Bill Text: FL H0993 | 2011 | Regular Session | Engrossed

---

Bill Title: Rulemaking

Spectrum: Bipartisan Bill

Status: (Engrossed - Dead) 2011-05-05 - Amendment(s) to Senate amendment(s) failed (269937) -HJ 1169 [H0993 Detail]

Download: Florida-2011-H0993-Engrossed.html

---

CS for CS/CS/HB 993 & HB 7239

1	A bill to be entitled
2	An act relating to rulemaking; amending s. 120.54, F.S.;
3	requiring that an agency include in its notice of intended
4	rulemaking a statement as to whether the proposed rule
5	will require legislative ratification; providing for
6	withdrawal of an adopted rule that is not ratified by the
7	Legislature; clarifying that certain proposed rules are
8	effective only when ratified by the Legislature; amending
9	s. 120.541, F.S.; reducing the time before an agency files
10	a rule for adoption within which the agency must notify
11	the person who submitted a lower cost alternative and the
12	Administrative Procedures Committee; excluding rules
13	adopting federal standards and emergency rulemaking from
14	certain provisions; amending s. 120.56, F.S.; reducing the
15	time in which a substantially affected person may seek an
16	administrative determination of the invalidity of a rule
17	after the statement or revised statement of estimated
18	regulatory costs is available; amending s. 120.74, F.S.;
19	providing for agency reporting of certain annual
20	regulatory plans; providing for certain omissions and
21	suspensions of reports; creating s. 120.745, F.S.;
22	providing for legislative review of agency rules in effect
23	on or before November 16, 2010; providing definitions;
24	requiring that each agency complete an enhanced biennial
25	review of its existing rules; requiring a report of the
26	enhanced biennial review; providing specifications for the
27	report; providing for objections and the agency's
28	response; requiring the performance of a compliance
29	economic review and report under certain circumstances;
30	providing specifications for the review; providing
31	specifications for publishing the final report of the
32	agency's review; requiring that an agency publish notices,
33	determinations, and reports in a specified format;
34	requiring the Department of State to publish certain
35	notices in the Florida Administrative Weekly; providing
36	specifications; providing for future review and repeal;
37	providing for suspension of rulemaking authority for
38	failure to comply with the certification requirements of
39	the section; providing for an exemption from certain
40	requirements; creating s. 120.7455, F.S.; providing that
41	the Legislature may establish and maintain an Internet-
42	based public survey of regulatory impacts; providing input
43	details; providing that legislative leaders may certify in
44	writing to certain individuals the establishment and
45	identity of any such Internet-based survey; providing
46	immunities from enforcement action or prosecution
47	involving information solicited through the survey;
48	providing protections from retaliatory enforcement
49	actions; clarifying that the legal status of a rule that
50	has been determined to be invalid is not changed by the
51	amendment or creation of specified provisions by the act;
52	amending s. 120.80, F.S.; exempting the adoption of
53	certain amendments and the triennial updates to the
54	Florida Building Code from required legislative
55	ratification; exempting the adoption of certain amendments
56	and the triennial updates to the Florida Fire Prevention
57	Code from required legislative ratification; exempting the
58	adoption of rules adjusting rates of certain
59	transportation and expressway tolls from the preparation
60	of a statement of estimated regulatory costs and from
61	submission for legislative ratification; amending s.
62	120.81, F.S.; excluding the adoption of rules under
63	chapter 2011-1, Laws of Florida, the Student Success Act,
64	from the preparation of a statement of estimated
65	regulatory costs and from submission for legislative
66	ratification; amending s. 120.569, F.S.; providing that a
67	nonapplicant who petitions to challenge an agency's
68	issuance of a license, permit, or conceptual approval in
69	certain circumstances has the burden of ultimate
70	persuasion and the burden of going forward with evidence;
71	providing an effective date.
72
73	Be It Enacted by the Legislature of the State of Florida:
74
75	Section 1.  Paragraphs (a), (d), and (e) of subsection (3)
76	of section 120.54, Florida Statutes, as amended by chapter 2010-
77	279, Laws of Florida, are amended to read:
78	120.54  Rulemaking.-
79	(3)  ADOPTION PROCEDURES.-
80	(a)  Notices.-
81	1.  Prior to the adoption, amendment, or repeal of any rule
82	other than an emergency rule, an agency, upon approval of the
83	agency head, shall give notice of its intended action, setting
84	forth a short, plain explanation of the purpose and effect of
85	the proposed action; the full text of the proposed rule or
86	amendment and a summary thereof; a reference to the grant of
87	rulemaking authority pursuant to which the rule is adopted; and
88	a reference to the section or subsection of the Florida Statutes
89	or the Laws of Florida being implemented or interpreted. The
90	notice must include a summary of the agency's statement of the
91	estimated regulatory costs, if one has been prepared, based on
92	the factors set forth in s. 120.541(2);, and a statement that
93	any person who wishes to provide the agency with information
94	regarding the statement of estimated regulatory costs, or to
95	provide a proposal for a lower cost regulatory alternative as
96	provided by s. 120.541(1), must do so in writing within 21 days
97	after publication of the notice; and a statement as to whether,
98	based on the statement of the estimated regulatory costs or
99	other information expressly relied upon and described by the
100	agency if no statement of regulatory costs is required, the
101	proposed rule is expected to require legislative ratification
102	pursuant to s. 120.541(3). The notice must state the procedure
103	for requesting a public hearing on the proposed rule. Except
104	when the intended action is the repeal of a rule, the notice
105	must include a reference both to the date on which and to the
106	place where the notice of rule development that is required by
107	subsection (2) appeared.
108	2.  The notice shall be published in the Florida
109	Administrative Weekly not less than 28 days prior to the
110	intended action. The proposed rule shall be available for
111	inspection and copying by the public at the time of the
112	publication of notice.
113	3.  The notice shall be mailed to all persons named in the
114	proposed rule and to all persons who, at least 14 days prior to
115	such mailing, have made requests of the agency for advance
116	notice of its proceedings. The agency shall also give such
117	notice as is prescribed by rule to those particular classes of
118	persons to whom the intended action is directed.
119	4.  The adopting agency shall file with the committee, at
120	least 21 days prior to the proposed adoption date, a copy of
121	each rule it proposes to adopt; a copy of any material
122	incorporated by reference in the rule; a detailed written
123	statement of the facts and circumstances justifying the proposed
124	rule; a copy of any statement of estimated regulatory costs that
125	has been prepared pursuant to s. 120.541; a statement of the
126	extent to which the proposed rule relates to federal standards
127	or rules on the same subject; and the notice required by
128	subparagraph 1.
129	(d)  Modification or withdrawal of proposed rules.-
130	1.  After the final public hearing on the proposed rule, or
131	after the time for requesting a hearing has expired, if the rule
132	has not been changed from the rule as previously filed with the
133	committee, or contains only technical changes, the adopting
134	agency shall file a notice to that effect with the committee at
135	least 7 days prior to filing the rule for adoption. Any change,
136	other than a technical change that does not affect the substance
137	of the rule, must be supported by the record of public hearings
138	held on the rule, must be in response to written material
139	submitted to the agency within 21 days after the date of
140	publication of the notice of intended agency action or submitted
141	to the agency between the date of publication of the notice and
142	the end of the final public hearing, or must be in response to a
143	proposed objection by the committee. In addition, when any
144	change is made in a proposed rule, other than a technical
145	change, the adopting agency shall provide a copy of a notice of
146	change by certified mail or actual delivery to any person who
147	requests it in writing no later than 21 days after the notice
148	required in paragraph (a). The agency shall file the notice of
149	change with the committee, along with the reasons for the
150	change, and provide the notice of change to persons requesting
151	it, at least 21 days prior to filing the rule for adoption. The
152	notice of change shall be published in the Florida
153	Administrative Weekly at least 21 days prior to filing the rule
154	for adoption. This subparagraph does not apply to emergency
155	rules adopted pursuant to subsection (4).
156	2.  After the notice required by paragraph (a) and prior to
157	adoption, the agency may withdraw the rule in whole or in part.
158	3.  After adoption and before the rule becomes effective
159	date, a rule may be modified or withdrawn only in the following
160	circumstances:
161	a.  When the committee objects to the rule;
162	b.  When a final order, which is not subject to further
163	appeal, is entered in a rule challenge brought pursuant to s.
164	120.56 after the date of adoption but before the rule becomes
165	effective pursuant to subparagraph (e)6.;
166	c.  If the rule requires ratification, when more than 90
167	days have passed since the rule was filed for adoption without
168	the Legislature ratifying the rule, in which case the rule may
169	be withdrawn but may not be modified; or
170	d.  response to an objection by the committee or may be
171	modified to extend the effective date by not more than 60 days
172	When the committee notifies has notified the agency that an
173	objection to the rule is being considered, in which case the
174	rule may be modified to extend the effective date by not more
175	than 60 days.
176	4.  The agency shall give notice of its decision to
177	withdraw or modify a rule in the first available issue of the
178	publication in which the original notice of rulemaking was
179	published, shall notify those persons described in subparagraph
180	(a)3. in accordance with the requirements of that subparagraph,
181	and shall notify the Department of State if the rule is required
182	to be filed with the Department of State.
183	5.  After a rule has become effective, it may be repealed
184	or amended only through the rulemaking procedures specified in
185	this chapter.
186	(e)  Filing for final adoption; effective date.-
187	1.  If the adopting agency is required to publish its rules
188	in the Florida Administrative Code, the agency, upon approval of
189	the agency head, shall file with the Department of State three
190	certified copies of the rule it proposes to adopt; one copy of
191	any material incorporated by reference in the rule, certified by
192	the agency; a summary of the rule; a summary of any hearings
193	held on the rule; and a detailed written statement of the facts
194	and circumstances justifying the rule. Agencies not required to
195	publish their rules in the Florida Administrative Code shall
196	file one certified copy of the proposed rule, and the other
197	material required by this subparagraph, in the office of the
198	agency head, and such rules shall be open to the public.
199	2.  A rule may not be filed for adoption less than 28 days
200	or more than 90 days after the notice required by paragraph (a),
201	until 21 days after the notice of change required by paragraph
202	(d), until 14 days after the final public hearing, until 21 days
203	after a statement of estimated regulatory costs required under
204	s. 120.541 has been provided to all persons who submitted a
205	lower cost regulatory alternative and made available to the
206	public, or until the administrative law judge has rendered a
207	decision under s. 120.56(2), whichever applies. When a required
208	notice of change is published prior to the expiration of the
209	time to file the rule for adoption, the period during which a
210	rule must be filed for adoption is extended to 45 days after the
211	date of publication. If notice of a public hearing is published
212	prior to the expiration of the time to file the rule for
213	adoption, the period during which a rule must be filed for
214	adoption is extended to 45 days after adjournment of the final
215	hearing on the rule, 21 days after receipt of all material
216	authorized to be submitted at the hearing, or 21 days after
217	receipt of the transcript, if one is made, whichever is latest.
218	The term "public hearing" includes any public meeting held by
219	any agency at which the rule is considered. If a petition for an
220	administrative determination under s. 120.56(2) is filed, the
221	period during which a rule must be filed for adoption is
222	extended to 60 days after the administrative law judge files the
223	final order with the clerk or until 60 days after subsequent
224	judicial review is complete.
225	3.  At the time a rule is filed, the agency shall certify
226	that the time limitations prescribed by this paragraph have been
227	complied with, that all statutory rulemaking requirements have
228	been met, and that there is no administrative determination
229	pending on the rule.
230	4.  At the time a rule is filed, the committee shall
231	certify whether the agency has responded in writing to all
232	material and timely written comments or written inquiries made
233	on behalf of the committee. The department shall reject any rule
234	that is not filed within the prescribed time limits; that does
235	not comply with all statutory rulemaking requirements and rules
236	of the department; upon which an agency has not responded in
237	writing to all material and timely written inquiries or written
238	comments; upon which an administrative determination is pending;
239	or which does not include a statement of estimated regulatory
240	costs, if required.
241	5.  If a rule has not been adopted within the time limits
242	imposed by this paragraph or has not been adopted in compliance
243	with all statutory rulemaking requirements, the agency proposing
244	the rule shall withdraw the rule and give notice of its action
245	in the next available issue of the Florida Administrative
246	Weekly.
247	6.  The proposed rule shall be adopted on being filed with
248	the Department of State and become effective 20 days after being
249	filed, on a later date specified in the notice required by
250	subparagraph (a)1., or on a date required by statute, or upon
251	ratification by the Legislature pursuant to s. 120.541(3). Rules
252	not required to be filed with the Department of State shall
253	become effective when adopted by the agency head, or on a later
254	date specified by rule or statute, or upon ratification by the
255	Legislature pursuant to s. 120.541(3). If the committee notifies
256	an agency that an objection to a rule is being considered, the
257	agency may postpone the adoption of the rule to accommodate
258	review of the rule by the committee. When an agency postpones
259	adoption of a rule to accommodate review by the committee, the
260	90-day period for filing the rule is tolled until the committee
261	notifies the agency that it has completed its review of the
262	rule.
263
264	For the purposes of this paragraph, the term "administrative
265	determination" 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
268	2010-279, 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
272	adoption, an agency that is required to revise a statement of
273	estimated regulatory costs shall provide the statement to the
274	person who submitted the lower cost regulatory alternative and
275	to the committee and shall provide notice on the agency's
276	website that it is available to the public.
277	(4)  This section Paragraph (2)(a) does not apply to the
278	adoption of emergency rules pursuant to s. 120.54(4) or the
279	adoption of federal standards pursuant to s. 120.54(6).
280	Section 3.  Paragraph (a) of subsection (2) of section
281	120.56, Florida Statutes, as amended by chapter 2010-279, Laws
282	of Florida, is amended to read:
283	120.56  Challenges to rules.-
284	(2)  CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.-
285	(a)  A substantially affected person may seek an
286	administrative determination of the invalidity of a proposed
287	rule by filing a petition seeking such a determination with the
288	division within 21 days after the date of publication of the
289	notice required by s. 120.54(3)(a); within 10 days after the
290	final public hearing is held on the proposed rule as provided by
291	s. 120.54(3)(e)2.; within 20 44 days after the statement of
292	estimated regulatory costs or revised statement of estimated
293	regulatory costs, if applicable, has been prepared and made
294	available as provided in s. 120.541(1)(d); or within 20 days
295	after the date of publication of the notice required by s.
296	120.54(3)(d). The petition must state with particularity the
297	objections to the proposed rule and the reasons that the
298	proposed rule is an invalid exercise of delegated legislative
299	authority. The petitioner has the burden of going forward. The
300	agency then has the burden to prove by a preponderance of the
301	evidence that the proposed rule is not an invalid exercise of
302	delegated legislative authority as to the objections raised. A
303	person who is substantially affected by a change in the proposed
304	rule may seek a determination of the validity of such change. A
305	person who is not substantially affected by the proposed rule as
306	initially noticed, but who is substantially affected by the rule
307	as a result of a change, may challenge any provision of the rule
308	and is not limited to challenging the change to the proposed
309	rule.
310	Section 4.  Subsections (3) and (4) are added to section
311	120.74, 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
314	year, each agency shall file with the President of the Senate,
315	the Speaker of the House of Representatives, and the committee a
316	regulatory plan identifying and describing each rule the agency
317	proposes to adopt for the 12-month period beginning on the July
318	1 reporting date and ending on the subsequent June 30, excluding
319	emergency rules.
320	(4)  For the year 2011, the certification required in
321	subsection (2) may omit any information included in the reports
322	provided under s. 120.745. Reporting under subsections (1) and
323	(2) shall be suspended for the year 2013, but required reporting
324	under those subsections shall resume in 2015 and biennially
325	thereafter.
326	Section 5.  Section 120.745, Florida Statutes, is created
327	to read:
328	120.745  Legislative review of agency rules in effect on or
329	before November 16, 2010.-
330	(1)  DEFINITIONS.-The following definitions apply
331	exclusively to this section:
332	(a)  "Agency" has the same meaning and application as
333	provided in s. 120.52(1), but for the purposes of this section
334	excludes each officer and governmental entity in the state with
335	jurisdiction in one county or less than one county.
336	(b)  "Compliance economic review" means a good faith
337	economic analysis that includes and presents the following
338	information pertaining to a particular rule:
339	1.  A justification for the rule summarizing the benefits
340	of the rule; and
341	2.  A statement of estimated regulatory costs as described
342	in s. 120.541(2); however:
343	a.  The applicable period for the economic analysis shall
344	be 5 years beginning on July 1, 2011;
345	b.  For the analysis required in s. 120.541(2)(a)3., the
346	estimated regulatory costs over the 5-year period shall be used
347	instead of the likely increase in regulatory costs after
348	implementation; and
349	c.  An explanation of the methodology used to conduct the
350	analysis must be provided. A technical methodology need not be
351	used to develop the statement of estimated regulatory costs, if
352	the agency uses routine regulatory communications or its
353	Internet website to reasonably survey regulated entities,
354	political subdivisions, and local governments and makes good
355	faith estimates of regulatory costs in conformity with
356	recommendations from the Office of Fiscal Accountability and
357	Regulatory Reform ("OFARR"), or from one or more legislative
358	offices if requested by the agency and such request is approved
359	by the President of the Senate and the Speaker of the House of
360	Representatives.
361	(c)  "Data collection rules" means those rules requiring
362	the submission of data to the agency from external sources,
363	including, but not limited to, local governments, service
364	providers, clients, licensees, regulated entities, other
365	constituents, and market participants.
366	(d)  "Revenue rules" means those rules fixing amounts or
367	providing for the collection of money.
368	(e)  "Rule" has the same general meaning and application as
369	provided in s. 120.52(16), but for purposes of this section may
370	include only those rules for which publication in the Florida
371	Administrative Code is required pursuant to s. 120.55(1). As
372	used in this section, the term "rule" means each entire
373	statement and all subparts published under a complete title,
374	chapter, and decimal rule number in the Florida Administrative
375	Code in compliance with Florida Administrative Code Rule 1B-
376	30.001.
377	(2)  ENHANCED BIENNIAL REVIEW.-By December 1, 2011, each
378	agency shall complete an enhanced biennial review of the
379	agency's existing rules, which shall include, but is not limited
380	to:
381	(a)  Conduct of the review and submission of the report
382	required by s. 120.74 and an explanation of how the agency has
383	accomplished the requirements of s. 120.74(1). This paragraph
384	extends the October 1 deadline provided in s. 120.74(2) for the
385	year 2011.
386	(b)  Review of each rule to determine whether the rule has
387	been reviewed by OFARR pursuant to the Governor's Executive
388	Order 2011-01.
389	(c)  Review of each rule to determine whether the rule is a
390	revenue rule, to identify the statute or statutes authorizing
391	the collection of any revenue, to identify the fund or account
392	into which revenue collections are deposited, and, for each
393	revenue rule, to determine whether the rule authorizes, imposes,
394	or implements:
395	1.  Registration, license, or inspection fees.
396	2.  Transportation service tolls for road, bridge, rail,
397	air, waterway, or port access.
398	3.  Fees for a specific service or purpose not included in
399	subparagraph 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
403	subparagraphs 1.-5.
404	(d)  Review of each rule to determine whether the rule is a
405	data collection rule, providing the following information for
406	each rule determined to be a data collection rule:
407	1.  The statute or statutes authorizing the collection of
408	such data.
409	2.  The purposes for which the agency uses the data and any
410	purpose for which the data is used by others.
411	3.  The policies supporting the reporting and retention of
412	the data.
413	4.  Whether and to what extent the data is exempt from
414	public inspection under chapter 119.
415	(e)  Identification of each entire rule the agency plans to
416	repeal and, if so, the estimated timetable for repeal.
417	(f)  Identification of each entire rule or subpart of a
418	rule the agency plans to amend to substantially reduce the
419	economic impact and the estimated timetable for amendment.
420	(g)  Identification of each rule for which the agency will
421	be required to prepare a compliance economic review, to include
422	each entire rule that:
423	1.  The agency does not plan to repeal on or before
424	December 31, 2012;
425	2.  Was effective on or before November 16, 2010; and
426	3.  Probably will have any of the economic impacts
427	described in s. 120.541(2)(a), for 5 years beginning on July 1,
428	2011, excluding in such estimation any part or subpart
429	identified for amendment under paragraph (e).
430	(h)  Listing of all rules identified for compliance
431	economic review in paragraph (g), divided into two approximately
432	equal groups, identified as "Group 1" and "Group 2." Such
433	division shall be made at the agency's discretion.
434	(i)  Written certification of the agency head to the
435	committee verifying the completion of the report for all rules
436	of the agency, including each separate part or subsection. The
437	duty to certify completion of the report is the responsibility
438	solely of the agency head as defined in s. 120.52(3) and may not
439	be delegated to any other person. If the defined agency head is
440	a collegial body, the written certification must be prepared by
441	the chair or equivalent presiding officer of that body.
442	(3)  PUBLICATION OF REPORT.-No later than December 1, 2011,
443	each agency shall publish, in the manner provided in subsection
444	(7), a report of the entire enhanced biennial review pursuant to
445	subsection (2), including the results of the review; a complete
446	list of all rules the agency has placed in Group 1 or Group 2;
447	the name, physical address, fax number, and e-mail address for
448	the person the agency has designated to receive all inquiries,
449	public comments, and objections pertaining to the report; and
450	the certification of the agency head pursuant to paragraph
451	(2)(i). The report of results shall summarize certain
452	information required in subsection (2) in a table consisting of
453	the following columns:
454	(a)  Column 1: Agency name.
455	(b)  Column 2: F.A.C. rule number, with subcolumns
456	including:
457	1.  Column 2a: F.A.C. title and any subtitle or chapter
458	designation; and
459	2.  Column 2b: F.A.C. number, excluding title and subtitle
460	or chapter designation.
461	(c)  Column 3: OFARR reviewed rule under Executive Order
462	2011-01. Entries should be "Y" or "N."
463	(d)  Column 4: Revenue rule/fund or account with subcolumns
464	including:
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.
471
472	Entries should be "N" or the identification of the fund or
473	account where receipts are deposited and provide notes
474	indicating the statutory authority for revenue collection.
475	(e)  Column 5: Data collection rule. Entries should be "Y"
476	or "N." If "Y," provide notes supplying the information required
477	in paragraph (2)(d).
478	(f)  Column 6: Repeal. Entries should be "Y" or "N" for the
479	entire rule. If "Y," provide notes estimating the timetable for
480	repeal.
481	(g)  Column 7: Amend. Entries should be "Y" or "N," based
482	on the response required in paragraph (2)(f), and provide notes
483	identifying each specific subpart that will be amended and
484	estimating the timetable for amendment.
485	(h)  Column 8: Effective on or before 11/16/2010. Entries
486	should be "Y" or "N."
487	(i)  Column 9: Section 120.541(2)(a) impacts. Entries
488	should be "NA" if Column 8 is "N" or, if Column 6 is "Y," "NP"
489	for not probable, based on the response required in subparagraph
490	(2)(f)3., or "1" or "2," reflecting the group number assigned by
491	the division required in paragraph (2)(h).
492	(4)  PUBLIC COMMENT ON ENHANCED BIENNIAL REVIEW AND REPORT;
493	OBJECTIONS.-Public input on reports required in subsection (3)
494	may be provided by stating an objection to the information
495	required in paragraphs (2)(b), (c), (d), and (g) and identifying
496	the entire rule or any subpart to which the objection relates,
497	and shall be submitted in writing or electronically to the
498	person designated in the report.
499	(a)  An objection under this subsection to a report that an
500	entire rule or any subpart probably will not have, for 5 years
501	beginning on July 1, 2011, any of the economic impacts described
502	in s. 120.541(2)(a), must include allegations of fact upon which
503	the objection is based, stating the precise information upon
504	which a contrary evaluation of probable impact may be made.
505	Allegations of fact related to other objections may be included.
506	(b)  Objections may be submitted by any interested person
507	no later than June 1, 2012.
508	(c)  The agency shall determine whether to sustain an
509	objection based upon the information provided with the objection
510	and whether any further review of information available to the
511	agency is necessary to correct its report.
512	(d)  No later than 20 days after the date an objection is
513	submitted, the agency shall publish its determination of the
514	objection in the manner provided in subsection (7).
515	(e)  The agency's determination with respect to an
516	objection is final but not a final agency action subject to
517	further proceedings, hearing, or judicial review.
518	(f)  If the agency sustains an objection, it shall amend
519	its report within 10 days after the determination. The amended
520	report shall indicate that a change has been made, the date of
521	the last change, and identify the amended portions. The agency
522	shall publish notice of the amendment in the manner provided in
523	subsection (7).
524	(g)  On or before July 1, 2012, the agency shall deliver a
525	written certification of the agency head or designee to the
526	committee verifying the completion of determinations of all
527	objections under this subsection and of any report amendments
528	required under paragraph (f). The certification shall be
529	published as an addendum to the report required in subsection
530	(3). Notice of the certification shall be published in the
531	manner provided in subsection (7).
532	(5)  COMPLIANCE ECONOMIC REVIEW OF RULES AND REQUIRED
533	REPORT.-Each agency shall perform a compliance economic review
534	and report for all rules, including separate reviews of
535	subparts, listed under Group 1 "Group 1 rules" or Group 2 "Group
536	2 rules" pursuant to subparagraph (2)(g)3. Group 1 rules shall
537	be reviewed and reported on in 2012, and Group 2 rules shall be
538	reviewed 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
541	rule or subpart in the appropriate group.
542	2.  File the written certification of the agency head with
543	the committee verifying the completion of each compliance
544	economic review required for the respective year. The
545	certification shall be dated and published as an addendum to the
546	report required in subsection (3). The duty to certify
547	completion of the required compliance economic reviews is the
548	responsibility solely of the agency head as defined in s.
549	120.52(3) and may not be delegated to any other person. If the
550	defined agency head is a collegial body, the written
551	certification must be prepared by the chair or equivalent
552	presiding officer of that body.
553	3.  Publish a copy of the compliance economic review,
554	directions on how and when interested parties may submit lower
555	cost regulatory alternatives to the agency, and the date the
556	notice is published in the manner provided in subsection (7).
557	4.  Publish notice of the publications required in
558	subparagraphs 2. and 3. in the manner provided in subsection
559	(7).
560	5.  Submit each compliance economic review to the Small
561	Business Regulatory Advisory Council for its review.
562	(b)  Any agency rule, including subparts, reviewed pursuant
563	to Executive Order 2011-01 are exempt from the compliance
564	economic review if the review found that the rule:
565	1.  Does not unnecessarily restrict entry into a profession
566	or occupation;
567	2.  Does not adversely affect the availability of
568	professional or occupational services to the public;
569	3.  Does not unreasonably affect job creation or job
570	retention;
571	4.  Does not place unreasonable restrictions on individuals
572	attempting to find employment;
573	5.  Does not impose burdensome costs on businesses; or
574	6.  Is justifiable when the overall cost-effectiveness and
575	economic impact of the regulation, including indirect costs to
576	consumers, is considered.
577	(c)  No later than August 1, the Small Business Regulatory
578	Advisory Council may submit lower cost regulatory alternatives
579	to any rule to the agency that adopted the rule. No later than
580	June 15, other interested parties may submit lower cost
581	regulatory alternatives to any rule.
582	(d)  No later than December 1, each agency shall publish a
583	final report of the agency's review under this subsection in the
584	manner provided in subsection (7). For each rule the report
585	shall 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
589	agency.
590	4.  The agency's written explanation for rejecting
591	submitted lower regulatory cost alternatives.
592	5.  The agency's justification to repeal or amend the rule
593	or to retain the rule without amendment.
594	6.  The written certification of the agency head to the
595	committee verifying the completion of the reviews and reporting
596	required under this subsection for that year. The certification
597	shall be dated and published as an addendum to the report
598	required in subsection (3). The duty to certify completion of
599	the report is the responsibility solely of the agency head as
600	defined in s. 120.52(3) and may not be delegated to any other
601	person. If the defined agency head is a collegial body, the
602	written certification must be prepared by the chair or
603	equivalent presiding officer of that body.
604	(e)  Notice of publication of the final report and
605	certification shall be published in the manner provided in
606	subsection (7).
607	(f)  By December 1, each agency shall begin proceedings
608	under s. 120.54(3) to amend or repeal those rules so designated
609	in the report under this subsection. Proceedings to repeal rules
610	are exempt from the requirements for the preparation,
611	consideration, or use of a statement of estimated regulatory
612	costs under s. 120.54 and the provisions of s. 120.541.
613	(6)  LEGISLATIVE CONSIDERATION.-With respect to a rule
614	identified for retention without amendment in the report
615	required in subsection (5), the Legislature may consider
616	specific legislation nullifying the rule or altering the
617	statutory authority for the rule.
618	(7)  MANNER OF PUBLICATION OF NOTICES, DETERMINATIONS, AND
619	REPORTS.-Agencies shall publish notices, determinations, and
620	reports required under this section exclusively in the following
621	manner:
622	(a)  The agency shall publish each notice, determination,
623	and complete report on its Internet website. If the agency does
624	not have an Internet website, the information shall be published
625	on the committee's Internet website using
626	www.japc.state.fl.us/[agency name]/ in place of the address of
627	the agency's Internet website. The following URL formats shall
628	be used:
629	1.  Reports required under subsection (3), including any
630	reports amended as a result of a determination under subsection
631	(4):
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
637	under subsection (3):
638	[Address of agency's Internet website]/2011_Rule_review/
639	Economic_Review/Schedule.
640	(Example: http://www.dos.state.fl.us/2011_Rule_review/
641	Economic_Review/Schedule)
642	3.  Determinations under subsection (4):
643	[Address of agency's Internet website]/2011_Rule_review/
644	Objection_Determination/[F.A.C. Rule number].
645	(Example: http://www.dos.state.fl.us/2011_Rule_review/
646	Objection_Determination/1S-1.001).
647	4.  Completed compliance economic reviews reported under
648	subsection (5):
649	[Address of agency's Internet website]/2011_Rule_review/
650	Economic Review/[F.A.C.Rule number].
651	(Example: http://www.dos.state.fl.us/2011_Rule_review/
652	Economic_Review/1S-1.001).
653	5.  Final reports under paragraph (5)(d), with the
654	appropriate year:
655	[Address of agency's Internet website]/2011_Rule_review/
656	Economic Review/[YYYY_Final_Report].
657	(Example: http://www.dos.state.fl.us/2011_Rule_review/
658	Economic Review/2012_Final_Report).
659	(b)1.  Each notice shall be published using the following
660	URL format:
661	[Address of agency's Internet website]/
662	2011_Rule_review/Notices.
663	(Example:
664	http://www.dos.state.fl.us/2011_Rule_review/Notices).
665	2.  Once each week a copy of all notices published in the
666	previous week on the Internet under this paragraph shall be
667	delivered to the Department of State, for publication in the
668	next available issue of the Florida Administrative Weekly, and a
669	copy shall be delivered by electronic mail to the committee.
670	3.  Each notice shall identify the publication for which
671	notice is being given and include:
672	a.  The name of the agency.
673	b.  The name, physical address, fax number, and e-mail
674	address for the person designated to receive all inquiries,
675	public comments, and objections pertaining to the publication
676	identified in the notice.
677	c.  The particular Internet address through which the
678	publication may be accessed.
679	d.  The date the notice and publication is first published
680	on the agency's Internet website.
681	(c)  Publication pursuant to this section is deemed to be
682	complete as of the date the notice, determination, or report is
683	posted on the agency's Internet website.
684	(8)  FAILURE TO FILE CERTIFICATION OF COMPLETION.-If an
685	agency fails to timely file any written certification required
686	in paragraph (2)(i), paragraph (4)(g), subparagraph (5)(a)2., or
687	subparagraph (5)(d)6., the entire rulemaking authority delegated
688	to the agency by the Legislature under any statute or law shall
689	be suspended automatically as of the due date of the required
690	certification and shall remain suspended until the date that the
691	agency files the required certification with the committee.
692	(a)  During the period of any suspension under this
693	subsection, the agency has no authority to engage in rulemaking
694	under s. 120.54.
695	(b)  A suspension under this subsection does not authorize
696	an agency to promulgate any statement defined as a rule under s.
697	120.52(16).
698	(c)  A suspension under this subsection shall toll the time
699	requirements under s. 120.54 for any rulemaking proceeding the
700	agency initiated before the date of suspension, which time
701	requirements shall resume on the date the agency files the
702	written certification with the committee and publishes notice of
703	the required certification in the manner provided in subsection
704	(7).
705	(d)  Failure to timely file a written certification
706	required under paragraph (2)(i) tolls the time for public
707	response, which period shall not begin until the date the agency
708	files the written certification with the committee and publishes
709	notice of the required certification in the manner provided in
710	subsection (7). The period for public response shall be extended
711	by the number of days equivalent to the period of suspension
712	under this subsection.
713	(e)  Failure to timely file a written certification
714	required under subparagraph (5)(a)2. shall toll the deadline for
715	submission of lower cost regulatory alternatives for any rule or
716	subpart for which a compliance economic review has not been
717	timely published. The period of tolling shall be the number of
718	days after May 1 until the date of the certification as
719	published.
720	(9)  EXEMPTION FROM ENHANCED BIENNIAL REVIEW AND COMPLIANCE
721	ECONOMIC REVIEW.-
722	(a)  An agency is exempt from subsections (1)-(8) if it has
723	cooperated or cooperates with OFARR in a review of the agency's
724	rules in a manner consistent with Executive Order 2011-01, or
725	any alternative review directed by OFARR; if the agency or OFARR
726	identifies each data collection rule and each revenue rule; and
727	if the information developed thereby becomes publicly available
728	on the Internet by December 1, 2011. Each such agency is exempt
729	from the biennial review required in s. 120.74(2) for the year
730	2011.
731	(b)  For each rule reviewed under this subsection, OFARR
732	may identify whether the rule imposes a significant regulatory
733	cost or economic impact and shall schedule and obtain or direct
734	a reasonable economic estimate of such cost and impact for each
735	rule so identified. A report on each such estimate shall be
736	published on the Internet by December 31, 2013. On or before
737	October 1, 2013, the agency head shall certify in writing to the
738	committee that the agency has completed each economic estimate
739	required under this paragraph and thereupon the agency is exempt
740	from the biennial review required in s. 120.74(2) for the year
741	2013.
742	(c)  The exemption under this paragraph does not apply
743	unless the agency head certifies in writing to the committee, on
744	or before October 1, 2011, that the agency has chosen such
745	exemption and has cooperated with OFARR in undertaking the
746	review required in paragraph (a).
747	(10)  REPEAL.-This section is repealed July 1, 2014.
748	Section 6.  Section 120.7455, Florida Statutes, is created
749	to read:
750	120.7455  Legislative survey of regulatory impacts.-
751	(1)  From July 1, 2011, until July 1, 2014, the Legislature
752	may establish and maintain an Internet-based public survey of
753	regulatory impact soliciting information from the public
754	regarding the kind and degree of regulation affecting private
755	activities in the state. The input may include, but need not be
756	limited to:
757	(a)  The registered business name or other name of each
758	reporting person.
759	(b)  The number and identity of agencies licensing,
760	inspecting, registering, permitting, or otherwise regulating
761	lawful activities of the reporting person.
762	(c)  The types, numbers, and nature of licenses, permits,
763	and registrations required for various lawful activities of the
764	reporting person.
765	(d)  The identity of local, state, and federal agencies,
766	and other entities acting under color of law which regulate the
767	lawful activities of the reporting person or otherwise exercise
768	power to enforce laws applicable to such activities.
769	(e)  The identification and nature of each ordinance, law,
770	or administrative rule or regulation deemed unreasonably
771	burdensome by the reporting person.
772	(2)  The President of the Senate and the Speaker of the
773	House of Representatives may certify in writing to the chair of
774	the committee and to the Attorney General the establishment and
775	identity of any Internet-based public survey established under
776	this section.
777	(3)  Any person reporting or otherwise providing
778	information solicited by the Legislature in conformity with this
779	section is immune from any enforcement action or prosecution
780	that:
781	(a)  Is instituted on account of, or in reliance upon, the
782	fact of reporting or nonreporting of information in response to
783	the Legislature's solicitation of information pursuant to this
784	section; or
785	(b)  Uses information provided in response to the
786	Legislature's solicitation of information pursuant to this
787	section.
788	(4)  Any alleged violator against whom an enforcement
789	action is brought may object to any proposed penalty in excess
790	of the minimum provided by law or rule on the basis that the
791	action is in retaliation for the violator providing or
792	withholding any information in response to the Legislature's
793	solicitation of information pursuant to this section. If the
794	presiding judge determines that the enforcement action was
795	motivated in whole or in part by retaliation, any penalty
796	imposed is limited to the minimum penalties provided by law for
797	each separate violation adjudicated.
798	Section 7.  The amendment of section 120.74, Florida
799	Statutes, and the creation of sections 120.745 and 120.7455,
800	Florida Statutes, by this act do not change the legal status of
801	a rule that has otherwise been judicially or administratively
802	determined to be invalid.
803	Section 8.  Subsection (16) of section 120.80, Florida
804	Statutes, is amended, and subsections (17) and (18) are added to
805	that section, to read:
806	120.80  Exceptions and special requirements; agencies.-
807	(16)  FLORIDA BUILDING COMMISSION.-
808	(a)  Notwithstanding the provisions of s. 120.542, the
809	Florida Building Commission may not accept a petition for waiver
810	or variance and may not grant any waiver or variance from the
811	requirements of the Florida Building Code.
812	(b)  The Florida Building Commission shall adopt within the
813	Florida Building Code criteria and procedures for alternative
814	means of compliance with the code or local amendments thereto,
815	for enforcement by local governments, local enforcement
816	districts, or other entities authorized by law to enforce the
817	Florida Building Code. Appeals from the denial of the use of
818	alternative means shall be heard by the local board, if one
819	exists, and may be appealed to the Florida Building Commission.
820	(c)  Notwithstanding ss. 120.565, 120.569, and 120.57, the
821	Florida Building Commission and hearing officer panels appointed
822	by the commission in accordance with s. 553.775(3)(c)1. may
823	conduct proceedings to review decisions of local building code
824	officials in accordance with s. 553.775(3)(c).
825	(d)  Section 120.541(3) does not apply to the adoption of
826	amendments and the triennial update to the Florida Building Code
827	expressly authorized by s. 553.73.
828	(17)  STATE FIRE MARSHAL.-Section 120.541(3) does not apply
829	to the adoption of amendments and the triennial update to the
830	Florida Fire Prevention Code expressly authorized by s.
831	633.0215.
832	(18)  DEPARTMENT OF TRANSPORTATION.-Sections 120.54(3)(b)
833	and 120.541 do not apply to the adjustment of tolls pursuant to
834	s. 338.165(3).
835	Section 9.  Paragraph (l) is added to subsection (1) of
836	section 120.81, Florida Statutes, to read:
837	120.81  Exceptions and special requirements; general
838	areas.-
839	(1)  EDUCATIONAL UNITS.-
840	(l)  Sections 120.54(3)(b) and 120.541 do not apply to the
841	adoption of rules pursuant to s. 1012.22, s. 1012.27, s.
842	1012.34, s. 1012.335, or s. 1012.795.
843	Section 10.  Paragraph (p) is added to subsection (2) of
844	section 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
848	378, or chapter 403, if a nonapplicant petitions as a third
849	party to challenge an agency's issuance of a license, permit, or
850	conceptual approval, the order of presentation in the proceeding
851	is for the permit applicant to present a prima facie case
852	demonstrating entitlement to the license, permit, or conceptual
853	approval, followed by the agency. This demonstration may be made
854	by entering into evidence the application and relevant material
855	submitted to the agency in support of the application, and the
856	agency's staff report or notice of intent to approve the permit,
857	license, or conceptual approval. Subsequent to the presentation
858	of the applicant's prima facie case and any direct evidence
859	submitted by the agency, the petitioner initiating the action
860	challenging the issuance of the license, permit, or conceptual
861	approval has the burden of ultimate persuasion and has the
862	burden of going forward to prove the case in opposition to the
863	license, permit, or conceptual approval through the presentation
864	of competent and substantial evidence. The permit applicant and
865	agency may on rebuttal present any evidence relevant to
866	demonstrating that the application meets the conditions for
867	issuance. Notwithstanding subsection (1), this paragraph applies
868	to proceedings under s. 120.574.
869	Section 11.  This act shall take effect upon becoming a
870	law.

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