HB82 By Representative Grimsley RFD Boards, Agencies and Commissions Rd 1 02-FEB-16

SYNOPSIS: Under existing law, the members of a board or commission that regulates a profession and is controlled by active market participants in the profession do not have state action immunity from federal antitrust laws for actions of the board or commission except when the action was taken pursuant to a clearly articulated state policy to displace competition and the board or commission was subject to active state supervision.

Also under existing law, administrative rules of a board or commission that regulates a profession are subject to review by the Joint Committee on Administrative Regulation Review prior to becoming effective. The committee may approve, disapprove, disapprove with a suggested amendment, or allow the agency to withdraw the rule for revision. Under existing law, a rule on which the committee takes no action is deemed approved.

This bill requires rules of a board or commission that regulates a profession to be reviewed by the Legislative Reference Service to determine whether the rule may significantly lessen competition and, if so, whether the rule was made pursuant to a clearly articulated state policy to displace competition.

If the Legislative Reference Service makes those determinations, the committee would be required to meet to review the rule and determine whether the rule should be approved, disapproved, disapproved with a suggested amendment, or allowed to be withdrawn. The bill would also authorize those boards and commissions to submit previously adopted rules for a similar review.

The bill would allow the Legislative Reference Service to impose a fee for providing the review.

A BILL TO BE ENTITLED AN ACT

To add Section 41-22-22.1 to the Code of Alabama 1975; to provide for further review of rules of certain state boards and commissions by the Legislative Reference Service and by the Joint Committee on Administrative Regulation Review under certain conditions and to provide for certain fees to cover the costs of the review.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Section 41-22-22.1 is added to the Code of Alabama 1975, to read as follows:

§41-22-22.1.

(a) The Legislative Reference Service shall review each rule certified to it by a state board or commission that regulates a profession, a controlling number of the members of which are active market participants in the profession, to determine whether the rule may significantly lessen competition and, if so, whether the rule was made pursuant to a clearly articulated state policy to displace competition.

(b) If the Legislative Reference Service determines that a rule subject to subsection (a) may significantly lessen competition, it shall determine whether the rule was made pursuant to a clearly articulated state policy to displace competition, and shall certify those determinations to the committee. The board or commission shall submit a position paper, a transcript of any public hearings regarding the rule, and any other material collected during the consideration of the rule by the board or commission to accompany the rule as it is submitted to the committee. Upon receipt of a certification under this subsection, the chair of the committee shall call a meeting of the committee to review the substance of the rule, determine whether the rule may significantly lessen competition, and if so, whether it was made pursuant to a clearly articulated state policy to displace competition. The committee shall approve, disapprove, disapprove with a suggested amendment, or allow the agency to withdraw the rule for revision. The committee may conduct public hearings and solicit public comment during its consideration of the rule. If the committee approves the rule, it shall issue a written statement explaining its rationale for approving the rule. If the committee fails to act on a rule certified to it pursuant to this subsection, the rule shall not become effective and shall be placed on the agenda of the committee at each subsequent meeting until the committee disposes of the rule.

(c) A state board or commission that regulates a profession, a controlling number of the members of which are active market participants in the profession, may submit a previously adopted rule, along with a position paper, a transcript of any public hearings regarding the rule, and any other material collected during the consideration of the rule, to the Legislative Reference Service for a determination of whether the previously adopted rule may significantly lessen competition and whether the rule was made pursuant to a clearly articulated state policy to displace competition. If the Legislative Reference Service makes those determinations, it shall notify the board or commission and certify the determinations to the committee. Upon receipt of a certification under this subsection, the chair of the committee shall call a meeting of the committee to review the substance of the rule and either approve the rule or notify the board or commission that it agrees with the determination of the Legislative Reference Service. If the committee approves the rule, it shall issue a written statement explaining its rationale for approving the rule. The committee shall take action on a rule submitted under this subsection within 45 days of receipt of certification from the Legislative Reference Service.

(d) In addition to the fee levied under Section 41-22-7(i), the Legislative Reference Service shall charge a board or commission that is subject to subsection (a) or which submits a previously adopted rule to the Legislative Reference Service under subsection (c), a fee in the amount necessary to recover the costs of the Legislative Reference Service in complying with this section.

Section 2. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Administrative Regulation Review, Joint Committee on

Legislative Reference Service

Administrative Rules

Code Added