GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

S	1 

SENATE BILL 12

Short Title:  APA Rule Making Applies to All Depts.      	(Public)
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Sponsors: Senator Johnson.
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Referred to:  Judiciary I.
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February 5, 1991

A BILL TO BE ENTITLED
AN ACT MAKING THE ADMINISTRATIVE RULE-MAKING PROCESS MORE UNIFORM BY APPLYING THE ADMINISTRATIVE PROCEDURE ACT'S RULE-MAKING PROVISIONS TO ALL PRINCIPAL STATE DEPARTMENTS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 150B-1(d) reads as rewritten:
"(d)	(1) 	The following are specifically exempted from the provisions of this Chapter:
a.	The Administrative Rules Review Commission;
b.	The Employment Security Commission;
c.	The Industrial Commission;
d.	The Occupational Safety and Health Review Board in all actions that do not involve agricultural employers; and
e.	The Utilities Commission.
(2) 	The North Carolina National Guard is exempt from the provisions of this Chapter in exercising its court-martial jurisdiction.
(3)	The Department of Human Resources is exempt from this Chapter in exercising its authority over the Camp Butner reservation granted in Article 6 of Chapter 122C of the General Statutes.  The Department of Human Resources and the Department of Environmental, Health, and Natural Resources are exempt from Article 3 of this Chapter in complying with the procedural safeguards mandated by the Section 680 of Part H of P.L. 99-457 as amended (Education of the Handicapped Act Amendments of 1986).
(4)	Article 3 of this Chapter does not apply to the Department of Correction.
(5)	Article 3 of this Chapter does  not apply to the Department of Revenue.
(6)	Except as provided in Chapter 136 of the General Statutes, Article 3 of this Chapter does not apply to the Department of Transportation.
(7)	Article 4 of this Chapter, governing judicial review of final administrative decisions, shall apply to The University of North Carolina and its constituent or affiliated boards, agencies, and institutions, but The University of North Carolina and its constituent or affiliated boards, agencies, and institutions are specifically exempted from the remaining provisions of this Chapter.
(8)	Article 4 of this Chapter shall not apply to the State Banking Commission, the Commissioner of Banks, the Savings Institutions Division of the Department of Economic and Community Development, and the Credit Union Division of the Department of Economic and Community Development.
(9)	Article 3 of this Chapter shall not apply to agencies governed by the provisions of Article 3A of this Chapter, as set out in G.S. 150B-38(a).
(10)	Articles 3 and 3A of this Chapter shall not apply to the Governor's Waste Management Board in administering the provisions of G.S. 104E-6.2 and G.S. 130A-293.
(11)	Article 2 of this Chapter shall not apply to the North Carolina Low-Level Radioactive Waste Management Authority in administering the provisions of G.S. 104G-10 and G.S. 104G-11.  Articles 3 and 3A of this Chapter shall not apply to the North Carolina Low-Level Radioactive Waste Management Authority in administering the provisions of G.S. 104G-9, 104G-10, and 104G-11.
(12)	Article 2 of this Chapter shall not apply to the North Carolina Hazardous Waste Management Commission in administering the provisions of G.S. 130B-13 and G.S. 130B-14.  Articles 3 and 3A of this Chapter shall not apply to the North Carolina Hazardous Waste Management Commission in administering the provisions of G.S. 130B-11, 130B-13, and 130B-14.
(13)	Article 3 and G.S. 150B-51(a) of this Chapter shall not apply to hearings required pursuant to the Rehabilitation Act of 1973, (Public Law 93-122), as amended and federal regulations promulgated thereunder."
Sec. 2.  G.S. 150B-16 reads as rewritten:
"§ 150B-16.  Petition for adoption of rules.
(a)	Except as provided in subsection (b), any person may petition an agency to promulgate, amend, or repeal a rule, and may accompany his petition with such data, views, and arguments as he thinks pertinent.  Each agency shall prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition. Within 30 days after submission of a petition, the agency shall either deny the petition in writing, stating its reasons for the denial, or initiate rule-making proceedings in accordance with G.S. 150B-12 and G.S. 150B-13; provided, however, commissions and boards shall act on a petition at their next regularly scheduled meeting, but in any case no later than 120 days after submission of a petition. Denial of the petition to initiate rule making under this section shall be considered a final agency decision for purposes of judicial review.
(b)	A person may not submit a petition to the Department of Correction if the petition addresses a matter that is subject to the Department's Administrative Remedy Procedure adopted under G.S. 148-118.1."
Sec. 3.  The Rules Review Commission must review the rules of the Departments of Correction, Transportation, and Revenue to determine if the rules meet the standards for review in G.S. 143B-30.2.  A rule that does not meet the standards is repealed effective January 1, 1994.  The agencies may adopt, recodify, amend, or repeal a rule in response to an objection by the Commission in the course of this review without publishing notice in the North Carolina Register or holding a rule-making hearing.
Sec. 4.  G.S. 20-2 reads as rewritten:
"§ 20-2.  Commissioner of Motor Vehicles; rules.
(a)	Commissioner and Assistants.– The Division of Motor Vehicles shall be administered by the Commissioner of Motor Vehicles, who shall be appointed by and serve at the pleasure of the Secretary of the Department of Transportation. The Commissioner shall be paid an annual salary to be fixed by the General Assembly in the Current Operations Appropriations Act and allowed his traveling expenses as allowed by law.
In any action, proceeding, or matter of any kind, to which the Commissioner of Motor Vehicles is a party or in which he may have an interest, all pleadings, legal notices, proof of claim, warrants for collection, certificates of tax liability, executions, and other legal documents, may be signed and verified on behalf of the Commissioner of Motor Vehicles by the Assistant Commissioner of Motor Vehicles or by any director or assistant director of any section of the Division of Motor Vehicles or by any other agent or employee of the Division so authorized by the Commissioner of Motor Vehicles.
(b)	Rules.  The Commissioner may adopt rules to implement this Chapter.  Chapter 150B of the General Statutes governs the adoption of rules by the Commissioner."
Sec. 5.  G.S. 136-10 reads as rewritten:
"§ 136-10.  Audit and rules.
The operations of the Department of Transportation shall be subject to the oversight of the State Auditor pursuant to Article 5A of Chapter 147 of the General Statutes.  Rules adopted by the Department of Transportation are subject to Chapter 150B of the General Statutes."
Sec. 6.  G.S. 148-11 reads as rewritten:
"§ 148-11.  Authority to adopt rules.
The Secretary shall adopt rules for the government of the State prison system. Chapter 150B of the General Statutes governs the adoption of rules by the Secretary.  The Secretary shall have the rules that pertain to enforcing discipline read to every prisoner when received in the State prison system and a printed copy of these rules made available to the prisoners."
Sec. 7.  G.S. 105-262 reads as rewritten:
"§ 105-262.  Rules.
The Secretary of Revenue may adopt rules needed to administer a tax collected by the Secretary or to fulfill another duty delegated to the Secretary.  Chapter 150B of the General Statutes governs the adoption of rules by the Secretary.
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Sec. 8.  This act becomes effective July 1, 1991, and applies to rules for which a notice of rule making is required to be published in the North Carolina Register on or after that date and to all rules that do not require publication of a notice of rule making and are adopted on or after that date.