Florida Senate - 2011 SB 1382 By Senator Bennett 21-01480-11 20111382__ 1 A bill to be entitled 2 An act relating to rulemaking; amending s. 120.54, 3 F.S.; requiring that an agency include in its notice 4 of intended rulemaking a statement as to whether the 5 proposed rule will require legislative ratification; 6 clarifying that certain proposed rules are adopted 7 only when ratified by the Legislature; amending s. 8 120.541, F.S.; reducing the time before an agency 9 files a rule for adoption within which the agency must 10 notify the person who submitted a lower cost 11 alternative and the Administrative Procedures 12 Committee; amending s. 120.56, F.S.; reducing the time 13 in which a substantially affected person may seek an 14 administrative determination of the invalidity of a 15 rule after the statement or revised statement of 16 estimated regulatory costs is available; providing an 17 effective date. 18 19 Be It Enacted by the Legislature of the State of Florida: 20 21 Section 1. Paragraphs (a) and (e) of subsection (3) of 22 section 120.54, Florida Statutes, as amended by chapter 2010 23 279, Laws of Florida, are amended to read: 24 120.54 Rulemaking.— 25 (3) ADOPTION PROCEDURES.— 26 (a) Notices.— 27 1. Prior to the adoption, amendment, or repeal of any rule 28 other than an emergency rule, an agency, upon approval of the 29 agency head, shall give notice of its intended action, setting 30 forth a short, plain explanation of the purpose and effect of 31 the proposed action; the full text of the proposed rule or 32 amendment and a summary thereof; a reference to the grant of 33 rulemaking authority pursuant to which the rule is adopted; and 34 a reference to the section or subsection of the Florida Statutes 35 or the Laws of Florida being implemented or interpreted. The 36 notice must include a summary of the agency’s statement of the 37 estimated regulatory costs, if one has been prepared, based on 38 the factors set forth in s. 120.541(2),anda statement that any 39 person who wishes to provide the agency with information 40 regarding the statement of estimated regulatory costs, or to 41 provide a proposal for a lower cost regulatory alternative as 42 provided by s. 120.541(1), must do so in writing within 21 days 43 after publication of the notice, and a statement as to whether 44 the proposed rule will require legislative ratification pursuant 45 to s. 120.541(3). The notice must state the procedure for 46 requesting a public hearing on the proposed rule. Except when 47 the intended action is the repeal of a rule, the notice must 48 include a reference both to the date on which and to the place 49 where the notice of rule development that is required by 50 subsection (2) appeared. 51 2. The notice shall be published in the Florida 52 Administrative Weekly not less than 28 days prior to the 53 intended action. The proposed rule shall be available for 54 inspection and copying by the public at the time of the 55 publication of notice. 56 3. The notice shall be mailed to all persons named in the 57 proposed rule and to all persons who, at least 14 days prior to 58 such mailing, have made requests of the agency for advance 59 notice of its proceedings. The agency shall also give such 60 notice as is prescribed by rule to those particular classes of 61 persons to whom the intended action is directed. 62 4. The adopting agency shall file with the committee, at 63 least 21 days prior to the proposed adoption date, a copy of 64 each rule it proposes to adopt; a copy of any material 65 incorporated by reference in the rule; a detailed written 66 statement of the facts and circumstances justifying the proposed 67 rule; a copy of any statement of estimated regulatory costs that 68 has been prepared pursuant to s. 120.541; a statement of the 69 extent to which the proposed rule relates to federal standards 70 or rules on the same subject; and the notice required by 71 subparagraph 1. 72 (e) Filing for final adoption; effective date.— 73 1. If the adopting agency is required to publish its rules 74 in the Florida Administrative Code, the agency, upon approval of 75 the agency head, shall file with the Department of State three 76 certified copies of the rule it proposes to adopt; one copy of 77 any material incorporated by reference in the rule, certified by 78 the agency; a summary of the rule; a summary of any hearings 79 held on the rule; and a detailed written statement of the facts 80 and circumstances justifying the rule. Agencies not required to 81 publish their rules in the Florida Administrative Code shall 82 file one certified copy of the proposed rule, and the other 83 material required by this subparagraph, in the office of the 84 agency head, and such rules shall be open to the public. 85 2. A rule may not be filed for adoption less than 28 days 86 or more than 90 days after the notice required by paragraph (a), 87 until 21 days after the notice of change required by paragraph 88 (d), until 14 days after the final public hearing, until 21 days 89 after a statement of estimated regulatory costs required under 90 s. 120.541 has been provided to all persons who submitted a 91 lower cost regulatory alternative and made available to the 92 public, or until the administrative law judge has rendered a 93 decision under s. 120.56(2), whichever applies. When a required 94 notice of change is published prior to the expiration of the 95 time to file the rule for adoption, the period during which a 96 rule must be filed for adoption is extended to 45 days after the 97 date of publication. If notice of a public hearing is published 98 prior to the expiration of the time to file the rule for 99 adoption, the period during which a rule must be filed for 100 adoption is extended to 45 days after adjournment of the final 101 hearing on the rule, 21 days after receipt of all material 102 authorized to be submitted at the hearing, or 21 days after 103 receipt of the transcript, if one is made, whichever is latest. 104 The term “public hearing” includes any public meeting held by 105 any agency at which the rule is considered. If a petition for an 106 administrative determination under s. 120.56(2) is filed, the 107 period during which a rule must be filed for adoption is 108 extended to 60 days after the administrative law judge files the 109 final order with the clerk or until 60 days after subsequent 110 judicial review is complete. 111 3. At the time a rule is filed, the agency shall certify 112 that the time limitations prescribed by this paragraph have been 113 complied with, that all statutory rulemaking requirements have 114 been met, and that there is no administrative determination 115 pending on the rule. 116 4. At the time a rule is filed, the committee shall certify 117 whether the agency has responded in writing to all material and 118 timely written comments or written inquiries made on behalf of 119 the committee. The department shall reject any rule that is not 120 filed within the prescribed time limits; that does not comply 121 with all statutory rulemaking requirements and rules of the 122 department; upon which an agency has not responded in writing to 123 all material and timely written inquiries or written comments; 124 upon which an administrative determination is pending; or which 125 does not include a statement of estimated regulatory costs, if 126 required. 127 5. If a rule has not been adopted within the time limits 128 imposed by this paragraph or has not been adopted in compliance 129 with all statutory rulemaking requirements, the agency proposing 130 the rule shall withdraw the rule and give notice of its action 131 in the next available issue of the Florida Administrative 132 Weekly. 133 6. The proposed rule shall be adopted on being filed with 134 the Department of State and become effective 20 days after being 135 filed, on a later date specified in the notice required by 136 subparagraph (a)1.,oron a date required by statute, or when 137 ratified by the Legislature pursuant to s. 120.541(3). Rules not 138 required to be filed with the Department of State shall become 139 effective when adopted by the agency head,oron a later date 140 specified by rule or statute, or when ratified by the 141 Legislature pursuant to s. 120.541(3). If the committee notifies 142 an agency that an objection to a rule is being considered, the 143 agency may postpone the adoption of the rule to accommodate 144 review of the rule by the committee. When an agency postpones 145 adoption of a rule to accommodate review by the committee, the 146 90-day period for filing the rule is tolled until the committee 147 notifies the agency that it has completed its review of the 148 rule. 149 150 For the purposes of this paragraph, the term “administrative 151 determination” does not include subsequent judicial review. 152 Section 2. Paragraph (d) of subsection (1) of section 153 120.541, Florida Statutes, as amended by chapter 2010-279, Laws 154 of Florida, is amended to read: 155 120.541 Statement of estimated regulatory costs.— 156 (1) 157 (d) At least 2145days before filing the rule for 158 adoption, an agency that is required to revise a statement of 159 estimated regulatory costs shall provide the statement to the 160 person who submitted the lower cost regulatory alternative and 161 to the committee and shall provide notice on the agency’s 162 website that it is available to the public. 163 Section 3. Paragraph (a) of subsection (2) of section 164 120.56, Florida Statutes, as amended by chapter 2010-279, Laws 165 of Florida, is amended to read: 166 120.56 Challenges to rules.— 167 (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.— 168 (a) A substantially affected person may seek an 169 administrative determination of the invalidity of a proposed 170 rule by filing a petition seeking such a determination with the 171 division within 21 days after the date of publication of the 172 notice required by s. 120.54(3)(a); within 10 days after the 173 final public hearing is held on the proposed rule as provided by 174 s. 120.54(3)(e)2.; within 2044days after the statement of 175 estimated regulatory costs or revised statement of estimated 176 regulatory costs, if applicable, has been prepared and made 177 available as provided in s. 120.541(1)(d); or within 20 days 178 after the date of publication of the notice required by s. 179 120.54(3)(d). The petition must state with particularity the 180 objections to the proposed rule and the reasons that the 181 proposed rule is an invalid exercise of delegated legislative 182 authority. The petitioner has the burden of going forward. The 183 agency then has the burden to prove by a preponderance of the 184 evidence that the proposed rule is not an invalid exercise of 185 delegated legislative authority as to the objections raised. A 186 person who is substantially affected by a change in the proposed 187 rule may seek a determination of the validity of such change. A 188 person who is not substantially affected by the proposed rule as 189 initially noticed, but who is substantially affected by the rule 190 as a result of a change, may challenge any provision of the rule 191 and is not limited to challenging the change to the proposed 192 rule. 193 Section 4. This act shall take effect July 1, 2011.