| 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 certain rules, to prepare a statement of |
| 5 | estimated regulatory costs of the proposed rule if the |
| 6 | proposed rule has adverse impacts on small business or |
| 7 | increases regulatory costs; providing an exception to |
| 8 | circumstances under which an emergency rule shall not be |
| 9 | effective; amending s. 120.541, F.S.; extending the time |
| 10 | period for filing a rule when a substantially affected |
| 11 | person submits a proposal for a lower cost regulatory |
| 12 | alternative; providing circumstances under which an agency |
| 13 | shall prepare or revise a statement of estimated |
| 14 | regulatory costs; providing notice requirements; providing |
| 15 | that an agency's failure to prepare or revise the |
| 16 | statement of estimated regulatory costs is a material |
| 17 | failure to follow the applicable rulemaking procedures or |
| 18 | requirements of the chapter; specifying conditions under |
| 19 | which a challenged rule may not be declared invalid; |
| 20 | specifying the requirements for an economic analysis on a |
| 21 | proposed rule or rule changes; requiring that a rule |
| 22 | impact analysis for small businesses include the agency's |
| 23 | basis for not implementing alternatives to a proposed |
| 24 | rule; providing circumstances under which a rule shall not |
| 25 | take effect until ratified by the Legislature; providing |
| 26 | that the act is not applicable to certain specified rules |
| 27 | or standards; amending s. 120.56, F.S.; providing for |
| 28 | revised statements of estimated regulatory costs as a |
| 29 | basis for challenging a rule; amending s. 120.60, F.S.; |
| 30 | authorizing an agency to provide by rule for the time |
| 31 | period for submitting additional information needed for a |
| 32 | license application; requiring that certain requests to |
| 33 | receive notice relating to a license application be |
| 34 | submitted in writing; providing an effective date. |
| 35 |
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| 36 | Be It Enacted by the Legislature of the State of Florida: |
| 37 |
|
| 38 | Section 1. Paragraph (b) of subsection (3) and paragraph |
| 39 | (c) of subsection (4) of section 120.54, Florida Statutes, are |
| 40 | amended to read: |
| 41 | 120.54 Rulemaking.- |
| 42 | (3) ADOPTION PROCEDURES.- |
| 43 | (b) Special matters to be considered in rule adoption.- |
| 44 | 1. Statement of estimated regulatory costs.-Prior to the |
| 45 | adoption, amendment, or repeal of any rule other than an |
| 46 | emergency rule, an agency is encouraged to prepare a statement |
| 47 | of estimated regulatory costs of the proposed rule, as provided |
| 48 | by s. 120.541. However, an agency must shall prepare a statement |
| 49 | of estimated regulatory costs of the proposed rule, as provided |
| 50 | by s. 120.541, if: |
| 51 | a. The proposed rule will have an adverse impact on small |
| 52 | business; or |
| 53 | b. The proposed rule is likely to directly or indirectly |
| 54 | increase regulatory costs in excess of $200,000 in the aggregate |
| 55 | in this state. |
| 56 | 2. Small businesses, small counties, and small cities.- |
| 57 | a. Each agency, before the adoption, amendment, or repeal |
| 58 | of a rule, shall consider the impact of the rule on small |
| 59 | businesses as defined by s. 288.703 and the impact of the rule |
| 60 | on small counties or small cities as defined by s. 120.52. |
| 61 | Whenever practicable, an agency shall tier its rules to reduce |
| 62 | disproportionate impacts on small businesses, small counties, or |
| 63 | small cities to avoid regulating small businesses, small |
| 64 | counties, or small cities that do not contribute significantly |
| 65 | to the problem the rule is designed to address. An agency may |
| 66 | define "small business" to include businesses employing more |
| 67 | than 200 persons, may define "small county" to include those |
| 68 | with populations of more than 75,000, and may define "small |
| 69 | city" to include those with populations of more than 10,000, if |
| 70 | it finds that such a definition is necessary to adapt a rule to |
| 71 | the needs and problems of small businesses, small counties, or |
| 72 | small cities. The agency shall consider each of the following |
| 73 | methods for reducing the impact of the proposed rule on small |
| 74 | businesses, small counties, and small cities, or any combination |
| 75 | of these entities: |
| 76 | (I) Establishing less stringent compliance or reporting |
| 77 | requirements in the rule. |
| 78 | (II) Establishing less stringent schedules or deadlines in |
| 79 | the rule for compliance or reporting requirements. |
| 80 | (III) Consolidating or simplifying the rule's compliance |
| 81 | or reporting requirements. |
| 82 | (IV) Establishing performance standards or best management |
| 83 | practices to replace design or operational standards in the |
| 84 | rule. |
| 85 | (V) Exempting small businesses, small counties, or small |
| 86 | cities from any or all requirements of the rule. |
| 87 | b.(I) If the agency determines that the proposed action |
| 88 | will affect small businesses as defined by the agency as |
| 89 | provided in sub-subparagraph a., the agency shall send written |
| 90 | notice of the rule to the Small Business Regulatory Advisory |
| 91 | Council and the Office of Tourism, Trade, and Economic |
| 92 | Development not less than 28 days prior to the intended action. |
| 93 | (II) Each agency shall adopt those regulatory alternatives |
| 94 | offered by the Small Business Regulatory Advisory Council and |
| 95 | provided to the agency no later than 21 days after the council's |
| 96 | receipt of the written notice of the rule which it finds are |
| 97 | feasible and consistent with the stated objectives of the |
| 98 | proposed rule and which would reduce the impact on small |
| 99 | businesses. When regulatory alternatives are offered by the |
| 100 | Small Business Regulatory Advisory Council, the 90-day period |
| 101 | for filing the rule in subparagraph (e)2. is extended for a |
| 102 | period of 21 days. |
| 103 | (III) If an agency does not adopt all alternatives offered |
| 104 | pursuant to this sub-subparagraph, it shall, prior to rule |
| 105 | adoption or amendment and pursuant to subparagraph (d)1., file a |
| 106 | detailed written statement with the committee explaining the |
| 107 | reasons for failure to adopt such alternatives. Within 3 working |
| 108 | days of the filing of such notice, the agency shall send a copy |
| 109 | of such notice to the Small Business Regulatory Advisory |
| 110 | Council. The Small Business Regulatory Advisory Council may make |
| 111 | a request of the President of the Senate and the Speaker of the |
| 112 | House of Representatives that the presiding officers direct the |
| 113 | Office of Program Policy Analysis and Government Accountability |
| 114 | to determine whether the rejected alternatives reduce the impact |
| 115 | on small business while meeting the stated objectives of the |
| 116 | proposed rule. Within 60 days after the date of the directive |
| 117 | from the presiding officers, the Office of Program Policy |
| 118 | Analysis and Government Accountability shall report to the |
| 119 | Administrative Procedures Committee its findings as to whether |
| 120 | an alternative reduces the impact on small business while |
| 121 | meeting the stated objectives of the proposed rule. The Office |
| 122 | of Program Policy Analysis and Government Accountability shall |
| 123 | consider the proposed rule, the economic impact statement, the |
| 124 | written statement of the agency, the proposed alternatives, and |
| 125 | any comment submitted during the comment period on the proposed |
| 126 | rule. The Office of Program Policy Analysis and Government |
| 127 | Accountability shall submit a report of its findings and |
| 128 | recommendations to the Governor, the President of the Senate, |
| 129 | and the Speaker of the House of Representatives. The |
| 130 | Administrative Procedures Committee shall report such findings |
| 131 | to the agency, and the agency shall respond in writing to the |
| 132 | Administrative Procedures Committee if the Office of Program |
| 133 | Policy Analysis and Government Accountability found that the |
| 134 | alternative reduced the impact on small business while meeting |
| 135 | the stated objectives of the proposed rule. If the agency will |
| 136 | not adopt the alternative, it must also provide a detailed |
| 137 | written statement to the committee as to why it will not adopt |
| 138 | the alternative. |
| 139 | (4) EMERGENCY RULES.- |
| 140 | (c) An emergency rule adopted under this subsection shall |
| 141 | not be effective for a period longer than 90 days and shall not |
| 142 | be renewable, except when the agency has initiated rulemaking to |
| 143 | adopt rules addressing the subject of the emergency rule and |
| 144 | either: during the pendency of |
| 145 | 1. A challenge to the proposed rules has been filed and |
| 146 | remains pending; or addressing the subject of the emergency rule |
| 147 | 2. The proposed rules are awaiting ratification by the |
| 148 | Legislature pursuant to s. 120.541(3). |
| 149 |
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| 150 | Nothing in this paragraph prohibits However, the agency from |
| 151 | adopting a rule or rules identical to the emergency rule through |
| 152 | may take identical action by the rulemaking procedures specified |
| 153 | in subsection (3) this chapter. |
| 154 | Section 2. Section 120.541, Florida Statutes, is amended |
| 155 | to read: |
| 156 | 120.541 Statement of estimated regulatory costs.- |
| 157 | (1)(a) A substantially affected person, Within 21 days |
| 158 | after publication of the notice required provided under s. |
| 159 | 120.54(3)(a), a substantially affected person may submit to an |
| 160 | agency a good faith written proposal for a lower cost regulatory |
| 161 | alternative to a proposed rule which substantially accomplishes |
| 162 | the objectives of the law being implemented. The proposal may |
| 163 | include the alternative of not adopting any rule if, so long as |
| 164 | the proposal explains how the lower costs and objectives of the |
| 165 | law will be achieved by not adopting any rule. If such a |
| 166 | proposal is submitted, the time period for filing the rule under |
| 167 | s. 120.54(3)(e)2. 90-day period for filing the rule is extended |
| 168 | 90 21 days. |
| 169 | (b) Upon the submission of the lower cost regulatory |
| 170 | alternative, the agency shall prepare a statement of estimated |
| 171 | regulatory costs as provided in subsection (2), or shall revise |
| 172 | its prior statement of estimated regulatory costs, and either |
| 173 | adopt the alternative or provide give a statement of the reasons |
| 174 | for rejecting the alternative in favor of the proposed rule. The |
| 175 | failure of the agency to prepare or revise the statement of |
| 176 | estimated regulatory costs as provided in this paragraph is a |
| 177 | material failure to follow the applicable rulemaking procedures |
| 178 | or requirements set forth in this chapter. An agency required to |
| 179 | prepare or revise a statement of estimated regulatory costs as |
| 180 | provided in this paragraph shall make it available to the person |
| 181 | who submits the lower cost regulatory alternative and to the |
| 182 | public prior to filing the rule for adoption. |
| 183 | (b) If a proposed rule will have an adverse impact on |
| 184 | small business or if the proposed rule is likely to directly or |
| 185 | indirectly increase regulatory costs in excess of $200,000 in |
| 186 | the aggregate, the agency shall prepare a statement of estimated |
| 187 | regulatory costs as required by s. 120.54(3)(b). |
| 188 | (c) The agency shall revise a statement of estimated |
| 189 | regulatory costs if any change to the rule made under s. |
| 190 | 120.54(3)(d) increases the regulatory costs of the rule. |
| 191 | (d) At least 45 days before filing the rule for adoption, |
| 192 | an agency that is required to revise a statement of estimated |
| 193 | regulatory costs shall provide the statement to the person who |
| 194 | submitted the lower cost regulatory alternative and to the |
| 195 | committee and shall provide notice on the agency's website that |
| 196 | it is available to the public. |
| 197 | (e) The failure of the agency to prepare or revise the |
| 198 | statement of estimated regulatory costs as provided in this |
| 199 | section is a material failure to follow the applicable |
| 200 | rulemaking procedures or requirements set forth in this chapter. |
| 201 | (f)(c) A rule that is challenged pursuant to s. |
| 202 | 120.52(8)(a) because of the failure to prepare or revise the No |
| 203 | rule shall be declared invalid because it imposes regulatory |
| 204 | costs on the regulated person, county, or city which could be |
| 205 | reduced by the adoption of less costly alternatives that |
| 206 | substantially accomplish the statutory objectives, and no rule |
| 207 | shall be declared invalid based upon a challenge to the agency's |
| 208 | statement of estimated regulatory costs may not be declared |
| 209 | invalid, unless: |
| 210 | 1. The issue is raised in an administrative proceeding |
| 211 | within 1 year after the effective date of the rule; and |
| 212 | 2. The agency's failure to prepare or revise the statement |
| 213 | of estimated regulatory costs materially affects the substantial |
| 214 | interests of the person challenging the agency. The substantial |
| 215 | interests of the person challenging the agency's rejection of, |
| 216 | or failure to consider, the lower cost regulatory alternative |
| 217 | are materially affected by the rejection; and |
| 218 | 3.a. The agency has failed to prepare or revise the |
| 219 | statement of estimated regulatory costs as required by paragraph |
| 220 | (b); or |
| 221 | b. The challenge is to the agency's rejection under |
| 222 | paragraph (b) of a lower cost regulatory alternative submitted |
| 223 | under paragraph (a). |
| 224 | (g) A rule that is challenged pursuant to s. 120.52(8)(f) |
| 225 | because the rule imposes regulatory costs on the regulated |
| 226 | person, county, or city which could be reduced by the adoption |
| 227 | of less costly alternatives that substantially accomplish the |
| 228 | statutory objectives may not be declared invalid unless: |
| 229 | 1. The issue is raised in an administrative proceeding |
| 230 | within 1 year after the effective date of the rule; |
| 231 | 2. The challenge is to the agency's rejection of a lower |
| 232 | cost regulatory alternative offered under paragraph (a) or s. |
| 233 | 120.54(3)(b)2.b.; and |
| 234 | 3. The substantial interests of the person challenging the |
| 235 | agency are materially affected by the rejection. |
| 236 | (2) A statement of estimated regulatory costs shall |
| 237 | include: |
| 238 | (a) An economic analysis showing whether the rule directly |
| 239 | or indirectly: |
| 240 | 1. Is likely to have an adverse impact on economic growth, |
| 241 | private-sector job creation or employment, or private-sector |
| 242 | investment in excess of $1 million in the aggregate; |
| 243 | 2. Is likely to have an adverse impact on business |
| 244 | competitiveness, including the ability of persons doing business |
| 245 | in the state to compete with persons doing business in other |
| 246 | states or domestic markets, productivity, or innovation in |
| 247 | excess of $1 million in the aggregate; or |
| 248 | 3. Is likely to increase regulatory costs, including any |
| 249 | transactional costs, in excess of $1 million in the aggregate. |
| 250 | (b) A good faith estimate of the number of individuals and |
| 251 | entities likely to be required to comply with the rule, together |
| 252 | with a general description of the types of individuals likely to |
| 253 | be affected by the rule. |
| 254 | (c)(b) A good faith estimate of the cost to the agency, |
| 255 | and to any other state and local government entities, of |
| 256 | implementing and enforcing the proposed rule, and any |
| 257 | anticipated effect on state or local revenues. |
| 258 | (d)(c) A good faith estimate of the transactional costs |
| 259 | likely to be incurred by individuals and entities, including |
| 260 | local government entities, required to comply with the |
| 261 | requirements of the rule. As used in this section paragraph, |
| 262 | "transactional costs" are direct costs that are readily |
| 263 | ascertainable based upon standard business practices, and |
| 264 | include filing fees, the cost of obtaining a license, the cost |
| 265 | of equipment required to be installed or used or procedures |
| 266 | required to be employed in complying with the rule, additional |
| 267 | operating costs incurred, and the cost of monitoring and |
| 268 | reporting, and any other costs necessary to comply with the |
| 269 | rule. |
| 270 | (e)(d) An analysis of the impact on small businesses as |
| 271 | defined by s. 288.703, and an analysis of the impact on small |
| 272 | counties and small cities as defined in by s. 120.52. The impact |
| 273 | analysis for small businesses must include the basis for the |
| 274 | agency's decision not to implement alternatives that would |
| 275 | reduce adverse impacts on small businesses. |
| 276 | (f)(e) Any additional information that the agency |
| 277 | determines may be useful. |
| 278 | (g)(f) In the statement or revised statement, whichever |
| 279 | applies, a description of any regulatory alternatives good faith |
| 280 | written proposal submitted under paragraph (1)(a) and either a |
| 281 | statement adopting the alternative or a statement of |
| 282 | for rejecting the alternative in favor of the |
| 283 | (3) If the adverse impact or regulatory costs of the rule |
| 284 | exceed any of the criteria established in paragraph (2)(a), the |
| 285 | rule shall be submitted to the President of the Senate and |
| 286 | Speaker of the House of Representatives no later than 30 days |
| 287 | prior to the next regular legislative session, and the rule may |
| 288 | not take effect until it is ratified by the Legislature. |
| 289 | (4) Paragraph (2)(a) does not apply to the adoption of |
| 290 | emergency rules pursuant to s. 120.54(4) or the adoption of |
| 291 | federal standards pursuant to s. 120.54(6). |
| 292 | Section 3. Paragraph (a) of subsection (2) and paragraph |
| 293 | (d) of subsection (4) of section 120.56, Florida Statutes, are |
| 294 | amended to read: |
| 295 | 120.56 Challenges to rules.- |
| 296 | (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.- |
| 297 | (a) A Any substantially affected person may seek an |
| 298 | administrative determination of the invalidity of a any proposed |
| 299 | rule by filing a petition seeking such a determination with the |
| 300 | division within 21 days after the date of publication of the |
| 301 | notice required by s. 120.54(3)(a);, within 10 days after the |
| 302 | final public hearing is held on the proposed rule as provided by |
| 303 | s. 120.54(3)(e)2.;, within 44 20 days after the statement of |
| 304 | estimated regulatory costs or revised statement of estimated |
| 305 | regulatory costs, if applicable, has been prepared and made |
| 306 | available as provided in s. 120.541(1)(d); required pursuant to |
| 307 | s. 120.541, if applicable, has been provided to all persons who |
| 308 | submitted a lower cost regulatory alternative and made available |
| 309 | to the public, or within 20 days after the date of publication |
| 310 | of the notice required by s. 120.54(3)(d). The petition must |
| 311 | shall state with particularity the objections to the proposed |
| 312 | rule and the reasons that the proposed rule is an invalid |
| 313 | exercise of delegated legislative authority. The petitioner has |
| 314 | the burden of going forward. The agency then has the burden to |
| 315 | prove by a preponderance of the evidence that the proposed rule |
| 316 | is not an invalid exercise of delegated legislative authority as |
| 317 | to the objections raised. A Any person who is substantially |
| 318 | affected by a change in the proposed rule may seek a |
| 319 | determination of the validity of such change. A Any person who |
| 320 | is not substantially affected by the proposed rule as initially |
| 321 | noticed, but who is substantially affected by the rule as a |
| 322 | result of a change, may challenge any provision of the rule and |
| 323 | is not limited to challenging the change to the proposed rule. |
| 324 | (4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; |
| 325 | SPECIAL PROVISIONS.- |
| 326 | (d) If an administrative law judge enters a final order |
| 327 | that all or part of an agency statement violates s. |
| 328 | 120.54(1)(a), the agency must shall immediately discontinue all |
| 329 | reliance upon the statement or any substantially similar |
| 330 | statement as a basis for agency action. This paragraph shall not |
| 331 | be construed to impair the obligation of contracts existing at |
| 332 | the time the final order is entered. |
| 333 | Section 4. Subsections (1) and (3) of section 120.60, |
| 334 | Florida Statutes, are amended to read: |
| 335 | 120.60 Licensing.- |
| 336 | (1) Upon receipt of an application for a license |
| 337 | application, an agency shall examine the application and, within |
| 338 | 30 days after such receipt, notify the applicant of any apparent |
| 339 | errors or omissions and request any additional information the |
| 340 | agency is permitted by law to require. An agency may shall not |
| 341 | deny a license for failure to correct an error or omission or to |
| 342 | supply additional information unless the agency timely notified |
| 343 | the applicant within this 30-day period. The agency may |
| 344 | establish by rule the time period for submitting any additional |
| 345 | information requested by the agency. For good cause shown, the |
| 346 | agency shall grant a request for an extension of time for |
| 347 | submitting the additional information. If the applicant believes |
| 348 | the agency's request for additional information is not |
| 349 | authorized by law or rule, the agency, at the applicant's |
| 350 | request, shall proceed to process the application. An |
| 351 | application is shall be considered complete upon receipt of all |
| 352 | requested information and correction of any error or omission |
| 353 | for which the applicant was timely notified or when the time for |
| 354 | such notification has expired. An Every application for a |
| 355 | license must shall be approved or denied within 90 days after |
| 356 | receipt of a completed application unless a shorter period of |
| 357 | time for agency action is provided by law. The 90-day time |
| 358 | period is shall be tolled by the initiation of a proceeding |
| 359 | under ss. 120.569 and 120.57. Any application for a license |
| 360 | which that is not approved or denied within the 90-day or |
| 361 | shorter time period, within 15 days after conclusion of a public |
| 362 | hearing held on the application, or within 45 days after a |
| 363 | recommended order is submitted to the agency and the parties, |
| 364 | whichever action and timeframe is latest and applicable, is |
| 365 | considered approved unless the recommended order recommends that |
| 366 | the agency deny the license. Subject to the satisfactory |
| 367 | completion of an examination if required as a prerequisite to |
| 368 | licensure, any license that is considered approved shall be |
| 369 | issued and may include such reasonable conditions as are |
| 370 | authorized by law. Any applicant for licensure seeking to claim |
| 371 | licensure by default under this subsection shall notify the |
| 372 | agency clerk of the licensing agency, in writing, of the intent |
| 373 | to rely upon the default license provision of this subsection, |
| 374 | and may shall not take any action based upon the default license |
| 375 | until after receipt of such notice by the agency clerk. |
| 376 | (3) Each applicant shall be given written notice, either |
| 377 | personally or by mail, that the agency intends to grant or deny, |
| 378 | or has granted or denied, the application for license. The |
| 379 | notice must state with particularity the grounds or basis for |
| 380 | the issuance or denial of the license, except when issuance is a |
| 381 | ministerial act. Unless waived, a copy of the notice shall be |
| 382 | delivered or mailed to each party's attorney of record and to |
| 383 | each person who has made a written request for requested notice |
| 384 | of agency action. Each notice must shall inform the recipient of |
| 385 | the basis for the agency decision, shall inform the recipient of |
| 386 | any administrative hearing pursuant to ss. 120.569 and 120.57 or |
| 387 | judicial review pursuant to s. 120.68 which may be available, |
| 388 | shall indicate the procedure that which must be followed, and |
| 389 | shall state the applicable time limits. The issuing agency shall |
| 390 | certify the date the notice was mailed or delivered, and the |
| 391 | notice and the certification must shall be filed with the agency |
| 392 | clerk. |
| 393 | Section 5. This act shall take effect upon becoming a law. |