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