SLS 10RS-848 ENGROSSED
Page 1 of 7
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
Regular Session, 2010
SENATE BILL NO. 248
BY SENATOR MCPHERSON
ADMINISTRATIVE PROCEDURE. Provides for the applicability of, and exemptions
from, the Administrative Procedure Act. (8/15/10)
AN ACT1
To amend and reenact R.S. 49:967, relative to the Administrative Procedure Act; to provide2
for the applicability of, and exemptions from, the Act; and to provide for related3
matters.4
Be it enacted by the Legislature of Louisiana:5
Section 1. R.S. 49:967 is hereby amended and reenacted to read as follows: 6
ยง967. Exemptions from provisions of Chapter7
A.(1) The legislature recognizes that it is essential to the operation of a8
democratic government that prior to the adoption, amendment, or repeal of any9
rule or the adoption, increasing, or decreasing of any fee, that the provisions of10
this Chapter be followed.11
(2) The legislature further recognizes that it is essential to the operation12
of a democratic government that the people be made aware of all exceptions,13
exemptions, and limitations to this Chapter. In order to foster the people's14
awareness, the legislature declares that all exceptions, exemptions, and15
limitations to this Chapter pertaining to the adoption, amendment, or repeal of16
any rule or the adoption, increasing, or decreasing of any fee shall be provided17 SB NO. 248
SLS 10RS-848 ENGROSSED
Page 2 of 7
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
for in this Chapter or the Constitution of Louisiana. Any exception, exemption,1
or limitation to the laws pertaining to the adoption, amendment, or repeal of2
any rule or the adoption, increasing, or decreasing of any fee not provided for3
in this Chapter or in the Constitution of Louisiana shall have no effect.4
B. The legislature further recognizes that there exist exceptions,5
exemptions, and limitations to the laws pertaining to the adoption, amendment,6
or repeal of any rule or the adoption, increasing, or decreasing of any fee7
throughout the revised statutes and codes of this state. Therefore, only the8
following exceptions, exemptions, and limitations are hereby continued in effect9
by incorporation into this Chapter by citation:10
(1) Chapter 13 of Title 49 of the Louisiana Revised Statutes of 1950 shall not11
be applicable to the Board of Tax Appeals, the Department of Revenue, with the12
exception of the Louisiana Tax Commission that shall continue to be governed by13
this Chapter in its entirety, unless otherwise specifically provided by law, and the14
administrator of the Louisiana Employment Security Law; however, the provisions15
of R.S. 49:951(2), (4), (5), (6), and (7), 952, 953, 954, 954.1, 968, 969, and 970 shall16
be applicable to such board, department, and administrator.17
B.(1)(2)(a) The provisions of R.S. 49:968(F) and 970 shall not be applicable18
to any rule promulgated by the State Civil Service Commission or the Public Service19
Commission.20
(2)(b) The provisions of this Chapter shall not be applicable to entities21
created as provided in Part V of Chapter 6 of Title 34 of the Louisiana Revised22
Statutes of 1950.23
C.(3) The provisions of R.S. 49:963, 964, and 965 shall not be applicable to24
any rule, regulation, or order of any agency subject to a right of review under the25
provisions of R.S. 30:12.26
D.(1)(4)(a) The provisions of R.S. 49:968 shall not apply to any rule or27
regulation promulgated by the Department of Wildlife and Fisheries or the Wildlife28
and Fisheries Commission relative to hunting seasons, trapping seasons, alligator29
seasons, shrimp seasons, oyster seasons, finfish seasons and size limits, and all rules30 SB NO. 248
SLS 10RS-848 ENGROSSED
Page 3 of 7
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
and regulations pursuant thereto. The Department of Wildlife and Fisheries and the1
Wildlife and Fisheries Commission may employ the provisions of R.S. 49:953(B)2
in promulgating rules and regulations relative to hunting seasons, trapping seasons,3
alligator seasons, shrimp seasons, oyster seasons, and finfish seasons and size limits,4
and all rules and regulations pursuant thereto.5
(2)(b)Those rules adopted annually pursuant to this Subsection by the6
Department of Wildlife and Fisheries which open and close the offshore and fall7
shrimp seasons, the oyster season, the marine finfish seasons, the webless migratory8
game bird hunting season, and the trapping season shall be effective for a period of9
time equal to the length of the respective season.10
(5) R.S. 6:121.1(A).11
(6) R.S. 9:3561(D)(2).12
(7) R.S. 18:1511.2(B).13
(8) R.S. 22:1260.10(B)14
(9) R.S. 29:788(C).15
(10) R.S. 30:4(I)(5), 918(B), and 925(A)(2) and (D).16
(11) R.S. 37:3012(B)(1).17
(12) R.S. 40:5.3(B), 406(B)(1), and 600.6(A)(4)(b).18
(13) R.S. 47:820.5.2(F)(5) and 820.5.4(F)(5).19
(14) R.S. 49:258(1).20
(15) R.S. 51:1285(A), 1929.1(A), 2389.1(A), and 3090.21
(16) R.S. 56:319(D), and 2014.22
The original instrument was prepared by Jerry J. Guillot. The following
digest, which does not constitute a part of the legislative instrument, was
prepared by Alden A. Clement, Jr.
DIGEST
McPherson (SB 248)
Present law, relative to the Administrative Procedure Act, provides the following exceptions:
(1)The Board of Tax Appeals, the Department of Revenue, with the exception of the La.
Tax Commission that shall continue to be governed by the Act, unless otherwise
specifically provided by law, and the administrator of the La. Employment Security
Law; however, R.S. 49:951(2), (4), (5), (6), and (7), 952, 953, 954, 954.1, 968, 969, SB NO. 248
SLS 10RS-848 ENGROSSED
Page 4 of 7
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
and 970 shall be applicable to such board, department, and administrator.
(2)(a) R.S. 49:968(F) and 970 shall not be applicable to any rule promulgated by the
State Civil Service Commission or the Public Service Commission.
(b) Entities created as provided in Part V of Chapter 6 of Title 34 of the LRS
(pilotage fee commission).
(3) R.S. 49:963, 964, and 965 shall not be applicable to any rule, regulation, or order of
any agency subject to a right of review under R.S. 30:12 (office of conservation).
(4)R.S. 49:968 shall not apply to any rule or regulation promulgated by the Department
of Wildlife and Fisheries or the Wildlife and Fisheries Commission relative to
hunting seasons, trapping seasons, alligator seasons, shrimp seasons, oyster seasons,
finfish seasons and size limits, and all rules and regulations pursuant thereto. The
department and the commission may employ the provisions of R.S. 49:953(B) in
promulgating rules and regulations relative to hunting seasons, trapping seasons,
alligator seasons, shrimp seasons, oyster seasons, and finfish seasons and size limits,
and all rules and regulations pursuant thereto. Such rules adopted annually by the
department which open and close the offshore and fall shrimp seasons, the oyster
seasons, the marine finfish seasons, the webless migratory game bird hunting season,
and the trapping season shall be effective for a period of time equal to the length of
the respective season.
Proposed law retains present law and requires that all exceptions, exemptions, and
limitations to Administrative Procedure Act pertaining to the adoption, amendment, or repeal
of any rule or the adoption, increasing, or decreasing of any fee be provided for in the
provisions of the Act or the constitution. Proposed law further provides that any exception,
exemption, and limitation to the Administrative Procedure Act pertaining to the adoption,
amendment, or repeal of any rule or the adoption, increasing, or decreasing of any fee not
provided for within the provisions of the Administrative Procedure Act or in the constitution
shall have no effect.
Present law provides that if the commissioner of financial institutions determines that a
public hearing is necessary to protect the public interest in enforcing the La. Banking Law
and the regulations adopted pursuant to the law, the confidentiality provisions of the La.
Banking Law and the APA do not apply. (R.S. 6:121.1(A))
Present law, relative to the La. Consumer Credit Law, provides that for the purpose of
determining the single place of business of a licensee, a person acquires or controls the
licensee when the person directly or acting through one or more other persons owns a
majority interest in the licensee, or exercises a controlling influence over the management
or the policies of the licensee as determined by the commissioner of financial institutions
after notice and an opportunity for an informal meeting, not subject to the APA, regardless
of whether the acquisition or control occurs incrementally over a period of time or as one
transaction. (R.S. 9:3561(D)(2))
Present law provides that the Board of Ethics as the Supervisory Committee on Campaign
Finance Disclosure, may render an advisory opinion concerning the application of a general
provision of the Campaign Finance Disclosure Act, or a general provision prescribed as a
rule or regulation. Authorizes the board to render an opinion in response to a request by any
public official, any candidate for public office, any political committee, or the board on its
own initiative. Provides that the opinion will not constitute a rule under the APA and the
board shall not be subject to APA in carrying out this provision. (R.S. 18:1511.2(B))
Present law, relative to the La. Discount Medical Plan Act, authorizes the commissioner of
insurance to seek injunctive relief in certain circumstances which action is not conditioned
on having conducted any proceeding pursuant to the APA. (R.S. 22:1260.10(B)) SB NO. 248
SLS 10RS-848 ENGROSSED
Page 5 of 7
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
Present law, relative to the Uniform Emergency Volunteer Health Practitioners Act,
authorizes the Department of Health and Hospitals, or a state licensing authority, to modify
or restrict the health services that volunteer health practitioners may provide pursuant to the
Act. Further such an order may take effect immediately, without prior notice or comment,
and is not a rule within the meaning of the APA. (R.S. 29:788(C))
Present law provides for the jurisdiction, powers, and duties of the commissioner of
conservation. Provides that the commissioner shall make, after notice and public hearing
as provided in present law, any reasonable rules, regulations, and orders necessary to control
the offsite disposal at commercial facilities of drilling mud, saltwater and other related
nonhazardous wastes generated by the drilling and production of oil and gas wells. Provides
that the public hearing will not be subject to the procedural requirements of the APA relative
to rule making or adjudication, provided that the office of conservation will allow any
interested person to present testimony, facts or evidence related to the application, and shall
make a record of the hearing. (R.S. 30:4(I)(5))
Present law provides that the commissioner of conservation may levy a civil penalty for
violation of a permit condition or other applicable provision of law only after the person
charged with a violation has been given an opportunity for a public hearing. Provides that
the hearing will be subject to the APA, except where the provisions of the APA conflict with
present law and the regulations issued by the commissioner pursuant to present law. (R.S.
30:918(B))
Present law, relative to the La. Surface Mining and Reclamation Act, authorizes the
commissioner of conservation to levy a civil penalty for violations of a permit condition or
any other provision of the Act after a hearing subject to the APA except where the provisions
of the APA conflict with the Act and the regulations issued by the commissioner pursuant
to the Act. (R.S. 30:925(A)(2) Further provides that following the issuance of an order to
show cause as to why a permit should not be suspended or revoked, the commissioner will
hold a public hearing after giving written notice of the time, place, and date thereof. Requires
that the hearing be subject to APA, except where the provisions of the APA conflict with the
provisions of the Act and the regulations issued by the commissioner pursuant to the Act.
(R.S. 30:925(D))
Present law, relative to the La. Occupational Therapy Practice Act of 1979, provides that the
La. State Board of Medical Examiners will establish criteria on continuing education
requirements for the retention or renewal of licenses in accordance with the APA; except that
the report shall be submitted to the Senate and House health and welfare committees for
review purposes notwithstanding the provisions of R.S. 49:968(B). (R.S. 37:2012(B)(1))
Present law, relative to molluscan shellfish sanitation, provides that notwithstanding the
provisions of state Sanitary Code, the provisions of APA, except R.S. 49:951, 952, 954.1,
963, and 965, will not apply to procedures and proceedings to close from molluscan shellfish
harvesting any molluscan shellfish growing area affected by a public health danger, nor to
procedures and proceedings for subsequent opening of any such molluscan shellfish growing
areas when the Department of Health and Hospitals and the Department of Wildlife and
Fisheries jointly determine that the protection of the public health mandates or warrants such
closure or opening, nor to procedures and proceedings for such determination. (R.S.
40:5.3(B))
Present law provides the APA does not apply to a local housing authority unless the
legislation imposing such requirements is expressly and specifically applicable to local
housing authorities or the local housing authority expressly elects to be governed by such
legislation or regulations. (R.S. 40:406(B)(1))
Present law, relative to the La. Housing Finance Act, provides the APA will not apply to the
La. Housing Finance Agency with respect to:
(i) The sale of bonds, notes, or other obligations of the agency, or programs of SB NO. 248
SLS 10RS-848 ENGROSSED
Page 6 of 7
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
the agency funded with the proceeds thereof, when such sale occurs after
reasonable public notice and public hearing.
(ii) The administration and allocation of low-income housing tax credits under
Section 42 of the federal IRC of 1986, as amended, except that upon
adoption of rules and regulations relative to such administration and
allocation, the agency shall submit these rules and regulations to the Joint
Legislative Committee on the Budget for review.
(iii) The Home Program, except that upon adoption of any rules and regulations
relative to such program, the agency will submit such rules and regulations
to the Joint Legislative Committee on the Budget for review.
(iv) The Risk Sharing Program, except that upon adoption of any rules and
regulations relative to such program, the agency will submit such rules and
regulations to the Joint Legislative Committee on the Budget for review.
(v) The Mark to Market Program, except that upon adoption of any rules and
regulations relative to such program, the agency will submit such rules and
regulations to the Joint Legislative Committee on the Budget for review.
(vi) The Louisiana Housing Trust Fund, except that upon adoption of rules and
regulations relative to the fund, the agency will submit such rules and
regulations to the Joint Legislative Committee on the Budget for review.
(vii) The Low Income Housing Energy Assistance Program (LIHEAP), except
that upon adoption of rules and regulations relative to such program, the
agency will submit these rules and regulations to the Joint Legislative
Committee on the Budget for review.
(viii) The Weatherization Program (WAP), except that upon adoption of any rules
and regulations relative to such program, the agency will submit such rules
and regulations to the Joint Legislative Committee on the Budget for review.
(ix) The Section 8 Contract Administration Program, except that upon adoption
of any rules and regulations relative to such program, the agency will submit
such rules and regulations to the Joint Legislative Committee on the Budget
for review.
(x) The Louisiana Habitat for Humanity Loan Purchase Program Act, except that
upon adoption of rules and regulations relative to the program as further
provided in Chapter 3-D of Title 40 of the Louisiana Revised Statutes of
1950, the agency will submit such rules and regulations to the Joint
Legislative Committee on the Budget for review.
(R.S. 40:600.6(A)(4)(b))
Present law, relative to the Crescent City Connection, provides that the APA will not apply
in the collection of tolls, fees, hearings, and judicial review. (R.S. 47:820.5.2(F)(5))
Present law, relative to the LA 1 Project, provides that the APA will not apply in the
collection of tolls, fees, hearings, and judicial review. (R.S. 47:820.5.4(F)(5))
Present law, relative to the appointment of private legal counsel to represent the state or a
state agency by the attorney general with the concurrence of the commissioner of
administration, provides a procedure for the establishment of minimum qualifications and
provides the exercise of the authority is not subject to the APA. (R.S. 49:258(1))
Present law, relative to the La. Tourism Promotion District Act, provides that the district will SB NO. 248
SLS 10RS-848 ENGROSSED
Page 7 of 7
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
exercise its rights and powers subject to the APA, to the extent not otherwise in conflict the
Act. (R.S. 51:1285(A))
Present law, relative to the La. Capital Companies Tax Credit Program, provides that
advisory opinions and interpretations of the commissioner of financial institutionswiall not
be considered rules requiring compliance with the rulemaking process under the APA. (R.S.
51:1929.1(A))
Present law, relative to the La. BIDCO Act, provides that advisory opinions and
interpretations of the office of financial institutions will not be considered rules requiring
compliance with the rulemaking process under APA. (R.S. 51:2389.1(A))
Present law, relative to the La. Community Development Financial Institution Act, provides
that advisory opinions and interpretations of the commissioner of financial institutions will
not be considered rules requiring compliance with the rulemaking process under the APA.
(R.S. 51:3090)
Present law, relative to exotic fish, provides that neither the permits issued under present law
nor the conditions and requirements thereof, are required to be adopted pursuant to the APA.
(R.S. 56:319(D))
Present law provides that the issuance of an emergency cease and desist order by the
secretary of the Department of Wildlife and Fisheries to stop the unlicensed dredging of fill
sand or fill material will not be subject to the limitations and formalities relating to notice
and hearings imposed with regard to adjudications under the APA. (R.S. 56:2014)
Proposed law provides that these exceptions, exemptions, and limitations to the laws
pertaining to the adoption, amendment, or repeal of any rule or the adoption, increasing, or
decreasing of any fee throughout the revised statutes and codes of the state contained in
present law are continued in effect by proposed law.
Effective August 15, 2010.
(Amends R.S. 49:967)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Senate and
Governmental Affairs to the original bill.
1. Adds additional statutory cites to the list of exceptions, exemptions, and
limitations to the laws pertaining to the adoption, amendment, or repeal of
any rule or the adoption, increasing, or decreasing of any fee throughout the
revised statutes and codes of the state, which are continued in effect by
proposed law.