Florida Senate - 2010 CS for SB 2140
By the Committee on Governmental Oversight and Accountability;
and Senators Joyner and Lynn
585-05300-10 20102140c1
1 A bill to be entitled
2 An act relating to administrative procedures; amending
3 s. 120.54, F.S.; requiring an agency’s notice of rule
4 development to indicate whether the rule may have an
5 adverse impact on small businesses; requiring that the
6 agency also notify the Small Business Regulatory
7 Advisory Council if the rule may have an adverse
8 impact; authorizing the council to propose regulatory
9 alternatives to the agency within a specified period;
10 requiring an agency to send a statement to the council
11 and the Administrative Procedures Committee if the
12 agency does not adopt the proposed alternatives;
13 revising the duties of the Office of Program Policy
14 Analysis and Government Accountability with respect to
15 its review of proposed alternative rules; revising
16 certain procedures for an agency in filing a rule for
17 final adoption; amending s. 120.541, F.S.; conforming
18 provisions to changes made by the act; revising
19 provisions relating to an agency’s response to a
20 proposal by a substantially affected person for a
21 lower cost regulatory alternative to a proposed rule;
22 revising the grounds for declaring a rule invalid due
23 to the agency’s failure to prepare a statement of
24 estimated regulatory costs; providing that a rule that
25 imposes regulatory costs that could be reduced under
26 certain circumstances may be declared invalid if
27 certain requirements are not met; requiring that a
28 rule impact analysis for small businesses include the
29 agency’s basis for not implementing alternatives to a
30 proposed rule; amending s. 120.56, F.S.; providing for
31 revised statements of estimated regulatory costs as a
32 basis for challenging a rule; amending s. 120.60,
33 F.S.; authorizing an agency to provide by rule for the
34 time period for submitting additional information
35 needed for a license application; requiring that
36 certain requests to receive notice relating to a
37 license application be submitted in writing; providing
38 an effective date.
39
40 Be It Enacted by the Legislature of the State of Florida:
41
42 Section 1. Paragraph (a) of subsection (2) and paragraphs
43 (a), (b), and (e) of subsection (3) of section 120.54, Florida
44 Statutes, are amended to read:
45 120.54 Rulemaking.—
46 (2) RULE DEVELOPMENT; WORKSHOPS; NEGOTIATED RULEMAKING.—
47 (a) Except when the intended action is the repeal of a
48 rule, agencies shall provide notice of the development of
49 proposed rules by publication of a notice of rule development in
50 the Florida Administrative Weekly before providing notice of the
51 a proposed rule as required by paragraph (3)(a). The notice of
52 rule development must shall indicate the subject area to be
53 addressed by rule development, provide a short, plain
54 explanation of the purpose and effect of the proposed rule, cite
55 the specific legal authority for the proposed rule, indicate
56 that the rule does not have or that it may have an adverse
57 impact on small businesses and briefly describe that impact, and
58 include the preliminary text of the proposed rule rules, if
59 available, or a statement of how a person may promptly obtain,
60 without cost, a copy of the any preliminary text draft, if
61 available. If the rule being developed may have an adverse
62 impact on small businesses, the notice must also be sent
63 electronically or in writing to the Small Business Regulatory
64 Advisory Council.
65 (3) ADOPTION PROCEDURES.—
66 (a) Notices.—
67 1. Before Prior to the adoption, amendment, or repeal of
68 any rule other than an emergency rule, an agency, upon approval
69 of the agency head, shall give notice of its intended action,
70 setting forth a short, plain explanation of the purpose and
71 effect of the proposed action; the full text of the proposed
72 rule or amendment and a summary thereof; a reference to the
73 grant of rulemaking authority pursuant to which the rule is
74 adopted; and a reference to the section or subsection of the
75 Florida Statutes or the Laws of Florida being implemented or
76 interpreted. The notice must include a summary of the agency’s
77 statement of the estimated regulatory costs, if one has been
78 prepared, based on the factors set forth in s. 120.541(2), and a
79 statement that any person who wishes to provide the agency with
80 information regarding the statement of estimated regulatory
81 costs, or to provide a proposal for a lower cost regulatory
82 alternative as provided by s. 120.541(1), must do so in writing
83 within 21 days after publication of the notice. The notice must
84 state the procedure for requesting a public hearing on the
85 proposed rule. Except when the intended action is the repeal of
86 a rule, the notice must include a reference both to the date on
87 which and to the place where the notice of rule development
88 which that is required under by subsection (2) appeared.
89 2. The notice shall be published in the Florida
90 Administrative Weekly at least not less than 28 days before
91 prior to the intended action. The proposed rule must shall be
92 available for inspection and copying by the public at the time
93 of the publication of notice.
94 3. The notice shall be mailed to all persons named in the
95 proposed rule and to all persons who, at least 14 days before
96 prior to such mailing, have made a request to requests of the
97 agency for advance notice of its proceedings. The agency shall
98 also give such notice, as is prescribed by rule, to those
99 particular classes of persons to whom the intended action is
100 directed.
101 4. The adopting agency shall file with the committee, at
102 least 21 days before prior to the proposed adoption date, a copy
103 of each rule it proposes to adopt; a copy of any material
104 incorporated by reference in the rule; a detailed written
105 statement of the facts and circumstances justifying the proposed
106 rule; a copy of any statement of estimated regulatory costs
107 which that has been prepared pursuant to s. 120.541; a statement
108 of the extent to which the proposed rule relates to federal
109 standards or rules on the same subject; and the notice required
110 by subparagraph 1.
111 (b) Special matters to be considered in rule adoption.—
112 1. Statement of estimated regulatory costs.—Before Prior to
113 the adoption, amendment, or repeal of any rule other than an
114 emergency rule, an agency is encouraged to prepare a statement
115 of estimated regulatory costs of the proposed rule, as provided
116 by s. 120.541. However, an agency must shall prepare a statement
117 of estimated regulatory costs of the proposed rule, as provided
118 by s. 120.541, if the proposed rule will have an adverse impact
119 on small business.
120 2. Small businesses, small counties, and small cities.—
121 a. Each agency, before the adoption, amendment, or repeal
122 of a rule, shall consider the impact of the rule on small
123 businesses as defined by s. 288.703 and the impact of the rule
124 on small counties or small cities as defined by s. 120.52. If
125 Whenever practicable, an agency shall tier its rules to reduce
126 disproportionate impacts on small businesses, small counties, or
127 small cities to avoid regulating small businesses, small
128 counties, or small cities that do not contribute significantly
129 to the problem the rule is designed to address. An agency may
130 define “small business” to include businesses employing more
131 than 200 persons, may define “small county” to include those
132 with populations of more than 75,000, and may define “small
133 city” to include those with populations of more than 10,000, if
134 it finds that such a definition is necessary to adapt a rule to
135 the needs and problems of small businesses, small counties, or
136 small cities. The agency shall consider each of the following
137 methods for reducing the impact of the proposed rule on small
138 businesses, small counties, and small cities, or any combination
139 of these entities:
140 (I) Establishing less stringent compliance or reporting
141 requirements in the rule.
142 (II) Establishing less stringent schedules or deadlines in
143 the rule for compliance or reporting requirements.
144 (III) Consolidating or simplifying the rule’s compliance or
145 reporting requirements.
146 (IV) Establishing performance standards or best management
147 practices to replace design or operational standards in the
148 rule.
149 (V) Exempting small businesses, small counties, or small
150 cities from any or all requirements of the rule.
151 b.(I) If the agency determines that the proposed action
152 will adversely impact affect small businesses as defined by the
153 agency as provided in sub-subparagraph a., the agency shall send
154 an electronic or written notice of the rule and a statement of
155 the estimated regulatory costs of the proposed rule to the Small
156 Business Regulatory Advisory Council and the Office of Tourism,
157 Trade, and Economic Development, with a copy provided to the
158 committee, at least 45 not less than 28 days before prior to the
159 intended action.
160 (I)(II) The council may propose regulatory alternatives to
161 the agency, electronically or in writing, with a copy provided
162 to the committee, within 44 days after the council’s receipt of
163 the statement of estimated regulatory costs. The proposal may
164 include the alternative of not adopting a rule if the proposal
165 explains how the lower costs and objectives of the law will be
166 achieved by not adopting a rule. The agency shall consider the
167 proposed small business regulatory alternatives in a public
168 hearing, revise its prior statement of estimated regulatory
169 costs, if appropriate, and adopt the alternative or provide a
170 statement of the reasons for rejecting the alternative in favor
171 of the proposed rule. Each agency shall adopt those regulatory
172 alternatives offered by the Small Business Regulatory Advisory
173 Council and provided to the agency no later than 21 days after
174 the council’s receipt of the written notice of the rule which it
175 finds are feasible and consistent with the stated objectives of
176 the proposed rule and which would reduce the impact on small
177 businesses. If When regulatory alternatives are offered by the
178 Small Business Regulatory Advisory council or the agency issues
179 a revised statement of estimated regulatory costs, the time 90
180 day period for filing the rule in subparagraph (e)2. is extended
181 for 45 a period of 21 days.
182 (II)(III) If an agency does not adopt all alternatives
183 offered pursuant to this sub-subparagraph, it must shall, prior
184 to rule adoption or amendment and pursuant to subparagraph
185 (d)1., file a detailed electronic or written statement with the
186 committee explaining the reasons for not adopting failure to
187 adopt such alternatives before rule adoption or amendment and
188 pursuant to subparagraph (d)1. Within 3 working days after of
189 the filing of such notice, the agency shall send an electronic
190 or written a copy of such notice to the Small Business
191 Regulatory Advisory Council. The Small Business Regulatory
192 Advisory council may make a request of the President of the
193 Senate and the Speaker of the House of Representatives that the
194 presiding officers direct the Office of Program Policy Analysis
195 and Government Accountability to determine whether the rejected
196 alternatives substantially accomplish the objectives of the law
197 being implemented and reduce the adverse impact on small
198 businesses business while meeting the stated objectives of the
199 proposed rule. Within 60 days after the date of the directive
200 from the presiding officers, the office of Program Policy
201 Analysis and Government Accountability shall report its findings
202 to the Administrative Procedures committee its findings as to
203 whether an alternative reduces the impact on small business
204 while meeting the stated objectives of the proposed rule. The
205 office must, at a minimum, of Program Policy Analysis and
206 Government Accountability shall consider the proposed rule, the
207 economic impact statement, the written statement of the agency,
208 the proposed alternatives, and any comment submitted during the
209 comment period on the proposed rule. The office of Program
210 Policy Analysis and Government Accountability shall submit a
211 report of its findings and recommendations to the Governor, the
212 President of the Senate, and the Speaker of the House of
213 Representatives, and the committee. The Administrative
214 Procedures committee shall report such findings to the agency,
215 and the agency shall respond in writing to the Administrative
216 Procedures committee if the office of Program Policy Analysis
217 and Government Accountability found that a rejected the
218 alternative substantially accomplishes the objectives of the law
219 being implemented and reduces reduced the adverse impact on
220 small businesses business while meeting the stated objectives of
221 the proposed rule. If the agency does will not adopt the
222 alternative, it must also provide a detailed written statement
223 to the committee as to why it is not adopting will not adopt the
224 alternative.
225 (e) Filing for final adoption; effective date.—
226 1. If the adopting agency is required to publish its rules
227 in the Florida Administrative Code, the agency, upon approval of
228 the agency head, shall file with the Department of State three
229 certified copies of the rule it proposes to adopt; one copy of
230 any material incorporated by reference in the rule, certified by
231 the agency; a summary of the rule; a summary of any hearings
232 held on the rule; and a detailed written statement of the facts
233 and circumstances justifying the rule. Agencies not required to
234 publish their rules in the Florida Administrative Code shall
235 file one certified copy of the proposed rule, and the other
236 material required by this subparagraph, in the office of the
237 agency head, and such rules shall be open to the public.
238 2. A rule may not be filed for adoption less than 28 days
239 or more than 90 days after the notice required by paragraph (a),
240 until 21 days after the notice of change required by paragraph
241 (d), until 14 days after the final public hearing, until 45 21
242 days after a statement of estimated regulatory costs or a
243 revised statement of estimated regulatory costs has been
244 prepared and made available as required under s. 120.541 has
245 been provided to all persons who submitted a lower cost
246 regulatory alternative and made available to the public, or
247 until the administrative law judge has rendered a decision under
248 s. 120.56(2), whichever applies. If a statement of estimated
249 regulatory costs or a revised statement of estimated regulatory
250 costs has been prepared and made available as provided in s.
251 120.541(1)(d), the period during which a rule may be filed for
252 adoption is extended to 45 days after the statement has been
253 made available. If When a required notice of change is published
254 before prior to the expiration of the time for filing to file
255 the rule for adoption has expired, the period during which a
256 rule must be filed for adoption is extended to 45 days after the
257 date of publication. If notice of a public hearing is published
258 before prior to the expiration of the time for filing to file
259 the rule for adoption has expired, the period during which a
260 rule must be filed for adoption is extended to 45 days after
261 adjournment of the final hearing on the rule, 21 days after
262 receipt of all material authorized to be submitted at the
263 hearing, or 21 days after receipt of the transcript, if one is
264 made, whichever is latest. The term “public hearing” includes
265 any public meeting held by any agency at which the rule is
266 considered. If a petition for an administrative determination
267 under s. 120.56(2) is filed, the period during which a rule must
268 be filed for adoption is extended to 60 days after the
269 administrative law judge files the final order with the clerk or
270 until 60 days after subsequent judicial review is complete.
271 3. At the time a rule is filed, the agency shall certify
272 that the time limitations prescribed by this paragraph have been
273 complied with, that all statutory rulemaking requirements have
274 been met, and that there is no administrative determination
275 pending on the rule.
276 4. At the time a rule is filed, the committee shall certify
277 whether the agency has responded in writing to all material and
278 timely written comments or written inquiries made on behalf of
279 the committee. The Department of State shall reject any rule
280 that is not filed within the prescribed time limits; that does
281 not comply with all statutory rulemaking requirements and rules
282 of the department; upon which an agency has not responded in
283 writing to all material and timely written inquiries or written
284 comments; upon which an administrative determination is pending;
285 or which does not include a statement of estimated regulatory
286 costs, if required.
287 5. If a rule has not been adopted within the time limits
288 imposed by this paragraph or has not been adopted in compliance
289 with all statutory rulemaking requirements, the agency proposing
290 the rule shall withdraw the rule and give notice of its action
291 in the next available issue of the Florida Administrative
292 Weekly.
293 6. The proposed rule shall be adopted on being filed with
294 the Department of State and become effective 20 days after being
295 filed, on a later date specified in the notice required by
296 subparagraph (a)1., or on a date required by statute. Rules not
297 required to be filed with the Department of State are shall
298 become effective when adopted by the agency head or on a later
299 date specified by rule or statute. If the committee notifies an
300 agency that an objection to a rule is being considered, the
301 agency may postpone the adoption of the rule to accommodate
302 review of the rule by the committee. If When an agency postpones
303 adoption of a rule to accommodate committee review by the
304 committee, the 90-day period for filing the rule is tolled until
305 the committee notifies the agency that it has completed its
306 review of the rule.
307
308 For the purposes of this paragraph, the term “administrative
309 determination” does not include subsequent judicial review.
310 Section 2. Subsection (1) and paragraphs (d) and (f) of
311 subsection (2) of section 120.541, Florida Statutes, are amended
312 to read:
313 120.541 Statement of estimated regulatory costs.—
314 (1)(a) A substantially affected person, Within 21 days
315 after publication of the notice required provided under s.
316 120.54(3)(a), a substantially affected person may submit to an
317 agency a good faith written proposal for a lower cost regulatory
318 alternative to a proposed rule which substantially accomplishes
319 the objectives of the law being implemented. The proposal may
320 include the alternative of not adopting any rule if, so long as
321 the proposal explains how the lower costs and objectives of the
322 law will be achieved by not adopting any rule. If such a
323 proposal is submitted, the time period for filing the rule under
324 s. 120.54(3)(e)2. 90-day period for filing the rule is extended
325 45 21 days.
326 (b) Upon the submission of the lower cost regulatory
327 alternative, the agency shall prepare a statement of estimated
328 regulatory costs as provided in subsection (2), or shall revise
329 its prior statement of estimated regulatory costs, and either
330 adopt the alternative or provide give a statement of the reasons
331 for rejecting the alternative in favor of the proposed rule. The
332 failure of the agency to prepare or revise the statement of
333 estimated regulatory costs as provided in this paragraph is a
334 material failure to follow the applicable rulemaking procedures
335 or requirements set forth in this chapter. An agency required to
336 prepare or revise a statement of estimated regulatory costs as
337 provided in this paragraph shall make it available to the person
338 who submits the lower cost regulatory alternative and to the
339 public prior to filing the rule for adoption.
340 (b) If a proposed rule will have an adverse impact on small
341 businesses, the agency shall prepare a statement of estimated
342 regulatory costs as required by s. 120.54(3)(b).
343 (c) The agency shall revise a statement of estimated
344 regulatory costs if any change to the rule made under s.
345 120.54(3)(d) increases the regulatory costs of the rule.
346 (d) At least 45 days before filing the rule for adoption,
347 an agency that is required to prepare or revise a statement of
348 estimated regulatory costs shall provide the statement to the
349 person who submitted the lower cost regulatory alternative and
350 to the committee, and provide notice on the agency’s website
351 that it is available to the public.
352 (e) The failure of the agency to prepare or revise the
353 statement of estimated regulatory costs as provided in this
354 subsection is a material failure to follow the applicable
355 rulemaking procedures or requirements set forth in this chapter.
356 (f)(c) A rule that is challenged pursuant to s.
357 120.52(8)(a) because of the failure to prepare or revise the No
358 rule shall be declared invalid because it imposes regulatory
359 costs on the regulated person, county, or city which could be
360 reduced by the adoption of less costly alternatives that
361 substantially accomplish the statutory objectives, and no rule
362 shall be declared invalid based upon a challenge to the agency’s
363 statement of estimated regulatory costs may not be declared
364 invalid, unless:
365 1. The issue is raised in an administrative proceeding
366 within 1 year after the effective date of the rule; and
367 2. The agency’s failure to prepare or revise the statement
368 of estimated regulatory costs materially affects the substantial
369 interests of the person challenging the agency. The substantial
370 interests of the person challenging the agency’s rejection of,
371 or failure to consider, the lower cost regulatory alternative
372 are materially affected by the rejection; and
373 3.a. The agency has failed to prepare or revise the
374 statement of estimated regulatory costs as required by paragraph
375 (b); or
376 b. the challenge is to the agency’s rejection under
377 paragraph (b) of a lower cost regulatory alternative submitted
378 under paragraph (a).
379 (g) A rule that is challenged by a substantially affected
380 person pursuant to s. 120.52(8)(f) because the rule imposes
381 regulatory costs on the regulated person, county, or city which
382 could be reduced by the adoption of less costly alternatives
383 that substantially accomplish the statutory objectives may not
384 be declared invalid unless:
385 1. The issue is raised in an administrative proceeding
386 within 1 year after the effective date of the rule;
387 2. The challenge is to the agency’s rejection of a lower
388 cost regulatory alternative offered under paragraph (a) or s.
389 120.54(3)(b)2.b.; and
390 3. The substantial interests of the person challenging the
391 agency are materially affected by the rejection.
392 (2) A statement of estimated regulatory costs shall
393 include:
394 (d) An analysis of the impact on small businesses as
395 defined by s. 288.703, and an analysis of the impact on small
396 counties and small cities as defined in by s. 120.52. The impact
397 analysis for small businesses must include the basis for the
398 agency’s decision not to implement alternatives that would
399 reduce adverse impacts on small businesses.
400 (f) In the statement or revised statement, whichever
401 applies, a description of any regulatory alternatives good faith
402 written proposal submitted under paragraph (1)(a) and either a
403 statement adopting the alternative or a statement of the reasons
404 for rejecting the alternative in favor of the proposed rule.
405 Section 3. Paragraph (a) of subsection (2) and paragraph
406 (d) of subsection (4) of section 120.56, Florida Statutes, are
407 amended to read:
408 120.56 Challenges to rules.—
409 (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.—
410 (a) A Any substantially affected person may seek an
411 administrative determination of the invalidity of a any proposed
412 rule by filing a petition seeking such a determination with the
413 division within 21 days after the date of publication of the
414 notice required by s. 120.54(3)(a);, within 10 days after the
415 final public hearing is held on the proposed rule as provided by
416 s. 120.54(3)(e)2.;, within 44 20 days after the statement of
417 estimated regulatory costs or revised statement of estimated
418 regulatory costs, if applicable, has been prepared and made
419 available as provided in s. 120.541(1)(d); required pursuant to
420 s. 120.541, if applicable, has been provided to all persons who
421 submitted a lower cost regulatory alternative and made available
422 to the public, or within 20 days after the date of publication
423 of the notice required by s. 120.54(3)(d). The petition must
424 shall state with particularity the objections to the proposed
425 rule and the reasons that the proposed rule is an invalid
426 exercise of delegated legislative authority. The petitioner has
427 the burden of going forward. The agency then has the burden to
428 prove by a preponderance of the evidence that the proposed rule
429 is not an invalid exercise of delegated legislative authority as
430 to the objections raised. A Any person who is substantially
431 affected by a change in the proposed rule may seek a
432 determination of the validity of such change. A Any person who
433 is not substantially affected by the proposed rule as initially
434 noticed, but who is substantially affected by the rule as a
435 result of a change, may challenge any provision of the rule and
436 is not limited to challenging the change to the proposed rule.
437 (4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; SPECIAL
438 PROVISIONS.—
439 (d) If an administrative law judge enters a final order
440 that all or part of an agency statement violates s.
441 120.54(1)(a), the agency must shall immediately discontinue all
442 reliance upon the statement or any substantially similar
443 statement as a basis for agency action. This paragraph shall not
444 be construed to impair the obligation of contracts existing at
445 the time the final order is entered.
446 Section 4. Subsections (1) and (3) of section 120.60,
447 Florida Statutes, are amended to read:
448 120.60 Licensing.—
449 (1) Upon receipt of an application for a license
450 application, an agency shall examine the application and, within
451 30 days after such receipt, notify the applicant of any apparent
452 errors or omissions and request any additional information the
453 agency is permitted by law to require. An agency may shall not
454 deny a license for failure to correct an error or omission or to
455 supply additional information unless the agency timely notified
456 the applicant within this 30-day period. The agency may
457 establish by rule the time period for submitting any additional
458 information requested by the agency. For good cause shown, the
459 agency shall grant a request for an extension of time for
460 submitting the additional information. If the applicant believes
461 the agency’s request for additional information is not
462 authorized by law or rule, the agency, at the applicant’s
463 request, shall proceed to process the application. An
464 application is shall be considered complete upon receipt of all
465 requested information and correction of any error or omission
466 for which the applicant was timely notified or when the time for
467 such notification has expired. An Every application for a
468 license must shall be approved or denied within 90 days after
469 receipt of a completed application unless a shorter period of
470 time for agency action is provided by law. The 90-day time
471 period is shall be tolled by the initiation of a proceeding
472 under ss. 120.569 and 120.57. Any application for a license
473 which that is not approved or denied within the 90-day or
474 shorter time period, within 15 days after conclusion of a public
475 hearing held on the application, or within 45 days after a
476 recommended order is submitted to the agency and the parties,
477 whichever action and timeframe is latest and applicable, is
478 considered approved unless the recommended order recommends that
479 the agency deny the license. Subject to the satisfactory
480 completion of an examination if required as a prerequisite to
481 licensure, any license that is considered approved shall be
482 issued and may include such reasonable conditions as are
483 authorized by law. Any applicant for licensure seeking to claim
484 licensure by default under this subsection shall notify the
485 agency clerk of the licensing agency, in writing, of the intent
486 to rely upon the default license provision of this subsection,
487 and may shall not take any action based upon the default license
488 until after receipt of such notice by the agency clerk.
489 (3) Each applicant shall be given written notice, either
490 personally or by mail, that the agency intends to grant or deny,
491 or has granted or denied, the application for license. The
492 notice must state with particularity the grounds or basis for
493 the issuance or denial of the license, except when issuance is a
494 ministerial act. Unless waived, a copy of the notice shall be
495 delivered or mailed to each party’s attorney of record and to
496 each person who has made a written request for requested notice
497 of agency action. Each notice must shall inform the recipient of
498 the basis for the agency decision, shall inform the recipient of
499 any administrative hearing pursuant to ss. 120.569 and 120.57 or
500 judicial review pursuant to s. 120.68 which may be available,
501 shall indicate the procedure that which must be followed, and
502 shall state the applicable time limits. The issuing agency shall
503 certify the date the notice was mailed or delivered, and the
504 notice and the certification must shall be filed with the agency
505 clerk.
506 Section 5. This act shall take effect July 1, 2010.