Florida Senate - 2014         (PROPOSED COMMITTEE BILL) SPB 7118
       
       
        
       FOR CONSIDERATION By the Committee on Governmental Oversight and
       Accountability
       
       
       
       
       585-02802-14                                          20147118__
    1                        A bill to be entitled                      
    2         An act relating to administrative procedures; amending
    3         s. 120.54, F.S.; revising requirements for the content
    4         of notices of rule development; revising the scope of
    5         public workshops to include information gathering for
    6         the preparation of statements of estimated regulatory
    7         costs; revising requirements for notices of proposed
    8         rules; authorizing electronic delivery of notices to
    9         persons who have requested advance notice of agency
   10         rulemaking proceedings; revising requirements for an
   11         agency’s filing of specified information with the
   12         Administrative Procedures Committee; creating a
   13         presumption of adverse impact on small business in
   14         specified circumstances; requiring certain agency
   15         personnel to attend public hearings on proposed rules;
   16         requiring an agency to publish a notice of convening a
   17         separate proceeding in certain circumstances; tolling
   18         rulemaking deadlines during such separate proceedings;
   19         revising requirements for the contents of a notice of
   20         change; amending s. 120.541, F.S.; revising
   21         requirements for substantially affected persons to
   22         submit proposals for lower cost regulatory
   23         alternatives to a proposed rule following a notice of
   24         change; revising requirements for an agency’s
   25         consideration of such lower cost regulatory
   26         alternatives; providing for an agency’s revision and
   27         publication of a revised statement of estimated
   28         regulatory costs in response to such lower cost
   29         regulatory alternatives; deleting the definition of
   30         the term “transactional costs”; providing additional
   31         requirements for the calculation of estimated
   32         regulatory costs; providing an effective date.
   33          
   34  Be It Enacted by the Legislature of the State of Florida:
   35  
   36         Section 1. Subsections (2) and (3) of section 120.54,
   37  Florida Statutes, are amended to read:
   38         120.54 Rulemaking.—
   39         (2) RULE DEVELOPMENT; WORKSHOPS; NEGOTIATED RULEMAKING.—
   40         (a) Except when the intended action is the repeal of a
   41  rule, agencies shall provide notice of the development of
   42  proposed rules by publication of a notice of rule development in
   43  the Florida Administrative Register before providing notice of a
   44  proposed rule as required by paragraph (3)(a). The notice of
   45  rule development shall indicate the subject area to be addressed
   46  by rule development, provide a short, plain explanation of the
   47  purpose and effect of the proposed rule, cite the grant of
   48  rulemaking authority pursuant to which the rule is proposed and
   49  the section or subsection of the Florida Statutes or the Laws of
   50  Florida being implemented or interpreted by the proposed rule
   51  specific legal authority for the proposed rule, and include the
   52  preliminary text of the proposed rules, if available, or a
   53  statement of how a person may submit comments on the proposal,
   54  provide the agency with information regarding the potential
   55  regulatory costs, or promptly obtain, without cost, or access
   56  online, a copy of any preliminary draft, when if available.
   57         (b) All rules should be drafted in readable language. The
   58  language is readable if:
   59         1. It avoids the use of obscure words and unnecessarily
   60  long or complicated constructions; and
   61         2. It avoids the use of unnecessary technical or
   62  specialized language that is understood only by members of
   63  particular trades or professions.
   64         (c) An agency may hold public workshops for purposes of
   65  rule development and information gathering for the preparation
   66  of the statement of estimated regulatory costs. If requested in
   67  writing by an affected person, an agency must hold public
   68  workshops, including workshops in various regions of the state
   69  or the agency’s service area, for purposes of rule development
   70  and information gathering for the preparation of the statement
   71  of estimated regulatory cost if requested in writing by any
   72  affected person, unless the agency head explains in writing why
   73  a workshop is unnecessary. The explanation is not final agency
   74  action subject to review pursuant to ss. 120.569 and 120.57. The
   75  failure to provide the explanation when required may be a
   76  material error in procedure pursuant to s. 120.56(1)(c). When a
   77  workshop or public hearing is held, the agency must ensure that
   78  the persons responsible for preparing the proposed rule and the
   79  statement of estimated regulatory costs are available to receive
   80  public input, to explain the agency’s proposal, and to respond
   81  to questions or comments regarding the rule being developed and
   82  the statement of estimated regulatory costs. The workshop may be
   83  facilitated or mediated by a neutral third person, or the agency
   84  may employ other types of dispute resolution alternatives for
   85  the workshop that are appropriate for rule development,
   86  including the preparation of any statement of estimated
   87  regulatory costs. Notice of a rule development workshop shall be
   88  by publication in the Florida Administrative Register not less
   89  than 14 days before prior to the date on which the workshop is
   90  scheduled to be held and shall indicate the subject area which
   91  will be addressed; the agency contact person; and the place,
   92  date, and time of the workshop.
   93         (d)1. An agency may use negotiated rulemaking in developing
   94  and adopting rules. The agency should consider the use of
   95  negotiated rulemaking when complex rules are being drafted or
   96  strong opposition to the rules is anticipated. The agency should
   97  consider, but is not limited to considering, whether a balanced
   98  committee of interested persons who will negotiate in good faith
   99  can be assembled, whether the agency is willing to support the
  100  work of the negotiating committee, and whether the agency can
  101  use the group consensus as the basis for its proposed rule.
  102  Negotiated rulemaking uses a committee of designated
  103  representatives to draft a mutually acceptable proposed rule and
  104  to develop information necessary to prepare a statement of
  105  estimated regulatory costs, when applicable.
  106         2. An agency that chooses to use the negotiated rulemaking
  107  process described in this paragraph shall publish in the Florida
  108  Administrative Register a notice of negotiated rulemaking that
  109  includes a listing of the representative groups that will be
  110  invited to participate in the negotiated rulemaking process. Any
  111  person who believes that his or her interest is not adequately
  112  represented may apply to participate within 30 days after
  113  publication of the notice. All meetings of the negotiating
  114  committee shall be noticed and open to the public pursuant to
  115  the provisions of this chapter. The negotiating committee shall
  116  be chaired by a neutral facilitator or mediator.
  117         3. The agency’s decision to use negotiated rulemaking, its
  118  selection of the representative groups, and approval or denial
  119  of an application to participate in the negotiated rulemaking
  120  process are not agency action. Nothing in this subparagraph is
  121  intended to affect the rights of a substantially an affected
  122  person to challenge a proposed rule developed under this
  123  paragraph in accordance with s. 120.56(2).
  124         (3) ADOPTION PROCEDURES.—
  125         (a) Notices.—
  126         1. Before Prior to the adoption, amendment, or repeal of
  127  any rule other than an emergency rule, an agency, upon approval
  128  of the agency head, shall give notice of its intended action,
  129  setting forth a short, plain explanation of the purpose and
  130  effect of the proposed action; the full text of the proposed
  131  rule or amendment and a summary thereof; a reference to the
  132  grant of rulemaking authority pursuant to which the rule is
  133  adopted; and a reference to the section or subsection of the
  134  Florida Statutes or the Laws of Florida being implemented or
  135  interpreted. The notice must include a statement as to whether
  136  the agency held a public workshop for the purpose of development
  137  of the proposed rule, and if not, whether a workshop was
  138  requested in writing. If a rule development workshop was not
  139  held, the notice must include a copy of the written explanation
  140  from the agency head as to why a workshop was unnecessary. The
  141  notice must include a summary of the agency’s statement of the
  142  estimated regulatory costs, including an electronic hyperlink to
  143  a copy of the statement of estimated regulatory costs on the
  144  agency’s website, if a statement one has been prepared, based on
  145  the factors set forth in s. 120.541(2); a statement that any
  146  person who wishes to provide the agency with information
  147  regarding the statement of estimated regulatory costs, or to
  148  provide a proposal for a lower cost regulatory alternative as
  149  provided by s. 120.541(1), must do so in writing within 21 days
  150  after publication of the notice; and a statement as to whether,
  151  based on the statement of the estimated regulatory costs or
  152  other information expressly relied upon and described by the
  153  agency if no statement of regulatory costs is required, the
  154  proposed rule is expected to require legislative ratification
  155  pursuant to s. 120.541(3). The notice must state the procedure
  156  for requesting a public hearing on the proposed rule. Except
  157  when the intended action is the repeal of a rule, the notice
  158  must include a reference both to the date on which and to the
  159  place where the notice of rule development that is required by
  160  subsection (2) appeared.
  161         2. The notice shall be published in the Florida
  162  Administrative Register at least not less than 28 days before
  163  prior to the intended action. The proposed rule shall be
  164  available for inspection and copying by the public at the time
  165  of the publication of notice.
  166         3. The notice shall be mailed to all persons named in the
  167  proposed rule and mailed or delivered electronically to all
  168  persons who, at least 14 days before prior to such mailing, have
  169  made requests of the agency for advance notice of its
  170  proceedings. The agency shall also give such notice as is
  171  prescribed by rule to those particular classes of persons to
  172  whom the intended action is directed.
  173         4. The adopting agency shall file with the committee, at
  174  least 21 days before prior to the proposed adoption date, a copy
  175  of each rule it proposes to adopt; a copy of any material
  176  incorporated by reference in the rule; a detailed written
  177  statement of the facts and circumstances justifying the proposed
  178  rule; a copy of any statement of estimated regulatory costs that
  179  has been prepared pursuant to s. 120.541; a statement of the
  180  extent to which the proposed rule relates to federal standards
  181  or rules on the same subject; and the notice required by
  182  subparagraph 1. In lieu of filing a required statement or copy
  183  with the committee for each such rule, the agency may file with
  184  the committee information providing an electronic hyperlink to a
  185  readily accessible copy of the required statement or copy.
  186         (b) Special matters to be considered in rule adoption.—
  187         1. Statement of estimated regulatory costs.—Before the
  188  adoption, amendment, or repeal of any rule other than an
  189  emergency rule, an agency is encouraged to prepare a statement
  190  of estimated regulatory costs of the proposed rule, as provided
  191  by s. 120.541. However, an agency must prepare a statement of
  192  estimated regulatory costs of the proposed rule, as provided by
  193  s. 120.541, if:
  194         a. The proposed rule will have an adverse impact on small
  195  business; or
  196         b. The proposed rule is likely to directly or indirectly
  197  increase regulatory costs in excess of $200,000 in the aggregate
  198  in this state within 1 year after the implementation of the
  199  rule.
  200         2. Small businesses, small counties, and small cities.—
  201         a. For purposes of this subsection and s. 120.541(2), an
  202  adverse impact on small business is presumed if, for any small
  203  business:
  204         (I) An owner, officer, operator, or manager must complete
  205  any education, training, or testing to comply, or is likely to
  206  either expend 10 hours or purchase professional advice to
  207  understand and comply with the rule in the first year;
  208         (II) Taxes or fees assessed on transactions are likely to
  209  increase by $500 or more in the aggregate in 1 year;
  210         (III) Prices charged for goods and services are restricted
  211  or are likely to increase because of the rule;
  212         (IV) Specially trained, licensed, or tested employees will
  213  be required;
  214         (V) Operating costs are expected to increase by at least
  215  $1,000 annually; or
  216         (VI) Capital expenditures in excess of $1,000 are necessary
  217  to comply with the rule.
  218         b. Each agency, before the adoption, amendment, or repeal
  219  of a rule, shall consider the impact of the rule on small
  220  businesses as defined by s. 288.703 and the impact of the rule
  221  on small counties or small cities as defined by s. 120.52.
  222  Whenever practicable, an agency shall tier its rules to reduce
  223  disproportionate impacts on small businesses, small counties, or
  224  small cities to avoid regulating small businesses, small
  225  counties, or small cities that do not contribute significantly
  226  to the problem the rule is designed to address. An agency may
  227  define “small business” to include businesses employing more
  228  than 200 persons, may define “small county” to include those
  229  with populations of more than 75,000, and may define “small
  230  city” to include those with populations of more than 10,000, if
  231  it finds that such a definition is necessary to adapt a rule to
  232  the needs and problems of small businesses, small counties, or
  233  small cities. The agency shall consider each of the following
  234  methods for reducing the impact of the proposed rule on small
  235  businesses, small counties, and small cities, or any combination
  236  of these entities:
  237         (I) Establishing less stringent compliance or reporting
  238  requirements in the rule.
  239         (II) Establishing less stringent schedules or deadlines in
  240  the rule for compliance or reporting requirements.
  241         (III) Consolidating or simplifying the rule’s compliance or
  242  reporting requirements.
  243         (IV) Establishing performance standards or best management
  244  practices to replace design or operational standards in the
  245  rule.
  246         (V) Exempting small businesses, small counties, or small
  247  cities from any or all requirements of the rule.
  248         c.b.(I) If the agency determines that the proposed action
  249  will affect small businesses as defined by the agency as
  250  provided in sub-subparagraph b. a., the agency shall send
  251  written notice of the rule to the rules ombudsman in the
  252  Executive Office of the Governor at least 28 days before the
  253  intended action.
  254         (II) Each agency shall adopt those regulatory alternatives
  255  offered by the rules ombudsman in the Executive Office of the
  256  Governor and provided to the agency no later than 21 days after
  257  the rules ombudsman’s receipt of the written notice of the rule
  258  which it finds are feasible and consistent with the stated
  259  objectives of the proposed rule and which would reduce the
  260  impact on small businesses. When regulatory alternatives are
  261  offered by the rules ombudsman in the Executive Office of the
  262  Governor, the 90-day period for filing the rule in subparagraph
  263  (e)2. is extended for a period of 21 days.
  264         (III) If an agency does not adopt all alternatives offered
  265  pursuant to this sub-subparagraph, it shall, before rule
  266  adoption or amendment and pursuant to subparagraph (d)1., file a
  267  detailed written statement with the committee explaining the
  268  reasons for failure to adopt such alternatives. Within 3 working
  269  days after the filing of such notice, the agency shall send a
  270  copy of such notice to the rules ombudsman in the Executive
  271  Office of the Governor.
  272         (c) Hearings.—
  273         1. If the intended action concerns any rule other than one
  274  relating exclusively to procedure or practice, the agency shall,
  275  on the request of any affected person received within 21 days
  276  after the date of publication of the notice of intended agency
  277  action, give affected persons an opportunity to present evidence
  278  and argument on all issues under consideration. The agency may
  279  schedule a public hearing on the proposed rule and, if requested
  280  by any affected person, shall schedule a public hearing on the
  281  proposed rule. When a public hearing is held, the agency must
  282  ensure that the persons responsible for preparing the proposed
  283  rule and the statement of estimated regulatory costs staff are
  284  available to explain the agency’s proposal and to respond to
  285  questions or comments regarding the proposed rule, the statement
  286  of estimated regulatory costs, and the agency’s decision whether
  287  to adopt a lower cost regulatory alternative submitted pursuant
  288  to s. 120.541(1)(a). If the agency head is a board or other
  289  collegial body created under s. 20.165(4) or s. 20.43(3)(g), and
  290  one or more requested public hearings is scheduled, the board or
  291  other collegial body shall conduct at least one of the public
  292  hearings itself and may not delegate this responsibility without
  293  the consent of those persons requesting the public hearing. Any
  294  material pertinent to the issues under consideration submitted
  295  to the agency within 21 days after the date of publication of
  296  the notice or submitted to the agency between the date of
  297  publication of the notice and the end of the final public
  298  hearing shall be considered by the agency and made a part of the
  299  record of the rulemaking proceeding.
  300         2. Rulemaking proceedings shall be governed solely by the
  301  provisions of this section unless a person timely asserts that
  302  the person’s substantial interests will be affected in the
  303  proceeding and affirmatively demonstrates to the agency that the
  304  proceeding does not provide adequate opportunity to protect
  305  those interests. If the agency determines that the rulemaking
  306  proceeding is not adequate to protect the person’s interests, it
  307  shall suspend the rulemaking proceeding and convene a separate
  308  proceeding under the provisions of ss. 120.569 and 120.57. The
  309  agency shall publish notice of convening a separate proceeding
  310  in the Florida Administrative Register. Similarly situated
  311  persons may be requested to join and participate in the separate
  312  proceeding. Upon conclusion of the separate proceeding, the
  313  rulemaking proceeding shall be resumed. All timelines in this
  314  section are tolled during any suspension of the rulemaking
  315  proceeding under this subparagraph, beginning on the date that
  316  the notice of convening a separate proceeding is published and
  317  resuming on the day immediately after conclusion of the separate
  318  proceeding.
  319         (d) Modification or withdrawal of proposed rules.—
  320         1. After the final public hearing on the proposed rule, or
  321  after the time for requesting a hearing has expired, if the
  322  proposed rule has not been changed from the proposed rule as
  323  previously filed with the committee, or contains only technical
  324  changes that do not affect the substance of the rule, the
  325  adopting agency shall file a notice to that effect with the
  326  committee at least 7 days before prior to filing the proposed
  327  rule for adoption. Any change, other than a technical change
  328  that does not affect the substance of the rule, must be
  329  supported by the record of public hearings held on the proposed
  330  rule, must be in response to written material submitted to the
  331  agency within 21 days after the date of publication of the
  332  notice of intended agency action or submitted to the agency
  333  between the date of publication of the notice and the end of the
  334  final public hearing, or must be in response to a proposed
  335  objection by the committee. In addition, when any change is made
  336  in a proposed rule, other than a technical change, the adopting
  337  agency shall provide a copy of a notice of change by certified
  338  mail or actual delivery to any person who requests it in writing
  339  no later than 21 days after the notice required in paragraph
  340  (a). The agency shall file the notice of change with the
  341  committee, along with the reasons for the change, and provide
  342  the notice of change to persons requesting it, at least 21 days
  343  before prior to filing the proposed rule for adoption. The
  344  notice of change shall be published in the Florida
  345  Administrative Register at least 21 days before prior to filing
  346  the rule for adoption. The notice of change must include either
  347  a summary of any statement of estimated regulatory costs
  348  prepared as a consequence of the change, a summary of any
  349  revision of the statement of estimated regulatory costs required
  350  by s. 120.541(1)(c), or a statement that the proposed rule as
  351  changed does not require preparation of a statement of estimated
  352  regulatory costs under paragraph (b) and s. 120.541(1)(b). This
  353  subparagraph does not apply to emergency rules adopted pursuant
  354  to subsection (4).
  355         2. After the notice required by paragraph (a) and before
  356  prior to adoption, the agency may withdraw the proposed rule in
  357  whole or in part.
  358         3. After adoption and before the rule becomes effective, a
  359  rule may be modified or withdrawn only in the following
  360  circumstances:
  361         a. When the committee objects to the rule;
  362         b. When a final order, which is not subject to further
  363  appeal, is entered in a rule challenge brought pursuant to s.
  364  120.56 after the date of adoption but before the rule becomes
  365  effective pursuant to subparagraph (e)6.;
  366         c. If the rule requires ratification, when more than 90
  367  days have passed since the rule was filed for adoption without
  368  the Legislature ratifying the rule, in which case the rule may
  369  be withdrawn but may not be modified; or
  370         d. When the committee notifies the agency that an objection
  371  to the rule is being considered, in which case the rule may be
  372  modified to extend the effective date by not more than 60 days.
  373         4. The agency shall give notice of its decision to withdraw
  374  or modify a rule in the first available issue of the publication
  375  in which the original notice of rulemaking was published, shall
  376  notify those persons described in subparagraph (a)3. in
  377  accordance with the requirements of that subparagraph, and shall
  378  notify the Department of State if the rule is required to be
  379  filed with the Department of State.
  380         5. After a rule has become effective, it may be repealed or
  381  amended only through the rulemaking procedures specified in this
  382  chapter.
  383         (e) Filing for final adoption; effective date.—
  384         1. If the adopting agency is required to publish its rules
  385  in the Florida Administrative Code, the agency, upon approval of
  386  the agency head, shall file with the Department of State three
  387  certified copies of the rule it proposes to adopt; one copy of
  388  any material incorporated by reference in the rule, certified by
  389  the agency; a summary of the rule; a summary of any hearings
  390  held on the rule; and a detailed written statement of the facts
  391  and circumstances justifying the rule. Agencies not required to
  392  publish their rules in the Florida Administrative Code shall
  393  file one certified copy of the proposed rule, and the other
  394  material required by this subparagraph, in the office of the
  395  agency head, and such rules shall be open to the public.
  396         2. A rule may not be filed for adoption less than 28 days
  397  or more than 90 days after the notice required by paragraph (a),
  398  until 21 days after the notice of change required by paragraph
  399  (d), until 14 days after the final public hearing, until 21 days
  400  after a statement of estimated regulatory costs required under
  401  s. 120.541 has been provided to all persons who submitted a
  402  lower cost regulatory alternative and made available to the
  403  public at a readily accessible page on the agency’s website, or
  404  until the administrative law judge has rendered a decision under
  405  s. 120.56(2), whichever applies. When a required notice of
  406  change is published before prior to the expiration of the time
  407  to file the rule for adoption, the period during which a rule
  408  must be filed for adoption is extended to 45 days after the date
  409  of publication. If notice of a public hearing is published
  410  before prior to the expiration of the time to file the rule for
  411  adoption, the period during which a rule must be filed for
  412  adoption is extended to 45 days after adjournment of the final
  413  hearing on the rule, 21 days after receipt of all material
  414  authorized to be submitted at the hearing, or 21 days after
  415  receipt of the transcript, if one is made, whichever is latest.
  416  The term “public hearing” includes any public meeting held by
  417  any agency at which the rule is considered. If a petition for an
  418  administrative determination under s. 120.56(2) is filed, the
  419  period during which a rule must be filed for adoption is
  420  extended to 60 days after the administrative law judge files the
  421  final order with the clerk or until 60 days after subsequent
  422  judicial review is complete.
  423         3. At the time a rule is filed, the agency shall certify
  424  that the time limitations prescribed by this paragraph have been
  425  complied with, that all statutory rulemaking requirements have
  426  been met, and that there is no administrative determination
  427  pending on the rule.
  428         4. At the time a rule is filed, the committee shall certify
  429  whether the agency has responded in writing to all material and
  430  timely written comments or written inquiries made on behalf of
  431  the committee. The Department of State shall reject any rule
  432  that is not filed within the prescribed time limits; that does
  433  not comply with all statutory rulemaking requirements and rules
  434  of the Department of State; upon which an agency has not
  435  responded in writing to all material and timely written
  436  inquiries or written comments; upon which an administrative
  437  determination is pending; or which does not include a statement
  438  of estimated regulatory costs, if required.
  439         5. If a rule has not been adopted within the time limits
  440  imposed by this paragraph or has not been adopted in compliance
  441  with all statutory rulemaking requirements, the agency proposing
  442  the rule shall withdraw the proposed rule and give notice of its
  443  action in the next available issue of the Florida Administrative
  444  Register.
  445         6. The proposed rule shall be adopted on being filed with
  446  the Department of State and become effective 20 days after being
  447  filed, on a later date specified in the notice required by
  448  subparagraph (a)1., on a date required by statute, or upon
  449  ratification by the Legislature pursuant to s. 120.541(3). Rules
  450  not required to be filed with the Department of State shall
  451  become effective when adopted by the agency head, on a later
  452  date specified by rule or statute, or upon ratification by the
  453  Legislature pursuant to s. 120.541(3). If the committee notifies
  454  an agency that an objection to a rule is being considered, the
  455  agency may postpone the adoption of the rule to accommodate
  456  review of the rule by the committee. When an agency postpones
  457  adoption of a rule to accommodate review by the committee, the
  458  90-day period for filing the rule is tolled until the committee
  459  notifies the agency that it has completed its review of the
  460  rule.
  461  
  462  For the purposes of this paragraph, the term “administrative
  463  determination” does not include subsequent judicial review.
  464         Section 2. Section 120.541, Florida Statutes, is amended to
  465  read:
  466         120.541 Statement of estimated regulatory costs.—
  467         (1)(a) Within 21 days after publication of the notice of
  468  proposed rule required under s. 120.54(3)(a), or of a notice of
  469  change under s. 120.54(3)(d)1., a substantially affected person
  470  may submit to an agency a good faith written proposal for a
  471  lower cost regulatory alternative to a proposed rule which
  472  substantially accomplishes the objectives of the law being
  473  implemented. The proposal may include the alternative of not
  474  adopting any rule if the proposal explains how the lower costs
  475  and objectives of the law will be achieved by not adopting any
  476  rule. If submitted after a notice of change, a proposal is
  477  deemed to be made in good faith only if the person reasonably
  478  believes and the proposal states the person’s reasons for
  479  believing that the proposed rule as changed by the notice of
  480  change increases the regulatory costs or creates an adverse
  481  impact on small business that was not created by the previous
  482  proposal. If such a proposal is submitted, the 90-day period for
  483  filing the rule is extended 21 days. Upon the submission of the
  484  lower cost regulatory alternative, the agency shall prepare a
  485  statement of estimated regulatory costs as provided in
  486  subsection (2), or shall revise its prior statement of estimated
  487  regulatory costs, and either adopt the alternative, modify the
  488  proposed rule to substantially reduce the regulatory costs, or
  489  provide a statement of the reasons for rejecting the alternative
  490  in favor of the proposed rule.
  491         (b) If a proposed rule will have an adverse impact on small
  492  business as set forth in s. 120.54(3)(b) or if the proposed rule
  493  is likely to directly or indirectly increase regulatory costs in
  494  excess of $200,000 in the aggregate within 1 year after the
  495  implementation of the rule, the agency shall prepare a statement
  496  of estimated regulatory costs as required by s. 120.54(3)(b).
  497         (c) The agency shall revise a statement of estimated
  498  regulatory costs if any change to the rule made under s.
  499  120.54(3)(d) increases the regulatory costs of the rule or if
  500  the rule is modified in response to the submission of a lower
  501  cost regulatory alternative. A summary of the revised statement
  502  must be included with any subsequent notice published under s.
  503  120.54(3).
  504         (d) At least 21 days before filing the proposed rule for
  505  adoption, an agency that is required to revise a statement of
  506  estimated regulatory costs shall provide the statement to the
  507  person who submitted the lower cost regulatory alternative, to
  508  the rules ombudsman in the Executive Office of the Governor, and
  509  to the committee. The revised statement shall be published and
  510  made available in the same manner as the original statement of
  511  estimated regulatory costs and shall provide notice on the
  512  agency’s website that it is available to the public.
  513         (e) Notwithstanding s. 120.56(1)(c), the failure of the
  514  agency to prepare and publish a statement of estimated
  515  regulatory costs or to respond to a written lower cost
  516  regulatory alternative as provided in this subsection is a
  517  material failure to follow the applicable rulemaking procedures
  518  or requirements set forth in this chapter.
  519         (f) An agency’s failure to prepare and publish a statement
  520  of estimated regulatory costs or to respond to a written lower
  521  cost regulatory alternative may not be raised in a proceeding
  522  challenging the validity of a rule pursuant to s. 120.52(8)(a)
  523  unless:
  524         1. Raised in a petition filed no later than 1 year after
  525  the effective date of the rule; and
  526         2. Raised by a person whose substantial interests are
  527  affected by the rule’s regulatory costs.
  528         (g) A rule that is challenged pursuant to s. 120.52(8)(f)
  529  may not be declared invalid unless:
  530         1. The issue is raised in an administrative proceeding
  531  within 1 year after the effective date of the rule;
  532         2. The challenge is to the agency’s rejection of a lower
  533  cost regulatory alternative offered under paragraph (a) or s.
  534  120.54(3)(b)2.c. s. 120.54(3)(b)2.b.; and
  535         3. The substantial interests of the person challenging the
  536  rule are materially affected by the rejection.
  537         (2) A statement of estimated regulatory costs shall
  538  include:
  539         (a) An economic analysis showing whether the rule directly
  540  or indirectly:
  541         1. Is likely to have an adverse impact on economic growth,
  542  private sector job creation or employment, or private sector
  543  investment in excess of $1 million in the aggregate within 5
  544  years after the implementation of the rule;
  545         2. Is likely to have an adverse impact on business
  546  competitiveness, including the ability of persons doing business
  547  in the state to compete with persons doing business in other
  548  states or domestic markets, productivity, or innovation in
  549  excess of $1 million in the aggregate within 5 years after the
  550  implementation of the rule; or
  551         3. Is likely to increase regulatory costs, including all
  552  any transactional costs and impacts estimated in the statement,
  553  in excess of $1 million in the aggregate within 5 years after
  554  the implementation of the rule.
  555         (b) A good faith estimate of the number of individuals,
  556  small businesses, and other entities likely to be required to
  557  comply with the rule, together with a general description of the
  558  types of individuals likely to be affected by the rule.
  559         (c) A good faith estimate of the cost to the agency, and to
  560  any other state and local government entities, of implementing
  561  and enforcing the proposed rule, and any anticipated effect on
  562  state or local revenues.
  563         (d) A good faith estimate of the compliance transactional
  564  costs likely to be incurred by individuals and entities,
  565  including local government entities, required to comply with the
  566  requirements of the rule. As used in this section,
  567  “transactional costs” are direct costs that are readily
  568  ascertainable based upon standard business practices, and
  569  include filing fees, the cost of obtaining a license, the cost
  570  of equipment required to be installed or used or procedures
  571  required to be employed in complying with the rule, additional
  572  operating costs incurred, the cost of monitoring and reporting,
  573  and any other costs necessary to comply with the rule.
  574         (e) An analysis of the impact on small businesses as
  575  defined by s. 288.703, and an analysis of the impact on small
  576  counties and small cities as defined in s. 120.52. The impact
  577  analysis for small businesses must include the basis for the
  578  agency’s decision not to implement alternatives that would
  579  reduce adverse impacts on small businesses.
  580         (f) Any additional information that the agency determines
  581  may be useful.
  582         (g) In the statement or revised statement, whichever
  583  applies, A description of any regulatory alternatives submitted
  584  under paragraph (1)(a) and a statement adopting the alternative
  585  or a statement of the reasons for rejecting the alternative in
  586  favor of the proposed rule.
  587         (3) If the adverse impact or regulatory costs of the rule
  588  exceed any of the criteria established in paragraph (2)(a), the
  589  rule shall be submitted to the President of the Senate and
  590  Speaker of the House of Representatives no later than 30 days
  591  before prior to the next regular legislative session, and the
  592  rule may not take effect until it is ratified by the
  593  Legislature.
  594         (4) Subsection (3) does not apply to the adoption of:
  595         (a) Federal standards pursuant to s. 120.54(6).
  596         (b) Triennial updates of and amendments to the Florida
  597  Building Code which are expressly authorized by s. 553.73.
  598         (c) Triennial updates of and amendments to the Florida Fire
  599  Prevention Code which are expressly authorized by s. 633.202.
  600         (5)(a) For purposes of subsections (2) and (3), impacts and
  601  costs incurred within 5 years after implementation of the rule
  602  shall include the applicable costs and impacts estimated to be
  603  incurred within the first 5 years after the effective date of
  604  the rule. However, if any provisions of the rule are not fully
  605  implemented and enforceable upon the effective date of the rule,
  606  the impacts and costs must be adjusted to include any additional
  607  costs and impacts estimated to be incurred within 5 years after
  608  the implementation and enforcement of the provisions of the rule
  609  that were not fully implemented upon the effective date of the
  610  rule.
  611         (b) In evaluating the impacts described in paragraphs
  612  (2)(a) and (2)(e), an agency shall include good faith estimates
  613  of market impacts likely to result from compliance with the
  614  rule, including:
  615         1. Increased customer charges for goods and services.
  616         2. Decreased market value of goods and services produced,
  617  provided, or sold.
  618         3. Increased costs resulting from the purchase of
  619  substitute or alternative products or services.
  620         4. The reasonable value of time to be expended by owners,
  621  officers, operators, and managers to understand and comply,
  622  including, but not limited to, time expended to complete
  623  required education, training, or testing.
  624         5. Capital costs.
  625         6. Any other impacts suggested by the rules ombudsman, the
  626  agency head’s appointing authority, or interested persons.
  627         (c) In estimating the information required in paragraphs
  628  (2)(b)-(e), the agency may use reasonably applicable surveys of
  629  individuals, businesses, business organizations and
  630  representatives, cities, and counties to collect data helpful to
  631  estimate the costs and impacts. The agency shall also solicit
  632  helpful information in each notice related to the proposed rule.
  633  The rules ombudsman and the committee may recommend survey
  634  instruments and methods to assist agencies in administering this
  635  section. Such recommendations and agency decisions regarding
  636  surveys and methods do not constitute rules or agency actions
  637  under this chapter.
  638         (d) In estimating compliance costs under paragraph (2)(d),
  639  the agency shall consider, among other matters, all direct and
  640  indirect costs necessary to comply with the rule that are
  641  readily ascertainable based upon standard business practices,
  642  including, but not limited to, costs related to:
  643         1. Filing fees.
  644         2. Obtaining a license.
  645         3. Necessary equipment.
  646         4. Installation, utilities, and maintenance of necessary
  647  equipment.
  648         5. Necessary operations and procedures.
  649         6. Accounting, financial, information and management
  650  systems, and other administrative processes.
  651         7. Other processes.
  652         8. Labor based on relevant rates of wages, salaries and
  653  benefits.
  654         9. Materials and supplies.
  655         10. Capital expenditures including financing costs.
  656         11. Professional and technical services, including
  657  contracted services necessary to implement and maintain
  658  compliance.
  659         12. Monitoring and reporting.
  660         13. Qualifying and recurring education, training, and
  661  testing.
  662         14. Travel.
  663         15. Insurance and surety requirements.
  664         16. A fair and reasonable allocation of administrative
  665  costs and other overhead.
  666         17. Reduced sales or other revenues.
  667         18. Other items suggested by the rules ombudsman, the
  668  committee, or any interested person, business organization, or
  669  business representative.
  670         Section 3. This act shall take effect July 1, 2014.