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Senate Bill 1010

Senate Bill sb1010c1

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    Florida Senate - 2005                           CS for SB 1010

    By the Committee on Governmental Oversight and Productivity;
    and Senators Bennett and Dockery




    585-1746-05

  1                      A bill to be entitled

  2         An act relating to administrative procedures;

  3         amending s. 11.60, F.S.; revising duties of the

  4         Administrative Procedures Committee with

  5         respect to its review of statutes; amending s.

  6         120.54, F.S.; revising times for filing rules

  7         for adoption; providing for the form and

  8         provisions of bonds; revising applicability of

  9         certain uniform rules; amending s. 120.55,

10         F.S.; requiring that certain information be

11         included in forms incorporated by reference in

12         rules; requiring information to be published

13         electronically on an Internet website;

14         providing that such publication does not

15         preclude other publications; providing

16         additional duties of the Department of State

17         with respect to publications; providing

18         requirements for the Internet website; amending

19         s. 120.551, F.S.; postponing the repeal of this

20         section, relating to Internet publication;

21         amending s. 120.56, F.S.; revising provisions

22         relating to withdrawal of challenged rules;

23         amending s. 120.569, F.S.; prescribing

24         circumstances under which the time for filing a

25         petition for hearing must be extended; amending

26         s. 120.57, F.S.; requiring that additional

27         information be included in notices relating to

28         protests of contract solicitations or awards;

29         amending s. 120.74, F.S.; requiring agency

30         reports to be filed with the Administrative

31         Procedures Committee; requiring the Department

                                  1

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    Florida Senate - 2005                           CS for SB 1010
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 1         of State to provide certain assistance to

 2         agencies in their transition to publishing on

 3         the Florida Administrative Weekly Internet

 4         website; providing effective dates.

 5  

 6  Be It Enacted by the Legislature of the State of Florida:

 7  

 8         Section 1.  Subsection (4) of section 11.60, Florida

 9  Statutes, is amended to read:

10         11.60  Administrative Procedures Committee; creation;

11  membership; powers; duties.--

12         (4)  The committee shall undertake and maintain a

13  systematic and continuous review of statutes that authorize

14  agencies to adopt rules and shall make recommendations to the

15  appropriate standing committees of the Senate and the House of

16  Representatives as to the advisability of considering changes

17  to the delegated legislative authority to adopt rules in

18  specific circumstances. The annual report submitted pursuant

19  to paragraph (2)(f) shall include a schedule for the required

20  systematic review of existing statutes, a summary of the

21  status of this review, and any recommendations provided to the

22  standing committees during the preceding year.

23         Section 2.  Paragraph (e) of subsection (3) and

24  paragraph (b) of subsection (5) of section 120.54, Florida

25  Statutes, are amended to read:

26         120.54  Rulemaking.--

27         (3)  ADOPTION PROCEDURES.--

28         (e)  Filing for final adoption; effective date.--

29         1.  If the adopting agency is required to publish its

30  rules in the Florida Administrative Code, it shall file with

31  the Department of State three certified copies of the rule it

                                  2

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    Florida Senate - 2005                           CS for SB 1010
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 1  proposes to adopt, a summary of the rule, a summary of any

 2  hearings held on the rule, and a detailed written statement of

 3  the facts and circumstances justifying the rule. Agencies not

 4  required to publish their rules in the Florida Administrative

 5  Code shall file one certified copy of the proposed rule, and

 6  the other material required by this subparagraph, in the

 7  office of the agency head, and such rules shall be open to the

 8  public.

 9         2.  A rule may not be filed for adoption less than 28

10  days or more than 90 days after the notice required by

11  paragraph (a), until 21 days after the notice required by

12  paragraph (d), until 14 days after the final public hearing,

13  until 21 days after preparation of a statement of estimated

14  regulatory costs required under s. 120.541, or until the

15  administrative law judge has rendered a decision under s.

16  120.56(2), whichever applies. Filings shall be made no less

17  than 28 days nor more than 90 days after the notice required

18  by paragraph (a). When a required notice of change is

19  published prior to the expiration of the time to file the rule

20  for adoption, the period during which a rule must be filed for

21  adoption is extended to 45 days after the date of publication.

22  If notice of a public hearing is published prior to the

23  expiration of the time to file the rule for adoption, the

24  period during which a rule must be filed for adoption is

25  extended to 45 days after adjournment of the final hearing on

26  the rule, 21 days after receipt of all material authorized to

27  be submitted at the hearing, or 21 days after receipt of the

28  transcript, if one is made, whichever is latest. The term

29  "public hearing" includes any public meeting held by any

30  agency at which the rule is considered.  The filing of a

31  petition for an administrative determination under the

                                  3

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    Florida Senate - 2005                           CS for SB 1010
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 1  provisions of s. 120.56(2) shall toll the 90-day period during

 2  which a rule must be filed for adoption until 30 days after

 3  rendition of the final order or until judicial review of the

 4  final order is complete. the administrative law judge has

 5  filed the final order with the clerk.

 6         3.  At the time a rule is filed, the agency shall

 7  certify that the time limitations prescribed by this paragraph

 8  have been complied with, that all statutory rulemaking

 9  requirements have been met, and that there is no

10  administrative determination pending on the rule. For the

11  purposes of this paragraph, the term "administrative

12  determination" does not include subsequent judicial review.

13         4.  At the time a rule is filed, the committee shall

14  certify whether the agency has responded in writing to all

15  material and timely written comments or written inquiries made

16  on behalf of the committee. The department shall reject any

17  rule not filed within the prescribed time limits; that does

18  not satisfy all statutory rulemaking requirements; upon which

19  an agency has not responded in writing to all material and

20  timely written inquiries or written comments; upon which an

21  administrative determination is pending; or which does not

22  include a statement of estimated regulatory costs, if

23  required.

24         5.  If a rule has not been adopted within the time

25  limits imposed by this paragraph or has not been adopted in

26  compliance with all statutory rulemaking requirements, the

27  agency proposing the rule shall withdraw the rule and give

28  notice of its action in the next available issue of the

29  Florida Administrative Weekly.

30         6.  The proposed rule shall be adopted on being filed

31  with the Department of State and become effective 20 days

                                  4

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    Florida Senate - 2005                           CS for SB 1010
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 1  after being filed, on a later date specified in the rule, or

 2  on a date required by statute. Rules not required to be filed

 3  with the Department of State shall become effective when

 4  adopted by the agency head or on a later date specified by

 5  rule or statute. If the committee notifies an agency that an

 6  objection to a rule is being considered, the agency may

 7  postpone the adoption of the rule to accommodate review of the

 8  rule by the committee.  When an agency postpones adoption of a

 9  rule to accommodate review by the committee, the 90-day period

10  for filing the rule is tolled until the committee notifies the

11  agency that it has completed its review of the rule.

12         (5)  UNIFORM RULES.--

13         (b)  The uniform rules of procedure adopted by the

14  commission pursuant to this subsection shall include, but are

15  not limited to:

16         1.  Uniform rules for the scheduling of public

17  meetings, hearings, and workshops.

18         2.  Uniform rules for use by each state agency that

19  provide procedures for conducting public meetings, hearings,

20  and workshops, and for taking evidence, testimony, and

21  argument at such public meetings, hearings, and workshops, in

22  person and by means of communications media technology. The

23  rules shall provide that all evidence, testimony, and argument

24  presented shall be afforded equal consideration, regardless of

25  the method of communication. If a public meeting, hearing, or

26  workshop is to be conducted by means of communications media

27  technology, or if attendance may be provided by such means,

28  the notice shall so state. The notice for public meetings,

29  hearings, and workshops utilizing communications media

30  technology shall state how persons interested in attending may

31  do so and shall name locations, if any, where communications

                                  5

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    Florida Senate - 2005                           CS for SB 1010
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 1  media technology facilities will be available. Nothing in this

 2  paragraph shall be construed to diminish the right to inspect

 3  public records under chapter 119. Limiting points of access to

 4  public meetings, hearings, and workshops subject to the

 5  provisions of s. 286.011 to places not normally open to the

 6  public shall be presumed to violate the right of access of the

 7  public, and any official action taken under such circumstances

 8  is void and of no effect. Other laws relating to public

 9  meetings, hearings, and workshops, including penal and

10  remedial provisions, shall apply to public meetings, hearings,

11  and workshops conducted by means of communications media

12  technology, and shall be liberally construed in their

13  application to such public meetings, hearings, and workshops.

14  As used in this subparagraph, "communications media

15  technology" means the electronic transmission of printed

16  matter, audio, full-motion video, freeze-frame video,

17  compressed video, and digital video by any method available.

18         3.  Uniform rules of procedure for the filing of notice

19  of protests and formal written protests. The Administration

20  Commission may prescribe the form and substantive provisions

21  of a required bond.

22         4.  Uniform rules of procedure for the filing of

23  petitions for administrative hearings pursuant to s. 120.569

24  or s. 120.57. For all actions other than agency enforcement

25  and disciplinary actions against a licensee or other person,

26  such rules shall require the petition to include:

27         a.  The identification of the petitioner.

28         b.  A statement of when and how the petitioner received

29  notice of the agency's action or proposed action.

30  

31  

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    Florida Senate - 2005                           CS for SB 1010
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 1         c.  An explanation of how the petitioner's substantial

 2  interests are or will be affected by the action or proposed

 3  action.

 4         d.  A statement of all material facts disputed by the

 5  petitioner or a statement that there are no disputed facts.

 6         e.  A statement of the ultimate facts alleged,

 7  including a statement of the specific facts the petitioner

 8  contends warrant reversal or modification of the agency's

 9  proposed action.

10         f.  A statement of the specific rules or statutes that

11  the petitioner contends require reversal or modification of

12  the agency's proposed action, including an explanation of how

13  the alleged facts relate to the specific rules or statutes.

14         g.  A statement of the relief sought by the petitioner,

15  stating precisely the action petitioner wishes the agency to

16  take with respect to the proposed action.

17         5.  Uniform rules of procedure for the filing and

18  prompt disposition of petitions for declaratory statements.

19         6.  Provision of a method by which each agency head

20  shall provide a description of the agency's organization and

21  general course of its operations.

22         7.  Uniform rules establishing procedures for granting

23  or denying petitions for variances and waivers pursuant to s.

24  120.542.

25         Section 3.  Effective December 31, 2006, section

26  120.55, Florida Statutes, is amended to read:

27         120.55  Publication.--

28         (1)  The Department of State shall:

29         (a)1.  Through a continuous revision system, compile

30  and publish the "Florida Administrative Code." The Florida

31  Administrative Code shall contain all rules adopted by each

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    Florida Senate - 2005                           CS for SB 1010
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 1  agency, citing the specific rulemaking authority pursuant to

 2  which each rule was adopted, all history notes as authorized

 3  in s. 120.545(9), and complete indexes to all rules contained

 4  in the code. Supplementation shall be made as often as

 5  practicable, but at least monthly.  The department may

 6  contract with a publishing firm for the publication, in a

 7  timely and useful form, of the Florida Administrative Code;

 8  however, the department shall retain responsibility for the

 9  code as provided in this section.  This publication shall be

10  the official compilation of the administrative rules of this

11  state. The Department of State shall retain the copyright over

12  the Florida Administrative Code.

13         2.  Rules general in form but applicable to only one

14  school district, community college district, or county, or a

15  part thereof, or state university rules relating to internal

16  personnel or business and finance shall not be published in

17  the Florida Administrative Code. Exclusion from publication in

18  the Florida Administrative Code shall not affect the validity

19  or effectiveness of such rules.

20         3.  At the beginning of the section of the code dealing

21  with an agency that files copies of its rules with the

22  department, the department shall publish the address and

23  telephone number of the executive offices of each agency, the

24  manner by which the agency indexes its rules, a listing of all

25  rules of that agency excluded from publication in the code,

26  and a statement as to where those rules may be inspected.

27         4.  Forms shall not be published in the Florida

28  Administrative Code; but any form which an agency uses in its

29  dealings with the public, along with any accompanying

30  instructions, shall be filed with the committee before it is

31  used. Any form or instruction which meets the definition of

                                  8

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    Florida Senate - 2005                           CS for SB 1010
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 1  "rule" provided in s. 120.52 shall be incorporated by

 2  reference into the appropriate rule.  The reference shall

 3  specifically state that the form is being incorporated by

 4  reference and shall include the number, title, and effective

 5  date of the form and an explanation of how the form may be

 6  obtained. Each form created by an agency which is incorporated

 7  by reference in a rule notice of which is given under s.

 8  120.54(3)(a) after December 31, 2006, must clearly display the

 9  number, title, and effective date of the form and the number

10  of the rule in which the form is incorporated.

11         (b)  Electronically publish on an Internet website

12  managed by the department a weekly publication entitled the

13  "Florida Administrative Weekly," which shall serve as the

14  official Internet website for such publication and must

15  contain:

16         1.  Notice of adoption of, and an index to, all rules

17  filed during the preceding week.

18         2.  All notices required by s. 120.54(3)(a), showing

19  the text of all rules proposed for consideration or a

20  reference to the location in the Florida Administrative Weekly

21  where the text of the proposed rules is published.

22         3.  All notices of public meetings, hearings, and

23  workshops conducted in accordance with the provisions of s.

24  120.525, including a statement of the manner in which a copy

25  of the agenda may be obtained.

26         4.  A notice of each request for authorization to amend

27  or repeal an existing uniform rule or for the adoption of new

28  uniform rules.

29         5.  Notice of petitions for declaratory statements or

30  administrative determinations.

31  

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    Florida Senate - 2005                           CS for SB 1010
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 1         6.  A summary of each objection to any rule filed by

 2  the Administrative Procedures Committee during the preceding

 3  week.

 4         7.  A cumulative list of all rules that have been

 5  proposed but not filed for adoption.

 6         8.7.  Any other material required or authorized by law

 7  or deemed useful by the department.

 8  

 9  The department shall publish a printed version of the Florida

10  Administrative Weekly and make copies available on an annual

11  subscription basis. The department may contract with a

12  publishing firm for printed publication of the Florida

13  Administrative Weekly.

14         (c)  Review notices for compliance with format and

15  numbering requirements before publishing them on the Florida

16  Administrative Weekly Internet website.

17         (d)(c)  Prescribe by rule the style and form required

18  for rules submitted for filing and establish the form for

19  their certification.

20         (e)(d)  Correct grammatical, typographical, and like

21  errors not affecting the construction or meaning of the rules,

22  after having obtained the advice and consent of the

23  appropriate agency, and insert history notes.

24         (e)  Make copies of the Florida Administrative Weekly

25  available on an annual subscription basis computed to cover a

26  pro rata share of 50 percent of the costs related to the

27  publication of the Florida Administrative Weekly.

28         (f)  Charge each agency using the Florida

29  Administrative Weekly a space rate computed to cover a pro

30  rata share of 50 percent of the costs related to the Florida

31  Administrative Weekly and the Florida Administrative Code.

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    Florida Senate - 2005                           CS for SB 1010
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 1         (g)  Maintain a permanent record of all notices

 2  published in the Florida Administrative Weekly.

 3         (2)  The Florida Administrative Weekly Internet website

 4  must allow users to:

 5         (a)  Search for notices by type, publication date, rule

 6  number, word, subject, and agency;

 7         (b)  Search a database that makes available all notices

 8  published on the website for a period of at least 5 years;

 9         (c)  Subscribe to an automated e-mail notification of

10  selected notices; and

11         (d)  View agency forms incorporated by reference in

12  proposed rules.

13         (3)  Publication of material required by paragraph

14  (1)(b) on the Florida Administrative Weekly Internet website

15  does not preclude publication of such material on an agency's

16  website or by other means.

17         (4)(2)  Each agency shall provide copies of its rules

18  upon request, with citations to the grant of rulemaking

19  authority and the specific law implemented for each rule print

20  or distribute copies of its rules, citing the specific

21  rulemaking authority pursuant to which each rule was adopted.

22         (5)(3)  Any publication of a proposed rule promulgated

23  by an agency, whether published in the Florida Administrative

24  Code or elsewhere, shall include, along with the rule, the

25  name of the person or persons originating such rule, the name

26  of the supervisor or person who approved the rule, and the

27  date upon which the rule was approved.

28         (6)  Access to the Florida Administrative Weekly

29  Internet website and its contents, including the e-mail

30  notification service, shall be free for the public.

31  

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    Florida Senate - 2005                           CS for SB 1010
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 1         (7)(a)(4)(a)  Each year the Department of State shall

 2  furnish the Florida Administrative Weekly, without charge and

 3  upon request, as follows:

 4         1.  One subscription to each federal and state court

 5  having jurisdiction over the residents of the state; the

 6  Legislative Library; each state university library; the State

 7  Library; each depository library designated pursuant to s.

 8  257.05; and each standing committee of the Senate and House of

 9  Representatives and each state legislator.

10         2.  Two subscriptions to each state department.

11         3.  Three subscriptions to the library of the Supreme

12  Court of Florida, the library of each state district court of

13  appeal, the division, the library of the Attorney General,

14  each law school library in Florida, the Secretary of the

15  Senate, and the Clerk of the House of Representatives.

16         4.  Ten subscriptions to the committee.

17         (b)  The Department of State shall furnish one copy of

18  the Florida Administrative Weekly, at no cost, to each clerk

19  of the circuit court and each state department, for posting

20  for public inspection.

21         (8)(5)(a)  All fees and moneys collected by the

22  Department of State under this chapter shall be deposited in

23  the Records Management Trust Fund for the purpose of paying

24  for the publication and distribution of the Florida

25  Administrative Code and the Florida Administrative Weekly and

26  for associated costs incurred by the department in carrying

27  out this chapter.

28         (b)  The unencumbered balance in the Records Management

29  Trust Fund for fees collected pursuant to this chapter may

30  shall not exceed $300,000 at the beginning of each fiscal

31  

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    Florida Senate - 2005                           CS for SB 1010
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 1  year, and any excess shall be transferred to the General

 2  Revenue Fund.

 3         (c)  It is the intent of the Legislature that the

 4  Florida Administrative Weekly be supported entirely from funds

 5  collected for subscriptions to and advertisements in the

 6  Florida Administrative Weekly.

 7         Section 4.  Subsection (3) of section 120.551, Florida

 8  Statutes, is amended to read:

 9         120.551  Internet publication.--

10         (3)  This section is repealed effective December 31,

11  2006 July 1, 2005, unless reviewed and reenacted by the

12  Legislature before that date.

13         Section 5.  Paragraph (b) of subsection (2) of section

14  120.56, Florida Statutes, is amended to read:

15         120.56  Challenges to rules.--

16         (2)  CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--

17         (b)  The administrative law judge may declare the

18  proposed rule wholly or partly invalid. Unless the decision of

19  the administrative law judge is reversed on appeal, the

20  proposed rule or provision of a proposed rule declared invalid

21  shall be withdrawn by the adopting agency and shall not be

22  adopted. No rule shall be filed for adoption until 28 days

23  after the notice required by s. 120.54(3)(a), until 21 days

24  after the notice required by s. 120.54(3)(d), until 14 days

25  after the public hearing, until 21 days after preparation of a

26  statement of estimated regulatory costs required pursuant to

27  s. 120.541, or until the administrative law judge has rendered

28  a decision, whichever applies. However, the agency may proceed

29  with all other steps in the rulemaking process, including the

30  holding of a factfinding hearing. In the event part of a

31  proposed rule is declared invalid, the adopting agency may, in

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 1  its sole discretion, withdraw the proposed rule in its

 2  entirety. The agency whose proposed rule has been declared

 3  invalid in whole or part shall give notice of the decision in

 4  the first available issue of the Florida Administrative

 5  Weekly.

 6         Section 6.  Paragraph (c) of subsection (2) of section

 7  120.569, Florida Statutes, is amended to read:

 8         120.569  Decisions which affect substantial

 9  interests.--

10         (2)

11         (c)  Unless otherwise provided by law, a petition or

12  request for hearing shall include those items required by the

13  uniform rules adopted pursuant to s. 120.54(5)(b)4.  Upon the

14  receipt of a petition or request for hearing, the agency shall

15  carefully review the petition to determine if it contains all

16  of the required information.  A petition shall be dismissed if

17  it is not in substantial compliance with these requirements or

18  it has been untimely filed.  Dismissal of a petition shall, at

19  least once, be without prejudice to petitioner's filing a

20  timely amended petition curing the defect, unless it

21  conclusively appears from the face of the petition that the

22  defect cannot be cured.  The agency shall promptly give

23  written notice to all parties of the action taken on the

24  petition, shall state with particularity its reasons if the

25  petition is not granted, and shall state the deadline for

26  filing an amended petition if applicable. The time for filing

27  a petition shall be extended if the petitioner has been misled

28  or lulled into inaction, has in some extraordinary way been

29  prevented from asserting his or her rights, or has timely

30  asserted his or her rights mistakenly in the wrong forum.

31  

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 1         Section 7.  Paragraph (a) of subsection (3) of section

 2  120.57, Florida Statutes, is amended to read:

 3         120.57  Additional procedures for particular cases.--

 4         (3)  ADDITIONAL PROCEDURES APPLICABLE TO PROTESTS TO

 5  CONTRACT SOLICITATION OR AWARD.--Agencies subject to this

 6  chapter shall use the uniform rules of procedure, which

 7  provide procedures for the resolution of protests arising from

 8  the contract solicitation or award process. Such rules shall

 9  at least provide that:

10         (a)  The agency shall provide notice of a decision or

11  intended decision concerning a solicitation, contract award,

12  or exceptional purchase by electronic posting. This notice

13  shall contain the following statement: "Failure to file a

14  protest within the time prescribed in section 120.57(3),

15  Florida Statutes, or failure to post the bond or other

16  security required by law within the time allowed for filing a

17  bond shall constitute a waiver of proceedings under chapter

18  120, Florida Statutes."

19         Section 8.  Subsection (2) of section 120.74, Florida

20  Statutes, is amended to read:

21         120.74  Agency review, revision, and report.--

22         (2)  Beginning October 1, 1997, and by October 1 of

23  every other year thereafter, the head of each agency shall

24  file a report with the President of the Senate, and the

25  Speaker of the House of Representatives, and the committee,

26  with a copy to each appropriate standing committee of the

27  Legislature, which certifies that the agency has complied with

28  the requirements of this subsection. The report must specify

29  any changes made to its rules as a result of the review and,

30  when appropriate, recommend statutory changes that will

31  

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    Florida Senate - 2005                           CS for SB 1010
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 1  promote efficiency, reduce paperwork, or decrease costs to

 2  government and the private sector.

 3         Section 9.  The Department of State shall, before

 4  December 31, 2006, make available, to all agencies required on

 5  the effective date of this act to publish materials in the

 6  Florida Administrative Weekly, training courses for the

 7  purpose of assisting the agencies with their transition to

 8  publishing on the Florida Administrative Weekly Internet

 9  website. The training courses may be provided in the form of

10  workshops or software packages that allow self-training by

11  agency personnel.

12         Section 10.  Except as otherwise expressly provided in

13  this act, this act shall take effect July 1, 2005.

14  

15          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
16                         Senate Bill 1010

17                                 

18  Requires the Department of State to publish a printed version
    of the Florida Administrative Weekly.
19  
    Removes a requirement that all costs related to the printed
20  publication of the Florida Administrative Weekly be funded
    solely by annual subscription revenues.
21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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