HB 7183

1	A bill to be entitled
2	An act relating to administrative procedures; providing a
3	short title; amending s. 120.52, F.S.; redefining the term
4	"invalid exercise of delegated legislative authority";
5	defining the terms "law implemented," "rulemaking
6	authority," and "unadopted rule"; amending s. 120.536,
7	F.S.; revising guidelines for the construction of
8	statutory language granting rulemaking authority; amending
9	s. 120.54, F.S.; prescribing limits and guidelines with
10	respect to incorporation of material by reference;
11	prescribing requirements for materials being incorporated
12	by reference; providing for rules; providing that
13	specified rulemaking responsibilities of an agency head
14	may not be delegated or transferred; revising information
15	to be included in notices of proposed actions; providing
16	additional procedures for rule adoption hearings; revising
17	requirements for filing rules; revising provisions with
18	respect to petitions to initiate rulemaking;  amending s.
19	120.545, F.S.; revising duties and procedures of the
20	Administrative Procedures Committee and agencies with
21	respect to review of agency rules; authorizing the
22	Administrative Procedures Committee to request from
23	agencies information to examine unadopted agency
24	statements; deleting procedures for agency election to
25	modify, withdraw, amend, or repeal a proposed rule;
26	providing for a legislative committee to request agency
27	information for examination of an unadopted rule;
28	prescribing responses that may be made by an agency to a
29	committee objection to a rule or statement of estimated
30	regulatory costs; prescribing presumptions resulting from
31	an agency's refusal to respond to committee objections;
32	amending s. 120.55, F.S.; conforming a cross-reference;
33	requiring the Department of State to prescribe by rule
34	content requirements for rules, notices, and other
35	materials submitted for filing; revising for a specified
36	period the limit for the unencumbered balance in the
37	Records Management Trust Fund at the beginning of each
38	fiscal year for fees collected pursuant to chapter 120;
39	providing for transfer of excess funds; providing for
40	expiration of provisions; expanding the required user
41	capabilities of the Florida Administrative Weekly Internet
42	website; revising for a specified period the limit for the
43	unencumbered balance in the Records Management Trust Fund
44	at the beginning of each fiscal year for fees collected
45	pursuant to chapter 120; providing for transfer of excess
46	funds; providing for expiration of provisions; requiring
47	electronic publication of the Florida Administrative Code;
48	prescribing requirements with respect to content of such
49	electronic publication; providing for filing information
50	incorporated by reference in electronic form; amending s.
51	120.56, F.S.; revising procedures for administrative
52	determinations of invalidity of proposed rules; requiring
53	an agency to discontinue reliance on a statement under
54	certain circumstances; allowing continued reliance on a
55	statement under certain circumstances; deleting certain
56	provisions relating to actions before a final hearing is
57	held; amending s. 120.57, F.S.; revising procedures
58	applicable to hearings involving disputed issues of
59	material fact; prohibiting enforcement of unadopted agency
60	rules under certain circumstances; amending s. 120.595,
61	F.S.; revising guidelines for award of attorney's fees and
62	reasonable costs in certain challenges to agency actions;
63	amending s. 120.569, F.S.; requiring that certain
64	administrative proceedings be terminated and subsequently
65	reinstated under different provisions of state law if a
66	disputed issue of material fact arises during such a
67	proceeding; providing for the waiver of such termination;
68	revising a cross-reference; amending s. 120.74, F.S.;
69	revising reporting requirements for agency heads; amending
70	ss. 120.80, 120.81, 409.175, 420.9072, and 420.9075, F.S.;
71	correcting cross-references; providing an appropriation;
72	providing effective dates.
73
74	Be It Enacted by the Legislature of the State of Florida:
75
76	Section 1.  This act may be cited as "The Open Government
77	Act."
78	Section 2.  Subsection (8) of section 120.52, Florida
79	Statutes, is amended, present subsections (9) through (15) of
80	that section are renumbered as subsections (10) through (16),
81	respectively, present subsections (16), (17), (18), and (19) of
82	that section are renumbered as subsections (18), (19), (21), and
83	(22), respectively, and new subsections (9), (17), and (20) are
84	added to that section, to read:
85	120.52  Definitions.--As used in this act:
86	(8)  "Invalid exercise of delegated legislative authority"
87	means action that which goes beyond the powers, functions, and
88	duties delegated by the Legislature. A proposed or existing rule
89	is an invalid exercise of delegated legislative authority if any
90	one of the following applies:
91	(a)  The agency has materially failed to follow the
92	applicable rulemaking procedures or requirements set forth in
93	this chapter;
94	(b)  The agency has exceeded its grant of rulemaking
95	authority, citation to which is required by s. 120.54(3)(a)1.;
96	(c)  The rule enlarges, modifies, or contravenes the
97	specific provisions of law implemented, citation to which is
98	required by s. 120.54(3)(a)1.;
99	(d)  The rule is vague, fails to establish adequate
100	standards for agency decisions, or vests unbridled discretion in
101	the agency;
102	(e)  The rule is arbitrary or capricious. A rule is
103	arbitrary if it is not supported by logic or the necessary
104	facts; a rule is capricious if it is adopted without thought or
105	reason or is irrational; or
106	(f)  The rule imposes regulatory costs on the regulated
107	person, county, or city which could be reduced by the adoption
108	of less costly alternatives that substantially accomplish the
109	statutory objectives.
110
111	A grant of rulemaking authority is necessary but not sufficient
112	to allow an agency to adopt a rule; a specific law to be
113	implemented is also required. An agency may adopt only rules
114	that implement or interpret the specific powers and duties
115	granted by the enabling statute. No agency shall have authority
116	to adopt a rule only because it is reasonably related to the
117	purpose of the enabling legislation and is not arbitrary and
118	capricious or is within the agency's class of powers and duties,
119	nor shall an agency have the authority to implement statutory
120	provisions setting forth general legislative intent or policy.
121	Statutory language granting rulemaking authority or generally
122	describing the powers and functions of an agency shall be
123	construed to extend no further than implementing or interpreting
124	the specific powers and duties conferred by the same statute.
125	(9)  "Law implemented" means the statutory language being
126	carried out or interpreted by an agency through rulemaking.
127	(17)  "Rulemaking authority" means statutory language that
128	explicitly authorizes or requires an agency to adopt, develop,
129	establish, or otherwise create any statement coming within the
130	definition of "rule."
131	(20)  "Unadopted rule" means an agency statement that meets
132	the definition of the term "rule" but has not been adopted
133	pursuant to the requirements of s. 120.54.
134	Section 3.  Subsection (1) of section 120.536, Florida
135	Statutes, is amended to read:
136	120.536  Rulemaking authority; repeal; challenge.--
137	(1)  A grant of rulemaking authority is necessary but not
138	sufficient to allow an agency to adopt a rule; a specific law to
139	be implemented is also required. An agency may adopt only rules
140	that implement or interpret the specific powers and duties
141	granted by the enabling statute. No agency shall have authority
142	to adopt a rule only because it is reasonably related to the
143	purpose of the enabling legislation and is not arbitrary and
144	capricious or is within the agency's class of powers and duties,
145	nor shall an agency have the authority to implement statutory
146	provisions setting forth general legislative intent or policy.
147	Statutory language granting rulemaking authority or generally
148	describing the powers and functions of an agency shall be
149	construed to extend no further than implementing or interpreting
150	the specific powers and duties conferred by the same statute.
151	Section 4. Paragraph (i) of subsection (1), paragraphs (a),
152	(c), and (e) of subsection (3), paragraph (a) of subsection (4),
153	and subsection (7) of section 120.54, Florida Statutes, are
154	amended, and paragraph (k) is added to subsection (1) of that
155	section, to read:
156	120.54  Rulemaking.--
157	(1)  GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN
158	EMERGENCY RULES.--
159	(i)1.  A rule may incorporate material by reference but
160	only as the material exists on the date the rule is adopted. For
161	purposes of the rule, changes in the material are not effective
162	unless the rule is amended to incorporate the changes. Material
163	incorporated by reference in a rule may not incorporate
164	additional material by reference unless the rule specifically
165	identifies the additional material.
166	2.  An agency rule that incorporates by specific reference
167	another rule of that agency automatically incorporates
168	subsequent amendments to the referenced rule, unless a contrary
169	intent is clearly indicated in the referencing rule. Any notice
170	of amendments to a rule that has been incorporated by specific
171	reference in other rules of that agency must explain the effect
172	of the amendments on the referencing rules.
173	3.  In rules adopted after December 31, 2009, material may
174	not be incorporated by reference unless:
175	a.  The material has been submitted in the prescribed
176	electronic format to the Department of State and the full text
177	of the material can be made available for free public access
178	through an electronic hyperlink from the rule in the Florida
179	Administrative Code making the reference; or
180	b.  The agency has determined that posting of the material
181	on the Internet for purposes of public examination and
182	inspection would constitute a violation of federal copyright
183	law, in which case a statement to that effect, along with the
184	address of locations at the Department of State and the agency
185	at which the material is available for public inspection and
186	examination, is included in the notice required by subparagraph
187	(3)(a)1.
188	4.  A rule may not be amended by reference only. Amendments
189	must set out the amended rule in full in the same manner as
190	required by the State Constitution for laws. The Department of
191	State may prescribe by rule requirements for incorporating
192	materials by reference pursuant to this paragraph.
193	5.2.  Notwithstanding any contrary provision in this
194	section, when an adopted rule of the Department of Environmental
195	Protection or a water management district is incorporated by
196	reference in the other agency's rule to implement a provision of
197	part IV of chapter 373, subsequent amendments to the rule are
198	not effective as to the incorporating rule unless the agency
199	incorporating by reference notifies the committee and the
200	Department of State of its intent to adopt the subsequent
201	amendment, publishes notice of such intent in the Florida
202	Administrative Weekly, and files with the Department of State a
203	copy of the amended rule incorporated by reference. Changes in
204	the rule incorporated by reference are effective as to the other
205	agency 20 days after the date of the published notice and filing
206	with the Department of State. The Department of State shall
207	amend the history note of the incorporating rule to show the
208	effective date of such change. Any substantially affected person
209	may, within 14 days after the date of publication of the notice
210	of intent in the Florida Administrative Weekly, file an
211	objection to rulemaking with the agency. The objection shall
212	specify the portions of the rule incorporated by reference to
213	which the person objects and the reasons for the objection. The
214	agency shall not have the authority under this subparagraph to
215	adopt those portions of the rule specified in such objection.
216	The agency shall publish notice of the objection and of its
217	action in response in the next available issue of the Florida
218	Administrative Weekly.
219	6.  The Department of State may prescribe by rule
220	requirements for incorporating materials pursuant to this
221	paragraph.
222	(k)  Rulemaking responsibilities of an agency head under
223	subparagraph (3)(a)1., subparagraph (3)(e)1., or subparagraph
224	(3)(e)6. may not be delegated or transferred.
225	(3)  ADOPTION PROCEDURES.--
226	(a)  Notices.--
227	1.  Prior to the adoption, amendment, or repeal of any rule
228	other than an emergency rule, an agency, upon approval of the
229	agency head, shall give notice of its intended action, setting
230	forth a short, plain explanation of the purpose and effect of
231	the proposed action; the full text of the proposed rule or
232	amendment and a summary thereof; a reference to the grant of
233	specific rulemaking authority pursuant to which the rule is
234	adopted; and a reference to the section or subsection of the
235	Florida Statutes or the Laws of Florida being implemented or,
236	interpreted, or made specific. The notice shall include a
237	summary of the agency's statement of the estimated regulatory
238	costs, if one has been prepared, based on the factors set forth
239	in s. 120.541(2), and a statement that any person who wishes to
240	provide the agency with information regarding the statement of
241	estimated regulatory costs, or to provide a proposal for a lower
242	cost regulatory alternative as provided by s. 120.541(1), must
243	do so in writing within 21 days after publication of the notice.
244	The notice must state the procedure for requesting a public
245	hearing on the proposed rule. Except when the intended action is
246	the repeal of a rule, the notice shall include a reference both
247	to the date on which and to the place where the notice of rule
248	development that is required by subsection (2) appeared.
249	2.  The notice shall be published in the Florida
250	Administrative Weekly not less than 28 days prior to the
251	intended action. The proposed rule shall be available for
252	inspection and copying by the public at the time of the
253	publication of notice.
254	3.  The notice shall be mailed to all persons named in the
255	proposed rule and to all persons who, at least 14 days prior to
256	such mailing, have made requests of the agency for advance
257	notice of its proceedings. The agency shall also give such
258	notice as is prescribed by rule to those particular classes of
259	persons to whom the intended action is directed.
260	4.  The adopting agency shall file with the committee, at
261	least 21 days prior to the proposed adoption date, a copy of
262	each rule it proposes to adopt; a copy of any material
263	incorporated by reference in the rule; a detailed written
264	statement of the facts and circumstances justifying the proposed
265	rule; a copy of any statement of estimated regulatory costs that
266	has been prepared pursuant to s. 120.541; a statement of the
267	extent to which the proposed rule relates to federal standards
268	or rules on the same subject; and the notice required by
269	subparagraph 1.
270	(c)  Hearings.--
271	1.  If the intended action concerns any rule other than one
272	relating exclusively to procedure or practice, the agency shall,
273	on the request of any affected person received within 21 days
274	after the date of publication of the notice of intended agency
275	action, give affected persons an opportunity to present evidence
276	and argument on all issues under consideration. The agency may
277	schedule a public hearing on the rule and, if requested by any
278	affected person, shall schedule a public hearing on the rule. If
279	the agency head is a board or other collegial body created under
280	s. 20.165(4) or s. 20.43(3)(g), the board or other collegial
281	body shall conduct the requested public hearing itself and may
282	not delegate this responsibility without the consent of those
283	persons requesting the public hearing. Any material pertinent to
284	the issues under consideration submitted to the agency within 21
285	days after the date of publication of the notice or submitted at
286	a public hearing shall be considered by the agency and made a
287	part of the record of the rulemaking proceeding.
288	2.  Rulemaking proceedings shall be governed solely by the
289	provisions of this section unless a person timely asserts that
290	the person's substantial interests will be affected in the
291	proceeding and affirmatively demonstrates to the agency that the
292	proceeding does not provide adequate opportunity to protect
293	those interests. If the agency determines that the rulemaking
294	proceeding is not adequate to protect the person's interests, it
295	shall suspend the rulemaking proceeding and convene a separate
296	proceeding under the provisions of ss. 120.569 and 120.57.
297	Similarly situated persons may be requested to join and
298	participate in the separate proceeding. Upon conclusion of the
299	separate proceeding, the rulemaking proceeding shall be resumed.
300	(e)  Filing for final adoption; effective date.--
301	1.  If the adopting agency is required to publish its rules
302	in the Florida Administrative Code, the agency, upon approval of
303	the agency head, it shall file with the Department of State
304	three certified copies of the rule it proposes to adopt;, one
305	copy of any material incorporated by reference in the rule,
306	certified by the agency; a summary of the rule;, a summary of
307	any hearings held on the rule;, and a detailed written statement
308	of the facts and circumstances justifying the rule. Agencies not
309	required to publish their rules in the Florida Administrative
310	Code shall file one certified copy of the proposed rule, and the
311	other material required by this subparagraph, in the office of
312	the agency head, and such rules shall be open to the public.
313	2.  A rule may not be filed for adoption less than 28 days
314	or more than 90 days after the notice required by paragraph (a),
315	until 21 days after the notice of change required by paragraph
316	(d), until 14 days after the final public hearing, until 21 days
317	after preparation of a statement of estimated regulatory costs
318	required under s. 120.541 has been provided to all persons who
319	submitted a lower cost regulatory alternative and made available
320	to the public, or until the administrative law judge has
321	rendered a decision under s. 120.56(2), whichever applies. When
322	a required notice of change is published prior to the expiration
323	of the time to file the rule for adoption, the period during
324	which a rule must be filed for adoption is extended to 45 days
325	after the date of publication. If notice of a public hearing is
326	published prior to the expiration of the time to file the rule
327	for adoption, the period during which a rule must be filed for
328	adoption is extended to 45 days after adjournment of the final
329	hearing on the rule, 21 days after receipt of all material
330	authorized to be submitted at the hearing, or 21 days after
331	receipt of the transcript, if one is made, whichever is latest.
332	The term "public hearing" includes any public meeting held by
333	any agency at which the rule is considered. If a petition for an
334	administrative determination under s. 120.56(2) is filed, the
335	period during which a rule must be filed for adoption is
336	extended to 60 days after the administrative law judge files the
337	final order with the clerk or until 60 days after subsequent
338	judicial review is complete.
339	3.  At the time a rule is filed, the agency shall certify
340	that the time limitations prescribed by this paragraph have been
341	complied with, that all statutory rulemaking requirements have
342	been met, and that there is no administrative determination
343	pending on the rule.
344	4.  At the time a rule is filed, the committee shall
345	certify whether the agency has responded in writing to all
346	material and timely written comments or written inquiries made
347	on behalf of the committee. The department shall reject any rule
348	not filed within the prescribed time limits; that does not
349	comply with satisfy all statutory rulemaking requirements and
350	rules of the department; upon which an agency has not responded
351	in writing to all material and timely written inquiries or
352	written comments; upon which an administrative determination is
353	pending; or which does not include a statement of estimated
354	regulatory costs, if required.
355	5.  If a rule has not been adopted within the time limits
356	imposed by this paragraph or has not been adopted in compliance
357	with all statutory rulemaking requirements, the agency proposing
358	the rule shall withdraw the rule and give notice of its action
359	in the next available issue of the Florida Administrative
360	Weekly.
361	6.  The proposed rule shall be adopted on being filed with
362	the Department of State and become effective 20 days after being
363	filed, on a later date specified in the rule, or on a date
364	required by statute. Rules not required to be filed with the
365	Department of State shall become effective when adopted by the
366	agency head or on a later date specified by rule or statute. If
367	the committee notifies an agency that an objection to a rule is
368	being considered, the agency may postpone the adoption of the
369	rule to accommodate review of the rule by the committee. When an
370	agency postpones adoption of a rule to accommodate review by the
371	committee, the 90-day period for filing the rule is tolled until
372	the committee notifies the agency that it has completed its
373	review of the rule.
374
375	For the purposes of this paragraph, the term "administrative
376	determination" does not include subsequent judicial review.
377	(4)  EMERGENCY RULES.--
378	(a)  If an agency finds that an immediate danger to the
379	public health, safety, or welfare requires emergency action, the
380	agency may adopt any rule necessitated by the immediate danger.
381	The agency may adopt a rule by any procedure which is fair under
382	the circumstances if:
383	1.  The procedure provides at least the procedural
384	protection given by other statutes, the State Constitution, or
385	the United States Constitution.
386	2.  The agency takes only that action necessary to protect
387	the public interest under the emergency procedure.
388	3.  The agency publishes in writing at the time of, or
389	prior to, its action the specific facts and reasons for finding
390	an immediate danger to the public health, safety, or welfare and
391	its reasons for concluding that the procedure used is fair under
392	the circumstances. In any event, notice of emergency rules,
393	other than those of educational units or units of government
394	with jurisdiction in only one or a part of one county, including
395	the full text of the rules, shall be published in the first
396	available issue of the Florida Administrative Weekly and
397	provided to the committee along with any material incorporated
398	by reference in the rules. The agency's findings of immediate
399	danger, necessity, and procedural fairness shall be judicially
400	reviewable.
401	(7)  PETITION TO INITIATE RULEMAKING.--
402	(a)  Any person regulated by an agency or having
403	substantial interest in an agency rule may petition an agency to
404	adopt, amend, or repeal a rule or to provide the minimum public
405	information required by this chapter. The petition shall specify
406	the proposed rule and action requested. Not later than 30
407	calendar days following the date of filing a petition, the
408	agency shall initiate rulemaking proceedings under this chapter,
409	otherwise comply with the requested action, or deny the petition
410	with a written statement of its reasons for the denial.
411	(b)  If the petition filed under this subsection is
412	directed to an existing rule which the agency has not adopted by
413	the rulemaking procedures or requirements set forth in this
414	chapter, the agency shall, not later than 30 days following the
415	date of filing a petition, initiate rulemaking, or provide
416	notice in the Florida Administrative Weekly that the agency will
417	hold a public hearing on the petition within 30 days after
418	publication of the notice. The purpose of the public hearing is
419	to consider the comments of the public directed to the agency
420	rule which has not been adopted by the rulemaking procedures or
421	requirements of this chapter, its scope and application, and to
422	consider whether the public interest is served adequately by the
423	application of the rule on a case-by-case basis, as contrasted
424	with its adoption by the rulemaking procedures or requirements
425	set forth in this chapter.
426	(c)  Within 30 days following the public hearing provided
427	for by paragraph (b), if the agency does not initiate rulemaking
428	or otherwise comply with the requested action, the agency shall
429	publish in the Florida Administrative Weekly a statement of its
430	reasons for not initiating rulemaking or otherwise complying
431	with the requested action, and of any changes it will make in
432	the scope or application of the unadopted rule. The agency shall
433	file the statement with the committee. The committee shall
434	forward a copy of the statement to the substantive committee
435	with primary oversight jurisdiction of the agency in each house
436	of the Legislature. The committee or the committee with primary
437	oversight jurisdiction may hold a hearing directed to the
438	statement of the agency. The committee holding the hearing may
439	recommend to the Legislature the introduction of legislation
440	making the rule a statutory standard or limiting or otherwise
441	modifying the authority of the agency.
442	Section 5.  Section 120.545, Florida Statutes, is amended
443	to read:
444	120.545  Committee review of agency rules.--
445	(1)  As a legislative check on legislatively created
446	authority, the committee shall examine each proposed rule,
447	except for those proposed rules exempted by s. 120.81(1)(e) and
448	(2), and its accompanying material, and each emergency rule, and
449	may examine any existing rule, for the purpose of determining
450	whether:
451	(a)  The rule is an invalid exercise of delegated
452	legislative authority.
453	(b)  The statutory authority for the rule has been
454	repealed.
455	(c)  The rule reiterates or paraphrases statutory material.
456	(d)  The rule is in proper form.
457	(e)  The notice given prior to its adoption was sufficient
458	to give adequate notice of the purpose and effect of the rule.
459	(f)  The rule is consistent with expressed legislative
460	intent pertaining to the specific provisions of law which the
461	rule implements.
462	(g)  The rule is necessary to accomplish the apparent or
463	expressed objectives of the specific provision of law which the
464	rule implements.
465	(h)  The rule is a reasonable implementation of the law as
466	it affects the convenience of the general public or persons
467	particularly affected by the rule.
468	(i)  The rule could be made less complex or more easily
469	comprehensible to the general public.
470	(j)  The rule's statement of estimated regulatory costs
471	complies with the requirements of s. 120.541 and whether the
472	rule does not impose regulatory costs on the regulated person,
473	county, or city which could be reduced by the adoption of less
474	costly alternatives that substantially accomplish the statutory
475	objectives.
476	(k)  The rule will require additional appropriations.
477	(l)  If the rule is an emergency rule, there exists an
478	emergency justifying the adoption promulgation of such rule, the
479	agency is within has exceeded the scope of its statutory
480	authority, and the rule was adopted promulgated in compliance
481	with the requirements and limitations of s. 120.54(4).
482	(2)  The committee may request from an agency such
483	information as is reasonably necessary for examination of a rule
484	as required by subsection (1) or for examination of an unadopted
485	agency statement. The committee shall consult with legislative
486	standing committees having with jurisdiction over the subject
487	areas. If the committee objects to an emergency rule or a
488	proposed or existing rule, the committee it shall, within 5 days
489	after of the objection, certify that fact to the agency whose
490	rule has been examined and include with the certification a
491	statement detailing its objections with particularity. The
492	committee shall notify the Speaker of the House of
493	Representatives and the President of the Senate of any objection
494	to an agency rule concurrent with certification of that fact to
495	the agency. Such notice shall include a copy of the rule and the
496	statement detailing the committee's objections to the rule.
497	(3)  Within 30 days after of receipt of the objection, if
498	the agency is headed by an individual, or within 45 days after
499	of receipt of the objection, if the agency is headed by a
500	collegial body, the agency shall:
501	(a)  If the rule is not yet in effect a proposed rule:
502	1.  File notice pursuant to s. 120.54(3)(d) of only such
503	modifications as are necessary to address Modify the rule to
504	meet the committee's objection;
505	2.  File notice pursuant to s. 120.54(3)(d) of withdrawal
506	of Withdraw the rule in its entirety; or
507	3.  Notify the committee in writing that it refuses Refuse
508	to modify or withdraw the rule.
509	(b)  If the rule is in effect an existing rule:
510	1.  File notice pursuant to s. 120.54(3)(a), without prior
511	notice of rule development, Notify the committee that it has
512	elected to amend the rule to address meet the committee's
513	objection and initiate the amendment procedure;
514	2.  File notice pursuant to s. 120.54(3)(a) Notify the
515	committee that it has elected to repeal the rule and initiate
516	the repeal procedure; or
517	3.  Notify the committee in writing that the agency it
518	refuses to amend or repeal the rule.
519	(c)  If the rule is either an existing or a proposed rule
520	and the objection is to the statement of estimated regulatory
521	costs:
522	1.  Prepare a corrected statement of estimated regulatory
523	costs, give notice of the availability of the corrected
524	statement in the first available issue of the Florida
525	Administrative Weekly, and file a copy of the corrected
526	statement with the committee; or
527	2.  Notify the committee that it refuses to prepare a
528	corrected statement of estimated regulatory costs.
529	(d)  If the rule is unadopted:
530	1.  File notice pursuant to s. 120.54(3)(a) of intent to
531	adopt the rule;
532	2.  File notice for publication in the Florida
533	Administrative Weekly that the agency has abandoned all reliance
534	upon the statement or any substantially similar statement as a
535	basis for agency action; or
536	3.  Notify the committee in writing that the agency refuses
537	to adopt the rule or to abandon all reliance upon the statement
538	or any substantially similar statement as a basis for agency
539	action.
540	(4)  If the agency elects to modify a proposed rule to meet
541	the committee's objection, it shall make only such modifications
542	as are necessary to meet the objection and shall resubmit the
543	rule to the committee. The agency shall give notice of its
544	election to modify a proposed rule to meet the committee's
545	objection by publishing a notice of change in the first
546	available issue of the Florida Administrative Weekly, but shall
547	not be required to conduct a public hearing. If the agency
548	elects to amend an existing rule to meet the committee's
549	objection, it shall notify the committee in writing and shall
550	initiate the amendment procedure by giving notice in the next
551	available issue of the Florida Administrative Weekly. The
552	committee shall give priority to rules so modified or amended
553	when setting its agenda.
554	(5)  If the agency elects to withdraw a proposed rule as a
555	result of a committee objection, it shall notify the committee,
556	in writing, of its election and shall give notice of the
557	withdrawal in the next available issue of the Florida
558	Administrative Weekly. The rule shall be withdrawn without a
559	public hearing, effective upon publication of the notice in the
560	Florida Administrative Weekly. If the agency elects to repeal an
561	existing rule as a result of a committee objection, it shall
562	notify the committee, in writing, of its election and shall
563	initiate rulemaking procedures for that purpose by giving notice
564	in the next available issue of the Florida Administrative
565	Weekly.
566	(6)  If an agency elects to amend or repeal an existing
567	rule as a result of a committee objection, it shall complete the
568	process within 90 days after giving notice in the Florida
569	Administrative Weekly.
570	(4)(7)  Failure of the agency to respond to a committee
571	objection to a proposed rule that is not yet in effect within
572	the time prescribed in subsection (3) constitutes shall
573	constitute withdrawal of the rule in its entirety. In this
574	event, the committee shall notify the Department of State that
575	the agency, by its failure to respond to a committee objection,
576	has elected to withdraw the proposed rule. Upon receipt of the
577	committee's notice, the Department of State shall publish a
578	notice to that effect in the next available issue of the Florida
579	Administrative Weekly. Upon publication of the notice, the
580	proposed rule shall be stricken from the files of the Department
581	of State and the files of the agency.
582	(5)(8)  Failure of the agency to respond to a committee
583	objection to a an existing rule that is in effect within the
584	time prescribed in subsection (3) constitutes shall constitute a
585	refusal to amend or repeal the rule.
586	(6)  Failure of the agency to respond to a committee
587	objection to a statement of estimated regulatory costs within
588	the time prescribed in subsection (3) constitutes a refusal to
589	prepare a corrected statement of estimated regulatory costs.
590	(7)  Failure of the agency to respond to a committee
591	objection to an unadopted rule within the time prescribed in
592	subsection (3) constitutes a refusal to adopt the rule and a
593	refusal to abandon all reliance upon the statement or any
594	substantially similar statement as a basis for agency action.
595	(8)(9)  If the committee objects to a proposed or existing
596	rule and the agency refuses to adopt, abandon, modify, amend,
597	withdraw, or repeal the rule, the committee shall file with the
598	Department of State a notice of the objection, detailing with
599	particularity the committee's its objection to the rule. The
600	Department of State shall publish this notice in the Florida
601	Administrative Weekly. If the rule is published and shall
602	publish, as a history note to the rule in the Florida
603	Administrative Code, a reference to the committee's objection
604	and to the issue of the Weekly in which the full text thereof
605	appears shall be recorded in a history note.
606	(9)(10)(a)  If the committee objects to a proposed or
607	existing rule, or portion of a rule thereof, and the agency
608	fails to initiate administrative action to adopt, abandon,
609	modify, amend, withdraw, or repeal the rule consistent with the
610	objection within 60 days after the objection, or thereafter
611	fails to proceed in good faith to complete such action, the
612	committee may submit to the President of the Senate and the
613	Speaker of the House of Representatives a recommendation that
614	legislation be introduced to address the committee objection
615	modify or suspend the adoption of the proposed rule, or amend or
616	repeal the rule, or portion thereof.
617	(b)1.  If the committee votes to recommend the introduction
618	of legislation to address the committee objection modify or
619	suspend the adoption of a proposed rule, or amend or repeal a
620	rule, the committee shall, within 5 days after this
621	determination, certify that fact to the agency whose rule or
622	proposed rule has been examined. The committee may request that
623	the agency temporarily suspend the rule or suspend the adoption
624	of the proposed rule, or suspend all reliance upon the statement
625	or any substantially similar statement as a basis for agency
626	action, pending consideration of proposed legislation during the
627	next regular session of the Legislature.
628	2.  Within 30 days after receipt of the certification, if
629	the agency is headed by an individual, or within 45 days after
630	receipt of the certification, if the agency is headed by a
631	collegial body, the agency shall either:
632	a.  Temporarily suspend the rule, or suspend the adoption
633	of the proposed rule, or suspend all reliance upon the statement
634	or any substantially similar statement as a basis for agency
635	action; or
636	b.  Notify the committee in writing that the agency it
637	refuses to temporarily suspend the rule, or suspend the adoption
638	of the proposed rule, or suspend all reliance upon the statement
639	or any substantially similar statement as a basis for agency
640	action.
641	3.  If the agency elects to temporarily suspend the rule,
642	or suspend the adoption of the proposed rule, or suspend all
643	reliance upon the statement or any substantially similar
644	statement as a basis for agency action, the agency it shall give
645	notice of the suspension in the Florida Administrative Weekly.
646	The rule or the rule adoption process shall be suspended upon
647	publication of the notice. An agency may shall not base any
648	agency action on a suspended rule, or suspended proposed rule,
649	or suspended statement or any substantially similar statement,
650	or portion of such rule or statement thereof, prior to
651	expiration of the suspension. A suspended rule, or suspended
652	proposed rule, or suspended statement or any substantially
653	similar statement, or portion of such rule or statement thereof,
654	continues to be subject to administrative determination and
655	judicial review as provided by law.
656	4.  Failure of an agency to respond to committee
657	certification within the time prescribed by subparagraph 2.
658	constitutes a refusal to suspend the rule, or to suspend the
659	adoption of the proposed rule, or suspend all reliance upon the
660	statement or any substantially similar statement as a basis for
661	agency action.
662	(c)  The committee shall prepare proposed legislation bills
663	to address the committee objection modify or suspend the
664	adoption of the proposed rule or amend or repeal the rule, or
665	portion thereof, in accordance with the rules of the Senate and
666	the House of Representatives for prefiling and introduction in
667	the next regular session of the Legislature. The proposed
668	legislation bill shall be presented to the President of the
669	Senate and the Speaker of the House of Representatives with the
670	committee recommendation.
671	(d)  If proposed legislation addressing the committee
672	objection a bill to suspend the adoption of a proposed rule is
673	enacted into law, the proposed rule is suspended until specific
674	delegated legislative authority for the proposed rule has been
675	enacted. If a bill to suspend the adoption of a proposed rule
676	fails to become law, any temporary agency suspension of the rule
677	shall expire. If a bill to modify a proposed rule or amend a
678	rule is enacted into law, the suspension shall expire upon
679	publication of notice of modification or amendment in the
680	Florida Administrative Weekly. If a bill to repeal a rule is
681	enacted into law, the suspension shall remain in effect until
682	notification of repeal of the rule is published in the Florida
683	Administrative Weekly.
684	(e)  The Department of State shall publish in the next
685	available issue of the Florida Administrative Weekly the final
686	legislative action taken. If a bill to modify or suspend the
687	adoption of the proposed rule or amend or repeal the rule, or
688	portion thereof, is enacted into law, the Department of State
689	shall conform the rule or portion of the rule to the provisions
690	of the law in the Florida Administrative Code and publish a
691	reference to the law as a history note to the rule.
692	Section 6.  Paragraphs (a) and (c) of subsection (1) and
693	subsections (3) and (5) of section 120.55, Florida Statutes, are
694	amended to read:
695	120.55  Publication.--
696	(1)  The Department of State shall:
697	(a)1.  Through a continuous revision system, compile and
698	publish the "Florida Administrative Code." The Florida
699	Administrative Code shall contain all rules adopted by each
700	agency, citing the specific rulemaking authority pursuant to
701	which each rule was adopted, all history notes as authorized in
702	s. 120.545(8)(9), and complete indexes to all rules contained in
703	the code. Supplementation shall be made as often as practicable,
704	but at least monthly. The department may contract with a
705	publishing firm for the publication, in a timely and useful
706	form, of the Florida Administrative Code; however, the
707	department shall retain responsibility for the code as provided
708	in this section. This publication shall be the official
709	compilation of the administrative rules of this state. The
710	Department of State shall retain the copyright over the Florida
711	Administrative Code.
712	2.  Rules general in form but applicable to only one school
713	district, community college district, or county, or a part
714	thereof, or state university rules relating to internal
715	personnel or business and finance shall not be published in the
716	Florida Administrative Code. Exclusion from publication in the
717	Florida Administrative Code shall not affect the validity or
718	effectiveness of such rules.
719	3.  At the beginning of the section of the code dealing
720	with an agency that files copies of its rules with the
721	department, the department shall publish the address and
722	telephone number of the executive offices of each agency, the
723	manner by which the agency indexes its rules, a listing of all
724	rules of that agency excluded from publication in the code, and
725	a statement as to where those rules may be inspected.
726	4.  Forms shall not be published in the Florida
727	Administrative Code; but any form which an agency uses in its
728	dealings with the public, along with any accompanying
729	instructions, shall be filed with the committee before it is
730	used. Any form or instruction which meets the definition of
731	"rule" provided in s. 120.52 shall be incorporated by reference
732	into the appropriate rule. The reference shall specifically
733	state that the form is being incorporated by reference and shall
734	include the number, title, and effective date of the form and an
735	explanation of how the form may be obtained.
736	(c)  Prescribe by rule the style, and form, and content
737	requirements required for rules, notices, and other materials
738	submitted for filing and establish the form for their
739	certification.
740	(3)  Any publication of a proposed rule promulgated by an
741	agency, whether published in the Florida Administrative Code or
742	elsewhere, shall include, along with the rule, the name of the
743	person or persons originating such rule, the name of the agency
744	head supervisor or person who approved the rule, and the date
745	upon which the rule was approved.
746	(5)(a)  All fees and moneys collected by the Department of
747	State under this chapter shall be deposited in the Records
748	Management Trust Fund for the purpose of paying for the
749	publication and distribution of the Florida Administrative Code
750	and the Florida Administrative Weekly and for associated costs
751	incurred by the department in carrying out this chapter.
752	(b)  The unencumbered balance in the Records Management
753	Trust Fund for fees collected pursuant to this chapter shall not
754	exceed $300,000 at the beginning of each fiscal year, and any
755	excess shall be transferred to the General Revenue Fund.
756	(c)  It is the intent of the Legislature that the Florida
757	Administrative Weekly be supported entirely from funds collected
758	for subscriptions to and advertisements in the Florida
759	Administrative Weekly.
760	(d)  For the 2007-2008 fiscal year only, notwithstanding
761	paragraph (b), the unencumbered balance in the Records
762	Management Trust Fund for fees collected pursuant to this
763	chapter shall not exceed $400,000 at the beginning of each
764	fiscal year, and any excess shall be transferred to the General
765	Revenue Fund. This paragraph expires July 1, 2008.
766	Section 7.  Effective December 31, 2007, paragraphs (a) and
767	(d) of subsection (1) and subsections (2), (5), and (8) of
768	section 120.55, Florida Statutes, as amended by section 4 of
769	chapter 2006-82, Laws of Florida, are amended to read:
770	120.55  Publication.--
771	(1)  The Department of State shall:
772	(a)
773	1.  Through a continuous revision system, compile and
774	publish the "Florida Administrative Code." The Florida
775	Administrative Code shall contain all rules adopted by each
776	agency, citing the specific rulemaking authority pursuant to
777	which each rule was adopted, all history notes as authorized in
778	s. 120.545(8)(9), and complete indexes to all rules contained in
779	the code. Supplementation shall be made as often as practicable,
780	but at least monthly. The department may contract with a
781	publishing firm for the publication, in a timely and useful
782	form, of the Florida Administrative Code; however, the
783	department shall retain responsibility for the code as provided
784	in this section. This publication shall be the official
785	compilation of the administrative rules of this state. The
786	Department of State shall retain the copyright over the Florida
787	Administrative Code.
788	2.  Rules general in form but applicable to only one school
789	district, community college district, or county, or a part
790	thereof, or state university rules relating to internal
791	personnel or business and finance shall not be published in the
792	Florida Administrative Code. Exclusion from publication in the
793	Florida Administrative Code shall not affect the validity or
794	effectiveness of such rules.
795	3.  At the beginning of the section of the code dealing
796	with an agency that files copies of its rules with the
797	department, the department shall publish the address and
798	telephone number of the executive offices of each agency, the
799	manner by which the agency indexes its rules, a listing of all
800	rules of that agency excluded from publication in the code, and
801	a statement as to where those rules may be inspected.
802	4.  Forms shall not be published in the Florida
803	Administrative Code; but any form which an agency uses in its
804	dealings with the public, along with any accompanying
805	instructions, shall be filed with the committee before it is
806	used. Any form or instruction which meets the definition of
807	"rule" provided in s. 120.52 shall be incorporated by reference
808	into the appropriate rule. The reference shall specifically
809	state that the form is being incorporated by reference and shall
810	include the number, title, and effective date of the form and an
811	explanation of how the form may be obtained. Each form created
812	by an agency which is incorporated by reference in a rule notice
813	of which is given under s. 120.54(3)(a) after December 31, 2007,
814	must clearly display the number, title, and effective date of
815	the form and the number of the rule in which the form is
816	incorporated.
817	(d)  Prescribe by rule the style, and form, and content
818	requirements required for rules, notices, and other materials
819	submitted for filing and establish the form for their
820	certification.
821	(2)  The Florida Administrative Weekly Internet website
822	must allow users to:
823	(a)  Search for notices by type, publication date, rule
824	number, word, subject, and agency;
825	(b)  Search a database that makes available all notices
826	published on the website for a period of at least 5 years;
827	(c)  Subscribe to an automated e-mail notification of
828	selected notices to be sent out prior to or concurrently with
829	weekly publication of the printed and electronic Florida
830	Administrative Weekly. Such notification must include in the
831	text of the e-mail a summary of the content of each notice;
832	(d)  View agency forms and other materials that have been
833	submitted to the department in electronic form and that are
834	being incorporated by reference in proposed rules; and
835	(e)  Comment on proposed rules.
836	(5)  Any publication of a proposed rule promulgated by an
837	agency, whether published in the Florida Administrative Code or
838	elsewhere, shall include, along with the rule, the name of the
839	person or persons originating such rule, the name of the agency
840	head supervisor or person who approved the rule, and the date
841	upon which the rule was approved.
842	(8)
843	(a)  All fees and moneys collected by the Department of
844	State under this chapter shall be deposited in the Records
845	Management Trust Fund for the purpose of paying for costs
846	incurred by the department in carrying out this chapter.
847	(b)  The unencumbered balance in the Records Management
848	Trust Fund for fees collected pursuant to this chapter may not
849	exceed $300,000 at the beginning of each fiscal year, and any
850	excess shall be transferred to the General Revenue Fund.
851	(c)  For the 2007-2008 fiscal year only, notwithstanding
852	paragraph (b), the unencumbered balance in the Records
853	Management Trust Fund for fees collected pursuant to this
854	chapter shall not exceed $400,000 at the beginning of each
855	fiscal year, and any excess shall be transferred to the General
856	Revenue Fund. This paragraph expires July 1, 2008.
857	Section 8.  Effective December 31, 2008, paragraph (a) of
858	subsection (1) of section 120.55, Florida Statutes, as amended
859	by section 4 of chapter 2006-82, Laws of Florida, is amended to
860	read:
861	120.55  Publication.--
862	(1)  The Department of State shall:
863	(a)1.  Through a continuous revision system, compile and
864	publish electronically the "Florida Administrative Code." on an
865	Internet website managed by the department. The Florida
866	Administrative Code shall contain all rules adopted by each
867	agency, citing the grant of specific rulemaking authority and
868	the specific law implemented pursuant to which each rule was
869	adopted, all history notes as authorized in s. 120.545(9), and
870	complete indexes to all rules contained in the code, and any
871	other material required or authorized by law or deemed useful by
872	the department. The electronic code shall display each rule
873	chapter currently in effect in browse mode and allow full text
874	search of the code and each rule chapter. Supplementation shall
875	be made as often as practicable, but at least monthly. The
876	department shall publish a printed version of the Florida
877	Administrative Code and may contract with a publishing firm for
878	such printed the publication, in a timely and useful form, of
879	the Florida Administrative Code; however, the department shall
880	retain responsibility for the code as provided in this section.
881	Supplementation of the printed code shall be made as often as
882	practicable, but at least monthly. The printed This publication
883	shall be the official compilation of the administrative rules of
884	this state. The Department of State shall retain the copyright
885	over the Florida Administrative Code.
886	2.  Rules general in form but applicable to only one school
887	district, community college district, or county, or a part
888	thereof, or state university rules relating to internal
889	personnel or business and finance shall not be published in the
890	Florida Administrative Code. Exclusion from publication in the
891	Florida Administrative Code shall not affect the validity or
892	effectiveness of such rules.
893	3.  At the beginning of the section of the code dealing
894	with an agency that files copies of its rules with the
895	department, the department shall publish the address and
896	telephone number of the executive offices of each agency, the
897	manner by which the agency indexes its rules, a listing of all
898	rules of that agency excluded from publication in the code, and
899	a statement as to where those rules may be inspected.
900	4.  Forms shall not be published in the Florida
901	Administrative Code; but any form which an agency uses in its
902	dealings with the public, along with any accompanying
903	instructions, shall be filed with the committee before it is
904	used. Any form or instruction which meets the definition of
905	"rule" provided in s. 120.52 shall be incorporated by reference
906	into the appropriate rule. The reference shall specifically
907	state that the form is being incorporated by reference and shall
908	include the number, title, and effective date of the form and an
909	explanation of how the form may be obtained. Each form created
910	by an agency which is incorporated by reference in a rule notice
911	of which is given under s. 120.54(3)(a) after December 31, 2007,
912	must clearly display the number, title, and effective date of
913	the form and the number of the rule in which the form is
914	incorporated.
915	5.  The department shall allow material incorporated by
916	reference to be filed in electronic form as prescribed by
917	department rule. When a rule is filed for adoption with
918	incorporated material in electronic form, the department's
919	publication of the Florida Administrative Code on its Internet
920	website must contain a hyperlink from the incorporating
921	reference in the rule directly to that material. The department
922	may not allow hyperlinks from rules in the Florida
923	Administrative Code to any material other than that filed with
924	and maintained by the department, but it may allow additional
925	hyperlinks to incorporated material maintained by the department
926	from the adopting agency's website or other sites.
927	Section 9.  Paragraph (a) of subsection (2) of section
928	120.56, Florida Statutes, and, effective January 1, 2008,
929	subsection (4) of that section, are amended to read:
930	120.56  Challenges to rules.--
931	(2)  CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--
932	(a)  Any substantially affected person may seek an
933	administrative determination of the invalidity of any proposed
934	rule by filing a petition seeking such a determination with the
935	division within 21 days after the date of publication of the
936	notice required by s. 120.54(3)(a), within 10 days after the
937	final public hearing is held on the proposed rule as provided by
938	s. 120.54(3)(e)2.(c), within 20 days after the preparation of a
939	statement of estimated regulatory costs required pursuant to s.
940	120.541, if applicable, has been provided to all persons who
941	submitted a lower cost regulatory alternative and made available
942	to the public, or within 20 days after the date of publication
943	of the notice required by s. 120.54(3)(d). The petition shall
944	state with particularity the objections to the proposed rule and
945	the reasons that the proposed rule is an invalid exercise of
946	delegated legislative authority. The petitioner has the burden
947	of going forward. The agency then has the burden to prove by a
948	preponderance of the evidence that the proposed rule is not an
949	invalid exercise of delegated legislative authority as to the
950	objections raised. Any person who is substantially affected by a
951	change in the proposed rule may seek a determination of the
952	validity of such change. Any person not substantially affected
953	by the proposed rule as initially noticed, but who is
954	substantially affected by the rule as a result of a change, may
955	challenge any provision of the rule and is not limited to
956	challenging the change to the proposed rule.
957	(4)  CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;
958	SPECIAL PROVISIONS.--
959	(a)  Any person substantially affected by an agency
960	statement may seek an administrative determination that the
961	statement violates s. 120.54(1)(a). The petition shall include
962	the text of the statement or a description of the statement and
963	shall state with particularity facts sufficient to show that the
964	statement constitutes a rule under s. 120.52 and that the agency
965	has not adopted the statement by the rulemaking procedure
966	provided by s. 120.54. Upon the filing of a petition for an
967	administrative determination under this paragraph, the agency
968	shall immediately discontinue all reliance upon the statement or
969	any substantially similar statement as a basis for agency action
970	until:
971	1.  The proceeding is dismissed for any reason other than
972	initiation of rulemaking under s. 120.54;
973	2.  The statement is adopted and becomes effective as a
974	rule;
975	3.  A final order is issued which contains a determination
976	that the petitioner failed to prove that the statement
977	constitutes a rule under s. 120.52; or
978	4.  A final order is issued which contains a determination
979	that rulemaking is not feasible under s. 120.54(1)(a)1.a. or b.
980	or not practicable under s. 120.54(1)(a)2.
981	(b)  If the administrative law judge determines that the
982	agency's inability to rely upon the statement during the
983	proceeding under paragraph (a) would constitute an immediate
984	danger to the public health, safety, or welfare, the
985	administrative law judge shall grant an agency petition to allow
986	application of the statement until the proceeding is concluded.
987	(c)(b)  The administrative law judge may extend the hearing
988	date beyond 30 days after assignment of the case for good cause.
989	If a hearing is held and the petitioner proves the allegations
990	of the petition, the agency shall have the burden of proving
991	that rulemaking is not feasible or not and practicable under s.
992	120.54(1)(a).
993	(d)(c)  The administrative law judge may determine whether
994	all or part of a statement violates s. 120.54(1)(a). The
995	decision of the administrative law judge shall constitute a
996	final order. The division shall transmit a copy of the final
997	order to the Department of State and the committee. The
998	Department of State shall publish notice of the final order in
999	the first available issue of the Florida Administrative Weekly.
1000	(d)  When an administrative law judge enters a final order
1001	that all or part of an agency statement violates s.
1002	120.54(1)(a), the agency shall immediately discontinue all
1003	reliance upon the statement or any substantially similar
1004	statement as a basis for agency action.
1005	(e)1.  If, prior to a final hearing to determine whether
1006	all or part of any agency statement violates s. 120.54(1)(a), an
1007	agency publishes, pursuant to s. 120.54(3)(a), proposed rules
1008	that address the statement, then for purposes of this section, a
1009	presumption is created that the agency is acting expeditiously
1010	and in good faith to adopt rules that address the statement, and
1011	the agency shall be permitted to rely upon the statement or a
1012	substantially similar statement as a basis for agency action if
1013	the statement meets the requirements of s. 120.57(1)(e).
1014	2.  If, prior to the final hearing to determine whether all
1015	or part of an agency statement violates s. 120.54(1)(a), an
1016	agency publishes a notice of rule development which addresses
1017	the statement pursuant to s. 120.54(2), or certifies that such a
1018	notice has been transmitted to the Florida Administrative Weekly
1019	for publication, then such publication shall constitute good
1020	cause for the granting of a stay of the proceedings and a
1021	continuance of the final hearing for 30 days. If the agency
1022	publishes proposed rules within this 30-day period or any
1023	extension of that period granted by an administrative law judge
1024	upon showing of good cause, then the administrative law judge
1025	shall place the case in abeyance pending the outcome of
1026	rulemaking and any proceedings involving challenges to proposed
1027	rules pursuant to subsection (2).
1028	3.  If, following the commencement of the final hearing and
1029	prior to entry of a final order that all or part of an agency
1030	statement violates s. 120.54(1)(a), an agency publishes,
1031	pursuant to s. 120.54(3)(a), proposed rules that address the
1032	statement and proceeds expeditiously and in good faith to adopt
1033	rules that address the statement, the agency shall be permitted
1034	to rely upon the statement or a substantially similar statement
1035	as a basis for agency action if the statement meets the
1036	requirements of s. 120.57(1)(e).
1037	4.  If an agency fails to adopt rules that address the
1038	statement within 180 days after publishing proposed rules, for
1039	purposes of this subsection, a presumption is created that the
1040	agency is not acting expeditiously and in good faith to adopt
1041	rules. If the agency's proposed rules are challenged pursuant to
1042	subsection (2), the 180-day period for adoption of rules is
1043	tolled until a final order is entered in that proceeding.
1044	5.  If the proposed rules addressing the challenged
1045	statement are determined to be an invalid exercise of delegated
1046	legislative authority as defined in s. 120.52(8)(b)-(f), the
1047	agency must immediately discontinue reliance on the statement
1048	and any substantially similar statement until the rules
1049	addressing the subject are properly adopted.
1050	(e)(f)  All proceedings to determine a violation of s.
1051	120.54(1)(a) shall be brought pursuant to this subsection. A
1052	proceeding pursuant to this subsection may be consolidated with
1053	a proceeding under subsection (3) or under any other section of
1054	this chapter. Nothing in this paragraph shall be construed to
1055	prevent a party whose substantial interests have been determined
1056	by an agency action from bringing a proceeding pursuant to s.
1057	120.57(1)(e).
1058	Section 10.  Effective January 1, 2008, paragraph (e) of
1059	subsection (1) of section 120.57, Florida Statutes, is amended
1060	to read:
1061	120.57  Additional procedures for particular cases.--
1062	(1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
1063	DISPUTED ISSUES OF MATERIAL FACT.--
1064	(e)1.  Any Agency action that determines the substantial
1065	interests of a party may not be and that is based on an agency
1066	statement that violates s. 120.54(1)(a). An agency or an
1067	administrative law judge may not enforce any agency policy that
1068	constitutes an unadopted rule when the agency fails to prove
1069	that rulemaking is not feasible or practicable. This
1070	subparagraph does not preclude application of adopted rules and
1071	applicable provisions of law to the facts unadopted rule is
1072	subject to de novo review by an administrative law judge.
1073	2.  The agency action shall not be presumed valid or
1074	invalid. The agency must demonstrate that the unadopted rule:
1075	a.  Is within the powers, functions, and duties delegated
1076	by the Legislature or, if the agency is operating pursuant to
1077	authority derived from the State Constitution, is within that
1078	authority;
1079	b.  Does not enlarge, modify, or contravene the specific
1080	provisions of law implemented;
1081	c.  Is not vague, establishes adequate standards for agency
1082	decisions, or does not vest unbridled discretion in the agency;
1083	d.  Is not arbitrary or capricious. A rule is arbitrary if
1084	it is not supported by logic or the necessary facts; a rule is
1085	capricious if it is adopted without thought or reason or is
1086	irrational;
1087	e.  Is not being applied to the substantially affected
1088	party without due notice; and
1089	f.  Does not impose excessive regulatory costs on the
1090	regulated person, county, or city.
1091	2.3.  The recommended and final orders in any proceeding
1092	shall be governed by the provisions of paragraphs (k) and (l),
1093	except that the administrative law judge's determination
1094	regarding the unadopted rule shall not be rejected by the agency
1095	unless the agency first determines from a review of the complete
1096	record, and states with particularity in the order, that such
1097	determination is clearly erroneous or does not comply with
1098	essential requirements of law. In any proceeding for review
1099	under s. 120.68, if the court finds that the agency's rejection
1100	of the determination regarding the unadopted rule does not
1101	comport with the provisions of this subparagraph, the agency
1102	action shall be set aside and the court shall award to the
1103	prevailing party the reasonable costs and a reasonable
1104	attorney's fee for the initial proceeding and the proceeding for
1105	review.
1106	Section 11.  Effective January 1, 2008, subsections (2),
1107	(3), and (4) of section 120.595, Florida Statutes, are amended
1108	to read:
1109	120.595  Attorney's fees.--
1110	(2)  CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO
1111	SECTION 120.56(2).--If the court or administrative law judge
1112	declares a proposed rule or portion of a proposed rule invalid
1113	pursuant to s. 120.56(2), a judgment or order shall be rendered
1114	against the agency for reasonable costs and reasonable
1115	attorney's fees, unless the agency demonstrates that its actions
1116	were substantially justified or special circumstances exist
1117	which would make the award unjust. An agency's actions are
1118	"substantially justified" if there was a reasonable basis in law
1119	and fact at the time the actions were taken by the agency. If
1120	the agency prevails in the proceedings, the court or
1121	administrative law judge shall award reasonable costs and
1122	reasonable attorney's fees against a party if the court or
1123	administrative law judge determines that a party participated in
1124	the proceedings for an improper purpose as defined by paragraph
1125	(1)(e). No award of attorney's fees as provided by this
1126	subsection shall exceed $50,000 $15,000.
1127	(3)  CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO
1128	SECTION 120.56(3) AND (5).--If the court or administrative law
1129	judge declares a rule or portion of a rule invalid pursuant to
1130	s. 120.56(3) or (5), a judgment or order shall be rendered
1131	against the agency for reasonable costs and reasonable
1132	attorney's fees, unless the agency demonstrates that its actions
1133	were substantially justified or special circumstances exist
1134	which would make the award unjust. An agency's actions are
1135	"substantially justified" if there was a reasonable basis in law
1136	and fact at the time the actions were taken by the agency. If
1137	the agency prevails in the proceedings, the court or
1138	administrative law judge shall award reasonable costs and
1139	reasonable attorney's fees against a party if the court or
1140	administrative law judge determines that a party participated in
1141	the proceedings for an improper purpose as defined by paragraph
1142	(1)(e). No award of attorney's fees as provided by this
1143	subsection shall exceed $50,000 $15,000.
1144	(4)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
1145	120.56(4).--
1146	(a)  Upon entry of a final order that all or part of an
1147	agency statement violates s. 120.54(1)(a), the administrative
1148	law judge shall award reasonable costs and reasonable attorney's
1149	fees to the petitioner, unless the agency demonstrates that the
1150	statement is required by the Federal Government to implement or
1151	retain a delegated or approved program or to meet a condition to
1152	receipt of federal funds.
1153	(b) If prior to the final hearing the agency initiates
1154	rulemaking under s 120.54 and requests a stay of the proceedings
1155	pending rulemaking, the administrative law judge shall award
1156	reasonable costs and reasonable attorney's fees accrued by the
1157	petitioner prior to the date the agency filed its request for a
1158	stay pending rulemaking, provided the agency adopts the
1159	statement as a rule.  A request for a stay shall be granted when
1160	the petitioner and the agency agree to the stay. If the
1161	petitioner objects to the stay, the stay may be denied if the
1162	petitioner establishes that good cause exists to deny the stay.
1163	A stay granted under this paragraph shall remain in effect
1164	until either the statement has been adopted as a rule and has
1165	become effective or the proposed rule has been withdrawn.  A
1166	request for attorney's fees and costs under this paragraph shall
1167	be granted only upon a finding that the agency knew or should
1168	have known at the time the petition was filed that the agency
1169	statement was an unadopted rule, and no award of attorney's fees
1170	as provided by this paragraph shall exceed $50,000.
1171	(c)(b)  Notwithstanding the provisions of chapter 284, an
1172	award shall be paid from the budget entity of the secretary,
1173	executive director, or equivalent administrative officer of the
1174	agency, and the agency shall not be entitled to payment of an
1175	award or reimbursement for payment of an award under any
1176	provision of law.
1177	(d)  If the agency prevails in the proceedings, the court
1178	or administrative law judge shall award reasonable costs and
1179	attorney's fees against a party if the court or administrative
1180	law judge determines that the party participated in the
1181	proceedings for an improper purpose as defined in paragraph
1182	(1)(e).
1183	Section 12.  Subsection (1) and paragraph (c) of subsection
1184	(2) of section 120.569, Florida Statutes, are amended to read:
1185	120.569  Decisions which affect substantial interests.--
1186	(1)  The provisions of this section apply in all
1187	proceedings in which the substantial interests of a party are
1188	determined by an agency, unless the parties are proceeding under
1189	s. 120.573 or s. 120.574. Unless waived by all parties, s.
1190	120.57(1) applies whenever the proceeding involves a disputed
1191	issue of material fact. Unless otherwise agreed, s. 120.57(2)
1192	applies in all other cases. If a disputed issue of material fact
1193	arises during a proceeding under s. 120.57(2), then, unless
1194	waived by all parties, the proceeding under s. 120.57(2) shall
1195	be terminated and a proceeding under s. 120.57(1) shall be
1196	conducted. Parties shall be notified of any order, including a
1197	final order. Unless waived, a copy of the order shall be
1198	delivered or mailed to each party or the party's attorney of
1199	record at the address of record. Each notice shall inform the
1200	recipient of any administrative hearing or judicial review that
1201	is available under this section, s. 120.57, or s. 120.68; shall
1202	indicate the procedure which must be followed to obtain the
1203	hearing or judicial review; and shall state the time limits
1204	which apply.
1205	(2)
1206	(c)  Unless otherwise provided by law, a petition or
1207	request for hearing shall include those items required by the
1208	uniform rules adopted pursuant to s. 120.54(5)(b) s.
1209	120.54(5)(b)4. Upon the receipt of a petition or request for
1210	hearing, the agency shall carefully review the petition to
1211	determine if it contains all of the required information. A
1212	petition shall be dismissed if it is not in substantial
1213	compliance with these requirements or it has been untimely
1214	filed. Dismissal of a petition shall, at least once, be without
1215	prejudice to petitioner's filing a timely amended petition
1216	curing the defect, unless it conclusively appears from the face
1217	of the petition that the defect cannot be cured. The agency
1218	shall promptly give written notice to all parties of the action
1219	taken on the petition, shall state with particularity its
1220	reasons if the petition is not granted, and shall state the
1221	deadline for filing an amended petition if applicable. This
1222	paragraph does not eliminate the availability of equitable
1223	tolling as a defense to the untimely filing of a petition.
1224	Section 13.  Subsection (2) of section 120.74, Florida
1225	Statutes, is amended to read:
1226	120.74  Agency review, revision, and report.--
1227	(2)  Beginning October 1, 1997, and by October 1 of every
1228	other year thereafter, the head of each agency shall file a
1229	report with the President of the Senate, the Speaker of the
1230	House of Representatives, and the committee, with a copy to each
1231	appropriate standing committee of the Legislature, which
1232	certifies that the agency has complied with the requirements of
1233	this section subsection. The report must specify any changes
1234	made to its rules as a result of the review and, when
1235	appropriate, recommend statutory changes that will promote
1236	efficiency, reduce paperwork, or decrease costs to government
1237	and the private sector. The report must identify the types of
1238	cases or disputes in which the agency is involved which should
1239	be conducted under the summary hearing process described in s.
1240	120.574.
1241	Section 14.  Subsection (11) of section 120.80, Florida
1242	Statutes, is amended to read:
1243	120.80  Exceptions and special requirements; agencies.--
1244	(11)  NATIONAL GUARD.--Notwithstanding s. 120.52(16)(15),
1245	the enlistment, organization, administration, equipment,
1246	maintenance, training, and discipline of the militia, National
1247	Guard, organized militia, and unorganized militia, as provided
1248	by s. 2, Art. X of the State Constitution, are not rules as
1249	defined by this chapter.
1250	Section 15.  Paragraph (c) of subsection (1) and paragraph
1251	(a) of subsection (3) of section 120.81, Florida Statutes, are
1252	amended to read:
1253	120.81  Exceptions and special requirements; general
1254	areas.--
1255	(1)  EDUCATIONAL UNITS.--
1256	(c)  Notwithstanding s. 120.52(16)(15), any tests, test
1257	scoring criteria, or testing procedures relating to student
1258	assessment which are developed or administered by the Department
1259	of Education pursuant to s. 1003.43, s. 1003.438, s. 1008.22, or
1260	s. 1008.25, or any other statewide educational tests required by
1261	law, are not rules.
1262	(3)  PRISONERS AND PAROLEES.--
1263	(a)  Notwithstanding s. 120.52(13)(12), prisoners, as
1264	defined by s. 944.02, shall not be considered parties in any
1265	proceedings other than those under s. 120.54(3)(c) or (7), and
1266	may not seek judicial review under s. 120.68 of any other agency
1267	action. Prisoners are not eligible to seek an administrative
1268	determination of an agency statement under s. 120.56(4).
1269	Parolees shall not be considered parties for purposes of agency
1270	action or judicial review when the proceedings relate to the
1271	rescission or revocation of parole.
1272	Section 16.  Paragraph (f) of subsection (2) of section
1273	409.175, Florida Statutes, is amended to read:
1274	409.175  Licensure of family foster homes, residential
1275	child-caring agencies, and child-placing agencies; public
1276	records exemption.--
1277	(2)  As used in this section, the term:
1278	(f)  "License" means "license" as defined in s.
1279	120.52(10)(9). A license under this section is issued to a
1280	family foster home or other facility and is not a professional
1281	license of any individual. Receipt of a license under this
1282	section shall not create a property right in the recipient. A
1283	license under this act is a public trust and a privilege, and is
1284	not an entitlement. This privilege must guide the finder of fact
1285	or trier of law at any administrative proceeding or court action
1286	initiated by the department.
1287	Section 17.  Paragraph (a) of subsection (1) of section
1288	420.9072, Florida Statutes, is amended to read:
1289	420.9072  State Housing Initiatives Partnership
1290	Program.--The State Housing Initiatives Partnership Program is
1291	created for the purpose of providing funds to counties and
1292	eligible municipalities as an incentive for the creation of
1293	local housing partnerships, to expand production of and preserve
1294	affordable housing, to further the housing element of the local
1295	government comprehensive plan specific to affordable housing,
1296	and to increase housing-related employment.
1297	(1)(a)  In addition to the legislative findings set forth
1298	in s. 420.6015, the Legislature finds that affordable housing is
1299	most effectively provided by combining available public and
1300	private resources to conserve and improve existing housing and
1301	provide new housing for very-low-income households, low-income
1302	households, and moderate-income households. The Legislature
1303	intends to encourage partnerships in order to secure the
1304	benefits of cooperation by the public and private sectors and to
1305	reduce the cost of housing for the target group by effectively
1306	combining all available resources and cost-saving measures. The
1307	Legislature further intends that local governments achieve this
1308	combination of resources by encouraging active partnerships
1309	between government, lenders, builders and developers, real
1310	estate professionals, advocates for low-income persons, and
1311	community groups to produce affordable housing and provide
1312	related services. Extending the partnership concept to encompass
1313	cooperative efforts among small counties as defined in s.
1314	120.52(19)(17), and among counties and municipalities is
1315	specifically encouraged. Local governments are also intended to
1316	establish an affordable housing advisory committee to recommend
1317	monetary and nonmonetary incentives for affordable housing as
1318	provided in s. 420.9076.
1319	Section 18.  Subsection (7) of section 420.9075, Florida
1320	Statutes, is amended to read:
1321	420.9075  Local housing assistance plans; partnerships.--
1322	(7)  The moneys deposited in the local housing assistance
1323	trust fund shall be used to administer and implement the local
1324	housing assistance plan. The cost of administering the plan may
1325	not exceed 5 percent of the local housing distribution moneys
1326	and program income deposited into the trust fund. A county or an
1327	eligible municipality may not exceed the 5-percent limitation on
1328	administrative costs, unless its governing body finds, by
1329	resolution, that 5 percent of the local housing distribution
1330	plus 5 percent of program income is insufficient to adequately
1331	pay the necessary costs of administering the local housing
1332	assistance plan. The cost of administering the program may not
1333	exceed 10 percent of the local housing distribution plus 5
1334	percent of program income deposited into the trust fund, except
1335	that small counties, as defined in s. 120.52(19)(17), and
1336	eligible municipalities receiving a local housing distribution
1337	of up to $350,000 may use up to 10 percent of program income for
1338	administrative costs.
1339	Section 19.  For fiscal year 2007-2008, the nonrecurring
1340	sum of $345,000 is appropriated from the Records Management
1341	Trust Fund to the Department of State for the purposes of
1342	carrying out the provisions of this act.
1343	Section 20.  Except as otherwise expressly provided in this
1344	act, this act shall take effect July 1, 2007.

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