CS/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 is
5expected to require legislative ratification; clarifying
6that a statement of estimated regulatory costs is not
7required for emergency rulemaking; providing for
8modification or withdrawal of an adopted rule that is not
9ratified by the Legislature; clarifying that certain
10proposed rules are effective only when ratified by the
11Legislature; amending s. 120.541, F.S.; reducing the time
12before an agency files a rule for adoption when the agency
13must notify the person who submitted a lower cost
14alternative and the Administrative Procedures Committee;
15exempting rules adopting certain federal standards,
16triennial updates to the Florida Building Code, and
17triennial updates to the Florida Fire Prevention Code from
18required legislative ratification; deleting an exemption
19for rules that adopt federal standards from a requirement
20that an agency's statement of a rule's estimated
21regulatory costs include an economic analysis of the
22rule's adverse impacts and regulatory costs; exempting
23emergency rulemaking from application of the section;
24creating s. 120.547, F.S.; providing legislative findings
25and definitions; providing for the review of rulemaking
26and the summary repeal of rules by statewide elected
27executive officers, the Governor and Cabinet, and the
28State Board of Administration within the first 6 months of
29an elective term; specifying agencies and rules subject to
30summary repeal; providing procedures for notice of the
31repeal; providing for objection to the repeal; providing
32nonapplicability of other provisions of law to the summary
33repeal process; providing requirements for judicial review
34of the repeal; providing for exclusive and nondelegable
35authority; amending s. 120.56, F.S.; reducing the time in
36which a substantially affected person may seek an
37administrative determination of the invalidity of a rule
38after the statement or revised statement of estimated
39regulatory costs is available; providing an effective
42Be It Enacted by the Legislature of the State of Florida:
44     Section 1.  Paragraphs (a), (b), (d), and (e) of subsection
45(3) of section 120.54, Florida Statutes, as amended by chapter
462010-279, Laws of Florida, are amended to read:
47     120.54  Rulemaking.-
49     (a)  Notices.-
50     1.  Prior to the adoption, amendment, or repeal of any rule
51other than an emergency rule, an agency, upon approval of the
52agency head, shall give notice of its intended action, setting
53forth a short, plain explanation of the purpose and effect of
54the proposed action; the full text of the proposed rule or
55amendment and a summary thereof; a reference to the grant of
56rulemaking authority pursuant to which the rule is adopted; and
57a reference to the section or subsection of the Florida Statutes
58or the Laws of Florida being implemented or interpreted. The
59notice must include a summary of the agency's statement of the
60estimated regulatory costs, if one has been prepared, based on
61the factors set forth in s. 120.541(2);, and a statement that
62any person who wishes to provide the agency with information
63regarding the statement of estimated regulatory costs, or to
64provide a proposal for a lower cost regulatory alternative as
65provided by s. 120.541(1), must do so in writing within 21 days
66after publication of the notice; and a statement as to whether,
67based on the statement of estimated regulatory costs, the
68proposed rule is expected to require legislative ratification
69pursuant to s. 120.541(3). The notice must state the procedure
70for requesting a public hearing on the proposed rule. Except
71when the intended action is the repeal of a rule, the notice
72must include a reference both to the date on which and to the
73place where the notice of rule development that is required by
74subsection (2) appeared.
75     2.  The notice shall be published in the Florida
76Administrative Weekly not less than 28 days prior to the
77intended action. The proposed rule shall be available for
78inspection and copying by the public at the time of the
79publication of notice.
80     3.  The notice shall be mailed to all persons named in the
81proposed rule and to all persons who, at least 14 days prior to
82such mailing, have made requests of the agency for advance
83notice of its proceedings. The agency shall also give such
84notice as is prescribed by rule to those particular classes of
85persons to whom the intended action is directed.
86     4.  The adopting agency shall file with the committee, at
87least 21 days prior to the proposed adoption date, a copy of
88each rule it proposes to adopt; a copy of any material
89incorporated by reference in the rule; a detailed written
90statement of the facts and circumstances justifying the proposed
91rule; a copy of any statement of estimated regulatory costs that
92has been prepared pursuant to s. 120.541; a statement of the
93extent to which the proposed rule relates to federal standards
94or rules on the same subject; and the notice required by
95subparagraph 1.
96     (b)  Special matters to be considered in rule adoption.-
97     1.  Statement of estimated regulatory costs.-Prior to the
98adoption, amendment, or repeal of any rule other than an
99emergency rule, an agency is encouraged to prepare a statement
100of estimated regulatory costs of the proposed rule, as provided
101by s. 120.541. However, an agency must prepare a statement of
102estimated regulatory costs of the proposed rule, as provided by
103s. 120.541, if:
104     a.  The proposed rule will have an adverse impact on small
105business; or
106     b.  The proposed rule is likely to directly or indirectly
107increase regulatory costs in excess of $200,000 in the aggregate
108in this state within 1 year after the implementation of the
110     2.  Small businesses, small counties, and small cities.-
111     a.  Each agency, before the adoption, amendment, or repeal
112of a rule, shall consider the impact of the rule on small
113businesses as defined by s. 288.703 and the impact of the rule
114on small counties or small cities as defined by s. 120.52.
115Whenever practicable, an agency shall tier its rules to reduce
116disproportionate impacts on small businesses, small counties, or
117small cities to avoid regulating small businesses, small
118counties, or small cities that do not contribute significantly
119to the problem the rule is designed to address. An agency may
120define "small business" to include businesses employing more
121than 200 persons, may define "small county" to include those
122with populations of more than 75,000, and may define "small
123city" to include those with populations of more than 10,000, if
124it finds that such a definition is necessary to adapt a rule to
125the needs and problems of small businesses, small counties, or
126small cities. The agency shall consider each of the following
127methods for reducing the impact of the proposed rule on small
128businesses, small counties, and small cities, or any combination
129of these entities:
130     (I)  Establishing less stringent compliance or reporting
131requirements in the rule.
132     (II)  Establishing less stringent schedules or deadlines in
133the rule for compliance or reporting requirements.
134     (III)  Consolidating or simplifying the rule's compliance
135or reporting requirements.
136     (IV)  Establishing performance standards or best management
137practices to replace design or operational standards in the
139     (V)  Exempting small businesses, small counties, or small
140cities from any or all requirements of the rule.
141     b.(I)  If the agency determines that the proposed action
142will affect small businesses as defined by the agency as
143provided in sub-subparagraph a., the agency shall send written
144notice of the rule to the Small Business Regulatory Advisory
145Council and the Office of Tourism, Trade, and Economic
146Development not less than 28 days prior to the intended action.
147     (II)  Each agency shall adopt those regulatory alternatives
148offered by the Small Business Regulatory Advisory Council and
149provided to the agency no later than 21 days after the council's
150receipt of the written notice of the rule which it finds are
151feasible and consistent with the stated objectives of the
152proposed rule and which would reduce the impact on small
153businesses. When regulatory alternatives are offered by the
154Small Business Regulatory Advisory Council, the 90-day period
155for filing the rule in subparagraph (e)2. is extended for a
156period of 21 days.
157     (III)  If an agency does not adopt all alternatives offered
158pursuant to this sub-subparagraph, it shall, prior to rule
159adoption or amendment and pursuant to subparagraph (d)1., file a
160detailed written statement with the committee explaining the
161reasons for failure to adopt such alternatives. Within 3 working
162days of the filing of such notice, the agency shall send a copy
163of such notice to the Small Business Regulatory Advisory
164Council. The Small Business Regulatory Advisory Council may make
165a request of the President of the Senate and the Speaker of the
166House of Representatives that the presiding officers direct the
167Office of Program Policy Analysis and Government Accountability
168to determine whether the rejected alternatives reduce the impact
169on small business while meeting the stated objectives of the
170proposed rule. Within 60 days after the date of the directive
171from the presiding officers, the Office of Program Policy
172Analysis and Government Accountability shall report to the
173Administrative Procedures Committee its findings as to whether
174an alternative reduces the impact on small business while
175meeting the stated objectives of the proposed rule. The Office
176of Program Policy Analysis and Government Accountability shall
177consider the proposed rule, the economic impact statement, the
178written statement of the agency, the proposed alternatives, and
179any comment submitted during the comment period on the proposed
180rule. The Office of Program Policy Analysis and Government
181Accountability shall submit a report of its findings and
182recommendations to the Governor, the President of the Senate,
183and the Speaker of the House of Representatives. The
184Administrative Procedures Committee shall report such findings
185to the agency, and the agency shall respond in writing to the
186Administrative Procedures Committee if the Office of Program
187Policy Analysis and Government Accountability found that the
188alternative reduced the impact on small business while meeting
189the stated objectives of the proposed rule. If the agency will
190not adopt the alternative, it must also provide a detailed
191written statement to the committee as to why it will not adopt
192the alternative.
193     3.  This paragraph does not apply to the adoption of
194emergency rules pursuant to subsection (4).
195     (d)  Modification or withdrawal of proposed rules.-
196     1.  After the final public hearing on the proposed rule, or
197after the time for requesting a hearing has expired, if the rule
198has not been changed from the rule as previously filed with the
199committee, or contains only technical changes, the adopting
200agency shall file a notice to that effect with the committee at
201least 7 days prior to filing the rule for adoption. Any change,
202other than a technical change that does not affect the substance
203of the rule, must be supported by the record of public hearings
204held on the rule, must be in response to written material
205submitted to the agency within 21 days after the date of
206publication of the notice of intended agency action or submitted
207to the agency between the date of publication of the notice and
208the end of the final public hearing, or must be in response to a
209proposed objection by the committee. In addition, when any
210change is made in a proposed rule, other than a technical
211change, the adopting agency shall provide a copy of a notice of
212change by certified mail or actual delivery to any person who
213requests it in writing no later than 21 days after the notice
214required in paragraph (a). The agency shall file the notice of
215change with the committee, along with the reasons for the
216change, and provide the notice of change to persons requesting
217it, at least 21 days prior to filing the rule for adoption. The
218notice of change shall be published in the Florida
219Administrative Weekly at least 21 days prior to filing the rule
220for adoption. This subparagraph does not apply to emergency
221rules adopted pursuant to subsection (4).
222     2.  After the notice required by paragraph (a) and prior to
223adoption, the agency may withdraw the rule in whole or in part.
224     3.  After adoption and before the rule becomes effective
225date, a rule may be modified or withdrawn only in the following
227     a.  When the committee objects to the rule;
228     b.  When a final order, not subject to further appeal, is
229entered in a rule challenge brought pursuant to s. 120.56 after
230the date of adoption but before the rule becomes effective
231pursuant to subparagraph (e)6.;
232     c.  When the rule requires ratification and more than 90
233days have passed since the rule was filed for adoption without
234the Legislature ratifying the rule; or
235     d.  response to an objection by the committee or may be
236modified to extend the effective date by not more than 60 days
237When the committee notifies has notified the agency that an
238objection to the rule is being considered, in which case the
239rule may be modified to extend the effective date by not more
240than 60 days.
241     4.  The agency shall give notice of its decision to
242withdraw or modify a rule in the first available issue of the
243publication in which the original notice of rulemaking was
244published, shall notify those persons described in subparagraph
245(a)3. in accordance with the requirements of that subparagraph,
246and shall notify the Department of State if the rule is required
247to be filed with the Department of State.
248     5.  After a rule has become effective, it may be repealed
249or amended only through the rulemaking procedures specified in
250this chapter.
251     (e)  Filing for final adoption; effective date.-
252     1.  If the adopting agency is required to publish its rules
253in the Florida Administrative Code, the agency, upon approval of
254the agency head, shall file with the Department of State three
255certified copies of the rule it proposes to adopt; one copy of
256any material incorporated by reference in the rule, certified by
257the agency; a summary of the rule; a summary of any hearings
258held on the rule; and a detailed written statement of the facts
259and circumstances justifying the rule. Agencies not required to
260publish their rules in the Florida Administrative Code shall
261file one certified copy of the proposed rule, and the other
262material required by this subparagraph, in the office of the
263agency head, and such rules shall be open to the public.
264     2.  A rule may not be filed for adoption less than 28 days
265or more than 90 days after the notice required by paragraph (a),
266until 21 days after the notice of change required by paragraph
267(d), until 14 days after the final public hearing, until 21 days
268after a statement of estimated regulatory costs required under
269s. 120.541 has been provided to all persons who submitted a
270lower cost regulatory alternative and made available to the
271public, or until the administrative law judge has rendered a
272decision under s. 120.56(2), whichever applies. When a required
273notice of change is published prior to the expiration of the
274time to file the rule for adoption, the period during which a
275rule must be filed for adoption is extended to 45 days after the
276date of publication. If notice of a public hearing is published
277prior to the expiration of the time to file the rule for
278adoption, the period during which a rule must be filed for
279adoption is extended to 45 days after adjournment of the final
280hearing on the rule, 21 days after receipt of all material
281authorized to be submitted at the hearing, or 21 days after
282receipt of the transcript, if one is made, whichever is latest.
283The term "public hearing" includes any public meeting held by
284any agency at which the rule is considered. If a petition for an
285administrative determination under s. 120.56(2) is filed, the
286period during which a rule must be filed for adoption is
287extended to 60 days after the administrative law judge files the
288final order with the clerk or until 60 days after subsequent
289judicial review is complete.
290     3.  At the time a rule is filed, the agency shall certify
291that the time limitations prescribed by this paragraph have been
292complied with, that all statutory rulemaking requirements have
293been met, and that there is no administrative determination
294pending on the rule.
295     4.  At the time a rule is filed, the committee shall
296certify whether the agency has responded in writing to all
297material and timely written comments or written inquiries made
298on behalf of the committee. The department shall reject any rule
299that is not filed within the prescribed time limits; that does
300not comply with all statutory rulemaking requirements and rules
301of the department; upon which an agency has not responded in
302writing to all material and timely written inquiries or written
303comments; upon which an administrative determination is pending;
304or which does not include a statement of estimated regulatory
305costs, if required.
306     5.  If a rule has not been adopted within the time limits
307imposed by this paragraph or has not been adopted in compliance
308with all statutory rulemaking requirements, the agency proposing
309the rule shall withdraw the rule and give notice of its action
310in the next available issue of the Florida Administrative
312     6.  The proposed rule shall be adopted on being filed with
313the Department of State and become effective 20 days after being
314filed, on a later date specified in the notice required by
315subparagraph (a)1., or on a date required by statute, or upon
316ratification by the Legislature pursuant to s. 120.541(3). Rules
317not required to be filed with the Department of State shall
318become effective when adopted by the agency head, or on a later
319date specified by rule or statute, or upon ratification by the
320Legislature pursuant to s. 120.541(3). If the committee notifies
321an agency that an objection to a rule is being considered, the
322agency may postpone the adoption of the rule to accommodate
323review of the rule by the committee. When an agency postpones
324adoption of a rule to accommodate review by the committee, the
32590-day period for filing the rule is tolled until the committee
326notifies the agency that it has completed its review of the
329For the purposes of this paragraph, the term "administrative
330determination" does not include subsequent judicial review.
331     Section 2.  Paragraph (d) of subsection (1) and subsection
332(4) of section 120.541, Florida Statutes, as amended by chapter
3332010-279, Laws of Florida, are amended, and subsection (5) is
334added to that section, to read:
335     120.541  Statement of estimated regulatory costs.-
336     (1)
337     (d)  At least 21 45 days before filing the rule for
338adoption, an agency that is required to revise a statement of
339estimated regulatory costs shall provide the statement to the
340person who submitted the lower cost regulatory alternative and
341to the committee and shall provide notice on the agency's
342website that it is available to the public.
343     (3)  If the adverse impact or regulatory costs of the rule
344exceed any of the criteria established in paragraph (2)(a), the
345rule shall be submitted to the President of the Senate and
346Speaker of the House of Representatives no later than 30 days
347prior to the next regular legislative session, and the rule may
348not take effect until it is ratified by the Legislature.
349     (4)  Subsection (3) Paragraph (2)(a) does not apply to the
350adoption of:
351     (a)  emergency rules pursuant to s. 120.54(4) or the
352adoption of Federal standards pursuant to s. 120.54(6).
353     (b)  Triennial updates to the Florida Building Code
354pursuant to s. 553.73(7)(a).
355     (c)  Triennial updates to the Florida Fire Prevention Code
356pursuant to s. 633.0215(1).
357     (5)  This section does not apply to the adoption of
358emergency rules pursuant to s. 120.54(4).
359     Section 3.  Section 120.547, Florida Statutes, is created
360to read:
361     120.547  Summary procedure for rule review and repeal
362during inaugural period.-
363     (1)  LEGISLATIVE FINDINGS.-The Legislature finds that newly
364elected statewide executive officers should have full authority
365to initiate oversight of all rulemaking of agencies under their
366supervision or control. The Legislature further finds that the
367formal process for repealing rules as required under s.
368120.54(3)(d)5. may unnecessarily delay efforts for statewide
369elected executive officers to review and revise the programs and
370policies within their respective individual or collective
371jurisdiction at the commencement of their elective terms.
372Accordingly, the Legislature finds a prudent, expedited process
373providing for the review of rulemaking and the summary repeal of
374existing rules within the beginning months of a statewide
375executive officer's elective term may assist those officers in
376the articulation and implementation of public policy.
377     (2)  DEFINITIONS.-As used in this section, the term:
378     (a)  "Inaugural period" means the time from the first date
379of an elective term of the Governor, the Chief Financial
380Officer, the Attorney General, or the Commissioner of
381Agriculture, as provided in s. 5(a), Art. IV of the State
382Constitution, through the last day of the month of the June
383following the beginning of the term.
384     (b)  "Repealing authority" means a statewide elected
385executive officer, the Governor and Cabinet, or the State Board
386of Administration exercising jurisdiction to repeal a rule.
387     (c)  "Statewide elected executive officer" means the
388Governor, the Chief Financial Officer, the Attorney General, or
389the Commissioner of Agriculture.
390     (3)  AGENCIES AND RULES AFFECTED.-Exclusively during the
391inaugural period, each repealing authority is authorized to
392direct the repeal of rules using the summary procedure provided
393in this section with respect to rules of any agency under the
394direct supervision of the repealing authority or under the
395supervision of an agency head appointed by and serving at the
396pleasure of the repealing authority.
397     (4)  NOTICE OF REPEAL.-The repealing authority shall direct
398the repeal of rules as follows:
399     (a)  On or before March 1 during the inaugural period, or,
400during the year 2011, within 30 days after the effective date of
401this act, the repealing authority shall provide notice to the
402public, on an Internet website, or to the Legislature, by a
403letter to the President of the Senate, the Speaker of the House
404of Representatives, and the committee, the Florida
405Administrative Code citation of each rule under review for
406possible repeal under this section.
407     (b)  For each rule to be repealed under this section, the
408repealing authority shall make a written finding containing the
410     1.  The number and title of the rule to be repealed.
411     2.  The agency that adopted the rule.
412     3.  The conclusion that the law implemented by the rule
413does not require the continued existence of the rule or any
414modification thereof.
415     4.  The basis for repeal, which includes, but is not
416limited to, the following:
417     a.  The rule is obsolete or no longer necessary;
418     b.  The substantive law that the rule implements or
419interprets in compliance with s. 120.536(1) was amended or
420repealed; or
421     c.  The rule conflicts with programs or policies that the
422repealing authority has implemented or intends to implement.
423     5.  The name, title, address, and e-mail address of the
424person designated by the repealing authority to receive
425inquiries, correspondence, objections, or notices in response to
426the proposed repeal.
427     6.  The date on which the rule is repealed and is no longer
428in force or effect.
429     (c)  The adopting agency shall publish notice of the
430written finding directing repeal of the rule on the agency's
431Internet website, including in such notice the date of first
432publication, and shall also publish the notice and written
433finding, including the Internet website on which the notice was
434first published, in the Florida Administrative Weekly that is
435first available after the date the written finding is executed
436by the repealing authority.
437     (d)  Repeal of a rule under this section may be effective
438no earlier than 15 days after the date the notice of repeal is
439published on the agency's Internet website, but may not be
440effective earlier than March 31 in the inaugural period.
441     (5)  OBJECTION TO REPEAL.-A substantially affected person
442may object to the repeal of a rule under this section.
443     (a)  An objection may be made only on the basis that:
444     1.  The repealing authority failed to provide the notices
445required under this section;
446     2.  The repealing authority made an erroneous conclusion of
447law under subparagraph(4)(b)3.; or
448     3.  The repeal constitutes an invalid exercise of delegated
449legislative authority.
450     (b)  No later than 14 days after the date the notice of
451repeal is published on the agency's Internet website, the person
452must file with the individual designated in subparagraph
453(4)(b)5. a written objection to repeal stating:
454     1.  The name, address, telephone number, and e-mail address
455of the person opposing the repeal.
456     2.  A concise statement of the facts and law on which the
457objection relies.
458     (c)  Failure to file an objection in the time and manner
459provided in this subsection constitutes a full and complete
460waiver of the objection, an affirmative assent to the proposed
461repeal, and a full and complete waiver of judicial review under
462s. 120.68.
463     (d)  If an objection is timely filed, the repeal is not
464effective until the repealing authority overrules the objection
465in writing and notice of that disposition is published in the
466manner provided in paragraph (4)(c).
467     (6)  NONAPPLICABLE SECTIONS.-Sections 120.54, 120.541,
468120.56, 120.569, 120.57, 120.573, 120.574, and 120.69 are not
469applicable to the repeal of rules under this section.
470     (7)  JUDICIAL REVIEW.-A substantially affected party whose
471timely written objection to the proposed repeal is overruled by
472the repealing authority may seek judicial review of that
473decision under s. 120.68, as modified by the following:
474     (a)  Notwithstanding any other statute, the First District
475Court of Appeal has exclusive jurisdiction of any petition for
476judicial review of the repeal of rules under this section.
477     (b)  A petition for judicial review may be brought only
478against the agency that adopted the rule and not against the
479repealing authority.
480     (c)  The record for review shall be comprised solely of the
481written finding of repeal, the written objection, the written
482disposition of the objection, and, if the objection raised the
483failure to provide notices required under this section, the
484record shall include a verified statement of the repealing
485authority, if an individual elected officer, or of the Governor
486with respect to any other repealing authority, setting forth the
487facts relied upon in overruling the objection.
488     (8)  NONDELEGABLE AUTHORITY.-The authority to determine and
489direct the repeal of agency rules under this section, other than
490the receipt of inquiries, correspondence, petitions, or notices
491in response to a proposed repeal, shall be exercised exclusively
492by the repealing authority having supervisory or appointive
493authority with respect to the affected agency and may not be
494delegated to any other person.
495     Section 4.  Paragraph (a) of subsection (2) of section
496120.56, Florida Statutes, as amended by chapter 2010-279, Laws
497of Florida, is amended to read:
498     120.56  Challenges to rules.-
500     (a)  A substantially affected person may seek an
501administrative determination of the invalidity of a proposed
502rule by filing a petition seeking such a determination with the
503division within 21 days after the date of publication of the
504notice required by s. 120.54(3)(a); within 10 days after the
505final public hearing is held on the proposed rule as provided by
506s. 120.54(3)(e)2.; within 20 44 days after the statement of
507estimated regulatory costs or revised statement of estimated
508regulatory costs, if applicable, has been prepared and made
509available as provided in s. 120.541(1)(d); or within 20 days
510after the date of publication of the notice required by s.
511120.54(3)(d). The petition must state with particularity the
512objections to the proposed rule and the reasons that the
513proposed rule is an invalid exercise of delegated legislative
514authority. The petitioner has the burden of going forward. The
515agency then has the burden to prove by a preponderance of the
516evidence that the proposed rule is not an invalid exercise of
517delegated legislative authority as to the objections raised. A
518person who is substantially affected by a change in the proposed
519rule may seek a determination of the validity of such change. A
520person who is not substantially affected by the proposed rule as
521initially noticed, but who is substantially affected by the rule
522as a result of a change, may challenge any provision of the rule
523and is not limited to challenging the change to the proposed
525     Section 5.  This act shall take effect upon becoming a law.

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