GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	1 

HOUSE BILL 175

Short Title:  Rules Approved by Gen. Assmb.	(Public)

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Sponsors: Representatives Cansler; Aldridge, Baker, Brawley, J. Brown, Buchanan, Capps, Carpenter, Cocklereece, Culp, Davis, Edwards, Hayes, Ives, Linney, McComas, K. Miller, Mitchell, Nichols, Rayfield, Reynolds, Russell, Sexton, Sharpe, and Shubert.

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Referred to:  Judiciary I.

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February 14, 1995

A BILL TO BE ENTITLED
AN ACT TO PROVIDE THAT RULES ADOPTED BY STATE AGENCIES DO NOT BECOME EFFECTIVE UNLESS APPROVED BY THE GENERAL ASSEMBLY.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 150B-1(a) reads as rewritten:
"(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.  The requirement in G.S. 150B-21.3 that a rule adopted by an agency does not become effective unless approved by the General Assembly is intended to ensure that rules affecting the rights and privileges of the citizens of this State are written clearly, are minimally intrusive on those rights and privileges, and include only those provisions necessary to carry out the purposes of the law pursuant to which the rule is adopted."
Sec. 2.  G.S. 150B-21.2(a) reads as rewritten:
"(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.
(9)	A statement indicating that the proposed rule is subject to approval by the General Assembly and, if not approved, does not take effect."
Sec. 3.  G.S. 150B-21.1(d) reads as rewritten:
"(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 90 days after the convening of the next Regular Session of the General Assembly that begins at least one month after the date the rule is adopted, whichever comes first."
Sec. 4.  G.S. 150B-21.3(b) reads as rewritten:
"(b)	Permanent Rule. – 
A permanent rule becomes effective as follows:
(1)	A permanent rule that is exempt from notice and public hearing requirements under this Article and is 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.
(2)	A permanent rule that is exempt from notice and public hearing requirements under this Article and 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.
(3)	A permanent rule subject to the requirements of notice of rule making and public hearing under this Article must be approved by the General Assembly in a bill ratified within 90 days after the convening of a Regular Session of the General Assembly that begins at least one month following the adoption of the rule by the agency.  If an agency or the Commission submits a rule to the General Assembly after convening but during the time the General Assembly is in session, then in order to become effective the rule must be approved in a bill ratified within 90 days of receipt of the rule by the General Assembly.  A permanent rule subject to the notice and hearing requirements of this Article becomes effective five business days after the General Assembly has ratified a bill approving the rule."
Sec. 5.  G.S. 150B-21.8 reads as rewritten:
"§ 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 for review before the rule can be considered by the General Assembly for approval in a ratified bill. 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."
Sec. 6.  G.S. 150B-21.9 reads as rewritten:
"§ 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 and approval by the General Assembly if approval is required under G.S. 150B-21.3(3)	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."
Sec. 7.  G.S. 150B-21.11 reads as rewritten:
"§ 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 General Assembly for action in the next regular session that begins at least one month after the rule is approved by the Commission. The Commission must deliver an approved rule by the end of the month in which the Commission approved the rule, unless the agency asks the Commission to delay the delivery of the rule."
Sec. 8.  G.S. 150B-21.12(b) reads as rewritten:
"(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 General Assembly and the Codifier of Rules of its action and of the basis of the Commission's objection.  An agency whose rule is returned may submit the rule to the next Regular Session of the General Assembly that begins at least one month after the rule is returned to the agency. If the General Assembly ratifies a bill approving the rule in accordance with G.S. 150B-21.3(b)(3), then the ratified bill approving the rule shall be delivered to the Codifier of Rules for entry into the North Carolina Administrative Code.  "
Sec. 9.  G.S. 150B-21.15 is repealed.
Sec. 10.  G.S. 150B-21.19 reads as rewritten:
"§ 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.
(5)	Have been approved by the General Assembly in accordance with this Chapter."
Sec. 11.  G.S. 150B-33(b) reads as rewritten:
"(b)	An administrative law judge may:
(1)	Administer oaths and affirmations;
(2)	Sign, issue, and rule on subpoenas in accordance with G.S. 150B-27 and G.S. 1A-1, Rule 45;
(3)	Provide for the taking of testimony by deposition and rule on all objections to discovery in accordance with G.S. 1A-1, the Rules of Civil Procedure;
(3a)	Rule on all prehearing motions that are authorized by G.S. 1A-1, the Rules of Civil Procedure;
(4)	Regulate the course of the hearings, including discovery, set the time and place for continued hearings, and fix the time for filing of briefs and other documents;
(5)	Direct the parties to appear and confer to consider simplification of the issues by consent of the parties;
(6)	Stay the contested action by the agency pending the outcome of the case, upon such terms as he deems proper, and subject to the provisions of G.S. 1A-1, Rule 65;
(7)	Determine whether the hearing shall be recorded by a stenographer or by an electronic device; and
(8)	Enter an order returnable in the General Court of Justice, Superior Court Division, to show cause why the person should not be held in contempt.  The Court shall have the power to impose punishment as for contempt for any act which would constitute direct or indirect contempt if the act occurred in an action pending in Superior Court.
	(10)	Impose the sanctions provided for in G.S. 1A-1 or Chapter 3 of Title 26 of the North Carolina Administrative Code for noncompliance with applicable procedural rules."
Sec. 12.  This act is effective upon ratification and applies to all rules for which a notice of rule making is published in the North Carolina Register on or after January 1, 1995.