Amendment
Bill No. 7183

Amendment No. 375407

CHAMBER ACTION
Senate		House
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1	Representative(s) Homan offered the following:
2
3	Amendment (with title amendment)
4	Remove everything after the enacting clause and insert:
5	Section 1.  This act may be cited as "The Open Government
6	Act."
7	Section 2.  Subsection (8) of section 120.52, Florida
8	Statutes, is amended, present subsections (9) through (15) of
9	that section are renumbered as subsections (10) through (16),
10	respectively, present subsections (16), (17), (18), and (19) of
11	that section are renumbered as subsections (18), (19), (21), and
12	(22), respectively, and new subsections (9), (17), and (20) are
13	added to that section, to read:
14	120.52  Definitions.--As used in this act:
15	(8)  "Invalid exercise of delegated legislative authority"
16	means action that which goes beyond the powers, functions, and
17	duties delegated by the Legislature. A proposed or existing rule
18	is an invalid exercise of delegated legislative authority if any
19	one of the following applies:
20	(a)  The agency has materially failed to follow the
21	applicable rulemaking procedures or requirements set forth in
22	this chapter;
23	(b)  The agency has exceeded its grant of rulemaking
24	authority, citation to which is required by s. 120.54(3)(a)1.;
25	(c)  The rule enlarges, modifies, or contravenes the
26	specific provisions of law implemented, citation to which is
27	required by s. 120.54(3)(a)1.;
28	(d)  The rule is vague, fails to establish adequate
29	standards for agency decisions, or vests unbridled discretion in
30	the agency;
31	(e)  The rule is arbitrary or capricious. A rule is
32	arbitrary if it is not supported by logic or the necessary
33	facts; a rule is capricious if it is adopted without thought or
34	reason or is irrational; or
35	(f)  The rule imposes regulatory costs on the regulated
36	person, county, or city which could be reduced by the adoption
37	of less costly alternatives that substantially accomplish the
38	statutory objectives.
39
40	A grant of rulemaking authority is necessary but not sufficient
41	to allow an agency to adopt a rule; a specific law to be
42	implemented is also required. An agency may adopt only rules
43	that implement or interpret the specific powers and duties
44	granted by the enabling statute. No agency shall have authority
45	to adopt a rule only because it is reasonably related to the
46	purpose of the enabling legislation and is not arbitrary and
47	capricious or is within the agency's class of powers and duties,
48	nor shall an agency have the authority to implement statutory
49	provisions setting forth general legislative intent or policy.
50	Statutory language granting rulemaking authority or generally
51	describing the powers and functions of an agency shall be
52	construed to extend no further than implementing or interpreting
53	the specific powers and duties conferred by the same statute.
54	(9)  "Law implemented" means the statutory language being
55	carried out or interpreted by an agency through rulemaking.
56	(17)  "Rulemaking authority" means statutory language that
57	explicitly authorizes or requires an agency to adopt, develop,
58	establish, or otherwise create any statement coming within the
59	definition of "rule."
60	(20)  "Unadopted rule" means an agency statement that meets
61	the definition of the term "rule" but has not been adopted
62	pursuant to the requirements of s. 120.54.
63	Section 3.  Subsection (1) of section 120.536, Florida
64	Statutes, is amended to read:
65	120.536  Rulemaking authority; repeal; challenge.--
66	(1)  A grant of rulemaking authority is necessary but not
67	sufficient to allow an agency to adopt a rule; a specific law to
68	be implemented is also required. An agency may adopt only rules
69	that implement or interpret the specific powers and duties
70	granted by the enabling statute. No agency shall have authority
71	to adopt a rule only because it is reasonably related to the
72	purpose of the enabling legislation and is not arbitrary and
73	capricious or is within the agency's class of powers and duties,
74	nor shall an agency have the authority to implement statutory
75	provisions setting forth general legislative intent or policy.
76	Statutory language granting rulemaking authority or generally
77	describing the powers and functions of an agency shall be
78	construed to extend no further than implementing or interpreting
79	the specific powers and duties conferred by the same statute.
80	Section 4. Paragraph (i) of subsection (1), paragraphs (a),
81	(c), and (e) of subsection (3), paragraph (a) of subsection (4),
82	and subsection (7) of section 120.54, Florida Statutes, are
83	amended, and paragraph (k) is added to subsection (1) of that
84	section, to read:
85	120.54  Rulemaking.--
86	(1)  GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN
87	EMERGENCY RULES.--
88	(i)1.  A rule may incorporate material by reference but
89	only as the material exists on the date the rule is adopted. For
90	purposes of the rule, changes in the material are not effective
91	unless the rule is amended to incorporate the changes. Material
92	incorporated by reference in a rule may not incorporate
93	additional material by reference unless the rule specifically
94	identifies the additional material.
95	2.  An agency rule that incorporates by specific reference
96	another rule of that agency automatically incorporates
97	subsequent amendments to the referenced rule, unless a contrary
98	intent is clearly indicated in the referencing rule. Any notice
99	of amendments to a rule that has been incorporated by specific
100	reference in other rules of that agency must explain the effect
101	of the amendments on the referencing rules.
102	3.  In rules adopted after December 31, 2009, material may
103	not be incorporated by reference unless:
104	a.  The material has been submitted in the prescribed
105	electronic format to the Department of State and the full text
106	of the material can be made available for free public access
107	through an electronic hyperlink from the rule in the Florida
108	Administrative Code making the reference; or
109	b.  The agency has determined that posting of the material
110	on the Internet for purposes of public examination and
111	inspection would constitute a violation of federal copyright
112	law, in which case a statement to that effect, along with the
113	address of locations at the Department of State and the agency
114	at which the material is available for public inspection and
115	examination, is included in the notice required by subparagraph
116	(3)(a)1.
117	4.  A rule may not be amended by reference only. Amendments
118	must set out the amended rule in full in the same manner as
119	required by the State Constitution for laws. The Department of
120	State may prescribe by rule requirements for incorporating
121	materials by reference pursuant to this paragraph.
122	5.2.  Notwithstanding any contrary provision in this
123	section, when an adopted rule of the Department of Environmental
124	Protection or a water management district is incorporated by
125	reference in the other agency's rule to implement a provision of
126	part IV of chapter 373, subsequent amendments to the rule are
127	not effective as to the incorporating rule unless the agency
128	incorporating by reference notifies the committee and the
129	Department of State of its intent to adopt the subsequent
130	amendment, publishes notice of such intent in the Florida
131	Administrative Weekly, and files with the Department of State a
132	copy of the amended rule incorporated by reference. Changes in
133	the rule incorporated by reference are effective as to the other
134	agency 20 days after the date of the published notice and filing
135	with the Department of State. The Department of State shall
136	amend the history note of the incorporating rule to show the
137	effective date of such change. Any substantially affected person
138	may, within 14 days after the date of publication of the notice
139	of intent in the Florida Administrative Weekly, file an
140	objection to rulemaking with the agency. The objection shall
141	specify the portions of the rule incorporated by reference to
142	which the person objects and the reasons for the objection. The
143	agency shall not have the authority under this subparagraph to
144	adopt those portions of the rule specified in such objection.
145	The agency shall publish notice of the objection and of its
146	action in response in the next available issue of the Florida
147	Administrative Weekly.
148	6.  The Department of State may prescribe by rule
149	requirements for incorporating materials pursuant to this
150	paragraph.
151	(k)  Rulemaking responsibilities of an agency head under
152	subparagraph (3)(a)1., subparagraph (3)(e)1., or subparagraph
153	(3)(e)6. may not be delegated or transferred.
154	(3)  ADOPTION PROCEDURES.--
155	(a)  Notices.--
156	1.  Prior to the adoption, amendment, or repeal of any rule
157	other than an emergency rule, an agency, upon approval of the
158	agency head, shall give notice of its intended action, setting
159	forth a short, plain explanation of the purpose and effect of
160	the proposed action; the full text of the proposed rule or
161	amendment and a summary thereof; a reference to the grant of
162	specific rulemaking authority pursuant to which the rule is
163	adopted; and a reference to the section or subsection of the
164	Florida Statutes or the Laws of Florida being implemented or,
165	interpreted, or made specific. The notice shall include a
166	summary of the agency's statement of the estimated regulatory
167	costs, if one has been prepared, based on the factors set forth
168	in s. 120.541(2), and a statement that any person who wishes to
169	provide the agency with information regarding the statement of
170	estimated regulatory costs, or to provide a proposal for a lower
171	cost regulatory alternative as provided by s. 120.541(1), must
172	do so in writing within 21 days after publication of the notice.
173	The notice must state the procedure for requesting a public
174	hearing on the proposed rule. Except when the intended action is
175	the repeal of a rule, the notice shall include a reference both
176	to the date on which and to the place where the notice of rule
177	development that is required by subsection (2) appeared.
178	2.  The notice shall be published in the Florida
179	Administrative Weekly not less than 28 days prior to the
180	intended action. The proposed rule shall be available for
181	inspection and copying by the public at the time of the
182	publication of notice.
183	3.  The notice shall be mailed to all persons named in the
184	proposed rule and to all persons who, at least 14 days prior to
185	such mailing, have made requests of the agency for advance
186	notice of its proceedings. The agency shall also give such
187	notice as is prescribed by rule to those particular classes of
188	persons to whom the intended action is directed.
189	4.  The adopting agency shall file with the committee, at
190	least 21 days prior to the proposed adoption date, a copy of
191	each rule it proposes to adopt; a copy of any material
192	incorporated by reference in the rule; a detailed written
193	statement of the facts and circumstances justifying the proposed
194	rule; a copy of any statement of estimated regulatory costs that
195	has been prepared pursuant to s. 120.541; a statement of the
196	extent to which the proposed rule relates to federal standards
197	or rules on the same subject; and the notice required by
198	subparagraph 1.
199	(c)  Hearings.--
200	1.  If the intended action concerns any rule other than one
201	relating exclusively to procedure or practice, the agency shall,
202	on the request of any affected person received within 21 days
203	after the date of publication of the notice of intended agency
204	action, give affected persons an opportunity to present evidence
205	and argument on all issues under consideration. The agency may
206	schedule a public hearing on the rule and, if requested by any
207	affected person, shall schedule a public hearing on the rule. If
208	the agency head is a board or other collegial body created under
209	s. 20.165(4) or s. 20.43(3)(g), the board or other collegial
210	body shall conduct the requested public hearing itself and may
211	not delegate this responsibility without the consent of those
212	persons requesting the public hearing. Any material pertinent to
213	the issues under consideration submitted to the agency within 21
214	days after the date of publication of the notice or submitted at
215	a public hearing shall be considered by the agency and made a
216	part of the record of the rulemaking proceeding.
217	2.  Rulemaking proceedings shall be governed solely by the
218	provisions of this section unless a person timely asserts that
219	the person's substantial interests will be affected in the
220	proceeding and affirmatively demonstrates to the agency that the
221	proceeding does not provide adequate opportunity to protect
222	those interests. If the agency determines that the rulemaking
223	proceeding is not adequate to protect the person's interests, it
224	shall suspend the rulemaking proceeding and convene a separate
225	proceeding under the provisions of ss. 120.569 and 120.57.
226	Similarly situated persons may be requested to join and
227	participate in the separate proceeding. Upon conclusion of the
228	separate proceeding, the rulemaking proceeding shall be resumed.
229	(e)  Filing for final adoption; effective date.--
230	1.  If the adopting agency is required to publish its rules
231	in the Florida Administrative Code, the agency, upon approval of
232	the agency head, it shall file with the Department of State
233	three certified copies of the rule it proposes to adopt;, one
234	copy of any material incorporated by reference in the rule,
235	certified by the agency; a summary of the rule;, a summary of
236	any hearings held on the rule;, and a detailed written statement
237	of the facts and circumstances justifying the rule. Agencies not
238	required to publish their rules in the Florida Administrative
239	Code shall file one certified copy of the proposed rule, and the
240	other material required by this subparagraph, in the office of
241	the agency head, and such rules shall be open to the public.
242	2.  A rule may not be filed for adoption less than 28 days
243	or more than 90 days after the notice required by paragraph (a),
244	until 21 days after the notice of change required by paragraph
245	(d), until 14 days after the final public hearing, until 21 days
246	after preparation of a statement of estimated regulatory costs
247	required under s. 120.541 has been provided to all persons who
248	submitted a lower cost regulatory alternative and made available
249	to the public, or until the administrative law judge has
250	rendered a decision under s. 120.56(2), whichever applies. When
251	a required notice of change is published prior to the expiration
252	of the time to file the rule for adoption, the period during
253	which a rule must be filed for adoption is extended to 45 days
254	after the date of publication. If notice of a public hearing is
255	published prior to the expiration of the time to file the rule
256	for adoption, the period during which a rule must be filed for
257	adoption is extended to 45 days after adjournment of the final
258	hearing on the rule, 21 days after receipt of all material
259	authorized to be submitted at the hearing, or 21 days after
260	receipt of the transcript, if one is made, whichever is latest.
261	The term "public hearing" includes any public meeting held by
262	any agency at which the rule is considered. If a petition for an
263	administrative determination under s. 120.56(2) is filed, the
264	period during which a rule must be filed for adoption is
265	extended to 60 days after the administrative law judge files the
266	final order with the clerk or until 60 days after subsequent
267	judicial review is complete.
268	3.  At the time a rule is filed, the agency shall certify
269	that the time limitations prescribed by this paragraph have been
270	complied with, that all statutory rulemaking requirements have
271	been met, and that there is no administrative determination
272	pending on the rule.
273	4.  At the time a rule is filed, the committee shall
274	certify whether the agency has responded in writing to all
275	material and timely written comments or written inquiries made
276	on behalf of the committee. The department shall reject any rule
277	not filed within the prescribed time limits; that does not
278	comply with satisfy all statutory rulemaking requirements and
279	rules of the department; upon which an agency has not responded
280	in writing to all material and timely written inquiries or
281	written comments; upon which an administrative determination is
282	pending; or which does not include a statement of estimated
283	regulatory costs, if required.
284	5.  If a rule has not been adopted within the time limits
285	imposed by this paragraph or has not been adopted in compliance
286	with all statutory rulemaking requirements, the agency proposing
287	the rule shall withdraw the rule and give notice of its action
288	in the next available issue of the Florida Administrative
289	Weekly.
290	6.  The proposed rule shall be adopted on being filed with
291	the Department of State and become effective 20 days after being
292	filed, on a later date specified in the rule, or on a date
293	required by statute. Rules not required to be filed with the
294	Department of State shall become effective when adopted by the
295	agency head or on a later date specified by rule or statute. If
296	the committee notifies an agency that an objection to a rule is
297	being considered, the agency may postpone the adoption of the
298	rule to accommodate review of the rule by the committee. When an
299	agency postpones adoption of a rule to accommodate review by the
300	committee, the 90-day period for filing the rule is tolled until
301	the committee notifies the agency that it has completed its
302	review of the rule.
303
304	For the purposes of this paragraph, the term "administrative
305	determination" does not include subsequent judicial review.
306	(4)  EMERGENCY RULES.--
307	(a)  If an agency finds that an immediate danger to the
308	public health, safety, or welfare requires emergency action, the
309	agency may adopt any rule necessitated by the immediate danger.
310	The agency may adopt a rule by any procedure which is fair under
311	the circumstances if:
312	1.  The procedure provides at least the procedural
313	protection given by other statutes, the State Constitution, or
314	the United States Constitution.
315	2.  The agency takes only that action necessary to protect
316	the public interest under the emergency procedure.
317	3.  The agency publishes in writing at the time of, or
318	prior to, its action the specific facts and reasons for finding
319	an immediate danger to the public health, safety, or welfare and
320	its reasons for concluding that the procedure used is fair under
321	the circumstances. In any event, notice of emergency rules,
322	other than those of educational units or units of government
323	with jurisdiction in only one or a part of one county, including
324	the full text of the rules, shall be published in the first
325	available issue of the Florida Administrative Weekly and
326	provided to the committee along with any material incorporated
327	by reference in the rules. The agency's findings of immediate
328	danger, necessity, and procedural fairness shall be judicially
329	reviewable.
330	(7)  PETITION TO INITIATE RULEMAKING.--
331	(a)  Any person regulated by an agency or having
332	substantial interest in an agency rule may petition an agency to
333	adopt, amend, or repeal a rule or to provide the minimum public
334	information required by this chapter. The petition shall specify
335	the proposed rule and action requested. Not later than 30
336	calendar days following the date of filing a petition, the
337	agency shall initiate rulemaking proceedings under this chapter,
338	otherwise comply with the requested action, or deny the petition
339	with a written statement of its reasons for the denial.
340	(b)  If the petition filed under this subsection is
341	directed to an existing rule which the agency has not adopted by
342	the rulemaking procedures or requirements set forth in this
343	chapter, the agency shall, not later than 30 days following the
344	date of filing a petition, initiate rulemaking, or provide
345	notice in the Florida Administrative Weekly that the agency will
346	hold a public hearing on the petition within 30 days after
347	publication of the notice. The purpose of the public hearing is
348	to consider the comments of the public directed to the agency
349	rule which has not been adopted by the rulemaking procedures or
350	requirements of this chapter, its scope and application, and to
351	consider whether the public interest is served adequately by the
352	application of the rule on a case-by-case basis, as contrasted
353	with its adoption by the rulemaking procedures or requirements
354	set forth in this chapter.
355	(c)  Within 30 days following the public hearing provided
356	for by paragraph (b), if the agency does not initiate rulemaking
357	or otherwise comply with the requested action, the agency shall
358	publish in the Florida Administrative Weekly a statement of its
359	reasons for not initiating rulemaking or otherwise complying
360	with the requested action, and of any changes it will make in
361	the scope or application of the unadopted rule. The agency shall
362	file the statement with the committee. The committee shall
363	forward a copy of the statement to the substantive committee
364	with primary oversight jurisdiction of the agency in each house
365	of the Legislature. The committee or the committee with primary
366	oversight jurisdiction may hold a hearing directed to the
367	statement of the agency. The committee holding the hearing may
368	recommend to the Legislature the introduction of legislation
369	making the rule a statutory standard or limiting or otherwise
370	modifying the authority of the agency.
371	Section 5.  Section 120.545, Florida Statutes, is amended
372	to read:
373	120.545  Committee review of agency rules.--
374	(1)  As a legislative check on legislatively created
375	authority, the committee shall examine each proposed rule,
376	except for those proposed rules exempted by s. 120.81(1)(e) and
377	(2), and its accompanying material, and each emergency rule, and
378	may examine any existing rule, for the purpose of determining
379	whether:
380	(a)  The rule is an invalid exercise of delegated
381	legislative authority.
382	(b)  The statutory authority for the rule has been
383	repealed.
384	(c)  The rule reiterates or paraphrases statutory material.
385	(d)  The rule is in proper form.
386	(e)  The notice given prior to its adoption was sufficient
387	to give adequate notice of the purpose and effect of the rule.
388	(f)  The rule is consistent with expressed legislative
389	intent pertaining to the specific provisions of law which the
390	rule implements.
391	(g)  The rule is necessary to accomplish the apparent or
392	expressed objectives of the specific provision of law which the
393	rule implements.
394	(h)  The rule is a reasonable implementation of the law as
395	it affects the convenience of the general public or persons
396	particularly affected by the rule.
397	(i)  The rule could be made less complex or more easily
398	comprehensible to the general public.
399	(j)  The rule's statement of estimated regulatory costs
400	complies with the requirements of s. 120.541 and whether the
401	rule does not impose regulatory costs on the regulated person,
402	county, or city which could be reduced by the adoption of less
403	costly alternatives that substantially accomplish the statutory
404	objectives.
405	(k)  The rule will require additional appropriations.
406	(l)  If the rule is an emergency rule, there exists an
407	emergency justifying the adoption promulgation of such rule, the
408	agency is within has exceeded the scope of its statutory
409	authority, and the rule was adopted promulgated in compliance
410	with the requirements and limitations of s. 120.54(4).
411	(2)  The committee may request from an agency such
412	information as is reasonably necessary for examination of a rule
413	as required by subsection (1) or for examination of an unadopted
414	agency statement. The committee shall consult with legislative
415	standing committees having with jurisdiction over the subject
416	areas. If the committee objects to an emergency rule or a
417	proposed or existing rule, the committee it shall, within 5 days
418	after of the objection, certify that fact to the agency whose
419	rule has been examined and include with the certification a
420	statement detailing its objections with particularity. The
421	committee shall notify the Speaker of the House of
422	Representatives and the President of the Senate of any objection
423	to an agency rule concurrent with certification of that fact to
424	the agency. Such notice shall include a copy of the rule and the
425	statement detailing the committee's objections to the rule.
426	(3)  Within 30 days after of receipt of the objection, if
427	the agency is headed by an individual, or within 45 days after
428	of receipt of the objection, if the agency is headed by a
429	collegial body, the agency shall:
430	(a)  If the rule is not yet in effect a proposed rule:
431	1.  File notice pursuant to s. 120.54(3)(d) of only such
432	modifications as are necessary to address Modify the rule to
433	meet the committee's objection;
434	2.  File notice pursuant to s. 120.54(3)(d) of withdrawal
435	of Withdraw the rule in its entirety; or
436	3.  Notify the committee in writing that it refuses Refuse
437	to modify or withdraw the rule.
438	(b)  If the rule is in effect an existing rule:
439	1.  File notice pursuant to s. 120.54(3)(a), without prior
440	notice of rule development, Notify the committee that it has
441	elected to amend the rule to address meet the committee's
442	objection and initiate the amendment procedure;
443	2.  File notice pursuant to s. 120.54(3)(a) Notify the
444	committee that it has elected to repeal the rule and initiate
445	the repeal procedure; or
446	3.  Notify the committee in writing that the agency it
447	refuses to amend or repeal the rule.
448	(c)  If the rule is either an existing or a proposed rule
449	and the objection is to the statement of estimated regulatory
450	costs:
451	1.  Prepare a corrected statement of estimated regulatory
452	costs, give notice of the availability of the corrected
453	statement in the first available issue of the Florida
454	Administrative Weekly, and file a copy of the corrected
455	statement with the committee; or
456	2.  Notify the committee that it refuses to prepare a
457	corrected statement of estimated regulatory costs.
458	(d)  If the rule is unadopted:
459	1.  File notice pursuant to s. 120.54(3)(a) of intent to
460	adopt the rule;
461	2.  File notice for publication in the Florida
462	Administrative Weekly that the agency has abandoned all reliance
463	upon the statement or any substantially similar statement as a
464	basis for agency action; or
465	3.  Notify the committee in writing that the agency refuses
466	to adopt the rule or to abandon all reliance upon the statement
467	or any substantially similar statement as a basis for agency
468	action.
469	(4)  If the agency elects to modify a proposed rule to meet
470	the committee's objection, it shall make only such modifications
471	as are necessary to meet the objection and shall resubmit the
472	rule to the committee. The agency shall give notice of its
473	election to modify a proposed rule to meet the committee's
474	objection by publishing a notice of change in the first
475	available issue of the Florida Administrative Weekly, but shall
476	not be required to conduct a public hearing. If the agency
477	elects to amend an existing rule to meet the committee's
478	objection, it shall notify the committee in writing and shall
479	initiate the amendment procedure by giving notice in the next
480	available issue of the Florida Administrative Weekly. The
481	committee shall give priority to rules so modified or amended
482	when setting its agenda.
483	(5)  If the agency elects to withdraw a proposed rule as a
484	result of a committee objection, it shall notify the committee,
485	in writing, of its election and shall give notice of the
486	withdrawal in the next available issue of the Florida
487	Administrative Weekly. The rule shall be withdrawn without a
488	public hearing, effective upon publication of the notice in the
489	Florida Administrative Weekly. If the agency elects to repeal an
490	existing rule as a result of a committee objection, it shall
491	notify the committee, in writing, of its election and shall
492	initiate rulemaking procedures for that purpose by giving notice
493	in the next available issue of the Florida Administrative
494	Weekly.
495	(6)  If an agency elects to amend or repeal an existing
496	rule as a result of a committee objection, it shall complete the
497	process within 90 days after giving notice in the Florida
498	Administrative Weekly.
499	(4)(7)  Failure of the agency to respond to a committee
500	objection to a proposed rule that is not yet in effect within
501	the time prescribed in subsection (3) constitutes shall
502	constitute withdrawal of the rule in its entirety. In this
503	event, the committee shall notify the Department of State that
504	the agency, by its failure to respond to a committee objection,
505	has elected to withdraw the proposed rule. Upon receipt of the
506	committee's notice, the Department of State shall publish a
507	notice to that effect in the next available issue of the Florida
508	Administrative Weekly. Upon publication of the notice, the
509	proposed rule shall be stricken from the files of the Department
510	of State and the files of the agency.
511	(5)(8)  Failure of the agency to respond to a committee
512	objection to a an existing rule that is in effect within the
513	time prescribed in subsection (3) constitutes shall constitute a
514	refusal to amend or repeal the rule.
515	(6)  Failure of the agency to respond to a committee
516	objection to a statement of estimated regulatory costs within
517	the time prescribed in subsection (3) constitutes a refusal to
518	prepare a corrected statement of estimated regulatory costs.
519	(7)  Failure of the agency to respond to a committee
520	objection to an unadopted rule within the time prescribed in
521	subsection (3) constitutes a refusal to adopt the rule and a
522	refusal to abandon all reliance upon the statement or any
523	substantially similar statement as a basis for agency action.
524	(8)(9)  If the committee objects to a proposed or existing
525	rule and the agency refuses to adopt, abandon, modify, amend,
526	withdraw, or repeal the rule, the committee shall file with the
527	Department of State a notice of the objection, detailing with
528	particularity the committee's its objection to the rule. The
529	Department of State shall publish this notice in the Florida
530	Administrative Weekly. If the rule is published and shall
531	publish, as a history note to the rule in the Florida
532	Administrative Code, a reference to the committee's objection
533	and to the issue of the Weekly in which the full text thereof
534	appears shall be recorded in a history note.
535	(9)(10)(a)  If the committee objects to a proposed or
536	existing rule, or portion of a rule thereof, and the agency
537	fails to initiate administrative action to adopt, abandon,
538	modify, amend, withdraw, or repeal the rule consistent with the
539	objection within 60 days after the objection, or thereafter
540	fails to proceed in good faith to complete such action, the
541	committee may submit to the President of the Senate and the
542	Speaker of the House of Representatives a recommendation that
543	legislation be introduced to address the committee objection
544	modify or suspend the adoption of the proposed rule, or amend or
545	repeal the rule, or portion thereof.
546	(b)1.  If the committee votes to recommend the introduction
547	of legislation to address the committee objection modify or
548	suspend the adoption of a proposed rule, or amend or repeal a
549	rule, the committee shall, within 5 days after this
550	determination, certify that fact to the agency whose rule or
551	proposed rule has been examined. The committee may request that
552	the agency temporarily suspend the rule or suspend the adoption
553	of the proposed rule, or suspend all reliance upon the statement
554	or any substantially similar statement as a basis for agency
555	action, pending consideration of proposed legislation during the
556	next regular session of the Legislature.
557	2.  Within 30 days after receipt of the certification, if
558	the agency is headed by an individual, or within 45 days after
559	receipt of the certification, if the agency is headed by a
560	collegial body, the agency shall either:
561	a.  Temporarily suspend the rule, or suspend the adoption
562	of the proposed rule, or suspend all reliance upon the statement
563	or any substantially similar statement as a basis for agency
564	action; or
565	b.  Notify the committee in writing that the agency it
566	refuses to temporarily suspend the rule, or suspend the adoption
567	of the proposed rule, or suspend all reliance upon the statement
568	or any substantially similar statement as a basis for agency
569	action.
570	3.  If the agency elects to temporarily suspend the rule,
571	or suspend the adoption of the proposed rule, or suspend all
572	reliance upon the statement or any substantially similar
573	statement as a basis for agency action, the agency it shall give
574	notice of the suspension in the Florida Administrative Weekly.
575	The rule or the rule adoption process shall be suspended upon
576	publication of the notice. An agency may shall not base any
577	agency action on a suspended rule, or suspended proposed rule,
578	or suspended statement or any substantially similar statement,
579	or portion of such rule or statement thereof, prior to
580	expiration of the suspension. A suspended rule, or suspended
581	proposed rule, or suspended statement or any substantially
582	similar statement, or portion of such rule or statement thereof,
583	continues to be subject to administrative determination and
584	judicial review as provided by law.
585	4.  Failure of an agency to respond to committee
586	certification within the time prescribed by subparagraph 2.
587	constitutes a refusal to suspend the rule, or to suspend the
588	adoption of the proposed rule, or suspend all reliance upon the
589	statement or any substantially similar statement as a basis for
590	agency action.
591	(c)  The committee shall prepare proposed legislation bills
592	to address the committee objection modify or suspend the
593	adoption of the proposed rule or amend or repeal the rule, or
594	portion thereof, in accordance with the rules of the Senate and
595	the House of Representatives for prefiling and introduction in
596	the next regular session of the Legislature. The proposed
597	legislation bill shall be presented to the President of the
598	Senate and the Speaker of the House of Representatives with the
599	committee recommendation.
600	(d)  If proposed legislation addressing the committee
601	objection a bill to suspend the adoption of a proposed rule is
602	enacted into law, the proposed rule is suspended until specific
603	delegated legislative authority for the proposed rule has been
604	enacted. If a bill to suspend the adoption of a proposed rule
605	fails to become law, any temporary agency suspension of the rule
606	shall expire. If a bill to modify a proposed rule or amend a
607	rule is enacted into law, the suspension shall expire upon
608	publication of notice of modification or amendment in the
609	Florida Administrative Weekly. If a bill to repeal a rule is
610	enacted into law, the suspension shall remain in effect until
611	notification of repeal of the rule is published in the Florida
612	Administrative Weekly.
613	(e)  The Department of State shall publish in the next
614	available issue of the Florida Administrative Weekly the final
615	legislative action taken. If a bill to modify or suspend the
616	adoption of the proposed rule or amend or repeal the rule, or
617	portion thereof, is enacted into law, the Department of State
618	shall conform the rule or portion of the rule to the provisions
619	of the law in the Florida Administrative Code and publish a
620	reference to the law as a history note to the rule.
621	Section 6.  Paragraphs (a) and (c) of subsection (1) and
622	subsection (3) of section 120.55, Florida Statutes, are amended
623	to read:
624	120.55  Publication.--
625	(1)  The Department of State shall:
626	(a)1.  Through a continuous revision system, compile and
627	publish the "Florida Administrative Code." The Florida
628	Administrative Code shall contain all rules adopted by each
629	agency, citing the specific rulemaking authority pursuant to
630	which each rule was adopted, all history notes as authorized in
631	s. 120.545(8)(9), and complete indexes to all rules contained in
632	the code. Supplementation shall be made as often as practicable,
633	but at least monthly. The department may contract with a
634	publishing firm for the publication, in a timely and useful
635	form, of the Florida Administrative Code; however, the
636	department shall retain responsibility for the code as provided
637	in this section. This publication shall be the official
638	compilation of the administrative rules of this state. The
639	Department of State shall retain the copyright over the Florida
640	Administrative Code.
641	2.  Rules general in form but applicable to only one school
642	district, community college district, or county, or a part
643	thereof, or state university rules relating to internal
644	personnel or business and finance shall not be published in the
645	Florida Administrative Code. Exclusion from publication in the
646	Florida Administrative Code shall not affect the validity or
647	effectiveness of such rules.
648	3.  At the beginning of the section of the code dealing
649	with an agency that files copies of its rules with the
650	department, the department shall publish the address and
651	telephone number of the executive offices of each agency, the
652	manner by which the agency indexes its rules, a listing of all
653	rules of that agency excluded from publication in the code, and
654	a statement as to where those rules may be inspected.
655	4.  Forms shall not be published in the Florida
656	Administrative Code; but any form which an agency uses in its
657	dealings with the public, along with any accompanying
658	instructions, shall be filed with the committee before it is
659	used. Any form or instruction which meets the definition of
660	"rule" provided in s. 120.52 shall be incorporated by reference
661	into the appropriate rule. The reference shall specifically
662	state that the form is being incorporated by reference and shall
663	include the number, title, and effective date of the form and an
664	explanation of how the form may be obtained.
665	(c)  Prescribe by rule the style, and form, and content
666	requirements required for rules, notices, and other materials
667	submitted for filing and establish the form for their
668	certification.
669	(3)  Any publication of a proposed rule promulgated by an
670	agency, whether published in the Florida Administrative Code or
671	elsewhere, shall include, along with the rule, the name of the
672	person or persons originating such rule, the name of the agency
673	head supervisor or person who approved the rule, and the date
674	upon which the rule was approved.
675	Section 7.  Effective December 31, 2007, paragraphs (a) and
676	(d) of subsection (1) and subsections (2) and (5) of section
677	120.55, Florida Statutes, as amended by section 4 of chapter
678	2006-82, Laws of Florida, are amended to read:
679	120.55  Publication.--
680	(1)  The Department of State shall:
681	(a)
682	1.  Through a continuous revision system, compile and
683	publish the "Florida Administrative Code." The Florida
684	Administrative Code shall contain all rules adopted by each
685	agency, citing the specific rulemaking authority pursuant to
686	which each rule was adopted, all history notes as authorized in
687	s. 120.545(8)(9), and complete indexes to all rules contained in
688	the code. Supplementation shall be made as often as practicable,
689	but at least monthly. The department may contract with a
690	publishing firm for the publication, in a timely and useful
691	form, of the Florida Administrative Code; however, the
692	department shall retain responsibility for the code as provided
693	in this section. This publication shall be the official
694	compilation of the administrative rules of this state. The
695	Department of State shall retain the copyright over the Florida
696	Administrative Code.
697	2.  Rules general in form but applicable to only one school
698	district, community college district, or county, or a part
699	thereof, or state university rules relating to internal
700	personnel or business and finance shall not be published in the
701	Florida Administrative Code. Exclusion from publication in the
702	Florida Administrative Code shall not affect the validity or
703	effectiveness of such rules.
704	3.  At the beginning of the section of the code dealing
705	with an agency that files copies of its rules with the
706	department, the department shall publish the address and
707	telephone number of the executive offices of each agency, the
708	manner by which the agency indexes its rules, a listing of all
709	rules of that agency excluded from publication in the code, and
710	a statement as to where those rules may be inspected.
711	4.  Forms shall not be published in the Florida
712	Administrative Code; but any form which an agency uses in its
713	dealings with the public, along with any accompanying
714	instructions, shall be filed with the committee before it is
715	used. Any form or instruction which meets the definition of
716	"rule" provided in s. 120.52 shall be incorporated by reference
717	into the appropriate rule. The reference shall specifically
718	state that the form is being incorporated by reference and shall
719	include the number, title, and effective date of the form and an
720	explanation of how the form may be obtained. Each form created
721	by an agency which is incorporated by reference in a rule notice
722	of which is given under s. 120.54(3)(a) after December 31, 2007,
723	must clearly display the number, title, and effective date of
724	the form and the number of the rule in which the form is
725	incorporated.
726	(d)  Prescribe by rule the style, and form, and content
727	requirements required for rules, notices, and other materials
728	submitted for filing and establish the form for their
729	certification.
730	(2)  The Florida Administrative Weekly Internet website
731	must allow users to:
732	(a)  Search for notices by type, publication date, rule
733	number, word, subject, and agency;
734	(b)  Search a database that makes available all notices
735	published on the website for a period of at least 5 years;
736	(c)  Subscribe to an automated e-mail notification of
737	selected notices to be sent out prior to or concurrently with
738	weekly publication of the printed and electronic Florida
739	Administrative Weekly. Such notification must include in the
740	text of the e-mail a summary of the content of each notice;
741	(d)  View agency forms and other materials that have been
742	submitted to the department in electronic form and that are
743	being incorporated by reference in proposed rules; and
744	(e)  Comment on proposed rules.
745	(5)  Any publication of a proposed rule promulgated by an
746	agency, whether published in the Florida Administrative Code or
747	elsewhere, shall include, along with the rule, the name of the
748	person or persons originating such rule, the name of the agency
749	head supervisor or person who approved the rule, and the date
750	upon which the rule was approved.
751	Section 8.  Effective December 31, 2008, paragraph (a) of
752	subsection (1) of section 120.55, Florida Statutes, as amended
753	by section 4 of chapter 2006-82, Laws of Florida, is amended to
754	read:
755	120.55  Publication.--
756	(1)  The Department of State shall:
757	(a)1.  Through a continuous revision system, compile and
758	publish electronically the "Florida Administrative Code." on an
759	Internet website managed by the department. The Florida
760	Administrative Code shall contain all rules adopted by each
761	agency, citing the grant of specific rulemaking authority and
762	the specific law implemented pursuant to which each rule was
763	adopted, all history notes as authorized in s. 120.545(9), and
764	complete indexes to all rules contained in the code, and any
765	other material required or authorized by law or deemed useful by
766	the department. The electronic code shall display each rule
767	chapter currently in effect in browse mode and allow full text
768	search of the code and each rule chapter. Supplementation shall
769	be made as often as practicable, but at least monthly. The
770	department shall publish a printed version of the Florida
771	Administrative Code and may contract with a publishing firm for
772	such printed the publication, in a timely and useful form, of
773	the Florida Administrative Code; however, the department shall
774	retain responsibility for the code as provided in this section.
775	Supplementation of the printed code shall be made as often as
776	practicable, but at least monthly. The printed This publication
777	shall be the official compilation of the administrative rules of
778	this state. The Department of State shall retain the copyright
779	over the Florida Administrative Code.
780	2.  Rules general in form but applicable to only one school
781	district, community college district, or county, or a part
782	thereof, or state university rules relating to internal
783	personnel or business and finance shall not be published in the
784	Florida Administrative Code. Exclusion from publication in the
785	Florida Administrative Code shall not affect the validity or
786	effectiveness of such rules.
787	3.  At the beginning of the section of the code dealing
788	with an agency that files copies of its rules with the
789	department, the department shall publish the address and
790	telephone number of the executive offices of each agency, the
791	manner by which the agency indexes its rules, a listing of all
792	rules of that agency excluded from publication in the code, and
793	a statement as to where those rules may be inspected.
794	4.  Forms shall not be published in the Florida
795	Administrative Code; but any form which an agency uses in its
796	dealings with the public, along with any accompanying
797	instructions, shall be filed with the committee before it is
798	used. Any form or instruction which meets the definition of
799	"rule" provided in s. 120.52 shall be incorporated by reference
800	into the appropriate rule. The reference shall specifically
801	state that the form is being incorporated by reference and shall
802	include the number, title, and effective date of the form and an
803	explanation of how the form may be obtained. Each form created
804	by an agency which is incorporated by reference in a rule notice
805	of which is given under s. 120.54(3)(a) after December 31, 2007,
806	must clearly display the number, title, and effective date of
807	the form and the number of the rule in which the form is
808	incorporated.
809	5.  The department shall allow material incorporated by
810	reference to be filed in electronic form as prescribed by
811	department rule. When a rule is filed for adoption with
812	incorporated material in electronic form, the department's
813	publication of the Florida Administrative Code on its Internet
814	website must contain a hyperlink from the incorporating
815	reference in the rule directly to that material. The department
816	may not allow hyperlinks from rules in the Florida
817	Administrative Code to any material other than that filed with
818	and maintained by the department, but it may allow additional
819	hyperlinks to incorporated material maintained by the department
820	from the adopting agency's website or other sites.
821	Section 9.  Paragraph (a) of subsection (2) of section
822	120.56, Florida Statutes, and, effective January 1, 2008,
823	subsection (4) of that section, are amended to read:
824	120.56  Challenges to rules.--
825	(2)  CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--
826	(a)  Any substantially affected person may seek an
827	administrative determination of the invalidity of any proposed
828	rule by filing a petition seeking such a determination with the
829	division within 21 days after the date of publication of the
830	notice required by s. 120.54(3)(a), within 10 days after the
831	final public hearing is held on the proposed rule as provided by
832	s. 120.54(3)(e)2.(c), within 20 days after the preparation of a
833	statement of estimated regulatory costs required pursuant to s.
834	120.541, if applicable, has been provided to all persons who
835	submitted a lower cost regulatory alternative and made available
836	to the public, or within 20 days after the date of publication
837	of the notice required by s. 120.54(3)(d). The petition shall
838	state with particularity the objections to the proposed rule and
839	the reasons that the proposed rule is an invalid exercise of
840	delegated legislative authority. The petitioner has the burden
841	of going forward. The agency then has the burden to prove by a
842	preponderance of the evidence that the proposed rule is not an
843	invalid exercise of delegated legislative authority as to the
844	objections raised. Any person who is substantially affected by a
845	change in the proposed rule may seek a determination of the
846	validity of such change. Any person not substantially affected
847	by the proposed rule as initially noticed, but who is
848	substantially affected by the rule as a result of a change, may
849	challenge any provision of the rule and is not limited to
850	challenging the change to the proposed rule.
851	(4)  CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;
852	SPECIAL PROVISIONS.--
853	(a)  Any person substantially affected by an agency
854	statement may seek an administrative determination that the
855	statement violates s. 120.54(1)(a). The petition shall include
856	the text of the statement or a description of the statement and
857	shall state with particularity facts sufficient to show that the
858	statement constitutes a rule under s. 120.52 and that the agency
859	has not adopted the statement by the rulemaking procedure
860	provided by s. 120.54. Upon the filing of a petition for an
861	administrative determination under this paragraph, the agency
862	shall immediately discontinue all reliance upon the statement or
863	any substantially similar statement as a basis for agency action
864	until:
865	1.  The proceeding is dismissed for any reason other than
866	initiation of rulemaking under s. 120.54;
867	2.  The statement is adopted and becomes effective as a
868	rule;
869	3.  A final order is issued which contains a determination
870	that the petitioner failed to prove that the statement
871	constitutes a rule under s. 120.52; or
872	4.  A final order is issued which contains a determination
873	that rulemaking is not feasible under s. 120.54(1)(a)1.a. or b.
874	or not practicable under s. 120.54(1)(a)2.
875	(b)  If the administrative law judge determines that the
876	agency's inability to rely upon the statement during the
877	proceeding under paragraph (a) would constitute an immediate
878	danger to the public health, safety, or welfare, the
879	administrative law judge shall grant an agency petition to allow
880	application of the statement until the proceeding is concluded.
881	(c)(b)  The administrative law judge may extend the hearing
882	date beyond 30 days after assignment of the case for good cause.
883	If a hearing is held and the petitioner proves the allegations
884	of the petition, the agency shall have the burden of proving
885	that rulemaking is not feasible or not and practicable under s.
886	120.54(1)(a).
887	(d)(c)  The administrative law judge may determine whether
888	all or part of a statement violates s. 120.54(1)(a). The
889	decision of the administrative law judge shall constitute a
890	final order. The division shall transmit a copy of the final
891	order to the Department of State and the committee. The
892	Department of State shall publish notice of the final order in
893	the first available issue of the Florida Administrative Weekly.
894	(d)  When an administrative law judge enters a final order
895	that all or part of an agency statement violates s.
896	120.54(1)(a), the agency shall immediately discontinue all
897	reliance upon the statement or any substantially similar
898	statement as a basis for agency action.
899	(e)1.  If, prior to a final hearing to determine whether
900	all or part of any agency statement violates s. 120.54(1)(a), an
901	agency publishes, pursuant to s. 120.54(3)(a), proposed rules
902	that address the statement, then for purposes of this section, a
903	presumption is created that the agency is acting expeditiously
904	and in good faith to adopt rules that address the statement, and
905	the agency shall be permitted to rely upon the statement or a
906	substantially similar statement as a basis for agency action if
907	the statement meets the requirements of s. 120.57(1)(e).
908	2.  If, prior to the final hearing to determine whether all
909	or part of an agency statement violates s. 120.54(1)(a), an
910	agency publishes a notice of rule development which addresses
911	the statement pursuant to s. 120.54(2), or certifies that such a
912	notice has been transmitted to the Florida Administrative Weekly
913	for publication, then such publication shall constitute good
914	cause for the granting of a stay of the proceedings and a
915	continuance of the final hearing for 30 days. If the agency
916	publishes proposed rules within this 30-day period or any
917	extension of that period granted by an administrative law judge
918	upon showing of good cause, then the administrative law judge
919	shall place the case in abeyance pending the outcome of
920	rulemaking and any proceedings involving challenges to proposed
921	rules pursuant to subsection (2).
922	3.  If, following the commencement of the final hearing and
923	prior to entry of a final order that all or part of an agency
924	statement violates s. 120.54(1)(a), an agency publishes,
925	pursuant to s. 120.54(3)(a), proposed rules that address the
926	statement and proceeds expeditiously and in good faith to adopt
927	rules that address the statement, the agency shall be permitted
928	to rely upon the statement or a substantially similar statement
929	as a basis for agency action if the statement meets the
930	requirements of s. 120.57(1)(e).
931	4.  If an agency fails to adopt rules that address the
932	statement within 180 days after publishing proposed rules, for
933	purposes of this subsection, a presumption is created that the
934	agency is not acting expeditiously and in good faith to adopt
935	rules. If the agency's proposed rules are challenged pursuant to
936	subsection (2), the 180-day period for adoption of rules is
937	tolled until a final order is entered in that proceeding.
938	5.  If the proposed rules addressing the challenged
939	statement are determined to be an invalid exercise of delegated
940	legislative authority as defined in s. 120.52(8)(b)-(f), the
941	agency must immediately discontinue reliance on the statement
942	and any substantially similar statement until the rules
943	addressing the subject are properly adopted.
944	(e)(f)  All proceedings to determine a violation of s.
945	120.54(1)(a) shall be brought pursuant to this subsection. A
946	proceeding pursuant to this subsection may be consolidated with
947	a proceeding under subsection (3) or under any other section of
948	this chapter. Nothing in this paragraph shall be construed to
949	prevent a party whose substantial interests have been determined
950	by an agency action from bringing a proceeding pursuant to s.
951	120.57(1)(e).
952	Section 10.  Effective January 1, 2008, paragraph (e) of
953	subsection (1) of section 120.57, Florida Statutes, is amended
954	to read:
955	120.57  Additional procedures for particular cases.--
956	(1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
957	DISPUTED ISSUES OF MATERIAL FACT.--
958	(e)1.  Any Agency action that determines the substantial
959	interests of a party may not be and that is based on an agency
960	statement that violates s. 120.54(1)(a). An agency or an
961	administrative law judge may not enforce any agency policy that
962	constitutes an unadopted rule when the agency fails to prove
963	that rulemaking is not feasible or practicable. This
964	subparagraph does not preclude application of adopted rules and
965	applicable provisions of law to the facts unadopted rule is
966	subject to de novo review by an administrative law judge.
967	2.  The agency action shall not be presumed valid or
968	invalid. The agency must demonstrate that the unadopted rule:
969	a.  Is within the powers, functions, and duties delegated
970	by the Legislature or, if the agency is operating pursuant to
971	authority derived from the State Constitution, is within that
972	authority;
973	b.  Does not enlarge, modify, or contravene the specific
974	provisions of law implemented;
975	c.  Is not vague, establishes adequate standards for agency
976	decisions, or does not vest unbridled discretion in the agency;
977	d.  Is not arbitrary or capricious. A rule is arbitrary if
978	it is not supported by logic or the necessary facts; a rule is
979	capricious if it is adopted without thought or reason or is
980	irrational;
981	e.  Is not being applied to the substantially affected
982	party without due notice; and
983	f.  Does not impose excessive regulatory costs on the
984	regulated person, county, or city.
985	2.3.  The recommended and final orders in any proceeding
986	shall be governed by the provisions of paragraphs (k) and (l),
987	except that the administrative law judge's determination
988	regarding the unadopted rule shall not be rejected by the agency
989	unless the agency first determines from a review of the complete
990	record, and states with particularity in the order, that such
991	determination is clearly erroneous or does not comply with
992	essential requirements of law. In any proceeding for review
993	under s. 120.68, if the court finds that the agency's rejection
994	of the determination regarding the unadopted rule does not
995	comport with the provisions of this subparagraph, the agency
996	action shall be set aside and the court shall award to the
997	prevailing party the reasonable costs and a reasonable
998	attorney's fee for the initial proceeding and the proceeding for
999	review.
1000	Section 11.  Effective January 1, 2008, subsections (2),
1001	(3), and (4) of section 120.595, Florida Statutes, are amended
1002	to read:
1003	120.595  Attorney's fees.--
1004	(2)  CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO
1005	SECTION 120.56(2).--If the court or administrative law judge
1006	declares a proposed rule or portion of a proposed rule invalid
1007	pursuant to s. 120.56(2), a judgment or order shall be rendered
1008	against the agency for reasonable costs and reasonable
1009	attorney's fees, unless the agency demonstrates that its actions
1010	were substantially justified or special circumstances exist
1011	which would make the award unjust. An agency's actions are
1012	"substantially justified" if there was a reasonable basis in law
1013	and fact at the time the actions were taken by the agency. If
1014	the agency prevails in the proceedings, the court or
1015	administrative law judge shall award reasonable costs and
1016	reasonable attorney's fees against a party if the court or
1017	administrative law judge determines that a party participated in
1018	the proceedings for an improper purpose as defined by paragraph
1019	(1)(e). No award of attorney's fees as provided by this
1020	subsection shall exceed $50,000 $15,000.
1021	(3)  CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO
1022	SECTION 120.56(3) AND (5).--If the court or administrative law
1023	judge declares a rule or portion of a rule invalid pursuant to
1024	s. 120.56(3) or (5), a judgment or order shall be rendered
1025	against the agency for reasonable costs and reasonable
1026	attorney's fees, unless the agency demonstrates that its actions
1027	were substantially justified or special circumstances exist
1028	which would make the award unjust. An agency's actions are
1029	"substantially justified" if there was a reasonable basis in law
1030	and fact at the time the actions were taken by the agency. If
1031	the agency prevails in the proceedings, the court or
1032	administrative law judge shall award reasonable costs and
1033	reasonable attorney's fees against a party if the court or
1034	administrative law judge determines that a party participated in
1035	the proceedings for an improper purpose as defined by paragraph
1036	(1)(e). No award of attorney's fees as provided by this
1037	subsection shall exceed $50,000 $15,000.
1038	(4)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
1039	120.56(4).--
1040	(a)  Upon entry of a final order that all or part of an
1041	agency statement violates s. 120.54(1)(a), the administrative
1042	law judge shall award reasonable costs and reasonable attorney's
1043	fees to the petitioner, unless the agency demonstrates that the
1044	statement is required by the Federal Government to implement or
1045	retain a delegated or approved program or to meet a condition to
1046	receipt of federal funds.
1047	(b) If prior to the final hearing the agency initiates
1048	rulemaking under s 120.54 and requests a stay of the proceedings
1049	pending rulemaking, the administrative law judge shall award
1050	reasonable costs and reasonable attorney's fees accrued by the
1051	petitioner prior to the date the agency filed its request for a
1052	stay pending rulemaking, provided the agency adopts the
1053	statement as a rule.  A request for a stay shall be granted when
1054	the petitioner and the agency agree to the stay. If the
1055	petitioner objects to the stay, the stay may be denied if the
1056	petitioner establishes that good cause exists to deny the stay.
1057	A stay granted under this paragraph shall remain in effect until
1058	either the statement has been adopted as a rule and has become
1059	effective or the proposed rule has been withdrawn.  A request
1060	for attorney's fees and costs under this paragraph shall be
1061	granted only upon a finding that the agency knew or should have
1062	known at the time the petition was filed that the agency
1063	statement was an unadopted rule, and no award of attorney's fees
1064	as provided by this paragraph shall exceed $50,000.
1065	(c)(b)  Notwithstanding the provisions of chapter 284, an
1066	award shall be paid from the budget entity of the secretary,
1067	executive director, or equivalent administrative officer of the
1068	agency, and the agency shall not be entitled to payment of an
1069	award or reimbursement for payment of an award under any
1070	provision of law.
1071	(d)  If the agency prevails in the proceedings, the court
1072	or administrative law judge shall award reasonable costs and
1073	attorney's fees against a party if the court or administrative
1074	law judge determines that the party participated in the
1075	proceedings for an improper purpose as defined in paragraph
1076	(1)(e).
1077	Section 12.  Subsection (1) and paragraph (c) of subsection
1078	(2) of section 120.569, Florida Statutes, are amended to read:
1079	120.569  Decisions which affect substantial interests.--
1080	(1)  The provisions of this section apply in all
1081	proceedings in which the substantial interests of a party are
1082	determined by an agency, unless the parties are proceeding under
1083	s. 120.573 or s. 120.574. Unless waived by all parties, s.
1084	120.57(1) applies whenever the proceeding involves a disputed
1085	issue of material fact. Unless otherwise agreed, s. 120.57(2)
1086	applies in all other cases. If a disputed issue of material fact
1087	arises during a proceeding under s. 120.57(2), then, unless
1088	waived by all parties, the proceeding under s. 120.57(2) shall
1089	be terminated and a proceeding under s. 120.57(1) shall be
1090	conducted. Parties shall be notified of any order, including a
1091	final order. Unless waived, a copy of the order shall be
1092	delivered or mailed to each party or the party's attorney of
1093	record at the address of record. Each notice shall inform the
1094	recipient of any administrative hearing or judicial review that
1095	is available under this section, s. 120.57, or s. 120.68; shall
1096	indicate the procedure which must be followed to obtain the
1097	hearing or judicial review; and shall state the time limits
1098	which apply.
1099	(2)
1100	(c)  Unless otherwise provided by law, a petition or
1101	request for hearing shall include those items required by the
1102	uniform rules adopted pursuant to s. 120.54(5)(b) s.
1103	120.54(5)(b)4. Upon the receipt of a petition or request for
1104	hearing, the agency shall carefully review the petition to
1105	determine if it contains all of the required information. A
1106	petition shall be dismissed if it is not in substantial
1107	compliance with these requirements or it has been untimely
1108	filed. Dismissal of a petition shall, at least once, be without
1109	prejudice to petitioner's filing a timely amended petition
1110	curing the defect, unless it conclusively appears from the face
1111	of the petition that the defect cannot be cured. The agency
1112	shall promptly give written notice to all parties of the action
1113	taken on the petition, shall state with particularity its
1114	reasons if the petition is not granted, and shall state the
1115	deadline for filing an amended petition if applicable. This
1116	paragraph does not eliminate the availability of equitable
1117	tolling as a defense to the untimely filing of a petition.
1118	Section 13.  Subsection (2) of section 120.74, Florida
1119	Statutes, is amended to read:
1120	120.74  Agency review, revision, and report.--
1121	(2)  Beginning October 1, 1997, and by October 1 of every
1122	other year thereafter, the head of each agency shall file a
1123	report with the President of the Senate, the Speaker of the
1124	House of Representatives, and the committee, with a copy to each
1125	appropriate standing committee of the Legislature, which
1126	certifies that the agency has complied with the requirements of
1127	this section subsection. The report must specify any changes
1128	made to its rules as a result of the review and, when
1129	appropriate, recommend statutory changes that will promote
1130	efficiency, reduce paperwork, or decrease costs to government
1131	and the private sector. The report must identify the types of
1132	cases or disputes in which the agency is involved which should
1133	be conducted under the summary hearing process described in s.
1134	120.574.
1135	Section 14.  Subsection (11) of section 120.80, Florida
1136	Statutes, is amended to read:
1137	120.80  Exceptions and special requirements; agencies.--
1138	(11)  NATIONAL GUARD.--Notwithstanding s. 120.52(16)(15),
1139	the enlistment, organization, administration, equipment,
1140	maintenance, training, and discipline of the militia, National
1141	Guard, organized militia, and unorganized militia, as provided
1142	by s. 2, Art. X of the State Constitution, are not rules as
1143	defined by this chapter.
1144	Section 15.  Paragraph (c) of subsection (1) and paragraph
1145	(a) of subsection (3) of section 120.81, Florida Statutes, are
1146	amended to read:
1147	120.81  Exceptions and special requirements; general
1148	areas.--
1149	(1)  EDUCATIONAL UNITS.--
1150	(c)  Notwithstanding s. 120.52(16)(15), any tests, test
1151	scoring criteria, or testing procedures relating to student
1152	assessment which are developed or administered by the Department
1153	of Education pursuant to s. 1003.43, s. 1003.438, s. 1008.22, or
1154	s. 1008.25, or any other statewide educational tests required by
1155	law, are not rules.
1156	(3)  PRISONERS AND PAROLEES.--
1157	(a)  Notwithstanding s. 120.52(13)(12), prisoners, as
1158	defined by s. 944.02, shall not be considered parties in any
1159	proceedings other than those under s. 120.54(3)(c) or (7), and
1160	may not seek judicial review under s. 120.68 of any other agency
1161	action. Prisoners are not eligible to seek an administrative
1162	determination of an agency statement under s. 120.56(4).
1163	Parolees shall not be considered parties for purposes of agency
1164	action or judicial review when the proceedings relate to the
1165	rescission or revocation of parole.
1166	Section 16.  Paragraph (f) of subsection (2) of section
1167	409.175, Florida Statutes, is amended to read:
1168	409.175  Licensure of family foster homes, residential
1169	child-caring agencies, and child-placing agencies; public
1170	records exemption.--
1171	(2)  As used in this section, the term:
1172	(f)  "License" means "license" as defined in s.
1173	120.52(10)(9). A license under this section is issued to a
1174	family foster home or other facility and is not a professional
1175	license of any individual. Receipt of a license under this
1176	section shall not create a property right in the recipient. A
1177	license under this act is a public trust and a privilege, and is
1178	not an entitlement. This privilege must guide the finder of fact
1179	or trier of law at any administrative proceeding or court action
1180	initiated by the department.
1181	Section 17.  Paragraph (a) of subsection (1) of section
1182	420.9072, Florida Statutes, is amended to read:
1183	420.9072  State Housing Initiatives Partnership
1184	Program.--The State Housing Initiatives Partnership Program is
1185	created for the purpose of providing funds to counties and
1186	eligible municipalities as an incentive for the creation of
1187	local housing partnerships, to expand production of and preserve
1188	affordable housing, to further the housing element of the local
1189	government comprehensive plan specific to affordable housing,
1190	and to increase housing-related employment.
1191	(1)(a)  In addition to the legislative findings set forth
1192	in s. 420.6015, the Legislature finds that affordable housing is
1193	most effectively provided by combining available public and
1194	private resources to conserve and improve existing housing and
1195	provide new housing for very-low-income households, low-income
1196	households, and moderate-income households. The Legislature
1197	intends to encourage partnerships in order to secure the
1198	benefits of cooperation by the public and private sectors and to
1199	reduce the cost of housing for the target group by effectively
1200	combining all available resources and cost-saving measures. The
1201	Legislature further intends that local governments achieve this
1202	combination of resources by encouraging active partnerships
1203	between government, lenders, builders and developers, real
1204	estate professionals, advocates for low-income persons, and
1205	community groups to produce affordable housing and provide
1206	related services. Extending the partnership concept to encompass
1207	cooperative efforts among small counties as defined in s.
1208	120.52(19)(17), and among counties and municipalities is
1209	specifically encouraged. Local governments are also intended to
1210	establish an affordable housing advisory committee to recommend
1211	monetary and nonmonetary incentives for affordable housing as
1212	provided in s. 420.9076.
1213	Section 18.  Subsection (7) of section 420.9075, Florida
1214	Statutes, is amended to read:
1215	420.9075  Local housing assistance plans; partnerships.--
1216	(7)  The moneys deposited in the local housing assistance
1217	trust fund shall be used to administer and implement the local
1218	housing assistance plan. The cost of administering the plan may
1219	not exceed 5 percent of the local housing distribution moneys
1220	and program income deposited into the trust fund. A county or an
1221	eligible municipality may not exceed the 5-percent limitation on
1222	administrative costs, unless its governing body finds, by
1223	resolution, that 5 percent of the local housing distribution
1224	plus 5 percent of program income is insufficient to adequately
1225	pay the necessary costs of administering the local housing
1226	assistance plan. The cost of administering the program may not
1227	exceed 10 percent of the local housing distribution plus 5
1228	percent of program income deposited into the trust fund, except
1229	that small counties, as defined in s. 120.52(19)(17), and
1230	eligible municipalities receiving a local housing distribution
1231	of up to $350,000 may use up to 10 percent of program income for
1232	administrative costs.
1233	Section 19.  For fiscal year 2007-2008, the nonrecurring
1234	sum of $345,000 is appropriated from the Records Management
1235	Trust Fund to the Department of State for the purposes of
1236	carrying out the provisions of this act.
1237	Section 20.  Except as otherwise expressly provided in this
1238	act, this act shall take effect July 1, 2007.
1239
1240
1241	======= T I T L E  A M E N D M E N T ==========
1242	Remove the entire title and insert:
1243
1244	A bill to be entitled
1245	An act relating to administrative procedures; providing a
1246	short title; amending s. 120.52, F.S.; redefining the term
1247	"invalid exercise of delegated legislative authority";
1248	defining the terms "law implemented," "rulemaking
1249	authority," and "unadopted rule"; amending s. 120.536,
1250	F.S.; revising guidelines for the construction of
1251	statutory language granting rulemaking authority; amending
1252	s. 120.54, F.S.; prescribing limits and guidelines with
1253	respect to incorporation of material by reference;
1254	prescribing requirements for materials being incorporated
1255	by reference; providing for rules; providing that
1256	specified rulemaking responsibilities of an agency head
1257	may not be delegated or transferred; revising information
1258	to be included in notices of proposed actions; providing
1259	additional procedures for rule adoption hearings; revising
1260	requirements for filing rules; revising provisions with
1261	respect to petitions to initiate rulemaking;  amending s.
1262	120.545, F.S.; revising duties and procedures of the
1263	Administrative Procedures Committee and agencies with
1264	respect to review of agency rules; authorizing the
1265	Administrative Procedures Committee to request from
1266	agencies information to examine unadopted agency
1267	statements; deleting procedures for agency election to
1268	modify, withdraw, amend, or repeal a proposed rule;
1269	providing for a legislative committee to request agency
1270	information for examination of an unadopted rule;
1271	prescribing responses that may be made by an agency to a
1272	committee objection to a rule or statement of estimated
1273	regulatory costs; prescribing presumptions resulting from
1274	an agency's refusal to respond to committee objections;
1275	amending s. 120.55, F.S.; conforming a cross-reference;
1276	requiring the Department of State to prescribe by rule
1277	content requirements for rules, notices, and other
1278	materials submitted for filing; expanding the required
1279	user capabilities of the Florida Administrative Weekly
1280	Internet website; requiring electronic publication of the
1281	Florida Administrative Code; prescribing requirements with
1282	respect to content of such electronic publication;
1283	providing for filing information incorporated by reference
1284	in electronic form; amending s. 120.56, F.S.; revising
1285	procedures for administrative determinations of invalidity
1286	of proposed rules; requiring an agency to discontinue
1287	reliance on a statement under certain circumstances;
1288	allowing continued reliance on a statement under certain
1289	circumstances; deleting certain provisions relating to
1290	actions before a final hearing is held; amending s.
1291	120.57, F.S.; revising procedures applicable to hearings
1292	involving disputed issues of material fact; prohibiting
1293	enforcement of unadopted agency rules under certain
1294	circumstances; amending s. 120.595, F.S.; revising
1295	guidelines for award of attorney's fees and reasonable
1296	costs in certain challenges to agency actions;  amending
1297	s. 120.569, F.S.; requiring that certain administrative
1298	proceedings be terminated and subsequently reinstated
1299	under different provisions of state law if a disputed
1300	issue of material fact arises during such a proceeding;
1301	providing for the waiver of such termination; revising a
1302	cross-reference; amending s. 120.74, F.S.; revising
1303	reporting requirements for agency heads; amending ss.
1304	120.80, 120.81, 409.175, 420.9072, and 420.9075, F.S.;
1305	correcting cross-references; providing an appropriation;
1306	providing effective dates.

CODING: Words stricken are deletions; words underlined are additions.