Florida Senate - 2011                      CS for CS for SB 1382
       By the Committees on Budget; and Governmental Oversight and
       Accountability; and Senator Bennett
       576-05034-11                                          20111382c2
    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         providing for modification or withdrawal of an adopted
    7         rule that is not ratified by the Legislature;
    8         clarifying that certain proposed rules are effective
    9         only when ratified by the Legislature; amending s.
   10         120.541, F.S.; reducing the time before an agency
   11         files a rule for adoption within which the agency must
   12         notify the person who submitted a lower cost
   13         alternative and the Administrative Procedures
   14         Committee; excluding rules adopting federal standards
   15         and emergency rulemaking from certain provisions;
   16         amending s. 120.56, F.S.; reducing the time within
   17         which a substantially affected person may seek an
   18         administrative determination of the invalidity of a
   19         rule after the statement or revised statement of
   20         estimated regulatory costs is available; amending s.
   21         120.80, F.S.; exempting the adoption of certain
   22         amendments and the triennial updates to the Florida
   23         Building Code from required legislative ratification;
   24         exempting the adoption of certain amendments and the
   25         triennial updates to the Florida Fire Prevention Code
   26         from required legislative ratification; exempting the
   27         adoption of rules adjusting rates of certain
   28         transportation and expressway tolls from the
   29         preparation of a statement of estimated regulatory
   30         costs and from submission for legislative
   31         ratification; amending s. 120.81, F.S.; excluding the
   32         adoption of rules under chapter 2011-1, Laws of
   33         Florida, the Student Success Act, from the preparation
   34         of a statement of estimated regulatory costs and from
   35         submission for legislative ratification; providing an
   36         effective date.
   38  Be It Enacted by the Legislature of the State of Florida:
   40         Section 1. Paragraphs (a), (d), and (e) of subsection (3)
   41  of section 120.54, Florida Statutes, as amended by chapter 2010
   42  279, Laws of Florida, are amended to read:
   43         120.54 Rulemaking.—
   44         (3) ADOPTION PROCEDURES.—
   45         (a) Notices.—
   46         1. Prior to the adoption, amendment, or repeal of any rule
   47  other than an emergency rule, an agency, upon approval of the
   48  agency head, shall give notice of its intended action, setting
   49  forth a short, plain explanation of the purpose and effect of
   50  the proposed action; the full text of the proposed rule or
   51  amendment and a summary thereof; a reference to the grant of
   52  rulemaking authority pursuant to which the rule is adopted; and
   53  a reference to the section or subsection of the Florida Statutes
   54  or the Laws of Florida being implemented or interpreted. The
   55  notice must include a summary of the agency’s statement of the
   56  estimated regulatory costs, if one has been prepared, based on
   57  the factors set forth in s. 120.541(2);, and a statement that
   58  any person who wishes to provide the agency with information
   59  regarding the statement of estimated regulatory costs, or to
   60  provide a proposal for a lower cost regulatory alternative as
   61  provided by s. 120.541(1), must do so in writing within 21 days
   62  after publication of the notice; and a statement as to whether,
   63  based on the statement of the estimated regulatory costs, or
   64  other information expressly relied upon and described by the
   65  agency if no statement of regulatory costs is required, the
   66  proposed rule is expected to require legislative ratification
   67  pursuant to s. 120.541(3). The notice must state the procedure
   68  for requesting a public hearing on the proposed rule. Except
   69  when the intended action is the repeal of a rule, the notice
   70  must include a reference both to the date on which and to the
   71  place where the notice of rule development that is required by
   72  subsection (2) appeared.
   73         2. The notice shall be published in the Florida
   74  Administrative Weekly not less than 28 days prior to the
   75  intended action. The proposed rule shall be available for
   76  inspection and copying by the public at the time of the
   77  publication of notice.
   78         3. The notice shall be mailed to all persons named in the
   79  proposed rule and to all persons who, at least 14 days prior to
   80  such mailing, have made requests of the agency for advance
   81  notice of its proceedings. The agency shall also give such
   82  notice as is prescribed by rule to those particular classes of
   83  persons to whom the intended action is directed.
   84         4. The adopting agency shall file with the committee, at
   85  least 21 days prior to the proposed adoption date, a copy of
   86  each rule it proposes to adopt; a copy of any material
   87  incorporated by reference in the rule; a detailed written
   88  statement of the facts and circumstances justifying the proposed
   89  rule; a copy of any statement of estimated regulatory costs that
   90  has been prepared pursuant to s. 120.541; a statement of the
   91  extent to which the proposed rule relates to federal standards
   92  or rules on the same subject; and the notice required by
   93  subparagraph 1.
   94         (d) Modification or withdrawal of proposed rules.—
   95         1. After the final public hearing on the proposed rule, or
   96  after the time for requesting a hearing has expired, if the rule
   97  has not been changed from the rule as previously filed with the
   98  committee, or contains only technical changes, the adopting
   99  agency shall file a notice to that effect with the committee at
  100  least 7 days prior to filing the rule for adoption. Any change,
  101  other than a technical change that does not affect the substance
  102  of the rule, must be supported by the record of public hearings
  103  held on the rule, must be in response to written material
  104  submitted to the agency within 21 days after the date of
  105  publication of the notice of intended agency action or submitted
  106  to the agency between the date of publication of the notice and
  107  the end of the final public hearing, or must be in response to a
  108  proposed objection by the committee. In addition, when any
  109  change is made in a proposed rule, other than a technical
  110  change, the adopting agency shall provide a copy of a notice of
  111  change by certified mail or actual delivery to any person who
  112  requests it in writing no later than 21 days after the notice
  113  required in paragraph (a). The agency shall file the notice of
  114  change with the committee, along with the reasons for the
  115  change, and provide the notice of change to persons requesting
  116  it, at least 21 days prior to filing the rule for adoption. The
  117  notice of change shall be published in the Florida
  118  Administrative Weekly at least 21 days prior to filing the rule
  119  for adoption. This subparagraph does not apply to emergency
  120  rules adopted pursuant to subsection (4).
  121         2. After the notice required by paragraph (a) and prior to
  122  adoption, the agency may withdraw the rule in whole or in part.
  123         3. After adoption and before the rule becomes effective
  124  date, a rule may be modified or withdrawn only in the following
  125  circumstances: response to an objection by the committee or may
  126  be modified to extend the effective date by not more than 60
  127  days
  128         a. When the committee objects to the rule;
  129         b. When a final order, which is not subject to further
  130  appeal, is entered in a rule challenge brought pursuant to s.
  131  120.56 after the date of adoption but before the rule becomes
  132  effective pursuant to subparagraph (e)6.;
  133         c. If the rule requires ratification, when more than 90
  134  days have passed since the rule was filed for adoption without
  135  the Legislature ratifying the rule, in which case the rule may
  136  be withdrawn but may not be modified; or
  137         d. When the committee notifies has notified the agency that
  138  an objection to the rule is being considered, in which case the
  139  rule may be modified to extend the effective date by not more
  140  than 60 days.
  141         4. The agency shall give notice of its decision to withdraw
  142  or modify a rule in the first available issue of the publication
  143  in which the original notice of rulemaking was published, shall
  144  notify those persons described in subparagraph (a)3. in
  145  accordance with the requirements of that subparagraph, and shall
  146  notify the Department of State if the rule is required to be
  147  filed with the Department of State.
  148         5. After a rule has become effective, it may be repealed or
  149  amended only through the rulemaking procedures specified in this
  150  chapter.
  151         (e) Filing for final adoption; effective date.—
  152         1. If the adopting agency is required to publish its rules
  153  in the Florida Administrative Code, the agency, upon approval of
  154  the agency head, shall file with the Department of State three
  155  certified copies of the rule it proposes to adopt; one copy of
  156  any material incorporated by reference in the rule, certified by
  157  the agency; a summary of the rule; a summary of any hearings
  158  held on the rule; and a detailed written statement of the facts
  159  and circumstances justifying the rule. Agencies not required to
  160  publish their rules in the Florida Administrative Code shall
  161  file one certified copy of the proposed rule, and the other
  162  material required by this subparagraph, in the office of the
  163  agency head, and such rules shall be open to the public.
  164         2. A rule may not be filed for adoption less than 28 days
  165  or more than 90 days after the notice required by paragraph (a),
  166  until 21 days after the notice of change required by paragraph
  167  (d), until 14 days after the final public hearing, until 21 days
  168  after a statement of estimated regulatory costs required under
  169  s. 120.541 has been provided to all persons who submitted a
  170  lower cost regulatory alternative and made available to the
  171  public, or until the administrative law judge has rendered a
  172  decision under s. 120.56(2), whichever applies. When a required
  173  notice of change is published prior to the expiration of the
  174  time to file the rule for adoption, the period during which a
  175  rule must be filed for adoption is extended to 45 days after the
  176  date of publication. If notice of a public hearing is published
  177  prior to the expiration of the time to file the rule for
  178  adoption, the period during which a rule must be filed for
  179  adoption is extended to 45 days after adjournment of the final
  180  hearing on the rule, 21 days after receipt of all material
  181  authorized to be submitted at the hearing, or 21 days after
  182  receipt of the transcript, if one is made, whichever is latest.
  183  The term “public hearing” includes any public meeting held by
  184  any agency at which the rule is considered. If a petition for an
  185  administrative determination under s. 120.56(2) is filed, the
  186  period during which a rule must be filed for adoption is
  187  extended to 60 days after the administrative law judge files the
  188  final order with the clerk or until 60 days after subsequent
  189  judicial review is complete.
  190         3. At the time a rule is filed, the agency shall certify
  191  that the time limitations prescribed by this paragraph have been
  192  complied with, that all statutory rulemaking requirements have
  193  been met, and that there is no administrative determination
  194  pending on the rule.
  195         4. At the time a rule is filed, the committee shall certify
  196  whether the agency has responded in writing to all material and
  197  timely written comments or written inquiries made on behalf of
  198  the committee. The department shall reject any rule that is not
  199  filed within the prescribed time limits; that does not comply
  200  with all statutory rulemaking requirements and rules of the
  201  department; upon which an agency has not responded in writing to
  202  all material and timely written inquiries or written comments;
  203  upon which an administrative determination is pending; or which
  204  does not include a statement of estimated regulatory costs, if
  205  required.
  206         5. If a rule has not been adopted within the time limits
  207  imposed by this paragraph or has not been adopted in compliance
  208  with all statutory rulemaking requirements, the agency proposing
  209  the rule shall withdraw the rule and give notice of its action
  210  in the next available issue of the Florida Administrative
  211  Weekly.
  212         6. The proposed rule shall be adopted on being filed with
  213  the Department of State and become effective 20 days after being
  214  filed, on a later date specified in the notice required by
  215  subparagraph (a)1., or on a date required by statute, or upon
  216  ratification by the Legislature pursuant to s. 120.541(3). Rules
  217  not required to be filed with the Department of State shall
  218  become effective when adopted by the agency head, or on a later
  219  date specified by rule or statute, or upon ratification by the
  220  Legislature pursuant to s. 120.541(3). If the committee notifies
  221  an agency that an objection to a rule is being considered, the
  222  agency may postpone the adoption of the rule to accommodate
  223  review of the rule by the committee. When an agency postpones
  224  adoption of a rule to accommodate review by the committee, the
  225  90-day period for filing the rule is tolled until the committee
  226  notifies the agency that it has completed its review of the
  227  rule.
  229  For the purposes of this paragraph, the term “administrative
  230  determination” does not include subsequent judicial review.
  231         Section 2. Paragraph (d) of subsection (1) and subsection
  232  (4) of section 120.541, Florida Statutes, as amended by chapter
  233  2010-279, Laws of Florida, are amended to read:
  234         120.541 Statement of estimated regulatory costs.—
  235         (1)
  236         (d) At least 21 45 days before filing the rule for
  237  adoption, an agency that is required to revise a statement of
  238  estimated regulatory costs shall provide the statement to the
  239  person who submitted the lower cost regulatory alternative and
  240  to the committee and shall provide notice on the agency’s
  241  website that it is available to the public.
  242         (4) This section Paragraph (2)(a) does not apply to the
  243  adoption of emergency rules pursuant to s. 120.54(4) or the
  244  adoption of federal standards pursuant to s. 120.54(6).
  245         Section 3. Paragraph (a) of subsection (2) of section
  246  120.56, Florida Statutes, as amended by chapter 2010-279, Laws
  247  of Florida, is amended to read:
  248         120.56 Challenges to rules.—
  250         (a) A substantially affected person may seek an
  251  administrative determination of the invalidity of a proposed
  252  rule by filing a petition seeking such a determination with the
  253  division within 21 days after the date of publication of the
  254  notice required by s. 120.54(3)(a); within 10 days after the
  255  final public hearing is held on the proposed rule as provided by
  256  s. 120.54(3)(e)2.; within 20 44 days after the statement of
  257  estimated regulatory costs or revised statement of estimated
  258  regulatory costs, if applicable, has been prepared and made
  259  available as provided in s. 120.541(1)(d); or within 20 days
  260  after the date of publication of the notice required by s.
  261  120.54(3)(d). The petition must state with particularity the
  262  objections to the proposed rule and the reasons that the
  263  proposed rule is an invalid exercise of delegated legislative
  264  authority. The petitioner has the burden of going forward. The
  265  agency then has the burden to prove by a preponderance of the
  266  evidence that the proposed rule is not an invalid exercise of
  267  delegated legislative authority as to the objections raised. A
  268  person who is substantially affected by a change in the proposed
  269  rule may seek a determination of the validity of such change. A
  270  person who is not substantially affected by the proposed rule as
  271  initially noticed, but who is substantially affected by the rule
  272  as a result of a change, may challenge any provision of the rule
  273  and is not limited to challenging the change to the proposed
  274  rule.
  275         Section 4. Subsection (16) of section 120.80, Florida
  276  Statutes, is amended, and subsections (17) and (18) are added to
  277  that section, to read:
  278         120.80 Exceptions and special requirements; agencies.—
  280         (a) Notwithstanding the provisions of s. 120.542, the
  281  Florida Building Commission may not accept a petition for waiver
  282  or variance and may not grant any waiver or variance from the
  283  requirements of the Florida Building Code.
  284         (b) The Florida Building Commission shall adopt within the
  285  Florida Building Code criteria and procedures for alternative
  286  means of compliance with the code or local amendments thereto,
  287  for enforcement by local governments, local enforcement
  288  districts, or other entities authorized by law to enforce the
  289  Florida Building Code. Appeals from the denial of the use of
  290  alternative means shall be heard by the local board, if one
  291  exists, and may be appealed to the Florida Building Commission.
  292         (c) Notwithstanding ss. 120.565, 120.569, and 120.57, the
  293  Florida Building Commission and hearing officer panels appointed
  294  by the commission in accordance with s. 553.775(3)(c)1. may
  295  conduct proceedings to review decisions of local building code
  296  officials in accordance with s. 553.775(3)(c).
  297         (d)Section 120.541(3) does not apply to the adoption of
  298  amendments and the triennial update to the Florida Building Code
  299  expressly authorized by s. 553.73.
  300         (17) STATE FIRE MARSHAL.Section 120.541(3) does not apply
  301  to the adoption of amendments and the triennial update to the
  302  Florida Fire Prevention Code expressly authorized by s.
  303  633.0215.
  304         (18)DEPARTMENT OF TRANSPORTATION.—Sections 120.54(3)(b)
  305  and 120.541 do not apply to the adjustment of tolls pursuant to
  306  s. 338.165(3).
  307         Section 5. Paragraph (l) is added to subsection (1) of
  308  section 120.81, Florida Statutes, to read:
  309         120.81 Exceptions and special requirements; general areas.—
  310         (1) EDUCATIONAL UNITS.—
  311         (l) Sections 120.54(3)(b) and 120.541 do not apply to the
  312  adoption of rules pursuant to s. 1012.22, s. 1012.27, s.
  313  1012.34, s. 1012.335, or s. 1012.795.
  314         Section 6. This act shall take effect upon becoming a law.