GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1993

S	1 

SENATE BILL 299

Short Title:  GPAC-Move N.C. Register & Code.	(Public)
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Sponsors: Senator Martin of Guilford.
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Referred to:  Government Performance Audit.
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February 22, 1993

A BILL TO BE ENTITLED
AN ACT TO IMPLEMENT A RECOMMENDATION OF THE GOVERNMENT PERFORMANCE AUDIT COMMITTEE TO TRANSFER PUBLICATION OF THE NORTH CAROLINA REGISTER AND THE NORTH CAROLINA ADMINISTRATIVE CODE FROM THE OFFICE OF ADMINISTRATIVE HEARINGS TO THE SECRETARY OF STATE.
Whereas, the Office of Administrative Hearings conducts contested case hearings and publishes the North Carolina Register and the North Carolina Administrative Code; and
Whereas, the Government Performance Audit Committee finds that the Secretary of State has a publications division that performs functions similar to those performed by the publications division of the Office of Administrative Hearings; and
Whereas, for these reasons, the Government Performance Audit Committee recommends that the publication functions of the Office of Administrative Hearings be transferred to the Secretary of State; Now, therefore,
The General Assembly of North Carolina enacts:
Section 1.  G.S. 150B-2(1b) reads as rewritten:
"(1b)	'Codifier of Rules' means the Secretary of State or a designated representative of the Secretary of State."
Sec. 2.  G.S. 150B-21.1 reads as rewritten:
"§ 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.
(6)	The need for the rule to become effective the same date as the State Medical Facilities Plan approved by the Governor, if the rule addresses a matter included in the State Medical Facilities Plan.
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 submitting to the Codifier of Rules written notice of its intent to adopt a permanent rule.
(b)	Review. – When an agency adopts a temporary rule it must submit the rule and the agency's written statement of its findings of need for the rule to the Chief Administrative Law Judge of the Office of Administrative Hearings.  Within one business day after an agency submits a temporary rule, the Chief Administrative Law Judge or another administrative law judge designated by the Chief 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 administrative law judge may consider any information submitted by the agency or another person.  If the administrative law judge finds that the statement meets the criteria, the administrative law judge must notify the head of the agency and direct the Codifier of Rules to enter the rule in the North Carolina Administrative Code.
If the administrative law judge finds that the statement does not meet the criteria, the administrative law judge 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 administrative law judge must review the additional findings or new statement within one business day after the agency submits the additional findings or new statement.  If the administrative law judge again finds that the statement does not meet the criteria listed in subsection (a), the administrative law judge 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 an administrative law judge that the agency's findings of need for a rule do not meet the required criteria, the agency must notify the administrative law judge of its decision.  The administrative law judge must then direct the Codifier of Rules to 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 Chief Administrative Law Judge, 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."
Sec. 3.  The following four positions at the Office of Administrative Hearings are transferred from that Office to the Office of the Secretary of State:  Director of APA Services, Publications Coordinator, Editorial Assistant II, and Editorial Assistant I.
Sec. 4.  The base budget of the Office of Administrative Hearings is reduced by two hundred eighty thousand two hundred sixty-three dollars ($280,263) for the 1994-95 fiscal year due to the transfer of positions by Section 3 of this act and the base budget of the Office of the Secretary of State is increased by the same amount.
Sec. 5.  This act becomes effective July 1, 1994.