	rendered a decision under s. 120.56(2), whichever applies. When
102	a required notice of change is published prior to the expiration
103	of the time to file the rule for adoption, the period during
104	which a rule must be filed for adoption is extended to 45 days
105	after the date of publication. If notice of a public hearing is
106	published prior to the expiration of the time to file the rule
107	for adoption, the period during which a rule must be filed for
108	adoption is extended to 45 days after adjournment of the final
109	hearing on the rule, 21 days after receipt of all material
110	authorized to be submitted at the hearing, or 21 days after
111	receipt of the transcript, if one is made, whichever is latest.
112	The term "public hearing" includes any public meeting held by
113	any agency at which the rule is considered. If a petition for an
114	administrative determination under s. 120.56(2) is filed, the
115	period during which a rule must be filed for adoption is
116	extended to 60 days after the administrative law judge files the
117	final order with the clerk or until 60 days after subsequent
118	judicial review is complete.
119	3.  At the time a rule is filed, the agency shall certify
120	that the time limitations prescribed by this paragraph have been
121	complied with, that all statutory rulemaking requirements have
122	been met, and that there is no administrative determination
123	pending on the rule.
124	4.  At the time a rule is filed, the committee shall
125	certify whether the agency has responded in writing to all
126	material and timely written comments or written inquiries made
127	on behalf of the committee. The department shall reject any rule
128	not filed within the prescribed time limits; that does not
129	satisfy all statutory rulemaking requirements; upon which an
130	agency has not responded in writing to all material and timely
131	written inquiries or written comments; upon which an
132	administrative determination is pending; or which does not
133	include a statement of estimated regulatory costs, if required.
134	5.  If a rule has not been adopted within the time limits
135	imposed by this paragraph or has not been adopted in compliance
136	with all statutory rulemaking requirements, the agency proposing
137	the rule shall withdraw the rule and give notice of its action
138	in the next available issue of the Florida Administrative
139	Weekly.
140	6.  The proposed rule shall be adopted on being filed with
141	the Department of State and become effective 20 days after being
142	filed, on a later date specified in the rule, or on a date
143	required by statute. Rules not required to be filed with the
144	Department of State shall become effective when adopted by the
145	agency head or on a later date specified by rule or statute. If
146	the committee notifies an agency that an objection to a rule is
147	being considered, the agency may postpone the adoption of the
148	rule to accommodate review of the rule by the committee. When an
149	agency postpones adoption of a rule to accommodate review by the
150	committee, the 90-day period for filing the rule is tolled until
151	the committee notifies the agency that it has completed its
152	review of the rule.
153
154	For the purposes of this paragraph, the term "administrative
155	determination" does not include subsequent judicial review.
156	(7)  PETITION TO INITIATE RULEMAKING.--
157	(a)  Any person regulated by an agency or having
158	substantial interest in an agency rule may petition an agency to
159	adopt, amend, or repeal a rule or to provide the minimum public
160	information required by this chapter. The petition shall specify
161	the proposed rule and action requested. Not later than 30
162	calendar days following the date of filing a petition, the
163	agency shall initiate rulemaking proceedings under this chapter,
164	otherwise comply with the requested action, or deny the petition
165	with a written statement of its reasons for the denial.
166	(b)  If the petition filed under this subsection is
167	directed to an existing rule which the agency has not adopted by
168	the rulemaking procedures or requirements set forth in this
169	chapter, the agency shall, not later than 30 days following the
170	date of filing a petition, initiate rulemaking, or provide
171	notice in the Florida Administrative Weekly that the agency will
172	hold a public hearing on the petition within 30 days after
173	publication of the notice. The purpose of the public hearing is
174	to consider the comments of the public directed to the agency
175	rule which has not been adopted by the rulemaking procedures or
176	requirements of this chapter, its scope and application, and to
177	consider whether the public interest is served adequately by the
178	application of the rule on a case-by-case basis, as contrasted
179	with its adoption by the rulemaking procedures or requirements
180	set forth in this chapter.
181	(c)  Within 30 days following the public hearing provided
182	for by paragraph (b), if the agency does not initiate rulemaking
183	or otherwise comply with the requested action, the agency shall
184	publish in the Florida Administrative Weekly a statement of its
185	reasons for not initiating rulemaking or otherwise complying
186	with the requested action, and of any changes it will make in
187	the scope or application of the unadopted rule. The agency shall
188	file the statement with the committee. The committee shall
189	forward a copy of the statement to the substantive committee
190	with primary oversight jurisdiction of the agency in each house
191	of the Legislature. The committee or the committee with primary
192	oversight jurisdiction may hold a hearing directed to the
193	statement of the agency. The committee holding the hearing may
194	recommend to the Legislature the introduction of legislation
195	making the rule a statutory standard or limiting or otherwise
196	modifying the authority of the agency.
197	Section 4.  Section 120.545, Florida Statutes, is amended
198	to read:
199	120.545  Committee review of agency rules.--
200	(1)  As a legislative check on legislatively created
201	authority, the committee shall examine each proposed rule,
202	except for those proposed rules exempted by s. 120.81(1)(e) and
203	(2), and its accompanying material, and each emergency rule, and
204	may examine any existing rule, for the purpose of determining
205	whether:
206	(a)  The rule is an invalid exercise of delegated
207	legislative authority.
208	(b)  The statutory authority for the rule has been
209	repealed.
210	(c)  The rule reiterates or paraphrases statutory material.
211	(d)  The rule is in proper form.
212	(e)  The notice given prior to its adoption was sufficient
213	to give adequate notice of the purpose and effect of the rule.
214	(f)  The rule is consistent with expressed legislative
215	intent pertaining to the specific provisions of law which the
216	rule implements.
217	(g)  The rule is necessary to accomplish the apparent or
218	expressed objectives of the specific provision of law which the
219	rule implements.
220	(h)  The rule is a reasonable implementation of the law as
221	it affects the convenience of the general public or persons
222	particularly affected by the rule.
223	(i)  The rule could be made less complex or more easily
224	comprehensible to the general public.
225	(j)  The rule's statement of estimated regulatory costs
226	complies with the requirements of s. 120.541 and whether the
227	rule does not impose regulatory costs on the regulated person,
228	county, or city which could be reduced by the adoption of less
229	costly alternatives that substantially accomplish the statutory
230	objectives.
231	(k)  The rule will require additional appropriations.
232	(l)  If the rule is an emergency rule, there exists an
233	emergency justifying the adoption promulgation of such rule, the
234	agency is within has exceeded the scope of its statutory
235	authority, and the rule was adopted promulgated in compliance
236	with the requirements and limitations of s. 120.54(4).
237	(2)  The committee may request from an agency such
238	information as is reasonably necessary for examination of a rule
239	as required by subsection (1) or for examination of an unadopted
240	agency statement. The committee shall consult with legislative
241	standing committees having with jurisdiction over the subject
242	areas. If the committee objects to an emergency rule or a
243	proposed or existing rule, the committee it shall, within 5 days
244	after of the objection, certify that fact to the agency whose
245	rule has been examined and include with the certification a
246	statement detailing its objections with particularity. The
247	committee shall notify the Speaker of the House of
248	Representatives and the President of the Senate of any objection
249	to an agency rule concurrent with certification of that fact to
250	the agency. Such notice shall include a copy of the rule and the
251	statement detailing the committee's objections to the rule.
252	(3)  Within 30 days after of receipt of the objection, if
253	the agency is headed by an individual, or within 45 days after
254	of receipt of the objection, if the agency is headed by a
255	collegial body, the agency shall:
256	(a)  If the rule is not yet in effect a proposed rule:
257	1.  File notice pursuant to s. 120.54(3)(d) of only such
258	modifications as are necessary to address Modify the rule to
259	meet the committee's objection;
260	2.  File notice pursuant to s. 120.54(3)(d) of withdrawal
261	of Withdraw the rule in its entirety; or
262	3.  Notify the committee in writing that it refuses Refuse
263	to modify or withdraw the rule.
264	(b)  If the rule is in effect an existing rule:
265	1.  File notice pursuant to s. 120.54(3)(a), without prior
266	notice of rule development, Notify the committee that it has
267	elected to amend the rule to address meet the committee's
268	objection and initiate the amendment procedure;
269	2.  File notice pursuant to s. 120.54(3)(a) Notify the
270	committee that it has elected to repeal the rule and initiate
271	the repeal procedure; or
272	3.  Notify the committee in writing that the agency it
273	refuses to amend or repeal the rule.
274	(c)  If the rule is either an existing or a proposed rule
275	and the objection is to the statement of estimated regulatory
276	costs:
277	1.  Prepare a corrected statement of estimated regulatory
278	costs, give notice of the availability of the corrected
279	statement in the first available issue of the Florida
280	Administrative Weekly, and file a copy of the corrected
281	statement with the committee; or
282	2.  Notify the committee that it refuses to prepare a
283	corrected statement of estimated regulatory costs.
284	(d)  If the rule is unadopted:
285	1.  File notice pursuant to s. 120.54(3)(a) of intent to
286	adopt the rule;
287	2.  File notice for publication in the Florida
288	Administrative Weekly that the agency has abandoned all reliance
289	upon the statement or any substantially similar statement as a
290	basis for agency action; or
291	3.  Notify the committee in writing that the agency refuses
292	to adopt the rule or to abandon all reliance upon the statement
293	or any substantially similar statement as a basis for agency
294	action.
295	(4)  If the agency elects to modify a proposed rule to meet
296	the committee's objection, it shall make only such modifications
297	as are necessary to meet the objection and shall resubmit the
298	rule to the committee. The agency shall give notice of its
299	election to modify a proposed rule to meet the committee's
300	objection by publishing a notice of change in the first
301	available issue of the Florida Administrative Weekly, but shall
302	not be required to conduct a public hearing. If the agency
303	elects to amend an existing rule to meet the committee's
304	objection, it shall notify the committee in writing and shall
305	initiate the amendment procedure by giving notice in the next
306	available issue of the Florida Administrative Weekly. The
307	committee shall give priority to rules so modified or amended
308	when setting its agenda.
309	(5)  If the agency elects to withdraw a proposed rule as a
310	result of a committee objection, it shall notify the committee,
311	in writing, of its election and shall give notice of the
312	withdrawal in the next available issue of the Florida
313	Administrative Weekly. The rule shall be withdrawn without a
314	public hearing, effective upon publication of the notice in the
315	Florida Administrative Weekly. If the agency elects to repeal an
316	existing rule as a result of a committee objection, it shall
317	notify the committee, in writing, of its election and shall
318	initiate rulemaking procedures for that purpose by giving notice
319	in the next available issue of the Florida Administrative
320	Weekly.
321	(6)  If an agency elects to amend or repeal an existing
322	rule as a result of a committee objection, it shall complete the
323	process within 90 days after giving notice in the Florida
324	Administrative Weekly.
325	(4)(7)  Failure of the agency to respond to a committee
326	objection to a proposed rule that is not yet in effect within
327	the time prescribed in subsection (3) constitutes shall
328	constitute withdrawal of the rule in its entirety. In this
329	event, the committee shall notify the Department of State that
330	the agency, by its failure to respond to a committee objection,
331	has elected to withdraw the proposed rule. Upon receipt of the
332	committee's notice, the Department of State shall publish a
333	notice to that effect in the next available issue of the Florida
334	Administrative Weekly. Upon publication of the notice, the
335	proposed rule shall be stricken from the files of the Department
336	of State and the files of the agency.
337	(5)(8)  Failure of the agency to respond to a committee
338	objection to a an existing rule that is in effect within the
339	time prescribed in subsection (3) constitutes shall constitute a
340	refusal to amend or repeal the rule.
341	(6)  Failure of the agency to respond to a committee
342	objection to a statement of estimated regulatory costs within
343	the time prescribed in subsection (3) constitutes a refusal to
344	prepare a corrected statement of estimated regulatory costs.
345	(7)  Failure of the agency to respond to a committee
346	objection to an unadopted rule within the time prescribed in
347	subsection (3) constitutes a refusal to adopt the rule and a
348	refusal to abandon all reliance upon the statement or any
349	substantially similar statement as a basis for agency action.
350	(8)(9)  If the committee objects to a proposed or existing
351	rule and the agency refuses to adopt, abandon, modify, amend,
352	withdraw, or repeal the rule, the committee shall file with the
353	Department of State a notice of the objection, detailing with
354	particularity the committee's its objection to the rule. The
355	Department of State shall publish this notice in the Florida
356	Administrative Weekly. If the rule is published and shall
357	publish, as a history note to the rule in the Florida
358	Administrative Code, a reference to the committee's objection
359	and to the issue of the Weekly in which the full text thereof
360	appears shall be recorded in a history note.
361	(9)(10)(a)  If the committee objects to a proposed or
362	existing rule, or portion of a rule thereof, and the agency
363	fails to initiate administrative action to adopt, abandon,
364	modify, amend, withdraw, or repeal the rule consistent with the
365	objection within 60 days after the objection, or thereafter
366	fails to proceed in good faith to complete such action, the
367	committee may submit to the President of the Senate and the
368	Speaker of the House of Representatives a recommendation that
369	legislation be introduced to address the committee objection
370	modify or suspend the adoption of the proposed rule, or amend or
371	repeal the rule, or portion thereof.
372	(b)1.  If the committee votes to recommend the introduction
373	of legislation to address the committee objection modify or
374	suspend the adoption of a proposed rule, or amend or repeal a
375	rule, the committee shall, within 5 days after this
376	determination, certify that fact to the agency whose rule or
377	proposed rule has been examined. The committee may request that
378	the agency temporarily suspend the rule or suspend the adoption
379	of the proposed rule, or suspend all reliance upon the statement
380	or any substantially similar statement as a basis for agency
381	action, pending consideration of proposed legislation during the
382	next regular session of the Legislature.
383	2.  Within 30 days after receipt of the certification, if
384	the agency is headed by an individual, or within 45 days after
385	receipt of the certification, if the agency is headed by a
386	collegial body, the agency shall either:
387	a.  Temporarily suspend the rule, or suspend the adoption
388	of the proposed rule, or suspend all reliance upon the statement
389	or any substantially similar statement as a basis for agency
390	action; or
391	b.  Notify the committee in writing that the agency it
392	refuses to temporarily suspend the rule, or suspend the adoption
393	of the proposed rule, or suspend all reliance upon the statement
394	or any substantially similar statement as a basis for agency
395	action.
396	3.  If the agency elects to temporarily suspend the rule,
397	or suspend the adoption of the proposed rule, or suspend all
398	reliance upon the statement or any substantially similar
399	statement as a basis for agency action, the agency it shall give
400	notice of the suspension in the Florida Administrative Weekly.
401	The rule or the rule adoption process shall be suspended upon
402	publication of the notice. An agency may shall not base any
403	agency action on a suspended rule, or suspended proposed rule,
404	or suspended statement or any substantially similar statement,
405	or portion of such rule or statement thereof, prior to
406	expiration of the suspension. A suspended rule, or suspended
407	proposed rule, or suspended statement or any substantially
408	similar statement, or portion of such rule or statement thereof,
409	continues to be subject to administrative determination and
410	judicial review as provided by law.
411	4.  Failure of an agency to respond to committee
412	certification within the time prescribed by subparagraph 2.
413	constitutes a refusal to suspend the rule, or to suspend the
414	adoption of the proposed rule, or suspend all reliance upon the
415	statement or any substantially similar statement as a basis for
416	agency action.
417	(c)  The committee shall prepare proposed legislation bills
418	to address the committee objection modify or suspend the
419	adoption of the proposed rule or amend or repeal the rule, or
420	portion thereof, in accordance with the rules of the Senate and
421	the House of Representatives for prefiling and introduction in
422	the next regular session of the Legislature. The proposed
423	legislation bill shall be presented to the President of the
424	Senate and the Speaker of the House of Representatives with the
425	committee recommendation.
426	(d)  If proposed legislation addressing the committee
427	objection a bill to suspend the adoption of a proposed rule is
428	enacted into law, the proposed rule is suspended until specific
429	delegated legislative authority for the proposed rule has been
430	enacted. If a bill to suspend the adoption of a proposed rule
431	fails to become law, any temporary agency suspension of the rule
432	shall expire. If a bill to modify a proposed rule or amend a
433	rule is enacted into law, the suspension shall expire upon
434	publication of notice of modification or amendment in the
435	Florida Administrative Weekly. If a bill to repeal a rule is
436	enacted into law, the suspension shall remain in effect until
437	notification of repeal of the rule is published in the Florida
438	Administrative Weekly.
439	(e)  The Department of State shall publish in the next
440	available issue of the Florida Administrative Weekly the final
441	legislative action taken. If a bill to modify or suspend the
442	adoption of the proposed rule or amend or repeal the rule, or
443	portion thereof, is enacted into law, the Department of State
444	shall conform the rule or portion of the rule to the provisions
445	of the law in the Florida Administrative Code and publish a
446	reference to the law as a history note to the rule.
447	Section 5.  Paragraph (a) of subsection (1) of section
448	120.55, Florida Statutes, is amended to read:
449	120.55  Publication.--
450	(1)  The Department of State shall:
451	(a)1.  Through a continuous revision system, compile and
452	publish the "Florida Administrative Code." The Florida
453	Administrative Code shall contain all rules adopted by each
454	agency, citing the specific rulemaking authority pursuant to
455	which each rule was adopted, all history notes as authorized in
456	s. 120.545(8)(9), and complete indexes to all rules contained in
457	the code. Supplementation shall be made as often as practicable,
458	but at least monthly. The department may contract with a
459	publishing firm for the publication, in a timely and useful
460	form, of the Florida Administrative Code; however, the
461	department shall retain responsibility for the code as provided
462	in this section. This publication shall be the official
463	compilation of the administrative rules of this state. The
464	Department of State shall retain the copyright over the Florida
465	Administrative Code.
466	2.  Rules general in form but applicable to only one school
467	district, community college district, or county, or a part
468	thereof, or state university rules relating to internal
469	personnel or business and finance shall not be published in the
470	Florida Administrative Code. Exclusion from publication in the
471	Florida Administrative Code shall not affect the validity or
472	effectiveness of such rules.
473	3.  At the beginning of the section of the code dealing
474	with an agency that files copies of its rules with the
475	department, the department shall publish the address and
476	telephone number of the executive offices of each agency, the
477	manner by which the agency indexes its rules, a listing of all
478	rules of that agency excluded from publication in the code, and
479	a statement as to where those rules may be inspected.
480	4.  Forms shall not be published in the Florida
481	Administrative Code; but any form which an agency uses in its
482	dealings with the public, along with any accompanying
483	instructions, shall be filed with the committee before it is
484	used. Any form or instruction which meets the definition of
485	"rule" provided in s. 120.52 shall be incorporated by reference
486	into the appropriate rule. The reference shall specifically
487	state that the form is being incorporated by reference and shall
488	include the number, title, and effective date of the form and an
489	explanation of how the form may be obtained.
490	Section 6.  Effective December 31, 2007, paragraph (a) of
491	subsection (1) of section 120.55, Florida Statutes, as amended
492	by section 4 of chapter 2006-82, Laws of Florida, is amended to
493	read:
494	120.55  Publication.--
495	(1)  The Department of State shall:
496	(a)
497	1.  Through a continuous revision system, compile and
498	publish the "Florida Administrative Code." The Florida
499	Administrative Code shall contain all rules adopted by each
500	agency, citing the specific rulemaking authority pursuant to
501	which each rule was adopted, all history notes as authorized in
502	s. 120.545(8)(9), and complete indexes to all rules contained in
503	the code. Supplementation shall be made as often as practicable,
504	but at least monthly. The department may contract with a
505	publishing firm for the publication, in a timely and useful
506	form, of the Florida Administrative Code; however, the
507	department shall retain responsibility for the code as provided
508	in this section. This publication shall be the official
509	compilation of the administrative rules of this state. The
510	Department of State shall retain the copyright over the Florida
511	Administrative Code.
512	2.  Rules general in form but applicable to only one school
513	district, community college district, or county, or a part
514	thereof, or state university rules relating to internal
515	personnel or business and finance shall not be published in the
516	Florida Administrative Code. Exclusion from publication in the
517	Florida Administrative Code shall not affect the validity or
518	effectiveness of such rules.
519	3.  At the beginning of the section of the code dealing
520	with an agency that files copies of its rules with the
521	department, the department shall publish the address and
522	telephone number of the executive offices of each agency, the
523	manner by which the agency indexes its rules, a listing of all
524	rules of that agency excluded from publication in the code, and
525	a statement as to where those rules may be inspected.
526	4.  Forms shall not be published in the Florida
527	Administrative Code; but any form which an agency uses in its
528	dealings with the public, along with any accompanying
529	instructions, shall be filed with the committee before it is
530	used. Any form or instruction which meets the definition of
531	"rule" provided in s. 120.52 shall be incorporated by reference
532	into the appropriate rule. The reference shall specifically
533	state that the form is being incorporated by reference and shall
534	include the number, title, and effective date of the form and an
535	explanation of how the form may be obtained. Each form created
536	by an agency which is incorporated by reference in a rule notice
537	of which is given under s. 120.54(3)(a) after December 31, 2007,
538	must clearly display the number, title, and effective date of
539	the form and the number of the rule in which the form is
540	incorporated.
541	Section 7.  Paragraph (a) of subsection (2) of section
542	120.56, Florida Statutes, and, effective January 1, 2008,
543	subsection (4) of that section, are amended to read:
544	120.56  Challenges to rules.--
545	(2)  CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--
546	(a)  Any substantially affected person may seek an
547	administrative determination of the invalidity of any proposed
548	rule by filing a petition seeking such a determination with the
549	division within 21 days after the date of publication of the
550	notice required by s. 120.54(3)(a), within 10 days after the
551	final public hearing is held on the proposed rule as provided by
552	s. 120.54(3)(e)2.(c), within 20 days after the preparation of a
553	statement of estimated regulatory costs required pursuant to s.
554	120.541, if applicable, has been provided to all persons who
555	submitted a lower cost regulatory alternative and made available
556	to the public, or within 20 days after the date of publication
557	of the notice required by s. 120.54(3)(d). The petition shall
558	state with particularity the objections to the proposed rule and
559	the reasons that the proposed rule is an invalid exercise of
560	delegated legislative authority. The petitioner has the burden
561	of going forward. The agency then has the burden to prove by a
562	preponderance of the evidence that the proposed rule is not an
563	invalid exercise of delegated legislative authority as to the
564	objections raised. Any person who is substantially affected by a
565	change in the proposed rule may seek a determination of the
566	validity of such change. Any person not substantially affected
567	by the proposed rule as initially noticed, but who is
568	substantially affected by the rule as a result of a change, may
569	challenge any provision of the rule and is not limited to
570	challenging the change to the proposed rule.
571	(4)  CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;
572	SPECIAL PROVISIONS.--
573	(a)  Any person substantially affected by an agency
574	statement may seek an administrative determination that the
575	statement violates s. 120.54(1)(a). The petition shall include
576	the text of the statement or a description of the statement and
577	shall state with particularity facts sufficient to show that the
578	statement constitutes a rule under s. 120.52 and that the agency
579	has not adopted the statement by the rulemaking procedure
580	provided by s. 120.54. Upon the filing of a petition for an
581	administrative determination under this paragraph, the agency
582	shall immediately discontinue all reliance upon the statement or
583	any substantially similar statement as a basis for agency action
584	until:
585	1.  The proceeding is dismissed for any reason other than
586	initiation of rulemaking under s. 120.54;
587	2.  The statement is adopted and becomes effective as a
588	rule;
589	3.  A final order is issued which contains a determination
590	that the petitioner failed to prove that the statement
591	constitutes a rule under s. 120.52; or
592	4.  A final order is issued which contains a determination
593	that rulemaking is not feasible under s. 120.54(1)(a)1.a. or b.
594	or not practicable under s. 120.54(1)(a)2.
595	(b)  If the administrative law judge determines that the
596	agency's inability to rely upon the statement during the
597	proceeding under paragraph (a) would constitute an immediate
598	danger to the public health, safety, or welfare, the
599	administrative law judge shall grant an agency petition to allow
600	application of the statement until the proceeding is concluded.
601	(c)(b)  The administrative law judge may extend the hearing
602	date beyond 30 days after assignment of the case for good cause.
603	If a hearing is held and the petitioner proves the allegations
604	of the petition, the agency shall have the burden of proving
605	that rulemaking is not feasible or not and practicable under s.
606	120.54(1)(a).
607	(d)(c)  The administrative law judge may determine whether
608	all or part of a statement violates s. 120.54(1)(a). The
609	decision of the administrative law judge shall constitute a
610	final order. The division shall transmit a copy of the final
611	order to the Department of State and the committee. The
612	Department of State shall publish notice of the final order in
613	the first available issue of the Florida Administrative Weekly.
614	(d)  When an administrative law judge enters a final order
615	that all or part of an agency statement violates s.
616	120.54(1)(a), the agency shall immediately discontinue all
617	reliance upon the statement or any substantially similar
618	statement as a basis for agency action.
619	(e)1.  If, prior to a final hearing to determine whether
620	all or part of any agency statement violates s. 120.54(1)(a), an
621	agency publishes, pursuant to s. 120.54(3)(a), proposed rules
622	that address the statement, then for purposes of this section, a
623	presumption is created that the agency is acting expeditiously
624	and in good faith to adopt rules that address the statement, and
625	the agency shall be permitted to rely upon the statement or a
626	substantially similar statement as a basis for agency action if
627	the statement meets the requirements of s. 120.57(1)(e).
628	2.  If, prior to the final hearing to determine whether all
629	or part of an agency statement violates s. 120.54(1)(a), an
630	agency publishes a notice of rule development which addresses
631	the statement pursuant to s. 120.54(2), or certifies that such a
632	notice has been transmitted to the Florida Administrative Weekly
633	for publication, then such publication shall constitute good
634	cause for the granting of a stay of the proceedings and a
635	continuance of the final hearing for 30 days. If the agency
636	publishes proposed rules within this 30-day period or any
637	extension of that period granted by an administrative law judge
638	upon showing of good cause, then the administrative law judge
639	shall place the case in abeyance pending the outcome of
640	rulemaking and any proceedings involving challenges to proposed
641	rules pursuant to subsection (2).
642	3.  If, following the commencement of the final hearing and
643	prior to entry of a final order that all or part of an agency
644	statement violates s. 120.54(1)(a), an agency publishes,
645	pursuant to s. 120.54(3)(a), proposed rules that address the
646	statement and proceeds expeditiously and in good faith to adopt
647	rules that address the statement, the agency shall be permitted
648	to rely upon the statement or a substantially similar statement
649	as a basis for agency action if the statement meets the
650	requirements of s. 120.57(1)(e).
651	4.  If an agency fails to adopt rules that address the
652	statement within 180 days after publishing proposed rules, for
653	purposes of this subsection, a presumption is created that the
654	agency is not acting expeditiously and in good faith to adopt
655	rules. If the agency's proposed rules are challenged pursuant to
656	subsection (2), the 180-day period for adoption of rules is
657	tolled until a final order is entered in that proceeding.
658	5.  If the proposed rules addressing the challenged
659	statement are determined to be an invalid exercise of delegated
660	legislative authority as defined in s. 120.52(8)(b)-(f), the
661	agency must immediately discontinue reliance on the statement
662	and any substantially similar statement until the rules
663	addressing the subject are properly adopted.
664	(e)(f)  All proceedings to determine a violation of s.
665	120.54(1)(a) shall be brought pursuant to this subsection. A
666	proceeding pursuant to this subsection may be consolidated with
667	a proceeding under subsection (3) or under any other section of
668	this chapter. Nothing in this paragraph shall be construed to
669	prevent a party whose substantial interests have been determined
670	by an agency action from bringing a proceeding pursuant to s.
671	120.57(1)(e).
672	Section 8.  Effective January 1, 2008, paragraph (e) of
673	subsection (1) of section 120.57, Florida Statutes, is amended
674	to read:
675	120.57  Additional procedures for particular cases.--
676	(1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
677	DISPUTED ISSUES OF MATERIAL FACT.--
678	(e)1.  Any Agency action that determines the substantial
679	interests of a party may not be and that is based on an agency
680	statement that violates s. 120.54(1)(a). An agency or an
681	administrative law judge may not enforce any agency policy that
682	constitutes an unadopted rule when the agency fails to prove
683	that rulemaking is not feasible or practicable. This
684	subparagraph does not preclude application of adopted rules and
685	applicable provisions of law to the facts unadopted rule is
686	subject to de novo review by an administrative law judge.
687	2.  The agency action shall not be presumed valid or
688	invalid. The agency must demonstrate that the unadopted rule:
689	a.  Is within the powers, functions, and duties delegated
690	by the Legislature or, if the agency is operating pursuant to
691	authority derived from the State Constitution, is within that
692	authority;
693	b.  Does not enlarge, modify, or contravene the specific
694	provisions of law implemented;
695	c.  Is not vague, establishes adequate standards for agency
696	decisions, or does not vest unbridled discretion in the agency;
697	d.  Is not arbitrary or capricious. A rule is arbitrary if
698	it is not supported by logic or the necessary facts; a rule is
699	capricious if it is adopted without thought or reason or is
700	irrational;
701	e.  Is not being applied to the substantially affected
702	party without due notice; and
703	f.  Does not impose excessive regulatory costs on the
704	regulated person, county, or city.
705	2.3.  The recommended and final orders in any proceeding
706	shall be governed by the provisions of paragraphs (k) and (l),
707	except that the administrative law judge's determination
708	regarding the unadopted rule shall not be rejected by the agency
709	unless the agency first determines from a review of the complete
710	record, and states with particularity in the order, that such
711	determination is clearly erroneous or does not comply with
712	essential requirements of law. In any proceeding for review
713	under s. 120.68, if the court finds that the agency's rejection
714	of the determination regarding the unadopted rule does not
715	comport with the provisions of this subparagraph, the agency
716	action shall be set aside and the court shall award to the
717	prevailing party the reasonable costs and a reasonable
718	attorney's fee for the initial proceeding and the proceeding for
719	review.
720	Section 9.  Effective January 1, 2008, subsections (2),
721	(3), and (4) of section 120.595, Florida Statutes, are amended
722	to read:
723	120.595  Attorney's fees.--
724	(2)  CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO
725	SECTION 120.56(2).--If the court or administrative law judge
726	declares a proposed rule or portion of a proposed rule invalid
727	pursuant to s. 120.56(2), a judgment or order shall be rendered
728	against the agency for reasonable costs and reasonable
729	attorney's fees, unless the agency demonstrates that its actions
730	were substantially justified or special circumstances exist
731	which would make the award unjust. An agency's actions are
732	"substantially justified" if there was a reasonable basis in law
733	and fact at the time the actions were taken by the agency. If
734	the agency prevails in the proceedings, the court or
735	administrative law judge shall award reasonable costs and
736	reasonable attorney's fees against a party if the court or
737	administrative law judge determines that a party participated in
738	the proceedings for an improper purpose as defined by paragraph
739	(1)(e). No award of attorney's fees as provided by this
740	subsection shall exceed $50,000 $15,000.
741	(3)  CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO
742	SECTION 120.56(3) AND (5).--If the court or administrative law
743	judge declares a rule or portion of a rule invalid pursuant to
744	s. 120.56(3) or (5), a judgment or order shall be rendered
745	against the agency for reasonable costs and reasonable
746	attorney's fees, unless the agency demonstrates that its actions
747	were substantially justified or special circumstances exist
748	which would make the award unjust. An agency's actions are
749	"substantially justified" if there was a reasonable basis in law
750	and fact at the time the actions were taken by the agency. If
751	the agency prevails in the proceedings, the court or
752	administrative law judge shall award reasonable costs and
753	reasonable attorney's fees against a party if the court or
754	administrative law judge determines that a party participated in
755	the proceedings for an improper purpose as defined by paragraph
756	(1)(e). No award of attorney's fees as provided by this
757	subsection shall exceed $50,000 $15,000.
758	(4)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
759	120.56(4).--
760	(a)  Upon entry of a final order that all or part of an
761	agency statement violates s. 120.54(1)(a), the administrative
762	law judge shall award reasonable costs and reasonable attorney's
763	fees to the petitioner, unless the agency demonstrates that the
764	statement is required by the Federal Government to implement or
765	retain a delegated or approved program or to meet a condition to
766	receipt of federal funds.
767	(b)  If the agency initiates rulemaking under s. 120.54
768	during a rule challenge under s. 120.56(4) and the statement is
769	adopted and becomes effective as a rule, the administrative law
770	judge shall award reasonable costs and attorney's fees accrued
771	to the date the agency initiated rulemaking, upon a finding that
772	the agency knew or should have known that the agency statement
773	was an unadopted rule. The administrative law judge may
774	consider, among other factors, whether or not the petitioner or
775	other person had requested or formally petitioned the agency to
776	adopt the statement as a rule prior to the filing of the
777	challenge under s. 120.56(4).
778	(c)(b)  Notwithstanding the provisions of chapter 284, an
779	award shall be paid from the budget entity of the secretary,
780	executive director, or equivalent administrative officer of the
781	agency, and the agency shall not be entitled to payment of an
782	award or reimbursement for payment of an award under any
783	provision of law.
784	(d)  If the agency prevails in the proceedings, the court
785	or administrative law judge shall award reasonable costs and
786	attorney's fees against a party if the court or administrative
787	law judge determines that the party participated in the
788	proceedings for an improper purpose as defined in paragraph
789	(1)(e).
790	Section 10.  Except as otherwise expressly provided in this
791	act, this act shall take effect July 1, 2007.

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