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

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