October 26, 2020
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       Florida Senate - 2010                             CS for SB 1844
       
       
       
       By the Committee on Commerce; and Senator Bennett
       
       
       
       
       577-04356-10                                          20101844c1
    1                        A bill to be entitled                      
    2         An act relating to rulemaking; amending s. 120.54,
    3         F.S.; requiring each agency, before adopting,
    4         amending, or repealing certain rules, to prepare a
    5         statement of estimated regulatory costs of the
    6         proposed rule if the proposed rule has certain adverse
    7         impacts on small business or the private sector;
    8         amending s. 120.541, F.S.; requiring each agency,
    9         before adopting, amending, or repealing certain rules,
   10         to prepare a statement of estimated regulatory costs
   11         of the proposed rule; specifying the conditions under
   12         which a challenged rule may not be declared invalid;
   13         specifying the requirements of an economic analysis on
   14         proposed rule or rule changes; prohibiting a rule from
   15         taking effect until it is submitted to the Legislature
   16         for review under certain circumstances; providing a
   17         time certain for a rule to take effect if the
   18         Legislature take no action; providing that the act is
   19         not applicable to certain specified rules; providing
   20         an effective date.
   21  
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Paragraph (b) of subsection (3) of section
   25  120.54, Florida Statutes, is amended to read:
   26         120.54 Rulemaking.—
   27         (3) ADOPTION PROCEDURES.—
   28         (b) Special matters to be considered in rule adoption.—
   29         1. Statement of estimated regulatory costs.—Prior to the
   30  adoption, amendment, or repeal of any rule other than an
   31  emergency rule, an agency is encouraged to prepare a statement
   32  of estimated regulatory costs of the proposed rule, as provided
   33  by s. 120.541. However, an agency must shall prepare a statement
   34  of estimated regulatory costs of the proposed rule, as provided
   35  by s. 120.541, if:
   36         a. The proposed rule will have an adverse impact on small
   37  business; or
   38         b.The proposed rule may have an adverse economic impact in
   39  excess of $200,000 on the private-sector in Florida.
   40         2. Small businesses, small counties, and small cities.—
   41         a. Each agency, before the adoption, amendment, or repeal
   42  of a rule, shall consider the impact of the rule on small
   43  businesses as defined by s. 288.703 and the impact of the rule
   44  on small counties or small cities as defined by s. 120.52.
   45  Whenever practicable, an agency shall tier its rules to reduce
   46  disproportionate impacts on small businesses, small counties, or
   47  small cities to avoid regulating small businesses, small
   48  counties, or small cities that do not contribute significantly
   49  to the problem the rule is designed to address. An agency may
   50  define “small business” to include businesses employing more
   51  than 200 persons, may define “small county” to include those
   52  with populations of more than 75,000, and may define “small
   53  city” to include those with populations of more than 10,000, if
   54  it finds that such a definition is necessary to adapt a rule to
   55  the needs and problems of small businesses, small counties, or
   56  small cities. The agency shall consider each of the following
   57  methods for reducing the impact of the proposed rule on small
   58  businesses, small counties, and small cities, or any combination
   59  of these entities:
   60         (I) Establishing less stringent compliance or reporting
   61  requirements in the rule.
   62         (II) Establishing less stringent schedules or deadlines in
   63  the rule for compliance or reporting requirements.
   64         (III) Consolidating or simplifying the rule’s compliance or
   65  reporting requirements.
   66         (IV) Establishing performance standards or best management
   67  practices to replace design or operational standards in the
   68  rule.
   69         (V) Exempting small businesses, small counties, or small
   70  cities from any or all requirements of the rule.
   71         b.(I) If the agency determines that the proposed action
   72  will affect small businesses as defined by the agency as
   73  provided in sub-subparagraph a., the agency shall send written
   74  notice of the rule to the Small Business Regulatory Advisory
   75  Council and the Office of Tourism, Trade, and Economic
   76  Development not less than 28 days prior to the intended action.
   77         (II) Each agency shall adopt those regulatory alternatives
   78  offered by the Small Business Regulatory Advisory Council and
   79  provided to the agency no later than 21 days after the council’s
   80  receipt of the written notice of the rule which it finds are
   81  feasible and consistent with the stated objectives of the
   82  proposed rule and which would reduce the impact on small
   83  businesses. When regulatory alternatives are offered by the
   84  Small Business Regulatory Advisory Council, the 90-day period
   85  for filing the rule in subparagraph (e)2. is extended for a
   86  period of 21 days.
   87         (III) If an agency does not adopt all alternatives offered
   88  pursuant to this sub-subparagraph, it shall, prior to rule
   89  adoption or amendment and pursuant to subparagraph (d)1., file a
   90  detailed written statement with the committee explaining the
   91  reasons for failure to adopt such alternatives. Within 3 working
   92  days of the filing of such notice, the agency shall send a copy
   93  of such notice to the Small Business Regulatory Advisory
   94  Council. The Small Business Regulatory Advisory Council may make
   95  a request of the President of the Senate and the Speaker of the
   96  House of Representatives that the presiding officers direct the
   97  Office of Program Policy Analysis and Government Accountability
   98  to determine whether the rejected alternatives reduce the impact
   99  on small business while meeting the stated objectives of the
  100  proposed rule. Within 60 days after the date of the directive
  101  from the presiding officers, the Office of Program Policy
  102  Analysis and Government Accountability shall report to the
  103  Administrative Procedures Committee its findings as to whether
  104  an alternative reduces the impact on small business while
  105  meeting the stated objectives of the proposed rule. The Office
  106  of Program Policy Analysis and Government Accountability shall
  107  consider the proposed rule, the economic impact statement, the
  108  written statement of the agency, the proposed alternatives, and
  109  any comment submitted during the comment period on the proposed
  110  rule. The Office of Program Policy Analysis and Government
  111  Accountability shall submit a report of its findings and
  112  recommendations to the Governor, the President of the Senate,
  113  and the Speaker of the House of Representatives. The
  114  Administrative Procedures Committee shall report such findings
  115  to the agency, and the agency shall respond in writing to the
  116  Administrative Procedures Committee if the Office of Program
  117  Policy Analysis and Government Accountability found that the
  118  alternative reduced the impact on small business while meeting
  119  the stated objectives of the proposed rule. If the agency will
  120  not adopt the alternative, it must also provide a detailed
  121  written statement to the committee as to why it will not adopt
  122  the alternative.
  123         Section 2. Section 120.541, Florida Statutes, is amended to
  124  read:
  125         120.541 Statement of estimated regulatory costs.—
  126         (1)(a) A substantially affected person, Within 21 days
  127  after publication of the notice required provided under s.
  128  120.54(3)(a), a substantially affected person may submit to an
  129  agency a good faith written proposal for a lower cost regulatory
  130  alternative to a proposed rule which substantially accomplishes
  131  the objectives of the law being implemented. The proposal may
  132  include the alternative of not adopting any rule if, so long as
  133  the proposal explains how the lower costs and objectives of the
  134  law will be achieved by not adopting any rule. If such a
  135  proposal is submitted, the time period for filing the rule under
  136  s. 120.54(3)(e)2. 90-day period for filing the rule is extended
  137  90 21 days.
  138         (b)  Upon the submission of the lower cost regulatory
  139  alternative, the agency shall prepare a statement of estimated
  140  regulatory costs as provided in subsection (2), or shall revise
  141  its prior statement of estimated regulatory costs, and either
  142  adopt the alternative or provide give a statement of the reasons
  143  for rejecting the alternative in favor of the proposed rule. The
  144  failure of the agency to prepare or revise the statement of
  145  estimated regulatory costs as provided in this paragraph is a
  146  material failure to follow the applicable rulemaking procedures
  147  or requirements set forth in this chapter. An agency required to
  148  prepare or revise a statement of estimated regulatory costs as
  149  provided in this paragraph shall make it available to the person
  150  who submits the lower cost regulatory alternative and to the
  151  public prior to filing the rule for adoption.
  152         (b)If a proposed rule will have an adverse impact on small
  153  businesses or if the proposed rule may have an adverse economic
  154  impact in excess of $200,000 on the private sector, the agency
  155  shall prepare a statement of estimated regulatory costs as
  156  required by s. 120.54(3)(b).
  157         (c) The agency shall revise a statement of estimated
  158  regulatory costs if any change to the rule made under s.
  159  120.54(3)(d) increases the regulatory costs of the rule.
  160         (d) At least 45 days before filing the rule for adoption,
  161  an agency that is required to revise a statement of estimated
  162  regulatory costs shall provide the statement to the person who
  163  submitted the lower cost regulatory alternative and to the
  164  committee, and provide notice on the agency’s website that it is
  165  available to the public.
  166         (e) The failure of the agency to prepare or revise the
  167  statement of estimated regulatory costs as provided in this
  168  subsection is a material failure to follow the applicable
  169  rulemaking procedures or requirements set forth in this chapter.
  170         (f)(c)A rule that is challenged pursuant to s.
  171  120.52(8)(a) because of the failure to prepare or revise the No
  172  rule shall be declared invalid because it imposes regulatory
  173  costs on the regulated person, county, or city which could be
  174  reduced by the adoption of less costly alternatives that
  175  substantially accomplish the statutory objectives, and no rule
  176  shall be declared invalid based upon a challenge to the agency’s
  177  statement of estimated regulatory costs may not be declared
  178  invalid, unless:
  179         1. The issue is raised in an administrative proceeding
  180  within 1 year after the effective date of the rule; and
  181         2. The agency’s failure to prepare or revise the statement
  182  of estimated regulatory costs materially affects the substantial
  183  interests of the person challenging the agency. The substantial
  184  interests of the person challenging the agency’s rejection of,
  185  or failure to consider, the lower cost regulatory alternative
  186  are materially affected by the rejection; and
  187         3.a. The agency has failed to prepare or revise the
  188  statement of estimated regulatory costs as required by paragraph
  189  (b); or
  190         b. The challenge is to the agency’s rejection under
  191  paragraph (b) of a lower cost regulatory alternative submitted
  192  under paragraph (a).
  193         (g) A rule that is challenged by a substantially affected
  194  person pursuant to s. 120.52(8)(f) because the rule imposes
  195  regulatory costs on the regulated person, county, or
  196  municipality which could be reduced by the adoption of less
  197  costly alternatives that substantially accomplish the statutory
  198  objectives may not be declared invalid unless:
  199         1.The issue is raised in an administrative proceeding
  200  within 1 year after the effective date of the rule;
  201         2.The challenge is to the agency’s rejection of a lower
  202  cost regulatory alternative offered under paragraph (a) or s.
  203  120.54(3)(b)2.b.; and
  204         3.The substantial interests of the person challenging the
  205  agency are materially affected by the rejection.
  206         (2) A statement of estimated regulatory costs shall
  207  include:
  208         (a) An economic analysis showing whether the rule directly
  209  or indirectly:
  210         1.Is likely to have an adverse impact in excess of $1
  211  million in the aggregate on economic growth, private-sector job
  212  creation or employment, business competitiveness, private-sector
  213  investment, productivity, innovation, or the ability of persons
  214  doing business in Florida to compete with persons doing business
  215  in other states or domestic markets;
  216         2.Expands the growth of state government, where not
  217  expressly recognized by the enabling statute; or
  218         3.Increases regulatory costs, including any costs incurred
  219  to comply with proposed regulations, to small business by $1
  220  million or more in the aggregate.
  221         (b) A good faith estimate of the number of individuals and
  222  entities likely to be required to comply with the rule, together
  223  with a general description of the types of individuals likely to
  224  be affected by the rule.
  225         (c)(b) A good faith estimate of the cost to the agency, and
  226  to any other state and local government entities, of
  227  implementing and enforcing the proposed rule, and any
  228  anticipated effect on state or local revenues.
  229         (d)(c) A good faith estimate of the transactional costs
  230  likely to be incurred by individuals and entities, including
  231  local government entities, required to comply with the
  232  requirements of the rule. As used in this paragraph,
  233  “transactional costs” are direct costs that are readily
  234  ascertainable based upon standard business practices, and
  235  include filing fees, the cost of obtaining a license, the cost
  236  of equipment required to be installed or used or procedures
  237  required to be employed in complying with the rule, additional
  238  operating costs incurred, and the cost of monitoring and
  239  reporting.
  240         (e)(d) An analysis of the impact on small businesses as
  241  defined by s. 288.703, and an analysis of the impact on small
  242  counties and small cities as defined by s. 120.52.
  243         (f)(e) Any additional information that the agency
  244  determines may be useful.
  245         (g)(f) In the statement or revised statement, whichever
  246  applies, a description of any good faith written proposal
  247  submitted under paragraph (1)(a) and either a statement adopting
  248  the alternative or a statement of the reasons for rejecting the
  249  alternative in favor of the proposed rule.
  250         (3) If the adverse impact or regulatory costs of the rule
  251  exceed any of the criteria established in paragraph (2)(a), the
  252  rule may not take effect until it is submitted to the
  253  Legislature for review at the next regularly scheduled session.
  254  The Legislature may reject, modify, or take no action relative
  255  to the rule. If the Legislature takes no action, the rule shall
  256  take effect upon sine die.
  257         (4) Paragraph (2)(a) does not apply to the adoption of
  258  emergency rules pursuant to s. 120.54(4) or the adoption of
  259  federal standards pursuant to s. 120.54(6).
  260         Section 3. This act shall take effect upon becoming a law.

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