GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

S	3 

SENATE BILL 155*
Judiciary I Committee Substitute Adopted 4/25/91
Third Edition Engrossed 5/8/91

Short Title:  Improve APA Rule-Making Process.	(Public)
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Sponsors:
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Referred to:  
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February 21, 1991

A BILL TO BE ENTITLED
AN ACT TO IMPROVE THE ADMINISTRATIVE RULE-MAKING PROCESS.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 150B of the General Statutes is amended by adding a new Article to read:
“ARTICLE 2A.
"Rules.
"Part 1. General Provisions.
"§ 150B-18.  Scope and effect.
This Article applies to an agency's exercise of its authority to adopt a rule.  A rule is not valid unless it is adopted in substantial compliance with this Article.
"§ 150B-19.  Restrictions on what can be adopted as a rule.
An agency may not adopt a rule that does one or more of the following:
(1)	Implements or interprets a law unless that law or another law specifically authorizes the agency to do so.
(2)	Enlarges the scope of a profession, occupation, or field of endeavor for which an occupational  license is required.
(3)	Imposes criminal liability or a civil penalty for an act or omission, including the violation of a rule, unless a law specifically authorizes the agency to do so or a law declares that violation of the rule is a criminal offense or is grounds for a civil penalty.
(4)	Repeats the content of a law, a rule, or a federal regulation.
(5)	Establishes a reasonable fee or other reasonable charge for providing a service in fulfillment of a duty unless a law specifically authorizes the agency to do so or the fee or other charge is for one of the following:
a.	A service to a State, federal, or local governmental unit.
b.	A copy of part or all of a State publication or other document, the cost of mailing a document, or both.
c.	A transcript of a public hearing.
d.	A conference, workshop, or course.
e.	Data processing services.
(6)	Allows the agency to waive or modify a requirement set in a rule unless a rule establishes specific guidelines the agency must follow in determining whether to waive or modify the requirement.
"§ 150B-20.  Petitioning an agency to adopt a rule.
(a)	Petition. – A person may petition an agency to adopt a rule by submitting to the agency a written rule-making petition requesting the adoption.  A person may submit written comments with a rule-making petition.  If a rule-making petition requests the agency to create or amend a rule, the person must submit the proposed text of the requested rule change and a statement of the effect of the requested rule change.  Each agency must establish by rule the procedure for submitting a rule-making petition to it and the procedure the agency follows in considering a rule-making petition.
(b)	Time. – An agency must grant or deny a rule-making petition submitted to it within 30 days after the date the rule-making petition is submitted, unless the agency is a board or commission.  If the agency is a board or commission, it must grant or deny a rule-making petition within 120 days after the date the rule-making petition is submitted.
(c)	Action. – If an agency denies a rule-making petition, it must send the person who submitted the petition a written statement of the reasons for denying the petition.  If an agency grants a rule-making petition, it must inform the person who submitted the rule-making petition of its decision and must initiate rule-making proceedings.  When an agency grants a rule-making petition requesting the creation or amendment of a rule, the notice of rule making it publishes in the North Carolina Register may state that the agency is initiating rule-making proceedings as the result of a rule-making petition, state the name of the person who submitted the rule-making petition, set out the text of the requested rule change submitted with the rule-making petition, and state whether the agency endorses the proposed rule change.
(d)	Review. – Denial of a rule-making petition is a final agency decision and is subject to judicial review under Article 4 of this Chapter.  Failure of an agency to grant or deny a rule-making petition within the time limits set in subsection (b) is a denial of the rule-making petition.
"§ 150B-21.  Agency must designate rule-making coordinator.
Each agency must designate one or more rule-making coordinators to oversee the agency's rule-making functions.  The coordinator must prepare notices of public hearings, coordinate access to the agency's rules, and serve as the liaison between the agency, other agencies, and the public in the rule-making process.
"Part 2. Adoption of Rules.
"§ 150B-21.1.  Procedure for adopting a temporary rule.
(a)	Adoption. –  An agency may adopt a temporary rule without prior notice or hearing or upon any abbreviated notice or hearing the agency finds practical when it finds that adherence to the notice and hearing requirements of this Part would be contrary to the public interest and that the immediate adoption of the rule is required by one or more of the following:
(1)	A serious and unforeseen threat to the public health, safety, or welfare.
(2)	The effective date of a recent act of the General Assembly or the United States Congress.
(3)	A recent change in federal or State budgetary policy.
(4)	A federal regulation.
(5)	A court order.
An agency must prepare a written statement of its findings of need for a temporary rule.  The statement must be signed by the head of the agency adopting the rule.
An agency must begin rule-making proceedings for a permanent rule by the day it adopts a temporary rule.  An agency begins rule-making proceedings for a permanent rule by publishing in the North Carolina Register notice of its intent to adopt a permanent rule.
(b)	Review. – When an agency adopts a temporary rule it must submit the rule, the agency's written statement of its findings of need for the rule, and the notice of intent to adopt a permanent rule to the Codifier of Rules.  Within one business day after an agency submits a temporary rule, the Codifier of Rules must review the agency's written statement of findings of need for the rule to determine whether the statement of need meets the criteria listed in subsection (a).  In reviewing the statement, the Codifier of Rules may consider any information submitted by the agency or another person.  If the Codifier of Rules finds that the statement meets the criteria, the Codifier of Rules must notify the head of the agency and enter the rule in the North Carolina Administrative Code.
If the Codifier of Rules finds that the statement does not meet the criteria, the Codifier of Rules must immediately notify the head of the agency.  The agency may supplement its statement of need with additional findings or submit a new statement.  If the agency provides additional findings or submits a new statement, the Codifier of Rules must review the additional findings or new statement within one business day after the agency submits the additional findings or new statement.  If the Codifier of Rules again finds that the statement does not meet the criteria listed in subsection (a), the Codifier of Rules must immediately notify the head of the agency.
If an agency decides not to provide additional findings or submit a new statement when notified by the Codifier of Rules that the agency's findings of need for a rule do not meet the required criteria, the agency must notify the Codifier of Rules of its decision.  The Codifier of Rules must then enter the rule in the North Carolina Administrative Code on the sixth business day after receiving notice of the agency's decision.
(c)	Standing. –  A person aggrieved by a temporary rule adopted by an agency may file an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 of Chapter 1 of the General Statutes.  In the action, the court shall determine whether the agency's written statement of findings of need for the rule meets the criteria listed in subsection (a) and whether the rule meets the standards in G.S. 150B-21.9 that apply to review of a permanent rule.  The court may not grant an ex parte temporary restraining order.
Filing a petition for rule-making or a request for a declaratory ruling with the agency that adopted the rule is not a prerequisite to filing an action under this subsection.  A person who files an action for declaratory judgment under this subsection must serve a copy of the complaint on the agency that adopted the rule being contested, the Codifier of Rules, and the Commission.
(d)	Effective Date and Expiration. –  A temporary rule becomes effective on the date specified in G.S. 150B-21.3.  A temporary rule expires on the date specified in the rule or 180 days from the date the rule becomes effective, whichever comes first.
"§ 150B-21.2.  Procedure for adopting a permanent rule.
(a)	Notice. – Before an agency adopts a permanent rule, it must publish notice of its intent to adopt a permanent rule in the North Carolina Register and as required by any other law.  The notice published in the North Carolina Register must include all of the following:
(1)	Either the text of the proposed rule or a statement of the subject matter of the proposed rule making.
(2)	A short explanation of the reason for the proposed action.
(3)	A citation to the law that gives the agency the authority to adopt the proposed rule, if the notice includes the text of the proposed rule, or a citation to the law that gives the agency the authority to adopt a rule on the subject matter of the proposed rule making, if the notice includes only a statement of the subject matter of the proposed rule making.
(4)	The proposed effective date of the proposed rule, if the notice includes the text of the proposed rule, or the proposed effective date of a rule adopted on the subject matter of the proposed rule making, if the notice includes only a statement of the subject matter of the proposed rule making.
(5)	The date, time, and place of any public hearing scheduled on the proposed rule or subject matter of the proposed rule making.
(6)	Instructions on how a person may demand a public hearing on a proposed rule if the notice does not schedule a public hearing on the proposed rule and subsection (c) requires the agency to hold a public hearing on the proposed rule when requested to do so.
(7)	The period of time during which and the person to whom written comments may be submitted on the proposed rule or subject matter of the proposed rule making.
(8)	If a fiscal note has been prepared for the proposed rule or will be prepared when a rule is proposed on the subject matter of the proposed rule making, a statement that a copy of the fiscal note can be obtained from the agency.
(b)	Mailing List. – An agency must maintain a mailing list of persons who have requested notice of rule making.  When an agency publishes a rule-making notice in the North Carolina Register, it must mail a copy of the notice to each person on the mailing list who has requested notice of rule-making proceedings on the rule or the subject matter for rule making described in the notice.  An agency may charge an annual fee to each person on the agency's mailing list to cover copying and mailing costs.
(c)	Hearing. – An agency must hold a public hearing on a rule it proposes to adopt in two circumstances and may hold a public hearing in other circumstances.  When an agency is required to hold a public hearing on a proposed rule or decides to hold a public hearing on a proposed rule when it is not required to do so, the agency must publish in the North Carolina Register a notice of the date, time, and place of the public hearing.  The hearing date of a public hearing held after the agency publishes notice of the hearing in the North Carolina Register must be at least 15 days after the date the notice is published.
An agency must hold a public hearing on a rule it proposes to adopt in the following two circumstances:
(1)	The agency publishes a statement of the subject matter of the proposed rule making in the notice in the North Carolina Register.
(2)	The agency publishes the text of the proposed rule in the notice in the North Carolina Register and all the following apply:
a.	The notice does not schedule a public hearing on the proposed rule.
b.	Within 15 days after the notice is published, the agency receives a written request for a public hearing on the proposed rule.
c.	The proposed rule is not part of a rule-making proceeding the agency initiated by publishing a statement of the subject matter of proposed rule making.
d.	The proposed text is not a changed version of proposed text the agency previously published in the course of rule-making proceedings but did not adopt.
(d)	Text After Subject-Matter Notice. –  When an agency publishes notice of the subject matter of proposed rule making in the North Carolina Register, it must subsequently publish in the North Carolina Register the text of the rule it proposes to adopt as a result of the public hearing and of any comments received on the subject matter.  An agency may not publish the proposed text of a rule for which it published a subject-matter notice before the public hearing on the subject matter.
(e)	Comments. – An agency must accept comments on the text of a proposed rule published in the North Carolina Register for at least 30 days after the text is published or until the date of any public hearing held on the proposed rule, whichever is longer.  An agency must accept comments on a statement of the subject matter of proposed rule making until the public hearing on the subject matter.  An agency must consider fully all written and oral comments received.
(f)	Adoption. – An agency may not adopt a rule until the time for commenting on the proposed text of the rule has elapsed.  An agency may not adopt a rule that differs substantially from the text of a proposed rule published in the North Carolina Register unless the agency publishes the text of the proposed different rule in the North Carolina Register and accepts comments on the proposed different rule for the time set in subsection (e).
An adopted rule differs substantially from a proposed rule if it does one or more of the following:
(1)	Affects the interests of persons who, based on the notice published in the North Carolina Register or the proposed text of the rule, could not reasonably have determined that the rule would affect their interests.
(2)	Addresses a subject matter or an issue that is not addressed in the proposed text of the rule.
(3)	Produces an effect that could not reasonably have been expected based on the proposed text of the rule.
(g)	Explanation. – An agency must issue a concise written statement explaining why the agency adopted a rule if, within 30 days after the agency adopts the rule, a person asks the agency to do so.  The explanation must state the principal reasons for and against adopting the rule and must discuss why the agency rejected any arguments made or considerations urged against the adoption of the rule.
(h)	Record. – An agency must keep a record of a rule-making proceeding.  The record must include all written comments received, a transcript or recording of any public hearing held on the rule, and any written explanation made by the agency for adopting the rule.
"§ 150B-21.3.  Effective date of rules.
(a)	Temporary Rule. – A temporary rule becomes effective on the date the Codifier of Rules enters the rule in the North Carolina Administrative Code.
(b)	Permanent Rule. – A permanent rule approved by the Commission becomes effective five business days after the Commission delivers the rule to the Codifier of Rules, unless the agency adopting the rule specifies a later effective date.  If the agency specifies a later effective date, the rule becomes effective on that date.
A permanent rule that is not approved by the Commission becomes effective five business days after the agency adopting the rule delivers the rule to the Codifier of Rules, unless the agency adopting the rule specifies a later effective date.  If the agency specifies a later effective date, the rule becomes effective on that date.
(c)	OSHA Standard. – A permanent rule concerning an occupational safety and health standard that is adopted by the Occupational Safety and Health Division of the Department of Labor and is identical to a federal regulation promulgated by the Secretary of the United States Department of Labor becomes effective on the date the Division delivers the rule to the Codifier of Rules, unless the Division specifies a later effective date.  If the Division specifies a later effective date, the rule becomes effective on that date.
"§ 150B-21.4.  Fiscal notes on rules.
(a)	State Funds. – Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would require the expenditure or distribution of funds subject to the Executive Budget Act, Article 1 of Chapter 143, it must submit the text of the proposed rule change and a fiscal note on the proposed rule change to the Director of the Budget and obtain certification from the Director that the funds that would be required by the proposed rule change are available.  The fiscal note must state the amount of funds that would be expended or distributed as a result of the proposed rule change and explain how the amount was computed.  The Director of the Budget must certify a proposed rule change if funds are available to cover the expenditure or distribution required by the proposed rule change.
(b)	Local Funds. – Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would affect the expenditures or revenues of a unit of local government, it must submit the text of the proposed rule change and a fiscal note on the proposed rule change to the Fiscal Research Division of the General Assembly, the Office of State Budget and Management, the North Carolina Association of County Commissioners, and the North Carolina League of Municipalities.  The fiscal note must state the amount by which the proposed rule change would increase or decrease expenditures or revenues of a unit of local government and must explain how the amount was computed.
(c)	Errors. – An erroneous fiscal note prepared in good faith does not affect the validity of a rule.
"§ 150B-21.5.  Circumstances when notice and rule-making hearing not required.
(a)	Amendment. – An agency is not required to publish a notice of rule making in the North Carolina Register or hold a public hearing when it proposes to amend a rule, without changing the substance of the rule, to do one of the following:
(1)	Reletter or renumber the rule or subparts of the rule.
(2)	Substitute one name for another when an organization or position is renamed.
(3)	Correct a citation in the rule to another rule or law when the citation has become inaccurate since the rule was adopted because of the repeal or renumbering of the cited rule or law.
(4)	Change information that is readily available to the public, such as an address or a telephone number.
(5)	Correct a typographical error made in entering the rule in the North Carolina Administrative Code.
(6)	Change a rule in response to a request or an objection by the Commission.
(b)	Repeal. – An agency is not required to publish a notice of rule making in the North Carolina Register or hold a public hearing when it proposes to repeal a rule as a result of any of the following:
(1)	The law under which the rule was adopted is repealed.
(2)	The law under which the rule was adopted or the rule itself is declared unconstitutional.
(3)	The rule is declared to be in excess of the agency's statutory authority.
(c)	OSHA Standard. – The Occupational Safety and Health Division of the Department of Labor is not required to publish a notice of rule making in the North Carolina Register or hold a public hearing when it proposes to adopt a rule that concerns an occupational safety and health standard and is identical to a federal regulation promulgated by the Secretary of the United States Department of Labor.  The Occupational Safety and Health Division is not required to submit to the Commission for review a rule for which notice and hearing is not required under this subsection.
"§ 150B-21.6.  Incorporating material in a rule by reference.
An agency may incorporate the following material by reference in a rule without repeating the text of the referenced material:
(1)	Another rule or part of a rule adopted by the agency.
(2)	All or part of a code, standard, or regulation adopted by another agency, the federal government, or a generally recognized organization or association.
(3)	Material adopted to meet a requirement of the federal government.
In incorporating material by reference, the agency must designate in the rule whether or not the incorporation includes subsequent amendments and editions of the referenced material.  The agency can change this designation only by a subsequent rule-making proceeding.  The agency must have copies of the incorporated material available for inspection and must specify in the rule both where copies of the material can be obtained and the cost on the date the rule is adopted of a copy of the material.
A statement in a rule that a rule incorporates material by reference in accordance with former G.S. 150B-14(b)	is a statement that the rule does not include subsequent amendments and editions of the referenced material.  A statement in a rule that a rule incorporates material by reference in accordance with former G.S. 150B-14(c) is a statement that the rule includes subsequent amendments and editions of the referenced material.
"§ 150B-21.7.  Effect of transfer of duties or termination of agency on rules.
When a law that authorizes an agency to adopt a rule is repealed and another law gives the same or another agency substantially the same authority to adopt a rule, the rule remains in effect until the agency amends or repeals the rule.  When a law that authorizes an agency to adopt a rule is repealed and another law does not give the same or another agency substantially the same authority to adopt a rule, a rule adopted under the repealed law is repealed as of the date the law is repealed.
When an executive order abolishes part or all of an agency and transfers a function of that agency to another agency, a rule concerning the transferred function remains in effect until the agency to which the function is transferred amends or repeals the rule.  When an executive order abolishes part or all of an agency and does not transfer a function of that agency to another agency, a rule concerning a function abolished by the executive order is repealed as of the effective date of the executive order.
The Director of Fiscal Research of the General Assembly must notify the Codifier of Rules when a rule is repealed under this section.  When notified of a rule repealed under this section, the Codifier of Rules must enter the repeal of the rule in the North Carolina Administrative Code.
"Part 3.  Review by Commission.
"§ 150B-21.8.  Review of rule by Commission.
(a)	Temporary Rule. – The Commission does not review a temporary rule.
(b)	Permanent Rule. – An agency must submit a permanent rule adopted by it to the Commission before the rule can be included in the North Carolina Administrative Code.  The Commission reviews a permanent rule in accordance with the standards in G.S. 150B-21.9 and follows the procedure in this Part in its review of a permanent rule.
(c)	Scope. – When the Commission reviews an amendment to a rule, it may review the entire rule that is being amended.  The procedure in G.S. 150B-21.12 applies when the Commission objects to a part of a rule that is within its scope of review but is not changed by a rule amendment.
"§ 150B-21.9.  Standards and timetable for review by Commission.
(a)	Standards. – The Commission must determine whether a rule meets all of the following criteria:
(1)	It is within the authority delegated to the agency by the General Assembly.
(2)	It is clear and unambiguous.
(3)	It is reasonably necessary to fulfill a duty delegated to the agency by the General Assembly.
The Commission may determine if a rule submitted to it was adopted in accordance with Part 2 of this Article.  The Commission must notify the agency that adopted the rule if it determines that a rule was not adopted in accordance with Part 2 of this Article and must return the rule to the agency.  Entry of a rule in the North Carolina Administrative Code after review by the Commission is conclusive evidence that the rule was adopted in accordance with Part 2 of this Article.
(b)	Timetable. – The Commission must review a rule submitted to it on or before the twentieth of a month by the last day of the next month.  The Commission must review a rule submitted to it after the twentieth of a month by the last day of the second subsequent month.
"§ 150B-21.10.  Commission action on permanent rule.
At the first meeting at which a permanent rule is before the Commission for review, the Commission must take one of the following actions:
(1)	Approve the rule, if the Commission determines that the rule meets the standards for review.
(2)	Object to the rule, if the Commission determines that the rule does not meet the standards for review.
(3)	Extend the period for reviewing the rule, if the Commission determines it needs additional information on the rule to be able to decide whether the rule meets the standards for review.
In reviewing a new rule or an amendment to an existing rule, the Commission may request an agency to make technical changes to the rule and may condition its approval of the rule on the agency's making the requested technical changes.
"§ 150B-21.11.  Procedure when Commission approves permanent rule.
When the Commission approves a permanent rule, it must notify the agency that adopted the rule of the Commission's approval and must deliver the approved rule to the Codifier of Rules.  The Commission must deliver an approved rule by the end of the month in which the Commission approved the rule.
"§ 150B-21.12.  Procedure when Commission objects to a permanent rule.
(a)	Action. – When the Commission objects to a permanent rule, it must send the agency that adopted the rule a written statement of the objection and the reason for the objection.  The agency that adopted the rule must take one of the following actions:
(1)	Change the rule to satisfy the Commission's objection and submit the revised rule to the Commission.
(2)	Submit a written response to the Commission indicating that the agency has decided not to change the rule.
An agency that is not a board or commission must take one of these actions within 30 days after receiving the Commission's statement of objection.  A board or commission must take one of these actions within 30 days after receiving the Commission's statement of objection or within 10 days after the board or commission's next regularly scheduled meeting, whichever comes later.
When an agency changes a rule in response to an objection by the Commission, the Commission must determine whether the change satisfies the Commission's objection.  If it does, the Commission must approve the rule.  If it does not, the Commission must send the agency a written statement of the Commission's continued objection and the reason for the continued objection.
A rule to which the Commission has objected remains under review by the Commission until the agency that adopted the rule decides not to satisfy the Commission's objection and makes a written request to the Commission to return the rule to the agency.  When the Commission returns a rule to which it has objected, it may send to the President of the Senate and each member of the General Assembly a report of its objection to the rule.
(b)	Entry In Code. – When the Commission returns a rule to which it has objected to the agency that adopted the rule, the Commission must notify the Codifier of Rules of its action and of the basis of the Commission's objection.  An agency whose rule is returned may file the rule with the Codifier of Rules.  When the Codifier of Rules enters in the North Carolina Administrative Code a rule to which the Commission objected, the entry must reflect the Commission's objection and must state the standard on which the Commission based its objection.
"§ 150B-21.13.  Procedure when Commission extends period for review of permanent rule.
When the Commission extends the period for review of a permanent rule, it must notify the agency that adopted the rule of the extension and the reason for the extension.  After the Commission extends the period for review of a rule, it may call a public hearing on the rule.  Within 70 days after extending the period for review of a rule, the Commission must decide whether to approve the rule, object to the rule, or call a public hearing on the rule.
"§ 150B-21.14.  Public hearing on a rule.
The Commission may call a public hearing on a rule when it extends the period for review of the rule.  At the request of an agency, the Commission may call a public hearing on a rule that is not before it for review.  Calling a public hearing on a rule not already before the Commission for review places the rule before the Commission for review.  When the Commission decides to call a public hearing on a rule, it must publish notice of the public hearing in the North Carolina Register.
After a public hearing on a rule, the Commission must approve the rule or object to the rule in accordance with the standards and procedures in this Part.  The Commission must make its decision of whether to approve or object to the rule within 70 days after the public hearing.
"§ 150B-21.15.  Declaratory judgment action authorized when Commission objects to a permanent rule.
(a)	Standing. – A person aggrieved by a permanent rule entered in the North Carolina Administrative Code with an objection by the Commission based on a lack of statutory authority may file an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 of Chapter 1 of the General Statutes.  In the action, the court shall determine whether the agency exceeded its authority in adopting the rule.
A declaratory judgment action under this section must be filed within 90 days after the rule that is the subject of the action is entered in the Code.  Filing a petition for rule-making or a request for a declaratory ruling with the agency that adopted the rule is not a prerequisite to filing an action under this section.  A person who files an action for declaratory judgment under this section must serve a copy of the complaint on the agency that adopted the rule being contested, the Codifier of Rules, and the Commission.
(b)	Record. – Within 10 days after a declaratory judgment action is filed under this section, the agency that adopted the rule that is the subject of the action must send to the court the original or a certified copy of the record in the Commission's review of the rule.  The record consists of the rule, the Commission's letter of objection to the rule, the agency's written response to the Commission's letter, and any other relevant documents before the Commission when it decided to object to the rule.
(c)	Effect. – A rule remains in effect during the pendency of an action for declaratory judgment under this section unless the court suspends the rule after finding that the agency that adopted the rule has no substantial likelihood of prevailing in the action.
(d)	Changes. – While a rule is the subject of a declaratory judgment action under this section, the agency that adopted the rule may submit to the Commission changes in the rule to satisfy the Commission's objection.  If the Commission determines that changes submitted to it satisfy its objection, the Commission must accept the changes and file the revised rule with the Codifier of Rules.  The Codifier must then enter the rule in the North Carolina Administrative Code.  When the Commission determines that changes submitted to it satisfy its objection, the agency that submitted the changes must notify the court of the changes and of the Commission's action.
"Part 4. Publication of Code and Register.
"§ 150B-21.17.  North Carolina Register.
(a)	Content. – The Codifier of Rules must publish the North Carolina Register.  The North Carolina Register must be published at least two times a month and must contain the following:
(1)	Notices of proposed adoptions of rules.
(2)	Notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165.
(3)	Executive orders of the Governor.
(4)	Final decision letters from the United States Attorney General concerning changes in laws that affect voting in a jurisdiction subject to § 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H.
(5)	Orders of the Tax Review Board issued under G.S. 105-241.2.
(6)	Other information the Codifier determines helpful to the public.
(b)	Form. – When an agency publishes notice in the North Carolina Register of the proposed text of a new rule, the Codifier of Rules must publish the complete text of the proposed new rule.  In publishing the text of a proposed new rule, the Codifier must indicate the rule is new by underlining the proposed text of the rule.
When an agency publishes notice in the North Carolina Register of the proposed text of an amendment to an existing rule, the Codifier must publish the complete text of the rule that is being amended unless the Codifier determines that publication of the complete text of the rule being amended is not necessary to enable the reader to understand the proposed amendment.  In publishing the text of a proposed amendment to a rule, the Codifier must indicate deleted text with overstrikes and added text with underlines.
When an agency publishes notice in the North Carolina Register of the proposed repeal of an existing rule, the Codifier must publish the complete text of the rule the agency proposes to repeal unless the Codifier determines that publication of the complete text is impractical.  In publishing the text of a rule the agency proposes to repeal, the Codifier must indicate the rule is to be repealed.
"§ 150B-21.18.  North Carolina Administrative Code.
The Codifier of Rules must compile all rules into a Code known as the North Carolina Administrative Code. The format and indexing of the Code must conform as nearly as practical to the format and indexing of the North Carolina General Statutes.  The Codifier must publish printed copies of the Code and may publish the Code in other forms.  The Codifier must keep the Code current by publishing the Code in a loose-leaf format and periodically providing new pages to be substituted for outdated pages, by publishing the Code in volumes and periodically publishing cumulative supplements, or by another means.  The Codifier must keep superseded rules.
"§ 150B-21.19. Requirements for including rule in Code.
To be acceptable for inclusion in the North Carolina Administrative Code, a rule must:
(1)	Cite the law under which the rule is adopted.
(2)	Be signed by the head of the agency or the rule-making coordinator for the agency that adopted the rule.
(3)	Be in the physical form specified by the Codifier of Rules.
(4)	Have been reviewed by the Commission, if the rule is a permanent rule.
"§ 150B-21.20.  Codifier's authority to revise form of rules.
(a)	Authority. – After consulting with the agency that adopted the rule, the Codifier of Rules may revise the form of a rule submitted for inclusion in the North Carolina Administrative Code within 10 business days after the rule is submitted to do one or more of the following:
(1)	Rearrange the order of the rule in the Code or the order of the subsections, subdivisions, or other subparts of the rule.
(2)	Provide a catch line or heading for the rule or revise the catch line or heading of the rule.
(3)	Reletter or renumber the rule or the subparts of the rule in accordance with a uniform system.
(4)	Rearrange definitions and lists.
(5)	Make other changes in arrangement or in form that do not change the substance of the rule and are necessary or desirable for a clear and orderly arrangement of the rule.
(b)	Effect. – Revision of a rule by the Codifier of Rules under this section does not affect the effective date of the rule or require the agency to readopt or resubmit the rule.  When the Codifier of Rules revises the form of a rule, the Codifier of Rules must send the agency that adopted the rule a copy of the revised rule.  The revised rule is the official rule.
"§ 150B-21.21.  Publication of rules of North Carolina State Bar and exempt agencies.
(a)	State Bar. – The North Carolina State Bar must submit a rule adopted or approved by it and entered in the minutes of the North Carolina Supreme Court to the Codifier of Rules for inclusion in the North Carolina Administrative Code.  The State Bar must submit a rule within 15 days after it is entered in the minutes of the Supreme Court.  The Codifier of Rules must compile, make available for public inspection, and publish a rule included in the North Carolina Administrative Code under this subsection in the same manner as other rules in the Code.
(b)	Exempt Agencies. – Notwithstanding G.S. 150B-1, the North Carolina Utilities Commission must submit to the Codifier of Rules those rules of the Utilities Commission that are published from time to time in the publication titled ‘North Carolina Utilities Laws and Regulations.'  The Utilities Commission must submit a rule required to be included in the Code within 15 days after it is adopted.  The Codifier of Rules must publish the rules submitted by the Utilities Commission in the North Carolina Administrative Code in the same format as they are submitted.
Notwithstanding G.S. 150B-1, an agency other than the Utilities Commission that is exempted from this Article by that statute must submit a temporary or permanent rule adopted by it to the Codifier of Rules for inclusion in the North Carolina Administrative Code.  One of these exempt agencies must submit a rule to the Codifier of Rules within 15 days after it adopts the rule.  The Codifier of Rules must compile, make available for public inspection, and publish a rule of one of these agencies in the North Carolina Administrative Code in the same manner as other rules in the Code.
"§ 150B-21.22.  Effect of inclusion in Code.
Official or judicial notice can be taken of a rule in the North Carolina Administrative Code and shall be taken when appropriate.  Codification of a rule in the North Carolina Administrative Code is prima facie evidence of compliance with this Article.
"§ 150B-21.23.  Rule publication manual.
The Codifier of Rules must publish a manual that sets out the form and method for publishing a notice of rule making in the  North Carolina Register and for filing a rule in the North Carolina Administrative Code.
"§ 150B-21.24.  Free copies of Register and Code.
(a)	Register. – The Codifier of Rules must distribute copies of the North Carolina Register as soon after publication as practical, without charge, to the following:
(1)	A person who receives a free copy of the North Carolina Administrative Code.
(2)	Upon request, one copy to each member of the General Assembly.
(b)	Code. – The Codifier of Rules must distribute copies of the North Carolina Administrative Code as soon after publication as practical, without charge, to the following:
(1)	One copy to the Clerk of Superior Court of each county in the State, which shall be open to public inspection his office.
(2)	One copy to the Commission.
(3)	One copy to the clerk of the Supreme Court and to the clerk of the Court of Appeals of North Carolina.
(4)	One copy to the Supreme Court Library and one copy to the library of the Court of Appeals.
(5)	One copy to the Administrative Office of the Courts.
(6)	One copy to the Governor.
(7)	Five copies to the Legislative Services Commission for the use of the General Assembly.
(8)	Upon request, one copy to each State official or department to whom or to which copies of the appellate division reports are furnished under G.S. 7A-343.1.
(9)	Five copies to the Division of State Library of the Department of Cultural Resources pursuant to G.S. 125-11.7.
"§ 150B-21.25.  Paid copies of Register and Code.
A person who is not entitled to a free copy of the North Carolina Administrative Code or North Carolina Register may obtain a copy by paying a fee set by the Codifier of Rules.  The Codifier must set separate fees for the North Carolina Register and the North Carolina Administrative Code in amounts that cover publication, copying, and mailing costs.  All monies received under this section must be credited to the General Fund."
Sec. 2.  G.S. 150B-1 reads as rewritten:
"§ 150B-1. Policy and scope.
(a)	Purpose. –  This Chapter establishes a uniform system of administrative rule making and adjudicatory procedures for agencies.  The procedures ensure that the functions of rule making, investigation, advocacy, and adjudication are not all performed by the same person in the administrative process.
(b)	Rights. –This Chapter confers procedural rights but does not confer substantive rights.
(c)	Full Exemptions. – This Chapter applies to every agency except:
(1)	The North Carolina National Guard in exercising its court-martial jurisdiction.
(2)	The Department of Human Resources in exercising its authority over the Camp Butner reservation granted in Article 6 of Chapter 122C of the General Statutes.
(3)	The Utilities Commission.
(4)	The Industrial Commission.
(5)	The Employment Security Commission.
(d)	Exemptions From Rule Making. – Article 2A of this Chapter does not apply to the following:
(1)	The Commission.
(2)	The North Carolina Low-Level Radioactive Waste Management Authority in administering the provisions of G.S. 104G-10 and G.S. 104G-11.
(3)	The North Carolina Hazardous Waste Management Commission in administering the provisions of G.S. 130B-13 and G.S. 130B-14.
(4)	The Department of Revenue.
(5)	The Department of Correction.
(6)	The Department of Transportation.
(e)	Exemptions From Contested Case Provisions.–  The contested case provisions of this Chapter do not apply to the following:
(1)	The Department of Human Resources and the Department of Environment, Health, and Natural Resources in complying with the procedural safeguards mandated by Section 680 of Part H of Public Law 99-457 as amended (Education of the Handicapped Act Amendments of 1986).
(2)	The Governor's Waste Management Board in administering the provisions of G.S. 104E-6.2 and G.S. 130A-293.
(3)	The North Carolina Low-Level Radioactive Waste Management Authority in administering the provisions of G.S. 104G-9, 104G-10, and 104G-11.
(4)	The North Carolina Hazardous Waste Management Commission in administering the provisions of G.S. 130B-11, 130B-13, and 130B-14.
(5)	Hearings required pursuant to the Rehabilitation Act of 1973, (Public Law 93-122), as amended and federal regulations promulgated thereunder.  G.S. 150B-51(a) is considered a contested case hearing provision that does not apply to these hearings.
(6)	The Department of Revenue.
(7)	The Department of Correction.
(8)	The Department of Transportation, except as provided in G.S. 136-29.
(9)	The Occupational Safety and Health Review Board in all actions that do not involve agricultural employers.
(f)	Exemption From All But Judicial Review.–  No Article in this Chapter except Article 4 applies to The University of North Carolina.
																		."
Sec. 3.  G.S. 150B-2 reads as rewritten:
"§ 150B-2. Definitions.
As used in this Chapter,
(01)	‘Administrative law judge' means a person appointed under G.S. 7A-752, 7A-753, or 7A-757.
(1)	‘Agency' means an agency or an officer in the executive branch of the government of this State and includes the Council of State, the Governor's Office, a board, a commission, a department, a division, a council, and any other unit of government in the executive branch.  A local unit of government is not an agency.
(1a)	‘Adopt' means to take final action to create, amend, or repeal a rule.
(1b)	‘Codifier of Rules' means the Chief Administrative Law Judge of the Office of Administrative Hearings or a designated representative of the Chief Administrative Law Judge.
(1c)	‘Commission' means the Rules Review Commission.
(2)	‘Contested case' means an administrative proceeding pursuant to this Chapter to resolve a dispute between an agency and another person that involves the person's rights, duties, or privileges, including licensing or the levy of a monetary penalty. ‘Contested case' does not include rule-making, declaratory rulings, or the award or denial of a scholarship or grant.
	(2b)	‘Hearing officer' means a person or group of persons designated by an agency that is subject to Article 3A of this Chapter to preside in a contested case hearing conducted under that Article.
(2c)	‘Law' means an enactment of the General Assembly.
(3)	‘License' means any certificate, permit or other evidence, by whatever name called, of a right or privilege to engage in any activity, except licenses issued under Chapter 20 and Subchapter I of Chapter 105 of the General Statutes and occupational licenses.
(4)	‘Licensing' means any administrative action issuing, failing to issue, suspending, or revoking a license or occupational license. ‘Licensing' does not include controversies over whether an examination was fair or whether the applicant passed the examination.
(4a)	‘Occupational license' means any certificate, permit, or other evidence, by whatever name called, of a right of privilege to engage in a profession, occupation, or field of endeavor that is issued by an occupational licensing agency.
(4b)	‘Occupational licensing agency' means any board, commission, committee or other agency of the State of North Carolina which is established for the primary purpose of regulating the entry of persons into, and/or the conduct of persons within a particular profession, occupation or field of endeavor, and which is authorized to issue and revoke licenses. ‘Occupational licensing agency' does not include State agencies or departments which may as only a part of their regular function issue permits or licenses.
(5)	‘Party' means any person or agency named or admitted as a party or properly seeking as of right to be admitted as a party and includes the agency as appropriate. This subdivision does not permit an agency that makes a final decision, or an officer or employee of the agency, to petition for initial judicial review of that decision.
(6)	‘Person aggrieved' means any person or group of persons of common interest directly or indirectly affected substantially in his or its person, property, or employment by an administrative decision.
(7)	‘Person' means any natural person, partnership, corporation, body politic and any unincorporated association, organization, or society which may sue or be sued under a common name.
(8)	‘Residence' means domicile or principal place of business.
(8a)	‘Rule' means any agency regulation, standard, or statement of general applicability that implements or interprets an enactment of the General Assembly or Congress or a regulation adopted by a federal agency or that describes the procedure or practice requirements of an agency. The term includes the establishment of a fee and the amendment or repeal of a prior rule.  The term does not include the following:
a.	Statements concerning only the internal management of an agency or group of agencies within the same principal office or department enumerated in G.S. 143-11 or 143B-6, including policies and procedures manuals, if the statement does not directly or substantially affect the procedural or substantive rights or duties of a person not employed by the agency or group of agencies.
b.	Budgets and budget policies and procedures issued by the Director of the Budget, by the head of a department, as defined by G.S. 143A-2 or G.S. 143B-3, by an occupational licensing board, as defined by G.S. 93B-1, or by the State Board of Elections.
c.	Nonbinding interpretative statements within the delegated authority of an agency that merely define, interpret, or explain the meaning of a statute or rule. 
d.	A form, the contents or substantive requirements of which are prescribed by rule or statute. 
e.	Statements of agency policy made in the context of another proceeding, including:
1.	Declaratory rulings under G.S. 150B-4.
2.	Orders establishing or fixing rates or tariffs.
f.	Instructions, communicated to the public by the use of signs or symbols, concerning the use of public roads, bridges, or facilities. 
			g.	Statements that set forth criteria or guidelines to be used by the staff of an agency in performing audits, investigations, or inspections; in settling financial disputes or negotiating financial arrangements; or in the defense, prosecution, or settlement of cases.
h.	Scientific, architectural, or engineering standards, forms, or procedures.
i.	Job classification standards, job qualifications, and salaries established for positions under the jurisdiction of the State Personnel Commission.
(8b)	‘Substantial evidence' means relevant evidence a reasonable mind might accept as adequate to support a conclusion.
	."
Sec. 4.  G.S. 150B-17 is recodified as G.S. 150B-4 in Article 1 of Chapter 150B of the General Statutes.
Sec. 5.  Article 2 of Chapter 150B of the General Statutes, as amended by this act, Article 5 of Chapter 150B of the General Statutes, G.S. 143B-30, and G.S. 143B-30.3 are repealed.
Sec. 6.  G.S. 12-3.1(c) reads as rewritten:
"(c)	This section does not apply to any of the following:
(1)	Rules establishing fees or charges to State, federal or local governmental units.
(2)	A reasonable fee or charge for copying, transcripts of public hearings, State publications, or mailing a document or other item.
(3)	Reasonable registration fees covering the cost of a conference or workshop.
(4)	Reasonable user fees covering the cost of providing data processing services."
Sec. 7.  G.S. 84-21 reads as rewritten:
"§ 84-21. Organization of council; publication of rules, regulations and bylaws.
Upon receiving notification of the election of a councilor for each judicial district, or, if such notification shall not have been received from all said districts, within 120 days after this Article shall have gone into effect, the clerk of the Supreme Court of North Carolina shall call a meeting of the councilors of whose election he shall have been notified, to be held in the City of Raleigh not less than 20 days nor more than 30 days after the date of said call; and at the meeting so held the councilors attending the same shall proceed to organize the council by electing officers, taking appropriate steps toward the adoption of rules and regulations, electing councilors for judicial districts which have failed to elect them, and taking such other action as they may deem to be in furtherance of this Article. The regular term of all officers shall be one year, but those first elected shall serve until January 1, 1935. The council shall be the judge of the election and qualifications of its own members. When the council shall have been fully organized and shall have adopted such rules, regulations and bylaws, not inconsistent with this Article, as it shall deem necessary or expedient for the discharge of its duties, the secretary-treasurer shall file with the clerk of the Supreme Court of North Carolina a certificate, to be called the ‘certificate of organization,' showing the officers and members of the council, with the judicial districts which the members respectively represent, and their post-office addresses, and the rules, regulations and bylaws adopted by it; and thereupon the Chief Justice of the Supreme Court of North Carolina, or any judge thereof, if the court be then in vacation, shall examine the said certificate and, if of opinion that the requirements of this Article have been complied with, shall cause the said certificate to be spread upon the minutes of the court; but if of opinion that the requirements of this Article have not been complied with, shall return the said certificate to the secretary-treasurer with a statement showing in what respects the provisions of this Article have not been complied with; and the said certificate shall not be again presented to the Chief Justice of the Supreme Court or any judge thereof, until any such defects in the organization of the council shall have been corrected, at which time a new certificate of organization shall be presented and the same course taken as hereinabove provided, and so on until a correct certificate showing the proper organization of the council shall have been presented, and the organization of the council accordingly completed. Upon (a)	the entry of an order upon the minutes of the court that the requirements of this Article have been complied with, or (b) if for any reason the Chief Justice or judge should not act thereon within 30 days, then, after the lapse of 30 days from the presentation to the Chief Justice or judge, as the case may be, of any certificate of organization hereinbefore required to be presented by the secretary-treasurer, without either the entry of an order or the return of said certificate with a statement showing the respects in which this Article has not been complied with, the organization of the council shall be deemed to be complete, and it shall be vested with the powers herein set forth; and the certificate of organization shall thereupon forthwith be spread upon the minutes of the court. A copy of the certificate of organization, as spread upon the minutes of the court, shall be published in the next ensuing volume of the North Carolina Reports and in the North Carolina Administrative Code. The rules and regulations set forth in the certificate of organization, and all other rules and regulations which may be adopted by the council under this Article, may be amended by the council from time to time in any manner not inconsistent with this Article. Copies of all such rules and regulations adopted subsequently to the filing of the certificate of organization, and of all amendments so made by the council, shall be certified to the Chief Justice of the Supreme Court of North Carolina, entered by it upon its minutes, and published in the next ensuing number of the North Carolina Reports and in the North Carolina Administrative Code: Provided, that the court may decline to have so entered upon its minutes any of such rules, regulations and amendments which in the opinion of the Chief Justice are inconsistent with this Article."
Sec. 8.  G.S. 95-131 reads as rewritten:
"§ 95-131.  Development and promulgation of standards; adoption of federal standards and regulations.
(a)	All occupational safety and health standards promulgated under the federal act by the Secretary, and any modifications, revision, amendments or revocations in accordance with the authority conferred by the federal act or any other federal act or agency relating to safety and health and adopted by the Secretary, shall be adopted as the rules of the Commissioner of this State unless the Commissioner decides to adopt an alternative State rule as effective as the federal requirement and providing safe and healthful employment in places of employment as required by the federal act and standards and regulations heretofore referred to and as provided by the Occupational Safety and Health Act of 1970.  Chapter 150B of the General Statutes governs the adoption of rules by the Commissioner.
													(d) 		Rules adopted under this section shall provide insofar as possible the highest degree of safety and health protection for employees; other considerations shall be the latest available scientific data in the field, the feasibility of the standard, and experience gained under this and other health and safety laws. Whenever practical the standards established in a rule  shall be expressed in terms of objective criteria and of the performance desired. In establishing standards dealing with toxic materials or harmful physical agents, the Commissioner, after consultation and recommendations of the Department of Human Resources, shall set a standard which most adequately assures, to the extent possible, on the basis of the most available evidence that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.
	(e)	The Commissioner may not adopt State standards, for products distributed or used in interstate commerce, which are different from federal standards for such products unless the adoption of such State standard, or standards, is required by compelling local conditions and does not unduly burden interstate commerce.
	(g)	Any rule, regulation, scope, or standard for agricultural employers adopted or promulgated prior to July 12, 1988, that differs from the federal rule, regulation, scope, or standard is repealed effective September 1, 1989, unless readopted pursuant to Chapter 150B of the General Statutes."
Sec. 9.  G.S. 143B-14(b) reads as rewritten:
"(b)	Except as otherwise provided by law, the powers, duties, and functions of a commission are not subject to the approval, review, or control of the head of the department or of the Governor.."
Sec. 10.  G.S. 143B-18 and G.S. 143B-20 are repealed.
Sec. 11.  The catch line to G.S. 143B-30.1 and G.S. 143B-30.1(a) reads as rewritten:
"§ 143B-30.1. Rules Review Commission created.
(a)	The Rules Review Commission is created. The Commission shall consist of eight members to be appointed by the General Assembly, four upon the recommendation of the President of the Senate, and four upon the recommendation of the Speaker of the House of Representatives. These appointments shall be made in accordance with G.S. 120-121, and vacancies in these appointments shall be filled in accordance with G.S. 120-122.  Except as provided in subsection (b) of this section, all appointees shall serve two-year terms."
Sec. 12.  G.S. 143B-30.2 reads as rewritten:
"§ 143B-30.2. Purpose of Commission.
The Rules Review Commission reviews administrative rules in accordance with Chapter 150B of the General Statutes.
						”						"
Sec. 13.  G.S. 120-30.48 reads as rewritten:
"§ 120-30.48. Fiscal impact of administrative rules.
	An agency 
	is required to prepare a fiscal note on a proposed administrative rule that affects the expenditures or revenues of a unit of local government as provided in G.S. 150B-21.4."
Sec. 14.  G.S. 147-16.1 reads as rewritten:
"§ 147-16.1. Publication of executive orders.
The Governor must submit Executive Orders to the Secretary of State, who must compile, index, and publish the Executive Orders. The Governor's office shall also send a copy of each executive order to the President of the Senate, to the Speaker of the House of Representatives, to the Principal Clerk of the House of Representatives and to the Principal Clerk of the Senate."
Sec. 15.  G.S. 148-11 reads as rewritten:
"§ 148-11. Authority to make regulations.
The Secretary shall adopt rules for the government of the State prison system and shall file and publish such rules in accordance with Chapter 150B. In the case of temporary rules, such rules shall become effective immediately upon adoption by the Secretary and shall be filed with the Codifier of Rules within two working days of adoption. The Secretary shall have such portion of these rules and regulations as pertain to enforcing discipline read to every prisoner when received in the State prison system and a printed copy of these rules and regulations shall be made available to the prisoners."
Sec. 16.  This act becomes effective October 1, 1991.  The procedures in G.S. 150B, Article 2A, as set forth in this act, apply to all rules for which a notice of rule making is 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.  The Utilities Commission shall submit to the Codifier of Rules the rules of the Commission that are included in the publication "North Carolina Utilities Laws and Regulations”within 15 days after the effective date of this act.