Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1382
                                Barcode 746888                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/26/2011           .                                

       The Committee on Budget (Richter) recommended the following:
    1         Senate Amendment (with title amendment)
    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.
  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.—
  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.—
  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.
  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.