CS/HB 1565

1	A bill to be entitled
2	An act relating to rulemaking; amending s. 120.54, F.S.;
3	requiring each agency, before adopting, amending, or
4	repealing a rule, to prepare a statement of estimated
5	regulatory costs of the proposed rule; providing that
6	failure to prepare such statement is a material failure to
7	follow applicable rulemaking procedures; amending s.
8	120.541, F.S.; requiring an agency to revise its statement
9	of estimated regulatory costs upon submission of a lower
10	cost regulatory alternative; removing the requirement that
11	a rule be declared invalid if it imposes regulatory costs
12	on certain persons or entities provided a less costly
13	alternative exists; revising the required information that
14	must be included in a statement of estimated regulatory
15	costs; requiring the Joint Administrative Procedures
16	Committee to determine whether any statement of estimated
17	regulatory costs complies with certain requirements;
18	prohibiting a rule from taking effect until it is
19	submitted to the Legislature for review if the rule
20	creates certain impediments or hindrances; allowing the
21	Legislature to reject, modify, or take no action relative
22	to a rule; providing a time certain for a rule to take
23	effect if the Legislature takes no action; providing that
24	the act is not applicable to certain specified rules;
25	providing an effective date.
26
27	Be It Enacted by the Legislature of the State of Florida:
28
29	Section 1.  Paragraph (b) of subsection (3) of section
30	120.54, Florida Statutes, is amended to read:
31	120.54  Rulemaking.-
32	(3)  ADOPTION PROCEDURES.-
33	(b)  Special matters to be considered in rule adoption.-
34	1.  Statement of estimated regulatory costs.-Prior to the
35	adoption, amendment, or repeal of any rule other than an
36	emergency rule, an agency shall is encouraged to prepare a
37	statement of estimated regulatory costs of the proposed rule, as
38	provided by s. 120.541. The failure of the agency to prepare the
39	statement of estimated regulatory costs as provided in this
40	section is a material failure to follow the applicable
41	rulemaking procedures or requirements set forth in this chapter.
42	However, an agency shall prepare a statement of estimated
43	regulatory costs of the proposed rule, as provided by s.
44	120.541, if the proposed rule will have an impact on small
45	business.
46	2.  Small businesses, small counties, and small cities.-
47	a.  Each agency, before the adoption, amendment, or repeal
48	of a rule, shall consider the impact of the rule on small
49	businesses as defined by s. 288.703 and the impact of the rule
50	on small counties or small cities as defined by s. 120.52.
51	Whenever practicable, an agency shall tier its rules to reduce
52	disproportionate impacts on small businesses, small counties, or
53	small cities to avoid regulating small businesses, small
54	counties, or small cities that do not contribute significantly
55	to the problem the rule is designed to address. An agency may
56	define "small business" to include businesses employing more
57	than 200 persons, may define "small county" to include those
58	with populations of more than 75,000, and may define "small
59	city" to include those with populations of more than 10,000, if
60	it finds that such a definition is necessary to adapt a rule to
61	the needs and problems of small businesses, small counties, or
62	small cities. The agency shall consider each of the following
63	methods for reducing the impact of the proposed rule on small
64	businesses, small counties, and small cities, or any combination
65	of these entities:
66	(I)  Establishing less stringent compliance or reporting
67	requirements in the rule.
68	(II)  Establishing less stringent schedules or deadlines in
69	the rule for compliance or reporting requirements.
70	(III)  Consolidating or simplifying the rule's compliance
71	or reporting requirements.
72	(IV)  Establishing performance standards or best management
73	practices to replace design or operational standards in the
74	rule.
75	(V)  Exempting small businesses, small counties, or small
76	cities from any or all requirements of the rule.
77	b.(I)  If the agency determines that the proposed action
78	will affect small businesses as defined by the agency as
79	provided in sub-subparagraph a., the agency shall send written
80	notice of the rule to the Small Business Regulatory Advisory
81	Council and the Office of Tourism, Trade, and Economic
82	Development not less than 28 days prior to the intended action.
83	(II)  Each agency shall adopt those regulatory alternatives
84	offered by the Small Business Regulatory Advisory Council and
85	provided to the agency no later than 21 days after the council's
86	receipt of the written notice of the rule which it finds are
87	feasible and consistent with the stated objectives of the
88	proposed rule and which would reduce the impact on small
89	businesses. When regulatory alternatives are offered by the
90	Small Business Regulatory Advisory Council, the 90-day period
91	for filing the rule in subparagraph (e)2. is extended for a
92	period of 21 days.
93	(III)  If an agency does not adopt all alternatives offered
94	pursuant to this sub-subparagraph, it shall, prior to rule
95	adoption or amendment and pursuant to subparagraph (d)1., file a
96	detailed written statement with the committee explaining the
97	reasons for failure to adopt such alternatives. Within 3 working
98	days of the filing of such notice, the agency shall send a copy
99	of such notice to the Small Business Regulatory Advisory
100	Council. The Small Business Regulatory Advisory Council may make
101	a request of the President of the Senate and the Speaker of the
102	House of Representatives that the presiding officers direct the
103	Office of Program Policy Analysis and Government Accountability
104	to determine whether the rejected alternatives reduce the impact
105	on small business while meeting the stated objectives of the
106	proposed rule. Within 60 days after the date of the directive
107	from the presiding officers, the Office of Program Policy
108	Analysis and Government Accountability shall report to the
109	Administrative Procedures Committee its findings as to whether
110	an alternative reduces the impact on small business while
111	meeting the stated objectives of the proposed rule. The Office
112	of Program Policy Analysis and Government Accountability shall
113	consider the proposed rule, the economic impact statement, the
114	written statement of the agency, the proposed alternatives, and
115	any comment submitted during the comment period on the proposed
116	rule. The Office of Program Policy Analysis and Government
117	Accountability shall submit a report of its findings and
118	recommendations to the Governor, the President of the Senate,
119	and the Speaker of the House of Representatives. The
120	Administrative Procedures Committee shall report such findings
121	to the agency, and the agency shall respond in writing to the
122	Administrative Procedures Committee if the Office of Program
123	Policy Analysis and Government Accountability found that the
124	alternative reduced the impact on small business while meeting
125	the stated objectives of the proposed rule. If the agency will
126	not adopt the alternative, it must also provide a detailed
127	written statement to the committee as to why it will not adopt
128	the alternative.
129	Section 2.  Section 120.541, Florida Statutes, is amended
130	to read:
131	120.541  Statement of estimated regulatory costs.-
132	(1)(a)  A substantially affected person, within 21 days
133	after publication of the notice provided under s. 120.54(3)(a),
134	may submit to an agency a good faith written proposal for a
135	lower cost regulatory alternative to a proposed rule which
136	substantially accomplishes the objectives of the law being
137	implemented. The proposal may include the alternative of not
138	adopting any rule, so long as the proposal explains how the
139	lower costs and objectives of the law will be achieved by not
140	adopting any rule. If such a proposal is submitted, the 90-day
141	period for filing the rule is extended 21 days.
142	(b)  Upon the submission of the lower cost regulatory
143	alternative, the agency shall prepare a statement of estimated
144	regulatory costs as provided in subsection (2), or shall revise
145	its prior statement of estimated regulatory costs, and either
146	adopt the alternative or give a statement of the reasons for
147	rejecting the alternative in favor of the proposed rule. The
148	failure of the agency to prepare or revise the statement of
149	estimated regulatory costs as provided in this paragraph is a
150	material failure to follow the applicable rulemaking procedures
151	or requirements set forth in this chapter. An agency required to
152	prepare or revise a statement of estimated regulatory costs as
153	provided in this paragraph shall make it available to the person
154	who submits the lower cost regulatory alternative and to the
155	public prior to filing the rule for adoption.
156	(c)  No rule shall be declared invalid because it imposes
157	regulatory costs on the regulated person, county, or city which
158	could be reduced by the adoption of less costly alternatives
159	that substantially accomplish the statutory objectives, and no
160	rule shall be declared invalid based upon a challenge to the
161	agency's statement of estimated regulatory costs, unless:
162	1.  The issue is raised in an administrative proceeding
163	within 1 year after the effective date of the rule; and
164	2.  The substantial interests of the person challenging the
165	agency's rejection of, or failure to consider, the lower cost
166	regulatory alternative are materially affected by the rejection;
167	and
168	3.a.  The agency has failed to prepare or revise the
169	statement of estimated regulatory costs as required by paragraph
170	(b); or
171	b.  The challenge is to the agency's rejection under
172	paragraph (b) of a lower cost regulatory alternative submitted
173	under paragraph (a).
174	(2)  A statement of estimated regulatory costs shall
175	include:
176	(a)  An economic analysis showing whether the rule:
177	1.  Creates a regulatory environment that could impede or
178	hinder economic growth and private-sector job creation;
179	2.  Expands the growth of state government, where not
180	recognized by the enabling statute;
181	3.  Increases regulatory costs to small businesses; and
182	4.  Is likely to adversely impact private-sector job
183	creation or result in higher unemployment.
184	(b)  A good faith estimate of the number of individuals and
185	entities likely to be required to comply with the rule, together
186	with a general description of the types of individuals likely to
187	be affected by the rule.
188	(c)(b)  A good faith estimate of the cost to the agency,
189	and to any other state and local government entities, of
190	implementing and enforcing the proposed rule, and any
191	anticipated effect on state or local revenues.
192	(d)(c)  A good faith estimate of the transactional costs
193	likely to be incurred by individuals and entities, including
194	local government entities, required to comply with the
195	requirements of the rule. As used in this paragraph,
196	"transactional costs" are direct costs that are readily
197	ascertainable based upon standard business practices, and
198	include filing fees, the cost of obtaining a license, the cost
199	of equipment required to be installed or used or procedures
200	required to be employed in complying with the rule, additional
201	operating costs incurred, and the cost of monitoring and
202	reporting.
203	(e)(d)  An analysis of the impact on small businesses as
204	defined by s. 288.703, and an analysis of the impact on small
205	counties and small cities as defined by s. 120.52.
206	(f)(e)  Any additional information that the agency
207	determines may be useful.
208	(g)(f)  In the statement or revised statement, whichever
209	applies, a description of any good faith written proposal
210	submitted under paragraph (1)(a) and either a statement adopting
211	the alternative or a statement of the reasons for rejecting the
212	alternative in favor of the proposed rule.
213	(3)  The committee shall determine whether any statement of
214	estimated regulatory costs prepared by an agency complies with
215	subsection (2). If the evidence shows that a proposed rule will
216	create a regulatory environment that impedes or hinders economic
217	growth and private-sector job creation, expand the growth of
218	state government where not anticipated by the enabling statute,
219	increase the regulatory costs to small businesses, or is likely
220	to adversely impact private-sector job creation or result in
221	higher unemployment, the rule may not take effect until it is
222	submitted to the Legislature for review at the next regularly
223	scheduled session. The Legislature may reject, modify, or take
224	no action relative to the rule. If the Legislature takes no
225	action, the rule shall take effect upon adjournment sine die of
226	that session.
227	(4)  Paragraph (2)(a) does not apply to the adoption of
228	emergency rules.
229	Section 3.  This act shall take effect July 1, 2010.

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