Florida Senate - 2011                             CS for SB 1382
       By the Committee on Governmental Oversight and Accountability;
       and Senator Bennett
       585-03911-11                                          20111382c1
    1                        A bill to be entitled                      
    2         An act relating to rulemaking; amending s. 120.54,
    3         F.S.; requiring that an agency include in its notice
    4         of intended rulemaking a statement as to whether the
    5         proposed rule will require legislative ratification;
    6         clarifying that certain proposed rules are effective
    7         only when ratified by the Legislature; amending s.
    8         120.541, F.S.; reducing the time before an agency
    9         files a rule for adoption within which the agency must
   10         notify the person who submitted a lower cost
   11         alternative and the Administrative Procedures
   12         Committee; amending s. 120.56, F.S.; reducing the time
   13         in which a substantially affected person may seek an
   14         administrative determination of the invalidity of a
   15         rule after the statement or revised statement of
   16         estimated regulatory costs is available; providing an
   17         effective date.
   19  Be It Enacted by the Legislature of the State of Florida:
   21         Section 1. Paragraphs (a) and (e) of subsection (3) of
   22  section 120.54, Florida Statutes, as amended by chapter 2010
   23  279, Laws of Florida, are amended to read:
   24         120.54 Rulemaking.—
   25         (3) ADOPTION PROCEDURES.—
   26         (a) Notices.—
   27         1. Prior to the adoption, amendment, or repeal of any rule
   28  other than an emergency rule, an agency, upon approval of the
   29  agency head, shall give notice of its intended action, setting
   30  forth a short, plain explanation of the purpose and effect of
   31  the proposed action; the full text of the proposed rule or
   32  amendment and a summary thereof; a reference to the grant of
   33  rulemaking authority pursuant to which the rule is adopted; and
   34  a reference to the section or subsection of the Florida Statutes
   35  or the Laws of Florida being implemented or interpreted. The
   36  notice must include a summary of the agency’s statement of the
   37  estimated regulatory costs, if one has been prepared, based on
   38  the factors set forth in s. 120.541(2), and a statement that any
   39  person who wishes to provide the agency with information
   40  regarding the statement of estimated regulatory costs, or to
   41  provide a proposal for a lower cost regulatory alternative as
   42  provided by s. 120.541(1), must do so in writing within 21 days
   43  after publication of the notice, and a statement as to whether
   44  the proposed rule will require legislative ratification pursuant
   45  to s. 120.541(3). The notice must state the procedure for
   46  requesting a public hearing on the proposed rule. Except when
   47  the intended action is the repeal of a rule, the notice must
   48  include a reference both to the date on which and to the place
   49  where the notice of rule development that is required by
   50  subsection (2) appeared.
   51         2. The notice shall be published in the Florida
   52  Administrative Weekly not less than 28 days prior to the
   53  intended action. The proposed rule shall be available for
   54  inspection and copying by the public at the time of the
   55  publication of notice.
   56         3. The notice shall be mailed to all persons named in the
   57  proposed rule and to all persons who, at least 14 days prior to
   58  such mailing, have made requests of the agency for advance
   59  notice of its proceedings. The agency shall also give such
   60  notice as is prescribed by rule to those particular classes of
   61  persons to whom the intended action is directed.
   62         4. The adopting agency shall file with the committee, at
   63  least 21 days prior to the proposed adoption date, a copy of
   64  each rule it proposes to adopt; a copy of any material
   65  incorporated by reference in the rule; a detailed written
   66  statement of the facts and circumstances justifying the proposed
   67  rule; a copy of any statement of estimated regulatory costs that
   68  has been prepared pursuant to s. 120.541; a statement of the
   69  extent to which the proposed rule relates to federal standards
   70  or rules on the same subject; and the notice required by
   71  subparagraph 1.
   72         (e) Filing for final adoption; effective date.—
   73         1. If the adopting agency is required to publish its rules
   74  in the Florida Administrative Code, the agency, upon approval of
   75  the agency head, shall file with the Department of State three
   76  certified copies of the rule it proposes to adopt; one copy of
   77  any material incorporated by reference in the rule, certified by
   78  the agency; a summary of the rule; a summary of any hearings
   79  held on the rule; and a detailed written statement of the facts
   80  and circumstances justifying the rule. Agencies not required to
   81  publish their rules in the Florida Administrative Code shall
   82  file one certified copy of the proposed rule, and the other
   83  material required by this subparagraph, in the office of the
   84  agency head, and such rules shall be open to the public.
   85         2. A rule may not be filed for adoption less than 28 days
   86  or more than 90 days after the notice required by paragraph (a),
   87  until 21 days after the notice of change required by paragraph
   88  (d), until 14 days after the final public hearing, until 21 days
   89  after a statement of estimated regulatory costs required under
   90  s. 120.541 has been provided to all persons who submitted a
   91  lower cost regulatory alternative and made available to the
   92  public, or until the administrative law judge has rendered a
   93  decision under s. 120.56(2), whichever applies. When a required
   94  notice of change is published prior to the expiration of the
   95  time to file the rule for adoption, the period during which a
   96  rule must be filed for adoption is extended to 45 days after the
   97  date of publication. If notice of a public hearing is published
   98  prior to the expiration of the time to file the rule for
   99  adoption, the period during which a rule must be filed for
  100  adoption is extended to 45 days after adjournment of the final
  101  hearing on the rule, 21 days after receipt of all material
  102  authorized to be submitted at the hearing, or 21 days after
  103  receipt of the transcript, if one is made, whichever is latest.
  104  The term “public hearing” includes any public meeting held by
  105  any agency at which the rule is considered. If a petition for an
  106  administrative determination under s. 120.56(2) is filed, the
  107  period during which a rule must be filed for adoption is
  108  extended to 60 days after the administrative law judge files the
  109  final order with the clerk or until 60 days after subsequent
  110  judicial review is complete.
  111         3. At the time a rule is filed, the agency shall certify
  112  that the time limitations prescribed by this paragraph have been
  113  complied with, that all statutory rulemaking requirements have
  114  been met, and that there is no administrative determination
  115  pending on the rule.
  116         4. At the time a rule is filed, the committee shall certify
  117  whether the agency has responded in writing to all material and
  118  timely written comments or written inquiries made on behalf of
  119  the committee. The department shall reject any rule that is not
  120  filed within the prescribed time limits; that does not comply
  121  with all statutory rulemaking requirements and rules of the
  122  department; upon which an agency has not responded in writing to
  123  all material and timely written inquiries or written comments;
  124  upon which an administrative determination is pending; or which
  125  does not include a statement of estimated regulatory costs, if
  126  required.
  127         5. If a rule has not been adopted within the time limits
  128  imposed by this paragraph or has not been adopted in compliance
  129  with all statutory rulemaking requirements, the agency proposing
  130  the rule shall withdraw the rule and give notice of its action
  131  in the next available issue of the Florida Administrative
  132  Weekly.
  133         6. The proposed rule shall be adopted on being filed with
  134  the Department of State and become effective 20 days after being
  135  filed, on a later date specified in the notice required by
  136  subparagraph (a)1., or on a date required by statute, or when
  137  ratified by the Legislature pursuant to s. 120.541(3). Rules not
  138  required to be filed with the Department of State shall become
  139  effective when adopted by the agency head, or on a later date
  140  specified by rule or statute, or when ratified by the
  141  Legislature pursuant to s. 120.541(3). If the committee notifies
  142  an agency that an objection to a rule is being considered, the
  143  agency may postpone the adoption of the rule to accommodate
  144  review of the rule by the committee. When an agency postpones
  145  adoption of a rule to accommodate review by the committee, the
  146  90-day period for filing the rule is tolled until the committee
  147  notifies the agency that it has completed its review of the
  148  rule.
  150  For the purposes of this paragraph, the term “administrative
  151  determination” does not include subsequent judicial review.
  152         Section 2. Paragraph (d) of subsection (1) of section
  153  120.541, Florida Statutes, as amended by chapter 2010-279, Laws
  154  of Florida, is amended to read:
  155         120.541 Statement of estimated regulatory costs.—
  156         (1)
  157         (d) At least 21 45 days before filing the rule for
  158  adoption, an agency that is required to revise a statement of
  159  estimated regulatory costs shall provide the statement to the
  160  person who submitted the lower cost regulatory alternative and
  161  to the committee and shall provide notice on the agency’s
  162  website that it is available to the public.
  163         Section 3. Paragraph (a) of subsection (2) of section
  164  120.56, Florida Statutes, as amended by chapter 2010-279, Laws
  165  of Florida, is amended to read:
  166         120.56 Challenges to rules.—
  168         (a) A substantially affected person may seek an
  169  administrative determination of the invalidity of a proposed
  170  rule by filing a petition seeking such a determination with the
  171  division within 21 days after the date of publication of the
  172  notice required by s. 120.54(3)(a); within 10 days after the
  173  final public hearing is held on the proposed rule as provided by
  174  s. 120.54(3)(e)2.; within 20 44 days after the statement of
  175  estimated regulatory costs or revised statement of estimated
  176  regulatory costs, if applicable, has been prepared and made
  177  available as provided in s. 120.541(1)(d); or within 20 days
  178  after the date of publication of the notice required by s.
  179  120.54(3)(d). The petition must state with particularity the
  180  objections to the proposed rule and the reasons that the
  181  proposed rule is an invalid exercise of delegated legislative
  182  authority. The petitioner has the burden of going forward. The
  183  agency then has the burden to prove by a preponderance of the
  184  evidence that the proposed rule is not an invalid exercise of
  185  delegated legislative authority as to the objections raised. A
  186  person who is substantially affected by a change in the proposed
  187  rule may seek a determination of the validity of such change. A
  188  person who is not substantially affected by the proposed rule as
  189  initially noticed, but who is substantially affected by the rule
  190  as a result of a change, may challenge any provision of the rule
  191  and is not limited to challenging the change to the proposed
  192  rule.
  193         Section 4. This act shall take effect July 1, 2011.