CS/CS/HB 1565

1
A bill to be entitled
2An act relating to rulemaking; amending s. 120.54, F.S.;
3requiring each agency, before adopting, amending, or
4repealing certain rules, to prepare a statement of
5estimated regulatory costs of the proposed rule if the
6proposed rule has adverse impacts on small business or
7increases regulatory costs; providing an exception to
8circumstances under which an emergency rule shall not be
9effective; amending s. 120.541, F.S.; extending the time
10period for filing a rule when a substantially affected
11person submits a proposal for a lower cost regulatory
12alternative; providing circumstances under which an agency
13shall prepare or revise a statement of estimated
14regulatory costs; providing notice requirements; providing
15that an agency's failure to prepare or revise the
16statement of estimated regulatory costs is a material
17failure to follow the applicable rulemaking procedures or
18requirements of the chapter; specifying conditions under
19which a challenged rule may not be declared invalid;
20specifying the requirements for an economic analysis on a
21proposed rule or rule changes; requiring that a rule
22impact analysis for small businesses include the agency's
23basis for not implementing alternatives to a proposed
24rule; providing circumstances under which a rule shall not
25take effect until ratified by the Legislature; providing
26that the act is not applicable to certain specified rules
27or standards; amending s. 120.56, F.S.; providing for
28revised statements of estimated regulatory costs as a
29basis for challenging a rule; amending s. 120.60, F.S.;
30authorizing an agency to provide by rule for the time
31period for submitting additional information needed for a
32license application; requiring that certain requests to
33receive notice relating to a license application be
34submitted in writing; providing an effective date.
35
36Be 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
40amended 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
45adoption, amendment, or repeal of any rule other than an
46emergency rule, an agency is encouraged to prepare a statement
47of estimated regulatory costs of the proposed rule, as provided
48by s. 120.541. However, an agency must shall prepare a statement
49of estimated regulatory costs of the proposed rule, as provided
50by s. 120.541, if:
51     a.  The proposed rule will have an adverse impact on small
52business; or
53     b.  The proposed rule is likely to directly or indirectly
54increase regulatory costs in excess of $200,000 in the aggregate
55in this state.
56     2.  Small businesses, small counties, and small cities.-
57     a.  Each agency, before the adoption, amendment, or repeal
58of a rule, shall consider the impact of the rule on small
59businesses as defined by s. 288.703 and the impact of the rule
60on small counties or small cities as defined by s. 120.52.
61Whenever practicable, an agency shall tier its rules to reduce
62disproportionate impacts on small businesses, small counties, or
63small cities to avoid regulating small businesses, small
64counties, or small cities that do not contribute significantly
65to the problem the rule is designed to address. An agency may
66define "small business" to include businesses employing more
67than 200 persons, may define "small county" to include those
68with populations of more than 75,000, and may define "small
69city" to include those with populations of more than 10,000, if
70it finds that such a definition is necessary to adapt a rule to
71the needs and problems of small businesses, small counties, or
72small cities. The agency shall consider each of the following
73methods for reducing the impact of the proposed rule on small
74businesses, small counties, and small cities, or any combination
75of these entities:
76     (I)  Establishing less stringent compliance or reporting
77requirements in the rule.
78     (II)  Establishing less stringent schedules or deadlines in
79the rule for compliance or reporting requirements.
80     (III)  Consolidating or simplifying the rule's compliance
81or reporting requirements.
82     (IV)  Establishing performance standards or best management
83practices to replace design or operational standards in the
84rule.
85     (V)  Exempting small businesses, small counties, or small
86cities from any or all requirements of the rule.
87     b.(I)  If the agency determines that the proposed action
88will affect small businesses as defined by the agency as
89provided in sub-subparagraph a., the agency shall send written
90notice of the rule to the Small Business Regulatory Advisory
91Council and the Office of Tourism, Trade, and Economic
92Development not less than 28 days prior to the intended action.
93     (II)  Each agency shall adopt those regulatory alternatives
94offered by the Small Business Regulatory Advisory Council and
95provided to the agency no later than 21 days after the council's
96receipt of the written notice of the rule which it finds are
97feasible and consistent with the stated objectives of the
98proposed rule and which would reduce the impact on small
99businesses. When regulatory alternatives are offered by the
100Small Business Regulatory Advisory Council, the 90-day period
101for filing the rule in subparagraph (e)2. is extended for a
102period of 21 days.
103     (III)  If an agency does not adopt all alternatives offered
104pursuant to this sub-subparagraph, it shall, prior to rule
105adoption or amendment and pursuant to subparagraph (d)1., file a
106detailed written statement with the committee explaining the
107reasons for failure to adopt such alternatives. Within 3 working
108days of the filing of such notice, the agency shall send a copy
109of such notice to the Small Business Regulatory Advisory
110Council. The Small Business Regulatory Advisory Council may make
111a request of the President of the Senate and the Speaker of the
112House of Representatives that the presiding officers direct the
113Office of Program Policy Analysis and Government Accountability
114to determine whether the rejected alternatives reduce the impact
115on small business while meeting the stated objectives of the
116proposed rule. Within 60 days after the date of the directive
117from the presiding officers, the Office of Program Policy
118Analysis and Government Accountability shall report to the
119Administrative Procedures Committee its findings as to whether
120an alternative reduces the impact on small business while
121meeting the stated objectives of the proposed rule. The Office
122of Program Policy Analysis and Government Accountability shall
123consider the proposed rule, the economic impact statement, the
124written statement of the agency, the proposed alternatives, and
125any comment submitted during the comment period on the proposed
126rule. The Office of Program Policy Analysis and Government
127Accountability shall submit a report of its findings and
128recommendations to the Governor, the President of the Senate,
129and the Speaker of the House of Representatives. The
130Administrative Procedures Committee shall report such findings
131to the agency, and the agency shall respond in writing to the
132Administrative Procedures Committee if the Office of Program
133Policy Analysis and Government Accountability found that the
134alternative reduced the impact on small business while meeting
135the stated objectives of the proposed rule. If the agency will
136not adopt the alternative, it must also provide a detailed
137written statement to the committee as to why it will not adopt
138the alternative.
139     (4)  EMERGENCY RULES.-
140     (c)  An emergency rule adopted under this subsection shall
141not be effective for a period longer than 90 days and shall not
142be renewable, except when the agency has initiated rulemaking to
143adopt rules addressing the subject of the emergency rule and
144either: during the pendency of
145     1.  A challenge to the proposed rules has been filed and
146remains pending; or addressing the subject of the emergency rule
147     2.  The proposed rules are awaiting ratification by the
148Legislature pursuant to s. 120.541(3).
149
150Nothing in this paragraph prohibits However, the agency from
151adopting a rule or rules identical to the emergency rule through
152may take identical action by the rulemaking procedures specified
153in subsection (3) this chapter.
154     Section 2.  Section 120.541, Florida Statutes, is amended
155to read:
156     120.541  Statement of estimated regulatory costs.-
157     (1)(a)  A substantially affected person, Within 21 days
158after publication of the notice required provided under s.
159120.54(3)(a), a substantially affected person may submit to an
160agency a good faith written proposal for a lower cost regulatory
161alternative to a proposed rule which substantially accomplishes
162the objectives of the law being implemented. The proposal may
163include the alternative of not adopting any rule if, so long as
164the proposal explains how the lower costs and objectives of the
165law will be achieved by not adopting any rule. If such a
166proposal is submitted, the time period for filing the rule under
167s. 120.54(3)(e)2. 90-day period for filing the rule is extended
16890 21 days.
169     (b)  Upon the submission of the lower cost regulatory
170alternative, the agency shall prepare a statement of estimated
171regulatory costs as provided in subsection (2), or shall revise
172its prior statement of estimated regulatory costs, and either
173adopt the alternative or provide give a statement of the reasons
174for rejecting the alternative in favor of the proposed rule. The
175failure of the agency to prepare or revise the statement of
176estimated regulatory costs as provided in this paragraph is a
177material failure to follow the applicable rulemaking procedures
178or requirements set forth in this chapter. An agency required to
179prepare or revise a statement of estimated regulatory costs as
180provided in this paragraph shall make it available to the person
181who submits the lower cost regulatory alternative and to the
182public prior to filing the rule for adoption.
183     (b)  If a proposed rule will have an adverse impact on
184small business or if the proposed rule is likely to directly or
185indirectly increase regulatory costs in excess of $200,000 in
186the aggregate, the agency shall prepare a statement of estimated
187regulatory costs as required by s. 120.54(3)(b).
188     (c)  The agency shall revise a statement of estimated
189regulatory costs if any change to the rule made under s.
190120.54(3)(d) increases the regulatory costs of the rule.
191     (d)  At least 45 days before filing the rule for adoption,
192an agency that is required to revise a statement of estimated
193regulatory costs shall provide the statement to the person who
194submitted the lower cost regulatory alternative and to the
195committee and shall provide notice on the agency's website that
196it is available to the public.
197     (e)  The failure of the agency to prepare or revise the
198statement of estimated regulatory costs as provided in this
199section is a material failure to follow the applicable
200rulemaking procedures or requirements set forth in this chapter.
201     (f)(c)  A rule that is challenged pursuant to s.
202120.52(8)(a) because of the failure to prepare or revise the No
203rule shall be declared invalid because it imposes regulatory
204costs on the regulated person, county, or city which could be
205reduced by the adoption of less costly alternatives that
206substantially accomplish the statutory objectives, and no rule
207shall be declared invalid based upon a challenge to the agency's
208statement of estimated regulatory costs may not be declared
209invalid, unless:
210     1.  The issue is raised in an administrative proceeding
211within 1 year after the effective date of the rule; and
212     2.  The agency's failure to prepare or revise the statement
213of estimated regulatory costs materially affects the substantial
214interests of the person challenging the agency. The substantial
215interests of the person challenging the agency's rejection of,
216or failure to consider, the lower cost regulatory alternative
217are materially affected by the rejection; and
218     3.a.  The agency has failed to prepare or revise the
219statement of estimated regulatory costs as required by paragraph
220(b); or
221     b.  The challenge is to the agency's rejection under
222paragraph (b) of a lower cost regulatory alternative submitted
223under paragraph (a).
224     (g)  A rule that is challenged pursuant to s. 120.52(8)(f)
225because the rule imposes regulatory costs on the regulated
226person, county, or city which could be reduced by the adoption
227of less costly alternatives that substantially accomplish the
228statutory objectives may not be declared invalid unless:
229     1.  The issue is raised in an administrative proceeding
230within 1 year after the effective date of the rule;
231     2.  The challenge is to the agency's rejection of a lower
232cost regulatory alternative offered under paragraph (a) or s.
233120.54(3)(b)2.b.; and
234     3.  The substantial interests of the person challenging the
235agency are materially affected by the rejection.
236     (2)  A statement of estimated regulatory costs shall
237include:
238     (a)  An economic analysis showing whether the rule directly
239or indirectly:
240     1.  Is likely to have an adverse impact on economic growth,
241private-sector job creation or employment, or private-sector
242investment in excess of $1 million in the aggregate;
243     2.  Is likely to have an adverse impact on business
244competitiveness, including the ability of persons doing business
245in the state to compete with persons doing business in other
246states or domestic markets, productivity, or innovation in
247excess of $1 million in the aggregate; or
248     3.  Is likely to increase regulatory costs, including any
249transactional costs, in excess of $1 million in the aggregate.
250     (b)  A good faith estimate of the number of individuals and
251entities likely to be required to comply with the rule, together
252with a general description of the types of individuals likely to
253be affected by the rule.
254     (c)(b)  A good faith estimate of the cost to the agency,
255and to any other state and local government entities, of
256implementing and enforcing the proposed rule, and any
257anticipated effect on state or local revenues.
258     (d)(c)  A good faith estimate of the transactional costs
259likely to be incurred by individuals and entities, including
260local government entities, required to comply with the
261requirements of the rule. As used in this section paragraph,
262"transactional costs" are direct costs that are readily
263ascertainable based upon standard business practices, and
264include filing fees, the cost of obtaining a license, the cost
265of equipment required to be installed or used or procedures
266required to be employed in complying with the rule, additional
267operating costs incurred, and the cost of monitoring and
268reporting, and any other costs necessary to comply with the
269rule.
270     (e)(d)  An analysis of the impact on small businesses as
271defined by s. 288.703, and an analysis of the impact on small
272counties and small cities as defined in by s. 120.52. The impact
273analysis for small businesses must include the basis for the
274agency's decision not to implement alternatives that would
275reduce adverse impacts on small businesses.
276     (f)(e)  Any additional information that the agency
277determines may be useful.
278     (g)(f)  In the statement or revised statement, whichever
279applies, a description of any regulatory alternatives good faith
280written proposal submitted under paragraph (1)(a) and either a
281statement adopting the alternative or a statement of
282for rejecting the alternative in favor of the
283     (3)  If the adverse impact or regulatory costs of the rule
284exceed any of the criteria established in paragraph (2)(a), the
285rule shall be submitted to the President of the Senate and
286Speaker of the House of Representatives no later than 30 days
287prior to the next regular legislative session, and the rule may
288not take effect until it is ratified by the Legislature.
289     (4)  Paragraph (2)(a) does not apply to the adoption of
290emergency rules pursuant to s. 120.54(4) or the adoption of
291federal 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
294amended 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
298administrative determination of the invalidity of a any proposed
299rule by filing a petition seeking such a determination with the
300division within 21 days after the date of publication of the
301notice required by s. 120.54(3)(a);, within 10 days after the
302final public hearing is held on the proposed rule as provided by
303s. 120.54(3)(e)2.;, within 44 20 days after the statement of
304estimated regulatory costs or revised statement of estimated
305regulatory costs, if applicable, has been prepared and made
306available as provided in s. 120.541(1)(d); required pursuant to
307s. 120.541, if applicable, has been provided to all persons who
308submitted a lower cost regulatory alternative and made available
309to the public, or within 20 days after the date of publication
310of the notice required by s. 120.54(3)(d). The petition must
311shall state with particularity the objections to the proposed
312rule and the reasons that the proposed rule is an invalid
313exercise of delegated legislative authority. The petitioner has
314the burden of going forward. The agency then has the burden to
315prove by a preponderance of the evidence that the proposed rule
316is not an invalid exercise of delegated legislative authority as
317to the objections raised. A Any person who is substantially
318affected by a change in the proposed rule may seek a
319determination of the validity of such change. A Any person who
320is not substantially affected by the proposed rule as initially
321noticed, but who is substantially affected by the rule as a
322result of a change, may challenge any provision of the rule and
323is not limited to challenging the change to the proposed rule.
324     (4)  CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;
325SPECIAL PROVISIONS.-
326     (d)  If an administrative law judge enters a final order
327that all or part of an agency statement violates s.
328120.54(1)(a), the agency must shall immediately discontinue all
329reliance upon the statement or any substantially similar
330statement as a basis for agency action. This paragraph shall not
331be construed to impair the obligation of contracts existing at
332the time the final order is entered.
333     Section 4.  Subsections (1) and (3) of section 120.60,
334Florida Statutes, are amended to read:
335     120.60  Licensing.-
336     (1)  Upon receipt of an application for a license
337application, an agency shall examine the application and, within
33830 days after such receipt, notify the applicant of any apparent
339errors or omissions and request any additional information the
340agency is permitted by law to require. An agency may shall not
341deny a license for failure to correct an error or omission or to
342supply additional information unless the agency timely notified
343the applicant within this 30-day period. The agency may
344establish by rule the time period for submitting any additional
345information requested by the agency. For good cause shown, the
346agency shall grant a request for an extension of time for
347submitting the additional information. If the applicant believes
348the agency's request for additional information is not
349authorized by law or rule, the agency, at the applicant's
350request, shall proceed to process the application. An
351application is shall be considered complete upon receipt of all
352requested information and correction of any error or omission
353for which the applicant was timely notified or when the time for
354such notification has expired. An Every application for a
355license must shall be approved or denied within 90 days after
356receipt of a completed application unless a shorter period of
357time for agency action is provided by law. The 90-day time
358period is shall be tolled by the initiation of a proceeding
359under ss. 120.569 and 120.57. Any application for a license
360which that is not approved or denied within the 90-day or
361shorter time period, within 15 days after conclusion of a public
362hearing held on the application, or within 45 days after a
363recommended order is submitted to the agency and the parties,
364whichever action and timeframe is latest and applicable, is
365considered approved unless the recommended order recommends that
366the agency deny the license. Subject to the satisfactory
367completion of an examination if required as a prerequisite to
368licensure, any license that is considered approved shall be
369issued and may include such reasonable conditions as are
370authorized by law. Any applicant for licensure seeking to claim
371licensure by default under this subsection shall notify the
372agency clerk of the licensing agency, in writing, of the intent
373to rely upon the default license provision of this subsection,
374and may shall not take any action based upon the default license
375until after receipt of such notice by the agency clerk.
376     (3)  Each applicant shall be given written notice, either
377personally or by mail, that the agency intends to grant or deny,
378or has granted or denied, the application for license. The
379notice must state with particularity the grounds or basis for
380the issuance or denial of the license, except when issuance is a
381ministerial act. Unless waived, a copy of the notice shall be
382delivered or mailed to each party's attorney of record and to
383each person who has made a written request for requested notice
384of agency action. Each notice must shall inform the recipient of
385the basis for the agency decision, shall inform the recipient of
386any administrative hearing pursuant to ss. 120.569 and 120.57 or
387judicial review pursuant to s. 120.68 which may be available,
388shall indicate the procedure that which must be followed, and
389shall state the applicable time limits. The issuing agency shall
390certify the date the notice was mailed or delivered, and the
391notice and the certification must shall be filed with the agency
392clerk.
393     Section 5.  This act shall take effect upon becoming a law.


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