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.; providing
10circumstances under which an agency shall prepare or
11revise a statement of estimated regulatory costs;
12providing notice requirements; providing that an agency's
13failure to prepare a statement of estimated regulatory
14costs or respond to a written lower cost regulatory
15alternative is a material failure to follow the applicable
16rulemaking procedures or requirements of the chapter;
17specifying circumstances under which certain challenges
18may not be raised; providing exceptions; specifying the
19requirements for an economic analysis on a proposed rule
20or rule changes; requiring that a rule impact analysis for
21small businesses include the agency's basis for not
22implementing alternatives to a proposed rule; providing
23circumstances under which a rule shall not take effect
24until ratified by the Legislature; providing that the act
25is not applicable to certain specified rules or standards;
26amending s. 120.56, F.S.; providing for revised statements
27of estimated regulatory costs as a basis for challenging a
28rule; amending s. 120.60, F.S.; authorizing an agency to
29provide by rule for the time period for submitting
30additional information needed for a license application;
31requiring that certain requests to receive notice relating
32to a license application be submitted in writing;
33providing an effective date.
34
35Be 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
39amended 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
44adoption, amendment, or repeal of any rule other than an
45emergency rule, an agency is encouraged to prepare a statement
46of estimated regulatory costs of the proposed rule, as provided
47by s. 120.541. However, an agency must shall prepare a statement
48of estimated regulatory costs of the proposed rule, as provided
49by s. 120.541, if:
50     a.  The proposed rule will have an adverse impact on small
51business; or
52     b.  The proposed rule is likely to directly or indirectly
53increase regulatory costs in excess of $200,000 in the aggregate
54in this state within 1 year after the implementation of the
55rule.
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 90-day period for filing the rule is
167extended 21 days.
168     (b)  Upon the submission of the lower cost regulatory
169alternative, the agency shall prepare a statement of estimated
170regulatory costs as provided in subsection (2), or shall revise
171its prior statement of estimated regulatory costs, and either
172adopt the alternative or provide give a statement of the reasons
173for rejecting the alternative in favor of the proposed rule. The
174failure of the agency to prepare or revise the statement of
175estimated regulatory costs as provided in this paragraph is a
176material failure to follow the applicable rulemaking procedures
177or requirements set forth in this chapter. An agency required to
178prepare or revise a statement of estimated regulatory costs as
179provided in this paragraph shall make it available to the person
180who submits the lower cost regulatory alternative and to the
181public prior to filing the rule for adoption.
182     (b)  If a proposed rule will have an adverse impact on
183small business or if the proposed rule is likely to directly or
184indirectly increase regulatory costs in excess of $200,000 in
185the aggregate within 1 year after the implementation of the
186rule, 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)  Notwithstanding s. 120.56(1)(c), the failure of the
198agency to prepare a statement of estimated regulatory costs or
199to respond to a written lower cost regulatory alternative as
200provided in this subsection is a material failure to follow the
201applicable rulemaking procedures or requirements set forth in
202this chapter.
203     (f)(c)  An agency's failure to prepare a statement of
204estimated regulatory costs or to respond to a written lower cost
205regulatory alternative may not be raised in a proceeding
206challenging the validity of a rule pursuant to s. 120.52(8)(a)
207No rule shall be declared invalid because it imposes regulatory
208costs on the regulated person, county, or city which could be
209reduced by the adoption of less costly alternatives that
210substantially accomplish the statutory objectives, and no rule
211shall be declared invalid based upon a challenge to the agency's
212statement of regulatory costs, unless:
213     1.  The issue is Raised in a petition filed no later than
214an administrative proceeding within 1 year after the effective
215date of the rule; and
216     2.  Raised by a person whose substantial interests are
217affected by the rule's regulatory costs. The substantial
218interests of the person challenging the agency's rejection of,
219or failure to consider, the lower cost regulatory alternative
220are materially affected by the rejection; and
221     3.a.  The agency has failed to prepare or revise the
222statement of estimated regulatory costs as required by paragraph
223(b); or
224     b.  The challenge is to the agency's rejection under
225paragraph (b) of a lower cost regulatory alternative submitted
226under paragraph (a).
227     (g)  A rule that is challenged pursuant to s. 120.52(8)(f)
228may 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
235rule 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 within 5
243years after the implementation of the rule;
244     2.  Is likely to have an adverse impact on business
245competitiveness, including the ability of persons doing business
246in the state to compete with persons doing business in other
247states or domestic markets, productivity, or innovation in
248excess of $1 million in the aggregate within 5 years after the
249implementation of the rule; or
250     3.  Is likely to increase regulatory costs, including any
251transactional costs, in excess of $1 million in the aggregate
252within 5 years after the implementation of the rule.
253     (b)  A good faith estimate of the number of individuals and
254entities likely to be required to comply with the rule, together
255with a general description of the types of individuals likely to
256be affected by the rule.
257     (c)(b)  A good faith estimate of the cost to the agency,
258and to any other state and local government entities, of
259implementing and enforcing the proposed rule, and any
260anticipated effect on state or local revenues.
261     (d)(c)  A good faith estimate of the transactional costs
262likely to be incurred by individuals and entities, including
263local government entities, required to comply with the
264requirements of the rule. As used in this section paragraph,
265"transactional costs" are direct costs that are readily
266ascertainable based upon standard business practices, and
267include filing fees, the cost of obtaining a license, the cost
268of equipment required to be installed or used or procedures
269required to be employed in complying with the rule, additional
270operating costs incurred, and the cost of monitoring and
271reporting, and any other costs necessary to comply with the
272rule.
273     (e)(d)  An analysis of the impact on small businesses as
274defined by s. 288.703, and an analysis of the impact on small
275counties and small cities as defined in by s. 120.52. The impact
276analysis for small businesses must include the basis for the
277agency's decision not to implement alternatives that would
278reduce adverse impacts on small businesses.
279     (f)(e)  Any additional information that the agency
280determines may be useful.
281     (g)(f)  In the statement or revised statement, whichever
282applies, a description of any regulatory alternatives good faith
283written proposal submitted under paragraph (1)(a) and either a
284statement adopting the alternative or a statement of the reasons
285for rejecting the alternative in favor of the proposed rule.
286     (3)  If the adverse impact or regulatory costs of the rule
287exceed any of the criteria established in paragraph (2)(a), the
288rule shall be submitted to the President of the Senate and
289Speaker of the House of Representatives no later than 30 days
290prior to the next regular legislative session, and the rule may
291not take effect until it is ratified by the Legislature.
292     (4)  Paragraph (2)(a) does not apply to the adoption of
293emergency rules pursuant to s. 120.54(4) or the adoption of
294federal standards pursuant to s. 120.54(6).
295     Section 3.  Paragraph (a) of subsection (2) and paragraph
296(d) of subsection (4) of section 120.56, Florida Statutes, are
297amended to read:
298     120.56  Challenges to rules.-
299     (2)  CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.-
300     (a)  A Any substantially affected person may seek an
301administrative determination of the invalidity of a any proposed
302rule by filing a petition seeking such a determination with the
303division within 21 days after the date of publication of the
304notice required by s. 120.54(3)(a);, within 10 days after the
305final public hearing is held on the proposed rule as provided by
306s. 120.54(3)(e)2.;, within 44 20 days after the statement of
307estimated regulatory costs or revised statement of estimated
308regulatory costs, if applicable, has been prepared and made
309available as provided in s. 120.541(1)(d); required pursuant to
310s. 120.541, if applicable, has been provided to all persons who
311submitted a lower cost regulatory alternative and made available
312to the public, or within 20 days after the date of publication
313of the notice required by s. 120.54(3)(d). The petition must
314shall state with particularity the objections to the proposed
315rule and the reasons that the proposed rule is an invalid
316exercise of delegated legislative authority. The petitioner has
317the burden of going forward. The agency then has the burden to
318prove by a preponderance of the evidence that the proposed rule
319is not an invalid exercise of delegated legislative authority as
320to the objections raised. A Any person who is substantially
321affected by a change in the proposed rule may seek a
322determination of the validity of such change. A Any person who
323is not substantially affected by the proposed rule as initially
324noticed, but who is substantially affected by the rule as a
325result of a change, may challenge any provision of the rule and
326is not limited to challenging the change to the proposed rule.
327     (4)  CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;
328SPECIAL PROVISIONS.-
329     (d)  If an administrative law judge enters a final order
330that all or part of an agency statement violates s.
331120.54(1)(a), the agency must shall immediately discontinue all
332reliance upon the statement or any substantially similar
333statement as a basis for agency action. This paragraph shall not
334be construed to impair the obligation of contracts existing at
335the time the final order is entered.
336     Section 4.  Subsections (1) and (3) of section 120.60,
337Florida Statutes, are amended to read:
338     120.60  Licensing.-
339     (1)  Upon receipt of an application for a license
340application, an agency shall examine the application and, within
34130 days after such receipt, notify the applicant of any apparent
342errors or omissions and request any additional information the
343agency is permitted by law to require. An agency may shall not
344deny a license for failure to correct an error or omission or to
345supply additional information unless the agency timely notified
346the applicant within this 30-day period. The agency may
347establish by rule the time period for submitting any additional
348information requested by the agency. For good cause shown, the
349agency shall grant a request for an extension of time for
350submitting the additional information. If the applicant believes
351the agency's request for additional information is not
352authorized by law or rule, the agency, at the applicant's
353request, shall proceed to process the application. An
354application is shall be considered complete upon receipt of all
355requested information and correction of any error or omission
356for which the applicant was timely notified or when the time for
357such notification has expired. An Every application for a
358license must shall be approved or denied within 90 days after
359receipt of a completed application unless a shorter period of
360time for agency action is provided by law. The 90-day time
361period is shall be tolled by the initiation of a proceeding
362under ss. 120.569 and 120.57. Any application for a license
363which that is not approved or denied within the 90-day or
364shorter time period, within 15 days after conclusion of a public
365hearing held on the application, or within 45 days after a
366recommended order is submitted to the agency and the parties,
367whichever action and timeframe is latest and applicable, is
368considered approved unless the recommended order recommends that
369the agency deny the license. Subject to the satisfactory
370completion of an examination if required as a prerequisite to
371licensure, any license that is considered approved shall be
372issued and may include such reasonable conditions as are
373authorized by law. Any applicant for licensure seeking to claim
374licensure by default under this subsection shall notify the
375agency clerk of the licensing agency, in writing, of the intent
376to rely upon the default license provision of this subsection,
377and may shall not take any action based upon the default license
378until after receipt of such notice by the agency clerk.
379     (3)  Each applicant shall be given written notice, either
380personally or by mail, that the agency intends to grant or deny,
381or has granted or denied, the application for license. The
382notice must state with particularity the grounds or basis for
383the issuance or denial of the license, except when issuance is a
384ministerial act. Unless waived, a copy of the notice shall be
385delivered or mailed to each party's attorney of record and to
386each person who has made a written request for requested notice
387of agency action. Each notice must shall inform the recipient of
388the basis for the agency decision, shall inform the recipient of
389any administrative hearing pursuant to ss. 120.569 and 120.57 or
390judicial review pursuant to s. 120.68 which may be available,
391shall indicate the procedure that which must be followed, and
392shall state the applicable time limits. The issuing agency shall
393certify the date the notice was mailed or delivered, and the
394notice and the certification must shall be filed with the agency
395clerk.
396     Section 5.  This act shall take effect upon becoming a law.


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