| 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; providing for |
| 6 | withdrawal of an adopted rule that is not ratified by the |
| 7 | Legislature; clarifying that certain proposed rules are |
| 8 | effective only when ratified by the Legislature; amending |
| 9 | s. 120.541, F.S.; reducing the time before an agency files |
| 10 | a rule for adoption within which the agency must notify |
| 11 | the person who submitted a lower cost alternative and the |
| 12 | Administrative Procedures Committee; excluding rules |
| 13 | adopting federal standards and emergency rulemaking from |
| 14 | certain provisions; amending s. 120.56, F.S.; reducing the |
| 15 | time in which a substantially affected person may seek an |
| 16 | administrative determination of the invalidity of a rule |
| 17 | after the statement or revised statement of estimated |
| 18 | regulatory costs is available; amending s. 120.74, F.S.; |
| 19 | providing for agency reporting of certain annual |
| 20 | regulatory plans; providing for certain omissions and |
| 21 | suspensions of reports; creating s. 120.745, F.S.; |
| 22 | providing for legislative review of agency rules in effect |
| 23 | on or before November 16, 2010; providing definitions; |
| 24 | requiring that each agency complete an enhanced biennial |
| 25 | review of its existing rules; requiring a report of the |
| 26 | enhanced biennial review; providing specifications for the |
| 27 | report; providing for objections and the agency's |
| 28 | response; requiring the performance of a compliance |
| 29 | economic review and report under certain circumstances; |
| 30 | providing specifications for the review; providing |
| 31 | specifications for publishing the final report of the |
| 32 | agency's review; requiring that an agency publish notices, |
| 33 | determinations, and reports in a specified format; |
| 34 | requiring the Department of State to publish certain |
| 35 | notices in the Florida Administrative Weekly; providing |
| 36 | specifications; providing for future review and repeal; |
| 37 | providing for suspension of rulemaking authority for |
| 38 | failure to comply with the certification requirements of |
| 39 | the section; providing for an exemption from certain |
| 40 | requirements; creating s. 120.7455, F.S.; providing that |
| 41 | the Legislature may establish and maintain an Internet- |
| 42 | based public survey of regulatory impacts; providing input |
| 43 | details; providing that legislative leaders may certify in |
| 44 | writing to certain individuals the establishment and |
| 45 | identity of any such Internet-based survey; providing |
| 46 | immunities from enforcement action or prosecution |
| 47 | involving information solicited through the survey; |
| 48 | providing protections from retaliatory enforcement |
| 49 | actions; clarifying that the legal status of a rule that |
| 50 | has been determined to be invalid is not changed by the |
| 51 | amendment or creation of specified provisions by the act; |
| 52 | amending s. 120.80, F.S.; exempting the adoption of |
| 53 | certain amendments and the triennial updates to the |
| 54 | Florida Building Code from required legislative |
| 55 | ratification; exempting the adoption of certain amendments |
| 56 | and the triennial updates to the Florida Fire Prevention |
| 57 | Code from required legislative ratification; exempting the |
| 58 | adoption of rules adjusting rates of certain |
| 59 | transportation and expressway tolls from the preparation |
| 60 | of a statement of estimated regulatory costs and from |
| 61 | submission for legislative ratification; amending s. |
| 62 | 120.81, F.S.; excluding the adoption of rules under |
| 63 | chapter 2011-1, Laws of Florida, the Student Success Act, |
| 64 | from the preparation of a statement of estimated |
| 65 | regulatory costs and from submission for legislative |
| 66 | ratification; providing an effective date. |
| 67 |
|
| 68 | Be It Enacted by the Legislature of the State of Florida: |
| 69 |
|
| 70 | Section 1. Paragraphs (a), (d), and (e) of subsection (3) |
| 71 | of section 120.54, Florida Statutes, as amended by chapter 2010- |
| 72 | 279, Laws of Florida, are amended to read: |
| 73 | 120.54 Rulemaking.- |
| 74 | (3) ADOPTION PROCEDURES.- |
| 75 | (a) Notices.- |
| 76 | 1. Prior to the adoption, amendment, or repeal of any rule |
| 77 | other than an emergency rule, an agency, upon approval of the |
| 78 | agency head, shall give notice of its intended action, setting |
| 79 | forth a short, plain explanation of the purpose and effect of |
| 80 | the proposed action; the full text of the proposed rule or |
| 81 | amendment and a summary thereof; a reference to the grant of |
| 82 | rulemaking authority pursuant to which the rule is adopted; and |
| 83 | a reference to the section or subsection of the Florida Statutes |
| 84 | or the Laws of Florida being implemented or interpreted. The |
| 85 | notice must include a summary of the agency's statement of the |
| 86 | estimated regulatory costs, if one has been prepared, based on |
| 87 | the factors set forth in s. 120.541(2);, and a statement that |
| 88 | any person who wishes to provide the agency with information |
| 89 | regarding the statement of estimated regulatory costs, or to |
| 90 | provide a proposal for a lower cost regulatory alternative as |
| 91 | provided by s. 120.541(1), must do so in writing within 21 days |
| 92 | after publication of the notice; and a statement as to whether, |
| 93 | based on the statement of the estimated regulatory costs or |
| 94 | other information expressly relied upon and described by the |
| 95 | agency if no statement of regulatory costs is required, the |
| 96 | proposed rule is expected to require legislative ratification |
| 97 | pursuant to s. 120.541(3). The notice must state the procedure |
| 98 | for requesting a public hearing on the proposed rule. Except |
| 99 | when the intended action is the repeal of a rule, the notice |
| 100 | must include a reference both to the date on which and to the |
| 101 | place where the notice of rule development that is required by |
| 102 | subsection (2) appeared. |
| 103 | 2. The notice shall be published in the Florida |
| 104 | Administrative Weekly not less than 28 days prior to the |
| 105 | intended action. The proposed rule shall be available for |
| 106 | inspection and copying by the public at the time of the |
| 107 | publication of notice. |
| 108 | 3. The notice shall be mailed to all persons named in the |
| 109 | proposed rule and to all persons who, at least 14 days prior to |
| 110 | such mailing, have made requests of the agency for advance |
| 111 | notice of its proceedings. The agency shall also give such |
| 112 | notice as is prescribed by rule to those particular classes of |
| 113 | persons to whom the intended action is directed. |
| 114 | 4. The adopting agency shall file with the committee, at |
| 115 | least 21 days prior to the proposed adoption date, a copy of |
| 116 | each rule it proposes to adopt; a copy of any material |
| 117 | incorporated by reference in the rule; a detailed written |
| 118 | statement of the facts and circumstances justifying the proposed |
| 119 | rule; a copy of any statement of estimated regulatory costs that |
| 120 | has been prepared pursuant to s. 120.541; a statement of the |
| 121 | extent to which the proposed rule relates to federal standards |
| 122 | or rules on the same subject; and the notice required by |
| 123 | subparagraph 1. |
| 124 | (d) Modification or withdrawal of proposed rules.- |
| 125 | 1. After the final public hearing on the proposed rule, or |
| 126 | after the time for requesting a hearing has expired, if the rule |
| 127 | has not been changed from the rule as previously filed with the |
| 128 | committee, or contains only technical changes, the adopting |
| 129 | agency shall file a notice to that effect with the committee at |
| 130 | least 7 days prior to filing the rule for adoption. Any change, |
| 131 | other than a technical change that does not affect the substance |
| 132 | of the rule, must be supported by the record of public hearings |
| 133 | held on the rule, must be in response to written material |
| 134 | submitted to the agency within 21 days after the date of |
| 135 | publication of the notice of intended agency action or submitted |
| 136 | to the agency between the date of publication of the notice and |
| 137 | the end of the final public hearing, or must be in response to a |
| 138 | proposed objection by the committee. In addition, when any |
| 139 | change is made in a proposed rule, other than a technical |
| 140 | change, the adopting agency shall provide a copy of a notice of |
| 141 | change by certified mail or actual delivery to any person who |
| 142 | requests it in writing no later than 21 days after the notice |
| 143 | required in paragraph (a). The agency shall file the notice of |
| 144 | change with the committee, along with the reasons for the |
| 145 | change, and provide the notice of change to persons requesting |
| 146 | it, at least 21 days prior to filing the rule for adoption. The |
| 147 | notice of change shall be published in the Florida |
| 148 | Administrative Weekly at least 21 days prior to filing the rule |
| 149 | for adoption. This subparagraph does not apply to emergency |
| 150 | rules adopted pursuant to subsection (4). |
| 151 | 2. After the notice required by paragraph (a) and prior to |
| 152 | adoption, the agency may withdraw the rule in whole or in part. |
| 153 | 3. After adoption and before the rule becomes effective |
| 154 | date, a rule may be modified or withdrawn only in the following |
| 155 | circumstances: |
| 156 | a. When the committee objects to the rule; |
| 157 | b. When a final order, which is not subject to further |
| 158 | appeal, is entered in a rule challenge brought pursuant to s. |
| 159 | 120.56 after the date of adoption but before the rule becomes |
| 160 | effective pursuant to subparagraph (e)6.; |
| 161 | c. If the rule requires ratification, when more than 90 |
| 162 | days have passed since the rule was filed for adoption without |
| 163 | the Legislature ratifying the rule, in which case the rule may |
| 164 | be withdrawn but may not be modified; or |
| 165 | d. response to an objection by the committee or may be |
| 166 | modified to extend the effective date by not more than 60 days |
| 167 | When the committee notifies has notified the agency that an |
| 168 | objection to the rule is being considered, in which case the |
| 169 | rule may be modified to extend the effective date by not more |
| 170 | than 60 days. |
| 171 | 4. The agency shall give notice of its decision to |
| 172 | withdraw or modify a rule in the first available issue of the |
| 173 | publication in which the original notice of rulemaking was |
| 174 | published, shall notify those persons described in subparagraph |
| 175 | (a)3. in accordance with the requirements of that subparagraph, |
| 176 | and shall notify the Department of State if the rule is required |
| 177 | to be filed with the Department of State. |
| 178 | 5. After a rule has become effective, it may be repealed |
| 179 | or amended only through the rulemaking procedures specified in |
| 180 | this chapter. |
| 181 | (e) Filing for final adoption; effective date.- |
| 182 | 1. If the adopting agency is required to publish its rules |
| 183 | in the Florida Administrative Code, the agency, upon approval of |
| 184 | the agency head, shall file with the Department of State three |
| 185 | certified copies of the rule it proposes to adopt; one copy of |
| 186 | any material incorporated by reference in the rule, certified by |
| 187 | the agency; a summary of the rule; a summary of any hearings |
| 188 | held on the rule; and a detailed written statement of the facts |
| 189 | and circumstances justifying the rule. Agencies not required to |
| 190 | publish their rules in the Florida Administrative Code shall |
| 191 | file one certified copy of the proposed rule, and the other |
| 192 | material required by this subparagraph, in the office of the |
| 193 | agency head, and such rules shall be open to the public. |
| 194 | 2. A rule may not be filed for adoption less than 28 days |
| 195 | or more than 90 days after the notice required by paragraph (a), |
| 196 | until 21 days after the notice of change required by paragraph |
| 197 | (d), until 14 days after the final public hearing, until 21 days |
| 198 | after a statement of estimated regulatory costs required under |
| 199 | s. 120.541 has been provided to all persons who submitted a |
| 200 | lower cost regulatory alternative and made available to the |
| 201 | public, or until the administrative law judge has rendered a |
| 202 | decision under s. 120.56(2), whichever applies. When a required |
| 203 | notice of change is published prior to the expiration of the |
| 204 | time to file the rule for adoption, the period during which a |
| 205 | rule must be filed for adoption is extended to 45 days after the |
| 206 | date of publication. If notice of a public hearing is published |
| 207 | prior to the expiration of the time to file the rule for |
| 208 | adoption, the period during which a rule must be filed for |
| 209 | adoption is extended to 45 days after adjournment of the final |
| 210 | hearing on the rule, 21 days after receipt of all material |
| 211 | authorized to be submitted at the hearing, or 21 days after |
| 212 | receipt of the transcript, if one is made, whichever is latest. |
| 213 | The term "public hearing" includes any public meeting held by |
| 214 | any agency at which the rule is considered. If a petition for an |
| 215 | administrative determination under s. 120.56(2) is filed, the |
| 216 | period during which a rule must be filed for adoption is |
| 217 | extended to 60 days after the administrative law judge files the |
| 218 | final order with the clerk or until 60 days after subsequent |
| 219 | judicial review is complete. |
| 220 | 3. At the time a rule is filed, the agency shall certify |
| 221 | that the time limitations prescribed by this paragraph have been |
| 222 | complied with, that all statutory rulemaking requirements have |
| 223 | been met, and that there is no administrative determination |
| 224 | pending on the rule. |
| 225 | 4. At the time a rule is filed, the committee shall |
| 226 | certify whether the agency has responded in writing to all |
| 227 | material and timely written comments or written inquiries made |
| 228 | on behalf of the committee. The department shall reject any rule |
| 229 | that is not filed within the prescribed time limits; that does |
| 230 | not comply with all statutory rulemaking requirements and rules |
| 231 | of the department; upon which an agency has not responded in |
| 232 | writing to all material and timely written inquiries or written |
| 233 | comments; upon which an administrative determination is pending; |
| 234 | or which does not include a statement of estimated regulatory |
| 235 | costs, if required. |
| 236 | 5. If a rule has not been adopted within the time limits |
| 237 | imposed by this paragraph or has not been adopted in compliance |
| 238 | with all statutory rulemaking requirements, the agency proposing |
| 239 | the rule shall withdraw the rule and give notice of its action |
| 240 | in the next available issue of the Florida Administrative |
| 241 | Weekly. |
| 242 | 6. The proposed rule shall be adopted on being filed with |
| 243 | the Department of State and become effective 20 days after being |
| 244 | filed, on a later date specified in the notice required by |
| 245 | subparagraph (a)1., or on a date required by statute, or upon |
| 246 | ratification by the Legislature pursuant to s. 120.541(3). Rules |
| 247 | not required to be filed with the Department of State shall |
| 248 | become effective when adopted by the agency head, or on a later |
| 249 | date specified by rule or statute, or upon ratification by the |
| 250 | Legislature pursuant to s. 120.541(3). If the committee notifies |
| 251 | an agency that an objection to a rule is being considered, the |
| 252 | agency may postpone the adoption of the rule to accommodate |
| 253 | review of the rule by the committee. When an agency postpones |
| 254 | adoption of a rule to accommodate review by the committee, the |
| 255 | 90-day period for filing the rule is tolled until the committee |
| 256 | notifies the agency that it has completed its review of the |
| 257 | rule. |
| 258 |
|
| 259 | For the purposes of this paragraph, the term "administrative |
| 260 | determination" does not include subsequent judicial review. |
| 261 | Section 2. Paragraph (d) of subsection (1) and subsection |
| 262 | (4) of section 120.541, Florida Statutes, as amended by chapter |
| 263 | 2010-279, Laws of Florida, are amended to read: |
| 264 | 120.541 Statement of estimated regulatory costs.- |
| 265 | (1) |
| 266 | (d) At least 21 45 days before filing the rule for |
| 267 | adoption, an agency that is required to revise a statement of |
| 268 | estimated regulatory costs shall provide the statement to the |
| 269 | person who submitted the lower cost regulatory alternative and |
| 270 | to the committee and shall provide notice on the agency's |
| 271 | website that it is available to the public. |
| 272 | (4) This section Paragraph (2)(a) does not apply to the |
| 273 | adoption of emergency rules pursuant to s. 120.54(4) or the |
| 274 | adoption of federal standards pursuant to s. 120.54(6). |
| 275 | Section 3. Paragraph (a) of subsection (2) of section |
| 276 | 120.56, Florida Statutes, as amended by chapter 2010-279, Laws |
| 277 | of Florida, is amended to read: |
| 278 | 120.56 Challenges to rules.- |
| 279 | (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.- |
| 280 | (a) A substantially affected person may seek an |
| 281 | administrative determination of the invalidity of a proposed |
| 282 | rule by filing a petition seeking such a determination with the |
| 283 | division within 21 days after the date of publication of the |
| 284 | notice required by s. 120.54(3)(a); within 10 days after the |
| 285 | final public hearing is held on the proposed rule as provided by |
| 286 | s. 120.54(3)(e)2.; within 20 44 days after the statement of |
| 287 | estimated regulatory costs or revised statement of estimated |
| 288 | regulatory costs, if applicable, has been prepared and made |
| 289 | available as provided in s. 120.541(1)(d); or within 20 days |
| 290 | after the date of publication of the notice required by s. |
| 291 | 120.54(3)(d). The petition must state with particularity the |
| 292 | objections to the proposed rule and the reasons that the |
| 293 | proposed rule is an invalid exercise of delegated legislative |
| 294 | authority. The petitioner has the burden of going forward. The |
| 295 | agency then has the burden to prove by a preponderance of the |
| 296 | evidence that the proposed rule is not an invalid exercise of |
| 297 | delegated legislative authority as to the objections raised. A |
| 298 | person who is substantially affected by a change in the proposed |
| 299 | rule may seek a determination of the validity of such change. A |
| 300 | person who is not substantially affected by the proposed rule as |
| 301 | initially noticed, but who is substantially affected by the rule |
| 302 | as a result of a change, may challenge any provision of the rule |
| 303 | and is not limited to challenging the change to the proposed |
| 304 | rule. |
| 305 | Section 4. Subsections (3) and (4) are added to section |
| 306 | 120.74, Florida Statutes, to read: |
| 307 | 120.74 Agency review, revision, and report.- |
| 308 | (3) Beginning in 2012, and no later than July 1 of each |
| 309 | year, each agency shall file with the President of the Senate, |
| 310 | the Speaker of the House of Representatives, and the committee a |
| 311 | regulatory plan identifying and describing each rule the agency |
| 312 | proposes to adopt for the 12-month period beginning on the July |
| 313 | 1 reporting date and ending on the subsequent June 30, excluding |
| 314 | emergency rules. |
| 315 | (4) For the year 2011, the certification required in |
| 316 | subsection (2) may omit any information included in the reports |
| 317 | provided under s. 120.745. Reporting under subsections (1) and |
| 318 | (2) shall be suspended for the year 2013, but required reporting |
| 319 | under those subsections shall resume in 2015 and biennially |
| 320 | thereafter. |
| 321 | Section 5. Section 120.745, Florida Statutes, is created |
| 322 | to read: |
| 323 | 120.745 Legislative review of agency rules in effect on or |
| 324 | before November 16, 2010.- |
| 325 | (1) DEFINITIONS.-The following definitions apply |
| 326 | exclusively to this section: |
| 327 | (a) "Agency" has the same meaning and application as |
| 328 | provided in s. 120.52(1), but for the purposes of this section |
| 329 | excludes each officer and governmental entity in the state with |
| 330 | jurisdiction in one county or less than one county. |
| 331 | (b) "Compliance economic review" means a good faith |
| 332 | economic analysis that includes and presents the following |
| 333 | information pertaining to a particular rule: |
| 334 | 1. A justification for the rule summarizing the benefits |
| 335 | of the rule; and |
| 336 | 2. A statement of estimated regulatory costs as described |
| 337 | in s. 120.541(2); however: |
| 338 | a. The applicable period for the economic analysis shall |
| 339 | be 5 years beginning on July 1, 2011; |
| 340 | b. For the analysis required in s. 120.541(2)(a)3., the |
| 341 | estimated regulatory costs over the 5-year period shall be used |
| 342 | instead of the likely increase in regulatory costs after |
| 343 | implementation; and |
| 344 | c. An explanation of the methodology used to conduct the |
| 345 | analysis must be provided. A technical methodology need not be |
| 346 | used to develop the statement of estimated regulatory costs, if |
| 347 | the agency uses routine regulatory communications or its |
| 348 | Internet website to reasonably survey regulated entities, |
| 349 | political subdivisions, and local governments and makes good |
| 350 | faith estimates of regulatory costs in conformity with |
| 351 | recommendations from the Office of Fiscal Accountability and |
| 352 | Regulatory Reform ("OFARR"), or from one or more legislative |
| 353 | offices if requested by the agency and such request is approved |
| 354 | by the President of the Senate and the Speaker of the House of |
| 355 | Representatives. |
| 356 | (c) "Data collection rules" means those rules requiring |
| 357 | the submission of data to the agency from external sources, |
| 358 | including, but not limited to, local governments, service |
| 359 | providers, clients, licensees, regulated entities, other |
| 360 | constituents, and market participants. |
| 361 | (d) "Revenue rules" means those rules fixing amounts or |
| 362 | providing for the collection of money. |
| 363 | (e) "Rule" has the same general meaning and application as |
| 364 | provided in s. 120.52(16), but for purposes of this section may |
| 365 | include only those rules for which publication in the Florida |
| 366 | Administrative Code is required pursuant to s. 120.55(1). As |
| 367 | used in this section, the term "rule" means each entire |
| 368 | statement and all subparts published under a complete title, |
| 369 | chapter, and decimal rule number in the Florida Administrative |
| 370 | Code in compliance with Florida Administrative Code Rule 1B- |
| 371 | 30.001. |
| 372 | (2) ENHANCED BIENNIAL REVIEW.-By December 1, 2011, each |
| 373 | agency shall complete an enhanced biennial review of the |
| 374 | agency's existing rules, which shall include, but is not limited |
| 375 | to: |
| 376 | (a) Conduct of the review and submission of the report |
| 377 | required by s. 120.74 and an explanation of how the agency has |
| 378 | accomplished the requirements of s. 120.74(1). This paragraph |
| 379 | extends the October 1 deadline provided in s. 120.74(2) for the |
| 380 | year 2011. |
| 381 | (b) Review of each rule to determine whether the rule has |
| 382 | been reviewed by OFARR pursuant to the Governor's Executive |
| 383 | Order 2011-01. |
| 384 | (c) Review of each rule to determine whether the rule is a |
| 385 | revenue rule, to identify the statute or statutes authorizing |
| 386 | the collection of any revenue, to identify the fund or account |
| 387 | into which revenue collections are deposited, and, for each |
| 388 | revenue rule, to determine whether the rule authorizes, imposes, |
| 389 | or implements: |
| 390 | 1. Registration, license, or inspection fees. |
| 391 | 2. Transportation service tolls for road, bridge, rail, |
| 392 | air, waterway, or port access. |
| 393 | 3. Fees for a specific service or purpose not included in |
| 394 | subparagraph 1. or subparagraph 2. |
| 395 | 4. Fines, penalties, costs, or attorney fees. |
| 396 | 5. Any tax. |
| 397 | 6. Any other amounts collected that are not covered under |
| 398 | subparagraphs 1.-5. |
| 399 | (d) Review of each rule to determine whether the rule is a |
| 400 | data collection rule, providing the following information for |
| 401 | each rule determined to be a data collection rule: |
| 402 | 1. The statute or statutes authorizing the collection of |
| 403 | such data. |
| 404 | 2. The purposes for which the agency uses the data and any |
| 405 | purpose for which the data is used by others. |
| 406 | 3. The policies supporting the reporting and retention of |
| 407 | the data. |
| 408 | 4. Whether and to what extent the data is exempt from |
| 409 | public inspection under chapter 119. |
| 410 | (e) Identification of each entire rule the agency plans to |
| 411 | repeal and, if so, the estimated timetable for repeal. |
| 412 | (f) Identification of each entire rule or subpart of a |
| 413 | rule the agency plans to amend to substantially reduce the |
| 414 | economic impact and the estimated timetable for amendment. |
| 415 | (g) Identification of each rule for which the agency will |
| 416 | be required to prepare a compliance economic review, to include |
| 417 | each entire rule that: |
| 418 | 1. The agency does not plan to repeal on or before |
| 419 | December 31, 2012; |
| 420 | 2. Was effective on or before November 16, 2010; and |
| 421 | 3. Probably will have any of the economic impacts |
| 422 | described in s. 120.541(2)(a), for 5 years beginning on July 1, |
| 423 | 2011, excluding in such estimation any part or subpart |
| 424 | identified for amendment under paragraph (e). |
| 425 | (h) Listing of all rules identified for compliance |
| 426 | economic review in paragraph (f), divided into two approximately |
| 427 | equal groups, identified as "Group 1" and "Group 2." Such |
| 428 | division shall be made at the agency's discretion. |
| 429 | (i) Written certification of the agency head to the |
| 430 | committee verifying the completion of the report for all rules |
| 431 | of the agency, including each separate part or subsection. The |
| 432 | duty to certify completion of the report is the responsibility |
| 433 | solely of the agency head as defined in s. 120.52(3) and may not |
| 434 | be delegated to any other person. If the defined agency head is |
| 435 | a collegial body, the written certification must be prepared by |
| 436 | the chair or equivalent presiding officer of that body. |
| 437 | (3) PUBLICATION OF REPORT.-No later than December 1, 2011, |
| 438 | each agency shall publish, in the manner provided in subsection |
| 439 | (7), a report of the entire enhanced biennial review pursuant to |
| 440 | subsection (2), including the results of the review; a complete |
| 441 | list of all rules the agency has placed in Group 1 or Group 2; |
| 442 | the name, physical address, fax number, and e-mail address for |
| 443 | the person the agency has designated to receive all inquiries, |
| 444 | public comments, and objections pertaining to the report; and |
| 445 | the certification of the agency head pursuant to paragraph |
| 446 | (2)(i). The report of results shall summarize certain |
| 447 | information required in subsection (2) in a table consisting of |
| 448 | the following columns: |
| 449 | (a) Column 1: Agency name. |
| 450 | (b) Column 2: F.A.C. rule number, with subcolumns |
| 451 | including: |
| 452 | 1. Column 2a: F.A.C. title and any subtitle or chapter |
| 453 | designation; and |
| 454 | 2. Column 2b: F.A.C. number, excluding title and subtitle |
| 455 | or chapter designation. |
| 456 | (c) Column 3: OFARR reviewed rule under Executive Order |
| 457 | 2011-01. Entries should be "Y" or "N." |
| 458 | (d) Column 4: Revenue rule/fund or account with subcolumns |
| 459 | including: |
| 460 | 1. Column 4a: Licensure fees. |
| 461 | 2. Column 4b: Transportation tolls. |
| 462 | 3. Column 4c: Other fees. |
| 463 | 4. Column 4d: Fines. |
| 464 | 5. Column 4e: Tax. |
| 465 | 6. Column 4f: Other revenue. |
| 466 |
|
| 467 | Entries should be "N" or the identification of the fund or |
| 468 | account where receipts are deposited and provide notes |
| 469 | indicating the statutory authority for revenue collection. |
| 470 | (e) Column 5: Data collection rule. Entries should be "Y" |
| 471 | or "N." If "Y," provide notes supplying the information required |
| 472 | in paragraph (2)(d). |
| 473 | (f) Column 6: Repeal. Entries should be "Y" or "N" for the |
| 474 | entire rule. If "Y," provide notes estimating the timetable for |
| 475 | repeal. |
| 476 | (g) Column 7: Amend. Entries should be "Y" or "N," based |
| 477 | on the response required in paragraph (2)(f), and provide notes |
| 478 | identifying each specific subpart that will be amended and |
| 479 | estimating the timetable for amendment. |
| 480 | (h) Column 8: Effective on or before 11/16/2010. Entries |
| 481 | should be "Y" or "N." |
| 482 | (i) Column 9: Section 120.541(2)(a) impacts. Entries |
| 483 | should be "NA" if Column 8 is "N" or, if Column 6 is "Y," "NP" |
| 484 | for not probable, based on the response required in subparagraph |
| 485 | (2)(f)3., or "1" or "2," reflecting the group number assigned by |
| 486 | the division required in paragraph (2)(h). |
| 487 | (4) PUBLIC COMMENT ON ENHANCED BIENNIAL REVIEW AND REPORT; |
| 488 | OBJECTIONS.-Public input on reports required in subsection (3) |
| 489 | may be provided by stating an objection to the information |
| 490 | required in paragraphs (2)(b), (c), (d), and (g) and identifying |
| 491 | the entire rule or any subpart to which the objection relates, |
| 492 | and shall be submitted in writing or electronically to the |
| 493 | person designated in the report. |
| 494 | (a) An objection under this subsection to a report that an |
| 495 | entire rule or any subpart probably will not have, for 5 years |
| 496 | beginning on July 1, 2011, any of the economic impacts described |
| 497 | in s. 120.541(2)(a), must include allegations of fact upon which |
| 498 | the objection is based, stating the precise information upon |
| 499 | which a contrary evaluation of probable impact may be made. |
| 500 | Allegations of fact related to other objections may be included. |
| 501 | (b) Objections may be submitted by any interested person |
| 502 | no later than June 1, 2012. |
| 503 | (c) The agency shall determine whether to sustain an |
| 504 | objection based upon the information provided with the objection |
| 505 | and whether any further review of information available to the |
| 506 | agency is necessary to correct its report. |
| 507 | (d) No later than 20 days after the date an objection is |
| 508 | submitted, the agency shall publish its determination of the |
| 509 | objection in the manner provided in subsection (7). |
| 510 | (e) The agency's determination with respect to an |
| 511 | objection is final but not a final agency action subject to |
| 512 | further proceedings, hearing, or judicial review. |
| 513 | (f) If the agency sustains an objection, it shall amend |
| 514 | its report within 10 days after the determination. The amended |
| 515 | report shall indicate that a change has been made, the date of |
| 516 | the last change, and identify the amended portions. The agency |
| 517 | shall publish notice of the amendment in the manner provided in |
| 518 | subsection (7). |
| 519 | (g) On or before July 1, 2012, the agency shall deliver a |
| 520 | written certification of the agency head or designee to the |
| 521 | committee verifying the completion of determinations of all |
| 522 | objections under this subsection and of any report amendments |
| 523 | required under paragraph (f). The certification shall be |
| 524 | published as an addendum to the report required in subsection |
| 525 | (3). Notice of the certification shall be published in the |
| 526 | manner provided in subsection (7). |
| 527 | (5) COMPLIANCE ECONOMIC REVIEW OF RULES AND REQUIRED |
| 528 | REPORT.-Each agency shall perform a compliance economic review |
| 529 | and report for all rules, including separate reviews of |
| 530 | subparts, listed under Group 1 "Group 1 rules" or Group 2 "Group |
| 531 | 2 rules" pursuant to subparagraph (2)(g)3. Group 1 rules shall |
| 532 | be reviewed and reported on in 2012, and Group 2 rules shall be |
| 533 | reviewed and reported on in 2013. |
| 534 | (a) No later than May 1, each agency shall: |
| 535 | 1. Complete a compliance economic review for each entire |
| 536 | rule or subpart in the appropriate group. |
| 537 | 2. File the written certification of the agency head with |
| 538 | the committee verifying the completion of each compliance |
| 539 | economic review required for the respective year. The |
| 540 | certification shall be dated and published as an addendum to the |
| 541 | report required in subsection (3). The duty to certify |
| 542 | completion of the required compliance economic reviews is the |
| 543 | responsibility solely of the agency head as defined in s. |
| 544 | 120.52(3) and may not be delegated to any other person. If the |
| 545 | defined agency head is a collegial body, the written |
| 546 | certification must be prepared by the chair or equivalent |
| 547 | presiding officer of that body. |
| 548 | 3. Publish a copy of the compliance economic review, |
| 549 | directions on how and when interested parties may submit lower |
| 550 | cost regulatory alternatives to the agency, and the date the |
| 551 | notice is published in the manner provided in subsection (7). |
| 552 | 4. Publish notice of the publications required in |
| 553 | subparagraphs 2. and 3. in the manner provided in subsection |
| 554 | (7). |
| 555 | 5. Submit each compliance economic review to the Small |
| 556 | Business Regulatory Advisory Council for its review. |
| 557 | (b) Any agency rule, including subparts, reviewed pursuant |
| 558 | to Executive Order 2011-01 are exempt from the compliance |
| 559 | economic review if the review found that the rule: |
| 560 | 1. Does not unnecessarily restrict entry into a profession |
| 561 | or occupation; |
| 562 | 2. Does not adversely affect the availability of |
| 563 | professional or occupational services to the public; |
| 564 | 3. Does not unreasonably affect job creation or job |
| 565 | retention; |
| 566 | 4. Does not place unreasonable restrictions on individuals |
| 567 | attempting to find employment; |
| 568 | 5. Does not impose burdensome costs on businesses; or |
| 569 | 6. Is justifiable when the overall cost-effectiveness and |
| 570 | economic impact of the regulation, including indirect costs to |
| 571 | consumers, is considered. |
| 572 | (c) No later than August 1, the Small Business Regulatory |
| 573 | Advisory Council may submit lower cost regulatory alternatives |
| 574 | to any rule to the agency that adopted the rule. No later than |
| 575 | June 15, other interested parties may submit lower cost |
| 576 | regulatory alternatives to any rule. |
| 577 | (d) No later than December 1, each agency shall publish a |
| 578 | final report of the agency's review under this subsection in the |
| 579 | manner provided in subsection (7). For each rule the report |
| 580 | shall include: |
| 581 | 1. The text of the rule. |
| 582 | 2. The compliance economic review for the rule. |
| 583 | 3. All lower regulatory cost alternatives received by the |
| 584 | agency. |
| 585 | 4. The agency's written explanation for rejecting |
| 586 | submitted lower regulatory cost alternatives. |
| 587 | 5. The agency's justification to repeal or amend the rule |
| 588 | or to retain the rule without amendment. |
| 589 | 6. The written certification of the agency head to the |
| 590 | committee verifying the completion of the reviews and reporting |
| 591 | required under this subsection for that year. The certification |
| 592 | shall be dated and published as an addendum to the report |
| 593 | required in subsection (3). The duty to certify completion of |
| 594 | the report is the responsibility solely of the agency head as |
| 595 | defined in s. 120.52(3) and may not be delegated to any other |
| 596 | person. If the defined agency head is a collegial body, the |
| 597 | written certification must be prepared by the chair or |
| 598 | equivalent presiding officer of that body. |
| 599 | (e) Notice of publication of the final report and |
| 600 | certification shall be published in the manner provided in |
| 601 | subsection (7). |
| 602 | (f) By December 1, each agency shall begin proceedings |
| 603 | under s. 120.54(3) to amend or repeal those rules so designated |
| 604 | in the report under this subsection. Proceedings to repeal rules |
| 605 | are exempt from the requirements for the preparation, |
| 606 | consideration, or use of a statement of estimated regulatory |
| 607 | costs under s. 120.54 and the provisions of s. 120.541. |
| 608 | (6) LEGISLATIVE CONSIDERATION.-With respect to a rule |
| 609 | identified for retention without amendment in the report |
| 610 | required in subsection (5), the Legislature may consider |
| 611 | specific legislation nullifying the rule or altering the |
| 612 | statutory authority for the rule. |
| 613 | (7) MANNER OF PUBLICATION OF NOTICES, DETERMINATIONS, AND |
| 614 | REPORTS.-Agencies shall publish notices, determinations, and |
| 615 | reports required under this section exclusively in the following |
| 616 | manner: |
| 617 | (a) The agency shall publish each notice, determination, |
| 618 | and complete report on its Internet website. If the agency does |
| 619 | not have an Internet website, the information shall be published |
| 620 | on the committee's Internet website using |
| 621 | www.japc.state.fl.us/[agency name]/ in place of the address of |
| 622 | the agency's Internet website. The following URL formats shall |
| 623 | be used: |
| 624 | 1. Reports required under subsection (3), including any |
| 625 | reports amended as a result of a determination under subsection |
| 626 | (4): |
| 627 | [Address of agency's Internet website]/2011_Rule_review/ |
| 628 | [Florida Administrative Code (F.A.C.) title and subtitle |
| 629 | (if applicable) designation for the rules included]. |
| 630 | (Example: http://www.dos.state.fl.us/2011_Rule_review/1S). |
| 631 | 2. The lists of Group 1 rules and Group 2 rules, required |
| 632 | under subsection (3): |
| 633 | [Address of agency's Internet website]/2011_Rule_review/ |
| 634 | Economic_Review/Schedule. |
| 635 | (Example: http://www.dos.state.fl.us/2011_Rule_review/ |
| 636 | Economic_Review/Schedule) |
| 637 | 3. Determinations under subsection (4): |
| 638 | [Address of agency's Internet website]/2011_Rule_review/ |
| 639 | Objection_Determination/[F.A.C. Rule number]. |
| 640 | (Example: http://www.dos.state.fl.us/2011_Rule_review/ |
| 641 | Objection_Determination/1S-1.001). |
| 642 | 4. Completed compliance economic reviews reported under |
| 643 | subsection (5): |
| 644 | [Address of agency's Internet website]/2011_Rule_review/ |
| 645 | Economic Review/[F.A.C.Rule number]. |
| 646 | (Example: http://www.dos.state.fl.us/2011_Rule_review/ |
| 647 | Economic_Review/1S-1.001). |
| 648 | 5. Final reports under paragraph (5)(d), with the |
| 649 | appropriate year: |
| 650 | [Address of agency's Internet website]/2011_Rule_review/ |
| 651 | Economic Review/[YYYY_Final_Report]. |
| 652 | (Example: http://www.dos.state.fl.us/2011_Rule_review/ |
| 653 | Economic Review/2012_Final_Report). |
| 654 | (b)1. Each notice shall be published using the following |
| 655 | URL format: |
| 656 | [Address of agency's Internet website]/ |
| 657 | 2011_Rule_review/Notices. |
| 658 | (Example: |
| 659 | http://www.dos.state.fl.us/2011_Rule_review/Notices). |
| 660 | 2. Once each week a copy of all notices published in the |
| 661 | previous week on the Internet under this paragraph shall be |
| 662 | delivered to the Department of State, for publication in the |
| 663 | next available issue of the Florida Administrative Weekly, and a |
| 664 | copy shall be delivered by electronic mail to the committee. |
| 665 | 3. Each notice shall identify the publication for which |
| 666 | notice is being given and include: |
| 667 | a. The name of the agency. |
| 668 | b. The name, physical address, fax number, and e-mail |
| 669 | address for the person designated to receive all inquiries, |
| 670 | public comments, and objections pertaining to the publication |
| 671 | identified in the notice. |
| 672 | c. The particular Internet address through which the |
| 673 | publication may be accessed. |
| 674 | d. The date the notice and publication is first published |
| 675 | on the agency's Internet website. |
| 676 | (c) Publication pursuant to this section is deemed to be |
| 677 | complete as of the date the notice, determination, or report is |
| 678 | posted on the agency's Internet website. |
| 679 | (8) FAILURE TO FILE CERTIFICATION OF COMPLETION.-If an |
| 680 | agency fails to timely file any written certification required |
| 681 | in paragraph (2)(i), paragraph (4)(g), subparagraph (5)(a)2., or |
| 682 | subparagraph (5)(d)6., the entire rulemaking authority delegated |
| 683 | to the agency by the Legislature under any statute or law shall |
| 684 | be suspended automatically as of the due date of the required |
| 685 | certification and shall remain suspended until the date that the |
| 686 | agency files the required certification with the committee. |
| 687 | (a) During the period of any suspension under this |
| 688 | subsection, the agency has no authority to engage in rulemaking |
| 689 | under s. 120.54. |
| 690 | (b) A suspension under this subsection does not authorize |
| 691 | an agency to promulgate any statement defined as a rule under s. |
| 692 | 120.52(16). |
| 693 | (c) A suspension under this subsection shall toll the time |
| 694 | requirements under s. 120.54 for any rulemaking proceeding the |
| 695 | agency initiated before the date of suspension, which time |
| 696 | requirements shall resume on the date the agency files the |
| 697 | written certification with the committee and publishes notice of |
| 698 | the required certification in the manner provided in subsection |
| 699 | (7). |
| 700 | (d) Failure to timely file a written certification |
| 701 | required under paragraph (2)(i) tolls the time for public |
| 702 | response, which period shall not begin until the date the agency |
| 703 | files the written certification with the committee and publishes |
| 704 | notice of the required certification in the manner provided in |
| 705 | subsection (7). The period for public response shall be extended |
| 706 | by the number of days equivalent to the period of suspension |
| 707 | under this subsection. |
| 708 | (e) Failure to timely file a written certification |
| 709 | required under subparagraph (5)(a)2. shall toll the deadline for |
| 710 | submission of lower cost regulatory alternatives for any rule or |
| 711 | subpart for which a compliance economic review has not been |
| 712 | timely published. The period of tolling shall be the number of |
| 713 | days after May 1 until the date of the certification as |
| 714 | published. |
| 715 | (9) EXEMPTION FROM ENHANCED BIENNIAL REVIEW AND COMPLIANCE |
| 716 | ECONOMIC REVIEW.- |
| 717 | (a) An agency is exempt from subsections (1)-(8) if it has |
| 718 | cooperated or cooperates with OFARR in a review of the agency's |
| 719 | rules in a manner consistent with Executive Order 2011-01, or |
| 720 | any alternative review directed by OFARR; if the agency or OFARR |
| 721 | identifies each data collection rule and each revenue rule; and |
| 722 | if the information developed thereby becomes publicly available |
| 723 | on the Internet by December 1, 2011. Each such agency is exempt |
| 724 | from the biennial review required in s. 120.74(2) for the year |
| 725 | 2011. |
| 726 | (b) For each rule reviewed under this subsection, OFARR |
| 727 | may identify whether the rule imposes a significant regulatory |
| 728 | cost or economic impact and shall schedule and obtain or direct |
| 729 | a reasonable economic estimate of such cost and impact for each |
| 730 | rule so identified. A report on each such estimate shall be |
| 731 | published on the Internet by December 31, 2013. On or before |
| 732 | October 1, 2013, the agency head shall certify in writing to the |
| 733 | committee that the agency has completed each economic estimate |
| 734 | required under this paragraph and thereupon the agency is exempt |
| 735 | from the biennial review required in s. 120.74(2) for the year |
| 736 | 2013. |
| 737 | (c) The exemption under this paragraph does not apply |
| 738 | unless the agency head certifies in writing to the committee, on |
| 739 | or before October 1, 2011, that the agency has chosen such |
| 740 | exemption and has cooperated with OFARR in undertaking the |
| 741 | review required in paragraph (a). |
| 742 | (10) REPEAL.-This section is repealed July 1, 2014. |
| 743 | Section 6. Section 120.7455, Florida Statutes, is created |
| 744 | to read: |
| 745 | 120.7455 Legislative survey of regulatory impacts.- |
| 746 | (1) From July 1, 2011, until July 1, 2014, the Legislature |
| 747 | may establish and maintain an Internet-based public survey of |
| 748 | regulatory impact soliciting information from the public |
| 749 | regarding the kind and degree of regulation affecting private |
| 750 | activities in the state. The input may include, but need not be |
| 751 | limited to: |
| 752 | (a) The registered business name or other name of each |
| 753 | reporting person. |
| 754 | (b) The number and identity of agencies licensing, |
| 755 | inspecting, registering, permitting, or otherwise regulating |
| 756 | lawful activities of the reporting person. |
| 757 | (c) The types, numbers, and nature of licenses, permits, |
| 758 | and registrations required for various lawful activities of the |
| 759 | reporting person. |
| 760 | (d) The identity of local, state, and federal agencies, |
| 761 | and other entities acting under color of law which regulate the |
| 762 | lawful activities of the reporting person or otherwise exercise |
| 763 | power to enforce laws applicable to such activities. |
| 764 | (e) The identification and nature of each ordinance, law, |
| 765 | or administrative rule or regulation deemed unreasonably |
| 766 | burdensome by the reporting person. |
| 767 | (2) The President of the Senate and the Speaker of the |
| 768 | House of Representatives may certify in writing to the chair of |
| 769 | the committee and to the Attorney General the establishment and |
| 770 | identity of any Internet-based public survey established under |
| 771 | this section. |
| 772 | (3) Any person reporting or otherwise providing |
| 773 | information solicited by the Legislature in conformity with this |
| 774 | section is immune from any enforcement action or prosecution |
| 775 | that: |
| 776 | (a) Is instituted on account of, or in reliance upon, the |
| 777 | fact of reporting or nonreporting of information in response to |
| 778 | the Legislature's solicitation of information pursuant to this |
| 779 | section; or |
| 780 | (b) Uses information provided in response to the |
| 781 | Legislature's solicitation of information pursuant to this |
| 782 | section. |
| 783 | (4) Any alleged violator against whom an enforcement |
| 784 | action is brought may object to any proposed penalty in excess |
| 785 | of the minimum provided by law or rule on the basis that the |
| 786 | action is in retaliation for the violator providing or |
| 787 | withholding any information in response to the Legislature's |
| 788 | solicitation of information pursuant to this section. If the |
| 789 | presiding judge determines that the enforcement action was |
| 790 | motivated in whole or in part by retaliation, any penalty |
| 791 | imposed is limited to the minimum penalties provided by law for |
| 792 | each separate violation adjudicated. |
| 793 | Section 7. The amendment of section 120.74, Florida |
| 794 | Statutes, and the creation of sections 120.745 and 120.7455, |
| 795 | Florida Statutes, by this act does not change the legal status |
| 796 | of a rule that has otherwise been judicially or administratively |
| 797 | determined to be invalid. |
| 798 | Section 8. Subsection (16) of section 120.80, Florida |
| 799 | Statutes, is amended, and subsections (17) and (18) are added to |
| 800 | that section, to read: |
| 801 | 120.80 Exceptions and special requirements; agencies.- |
| 802 | (16) FLORIDA BUILDING COMMISSION.- |
| 803 | (a) Notwithstanding the provisions of s. 120.542, the |
| 804 | Florida Building Commission may not accept a petition for waiver |
| 805 | or variance and may not grant any waiver or variance from the |
| 806 | requirements of the Florida Building Code. |
| 807 | (b) The Florida Building Commission shall adopt within the |
| 808 | Florida Building Code criteria and procedures for alternative |
| 809 | means of compliance with the code or local amendments thereto, |
| 810 | for enforcement by local governments, local enforcement |
| 811 | districts, or other entities authorized by law to enforce the |
| 812 | Florida Building Code. Appeals from the denial of the use of |
| 813 | alternative means shall be heard by the local board, if one |
| 814 | exists, and may be appealed to the Florida Building Commission. |
| 815 | (c) Notwithstanding ss. 120.565, 120.569, and 120.57, the |
| 816 | Florida Building Commission and hearing officer panels appointed |
| 817 | by the commission in accordance with s. 553.775(3)(c)1. may |
| 818 | conduct proceedings to review decisions of local building code |
| 819 | officials in accordance with s. 553.775(3)(c). |
| 820 | (d) Section 120.541(3) does not apply to the adoption of |
| 821 | amendments and the triennial update to the Florida Building Code |
| 822 | expressly authorized by s. 553.73. |
| 823 | (17) STATE FIRE MARSHAL.-Section 120.541(3) does not apply |
| 824 | to the adoption of amendments and the triennial update to the |
| 825 | Florida Fire Prevention Code expressly authorized by s. |
| 826 | 633.0215. |
| 827 | (18) DEPARTMENT OF TRANSPORTATION.-Sections 120.54(3)(b) |
| 828 | and 120.541 do not apply to the adjustment of tolls pursuant to |
| 829 | s. 338.165(3). |
| 830 | Section 9. Paragraph (l) is added to subsection (1) of |
| 831 | section 120.81, Florida Statutes, to read: |
| 832 | 120.81 Exceptions and special requirements; general |
| 833 | areas.- |
| 834 | (1) EDUCATIONAL UNITS.- |
| 835 | (l) Sections 120.54(3)(b) and 120.541 do not apply to the |
| 836 | adoption of rules pursuant to s. 1012.22, s. 1012.27, s. |
| 837 | 1012.34, s. 1012.335, or s. 1012.795. |
| 838 | Section 10. This act shall take effect upon becoming a |
| 839 | law. |