CS/HB 993

A bill to be entitled
2An act relating to rulemaking; amending s. 120.54, F.S.;
3requiring that an agency include in its notice of intended
4rulemaking a statement as to whether the proposed rule
5will require legislative ratification; clarifying that a
6statement of estimated regulatory costs is not required
7for emergency rulemaking; providing for modification or
8withdrawal of an adopted rule that is not ratified by the
9Legislature; providing for expedited repeal of rules
10determined to have required legislative ratification
11before going into effect; clarifying that certain proposed
12rules are effective only when ratified by the Legislature;
13amending s. 120.541, F.S.; reducing the time before an
14agency files a rule for adoption when the agency must
15notify the person who submitted a lower cost alternative
16and the Administrative Procedures Committee; excluding
17rules adopting federal standards, triennial updates to the
18Florida Building Code, or triennial updates to the Florida
19Fire Prevention Code from required legislative
20ratification; excluding emergency rulemaking from certain
21provisions; creating s. 120.547, F.S.; providing
22legislative findings and definitions; providing for
23summary repeal of rules by statewide elected executive
24officers within the first 6 months of their respective
25terms; specifying agencies affected by the repeal;
26providing procedures for notice of the repeal; providing
27for objection to the repeal; providing nonapplicability of
28other provisions of law to the summary repeal process;
29providing requirements for judicial review of the repeal;
30providing for exclusive and nondelegable authority;
31amending s. 120.56, F.S.; reducing the time in which a
32substantially affected person may seek an administrative
33determination of the invalidity of a rule after the
34statement or revised statement of estimated regulatory
35costs is available; providing an effective date.
37Be It Enacted by the Legislature of the State of Florida:
39     Section 1.  Paragraphs (a), (b), (d), and (e) of subsection
40(3) of section 120.54, Florida Statutes, as amended by chapter
412010-279, Laws of Florida, are amended to read:
42     120.54  Rulemaking.-
44     (a)  Notices.-
45     1.  Prior to the adoption, amendment, or repeal of any rule
46other than an emergency rule, an agency, upon approval of the
47agency head, shall give notice of its intended action, setting
48forth a short, plain explanation of the purpose and effect of
49the proposed action; the full text of the proposed rule or
50amendment and a summary thereof; a reference to the grant of
51rulemaking authority pursuant to which the rule is adopted; and
52a reference to the section or subsection of the Florida Statutes
53or the Laws of Florida being implemented or interpreted. The
54notice must include a summary of the agency's statement of the
55estimated regulatory costs, if one has been prepared, based on
56the factors set forth in s. 120.541(2);, and a statement that
57any person who wishes to provide the agency with information
58regarding the statement of estimated regulatory costs, or to
59provide a proposal for a lower cost regulatory alternative as
60provided by s. 120.541(1), must do so in writing within 21 days
61after publication of the notice; and a statement as to whether
62the proposed rule will require legislative ratification pursuant
63to s. 120.541(3). The notice must state the procedure for
64requesting a public hearing on the proposed rule. Except when
65the intended action is the repeal of a rule, the notice must
66include a reference both to the date on which and to the place
67where the notice of rule development that is required by
68subsection (2) appeared.
69     2.  The notice shall be published in the Florida
70Administrative Weekly not less than 28 days prior to the
71intended action. The proposed rule shall be available for
72inspection and copying by the public at the time of the
73publication of notice.
74     3.  The notice shall be mailed to all persons named in the
75proposed rule and to all persons who, at least 14 days prior to
76such mailing, have made requests of the agency for advance
77notice of its proceedings. The agency shall also give such
78notice as is prescribed by rule to those particular classes of
79persons to whom the intended action is directed.
80     4.  The adopting agency shall file with the committee, at
81least 21 days prior to the proposed adoption date, a copy of
82each rule it proposes to adopt; a copy of any material
83incorporated by reference in the rule; a detailed written
84statement of the facts and circumstances justifying the proposed
85rule; a copy of any statement of estimated regulatory costs that
86has been prepared pursuant to s. 120.541; a statement of the
87extent to which the proposed rule relates to federal standards
88or rules on the same subject; and the notice required by
89subparagraph 1.
90     (b)  Special matters to be considered in rule adoption.-
91     1.  Statement of estimated regulatory costs.-Prior to the
92adoption, amendment, or repeal of any rule other than an
93emergency rule, an agency is encouraged to prepare a statement
94of estimated regulatory costs of the proposed rule, as provided
95by s. 120.541. However, an agency must prepare a statement of
96estimated regulatory costs of the proposed rule, as provided by
97s. 120.541, if:
98     a.  The proposed rule will have an adverse impact on small
99business; or
100     b.  The proposed rule is likely to directly or indirectly
101increase regulatory costs in excess of $200,000 in the aggregate
102in this state within 1 year after the implementation of the
104     2.  Small businesses, small counties, and small cities.-
105     a.  Each agency, before the adoption, amendment, or repeal
106of a rule, shall consider the impact of the rule on small
107businesses as defined by s. 288.703 and the impact of the rule
108on small counties or small cities as defined by s. 120.52.
109Whenever practicable, an agency shall tier its rules to reduce
110disproportionate impacts on small businesses, small counties, or
111small cities to avoid regulating small businesses, small
112counties, or small cities that do not contribute significantly
113to the problem the rule is designed to address. An agency may
114define "small business" to include businesses employing more
115than 200 persons, may define "small county" to include those
116with populations of more than 75,000, and may define "small
117city" to include those with populations of more than 10,000, if
118it finds that such a definition is necessary to adapt a rule to
119the needs and problems of small businesses, small counties, or
120small cities. The agency shall consider each of the following
121methods for reducing the impact of the proposed rule on small
122businesses, small counties, and small cities, or any combination
123of these entities:
124     (I)  Establishing less stringent compliance or reporting
125requirements in the rule.
126     (II)  Establishing less stringent schedules or deadlines in
127the rule for compliance or reporting requirements.
128     (III)  Consolidating or simplifying the rule's compliance
129or reporting requirements.
130     (IV)  Establishing performance standards or best management
131practices to replace design or operational standards in the
133     (V)  Exempting small businesses, small counties, or small
134cities from any or all requirements of the rule.
135     b.(I)  If the agency determines that the proposed action
136will affect small businesses as defined by the agency as
137provided in sub-subparagraph a., the agency shall send written
138notice of the rule to the Small Business Regulatory Advisory
139Council and the Office of Tourism, Trade, and Economic
140Development not less than 28 days prior to the intended action.
141     (II)  Each agency shall adopt those regulatory alternatives
142offered by the Small Business Regulatory Advisory Council and
143provided to the agency no later than 21 days after the council's
144receipt of the written notice of the rule which it finds are
145feasible and consistent with the stated objectives of the
146proposed rule and which would reduce the impact on small
147businesses. When regulatory alternatives are offered by the
148Small Business Regulatory Advisory Council, the 90-day period
149for filing the rule in subparagraph (e)2. is extended for a
150period of 21 days.
151     (III)  If an agency does not adopt all alternatives offered
152pursuant to this sub-subparagraph, it shall, prior to rule
153adoption or amendment and pursuant to subparagraph (d)1., file a
154detailed written statement with the committee explaining the
155reasons for failure to adopt such alternatives. Within 3 working
156days of the filing of such notice, the agency shall send a copy
157of such notice to the Small Business Regulatory Advisory
158Council. The Small Business Regulatory Advisory Council may make
159a request of the President of the Senate and the Speaker of the
160House of Representatives that the presiding officers direct the
161Office of Program Policy Analysis and Government Accountability
162to determine whether the rejected alternatives reduce the impact
163on small business while meeting the stated objectives of the
164proposed rule. Within 60 days after the date of the directive
165from the presiding officers, the Office of Program Policy
166Analysis and Government Accountability shall report to the
167Administrative Procedures Committee its findings as to whether
168an alternative reduces the impact on small business while
169meeting the stated objectives of the proposed rule. The Office
170of Program Policy Analysis and Government Accountability shall
171consider the proposed rule, the economic impact statement, the
172written statement of the agency, the proposed alternatives, and
173any comment submitted during the comment period on the proposed
174rule. The Office of Program Policy Analysis and Government
175Accountability shall submit a report of its findings and
176recommendations to the Governor, the President of the Senate,
177and the Speaker of the House of Representatives. The
178Administrative Procedures Committee shall report such findings
179to the agency, and the agency shall respond in writing to the
180Administrative Procedures Committee if the Office of Program
181Policy Analysis and Government Accountability found that the
182alternative reduced the impact on small business while meeting
183the stated objectives of the proposed rule. If the agency will
184not adopt the alternative, it must also provide a detailed
185written statement to the committee as to why it will not adopt
186the alternative.
187     3.  This paragraph does not apply to the adoption of
188emergency rules pursuant to subsection (4).
189     (d)  Modification or withdrawal of proposed rules.-
190     1.  After the final public hearing on the proposed rule, or
191after the time for requesting a hearing has expired, if the rule
192has not been changed from the rule as previously filed with the
193committee, or contains only technical changes, the adopting
194agency shall file a notice to that effect with the committee at
195least 7 days prior to filing the rule for adoption. Any change,
196other than a technical change that does not affect the substance
197of the rule, must be supported by the record of public hearings
198held on the rule, must be in response to written material
199submitted to the agency within 21 days after the date of
200publication of the notice of intended agency action or submitted
201to the agency between the date of publication of the notice and
202the end of the final public hearing, or must be in response to a
203proposed objection by the committee. In addition, when any
204change is made in a proposed rule, other than a technical
205change, the adopting agency shall provide a copy of a notice of
206change by certified mail or actual delivery to any person who
207requests it in writing no later than 21 days after the notice
208required in paragraph (a). The agency shall file the notice of
209change with the committee, along with the reasons for the
210change, and provide the notice of change to persons requesting
211it, at least 21 days prior to filing the rule for adoption. The
212notice of change shall be published in the Florida
213Administrative Weekly at least 21 days prior to filing the rule
214for adoption. This subparagraph does not apply to emergency
215rules adopted pursuant to subsection (4).
216     2.  After the notice required by paragraph (a) and prior to
217adoption, the agency may withdraw the rule in whole or in part.
218     3.  After adoption and before the rule becomes effective
219date, a rule may be modified or withdrawn only in response to
220one of the following:
221     a.  The committee objects to the rule;
222     b.  A final order, not subject to further appeal, is
223entered in a rule challenge brought pursuant to s. 120.56 after
224the date of adoption but before the rule becomes effective
225pursuant to subparagraph (e)6.;
226     c.  The rule is timely submitted for legislative
227ratification pursuant to s. 120.541(3) but the Legislature
228adjourns sine die from at least one regular session without
229ratifying the rule, in which case the rule may be withdrawn but
230not modified; or
231     d.  an objection by the committee or may be modified to
232extend the effective date by not more than 60 days when The
233committee notifies has notified the agency that an objection to
234the rule is being considered, in which case the rule may be
235modified to extend the effective date by not more than 60 days.
236     4.  The agency shall give notice of its decision to
237withdraw or modify a rule in the first available issue of the
238publication in which the original notice of rulemaking was
239published, shall notify those persons described in subparagraph
240(a)3. in accordance with the requirements of that subparagraph,
241and shall notify the Department of State if the rule is required
242to be filed with the Department of State.
243     5.  After a rule has become effective, it may be repealed
244or amended only through the rulemaking procedures specified in
245this chapter. However, a rule that was not submitted for
246ratification pursuant to s. 120.541(3), but that subsequently is
247determined by final order to require ratification as of the date
248of adoption, may be repealed if:
249     a.  The adopting agency publishes notice of the final order
250finding that ratification pursuant to s. 120.541(3) was required
251as of the date of adoption and that the rule is being repealed
252as of the date of the final order; and
253     b.  After the final order is rendered, the notice is
254published in the first available Florida Administrative Weekly
255and on the agency's Internet website.
256     (e)  Filing for final adoption; effective date.-
257     1.  If the adopting agency is required to publish its rules
258in the Florida Administrative Code, the agency, upon approval of
259the agency head, shall file with the Department of State three
260certified copies of the rule it proposes to adopt; one copy of
261any material incorporated by reference in the rule, certified by
262the agency; a summary of the rule; a summary of any hearings
263held on the rule; and a detailed written statement of the facts
264and circumstances justifying the rule. Agencies not required to
265publish their rules in the Florida Administrative Code shall
266file one certified copy of the proposed rule, and the other
267material required by this subparagraph, in the office of the
268agency head, and such rules shall be open to the public.
269     2.  A rule may not be filed for adoption less than 28 days
270or more than 90 days after the notice required by paragraph (a),
271until 21 days after the notice of change required by paragraph
272(d), until 14 days after the final public hearing, until 21 days
273after a statement of estimated regulatory costs required under
274s. 120.541 has been provided to all persons who submitted a
275lower cost regulatory alternative and made available to the
276public, or until the administrative law judge has rendered a
277decision under s. 120.56(2), whichever applies. When a required
278notice of change is published prior to the expiration of the
279time to file the rule for adoption, the period during which a
280rule must be filed for adoption is extended to 45 days after the
281date of publication. If notice of a public hearing is published
282prior to the expiration of the time to file the rule for
283adoption, the period during which a rule must be filed for
284adoption is extended to 45 days after adjournment of the final
285hearing on the rule, 21 days after receipt of all material
286authorized to be submitted at the hearing, or 21 days after
287receipt of the transcript, if one is made, whichever is latest.
288The term "public hearing" includes any public meeting held by
289any agency at which the rule is considered. If a petition for an
290administrative determination under s. 120.56(2) is filed, the
291period during which a rule must be filed for adoption is
292extended to 60 days after the administrative law judge files the
293final order with the clerk or until 60 days after subsequent
294judicial review is complete.
295     3.  At the time a rule is filed, the agency shall certify
296that the time limitations prescribed by this paragraph have been
297complied with, that all statutory rulemaking requirements have
298been met, and that there is no administrative determination
299pending on the rule.
300     4.  At the time a rule is filed, the committee shall
301certify whether the agency has responded in writing to all
302material and timely written comments or written inquiries made
303on behalf of the committee. The department shall reject any rule
304that is not filed within the prescribed time limits; that does
305not comply with all statutory rulemaking requirements and rules
306of the department; upon which an agency has not responded in
307writing to all material and timely written inquiries or written
308comments; upon which an administrative determination is pending;
309or which does not include a statement of estimated regulatory
310costs, if required.
311     5.  If a rule has not been adopted within the time limits
312imposed by this paragraph or has not been adopted in compliance
313with all statutory rulemaking requirements, the agency proposing
314the rule shall withdraw the rule and give notice of its action
315in the next available issue of the Florida Administrative
317     6.  The proposed rule shall be adopted on being filed with
318the Department of State and become effective 20 days after being
319filed, on a later date specified in the notice required by
320subparagraph (a)1., or on a date required by statute, or upon
321ratification by the Legislature pursuant to s. 120.541(3). Rules
322not required to be filed with the Department of State shall
323become effective when adopted by the agency head, or on a later
324date specified by rule or statute, or upon ratification by the
325Legislature pursuant to s. 120.541(3). If the committee notifies
326an agency that an objection to a rule is being considered, the
327agency may postpone the adoption of the rule to accommodate
328review of the rule by the committee. When an agency postpones
329adoption of a rule to accommodate review by the committee, the
33090-day period for filing the rule is tolled until the committee
331notifies the agency that it has completed its review of the
334For the purposes of this paragraph, the term "administrative
335determination" does not include subsequent judicial review.
336     Section 2.  Paragraph (d) of subsection (1) and subsection
337(4) of section 120.541, Florida Statutes, as amended by chapter
3382010-279, Laws of Florida, are amended, and subsection (5) is
339added to that section, to read:
340     120.541  Statement of estimated regulatory costs.-
341     (1)
342     (d)  At least 21 45 days before filing the rule for
343adoption, an agency that is required to revise a statement of
344estimated regulatory costs shall provide the statement to the
345person who submitted the lower cost regulatory alternative and
346to the committee and shall provide notice on the agency's
347website that it is available to the public.
348     (3)  If the adverse impact or regulatory costs of the rule
349exceed any of the criteria established in paragraph (2)(a), the
350rule shall be submitted to the President of the Senate and
351Speaker of the House of Representatives no later than 30 days
352prior to the next regular legislative session, and the rule may
353not take effect until it is ratified by the Legislature.
354     (4)  Subsection (3) Paragraph (2)(a) does not apply to the
355adoption of:
356     (a)  emergency rules pursuant to s. 120.54(4) or the
357adoption of Federal standards pursuant to s. 120.54(6).
358     (b)  Triennial updates to the Florida Building Code
359pursuant to s. 553.73(7)(a).
360     (c)  Triennial updates to the Florida Fire Prevention Code
361pursuant to s. 633.0215(1).
362     (5)  This section does not apply to the adoption of
363emergency rules pursuant to s. 120.54(4).
364     Section 3.  Section 120.547, Florida Statutes, is created
365to read:
366     120.547  Summary procedure for rule repeal during inaugural
368     (1)  LEGISLATIVE FINDINGS.-The Legislature finds that the
369formal process for repealing rules as required under s.
370120.54(3)(d)5. may unnecessarily delay efforts for statewide
371elected executive officers to review and revise the programs and
372policies within their respective individual or collective
373jurisdiction at the commencement of their elective terms.
374Accordingly, the Legislature finds a prudent, expedited process
375providing for the summary repeal of existing rules within the
376initial period of a statewide elected executive officer's term
377best assists those officers in the articulation and
378implementation of public policy.
379     (2)  DEFINITIONS.-As used in this section, the term:
380     (a)  "Inaugural period" means the time from the first date
381of an elective term of the Governor, the Chief Financial
382Officer, the Attorney General, or the Commissioner of
383Agriculture, as provided in s. 5(a), Art. IV of the State
384Constitution, through the last day of the month of the June next
385following the beginning of the term.
386     (b)  "Statewide elected executive officer" means the
387Governor, the Chief Financial Officer, the Attorney General, or
388the Commissioner of Agriculture.
389     (3)  AGENCIES AFFECTED.-Exclusively during the inaugural
390period, the statewide elected executive officers are authorized
391to direct the repeal of rules using the summary procedure
392provided in this section for the following agencies:
393     (a)  Each agency under the exclusive authority of the
394individual statewide elected executive officer.
395     (b)  Each agency under the collective authority of two or
396more statewide elected executive officers but not the entire
398     (c)  Each agency under the exclusive authority of the
400     (4)  NOTICE OF REPEAL.-The statewide elected executive
401officer, the statewide elected executive officers acting
402collectively, or the Cabinet shall direct the repeal of rules
403pursuant to this section by each agency under their exclusive
404authority as follows:
405     (a)  For each rule or part of a rule to be repealed under
406this section, the statewide elected executive officer, the
407statewide elected executive officers acting collectively, or the
408Cabinet shall make a written finding containing the following:
409     1.  The number, title, and each specific subdivision of the
410rule to be repealed entirely or in part.
411     2.  The agency that adopted the rule.
412     3.  The basis for repeal, which includes, but is not
413limited to, the following:
414     a.  The rule is obsolete or no longer necessary;
415     b.  The substantive law that the rule implements or
416interprets in compliance with s. 120.536(1) was amended or
417repealed; or
418     c.  The rule conflicts with programs or policies that the
419statewide elected executive officer, the statewide elected
420executive officers acting collectively, or the Cabinet have
421implemented or are in the process of implementing.
422     4.  The name, title, address, and e-mail address of the
423person designated by the statewide elected executive officer,
424the statewide elected executive officers acting collectively, or
425the Cabinet solely to receive inquiries, correspondence,
426petitions, or notices in response to the proposed repeal.
427     5.  The date on which the rule or part of the rule is
428repealed and is no longer in force or effect.
429     (b)  The adopting agency shall publish notice of the
430written finding directing repeal of the rule or part of the rule
431on the agency's Internet website, including in such notice the
432date of first publication, and shall also publish the notice and
433written finding, including the Internet website on which the
434notice was first published, in the Florida Administrative Weekly
435that is first available after the date the written finding is
436executed by the statewide elected executive officer, statewide
437elected executive officers acting collectively, or Cabinet.
438     (c)  Repeal of a rule or part of a rule under this section
439shall be effective no earlier than 15 days after the date the
440notice of repeal is published on the agency's Internet website.
441     (5)  OBJECTION TO REPEAL.-A substantially affected person
442may object to the repeal of a rule or part of a rule under this
443section as follows:
444     (a)  No later than 14 days after the date the notice of
445repeal is published on the agency's Internet website, the person
446must file with the individual designated in subparagraph
447(4)(a)4. a written objection to repeal stating:
448     1.  The name, address, telephone number, and e-mail address
449of the person opposing the repeal.
450     2.  The facts and law on which the person objects to the
451noticed repeal.
452     (b)  Failure to file an objection in the time and manner
453provided in this subsection constitutes a full and complete
454waiver of the objection, an affirmative assent to the proposed
455repeal, and a full and complete waiver of judicial review under
456s. 120.68.
457     (c)  If an objection is timely filed, the repeal is not
458effective until the statewide elected executive officer, the
459statewide elected executive officers acting collectively, or the
460Cabinet, as applicable, overrules the objection in writing and
461notice of that disposition is published in the manner provided
462in paragraph (4)(b).
463     (6)  NONAPPLICABLE SECTIONS.-Sections 120.54, 120.541,
464120.56, 120.569, 120.57, 120.573, 120.574, and 120.69 are not
465applicable to the repeal of rules under this section.
466     (7)  JUDICIAL REVIEW.-A substantially affected party whose
467timely written objection to the proposed repeal is overruled by
468the statewide elected executive officer, the statewide elected
469executive officers acting collectively, or the Cabinet may seek
470judicial review of that decision under s. 120.68, as modified by
471the following:
472     (a)  Notwithstanding any other statute, the First District
473Court of Appeal has exclusive jurisdiction of any petition for
474judicial review of the repeal of rules under this section.
475     (b)  A petition for judicial review may be brought only
476against the agency that adopted the rule and not against the
477statewide elected executive officer, the statewide elected
478executive officers acting collectively, or the Cabinet.
479     (c)  The record for review shall be comprised solely of the
480written finding of repeal, the written objection, and the
481written disposition of the objection.
482     (8)  NONDELEGABLE AUTHORITY.-The authority to determine and
483direct the repeal of agency rules under this section, other than
484the receipt of inquiries, correspondence, petitions, or notices
485in response to a proposed repeal, shall be exercised exclusively
486by the statewide elected executive officer, the statewide
487elected executive officers acting collectively, or the Cabinet
488having exclusive authority over the subject agency and may not
489be delegated to any other person.
490     Section 4.  Paragraph (a) of subsection (2) of section
491120.56, Florida Statutes, as amended by chapter 2010-279, Laws
492of Florida, is amended to read:
493     120.56  Challenges to rules.-
495     (a)  A substantially affected person may seek an
496administrative determination of the invalidity of a proposed
497rule by filing a petition seeking such a determination with the
498division within 21 days after the date of publication of the
499notice required by s. 120.54(3)(a); within 10 days after the
500final public hearing is held on the proposed rule as provided by
501s. 120.54(3)(e)2.; within 20 44 days after the statement of
502estimated regulatory costs or revised statement of estimated
503regulatory costs, if applicable, has been prepared and made
504available as provided in s. 120.541(1)(d); or within 20 days
505after the date of publication of the notice required by s.
506120.54(3)(d). The petition must state with particularity the
507objections to the proposed rule and the reasons that the
508proposed rule is an invalid exercise of delegated legislative
509authority. The petitioner has the burden of going forward. The
510agency then has the burden to prove by a preponderance of the
511evidence that the proposed rule is not an invalid exercise of
512delegated legislative authority as to the objections raised. A
513person who is substantially affected by a change in the proposed
514rule may seek a determination of the validity of such change. A
515person who is not substantially affected by the proposed rule as
516initially noticed, but who is substantially affected by the rule
517as a result of a change, may challenge any provision of the rule
518and is not limited to challenging the change to the proposed
520     Section 5.  This act shall take effect upon becoming a law.

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