Bill Text: FL H1565 | 2010 | Regular Session | Engrossed

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Bill Title: Rulemaking [CPSC]

Spectrum: Partisan Bill (Republican 11-0)

Status: (Vetoed) 2010-07-19 - Veto Message received -HJ 00011; Veto Message referred to Rules and Calendar Council -HJ 00016 [H1565 Detail]

Download: Florida-2010-H1565-Engrossed.html

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CS/CS/HB 1565

1	A bill to be entitled
2	An act relating to rulemaking; amending s. 120.54, F.S.;
3	requiring each agency, before adopting, amending, or
4	repealing certain rules, to prepare a statement of
5	estimated regulatory costs of the proposed rule if the
6	proposed rule has adverse impacts on small business or
7	increases regulatory costs; providing an exception to
8	circumstances under which an emergency rule shall not be
9	effective; amending s. 120.541, F.S.; providing
10	circumstances under which an agency shall prepare or
11	revise a statement of estimated regulatory costs;
12	providing notice requirements; providing that an agency's
13	failure to prepare a statement of estimated regulatory
14	costs or respond to a written lower cost regulatory
15	alternative is a material failure to follow the applicable
16	rulemaking procedures or requirements of the chapter;
17	specifying circumstances under which certain challenges
18	may not be raised; providing exceptions; specifying the
19	requirements for an economic analysis on a proposed rule
20	or rule changes; requiring that a rule impact analysis for
21	small businesses include the agency's basis for not
22	implementing alternatives to a proposed rule; providing
23	circumstances under which a rule shall not take effect
24	until ratified by the Legislature; providing that the act
25	is not applicable to certain specified rules or standards;
26	amending s. 120.56, F.S.; providing for revised statements
27	of estimated regulatory costs as a basis for challenging a
28	rule; amending s. 120.60, F.S.; authorizing an agency to
29	provide by rule for the time period for submitting
30	additional information needed for a license application;
31	requiring that certain requests to receive notice relating
32	to a license application be submitted in writing;
33	providing an effective date.
34
35	Be It Enacted by the Legislature of the State of Florida:
36
37	Section 1. Paragraph (b) of subsection (3) and paragraph
38	(c) of subsection (4) of section 120.54, Florida Statutes, are
39	amended to read:
40	120.54 Rulemaking.-
41	(3) ADOPTION PROCEDURES.-
42	(b) Special matters to be considered in rule adoption.-
43	1. Statement of estimated regulatory costs.-Prior to the
44	adoption, amendment, or repeal of any rule other than an
45	emergency rule, an agency is encouraged to prepare a statement
46	of estimated regulatory costs of the proposed rule, as provided
47	by s. 120.541. However, an agency must shall prepare a statement
48	of estimated regulatory costs of the proposed rule, as provided
49	by s. 120.541, if:
50	a. The proposed rule will have an adverse impact on small
51	business; or
52	b. The proposed rule is likely to directly or indirectly
53	increase regulatory costs in excess of $200,000 in the aggregate
54	in this state within 1 year after the implementation of the
55	rule.
56	2. Small businesses, small counties, and small cities.-
57	a. Each agency, before the adoption, amendment, or repeal
58	of a rule, shall consider the impact of the rule on small
59	businesses as defined by s. 288.703 and the impact of the rule
60	on small counties or small cities as defined by s. 120.52.
61	Whenever practicable, an agency shall tier its rules to reduce
62	disproportionate impacts on small businesses, small counties, or
63	small cities to avoid regulating small businesses, small
64	counties, or small cities that do not contribute significantly
65	to the problem the rule is designed to address. An agency may
66	define "small business" to include businesses employing more
67	than 200 persons, may define "small county" to include those
68	with populations of more than 75,000, and may define "small
69	city" to include those with populations of more than 10,000, if
70	it finds that such a definition is necessary to adapt a rule to
71	the needs and problems of small businesses, small counties, or
72	small cities. The agency shall consider each of the following
73	methods for reducing the impact of the proposed rule on small
74	businesses, small counties, and small cities, or any combination
75	of these entities:
76	(I) Establishing less stringent compliance or reporting
77	requirements in the rule.
78	(II) Establishing less stringent schedules or deadlines in
79	the rule for compliance or reporting requirements.
80	(III) Consolidating or simplifying the rule's compliance
81	or reporting requirements.
82	(IV) Establishing performance standards or best management
83	practices to replace design or operational standards in the
84	rule.
85	(V) Exempting small businesses, small counties, or small
86	cities from any or all requirements of the rule.
87	b.(I) If the agency determines that the proposed action
88	will affect small businesses as defined by the agency as
89	provided in sub-subparagraph a., the agency shall send written
90	notice of the rule to the Small Business Regulatory Advisory
91	Council and the Office of Tourism, Trade, and Economic
92	Development not less than 28 days prior to the intended action.
93	(II) Each agency shall adopt those regulatory alternatives
94	offered by the Small Business Regulatory Advisory Council and
95	provided to the agency no later than 21 days after the council's
96	receipt of the written notice of the rule which it finds are
97	feasible and consistent with the stated objectives of the
98	proposed rule and which would reduce the impact on small
99	businesses. When regulatory alternatives are offered by the
100	Small Business Regulatory Advisory Council, the 90-day period
101	for filing the rule in subparagraph (e)2. is extended for a
102	period of 21 days.
103	(III) If an agency does not adopt all alternatives offered
104	pursuant to this sub-subparagraph, it shall, prior to rule
105	adoption or amendment and pursuant to subparagraph (d)1., file a
106	detailed written statement with the committee explaining the
107	reasons for failure to adopt such alternatives. Within 3 working
108	days of the filing of such notice, the agency shall send a copy
109	of such notice to the Small Business Regulatory Advisory
110	Council. The Small Business Regulatory Advisory Council may make
111	a request of the President of the Senate and the Speaker of the
112	House of Representatives that the presiding officers direct the
113	Office of Program Policy Analysis and Government Accountability
114	to determine whether the rejected alternatives reduce the impact
115	on small business while meeting the stated objectives of the
116	proposed rule. Within 60 days after the date of the directive
117	from the presiding officers, the Office of Program Policy
118	Analysis and Government Accountability shall report to the
119	Administrative Procedures Committee its findings as to whether
120	an alternative reduces the impact on small business while
121	meeting the stated objectives of the proposed rule. The Office
122	of Program Policy Analysis and Government Accountability shall
123	consider the proposed rule, the economic impact statement, the
124	written statement of the agency, the proposed alternatives, and
125	any comment submitted during the comment period on the proposed
126	rule. The Office of Program Policy Analysis and Government
127	Accountability shall submit a report of its findings and
128	recommendations to the Governor, the President of the Senate,
129	and the Speaker of the House of Representatives. The
130	Administrative Procedures Committee shall report such findings
131	to the agency, and the agency shall respond in writing to the
132	Administrative Procedures Committee if the Office of Program
133	Policy Analysis and Government Accountability found that the
134	alternative reduced the impact on small business while meeting
135	the stated objectives of the proposed rule. If the agency will
136	not adopt the alternative, it must also provide a detailed
137	written statement to the committee as to why it will not adopt
138	the alternative.
139	(4) EMERGENCY RULES.-
140	(c) An emergency rule adopted under this subsection shall
141	not be effective for a period longer than 90 days and shall not
142	be renewable, except when the agency has initiated rulemaking to
143	adopt rules addressing the subject of the emergency rule and
144	either: during the pendency of
145	1. A challenge to the proposed rules has been filed and
146	remains pending; or addressing the subject of the emergency rule
147	2. The proposed rules are awaiting ratification by the
148	Legislature pursuant to s. 120.541(3).
149
150	Nothing in this paragraph prohibits However, the agency from
151	adopting a rule or rules identical to the emergency rule through
152	may take identical action by the rulemaking procedures specified
153	in subsection (3) this chapter.
154	Section 2. Section 120.541, Florida Statutes, is amended
155	to read:
156	120.541 Statement of estimated regulatory costs.-
157	(1)(a) A substantially affected person, Within 21 days
158	after publication of the notice required provided under s.
159	120.54(3)(a), a substantially affected person may submit to an
160	agency a good faith written proposal for a lower cost regulatory
161	alternative to a proposed rule which substantially accomplishes
162	the objectives of the law being implemented. The proposal may
163	include the alternative of not adopting any rule if, so long as
164	the proposal explains how the lower costs and objectives of the
165	law will be achieved by not adopting any rule. If such a
166	proposal is submitted, the 90-day period for filing the rule is
167	extended 21 days.
168	(b) Upon the submission of the lower cost regulatory
169	alternative, the agency shall prepare a statement of estimated
170	regulatory costs as provided in subsection (2), or shall revise
171	its prior statement of estimated regulatory costs, and either
172	adopt the alternative or provide give a statement of the reasons
173	for rejecting the alternative in favor of the proposed rule. The
174	failure of the agency to prepare or revise the statement of
175	estimated regulatory costs as provided in this paragraph is a
176	material failure to follow the applicable rulemaking procedures
177	or requirements set forth in this chapter. An agency required to
178	prepare or revise a statement of estimated regulatory costs as
179	provided in this paragraph shall make it available to the person
180	who submits the lower cost regulatory alternative and to the
181	public prior to filing the rule for adoption.
182	(b) If a proposed rule will have an adverse impact on
183	small business or if the proposed rule is likely to directly or
184	indirectly increase regulatory costs in excess of $200,000 in
185	the aggregate within 1 year after the implementation of the
186	rule, the agency shall prepare a statement of estimated
187	regulatory costs as required by s. 120.54(3)(b).
188	(c) The agency shall revise a statement of estimated
189	regulatory costs if any change to the rule made under s.
190	120.54(3)(d) increases the regulatory costs of the rule.
191	(d) At least 45 days before filing the rule for adoption,
192	an agency that is required to revise a statement of estimated
193	regulatory costs shall provide the statement to the person who
194	submitted the lower cost regulatory alternative and to the
195	committee and shall provide notice on the agency's website that
196	it is available to the public.
197	(e) Notwithstanding s. 120.56(1)(c), the failure of the
198	agency to prepare a statement of estimated regulatory costs or
199	to respond to a written lower cost regulatory alternative as
200	provided in this subsection is a material failure to follow the
201	applicable rulemaking procedures or requirements set forth in
202	this chapter.
203	(f)(c) An agency's failure to prepare a statement of
204	estimated regulatory costs or to respond to a written lower cost
205	regulatory alternative may not be raised in a proceeding
206	challenging the validity of a rule pursuant to s. 120.52(8)(a)
207	No rule shall be declared invalid because it imposes regulatory
208	costs on the regulated person, county, or city which could be
209	reduced by the adoption of less costly alternatives that
210	substantially accomplish the statutory objectives, and no rule
211	shall be declared invalid based upon a challenge to the agency's
212	statement of regulatory costs, unless:
213	1. The issue is Raised in a petition filed no later than
214	an administrative proceeding within 1 year after the effective
215	date of the rule; and
216	2. Raised by a person whose substantial interests are
217	affected by the rule's regulatory costs. The substantial
218	interests of the person challenging the agency's rejection of,
219	or failure to consider, the lower cost regulatory alternative
220	are materially affected by the rejection; and
221	3.a. The agency has failed to prepare or revise the
222	statement of estimated regulatory costs as required by paragraph
223	(b); or
224	b. The challenge is to the agency's rejection under
225	paragraph (b) of a lower cost regulatory alternative submitted
226	under paragraph (a).
227	(g) A rule that is challenged pursuant to s. 120.52(8)(f)
228	may not be declared invalid unless:
229	1. The issue is raised in an administrative proceeding
230	within 1 year after the effective date of the rule;
231	2. The challenge is to the agency's rejection of a lower
232	cost regulatory alternative offered under paragraph (a) or s.
233	120.54(3)(b)2.b.; and
234	3. The substantial interests of the person challenging the
235	rule are materially affected by the rejection.
236	(2) A statement of estimated regulatory costs shall
237	include:
238	(a) An economic analysis showing whether the rule directly
239	or indirectly:
240	1. Is likely to have an adverse impact on economic growth,
241	private-sector job creation or employment, or private-sector
242	investment in excess of $1 million in the aggregate within 5
243	years after the implementation of the rule;
244	2. Is likely to have an adverse impact on business
245	competitiveness, including the ability of persons doing business
246	in the state to compete with persons doing business in other
247	states or domestic markets, productivity, or innovation in
248	excess of $1 million in the aggregate within 5 years after the
249	implementation of the rule; or
250	3. Is likely to increase regulatory costs, including any
251	transactional costs, in excess of $1 million in the aggregate
252	within 5 years after the implementation of the rule.
253	(b) A good faith estimate of the number of individuals and
254	entities likely to be required to comply with the rule, together
255	with a general description of the types of individuals likely to
256	be affected by the rule.
257	(c)(b) A good faith estimate of the cost to the agency,
258	and to any other state and local government entities, of
259	implementing and enforcing the proposed rule, and any
260	anticipated effect on state or local revenues.
261	(d)(c) A good faith estimate of the transactional costs
262	likely to be incurred by individuals and entities, including
263	local government entities, required to comply with the
264	requirements of the rule. As used in this section paragraph,
265	"transactional costs" are direct costs that are readily
266	ascertainable based upon standard business practices, and
267	include filing fees, the cost of obtaining a license, the cost
268	of equipment required to be installed or used or procedures
269	required to be employed in complying with the rule, additional
270	operating costs incurred, and the cost of monitoring and
271	reporting, and any other costs necessary to comply with the
272	rule.
273	(e)(d) An analysis of the impact on small businesses as
274	defined by s. 288.703, and an analysis of the impact on small
275	counties and small cities as defined in by s. 120.52. The impact
276	analysis for small businesses must include the basis for the
277	agency's decision not to implement alternatives that would
278	reduce adverse impacts on small businesses.
279	(f)(e) Any additional information that the agency
280	determines may be useful.
281	(g)(f) In the statement or revised statement, whichever
282	applies, a description of any regulatory alternatives good faith
283	written proposal submitted under paragraph (1)(a) and either a
284	statement adopting the alternative or a statement of the reasons
285	for rejecting the alternative in favor of the proposed rule.
286	(3) If the adverse impact or regulatory costs of the rule
287	exceed any of the criteria established in paragraph (2)(a), the
288	rule shall be submitted to the President of the Senate and
289	Speaker of the House of Representatives no later than 30 days
290	prior to the next regular legislative session, and the rule may
291	not take effect until it is ratified by the Legislature.
292	(4) Paragraph (2)(a) does not apply to the adoption of
293	emergency rules pursuant to s. 120.54(4) or the adoption of
294	federal standards pursuant to s. 120.54(6).
295	Section 3. Paragraph (a) of subsection (2) and paragraph
296	(d) of subsection (4) of section 120.56, Florida Statutes, are
297	amended to read:
298	120.56 Challenges to rules.-
299	(2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.-
300	(a) A Any substantially affected person may seek an
301	administrative determination of the invalidity of a any proposed
302	rule by filing a petition seeking such a determination with the
303	division within 21 days after the date of publication of the
304	notice required by s. 120.54(3)(a);, within 10 days after the
305	final public hearing is held on the proposed rule as provided by
306	s. 120.54(3)(e)2.;, within 44 20 days after the statement of
307	estimated regulatory costs or revised statement of estimated
308	regulatory costs, if applicable, has been prepared and made
309	available as provided in s. 120.541(1)(d); required pursuant to
310	s. 120.541, if applicable, has been provided to all persons who
311	submitted a lower cost regulatory alternative and made available
312	to the public, or within 20 days after the date of publication
313	of the notice required by s. 120.54(3)(d). The petition must
314	shall state with particularity the objections to the proposed
315	rule and the reasons that the proposed rule is an invalid
316	exercise of delegated legislative authority. The petitioner has
317	the burden of going forward. The agency then has the burden to
318	prove by a preponderance of the evidence that the proposed rule
319	is not an invalid exercise of delegated legislative authority as
320	to the objections raised. A Any person who is substantially
321	affected by a change in the proposed rule may seek a
322	determination of the validity of such change. A Any person who
323	is not substantially affected by the proposed rule as initially
324	noticed, but who is substantially affected by the rule as a
325	result of a change, may challenge any provision of the rule and
326	is not limited to challenging the change to the proposed rule.
327	(4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;
328	SPECIAL PROVISIONS.-
329	(d) If an administrative law judge enters a final order
330	that all or part of an agency statement violates s.
331	120.54(1)(a), the agency must shall immediately discontinue all
332	reliance upon the statement or any substantially similar
333	statement as a basis for agency action. This paragraph shall not
334	be construed to impair the obligation of contracts existing at
335	the time the final order is entered.
336	Section 4. Subsections (1) and (3) of section 120.60,
337	Florida Statutes, are amended to read:
338	120.60 Licensing.-
339	(1) Upon receipt of an application for a license
340	application, an agency shall examine the application and, within
341	30 days after such receipt, notify the applicant of any apparent
342	errors or omissions and request any additional information the
343	agency is permitted by law to require. An agency may shall not
344	deny a license for failure to correct an error or omission or to
345	supply additional information unless the agency timely notified
346	the applicant within this 30-day period. The agency may
347	establish by rule the time period for submitting any additional
348	information requested by the agency. For good cause shown, the
349	agency shall grant a request for an extension of time for
350	submitting the additional information. If the applicant believes
351	the agency's request for additional information is not
352	authorized by law or rule, the agency, at the applicant's
353	request, shall proceed to process the application. An
354	application is shall be considered complete upon receipt of all
355	requested information and correction of any error or omission
356	for which the applicant was timely notified or when the time for
357	such notification has expired. An Every application for a
358	license must shall be approved or denied within 90 days after
359	receipt of a completed application unless a shorter period of
360	time for agency action is provided by law. The 90-day time
361	period is shall be tolled by the initiation of a proceeding
362	under ss. 120.569 and 120.57. Any application for a license
363	which that is not approved or denied within the 90-day or
364	shorter time period, within 15 days after conclusion of a public
365	hearing held on the application, or within 45 days after a
366	recommended order is submitted to the agency and the parties,
367	whichever action and timeframe is latest and applicable, is
368	considered approved unless the recommended order recommends that
369	the agency deny the license. Subject to the satisfactory
370	completion of an examination if required as a prerequisite to
371	licensure, any license that is considered approved shall be
372	issued and may include such reasonable conditions as are
373	authorized by law. Any applicant for licensure seeking to claim
374	licensure by default under this subsection shall notify the
375	agency clerk of the licensing agency, in writing, of the intent
376	to rely upon the default license provision of this subsection,
377	and may shall not take any action based upon the default license
378	until after receipt of such notice by the agency clerk.
379	(3) Each applicant shall be given written notice, either
380	personally or by mail, that the agency intends to grant or deny,
381	or has granted or denied, the application for license. The
382	notice must state with particularity the grounds or basis for
383	the issuance or denial of the license, except when issuance is a
384	ministerial act. Unless waived, a copy of the notice shall be
385	delivered or mailed to each party's attorney of record and to
386	each person who has made a written request for requested notice
387	of agency action. Each notice must shall inform the recipient of
388	the basis for the agency decision, shall inform the recipient of
389	any administrative hearing pursuant to ss. 120.569 and 120.57 or
390	judicial review pursuant to s. 120.68 which may be available,
391	shall indicate the procedure that which must be followed, and
392	shall state the applicable time limits. The issuing agency shall
393	certify the date the notice was mailed or delivered, and the
394	notice and the certification must shall be filed with the agency
395	clerk.
396	Section 5. This act shall take effect upon becoming a law.

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