HB 7127

1	A bill to be entitled
2	An act relating to administrative procedures; providing a
3	short title; amending s. 120.52, F.S.; redefining the term
4	"invalid exercise of delegated legislative authority" to
5	remove a limitation on the construction of statutory
6	language granting rulemaking authority; defining the terms
7	"law implemented," "rulemaking authority," and "unadopted
8	rule"; amending s. 120.53, F.S.; authorizing agencies to
9	transmit agency orders electronically to the Division of
10	Administrative Hearings; amending s. 120.536, F.S.;
11	revising guidelines for the construction of statutory
12	language granting rulemaking authority; amending s.
13	120.54, F.S.; prescribing limits and guidelines with
14	respect to the incorporation of material by reference;
15	prescribing requirements for material being incorporated
16	by reference; prohibiting an agency head from delegating
17	or transferring certain specified rulemaking
18	responsibilities; revising the information required in
19	notices of proposed actions; providing additional
20	procedures for rule-adoption hearings; revising
21	requirements for filing rules; requiring that material
22	incorporated by reference be published by the agency when
23	adopting emergency rules; revising provisions with respect
24	to petitions to initiate rulemaking; amending s. 120.545,
25	F.S.; revising duties and procedures of the Administrative
26	Procedures Committee and agencies with respect to review
27	of agency rules; deleting procedures for agency election
28	to modify, withdraw, amend, or repeal a proposed rule;
29	providing for the effect of the failure of an agency to
30	respond to a committee objection to a statement of
31	estimated regulatory costs within the time prescribed;
32	deleting a requirement that the Department of State
33	publish final legislative action; amending s. 120.55,
34	F.S.; requiring the department to prescribe by rule the
35	content requirements for rules, notices, and other
36	materials; conforming a cross-reference; requiring
37	electronic publication of the Florida Administrative Code;
38	prescribing requirements with respect to the content of
39	such electronic publication; providing for filing
40	information incorporated by reference in electronic form;
41	providing requirements for the Florida Administrative
42	Weekly Internet website; amending s. 120.56, F.S.,
43	relating to challenges to rules; conforming a cross-
44	reference; revising procedures for administrative
45	determinations of the invalidity of rules; requiring an
46	agency to discontinue reliance on a statement under
47	certain circumstances; providing an exception; deleting
48	certain provisions relating to actions before a final
49	hearing is held; amending s. 120.57, F.S.; revising
50	procedures applicable to hearings involving disputed
51	issues of material fact; prohibiting enforcement of
52	unadopted agency rules under certain circumstances;
53	amending s. 120.595, F.S.; increasing the limitation on
54	attorney's fees in challenges to proposed agency rules or
55	existing agency rules; providing for an award of
56	reasonable costs and attorney's fees accrued by a
57	petitioner under certain circumstances; providing for an
58	award of fees and costs if the agency prevails and a party
59	participated for an improper purpose; amending s. 120.569,
60	F.S.; requiring that certain administrative proceedings be
61	terminated and subsequently reinstated under different
62	provisions of law if a disputed issue of material fact
63	arises during the proceeding; conforming a cross-
64	reference; amending s. 120.74, F.S.; revising a reporting
65	requirement for agency heads; amending ss. 120.80, 120.81,
66	409.175, 420.9072, and 420.9075, F.S.; conforming cross-
67	references; providing appropriations; providing for a
68	temporary increase in the space rate charge for
69	publication in the Florida Administrative Weekly;
70	providing for a temporary revision of provisions imposing
71	a cap on the unencumbered balance in the Records
72	Management Trust Fund; providing effective dates.
73
74	Be It Enacted by the Legislature of the State of Florida:
75
76	Section 1.  This act may be cited as the "Open Government
77	Act."
78	Section 2.  Subsection (8) of section 120.52, Florida
79	Statutes, is amended, present subsections (9) through (15) of
80	that section are renumbered as subsections (10) through (16),
81	respectively, present subsections (16), (17), (18), and (19) of
82	that section are redesignated as subsections (18), (19), (21),
83	and (22), respectively, and new subsections (9), (17), and (20)
84	are added to that section, to read:
85	120.52  Definitions.--As used in this act:
86	(8)  "Invalid exercise of delegated legislative authority"
87	means action that which goes beyond the powers, functions, and
88	duties delegated by the Legislature. A proposed or existing rule
89	is an invalid exercise of delegated legislative authority if any
90	one of the following applies:
91	(a)  The agency has materially failed to follow the
92	applicable rulemaking procedures or requirements set forth in
93	this chapter;
94	(b)  The agency has exceeded its grant of rulemaking
95	authority, citation to which is required by s. 120.54(3)(a)1.;
96	(c)  The rule enlarges, modifies, or contravenes the
97	specific provisions of law implemented, citation to which is
98	required by s. 120.54(3)(a)1.;
99	(d)  The rule is vague, fails to establish adequate
100	standards for agency decisions, or vests unbridled discretion in
101	the agency;
102	(e)  The rule is arbitrary or capricious. A rule is
103	arbitrary if it is not supported by logic or the necessary
104	facts; a rule is capricious if it is adopted without thought or
105	reason or is irrational; or
106	(f)  The rule imposes regulatory costs on the regulated
107	person, county, or city which could be reduced by the adoption
108	of less costly alternatives that substantially accomplish the
109	statutory objectives.
110
111	A grant of rulemaking authority is necessary but not sufficient
112	to allow an agency to adopt a rule; a specific law to be
113	implemented is also required. An agency may adopt only rules
114	that implement or interpret the specific powers and duties
115	granted by the enabling statute. No agency shall have authority
116	to adopt a rule only because it is reasonably related to the
117	purpose of the enabling legislation and is not arbitrary and
118	capricious or is within the agency's class of powers and duties,
119	nor shall an agency have the authority to implement statutory
120	provisions setting forth general legislative intent or policy.
121	Statutory language granting rulemaking authority or generally
122	describing the powers and functions of an agency shall be
123	construed to extend no further than implementing or interpreting
124	the specific powers and duties conferred by the enabling statute
125	by the same statute.
126	(9)  "Law implemented" means the language of the enabling
127	statute being carried out or interpreted by an agency through
128	rulemaking.
129	(17)  "Rulemaking authority" means statutory language that
130	explicitly authorizes or requires an agency to adopt, develop,
131	establish, or otherwise create any statement coming within the
132	definition of the term "rule."
133	(20)  "Unadopted rule" means an agency statement that meets
134	the definition of the term "rule," but that has not been adopted
135	pursuant to the requirements of s. 120.54.
136	Section 3.  Paragraph (a) of subsection (2) of section
137	120.53, Florida Statutes, is amended to read:
138	120.53  Maintenance of orders; indexing; listing;
139	organizational information.--
140	(2)(a)  An agency may comply with subparagraphs (1)(a)1.
141	and 2. by designating an official reporter to publish and index
142	by subject matter each agency order that must be indexed and
143	made available to the public or by electronically transmitting
144	to the division a copy of such orders for posting on the
145	division's website. An agency is in compliance with subparagraph
146	(1)(a)3. if it publishes in its designated reporter a list of
147	each agency final order that must be listed and preserves each
148	listed order and makes it available for public inspection and
149	copying.
150	Section 4.  Subsection (1) of section 120.536, Florida
151	Statutes, is amended to read:
152	120.536  Rulemaking authority; repeal; challenge.--
153	(1)  A grant of rulemaking authority is necessary but not
154	sufficient to allow an agency to adopt a rule; a specific law to
155	be implemented is also required. An agency may adopt only rules
156	that implement or interpret the specific powers and duties
157	granted by the enabling statute. No agency shall have authority
158	to adopt a rule only because it is reasonably related to the
159	purpose of the enabling legislation and is not arbitrary and
160	capricious or is within the agency's class of powers and duties,
161	nor shall an agency have the authority to implement statutory
162	provisions setting forth general legislative intent or policy.
163	Statutory language granting rulemaking authority or generally
164	describing the powers and functions of an agency shall be
165	construed to extend no further than implementing or interpreting
166	the specific powers and duties conferred by the enabling statute
167	by the same statute.
168	Section 5.  Paragraph (i) of subsection (1), paragraphs
169	(a), (c), and (e) of subsection (3), paragraph (a) of subsection
170	(4), and subsection (7) of section 120.54, Florida Statutes, are
171	amended, and paragraph (k) is added to subsection (1) of that
172	section, to read:
173	120.54  Rulemaking.--
174	(1)  GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN
175	EMERGENCY RULES.--
176	(i)1.  A rule may incorporate material by reference but
177	only as the material exists on the date the rule is adopted. For
178	purposes of the rule, changes in the material are not effective
179	unless the rule is amended to incorporate the changes.
180	2.  An agency rule that incorporates by specific reference
181	another rule of that agency automatically incorporates
182	subsequent amendments to the referenced rule unless a contrary
183	intent is clearly indicated in the referencing rule. A notice of
184	amendments to a rule that has been incorporated by specific
185	reference in other rules of that agency must explain the effect
186	of those amendments on the referencing rules.
187	3.  In rules adopted after December 31, 2010, material may
188	not be incorporated by reference unless:
189	a.  The material has been submitted in the prescribed
190	electronic format to the Department of State and the full text
191	of the material can be made available for free public access
192	through an electronic hyperlink from the rule making the
193	reference in the Florida Administrative Code; or
194	b.  The agency has determined that posting the material on
195	the Internet for purposes of public examination and inspection
196	would constitute a violation of federal copyright law, in which
197	case a statement to that effect, along with the address of
198	locations at the Department of State and the agency at which the
199	material is available for public inspection and examination,
200	must be included in the notice required by subparagraph (3)(a)1.
201	4.  A rule may not be amended by reference only. Amendments
202	must set out the amended rule in full in the same manner as
203	required by the State Constitution for laws. The Department of
204	State may prescribe by rule requirements for incorporating
205	materials by reference pursuant to this paragraph.
206	5.2.  Notwithstanding any contrary provision in this
207	section, when an adopted rule of the Department of Environmental
208	Protection or a water management district is incorporated by
209	reference in the other agency's rule to implement a provision of
210	part IV of chapter 373, subsequent amendments to the rule are
211	not effective as to the incorporating rule unless the agency
212	incorporating by reference notifies the committee and the
213	Department of State of its intent to adopt the subsequent
214	amendment, publishes notice of such intent in the Florida
215	Administrative Weekly, and files with the Department of State a
216	copy of the amended rule incorporated by reference. Changes in
217	the rule incorporated by reference are effective as to the other
218	agency 20 days after the date of the published notice and filing
219	with the Department of State. The Department of State shall
220	amend the history note of the incorporating rule to show the
221	effective date of such change. Any substantially affected person
222	may, within 14 days after the date of publication of the notice
223	of intent in the Florida Administrative Weekly, file an
224	objection to rulemaking with the agency. The objection shall
225	specify the portions of the rule incorporated by reference to
226	which the person objects and the reasons for the objection. The
227	agency shall not have the authority under this subparagraph to
228	adopt those portions of the rule specified in such objection.
229	The agency shall publish notice of the objection and of its
230	action in response in the next available issue of the Florida
231	Administrative Weekly.
232	6.  The Department of State may adopt by rule requirements
233	for incorporating materials pursuant to this paragraph.
234	(k)  An agency head may delegate the authority to initiate
235	rule development under subsection (2); however, rulemaking
236	responsibilities of an agency head under subparagraph (3)(a)1.,
237	subparagraph (3)(e)1., or subparagraph (3)(e)6. may not be
238	delegated or transferred.
239	(3)  ADOPTION PROCEDURES.--
240	(a)  Notices.--
241	1.  Prior to the adoption, amendment, or repeal of any rule
242	other than an emergency rule, an agency, upon approval of the
243	agency head, shall give notice of its intended action, setting
244	forth a short, plain explanation of the purpose and effect of
245	the proposed action; the full text of the proposed rule or
246	amendment and a summary thereof; a reference to the grant of
247	specific rulemaking authority pursuant to which the rule is
248	adopted; and a reference to the section or subsection of the
249	Florida Statutes or the Laws of Florida being implemented or,
250	interpreted, or made specific. The notice must shall include a
251	summary of the agency's statement of the estimated regulatory
252	costs, if one has been prepared, based on the factors set forth
253	in s. 120.541(2), and a statement that any person who wishes to
254	provide the agency with information regarding the statement of
255	estimated regulatory costs, or to provide a proposal for a lower
256	cost regulatory alternative as provided by s. 120.541(1), must
257	do so in writing within 21 days after publication of the notice.
258	The notice must state the procedure for requesting a public
259	hearing on the proposed rule. Except when the intended action is
260	the repeal of a rule, the notice must shall include a reference
261	both to the date on which and to the place where the notice of
262	rule development that is required by subsection (2) appeared.
263	2.  The notice shall be published in the Florida
264	Administrative Weekly not less than 28 days prior to the
265	intended action. The proposed rule shall be available for
266	inspection and copying by the public at the time of the
267	publication of notice.
268	3.  The notice shall be mailed to all persons named in the
269	proposed rule and to all persons who, at least 14 days prior to
270	such mailing, have made requests of the agency for advance
271	notice of its proceedings. The agency shall also give such
272	notice as is prescribed by rule to those particular classes of
273	persons to whom the intended action is directed.
274	4.  The adopting agency shall file with the committee, at
275	least 21 days prior to the proposed adoption date, a copy of
276	each rule it proposes to adopt; a copy of any material
277	incorporated by reference in the rule; a detailed written
278	statement of the facts and circumstances justifying the proposed
279	rule; a copy of any statement of estimated regulatory costs that
280	has been prepared pursuant to s. 120.541; a statement of the
281	extent to which the proposed rule relates to federal standards
282	or rules on the same subject; and the notice required by
283	subparagraph 1.
284	(c)  Hearings.--
285	1.  If the intended action concerns any rule other than one
286	relating exclusively to procedure or practice, the agency shall,
287	on the request of any affected person received within 21 days
288	after the date of publication of the notice of intended agency
289	action, give affected persons an opportunity to present evidence
290	and argument on all issues under consideration. The agency may
291	schedule a public hearing on the rule and, if requested by any
292	affected person, shall schedule a public hearing on the rule. If
293	the agency head is a board or other collegial body created under
294	s. 20.165(4) or s. 20.43(3)(g), and one or more requested public
295	hearings are scheduled, the board or other collegial body shall
296	conduct at least one of the public hearings itself and may not
297	delegate this responsibility without the consent of those
298	persons requesting the public hearing. Any material pertinent to
299	the issues under consideration submitted to the agency within 21
300	days after the date of publication of the notice or submitted at
301	a public hearing shall be considered by the agency and made a
302	part of the record of the rulemaking proceeding.
303	2.  Rulemaking proceedings shall be governed solely by the
304	provisions of this section unless a person timely asserts that
305	the person's substantial interests will be affected in the
306	proceeding and affirmatively demonstrates to the agency that the
307	proceeding does not provide adequate opportunity to protect
308	those interests. If the agency determines that the rulemaking
309	proceeding is not adequate to protect the person's interests, it
310	shall suspend the rulemaking proceeding and convene a separate
311	proceeding under the provisions of ss. 120.569 and 120.57.
312	Similarly situated persons may be requested to join and
313	participate in the separate proceeding. Upon conclusion of the
314	separate proceeding, the rulemaking proceeding shall be resumed.
315	(e)  Filing for final adoption; effective date.--
316	1.  If the adopting agency is required to publish its rules
317	in the Florida Administrative Code, the agency, upon approval of
318	the agency head, it shall file with the Department of State
319	three certified copies of the rule it proposes to adopt; one
320	copy of any material incorporated by reference in the rule,
321	certified by the agency;, a summary of the rule;, a summary of
322	any hearings held on the rule;, and a detailed written statement
323	of the facts and circumstances justifying the rule. Agencies not
324	required to publish their rules in the Florida Administrative
325	Code shall file one certified copy of the proposed rule, and the
326	other material required by this subparagraph, in the office of
327	the agency head, and such rules shall be open to the public.
328	2.  A rule may not be filed for adoption less than 28 days
329	or more than 90 days after the notice required by paragraph (a),
330	until 21 days after the notice of change required by paragraph
331	(d), until 14 days after the final public hearing, until 21 days
332	after preparation of a statement of estimated regulatory costs
333	required under s. 120.541 has been provided to all persons who
334	submitted a lower cost regulatory alternative and made available
335	to the public, or until the administrative law judge has
336	rendered a decision under s. 120.56(2), whichever applies. When
337	a required notice of change is published prior to the expiration
338	of the time to file the rule for adoption, the period during
339	which a rule must be filed for adoption is extended to 45 days
340	after the date of publication. If notice of a public hearing is
341	published prior to the expiration of the time to file the rule
342	for adoption, the period during which a rule must be filed for
343	adoption is extended to 45 days after adjournment of the final
344	hearing on the rule, 21 days after receipt of all material
345	authorized to be submitted at the hearing, or 21 days after
346	receipt of the transcript, if one is made, whichever is latest.
347	The term "public hearing" includes any public meeting held by
348	any agency at which the rule is considered. If a petition for an
349	administrative determination under s. 120.56(2) is filed, the
350	period during which a rule must be filed for adoption is
351	extended to 60 days after the administrative law judge files the
352	final order with the clerk or until 60 days after subsequent
353	judicial review is complete.
354	3.  At the time a rule is filed, the agency shall certify
355	that the time limitations prescribed by this paragraph have been
356	complied with, that all statutory rulemaking requirements have
357	been met, and that there is no administrative determination
358	pending on the rule.
359	4.  At the time a rule is filed, the committee shall
360	certify whether the agency has responded in writing to all
361	material and timely written comments or written inquiries made
362	on behalf of the committee. The department shall reject any rule
363	that is not filed within the prescribed time limits; that does
364	not comply with satisfy all statutory rulemaking requirements
365	and rules of the department; upon which an agency has not
366	responded in writing to all material and timely written
367	inquiries or written comments; upon which an administrative
368	determination is pending; or which does not include a statement
369	of estimated regulatory costs, if required.
370	5.  If a rule has not been adopted within the time limits
371	imposed by this paragraph or has not been adopted in compliance
372	with all statutory rulemaking requirements, the agency proposing
373	the rule shall withdraw the rule and give notice of its action
374	in the next available issue of the Florida Administrative
375	Weekly.
376	6.  The proposed rule shall be adopted on being filed with
377	the Department of State and become effective 20 days after being
378	filed, on a later date specified in the rule, or on a date
379	required by statute. Rules not required to be filed with the
380	Department of State shall become effective when adopted by the
381	agency head or on a later date specified by rule or statute. If
382	the committee notifies an agency that an objection to a rule is
383	being considered, the agency may postpone the adoption of the
384	rule to accommodate review of the rule by the committee. When an
385	agency postpones adoption of a rule to accommodate review by the
386	committee, the 90-day period for filing the rule is tolled until
387	the committee notifies the agency that it has completed its
388	review of the rule.
389
390	For the purposes of this paragraph, the term "administrative
391	determination" does not include subsequent judicial review.
392	(4)  EMERGENCY RULES.--
393	(a)  If an agency finds that an immediate danger to the
394	public health, safety, or welfare requires emergency action, the
395	agency may adopt any rule necessitated by the immediate danger.
396	The agency may adopt a rule by any procedure which is fair under
397	the circumstances if:
398	1.  The procedure provides at least the procedural
399	protection given by other statutes, the State Constitution, or
400	the United States Constitution.
401	2.  The agency takes only that action necessary to protect
402	the public interest under the emergency procedure.
403	3.  The agency publishes in writing at the time of, or
404	prior to, its action the specific facts and reasons for finding
405	an immediate danger to the public health, safety, or welfare and
406	its reasons for concluding that the procedure used is fair under
407	the circumstances. In any event, notice of emergency rules,
408	other than those of educational units or units of government
409	with jurisdiction in only one or a part of one county, including
410	the full text of the rules, shall be published in the first
411	available issue of the Florida Administrative Weekly and
412	provided to the committee along with any material incorporated
413	by reference in the rules. The agency's findings of immediate
414	danger, necessity, and procedural fairness shall be judicially
415	reviewable.
416	(7)  PETITION TO INITIATE RULEMAKING.--
417	(a)  Any person regulated by an agency or having
418	substantial interest in an agency rule may petition an agency to
419	adopt, amend, or repeal a rule or to provide the minimum public
420	information required by this chapter. The petition shall specify
421	the proposed rule and action requested. Not later than 30
422	calendar days following the date of filing a petition, the
423	agency shall initiate rulemaking proceedings under this chapter,
424	otherwise comply with the requested action, or deny the petition
425	with a written statement of its reasons for the denial.
426	(b)  If the petition filed under this subsection is
427	directed to an unadopted existing rule, which the agency has not
428	adopted by the rulemaking procedures or requirements set forth
429	in this chapter, the agency shall, not later than 30 days
430	following the date of filing a petition, initiate rulemaking, or
431	provide notice in the Florida Administrative Weekly that the
432	agency will hold a public hearing on the petition within 30 days
433	after publication of the notice. The purpose of the public
434	hearing is to consider the comments of the public directed to
435	the agency rule which has not been adopted by the rulemaking
436	procedures or requirements of this chapter, its scope and
437	application, and to consider whether the public interest is
438	served adequately by the application of the rule on a case-by-
439	case basis, as contrasted with its adoption by the rulemaking
440	procedures or requirements set forth in this chapter.
441	(c)  Within 30 days following the public hearing provided
442	for by paragraph (b), if the agency does not initiate rulemaking
443	or otherwise comply with the requested action, the agency shall
444	publish in the Florida Administrative Weekly a statement of its
445	reasons for not initiating rulemaking or otherwise complying
446	with the requested action, and of any changes it will make in
447	the scope or application of the unadopted rule. The agency shall
448	file the statement with the committee. The committee shall
449	forward a copy of the statement to the substantive committee
450	with primary oversight jurisdiction of the agency in each house
451	of the Legislature. The committee or the committee with primary
452	oversight jurisdiction may hold a hearing directed to the
453	statement of the agency. The committee holding the hearing may
454	recommend to the Legislature the introduction of legislation
455	making the rule a statutory standard or limiting or otherwise
456	modifying the authority of the agency.
457	Section 6.  Effective January 1, 2009, paragraph (a) of
458	subsection (1) of section 120.54, Florida Statutes, is amended
459	to read:
460	120.54  Rulemaking.--
461	(1)  GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN
462	EMERGENCY RULES.--
463	(a)  Rulemaking is not a matter of agency discretion. Each
464	agency statement defined as a rule by s. 120.52 shall be adopted
465	by the rulemaking procedure provided by this section as soon as
466	feasible and practicable.
467	1.  Rulemaking shall be presumed feasible unless the agency
468	proves that:
469	a.  The agency has not had sufficient time to acquire the
470	knowledge and experience reasonably necessary to address a
471	statement by rulemaking; or
472	b.  Related matters are not sufficiently resolved to enable
473	the agency to address a statement by rulemaking; or
474	c.  The agency is currently using the rulemaking procedure
475	expeditiously and in good faith to adopt rules which address the
476	statement.
477	2.  Rulemaking shall be presumed practicable to the extent
478	necessary to provide fair notice to affected persons of relevant
479	agency procedures and applicable principles, criteria, or
480	standards for agency decisions unless the agency proves that:
481	a.  Detail or precision in the establishment of principles,
482	criteria, or standards for agency decisions is not reasonable
483	under the circumstances; or
484	b.  The particular questions addressed are of such a narrow
485	scope that more specific resolution of the matter is impractical
486	outside of an adjudication to determine the substantial
487	interests of a party based on individual circumstances.
488	Section 7.  Section 120.545, Florida Statutes, is amended
489	to read:
490	120.545  Committee review of agency rules.--
491	(1)  As a legislative check on legislatively created
492	authority, the committee shall examine each proposed rule,
493	except for those proposed rules exempted by s. 120.81(1)(e) and
494	(2), and its accompanying material, and each emergency rule, and
495	may examine any existing rule, for the purpose of determining
496	whether:
497	(a)  The rule is an invalid exercise of delegated
498	legislative authority.
499	(b)  The statutory authority for the rule has been
500	repealed.
501	(c)  The rule reiterates or paraphrases statutory material.
502	(d)  The rule is in proper form.
503	(e)  The notice given prior to its adoption was sufficient
504	to give adequate notice of the purpose and effect of the rule.
505	(f)  The rule is consistent with expressed legislative
506	intent pertaining to the specific provisions of law which the
507	rule implements.
508	(g)  The rule is necessary to accomplish the apparent or
509	expressed objectives of the specific provision of law which the
510	rule implements.
511	(h)  The rule is a reasonable implementation of the law as
512	it affects the convenience of the general public or persons
513	particularly affected by the rule.
514	(i)  The rule could be made less complex or more easily
515	comprehensible to the general public.
516	(j)  The rule's statement of estimated regulatory costs
517	complies with the requirements of s. 120.541 and whether the
518	rule does not impose regulatory costs on the regulated person,
519	county, or city which could be reduced by the adoption of less
520	costly alternatives that substantially accomplish the statutory
521	objectives.
522	(k)  The rule will require additional appropriations.
523	(l)  If the rule is an emergency rule, there exists an
524	emergency justifying the adoption promulgation of such rule, the
525	agency is within has exceeded the scope of its statutory
526	authority, and the rule was adopted promulgated in compliance
527	with the requirements and limitations of s. 120.54(4).
528	(2)  The committee may request from an agency such
529	information as is reasonably necessary for examination of a rule
530	as required by subsection (1). The committee shall consult with
531	legislative standing committees having with jurisdiction over
532	the subject areas. If the committee objects to an emergency rule
533	or a proposed or existing rule, the committee it shall, within 5
534	days after of the objection, certify that fact to the agency
535	whose rule has been examined and include with the certification
536	a statement detailing its objections with particularity. The
537	committee shall notify the Speaker of the House of
538	Representatives and the President of the Senate of any objection
539	to an agency rule concurrent with certification of that fact to
540	the agency. Such notice shall include a copy of the rule and the
541	statement detailing the committee's objections to the rule.
542	(3)  Within 30 days after of receipt of the objection, if
543	the agency is headed by an individual, or within 45 days after
544	of receipt of the objection, if the agency is headed by a
545	collegial body, the agency shall:
546	(a)  If the rule is not yet in effect a proposed rule:
547	1.  File notice pursuant to s. 120.54(3)(d) of only such
548	modifications as are necessary to address Modify the rule to
549	meet the committee's objection;
550	2.  File notice pursuant to s. 120.54(3)(d) of withdrawal
551	of withdraw the rule in its entirety; or
552	3.  Notify the committee in writing that the agency refuses
553	Refuse to modify or withdraw the rule.
554	(b)  If the rule is in effect an existing rule:
555	1.  File notice pursuant to s. 120.54(3)(a), without prior
556	notice of rule development, Notify the committee that it has
557	elected to amend the rule to address meet the committee's
558	objection and initiate the amendment procedure;
559	2.  File notice pursuant to s. 120.54(3)(a) Notify the
560	committee that it has elected to repeal the rule and initiate
561	the repeal procedure; or
562	3.  Notify the committee in writing that the agency it
563	refuses to amend or repeal the rule.
564	(c)  If the rule is either an existing or a proposed rule
565	and the objection is to the statement of estimated regulatory
566	costs:
567	1.  Prepare a corrected statement of estimated regulatory
568	costs, give notice of the availability of the corrected
569	statement in the first available issue of the Florida
570	Administrative Weekly, and file a copy of the corrected
571	statement with the committee; or
572	2.  Notify the committee that it refuses to prepare a
573	corrected statement of estimated regulatory costs.
574	(4)  If the agency elects to modify a proposed rule to meet
575	the committee's objection, it shall make only such modifications
576	as are necessary to meet the objection and shall resubmit the
577	rule to the committee. The agency shall give notice of its
578	election to modify a proposed rule to meet the committee's
579	objection by publishing a notice of change in the first
580	available issue of the Florida Administrative Weekly, but shall
581	not be required to conduct a public hearing. If the agency
582	elects to amend an existing rule to meet the committee's
583	objection, it shall notify the committee in writing and shall
584	initiate the amendment procedure by giving notice in the next
585	available issue of the Florida Administrative Weekly. The
586	committee shall give priority to rules so modified or amended
587	when setting its agenda.
588	(5)  If the agency elects to withdraw a proposed rule as a
589	result of a committee objection, it shall notify the committee,
590	in writing, of its election and shall give notice of the
591	withdrawal in the next available issue of the Florida
592	Administrative Weekly. The rule shall be withdrawn without a
593	public hearing, effective upon publication of the notice in the
594	Florida Administrative Weekly. If the agency elects to repeal an
595	existing rule as a result of a committee objection, it shall
596	notify the committee, in writing, of its election and shall
597	initiate rulemaking procedures for that purpose by giving notice
598	in the next available issue of the Florida Administrative
599	Weekly.
600	(6)  If an agency elects to amend or repeal an existing
601	rule as a result of a committee objection, it shall complete the
602	process within 90 days after giving notice in the Florida
603	Administrative Weekly.
604	(4)(7)  Failure of the agency to respond to a committee
605	objection to a proposed rule that is not yet in effect within
606	the time prescribed in subsection (3) constitutes shall
607	constitute withdrawal of the rule in its entirety. In this
608	event, the committee shall notify the Department of State that
609	the agency, by its failure to respond to a committee objection,
610	has elected to withdraw the proposed rule. Upon receipt of the
611	committee's notice, the Department of State shall publish a
612	notice to that effect in the next available issue of the Florida
613	Administrative Weekly. Upon publication of the notice, the
614	proposed rule shall be stricken from the files of the Department
615	of State and the files of the agency.
616	(5)(8)  Failure of the agency to respond to a committee
617	objection to a an existing rule that is in effect within the
618	time prescribed in subsection (3) constitutes shall constitute a
619	refusal to amend or repeal the rule.
620	(6)  Failure of the agency to respond to a committee
621	objection to a statement of estimated regulatory costs within
622	the time prescribed in subsection (3) constitutes a refusal to
623	prepare a corrected statement of estimated regulatory costs.
624	(7)(9)  If the committee objects to a proposed or existing
625	rule and the agency refuses to modify, amend, withdraw, or
626	repeal the rule, the committee shall file with the Department of
627	State a notice of the objection, detailing with particularity
628	the committee's its objection to the rule. The Department of
629	State shall publish this notice in the Florida Administrative
630	Weekly. If the rule is published and shall publish, as a history
631	note to the rule in the Florida Administrative Code, a reference
632	to the committee's objection and to the issue of the Florida
633	Administrative Weekly in which the full text thereof appears
634	shall be recorded in a history note.
635	(8)(10)(a)  If the committee objects to a proposed or
636	existing rule, or portion of a rule thereof, and the agency
637	fails to initiate administrative action to modify, amend,
638	withdraw, or repeal the rule consistent with the objection
639	within 60 days after the objection, or thereafter fails to
640	proceed in good faith to complete such action, the committee may
641	submit to the President of the Senate and the Speaker of the
642	House of Representatives a recommendation that legislation be
643	introduced to address the committee's objection modify or
644	suspend the adoption of the proposed rule, or amend or repeal
645	the rule, or portion thereof.
646	(b)1.  If the committee votes to recommend the introduction
647	of legislation to address the committee's objection modify or
648	suspend the adoption of a proposed rule, or amend or repeal a
649	rule, the committee shall, within 5 days after this
650	determination, certify that fact to the agency whose rule or
651	proposed rule has been examined. The committee may request that
652	the agency temporarily suspend the rule or suspend the adoption
653	of the proposed rule, pending consideration of proposed
654	legislation during the next regular session of the Legislature.
655	2.  Within 30 days after receipt of the certification, if
656	the agency is headed by an individual, or within 45 days after
657	receipt of the certification, if the agency is headed by a
658	collegial body, the agency shall either:
659	a.  Temporarily suspend the rule or suspend the adoption of
660	the proposed rule; or
661	b.  Notify the committee in writing that the agency it
662	refuses to temporarily suspend the rule or suspend the adoption
663	of the proposed rule.
664	3.  If the agency elects to temporarily suspend the rule or
665	suspend the adoption of the proposed rule, the agency it shall
666	give notice of the suspension in the Florida Administrative
667	Weekly. The rule or the rule adoption process shall be suspended
668	upon publication of the notice. An agency may shall not base any
669	agency action on a suspended rule or suspended proposed rule, or
670	portion of such rule thereof, prior to expiration of the
671	suspension. A suspended rule or suspended proposed rule, or
672	portion of such rule thereof, continues to be subject to
673	administrative determination and judicial review as provided by
674	law.
675	4.  Failure of an agency to respond to committee
676	certification within the time prescribed by subparagraph 2.
677	constitutes a refusal to suspend the rule or to suspend the
678	adoption of the proposed rule.
679	(c)  The committee shall prepare proposed legislation bills
680	to address the committee's objection modify or suspend the
681	adoption of the proposed rule or amend or repeal the rule, or
682	portion thereof, in accordance with the rules of the Senate and
683	the House of Representatives for prefiling and introduction in
684	the next regular session of the Legislature. The proposed
685	legislation bill shall be presented to the President of the
686	Senate and the Speaker of the House of Representatives with the
687	committee recommendation.
688	(d)  If proposed legislation addressing the committee's
689	objection a bill to suspend the adoption of a proposed rule is
690	enacted into law, the proposed rule is suspended until specific
691	delegated legislative authority for the proposed rule has been
692	enacted. If a bill to suspend the adoption of a proposed rule
693	fails to become law, any temporary agency suspension of the rule
694	shall expire. If a bill to modify a proposed rule or amend a
695	rule is enacted into law, the suspension shall expire upon
696	publication of notice of modification or amendment in the
697	Florida Administrative Weekly. If a bill to repeal a rule is
698	enacted into law, the suspension shall remain in effect until
699	notification of repeal of the rule is published in the Florida
700	Administrative Weekly.
701	(e)  The Department of State shall publish in the next
702	available issue of the Florida Administrative Weekly the final
703	legislative action taken. If a bill to modify or suspend the
704	adoption of the proposed rule or amend or repeal the rule, or
705	portion thereof, is enacted into law, the Department of State
706	shall conform the rule or portion of the rule to the provisions
707	of the law in the Florida Administrative Code and publish a
708	reference to the law as a history note to the rule.
709	Section 8.  Paragraphs (a) and (d) of subsection (1) and
710	subsection (5) of section 120.55, Florida Statutes, are amended
711	to read:
712	120.55  Publication.--
713	(1)  The Department of State shall:
714	(a)1.  Through a continuous revision system, compile and
715	publish the "Florida Administrative Code." The Florida
716	Administrative Code shall contain all rules adopted by each
717	agency, citing the grant of specific rulemaking authority and
718	the specific law implemented pursuant to which each rule was
719	adopted, all history notes as authorized in s. 120.545(7) s.
720	120.545(9), and complete indexes to all rules contained in the
721	code. Supplementation shall be made as often as practicable, but
722	at least monthly. The department may contract with a publishing
723	firm for the publication, in a timely and useful form, of the
724	Florida Administrative Code; however, the department shall
725	retain responsibility for the code as provided in this section.
726	This publication shall be the official compilation of the
727	administrative rules of this state. The Department of State
728	shall retain the copyright over the Florida Administrative Code.
729	2.  Rules general in form but applicable to only one school
730	district, community college district, or county, or a part
731	thereof, or state university rules relating to internal
732	personnel or business and finance shall not be published in the
733	Florida Administrative Code. Exclusion from publication in the
734	Florida Administrative Code shall not affect the validity or
735	effectiveness of such rules.
736	3.  At the beginning of the section of the code dealing
737	with an agency that files copies of its rules with the
738	department, the department shall publish the address and
739	telephone number of the executive offices of each agency, the
740	manner by which the agency indexes its rules, a listing of all
741	rules of that agency excluded from publication in the code, and
742	a statement as to where those rules may be inspected.
743	4.  Forms shall not be published in the Florida
744	Administrative Code; but any form which an agency uses in its
745	dealings with the public, along with any accompanying
746	instructions, shall be filed with the committee before it is
747	used. Any form or instruction which meets the definition of
748	"rule" provided in s. 120.52 shall be incorporated by reference
749	into the appropriate rule. The reference shall specifically
750	state that the form is being incorporated by reference and shall
751	include the number, title, and effective date of the form and an
752	explanation of how the form may be obtained. Each form created
753	by an agency which is incorporated by reference in a rule notice
754	of which is given under s. 120.54(3)(a) after December 31, 2007,
755	must clearly display the number, title, and effective date of
756	the form and the number of the rule in which the form is
757	incorporated.
758	(d)  Prescribe by rule the style and form required for
759	rules, notices, and other materials submitted for filing and
760	establish the form for their certification.
761	(5)  Any publication of a proposed rule promulgated by an
762	agency, whether published in the Florida Administrative Code or
763	elsewhere, shall include, along with the rule, the name of the
764	person or persons originating such rule, the name of the agency
765	head supervisor or person who approved the rule, and the date
766	upon which the rule was approved.
767	Section 9.  Effective July 1, 2010, paragraph (a) of
768	subsection (1) and subsection (2) of section 120.55, Florida
769	Statutes, as amended by this act, are amended to read:
770	120.55  Publication.--
771	(1)  The Department of State shall:
772	(a)1.  Through a continuous revision system, compile and
773	publish electronically the "Florida Administrative Code,." on an
774	Internet website managed by the department. The Florida
775	Administrative Code shall contain all rules adopted by each
776	agency, citing the grant of rulemaking authority and the
777	specific law implemented pursuant to which each rule was
778	adopted, all history notes as authorized in s. 120.545(7), and
779	complete indexes to all rules contained in the code, and any
780	other material required or authorized by law or deemed useful by
781	the department. The electronic code shall display each rule
782	chapter currently in effect in browse mode and allow full text
783	search of the code and each rule chapter. Supplementation shall
784	be made as often as practicable, but at least monthly. The
785	department shall publish a printed version of the Florida
786	Administrative Code and may contract with a publishing firm for
787	such printed the publication, in a timely and useful form, of
788	the Florida Administrative Code; however, the department shall
789	retain responsibility for the code as provided in this section.
790	Supplementation of the printed code shall be made as often as
791	practicable, but at least monthly. The printed This publication
792	shall be the official compilation of the administrative rules of
793	this state. The Department of State shall retain the copyright
794	over the Florida Administrative Code.
795	2.  Rules general in form but applicable to only one school
796	district, community college district, or county, or a part
797	thereof, or state university rules relating to internal
798	personnel or business and finance shall not be published in the
799	Florida Administrative Code. Exclusion from publication in the
800	Florida Administrative Code shall not affect the validity or
801	effectiveness of such rules.
802	3.  At the beginning of the section of the code dealing
803	with an agency that files copies of its rules with the
804	department, the department shall publish the address and
805	telephone number of the executive offices of each agency, the
806	manner by which the agency indexes its rules, a listing of all
807	rules of that agency excluded from publication in the code, and
808	a statement as to where those rules may be inspected.
809	4.  Forms shall not be published in the Florida
810	Administrative Code; but any form which an agency uses in its
811	dealings with the public, along with any accompanying
812	instructions, shall be filed with the committee before it is
813	used. Any form or instruction which meets the definition of
814	"rule" provided in s. 120.52 shall be incorporated by reference
815	into the appropriate rule. The reference shall specifically
816	state that the form is being incorporated by reference and shall
817	include the number, title, and effective date of the form and an
818	explanation of how the form may be obtained. Each form created
819	by an agency which is incorporated by reference in a rule notice
820	of which is given under s. 120.54(3)(a) after December 31, 2007,
821	must clearly display the number, title, and effective date of
822	the form and the number of the rule in which the form is
823	incorporated.
824	5.  The department shall allow material incorporated by
825	reference to be filed in electronic form as prescribed by
826	department rule. When a rule is filed for adoption with
827	incorporated material in electronic form, the department's
828	publication of the Florida Administrative Code on its Internet
829	website must contain a hyperlink from the incorporating
830	reference in the rule directly to that material. The department
831	may not allow hyperlinks from rules in the Florida
832	Administrative Code to any material other than that filed with
833	and maintained by the department, but it may allow hyperlinks to
834	incorporated material maintained by the department from the
835	adopting agency's website or other sites.
836	(2)  The Florida Administrative Weekly Internet website
837	must allow users to:
838	(a)  Search for notices by type, publication date, rule
839	number, word, subject, and agency;
840	(b)  Search a database that makes available all notices
841	published on the website for a period of at least 5 years;
842	(c)  Subscribe to an automated e-mail notification of
843	selected notices to be sent out before or concurrently with
844	weekly publication of the printed and electronic Florida
845	Administrative Weekly. Such notification must include in the
846	text of the e-mail a summary of the content of each notice;
847	(d)  View agency forms and other materials that have been
848	submitted to the department in electronic form and that are
849	being incorporated by reference in proposed rules; and
850	(e)  Comment on proposed rules.
851	Section 10.  Paragraphs (a) and (b) of subsection (2) of
852	section 120.56, Florida Statutes, are amended to read:
853	120.56  Challenges to rules.--
854	(2)  CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--
855	(a)  Any substantially affected person may seek an
856	administrative determination of the invalidity of any proposed
857	rule by filing a petition seeking such a determination with the
858	division within 21 days after the date of publication of the
859	notice required by s. 120.54(3)(a), within 10 days after the
860	final public hearing is held on the proposed rule as provided by
861	s. 120.54(3)(e)2. s. 120.54(3)(c), within 20 days after the
862	preparation of a statement of estimated regulatory costs
863	required pursuant to s. 120.541, if applicable, has been
864	provided to all persons who submitted a lower cost regulatory
865	alternative and made available to the public, or within 20 days
866	after the date of publication of the notice required by s.
867	120.54(3)(d). The petition shall state with particularity the
868	objections to the proposed rule and the reasons that the
869	proposed rule is an invalid exercise of delegated legislative
870	authority. The petitioner has the burden of going forward. The
871	agency then has the burden to prove by a preponderance of the
872	evidence that the proposed rule is not an invalid exercise of
873	delegated legislative authority as to the objections raised. Any
874	person who is substantially affected by a change in the proposed
875	rule may seek a determination of the validity of such change.
876	Any person not substantially affected by the proposed rule as
877	initially noticed, but who is substantially affected by the rule
878	as a result of a change, may challenge any provision of the rule
879	and is not limited to challenging the change to the proposed
880	rule.
881	(b)  The administrative law judge may declare the proposed
882	rule wholly or partly invalid. Unless the decision of the
883	administrative law judge is reversed on appeal, the proposed
884	rule or provision of a proposed rule declared invalid shall not
885	be adopted. After a petition for administrative determination
886	has been filed However, the agency may proceed with all other
887	steps in the rulemaking process, including the holding of a
888	factfinding hearing. In the event part of a proposed rule is
889	declared invalid, the adopting agency may, in its sole
890	discretion, withdraw the proposed rule in its entirety. The
891	agency whose proposed rule has been declared invalid in whole or
892	part shall give notice of the decision in the first available
893	issue of the Florida Administrative Weekly.
894	Section 11.  Effective January 1, 2009, subsection (4) of
895	section 120.56, Florida Statutes, is amended to read:
896	120.56  Challenges to rules.--
897	(4)  CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;
898	SPECIAL PROVISIONS.--
899	(a)  Any person substantially affected by an agency
900	statement may seek an administrative determination that the
901	statement violates s. 120.54(1)(a). The petition shall include
902	the text of the statement or a description of the statement and
903	shall state with particularity facts sufficient to show that the
904	statement constitutes a rule under s. 120.52 and that the agency
905	has not adopted the statement by the rulemaking procedure
906	provided by s. 120.54.
907	(b)  The administrative law judge may extend the hearing
908	date beyond 30 days after assignment of the case for good cause.
909	Upon notification to the administrative law judge provided prior
910	to the final hearing that the agency has published a notice of
911	rulemaking under s. 120.54(3), such notice shall automatically
912	operate as a stay of proceedings pending adoption of the
913	statement as a rule. The administrative law judge may vacate the
914	stay for good cause shown. A stay of proceedings pending
915	rulemaking shall remain in effect so long as the agency is
916	proceeding expeditiously and in good faith to adopt the
917	statement as a rule. If a hearing is held and the petitioner
918	proves the allegations of the petition, the agency shall have
919	the burden of proving that rulemaking is not feasible or not and
920	practicable under s. 120.54(1)(a).
921	(c)  The administrative law judge may determine whether all
922	or part of a statement violates s. 120.54(1)(a). The decision of
923	the administrative law judge shall constitute a final order. The
924	division shall transmit a copy of the final order to the
925	Department of State and the committee. The Department of State
926	shall publish notice of the final order in the first available
927	issue of the Florida Administrative Weekly.
928	(d)  If When an administrative law judge enters a final
929	order that all or part of an agency statement violates s.
930	120.54(1)(a), the agency shall immediately discontinue all
931	reliance upon the statement or any substantially similar
932	statement as a basis for agency action. This paragraph shall not
933	be construed to impair the obligation of contracts existing at
934	the time the final order is entered.
935	(e)1.  If, prior to a final hearing to determine whether
936	all or part of any agency statement violates s. 120.54(1)(a), an
937	agency publishes, pursuant to s. 120.54(3)(a), proposed rules
938	that address the statement, then for purposes of this section, a
939	presumption is created that the agency is acting expeditiously
940	and in good faith to adopt rules that address the statement, and
941	the agency shall be permitted to rely upon the statement or a
942	substantially similar statement as a basis for agency action if
943	the statement meets the requirements of s. 120.57(1)(e).
944	2.  If, prior to the final hearing to determine whether all
945	or part of an agency statement violates s. 120.54(1)(a), an
946	agency publishes a notice of rule development which addresses
947	the statement pursuant to s. 120.54(2), or certifies that such a
948	notice has been transmitted to the Florida Administrative Weekly
949	for publication, then such publication shall constitute good
950	cause for the granting of a stay of the proceedings and a
951	continuance of the final hearing for 30 days. If the agency
952	publishes proposed rules within this 30-day period or any
953	extension of that period granted by an administrative law judge
954	upon showing of good cause, then the administrative law judge
955	shall place the case in abeyance pending the outcome of
956	rulemaking and any proceedings involving challenges to proposed
957	rules pursuant to subsection (2).
958	3.  If, following the commencement of the final hearing and
959	prior to entry of a final order that all or part of an agency
960	statement violates s. 120.54(1)(a), an agency publishes,
961	pursuant to s. 120.54(3)(a), proposed rules that address the
962	statement and proceeds expeditiously and in good faith to adopt
963	rules that address the statement, the agency shall be permitted
964	to rely upon the statement or a substantially similar statement
965	as a basis for agency action if the statement meets the
966	requirements of s. 120.57(1)(e).
967	4.  If an agency fails to adopt rules that address the
968	statement within 180 days after publishing proposed rules, for
969	purposes of this subsection, a presumption is created that the
970	agency is not acting expeditiously and in good faith to adopt
971	rules. If the agency's proposed rules are challenged pursuant to
972	subsection (2), the 180-day period for adoption of rules is
973	tolled until a final order is entered in that proceeding.
974	(e)5.  If the proposed rules addressing the challenged
975	statement are determined to be an invalid exercise of delegated
976	legislative authority as defined in s. 120.52(8)(b)-(f), the
977	agency must immediately discontinue reliance on the statement
978	and any substantially similar statement until the rules
979	addressing the subject are properly adopted, and the
980	administrative law judge shall enter a final order to that
981	effect.
982	(f)  All proceedings to determine a violation of s.
983	120.54(1)(a) shall be brought pursuant to this subsection. A
984	proceeding pursuant to this subsection may be consolidated with
985	a proceeding under subsection (3) or under any other section of
986	this chapter. Nothing in This paragraph does not shall be
987	construed to prevent a party whose substantial interests have
988	been determined by an agency action from bringing a proceeding
989	pursuant to s. 120.57(1)(e).
990	Section 12.  Effective January 1, 2009, paragraph (e) of
991	subsection (1) of section 120.57, Florida Statutes, is amended
992	to read:
993	120.57  Additional procedures for particular cases.--
994	(1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
995	DISPUTED ISSUES OF MATERIAL FACT.--
996	(e)1.  An agency or an administrative law judge may not
997	base Any agency action that determines the substantial interests
998	of a party and that is based on an unadopted rule. The
999	administrative law judge shall determine whether an agency
1000	statement constitutes an unadopted rule. This subparagraph does
1001	not preclude application of adopted rules and applicable
1002	provisions of law to the facts unadopted rule is subject to de
1003	novo review by an administrative law judge.
1004	2.  Notwithstanding subparagraph 1., if an agency
1005	demonstrates that the statute being implemented directs it to
1006	adopt rules, that the agency has not had time to adopt those
1007	rules because the requirement was so recently enacted, and that
1008	the agency has initiated rulemaking and is proceeding
1009	expeditiously and in good faith to adopt the required rules,
1010	then the agency's action may be based upon those unadopted
1011	rules, subject to de novo review by the administrative law
1012	judge. The agency action shall not be presumed valid or invalid.
1013	The agency must demonstrate that the unadopted rule:
1014	a.  Is within the powers, functions, and duties delegated
1015	by the Legislature or, if the agency is operating pursuant to
1016	authority derived from the State Constitution, is within that
1017	authority;
1018	b.  Does not enlarge, modify, or contravene the specific
1019	provisions of law implemented;
1020	c.  Is not vague, establishes adequate standards for agency
1021	decisions, or does not vest unbridled discretion in the agency;
1022	d.  Is not arbitrary or capricious. A rule is arbitrary if
1023	it is not supported by logic or the necessary facts; a rule is
1024	capricious if it is adopted without thought or reason or is
1025	irrational;
1026	e.  Is not being applied to the substantially affected
1027	party without due notice; and
1028	f.  Does not impose excessive regulatory costs on the
1029	regulated person, county, or city.
1030	3.  The recommended and final orders in any proceeding
1031	shall be governed by the provisions of paragraphs (k) and (l),
1032	except that the administrative law judge's determination
1033	regarding an the unadopted rule under subparagraph 1. or
1034	subparagraph  2. shall not be rejected by the agency unless the
1035	agency first determines from a review of the complete record,
1036	and states with particularity in the order, that such
1037	determination is clearly erroneous or does not comply with
1038	essential requirements of law. In any proceeding for review
1039	under s. 120.68, if the court finds that the agency's rejection
1040	of the determination regarding the unadopted rule does not
1041	comport with the provisions of this subparagraph, the agency
1042	action shall be set aside and the court shall award to the
1043	prevailing party the reasonable costs and a reasonable
1044	attorney's fee for the initial proceeding and the proceeding for
1045	review.
1046	Section 13.  Effective January 1, 2009, subsections (2),
1047	(3), and (4) of section 120.595, Florida Statutes, are amended
1048	to read:
1049	120.595  Attorney's fees.--
1050	(2)  CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO
1051	SECTION 120.56(2).--If the appellate court or administrative law
1052	judge declares a proposed rule or portion of a proposed rule
1053	invalid pursuant to s. 120.56(2), a judgment or order shall be
1054	rendered against the agency for reasonable costs and reasonable
1055	attorney's fees, unless the agency demonstrates that its actions
1056	were substantially justified or special circumstances exist
1057	which would make the award unjust. An agency's actions are
1058	"substantially justified" if there was a reasonable basis in law
1059	and fact at the time the actions were taken by the agency. If
1060	the agency prevails in the proceedings, the appellate court or
1061	administrative law judge shall award reasonable costs and
1062	reasonable attorney's fees against a party if the appellate
1063	court or administrative law judge determines that a party
1064	participated in the proceedings for an improper purpose as
1065	defined by paragraph (1)(e). No award of attorney's fees as
1066	provided by this subsection shall exceed $50,000 $15,000.
1067	(3)  CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO
1068	SECTION 120.56(3) AND (5).--If the appellate court or
1069	administrative law judge declares a rule or portion of a rule
1070	invalid pursuant to s. 120.56(3) or (5), a judgment or order
1071	shall be rendered against the agency for reasonable costs and
1072	reasonable attorney's fees, unless the agency demonstrates that
1073	its actions were substantially justified or special
1074	circumstances exist which would make the award unjust. An
1075	agency's actions are "substantially justified" if there was a
1076	reasonable basis in law and fact at the time the actions were
1077	taken by the agency. If the agency prevails in the proceedings,
1078	the appellate court or administrative law judge shall award
1079	reasonable costs and reasonable attorney's fees against a party
1080	if the appellate court or administrative law judge determines
1081	that a party participated in the proceedings for an improper
1082	purpose as defined by paragraph (1)(e). No award of attorney's
1083	fees as provided by this subsection shall exceed $50,000
1084	$15,000.
1085	(4)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
1086	120.56(4).--
1087	(a)  If the appellate court or administrative law judge
1088	determines Upon entry of a final order that all or part of an
1089	agency statement violates s. 120.54(1)(a), or that the agency
1090	must immediately discontinue reliance on the statement and any
1091	substantially similar statement pursuant to s. 120.56(4)(e), a
1092	judgment or order shall be entered against the agency for the
1093	administrative law judge shall award reasonable costs and
1094	reasonable attorney's fees to the petitioner, unless the agency
1095	demonstrates that the statement is required by the Federal
1096	Government to implement or retain a delegated or approved
1097	program or to meet a condition to receipt of federal funds.
1098	(b)  Upon notification to the administrative law judge
1099	provided before the final hearing that the agency has published
1100	a notice of rulemaking under s. 120.54(3)(a), such notice shall
1101	automatically operate as a stay of proceedings pending
1102	rulemaking. The administrative law judge may vacate the stay for
1103	good cause shown. A stay of proceedings under this paragraph
1104	remains in effect so long as the agency is proceeding
1105	expeditiously and in good faith to adopt the statement as a
1106	rule. The administrative law judge shall award reasonable costs
1107	and reasonable attorney's fees accrued by the petitioner prior
1108	to the date the notice was published, unless the agency proves
1109	to the administrative law judge that it did not know and should
1110	not have known that the statement was an unadopted rule.
1111	Attorney's fees and costs under this paragraph and paragraph (a)
1112	shall be awarded only upon a finding that the agency received
1113	notice that the statement may constitute an unadopted rule at
1114	least 30 days before a petition under s. 120.56(4) was filed and
1115	that the agency failed to publish the required notice of
1116	rulemaking pursuant to s. 120.54(3) that addresses the statement
1117	within that 30-day period. Notice to the agency may be satisfied
1118	by its receipt of a copy of the s. 120.56(4) petition, a notice
1119	or other paper containing substantially the same information, or
1120	a petition filed pursuant to s. 120.54(7). An award of
1121	attorney's fees as provided by this paragraph may not exceed
1122	$50,000.
1123	(c)(b)  Notwithstanding the provisions of chapter 284, an
1124	award shall be paid from the budget entity of the secretary,
1125	executive director, or equivalent administrative officer of the
1126	agency, and the agency shall not be entitled to payment of an
1127	award or reimbursement for payment of an award under any
1128	provision of law.
1129	(d)  If the agency prevails in the proceedings, the
1130	appellate court or administrative law judge shall award
1131	reasonable costs and attorney's fees against a party if the
1132	appellate court or administrative law judge determines that the
1133	party participated in the proceedings for an improper purpose as
1134	defined in paragraph (1)(e) or that the party or the party's
1135	attorney knew or should have known that a claim was not
1136	supported by the material facts necessary to establish the claim
1137	or would not be supported by the application of then-existing
1138	law to those material facts.
1139	Section 14.  Subsection (1) and paragraph (c) of subsection
1140	(2) of section 120.569, Florida Statutes, are amended to read:
1141	120.569  Decisions which affect substantial interests.--
1142	(1)  The provisions of this section apply in all
1143	proceedings in which the substantial interests of a party are
1144	determined by an agency, unless the parties are proceeding under
1145	s. 120.573 or s. 120.574. Unless waived by all parties, s.
1146	120.57(1) applies whenever the proceeding involves a disputed
1147	issue of material fact. Unless otherwise agreed, s. 120.57(2)
1148	applies in all other cases. If a disputed issue of material fact
1149	arises during a proceeding under s. 120.57(2), then, unless
1150	waived by all parties, the proceeding under s. 120.57(2) shall
1151	be terminated and a proceeding under s. 120.57(1) shall be
1152	conducted. Parties shall be notified of any order, including a
1153	final order. Unless waived, a copy of the order shall be
1154	delivered or mailed to each party or the party's attorney of
1155	record at the address of record. Each notice shall inform the
1156	recipient of any administrative hearing or judicial review that
1157	is available under this section, s. 120.57, or s. 120.68; shall
1158	indicate the procedure which must be followed to obtain the
1159	hearing or judicial review; and shall state the time limits
1160	which apply.
1161	(2)
1162	(c)  Unless otherwise provided by law, a petition or
1163	request for hearing shall include those items required by the
1164	uniform rules adopted pursuant to s. 120.54(5)(b) s.
1165	120.54(5)(b)4. Upon the receipt of a petition or request for
1166	hearing, the agency shall carefully review the petition to
1167	determine if it contains all of the required information. A
1168	petition shall be dismissed if it is not in substantial
1169	compliance with these requirements or it has been untimely
1170	filed. Dismissal of a petition shall, at least once, be without
1171	prejudice to petitioner's filing a timely amended petition
1172	curing the defect, unless it conclusively appears from the face
1173	of the petition that the defect cannot be cured. The agency
1174	shall promptly give written notice to all parties of the action
1175	taken on the petition, shall state with particularity its
1176	reasons if the petition is not granted, and shall state the
1177	deadline for filing an amended petition if applicable. This
1178	paragraph does not eliminate the availability of equitable
1179	tolling as a defense to the untimely filing of a petition.
1180	Section 15.  Subsection (2) of section 120.74, Florida
1181	Statutes, is amended to read:
1182	120.74  Agency review, revision, and report.--
1183	(2)  Beginning October 1, 1997, and by October 1 of every
1184	other year thereafter, the head of each agency shall file a
1185	report with the President of the Senate, the Speaker of the
1186	House of Representatives, and the committee, with a copy to each
1187	appropriate standing committee of the Legislature, which
1188	certifies that the agency has complied with the requirements of
1189	this section subsection. The report must specify any changes
1190	made to its rules as a result of the review and, when
1191	appropriate, recommend statutory changes that will promote
1192	efficiency, reduce paperwork, or decrease costs to government
1193	and the private sector. The report must identify the types of
1194	cases or disputes in which the agency is involved which should
1195	be conducted under the summary hearing process described in s.
1196	120.574.
1197	Section 16.  Subsection (11) of section 120.80, Florida
1198	Statutes, is amended to read:
1199	120.80  Exceptions and special requirements; agencies.--
1200	(11)  NATIONAL GUARD.--Notwithstanding s. 120.52(16) s.
1201	120.52(15), the enlistment, organization, administration,
1202	equipment, maintenance, training, and discipline of the militia,
1203	National Guard, organized militia, and unorganized militia, as
1204	provided by s. 2, Art. X of the State Constitution, are not
1205	rules as defined by this chapter.
1206	Section 17.  Paragraph (c) of subsection (1) and paragraph
1207	(a) of subsection (3) of section 120.81, Florida Statutes, are
1208	amended to read:
1209	120.81  Exceptions and special requirements; general
1210	areas.--
1211	(1)  EDUCATIONAL UNITS.--
1212	(c)  Notwithstanding s. 120.52(16) s. 120.52(15), any
1213	tests, test scoring criteria, or testing procedures relating to
1214	student assessment which are developed or administered by the
1215	Department of Education pursuant to s. 1003.43, s. 1003.438, s.
1216	1008.22, or s. 1008.25, or any other statewide educational tests
1217	required by law, are not rules.
1218	(3)  PRISONERS AND PAROLEES.--
1219	(a)  Notwithstanding s. 120.52(13) s. 120.52(12),
1220	prisoners, as defined by s. 944.02, shall not be considered
1221	parties in any proceedings other than those under s.
1222	120.54(3)(c) or (7), and may not seek judicial review under s.
1223	120.68 of any other agency action. Prisoners are not eligible to
1224	seek an administrative determination of an agency statement
1225	under s. 120.56(4). Parolees shall not be considered parties for
1226	purposes of agency action or judicial review when the
1227	proceedings relate to the rescission or revocation of parole.
1228	Section 18.  Paragraph (f) of subsection (2) of section
1229	409.175, Florida Statutes, is amended to read:
1230	409.175  Licensure of family foster homes, residential
1231	child-caring agencies, and child-placing agencies; public
1232	records exemption.--
1233	(2)  As used in this section, the term:
1234	(f)  "License" means "license" as defined in s. 120.52(10)
1235	s. 120.52(9). A license under this section is issued to a family
1236	foster home or other facility and is not a professional license
1237	of any individual. Receipt of a license under this section shall
1238	not create a property right in the recipient. A license under
1239	this act is a public trust and a privilege, and is not an
1240	entitlement. This privilege must guide the finder of fact or
1241	trier of law at any administrative proceeding or court action
1242	initiated by the department.
1243	Section 19.  Paragraph (a) of subsection (1) of section
1244	420.9072, Florida Statutes, is amended to read:
1245	420.9072  State Housing Initiatives Partnership
1246	Program.--The State Housing Initiatives Partnership Program is
1247	created for the purpose of providing funds to counties and
1248	eligible municipalities as an incentive for the creation of
1249	local housing partnerships, to expand production of and preserve
1250	affordable housing, to further the housing element of the local
1251	government comprehensive plan specific to affordable housing,
1252	and to increase housing-related employment.
1253	(1)(a)  In addition to the legislative findings set forth
1254	in s. 420.6015, the Legislature finds that affordable housing is
1255	most effectively provided by combining available public and
1256	private resources to conserve and improve existing housing and
1257	provide new housing for very-low-income households, low-income
1258	households, and moderate-income households. The Legislature
1259	intends to encourage partnerships in order to secure the
1260	benefits of cooperation by the public and private sectors and to
1261	reduce the cost of housing for the target group by effectively
1262	combining all available resources and cost-saving measures. The
1263	Legislature further intends that local governments achieve this
1264	combination of resources by encouraging active partnerships
1265	between government, lenders, builders and developers, real
1266	estate professionals, advocates for low-income persons, and
1267	community groups to produce affordable housing and provide
1268	related services. Extending the partnership concept to encompass
1269	cooperative efforts among small counties as defined in s.
1270	120.52(19) s. 120.52(17), and among counties and municipalities
1271	is specifically encouraged. Local governments are also intended
1272	to establish an affordable housing advisory committee to
1273	recommend monetary and nonmonetary incentives for affordable
1274	housing as provided in s. 420.9076.
1275	Section 20.  Subsection (7) of section 420.9075, Florida
1276	Statutes, is amended to read:
1277	420.9075  Local housing assistance plans; partnerships.--
1278	(7)  The moneys deposited in the local housing assistance
1279	trust fund shall be used to administer and implement the local
1280	housing assistance plan. The cost of administering the plan may
1281	not exceed 5 percent of the local housing distribution moneys
1282	and program income deposited into the trust fund. A county or an
1283	eligible municipality may not exceed the 5-percent limitation on
1284	administrative costs, unless its governing body finds, by
1285	resolution, that 5 percent of the local housing distribution
1286	plus 5 percent of program income is insufficient to adequately
1287	pay the necessary costs of administering the local housing
1288	assistance plan. The cost of administering the program may not
1289	exceed 10 percent of the local housing distribution plus 5
1290	percent of program income deposited into the trust fund, except
1291	that small counties, as defined in s. 120.52(19) s. 120.52(17),
1292	and eligible municipalities receiving a local housing
1293	distribution of up to $350,000 may use up to 10 percent of
1294	program income for administrative costs.
1295	Section 21.  For the 2008-2009 fiscal year, the
1296	nonrecurring sum of $50,000 is appropriated in lump sum from the
1297	Records Management Trust Fund to the Department of State, and
1298	for the 2009-2010 fiscal year, the nonrecurring sum of $401,000
1299	is appropriated in lump sum from the Records Management Trust
1300	Fund to the Department of State for the purposes of carrying out
1301	the provisions of this act requiring the implementation of
1302	electronic publications. To cover this nonrecurring cost to
1303	implement system modifications, the Department of State shall
1304	temporarily increase the space rate charge for publication in
1305	the Florida Administrative Weekly. After implementation of the
1306	required system changes, the department shall decrease the fee
1307	to the 2007-2008 fiscal-year level. Funds appropriated are held
1308	in a lump sum category contingent on available cash deposited
1309	into the trust fund and derived from the fee increase. Funds
1310	collected from the fee increase and not expended by June 30,
1311	2009, may be retained in the trust fund to complete the system
1312	implementation as appropriated in the 2009-10 fiscal year.
1313	Section 22.  For the 2008-2009 fiscal year, the Department
1314	of State is authorized one full-time-equivalent position, salary
1315	rate of 16,969, and a recurring sum of $22,399 in salaries and
1316	benefits from the Records Management Trust Fund for the purpose
1317	of handling administrative and system requirements in carrying
1318	out the provisions of this act related to electronic
1319	publications.
1320	Section 23.  Notwithstanding s. 120.55(8)(b), Florida
1321	Statutes, on July 1, 2009, the unencumbered balance in the
1322	Records Management Trust Fund for fees collected pursuant to
1323	chapter 120, Florida Statutes, may not exceed $300,000 plus any
1324	funds collected, but not yet expended, from the fee increase
1325	implemented to fund the provisions of this act. By June 30,
1326	2009, any funds in excess of this amount shall be transferred to
1327	the General Revenue Fund. This section expires August 1, 2009.
1328	Section 24.  Except as otherwise expressly provided in this
1329	act, this act shall take effect July 1, 2008.

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