Florida Senate - 2011 COMMITTEE AMENDMENT
Bill No. CS for SB 1382
Barcode 746888
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
04/26/2011 .
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The Committee on Budget (Richter) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Paragraphs (a), (d), and (e) of subsection (3)
6 of section 120.54, Florida Statutes, as amended by chapter 2010
7 279, Laws of Florida, are amended to read:
8 120.54 Rulemaking.—
9 (3) ADOPTION PROCEDURES.—
10 (a) Notices.—
11 1. Prior to the adoption, amendment, or repeal of any rule
12 other than an emergency rule, an agency, upon approval of the
13 agency head, shall give notice of its intended action, setting
14 forth a short, plain explanation of the purpose and effect of
15 the proposed action; the full text of the proposed rule or
16 amendment and a summary thereof; a reference to the grant of
17 rulemaking authority pursuant to which the rule is adopted; and
18 a reference to the section or subsection of the Florida Statutes
19 or the Laws of Florida being implemented or interpreted. The
20 notice must include a summary of the agency’s statement of the
21 estimated regulatory costs, if one has been prepared, based on
22 the factors set forth in s. 120.541(2);, and a statement that
23 any person who wishes to provide the agency with information
24 regarding the statement of estimated regulatory costs, or to
25 provide a proposal for a lower cost regulatory alternative as
26 provided by s. 120.541(1), must do so in writing within 21 days
27 after publication of the notice; and a statement as to whether,
28 based on the statement of the estimated regulatory costs, or
29 other information expressly relied upon and described by the
30 agency if no statement of regulatory costs is required, the
31 proposed rule is expected to require legislative ratification
32 pursuant to s. 120.541(3). The notice must state the procedure
33 for requesting a public hearing on the proposed rule. Except
34 when the intended action is the repeal of a rule, the notice
35 must include a reference both to the date on which and to the
36 place where the notice of rule development that is required by
37 subsection (2) appeared.
38 2. The notice shall be published in the Florida
39 Administrative Weekly not less than 28 days prior to the
40 intended action. The proposed rule shall be available for
41 inspection and copying by the public at the time of the
42 publication of notice.
43 3. The notice shall be mailed to all persons named in the
44 proposed rule and to all persons who, at least 14 days prior to
45 such mailing, have made requests of the agency for advance
46 notice of its proceedings. The agency shall also give such
47 notice as is prescribed by rule to those particular classes of
48 persons to whom the intended action is directed.
49 4. The adopting agency shall file with the committee, at
50 least 21 days prior to the proposed adoption date, a copy of
51 each rule it proposes to adopt; a copy of any material
52 incorporated by reference in the rule; a detailed written
53 statement of the facts and circumstances justifying the proposed
54 rule; a copy of any statement of estimated regulatory costs that
55 has been prepared pursuant to s. 120.541; a statement of the
56 extent to which the proposed rule relates to federal standards
57 or rules on the same subject; and the notice required by
58 subparagraph 1.
59 (d) Modification or withdrawal of proposed rules.—
60 1. After the final public hearing on the proposed rule, or
61 after the time for requesting a hearing has expired, if the rule
62 has not been changed from the rule as previously filed with the
63 committee, or contains only technical changes, the adopting
64 agency shall file a notice to that effect with the committee at
65 least 7 days prior to filing the rule for adoption. Any change,
66 other than a technical change that does not affect the substance
67 of the rule, must be supported by the record of public hearings
68 held on the rule, must be in response to written material
69 submitted to the agency within 21 days after the date of
70 publication of the notice of intended agency action or submitted
71 to the agency between the date of publication of the notice and
72 the end of the final public hearing, or must be in response to a
73 proposed objection by the committee. In addition, when any
74 change is made in a proposed rule, other than a technical
75 change, the adopting agency shall provide a copy of a notice of
76 change by certified mail or actual delivery to any person who
77 requests it in writing no later than 21 days after the notice
78 required in paragraph (a). The agency shall file the notice of
79 change with the committee, along with the reasons for the
80 change, and provide the notice of change to persons requesting
81 it, at least 21 days prior to filing the rule for adoption. The
82 notice of change shall be published in the Florida
83 Administrative Weekly at least 21 days prior to filing the rule
84 for adoption. This subparagraph does not apply to emergency
85 rules adopted pursuant to subsection (4).
86 2. After the notice required by paragraph (a) and prior to
87 adoption, the agency may withdraw the rule in whole or in part.
88 3. After adoption and before the rule becomes effective
89 date, a rule may be modified or withdrawn only in the following
90 circumstances: response to an objection by the committee or may
91 be modified to extend the effective date by not more than 60
92 days.
93 a. When the committee objects to the rule;
94 b. When a final order, which is not subject to further
95 appeal, is entered in a rule challenge brought pursuant to s.
96 120.56 after the date of adoption but before the rule becomes
97 effective pursuant to subparagraph (e)6.;
98 c. If the rule requires ratification, when more than 90
99 days have passed since the rule was filed for adoption without
100 the Legislature ratifying the rule, in which case the rule may
101 be withdrawn but may not be modified; or
102 d. When the committee notifies has notified the agency that
103 an objection to the rule is being considered, in which case the
104 rule may be modified to extend the effective date by not more
105 than 60 days.
106 4. The agency shall give notice of its decision to withdraw
107 or modify a rule in the first available issue of the publication
108 in which the original notice of rulemaking was published, shall
109 notify those persons described in subparagraph (a)3. in
110 accordance with the requirements of that subparagraph, and shall
111 notify the Department of State if the rule is required to be
112 filed with the Department of State.
113 5. After a rule has become effective, it may be repealed or
114 amended only through the rulemaking procedures specified in this
115 chapter.
116 (e) Filing for final adoption; effective date.—
117 1. If the adopting agency is required to publish its rules
118 in the Florida Administrative Code, the agency, upon approval of
119 the agency head, shall file with the Department of State three
120 certified copies of the rule it proposes to adopt; one copy of
121 any material incorporated by reference in the rule, certified by
122 the agency; a summary of the rule; a summary of any hearings
123 held on the rule; and a detailed written statement of the facts
124 and circumstances justifying the rule. Agencies not required to
125 publish their rules in the Florida Administrative Code shall
126 file one certified copy of the proposed rule, and the other
127 material required by this subparagraph, in the office of the
128 agency head, and such rules shall be open to the public.
129 2. A rule may not be filed for adoption less than 28 days
130 or more than 90 days after the notice required by paragraph (a),
131 until 21 days after the notice of change required by paragraph
132 (d), until 14 days after the final public hearing, until 21 days
133 after a statement of estimated regulatory costs required under
134 s. 120.541 has been provided to all persons who submitted a
135 lower cost regulatory alternative and made available to the
136 public, or until the administrative law judge has rendered a
137 decision under s. 120.56(2), whichever applies. When a required
138 notice of change is published prior to the expiration of the
139 time to file the rule for adoption, the period during which a
140 rule must be filed for adoption is extended to 45 days after the
141 date of publication. If notice of a public hearing is published
142 prior to the expiration of the time to file the rule for
143 adoption, the period during which a rule must be filed for
144 adoption is extended to 45 days after adjournment of the final
145 hearing on the rule, 21 days after receipt of all material
146 authorized to be submitted at the hearing, or 21 days after
147 receipt of the transcript, if one is made, whichever is latest.
148 The term “public hearing” includes any public meeting held by
149 any agency at which the rule is considered. If a petition for an
150 administrative determination under s. 120.56(2) is filed, the
151 period during which a rule must be filed for adoption is
152 extended to 60 days after the administrative law judge files the
153 final order with the clerk or until 60 days after subsequent
154 judicial review is complete.
155 3. At the time a rule is filed, the agency shall certify
156 that the time limitations prescribed by this paragraph have been
157 complied with, that all statutory rulemaking requirements have
158 been met, and that there is no administrative determination
159 pending on the rule.
160 4. At the time a rule is filed, the committee shall certify
161 whether the agency has responded in writing to all material and
162 timely written comments or written inquiries made on behalf of
163 the committee. The department shall reject any rule that is not
164 filed within the prescribed time limits; that does not comply
165 with all statutory rulemaking requirements and rules of the
166 department; upon which an agency has not responded in writing to
167 all material and timely written inquiries or written comments;
168 upon which an administrative determination is pending; or which
169 does not include a statement of estimated regulatory costs, if
170 required.
171 5. If a rule has not been adopted within the time limits
172 imposed by this paragraph or has not been adopted in compliance
173 with all statutory rulemaking requirements, the agency proposing
174 the rule shall withdraw the rule and give notice of its action
175 in the next available issue of the Florida Administrative
176 Weekly.
177 6. The proposed rule shall be adopted on being filed with
178 the Department of State and become effective 20 days after being
179 filed, on a later date specified in the notice required by
180 subparagraph (a)1., or on a date required by statute, or upon
181 ratification by the Legislature pursuant to s. 120.541(3). Rules
182 not required to be filed with the Department of State shall
183 become effective when adopted by the agency head, or on a later
184 date specified by rule or statute, or upon ratification by the
185 Legislature pursuant to s. 120.541(3). If the committee notifies
186 an agency that an objection to a rule is being considered, the
187 agency may postpone the adoption of the rule to accommodate
188 review of the rule by the committee. When an agency postpones
189 adoption of a rule to accommodate review by the committee, the
190 90-day period for filing the rule is tolled until the committee
191 notifies the agency that it has completed its review of the
192 rule.
193
194 For the purposes of this paragraph, the term “administrative
195 determination” does not include subsequent judicial review.
196 Section 2. Paragraph (d) of subsection (1) and subsection
197 (4) of section 120.541, Florida Statutes, as amended by chapter
198 2010-279, Laws of Florida, are amended to read:
199 120.541 Statement of estimated regulatory costs.—
200 (1)
201 (d) At least 21 45 days before filing the rule for
202 adoption, an agency that is required to revise a statement of
203 estimated regulatory costs shall provide the statement to the
204 person who submitted the lower cost regulatory alternative and
205 to the committee and shall provide notice on the agency’s
206 website that it is available to the public.
207 (4) This section Paragraph (2)(a) does not apply to the
208 adoption of emergency rules pursuant to s. 120.54(4) or the
209 adoption of federal standards pursuant to s. 120.54(6).
210 Section 3. Paragraph (a) of subsection (2) of section
211 120.56, Florida Statutes, as amended by chapter 2010-279, Laws
212 of Florida, is amended to read:
213 120.56 Challenges to rules.—
214 (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.—
215 (a) A substantially affected person may seek an
216 administrative determination of the invalidity of a proposed
217 rule by filing a petition seeking such a determination with the
218 division within 21 days after the date of publication of the
219 notice required by s. 120.54(3)(a); within 10 days after the
220 final public hearing is held on the proposed rule as provided by
221 s. 120.54(3)(e)2.; within 20 44 days after the statement of
222 estimated regulatory costs or revised statement of estimated
223 regulatory costs, if applicable, has been prepared and made
224 available as provided in s. 120.541(1)(d); or within 20 days
225 after the date of publication of the notice required by s.
226 120.54(3)(d). The petition must state with particularity the
227 objections to the proposed rule and the reasons that the
228 proposed rule is an invalid exercise of delegated legislative
229 authority. The petitioner has the burden of going forward. The
230 agency then has the burden to prove by a preponderance of the
231 evidence that the proposed rule is not an invalid exercise of
232 delegated legislative authority as to the objections raised. A
233 person who is substantially affected by a change in the proposed
234 rule may seek a determination of the validity of such change. A
235 person who is not substantially affected by the proposed rule as
236 initially noticed, but who is substantially affected by the rule
237 as a result of a change, may challenge any provision of the rule
238 and is not limited to challenging the change to the proposed
239 rule.
240 Section 4. Subsection (16) of section 120.80, Florida
241 Statutes, is amended, and subsections (17) and (18) are added to
242 that section, to read:
243 120.80 Exceptions and special requirements; agencies.—
244 (16) FLORIDA BUILDING COMMISSION.—
245 (a) Notwithstanding the provisions of s. 120.542, the
246 Florida Building Commission may not accept a petition for waiver
247 or variance and may not grant any waiver or variance from the
248 requirements of the Florida Building Code.
249 (b) The Florida Building Commission shall adopt within the
250 Florida Building Code criteria and procedures for alternative
251 means of compliance with the code or local amendments thereto,
252 for enforcement by local governments, local enforcement
253 districts, or other entities authorized by law to enforce the
254 Florida Building Code. Appeals from the denial of the use of
255 alternative means shall be heard by the local board, if one
256 exists, and may be appealed to the Florida Building Commission.
257 (c) Notwithstanding ss. 120.565, 120.569, and 120.57, the
258 Florida Building Commission and hearing officer panels appointed
259 by the commission in accordance with s. 553.775(3)(c)1. may
260 conduct proceedings to review decisions of local building code
261 officials in accordance with s. 553.775(3)(c).
262 (d) Section 120.541(3) does not apply to the adoption of
263 amendments and the triennial update to the Florida Building Code
264 expressly authorized by s. 553.73.
265 (17) STATE FIRE MARSHAL.—Section 120.541(3) does not apply
266 to the adoption of amendments and the triennial update to the
267 Florida Fire Prevention Code expressly authorized by s.
268 633.0215.
269 (18) DEPARTMENT OF TRANSPORTATION.—Sections 120.54(3)(b)
270 and 120.541 do not apply to the adjustment of tolls pursuant to
271 s. 338.165(3).
272 Section 5. Paragraph (l) is added to subsection (1) of
273 section 120.81, Florida Statutes, to read:
274 120.81 Exceptions and special requirements; general areas.—
275 (1) EDUCATIONAL UNITS.—
276 (l) Sections 120.54(3)(b) and 120.541 do not apply to the
277 adoption of rules pursuant to s. 1012.22, s. 1012.27, s.
278 1012.34, s. 1012.335, or s. 1012.795.
279 Section 6. This act shall take effect upon becoming a law.
280
281 ================= T I T L E A M E N D M E N T ================
282 And the title is amended as follows:
283 Delete everything before the enacting clause
284 and insert:
285 A bill to be entitled
286 An act relating to rulemaking; amending s. 120.54,
287 F.S.; requiring that an agency include in its notice
288 of intended rulemaking a statement as to whether the
289 proposed rule will require legislative ratification;
290 providing for modification or withdrawal of an adopted
291 rule that is not ratified by the Legislature;
292 clarifying that certain proposed rules are effective
293 only when ratified by the Legislature; amending s.
294 120.541, F.S.; reducing the time before an agency
295 files a rule for adoption within which the agency must
296 notify the person who submitted a lower cost
297 alternative and the Administrative Procedures
298 Committee; excluding rules adopting federal standards
299 and emergency rulemaking from certain provisions;
300 amending s. 120.56, F.S.; reducing the time within
301 which a substantially affected person may seek an
302 administrative determination of the invalidity of a
303 rule after the statement or revised statement of
304 estimated regulatory costs is available; amending s.
305 120.80, F.S.; exempting the adoption of certain
306 amendments and the triennial updates to the Florida
307 Building Code from required legislative ratification;
308 exempting the adoption of certain amendments and the
309 triennial updates to the Florida Fire Prevention Code
310 from required legislative ratification; exempting the
311 adoption of rules adjusting rates of certain
312 transportation and expressway tolls from the
313 preparation of a statement of estimated regulatory
314 costs and from submission for legislative
315 ratification; amending s. 120.81, F.S.; excluding the
316 adoption of rules under chapter 2011-1, Laws of
317 Florida, the Student Success Act, from the preparation
318 of a statement of estimated regulatory costs and from
319 submission for legislative ratification; providing an
320 effective date.