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Regular Session, 2010
SENATE BILL NO. 248
BY SENATOR MCPHERSON
ADMINISTRATIVE PROCEDURE. Provides for the applicability of, and exemptions
from, the Administrative Procedure Act. (gov sig)
AN ACT1
To amend and reenact R.S. 49:951(7) and 967 and to enact R.S. 49:951(1.1), relative to the2
Administrative Procedure Act; to provide for the applicability of, and exemptions3
from, the Act; and to provide for related matters.4
Be it enacted by the Legislature of Louisiana:5
Section 1. R.S. 49:951(7) and 967 are hereby amended and reenacted and R.S.6
49:951(1.1) is hereby enacted to read as follows: 7
§951. Definitions8
As used in this Chapter:9
* * *10
(1.1) "Adopt," "adopted," or "adoption," when pertaining to a fee in11
this Chapter, shall include action proposed by an agency to adopt, apply, assess,12
charge, implement, levy, or otherwise collect a fee pursuant to authorization by13
law that the agency may adopt, apply, assess, charge, implement, levy or14
otherwise collect such fee. 15
* * *16
(7) "Rulemaking" means the process employed by an agency for the17 SB NO. 248
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formulation of a rule. Except where the context clearly provides otherwise, the1
procedures for adoption of rules and of emergency rules as provided in R.S. 49:9532
shall also apply to adoption, increase, or decrease of fees. The fact that a statement3
of policy or an interpretation of a statute is made in the decision of a case or in an4
agency decision upon or disposition of a particular matter as applied to a specific set5
of facts involved does not render the same a rule within this definition or constitute6
specific adoption thereof by the agency so as to be required to be issued and filed as7
provided in this Subsection.8
* * *9
§967. Exemptions from provisions of Chapter10
A.(1) The legislature recognizes that it is essential to the operation of a11
democratic government that prior to the adoption, amendment, or repeal of any12
rule or the adoption, increasing, or decreasing of any fee, that the provisions of13
this Chapter be followed.14
(2) The legislature further recognizes that it is essential to the operation15
of a democratic government that the people be made aware of all exceptions,16
exemptions, and limitations to this Chapter. In order to foster the people's17
awareness, the legislature declares that all exceptions, exemptions, and18
limitations to this Chapter pertaining to the adoption, amendment, or repeal of19
any rule or the adoption, increasing, or decreasing of any fee shall be provided20
for in this Chapter or the Constitution of Louisiana. Any exception, exemption,21
or limitation to the laws pertaining to the adoption, amendment, or repeal of22
any rule or the adoption, increasing, or decreasing of any fee not provided for23
in this Chapter or in the Constitution of Louisiana shall have no effect.24
B. The legislature further recognizes that there exist exceptions,25
exemptions, and limitations to the laws pertaining to the adoption, amendment,26
or repeal of any rule or the adoption, increasing, or decreasing of any fee27
throughout the revised statutes and codes of this state. Therefore, only the28
following exceptions, exemptions, and limitations are hereby continued in effect29
by incorporation into this Chapter by citation:30 SB NO. 248
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(1) Chapter 13 of Title 49 of the Louisiana Revised Statutes of 1950 shall not1
be applicable to the Board of Tax Appeals, the Department of Revenue, with the2
exception of the Louisiana Tax Commission that shall continue to be governed by3
this Chapter in its entirety, unless otherwise specifically provided by law, and the4
administrator of the Louisiana Employment Security Law; however, the provisions5
of R.S. 49:951(2), (4), (5), (6), and (7), 952, 953, 954, 954.1, 968, 969, and 970 shall6
be applicable to such board, department, and administrator.7
B.(1)(2)(a) The provisions of R.S. 49:968(F) and 970 shall not be applicable8
to any rule promulgated by the State Civil Service Commission or the Public Service9
Commission.10
(2)(b) The provisions of this Chapter shall not be applicable to entities11
created as provided in Part V of Chapter 6 of Title 34 of the Louisiana Revised12
Statutes of 1950.13
C.(3) The provisions of R.S. 49:963, 964, and 965 shall not be applicable to14
any rule, regulation, or order of any agency subject to a right of review under the15
provisions of R.S. 30:12.16
D.(1)(4)(a) The provisions of R.S. 49:968 shall not apply to any rule or17
regulation promulgated by the Department of Wildlife and Fisheries or the Wildlife18
and Fisheries Commission relative to hunting seasons, trapping seasons, alligator19
seasons, shrimp seasons, oyster seasons, finfish seasons and size limits, and all rules20
and regulations pursuant thereto. The Department of Wildlife and Fisheries and the21
Wildlife and Fisheries Commission may employ the provisions of R.S. 49:953(B)22
in promulgating rules and regulations relative to hunting seasons, trapping seasons,23
alligator seasons, shrimp seasons, oyster seasons, and finfish seasons and size limits,24
and all rules and regulations pursuant thereto.25
(2)(b)Those rules adopted annually pursuant to this Subsection by the26
Department of Wildlife and Fisheries which open and close the offshore and fall27
shrimp seasons, the oyster season, the marine finfish seasons, the webless migratory28
game bird hunting season, and the trapping season shall be effective for a period of29
time equal to the length of the respective season.30 SB NO. 248
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(5) R.S. 6:121.1(A).1
(6) R.S. 9:3561(D)(2).2
(7) R.S. 18:1511.2(B).3
(8) R.S. 22:1260.10(B)4
(9) R.S. 29:788(C).5
(10) R.S. 30:4(I)(5), 918(B), and 925(A)(2) and (D).6
(11) R.S. 37:3012(B)(1).7
(12) R.S. 40:5.3(B), 406(B)(1), and 600.6(A)(4)(b).8
(13) R.S. 47:820.5.2(F)(5) and 820.5.4(F)(5).9
(14) R.S. 49:258(1).10
(15) R.S. 51:1285(A), 1929.1(A), 2389.1(A), and 3090.11
(16) R.S. 56:319(D), and 2014.12
C. The legislature further recognizes that there exist provisions of law13
which authorize an agency to adopt, increase, or decrease a fee without14
specifically providing that such action shall be taken in accordance with this15
Chapter. Any action taken pursuant to such authorization shall be in16
accordance with this Chapter, unless it is specifically otherwise provided for in17
the Constitution of Louisiana or in law and the citation of such law appears in18
Subsection B.19
Section 2. The provisions of this Act shall be retroactive and shall apply to the20
adoption, increase, or decrease of any fee on and after March 8, 2010 contrary to the21
provisions of this Act. Any such fee adopted or increased which is collected shall be22
refunded to the person who paid the fee in the amount of such adoption or increase no later23
than September 1, 2010.24
Section 3. This Act shall become effective upon signature by the governor or, if not25
signed by the governor, upon expiration of the time for bills to become law without signature26
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If27
vetoed by the governor and subsequently approved by the legislature, this Act shall become28
effective on the day following such approval.29 SB NO. 248
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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 Jeanne C. Johnston.
DIGEST
McPherson (SB 248)
Present law provides for definitions for purposes of the Administrative Procedure Act
(APA).
Proposed law adds a definition to those already provided in the APA and provides that
"Adopt", "adopted", or "adoption", when pertaining to a fee, shall include action proposed
by an agency to adopt, apply, assess, charge, implement, levy, or otherwise collect a fee
pursuant to authorization by law that the agency may adopt, apply, assess, charge,
implement, levy or otherwise collect such fee.
Present law defines "Rulemaking" as the process employed by an agency for the formulation
of a rule. Further provides that except where the context clearly provides otherwise, the
procedures for adoption of rules and of emergency rules as provided in R.S. 49:953 shall
also apply to adoption of fees. Provides that the fact that a statement of policy or an
interpretation of a statute is made in the decision of a case or in an agency decision upon or
disposition of a particular matter as applied to a specific set of facts involved does not render
the same a rule within this definition or constitute specific adoption thereof by the agency
so as to be required to be issued and filed as provided in present law.
Proposed law retains present law and additionally provides that the APA applies to the
increase or decrease of fees, as well as the adoption of fees.
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,
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. SB NO. 248
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words in boldface type and underscored are additions.
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))
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 SB NO. 248
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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 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. SB NO. 248
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(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
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 institutions will 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. BATCH 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) SB NO. 248
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
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.
Proposed law recognizes that there are provisions of existing law which authorize an agency
to adopt, increase, or decrease a fee without specifically providing that such action be taken
in accordance with the APA. Proposed law provides that any action taken pursuant to such
prior authorization shall be in accordance with the APA, unless it is specifically otherwise
provided for in the state constitution or in law and the citation such of law appears in the
APA.
Provides that proposed law shall be retroactive and shall apply to the adoption, increase, or
decrease of any fee on and after March 8, 2010 that is contrary to the provisions of proposed
law. Provides that any such fee adopted or increased which is collected shall be refunded to
the person who paid the fee in the amount of such adoption or increase no later than
September 1, 2010.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Amends R.S. 49:951(7) and 967; adds R.S. 49:951(1.1))
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.
Senate Floor Amendments to engrossed bill.
1. Adds definition of "Adopt," "adopted," or "adoption," when pertaining to a
fee.
2. Amends definition of "Rulemaking" to include the increase of decrease of a
fee as well as adoption of a fee.
3. Provides that any action to exercise authorization to adopt, increase, or
decrease of a fee provided for in existing provisions of law must comply with
the APA unless specifically provided for in the state constitution or is cited
in the APA.
4. Makes proposed law retroactive and applicable to the adoption, increase, or
decrease of any fee on or after 3/8/10 that is contrary to proposed law.
Requires that any such fee collected shall be refunded to the person who paid
the fee not later than 9/1/10.
5. Makes effective upon signature of the governor.