CS for CS/CS/HB 993 & HB 7239

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; providing for
6withdrawal of an adopted rule that is not ratified by the
7Legislature; clarifying that certain proposed rules are
8effective only when ratified by the Legislature; amending
9s. 120.541, F.S.; reducing the time before an agency files
10a rule for adoption within which the agency must notify
11the person who submitted a lower cost alternative and the
12Administrative Procedures Committee; excluding rules
13adopting federal standards and emergency rulemaking from
14certain provisions; amending s. 120.56, F.S.; reducing the
15time in which a substantially affected person may seek an
16administrative determination of the invalidity of a rule
17after the statement or revised statement of estimated
18regulatory costs is available; amending s. 120.74, F.S.;
19providing for agency reporting of certain annual
20regulatory plans; providing for certain omissions and
21suspensions of reports; creating s. 120.745, F.S.;
22providing for legislative review of agency rules in effect
23on or before November 16, 2010; providing definitions;
24requiring that each agency complete an enhanced biennial
25review of its existing rules; requiring a report of the
26enhanced biennial review; providing specifications for the
27report; providing for objections and the agency's
28response; requiring the performance of a compliance
29economic review and report under certain circumstances;
30providing specifications for the review; providing
31specifications for publishing the final report of the
32agency's review; requiring that an agency publish notices,
33determinations, and reports in a specified format;
34requiring the Department of State to publish certain
35notices in the Florida Administrative Weekly; providing
36specifications; providing for future review and repeal;
37providing for suspension of rulemaking authority for
38failure to comply with the certification requirements of
39the section; providing for an exemption from certain
40requirements; creating s. 120.7455, F.S.; providing that
41the Legislature may establish and maintain an Internet-
42based public survey of regulatory impacts; providing input
43details; providing that legislative leaders may certify in
44writing to certain individuals the establishment and
45identity of any such Internet-based survey; providing
46immunities from enforcement action or prosecution
47involving information solicited through the survey;
48providing protections from retaliatory enforcement
49actions; clarifying that the legal status of a rule that
50has been determined to be invalid is not changed by the
51amendment or creation of specified provisions by the act;
52amending s. 120.80, F.S.; exempting the adoption of
53certain amendments and the triennial updates to the
54Florida Building Code from required legislative
55ratification; exempting the adoption of certain amendments
56and the triennial updates to the Florida Fire Prevention
57Code from required legislative ratification; exempting the
58adoption of rules adjusting rates of certain
59transportation and expressway tolls from the preparation
60of a statement of estimated regulatory costs and from
61submission for legislative ratification; amending s.
62120.81, F.S.; excluding the adoption of rules under
63chapter 2011-1, Laws of Florida, the Student Success Act,
64from the preparation of a statement of estimated
65regulatory costs and from submission for legislative
66ratification; amending s. 120.569, F.S.; providing that a
67nonapplicant who petitions to challenge an agency's
68issuance of a license, permit, or conceptual approval in
69certain circumstances has the burden of ultimate
70persuasion and the burden of going forward with evidence;
71providing an effective date.
73Be It Enacted by the Legislature of the State of Florida:
75     Section 1.  Paragraphs (a), (d), and (e) of subsection (3)
76of section 120.54, Florida Statutes, as amended by chapter 2010-
77279, Laws of Florida, are amended to read:
78     120.54  Rulemaking.-
80     (a)  Notices.-
81     1.  Prior to the adoption, amendment, or repeal of any rule
82other than an emergency rule, an agency, upon approval of the
83agency head, shall give notice of its intended action, setting
84forth a short, plain explanation of the purpose and effect of
85the proposed action; the full text of the proposed rule or
86amendment and a summary thereof; a reference to the grant of
87rulemaking authority pursuant to which the rule is adopted; and
88a reference to the section or subsection of the Florida Statutes
89or the Laws of Florida being implemented or interpreted. The
90notice must include a summary of the agency's statement of the
91estimated regulatory costs, if one has been prepared, based on
92the factors set forth in s. 120.541(2);, and a statement that
93any person who wishes to provide the agency with information
94regarding the statement of estimated regulatory costs, or to
95provide a proposal for a lower cost regulatory alternative as
96provided by s. 120.541(1), must do so in writing within 21 days
97after publication of the notice; and a statement as to whether,
98based on the statement of the estimated regulatory costs or
99other information expressly relied upon and described by the
100agency if no statement of regulatory costs is required, the
101proposed rule is expected to require legislative ratification
102pursuant to s. 120.541(3). The notice must state the procedure
103for requesting a public hearing on the proposed rule. Except
104when the intended action is the repeal of a rule, the notice
105must include a reference both to the date on which and to the
106place where the notice of rule development that is required by
107subsection (2) appeared.
108     2.  The notice shall be published in the Florida
109Administrative Weekly not less than 28 days prior to the
110intended action. The proposed rule shall be available for
111inspection and copying by the public at the time of the
112publication of notice.
113     3.  The notice shall be mailed to all persons named in the
114proposed rule and to all persons who, at least 14 days prior to
115such mailing, have made requests of the agency for advance
116notice of its proceedings. The agency shall also give such
117notice as is prescribed by rule to those particular classes of
118persons to whom the intended action is directed.
119     4.  The adopting agency shall file with the committee, at
120least 21 days prior to the proposed adoption date, a copy of
121each rule it proposes to adopt; a copy of any material
122incorporated by reference in the rule; a detailed written
123statement of the facts and circumstances justifying the proposed
124rule; a copy of any statement of estimated regulatory costs that
125has been prepared pursuant to s. 120.541; a statement of the
126extent to which the proposed rule relates to federal standards
127or rules on the same subject; and the notice required by
128subparagraph 1.
129     (d)  Modification or withdrawal of proposed rules.-
130     1.  After the final public hearing on the proposed rule, or
131after the time for requesting a hearing has expired, if the rule
132has not been changed from the rule as previously filed with the
133committee, or contains only technical changes, the adopting
134agency shall file a notice to that effect with the committee at
135least 7 days prior to filing the rule for adoption. Any change,
136other than a technical change that does not affect the substance
137of the rule, must be supported by the record of public hearings
138held on the rule, must be in response to written material
139submitted to the agency within 21 days after the date of
140publication of the notice of intended agency action or submitted
141to the agency between the date of publication of the notice and
142the end of the final public hearing, or must be in response to a
143proposed objection by the committee. In addition, when any
144change is made in a proposed rule, other than a technical
145change, the adopting agency shall provide a copy of a notice of
146change by certified mail or actual delivery to any person who
147requests it in writing no later than 21 days after the notice
148required in paragraph (a). The agency shall file the notice of
149change with the committee, along with the reasons for the
150change, and provide the notice of change to persons requesting
151it, at least 21 days prior to filing the rule for adoption. The
152notice of change shall be published in the Florida
153Administrative Weekly at least 21 days prior to filing the rule
154for adoption. This subparagraph does not apply to emergency
155rules adopted pursuant to subsection (4).
156     2.  After the notice required by paragraph (a) and prior to
157adoption, the agency may withdraw the rule in whole or in part.
158     3.  After adoption and before the rule becomes effective
159date, a rule may be modified or withdrawn only in the following
161     a.  When the committee objects to the rule;
162     b.  When a final order, which is not subject to further
163appeal, is entered in a rule challenge brought pursuant to s.
164120.56 after the date of adoption but before the rule becomes
165effective pursuant to subparagraph (e)6.;
166     c.  If the rule requires ratification, when more than 90
167days have passed since the rule was filed for adoption without
168the Legislature ratifying the rule, in which case the rule may
169be withdrawn but may not be modified; or
170     d.  response to an objection by the committee or may be
171modified to extend the effective date by not more than 60 days
172When the committee notifies has notified the agency that an
173objection to the rule is being considered, in which case the
174rule may be modified to extend the effective date by not more
175than 60 days.
176     4.  The agency shall give notice of its decision to
177withdraw or modify a rule in the first available issue of the
178publication in which the original notice of rulemaking was
179published, shall notify those persons described in subparagraph
180(a)3. in accordance with the requirements of that subparagraph,
181and shall notify the Department of State if the rule is required
182to be filed with the Department of State.
183     5.  After a rule has become effective, it may be repealed
184or amended only through the rulemaking procedures specified in
185this chapter.
186     (e)  Filing for final adoption; effective date.-
187     1.  If the adopting agency is required to publish its rules
188in the Florida Administrative Code, the agency, upon approval of
189the agency head, shall file with the Department of State three
190certified copies of the rule it proposes to adopt; one copy of
191any material incorporated by reference in the rule, certified by
192the agency; a summary of the rule; a summary of any hearings
193held on the rule; and a detailed written statement of the facts
194and circumstances justifying the rule. Agencies not required to
195publish their rules in the Florida Administrative Code shall
196file one certified copy of the proposed rule, and the other
197material required by this subparagraph, in the office of the
198agency head, and such rules shall be open to the public.
199     2.  A rule may not be filed for adoption less than 28 days
200or more than 90 days after the notice required by paragraph (a),
201until 21 days after the notice of change required by paragraph
202(d), until 14 days after the final public hearing, until 21 days
203after a statement of estimated regulatory costs required under
204s. 120.541 has been provided to all persons who submitted a
205lower cost regulatory alternative and made available to the
206public, or until the administrative law judge has rendered a
207decision under s. 120.56(2), whichever applies. When a required
208notice of change is published prior to the expiration of the
209time to file the rule for adoption, the period during which a
210rule must be filed for adoption is extended to 45 days after the
211date of publication. If notice of a public hearing is published
212prior to the expiration of the time to file the rule for
213adoption, the period during which a rule must be filed for
214adoption is extended to 45 days after adjournment of the final
215hearing on the rule, 21 days after receipt of all material
216authorized to be submitted at the hearing, or 21 days after
217receipt of the transcript, if one is made, whichever is latest.
218The term "public hearing" includes any public meeting held by
219any agency at which the rule is considered. If a petition for an
220administrative determination under s. 120.56(2) is filed, the
221period during which a rule must be filed for adoption is
222extended to 60 days after the administrative law judge files the
223final order with the clerk or until 60 days after subsequent
224judicial review is complete.
225     3.  At the time a rule is filed, the agency shall certify
226that the time limitations prescribed by this paragraph have been
227complied with, that all statutory rulemaking requirements have
228been met, and that there is no administrative determination
229pending on the rule.
230     4.  At the time a rule is filed, the committee shall
231certify whether the agency has responded in writing to all
232material and timely written comments or written inquiries made
233on behalf of the committee. The department shall reject any rule
234that is not filed within the prescribed time limits; that does
235not comply with all statutory rulemaking requirements and rules
236of the department; upon which an agency has not responded in
237writing to all material and timely written inquiries or written
238comments; upon which an administrative determination is pending;
239or which does not include a statement of estimated regulatory
240costs, if required.
241     5.  If a rule has not been adopted within the time limits
242imposed by this paragraph or has not been adopted in compliance
243with all statutory rulemaking requirements, the agency proposing
244the rule shall withdraw the rule and give notice of its action
245in the next available issue of the Florida Administrative
247     6.  The proposed rule shall be adopted on being filed with
248the Department of State and become effective 20 days after being
249filed, on a later date specified in the notice required by
250subparagraph (a)1., or on a date required by statute, or upon
251ratification by the Legislature pursuant to s. 120.541(3). Rules
252not required to be filed with the Department of State shall
253become effective when adopted by the agency head, or on a later
254date specified by rule or statute, or upon ratification by the
255Legislature pursuant to s. 120.541(3). If the committee notifies
256an agency that an objection to a rule is being considered, the
257agency may postpone the adoption of the rule to accommodate
258review of the rule by the committee. When an agency postpones
259adoption of a rule to accommodate review by the committee, the
26090-day period for filing the rule is tolled until the committee
261notifies the agency that it has completed its review of the
264For the purposes of this paragraph, the term "administrative
265determination" does not include subsequent judicial review.
266     Section 2.  Paragraph (d) of subsection (1) and subsection
267(4) of section 120.541, Florida Statutes, as amended by chapter
2682010-279, Laws of Florida, are amended to read:
269     120.541  Statement of estimated regulatory costs.-
270     (1)
271     (d)  At least 21 45 days before filing the rule for
272adoption, an agency that is required to revise a statement of
273estimated regulatory costs shall provide the statement to the
274person who submitted the lower cost regulatory alternative and
275to the committee and shall provide notice on the agency's
276website that it is available to the public.
277     (4)  This section Paragraph (2)(a) does not apply to the
278adoption of emergency rules pursuant to s. 120.54(4) or the
279adoption of federal standards pursuant to s. 120.54(6).
280     Section 3.  Paragraph (a) of subsection (2) of section
281120.56, Florida Statutes, as amended by chapter 2010-279, Laws
282of Florida, is amended to read:
283     120.56  Challenges to rules.-
285     (a)  A substantially affected person may seek an
286administrative determination of the invalidity of a proposed
287rule by filing a petition seeking such a determination with the
288division within 21 days after the date of publication of the
289notice required by s. 120.54(3)(a); within 10 days after the
290final public hearing is held on the proposed rule as provided by
291s. 120.54(3)(e)2.; within 20 44 days after the statement of
292estimated regulatory costs or revised statement of estimated
293regulatory costs, if applicable, has been prepared and made
294available as provided in s. 120.541(1)(d); or within 20 days
295after the date of publication of the notice required by s.
296120.54(3)(d). The petition must state with particularity the
297objections to the proposed rule and the reasons that the
298proposed rule is an invalid exercise of delegated legislative
299authority. The petitioner has the burden of going forward. The
300agency then has the burden to prove by a preponderance of the
301evidence that the proposed rule is not an invalid exercise of
302delegated legislative authority as to the objections raised. A
303person who is substantially affected by a change in the proposed
304rule may seek a determination of the validity of such change. A
305person who is not substantially affected by the proposed rule as
306initially noticed, but who is substantially affected by the rule
307as a result of a change, may challenge any provision of the rule
308and is not limited to challenging the change to the proposed
310     Section 4.  Subsections (3) and (4) are added to section
311120.74, Florida Statutes, to read:
312     120.74  Agency review, revision, and report.-
313     (3)  Beginning in 2012, and no later than July 1 of each
314year, each agency shall file with the President of the Senate,
315the Speaker of the House of Representatives, and the committee a
316regulatory plan identifying and describing each rule the agency
317proposes to adopt for the 12-month period beginning on the July
3181 reporting date and ending on the subsequent June 30, excluding
319emergency rules.
320     (4)  For the year 2011, the certification required in
321subsection (2) may omit any information included in the reports
322provided under s. 120.745. Reporting under subsections (1) and
323(2) shall be suspended for the year 2013, but required reporting
324under those subsections shall resume in 2015 and biennially
326     Section 5.  Section 120.745, Florida Statutes, is created
327to read:
328     120.745  Legislative review of agency rules in effect on or
329before November 16, 2010.-
330     (1)  DEFINITIONS.-The following definitions apply
331exclusively to this section:
332     (a)  "Agency" has the same meaning and application as
333provided in s. 120.52(1), but for the purposes of this section
334excludes each officer and governmental entity in the state with
335jurisdiction in one county or less than one county.
336     (b)  "Compliance economic review" means a good faith
337economic analysis that includes and presents the following
338information pertaining to a particular rule:
339     1.  A justification for the rule summarizing the benefits
340of the rule; and
341     2.  A statement of estimated regulatory costs as described
342in s. 120.541(2); however:
343     a.  The applicable period for the economic analysis shall
344be 5 years beginning on July 1, 2011;
345     b.  For the analysis required in s. 120.541(2)(a)3., the
346estimated regulatory costs over the 5-year period shall be used
347instead of the likely increase in regulatory costs after
348implementation; and
349     c.  An explanation of the methodology used to conduct the
350analysis must be provided. A technical methodology need not be
351used to develop the statement of estimated regulatory costs, if
352the agency uses routine regulatory communications or its
353Internet website to reasonably survey regulated entities,
354political subdivisions, and local governments and makes good
355faith estimates of regulatory costs in conformity with
356recommendations from the Office of Fiscal Accountability and
357Regulatory Reform ("OFARR"), or from one or more legislative
358offices if requested by the agency and such request is approved
359by the President of the Senate and the Speaker of the House of
361     (c)  "Data collection rules" means those rules requiring
362the submission of data to the agency from external sources,
363including, but not limited to, local governments, service
364providers, clients, licensees, regulated entities, other
365constituents, and market participants.
366     (d)  "Revenue rules" means those rules fixing amounts or
367providing for the collection of money.
368     (e)  "Rule" has the same general meaning and application as
369provided in s. 120.52(16), but for purposes of this section may
370include only those rules for which publication in the Florida
371Administrative Code is required pursuant to s. 120.55(1). As
372used in this section, the term "rule" means each entire
373statement and all subparts published under a complete title,
374chapter, and decimal rule number in the Florida Administrative
375Code in compliance with Florida Administrative Code Rule 1B-
377     (2)  ENHANCED BIENNIAL REVIEW.-By December 1, 2011, each
378agency shall complete an enhanced biennial review of the
379agency's existing rules, which shall include, but is not limited
381     (a)  Conduct of the review and submission of the report
382required by s. 120.74 and an explanation of how the agency has
383accomplished the requirements of s. 120.74(1). This paragraph
384extends the October 1 deadline provided in s. 120.74(2) for the
385year 2011.
386     (b)  Review of each rule to determine whether the rule has
387been reviewed by OFARR pursuant to the Governor's Executive
388Order 2011-01.
389     (c)  Review of each rule to determine whether the rule is a
390revenue rule, to identify the statute or statutes authorizing
391the collection of any revenue, to identify the fund or account
392into which revenue collections are deposited, and, for each
393revenue rule, to determine whether the rule authorizes, imposes,
394or implements:
395     1.  Registration, license, or inspection fees.
396     2.  Transportation service tolls for road, bridge, rail,
397air, waterway, or port access.
398     3.  Fees for a specific service or purpose not included in
399subparagraph 1. or subparagraph 2.
400     4.  Fines, penalties, costs, or attorney fees.
401     5.  Any tax.
402     6.  Any other amounts collected that are not covered under
403subparagraphs 1.-5.
404     (d)  Review of each rule to determine whether the rule is a
405data collection rule, providing the following information for
406each rule determined to be a data collection rule:
407     1.  The statute or statutes authorizing the collection of
408such data.
409     2.  The purposes for which the agency uses the data and any
410purpose for which the data is used by others.
411     3.  The policies supporting the reporting and retention of
412the data.
413     4.  Whether and to what extent the data is exempt from
414public inspection under chapter 119.
415     (e)  Identification of each entire rule the agency plans to
416repeal and, if so, the estimated timetable for repeal.
417     (f)  Identification of each entire rule or subpart of a
418rule the agency plans to amend to substantially reduce the
419economic impact and the estimated timetable for amendment.
420     (g)  Identification of each rule for which the agency will
421be required to prepare a compliance economic review, to include
422each entire rule that:
423     1.  The agency does not plan to repeal on or before
424December 31, 2012;
425     2.  Was effective on or before November 16, 2010; and
426     3.  Probably will have any of the economic impacts
427described in s. 120.541(2)(a), for 5 years beginning on July 1,
4282011, excluding in such estimation any part or subpart
429identified for amendment under paragraph (e).
430     (h)  Listing of all rules identified for compliance
431economic review in paragraph (g), divided into two approximately
432equal groups, identified as "Group 1" and "Group 2." Such
433division shall be made at the agency's discretion.
434     (i)  Written certification of the agency head to the
435committee verifying the completion of the report for all rules
436of the agency, including each separate part or subsection. The
437duty to certify completion of the report is the responsibility
438solely of the agency head as defined in s. 120.52(3) and may not
439be delegated to any other person. If the defined agency head is
440a collegial body, the written certification must be prepared by
441the chair or equivalent presiding officer of that body.
442     (3)  PUBLICATION OF REPORT.-No later than December 1, 2011,
443each agency shall publish, in the manner provided in subsection
444(7), a report of the entire enhanced biennial review pursuant to
445subsection (2), including the results of the review; a complete
446list of all rules the agency has placed in Group 1 or Group 2;
447the name, physical address, fax number, and e-mail address for
448the person the agency has designated to receive all inquiries,
449public comments, and objections pertaining to the report; and
450the certification of the agency head pursuant to paragraph
451(2)(i). The report of results shall summarize certain
452information required in subsection (2) in a table consisting of
453the following columns:
454     (a)  Column 1: Agency name.
455     (b)  Column 2: F.A.C. rule number, with subcolumns
457     1.  Column 2a: F.A.C. title and any subtitle or chapter
458designation; and
459     2.  Column 2b: F.A.C. number, excluding title and subtitle
460or chapter designation.
461     (c)  Column 3: OFARR reviewed rule under Executive Order
4622011-01. Entries should be "Y" or "N."
463     (d)  Column 4: Revenue rule/fund or account with subcolumns
465     1.  Column 4a: Licensure fees.
466     2.  Column 4b: Transportation tolls.
467     3.  Column 4c: Other fees.
468     4.  Column 4d: Fines.
469     5.  Column 4e: Tax.
470     6.  Column 4f: Other revenue.
472Entries should be "N" or the identification of the fund or
473account where receipts are deposited and provide notes
474indicating the statutory authority for revenue collection.
475     (e)  Column 5: Data collection rule. Entries should be "Y"
476or "N." If "Y," provide notes supplying the information required
477in paragraph (2)(d).
478     (f)  Column 6: Repeal. Entries should be "Y" or "N" for the
479entire rule. If "Y," provide notes estimating the timetable for
481     (g)  Column 7: Amend. Entries should be "Y" or "N," based
482on the response required in paragraph (2)(f), and provide notes
483identifying each specific subpart that will be amended and
484estimating the timetable for amendment.
485     (h)  Column 8: Effective on or before 11/16/2010. Entries
486should be "Y" or "N."
487     (i)  Column 9: Section 120.541(2)(a) impacts. Entries
488should be "NA" if Column 8 is "N" or, if Column 6 is "Y," "NP"
489for not probable, based on the response required in subparagraph
490(2)(f)3., or "1" or "2," reflecting the group number assigned by
491the division required in paragraph (2)(h).
493OBJECTIONS.-Public input on reports required in subsection (3)
494may be provided by stating an objection to the information
495required in paragraphs (2)(b), (c), (d), and (g) and identifying
496the entire rule or any subpart to which the objection relates,
497and shall be submitted in writing or electronically to the
498person designated in the report.
499     (a)  An objection under this subsection to a report that an
500entire rule or any subpart probably will not have, for 5 years
501beginning on July 1, 2011, any of the economic impacts described
502in s. 120.541(2)(a), must include allegations of fact upon which
503the objection is based, stating the precise information upon
504which a contrary evaluation of probable impact may be made.
505Allegations of fact related to other objections may be included.
506     (b)  Objections may be submitted by any interested person
507no later than June 1, 2012.
508     (c)  The agency shall determine whether to sustain an
509objection based upon the information provided with the objection
510and whether any further review of information available to the
511agency is necessary to correct its report.
512     (d)  No later than 20 days after the date an objection is
513submitted, the agency shall publish its determination of the
514objection in the manner provided in subsection (7).
515     (e)  The agency's determination with respect to an
516objection is final but not a final agency action subject to
517further proceedings, hearing, or judicial review.
518     (f)  If the agency sustains an objection, it shall amend
519its report within 10 days after the determination. The amended
520report shall indicate that a change has been made, the date of
521the last change, and identify the amended portions. The agency
522shall publish notice of the amendment in the manner provided in
523subsection (7).
524     (g)  On or before July 1, 2012, the agency shall deliver a
525written certification of the agency head or designee to the
526committee verifying the completion of determinations of all
527objections under this subsection and of any report amendments
528required under paragraph (f). The certification shall be
529published as an addendum to the report required in subsection
530(3). Notice of the certification shall be published in the
531manner provided in subsection (7).
533REPORT.-Each agency shall perform a compliance economic review
534and report for all rules, including separate reviews of
535subparts, listed under Group 1 "Group 1 rules" or Group 2 "Group
5362 rules" pursuant to subparagraph (2)(g)3. Group 1 rules shall
537be reviewed and reported on in 2012, and Group 2 rules shall be
538reviewed and reported on in 2013.
539     (a)  No later than May 1, each agency shall:
540     1.  Complete a compliance economic review for each entire
541rule or subpart in the appropriate group.
542     2.  File the written certification of the agency head with
543the committee verifying the completion of each compliance
544economic review required for the respective year. The
545certification shall be dated and published as an addendum to the
546report required in subsection (3). The duty to certify
547completion of the required compliance economic reviews is the
548responsibility solely of the agency head as defined in s.
549120.52(3) and may not be delegated to any other person. If the
550defined agency head is a collegial body, the written
551certification must be prepared by the chair or equivalent
552presiding officer of that body.
553     3.  Publish a copy of the compliance economic review,
554directions on how and when interested parties may submit lower
555cost regulatory alternatives to the agency, and the date the
556notice is published in the manner provided in subsection (7).
557     4.  Publish notice of the publications required in
558subparagraphs 2. and 3. in the manner provided in subsection
560     5.  Submit each compliance economic review to the Small
561Business Regulatory Advisory Council for its review.
562     (b)  Any agency rule, including subparts, reviewed pursuant
563to Executive Order 2011-01 are exempt from the compliance
564economic review if the review found that the rule:
565     1.  Does not unnecessarily restrict entry into a profession
566or occupation;
567     2.  Does not adversely affect the availability of
568professional or occupational services to the public;
569     3.  Does not unreasonably affect job creation or job
571     4.  Does not place unreasonable restrictions on individuals
572attempting to find employment;
573     5.  Does not impose burdensome costs on businesses; or
574     6.  Is justifiable when the overall cost-effectiveness and
575economic impact of the regulation, including indirect costs to
576consumers, is considered.
577     (c)  No later than August 1, the Small Business Regulatory
578Advisory Council may submit lower cost regulatory alternatives
579to any rule to the agency that adopted the rule. No later than
580June 15, other interested parties may submit lower cost
581regulatory alternatives to any rule.
582     (d)  No later than December 1, each agency shall publish a
583final report of the agency's review under this subsection in the
584manner provided in subsection (7). For each rule the report
585shall include:
586     1.  The text of the rule.
587     2.  The compliance economic review for the rule.
588     3.  All lower regulatory cost alternatives received by the
590     4.  The agency's written explanation for rejecting
591submitted lower regulatory cost alternatives.
592     5.  The agency's justification to repeal or amend the rule  
593or to retain the rule without amendment.
594     6.  The written certification of the agency head to the
595committee verifying the completion of the reviews and reporting
596required under this subsection for that year. The certification
597shall be dated and published as an addendum to the report
598required in subsection (3). The duty to certify completion of
599the report is the responsibility solely of the agency head as
600defined in s. 120.52(3) and may not be delegated to any other
601person. If the defined agency head is a collegial body, the
602written certification must be prepared by the chair or
603equivalent presiding officer of that body.
604     (e)  Notice of publication of the final report and
605certification shall be published in the manner provided in
606subsection (7).
607     (f)  By December 1, each agency shall begin proceedings
608under s. 120.54(3) to amend or repeal those rules so designated
609in the report under this subsection. Proceedings to repeal rules
610are exempt from the requirements for the preparation,
611consideration, or use of a statement of estimated regulatory
612costs under s. 120.54 and the provisions of s. 120.541.
613     (6)  LEGISLATIVE CONSIDERATION.-With respect to a rule
614identified for retention without amendment in the report
615required in subsection (5), the Legislature may consider
616specific legislation nullifying the rule or altering the
617statutory authority for the rule.
619REPORTS.-Agencies shall publish notices, determinations, and
620reports required under this section exclusively in the following
622     (a)  The agency shall publish each notice, determination,
623and complete report on its Internet website. If the agency does
624not have an Internet website, the information shall be published
625on the committee's Internet website using
626www.japc.state.fl.us/[agency name]/ in place of the address of
627the agency's Internet website. The following URL formats shall
628be used:
629     1.  Reports required under subsection (3), including any
630reports amended as a result of a determination under subsection
632[Address of agency's Internet website]/2011_Rule_review/
633[Florida Administrative Code (F.A.C.) title and subtitle
634(if applicable) designation for the rules included].
635(Example: http://www.dos.state.fl.us/2011_Rule_review/1S).
636     2.  The lists of Group 1 rules and Group 2 rules, required
637under subsection (3):
638[Address of agency's Internet website]/2011_Rule_review/
640(Example: http://www.dos.state.fl.us/2011_Rule_review/
642     3.  Determinations under subsection (4):
643[Address of agency's Internet website]/2011_Rule_review/
644Objection_Determination/[F.A.C. Rule number].
645(Example: http://www.dos.state.fl.us/2011_Rule_review/
647     4.  Completed compliance economic reviews reported under
648subsection (5):
649[Address of agency's Internet website]/2011_Rule_review/
650Economic Review/[F.A.C.Rule number].
651(Example: http://www.dos.state.fl.us/2011_Rule_review/
653     5.  Final reports under paragraph (5)(d), with the
654appropriate year:
655[Address of agency's Internet website]/2011_Rule_review/
656Economic Review/[YYYY_Final_Report].
657(Example: http://www.dos.state.fl.us/2011_Rule_review/
658Economic Review/2012_Final_Report).
659     (b)1.  Each notice shall be published using the following
660URL format:
661[Address of agency's Internet website]/
665     2.  Once each week a copy of all notices published in the
666previous week on the Internet under this paragraph shall be
667delivered to the Department of State, for publication in the
668next available issue of the Florida Administrative Weekly, and a
669copy shall be delivered by electronic mail to the committee.
670     3.  Each notice shall identify the publication for which
671notice is being given and include:
672     a.  The name of the agency.
673     b.  The name, physical address, fax number, and e-mail
674address for the person designated to receive all inquiries,
675public comments, and objections pertaining to the publication
676identified in the notice.
677     c.  The particular Internet address through which the
678publication may be accessed.
679     d.  The date the notice and publication is first published
680on the agency's Internet website.
681     (c)  Publication pursuant to this section is deemed to be
682complete as of the date the notice, determination, or report is
683posted on the agency's Internet website.
685agency fails to timely file any written certification required
686in paragraph (2)(i), paragraph (4)(g), subparagraph (5)(a)2., or
687subparagraph (5)(d)6., the entire rulemaking authority delegated
688to the agency by the Legislature under any statute or law shall
689be suspended automatically as of the due date of the required
690certification and shall remain suspended until the date that the
691agency files the required certification with the committee.
692     (a)  During the period of any suspension under this
693subsection, the agency has no authority to engage in rulemaking
694under s. 120.54.
695     (b)  A suspension under this subsection does not authorize
696an agency to promulgate any statement defined as a rule under s.
698     (c)  A suspension under this subsection shall toll the time
699requirements under s. 120.54 for any rulemaking proceeding the
700agency initiated before the date of suspension, which time
701requirements shall resume on the date the agency files the
702written certification with the committee and publishes notice of
703the required certification in the manner provided in subsection
705     (d)  Failure to timely file a written certification
706required under paragraph (2)(i) tolls the time for public
707response, which period shall not begin until the date the agency
708files the written certification with the committee and publishes
709notice of the required certification in the manner provided in
710subsection (7). The period for public response shall be extended
711by the number of days equivalent to the period of suspension
712under this subsection.
713     (e)  Failure to timely file a written certification
714required under subparagraph (5)(a)2. shall toll the deadline for
715submission of lower cost regulatory alternatives for any rule or
716subpart for which a compliance economic review has not been
717timely published. The period of tolling shall be the number of
718days after May 1 until the date of the certification as
722     (a)  An agency is exempt from subsections (1)-(8) if it has
723cooperated or cooperates with OFARR in a review of the agency's
724rules in a manner consistent with Executive Order 2011-01, or
725any alternative review directed by OFARR; if the agency or OFARR
726identifies each data collection rule and each revenue rule; and
727if the information developed thereby becomes publicly available
728on the Internet by December 1, 2011. Each such agency is exempt
729from the biennial review required in s. 120.74(2) for the year
731     (b)  For each rule reviewed under this subsection, OFARR
732may identify whether the rule imposes a significant regulatory
733cost or economic impact and shall schedule and obtain or direct
734a reasonable economic estimate of such cost and impact for each
735rule so identified. A report on each such estimate shall be
736published on the Internet by December 31, 2013. On or before
737October 1, 2013, the agency head shall certify in writing to the
738committee that the agency has completed each economic estimate
739required under this paragraph and thereupon the agency is exempt
740from the biennial review required in s. 120.74(2) for the year
742     (c)  The exemption under this paragraph does not apply
743unless the agency head certifies in writing to the committee, on
744or before October 1, 2011, that the agency has chosen such
745exemption and has cooperated with OFARR in undertaking the
746review required in paragraph (a).
747     (10)  REPEAL.-This section is repealed July 1, 2014.
748     Section 6.  Section 120.7455, Florida Statutes, is created
749to read:
750     120.7455  Legislative survey of regulatory impacts.-
751     (1)  From July 1, 2011, until July 1, 2014, the Legislature
752may establish and maintain an Internet-based public survey of
753regulatory impact soliciting information from the public
754regarding the kind and degree of regulation affecting private
755activities in the state. The input may include, but need not be
756limited to:
757     (a)  The registered business name or other name of each
758reporting person.
759     (b)  The number and identity of agencies licensing,
760inspecting, registering, permitting, or otherwise regulating
761lawful activities of the reporting person.
762     (c)  The types, numbers, and nature of licenses, permits,
763and registrations required for various lawful activities of the
764reporting person.
765     (d)  The identity of local, state, and federal agencies,
766and other entities acting under color of law which regulate the
767lawful activities of the reporting person or otherwise exercise
768power to enforce laws applicable to such activities.
769     (e)  The identification and nature of each ordinance, law,
770or administrative rule or regulation deemed unreasonably
771burdensome by the reporting person.
772     (2)  The President of the Senate and the Speaker of the
773House of Representatives may certify in writing to the chair of
774the committee and to the Attorney General the establishment and
775identity of any Internet-based public survey established under
776this section.
777     (3)  Any person reporting or otherwise providing
778information solicited by the Legislature in conformity with this
779section is immune from any enforcement action or prosecution
781     (a)  Is instituted on account of, or in reliance upon, the
782fact of reporting or nonreporting of information in response to
783the Legislature's solicitation of information pursuant to this
784section; or
785     (b)  Uses information provided in response to the
786Legislature's solicitation of information pursuant to this
788     (4)  Any alleged violator against whom an enforcement
789action is brought may object to any proposed penalty in excess
790of the minimum provided by law or rule on the basis that the
791action is in retaliation for the violator providing or
792withholding any information in response to the Legislature's
793solicitation of information pursuant to this section. If the
794presiding judge determines that the enforcement action was
795motivated in whole or in part by retaliation, any penalty
796imposed is limited to the minimum penalties provided by law for
797each separate violation adjudicated.
798     Section 7.  The amendment of section 120.74, Florida
799Statutes, and the creation of sections 120.745 and 120.7455,
800Florida Statutes, by this act do not change the legal status of
801a rule that has otherwise been judicially or administratively
802determined to be invalid.
803     Section 8.  Subsection (16) of section 120.80, Florida
804Statutes, is amended, and subsections (17) and (18) are added to
805that section, to read:
806     120.80  Exceptions and special requirements; agencies.-
808     (a)  Notwithstanding the provisions of s. 120.542, the
809Florida Building Commission may not accept a petition for waiver
810or variance and may not grant any waiver or variance from the
811requirements of the Florida Building Code.
812     (b)  The Florida Building Commission shall adopt within the
813Florida Building Code criteria and procedures for alternative
814means of compliance with the code or local amendments thereto,
815for enforcement by local governments, local enforcement
816districts, or other entities authorized by law to enforce the
817Florida Building Code. Appeals from the denial of the use of
818alternative means shall be heard by the local board, if one
819exists, and may be appealed to the Florida Building Commission.
820     (c)  Notwithstanding ss. 120.565, 120.569, and 120.57, the
821Florida Building Commission and hearing officer panels appointed
822by the commission in accordance with s. 553.775(3)(c)1. may
823conduct proceedings to review decisions of local building code
824officials in accordance with s. 553.775(3)(c).
825     (d)  Section 120.541(3) does not apply to the adoption of
826amendments and the triennial update to the Florida Building Code
827expressly authorized by s. 553.73.
828     (17)  STATE FIRE MARSHAL.-Section 120.541(3) does not apply
829to the adoption of amendments and the triennial update to the
830Florida Fire Prevention Code expressly authorized by s.
832     (18)  DEPARTMENT OF TRANSPORTATION.-Sections 120.54(3)(b)
833and 120.541 do not apply to the adjustment of tolls pursuant to
834s. 338.165(3).
835     Section 9.  Paragraph (l) is added to subsection (1) of
836section 120.81, Florida Statutes, to read:
837     120.81  Exceptions and special requirements; general
839     (1)  EDUCATIONAL UNITS.-
840     (l)  Sections 120.54(3)(b) and 120.541 do not apply to the
841adoption of rules pursuant to s. 1012.22, s. 1012.27, s.
8421012.34, s. 1012.335, or s. 1012.795.
843     Section 10.  Paragraph (p) is added to subsection (2) of
844section 120.569, Florida Statutes, to read:
845     120.569  Decisions which affect substantial interests.-
846     (2)
847     (p)  For any proceeding arising under chapter 373, chapter
848378, or chapter 403, if a nonapplicant petitions as a third
849party to challenge an agency's issuance of a license, permit, or
850conceptual approval, the order of presentation in the proceeding
851is for the permit applicant to present a prima facie case
852demonstrating entitlement to the license, permit, or conceptual
853approval, followed by the agency. This demonstration may be made
854by entering into evidence the application and relevant material
855submitted to the agency in support of the application, and the
856agency's staff report or notice of intent to approve the permit,
857license, or conceptual approval. Subsequent to the presentation
858of the applicant's prima facie case and any direct evidence
859submitted by the agency, the petitioner initiating the action
860challenging the issuance of the license, permit, or conceptual
861approval has the burden of ultimate persuasion and has the
862burden of going forward to prove the case in opposition to the
863license, permit, or conceptual approval through the presentation
864of competent and substantial evidence. The permit applicant and
865agency may on rebuttal present any evidence relevant to
866demonstrating that the application meets the conditions for
867issuance. Notwithstanding subsection (1), this paragraph applies
868to proceedings under s. 120.574.
869     Section 11.  This act shall take effect upon becoming a

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