GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

S	1 

SENATE BILL 1324*

Short Title:  Resolve Administrative Procedure Oversight.  	(Public)

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Sponsors: Senators Sherron; McDaniel, Foxx, McKoy, Blackmon, Webster, Kerr, Hoyle, Martin of Pitt, Albertson, Warren, Rand, Cochrane, Parnell, Ballance, Smith, and Plyler.

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Referred to:  Finance.

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May 27, 1996

A BILL TO BE ENTITLED
AN ACT TO MAKE CHANGES IN THE ADMINISTRATIVE PROCEDURE ACT, TO MAKE CHANGES IN VARIOUS LAWS GRANTING THE POWER TO ADOPT RULES, AND TO CLARIFY THE REQUIREMENTS CONCERNING CERTAIN REMOVALS OF UNDERGROUND STORAGE TANKS, AS RECOMMENDED BY THE ADMINISTRATIVE PROCEDURE OVERSIGHT COMMITTEE.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 150B-19 reads as rewritten:
"§ 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 or restricts the scope of a profession, occupation, or field of endeavor for which an occupational license is required.
(2a)	Sets qualifications for a job or position unless a law specifically authorizes the agency to do so.
(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.  A brief statement that informs the public of a requirement imposed by law does not violate this subdivision and satisfies the 'reasonably necessary' standard of review set in G.S. 150B-21.9(a)(3).
(5)	Establishes a fee or other 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."
Sec. 2.  G.S. 150B-20(e) is repealed.
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 earliest of the following dates:
(1)	The date specified in the rule.
(2)	The effective date of the permanent rule adopted to replace the temporary rule, if the Commission approves the permanent rule.
(3)	The date the Commission returns to an agency a permanent rule the agency adopted to replace the temporary rule.
(4)	The effective date of an act of the General Assembly that specifically disapproves a permanent rule adopted to replace the temporary rule.
(5)	270 days from the date the temporary rule was published in the North Carolina Register, unless the permanent rule adopted to replace the temporary rule has been submitted to the Commission."
Sec. 4.  G.S. 150B-21.1(e) reads as rewritten:
"(e)	Publication. – When the Codifier of Rules enters a temporary rule in the North Carolina Administrative Code, the Codifier must publish the rule in the North Carolina Register. Publication of a temporary rule in the North Carolina Register serves as a notice of rule-making proceedings for a permanent rule if the permanent rule is substantially the same as the published temporary rule, unless the agency published a notice of rule-making proceedings at least 60 days before it adopted the temporary rule."
Sec. 5.  G.S. 150B-21.2(e) reads as rewritten:
"(e)	Hearing. – An agency must hold a public hearing on a rule it proposes to adopt if the agency publishes the text of the proposed rule in the North Carolina Register and all the following apply:
(1)	The notice of text does not schedule a public hearing on the proposed rule.
(2)	The agency receives a written request for a public hearing on the proposed rule within 15 days after the notice of text is published.
(3)	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.
An agency may hold a public hearing on a proposed rule 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."
Sec. 6.  G.S. 150B-21.3 reads as rewritten:
"§ 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 on the earlier of the thirty-first legislative day or the day of adjournment of the next regular session of the General Assembly that begins at least 25 days after the date the Commission approved the rule, unless a different effective date applies under this section.  If a bill that specifically disapproves the rule is introduced in either house of the General Assembly before the thirty-first legislative day of that session, the rule becomes effective on the earlier of either the day an unfavorable final action is taken on the bill or the day that session of the General Assembly adjourns without ratifying a bill that specifically disapproves the rule.  If the agency adopting the rule specifies a later effective date than the date that would otherwise apply under this subsection, the later date applies. A permanent rule that is not approved by the Commission or that is specifically disapproved by a bill ratified by the General Assembly before it becomes effective does not become effective.
A bill specifically disapproves a rule if it contains a provision that refers to the rule by appropriate North Carolina Administrative Code citation and states that the rule is disapproved.  Notwithstanding any rule of either house of the General Assembly, any member of the General Assembly may introduce a bill during the first 30 legislative days of any regular session to disapprove a rule that has been approved by the Commission and that either has not become effective or has become effective by executive order under subsection (c)	of this section.
(c)	Executive Order Exception. – The Governor may, by executive order, make effective a permanent rule that has been approved by the Commission and has not become effective under subsection (b) of this section upon finding that it is necessary that the rule become effective in order to protect public health, safety, or welfare.  A rule made effective by executive order becomes effective on the date the order is issued or at a later date specified in the order.  When the Codifier of Rules enters in the North Carolina Administrative Code a rule made effective by executive order, the entry must reflect this action.
A rule that is made effective by executive order remains in effect unless it is specifically disapproved by the General Assembly in a bill ratified on or before the day of adjournment of the regular session of the General Assembly that begins at least 25 days after the date the executive order is issued.  A rule that is made effective by executive order and that is specifically disapproved by a bill ratified by the General Assembly is repealed as of the date specified in the bill.  If a rule that is made effective by executive order is not specifically disapproved by a bill ratified by the General Assembly within the time set by this subsection, the Codifier of Rules must note this in the North Carolina Administrative Code.
(d)	Legislative Day and Day of Adjournment. – As used in this section:
(1)	A 'legislative day' is a day on which either house of the General Assembly convenes in regular session.
(2)	The 'day of adjournment' of a regular session held in an odd-numbered year is the day the General Assembly adjourns by joint resolution for more than 10 days.
(3)	The 'day of adjournment' of a regular session held in an even-numbered year is the day the General Assembly adjourns sine die.
(e)	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.
(f)	Technical Change. – A permanent rule for which no notice or hearing is required under G.S. 150B-21.5(a) or (b) becomes effective on the first day of the month following the month the rule is approved by the Rules Review Commission."
Sec. 7.   G.S. 150B-2(2) reads as rewritten:
"(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 rulemaking, declaratory rulings, or the award or denial of a scholarship, a grant, or a loan."
Sec. 8.  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 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.
(d)	Return of Rule. – An agency may withdraw a permanent rule it submits to the Commission at any time while the rule is under review by the Commission.  An agency withdraws a permanent rule by making a written request to the Commission to return the rule to the agency."
Sec. 9.  G.S. 89C-3(6) reads as rewritten:
"(6)	Practice of engineering. – 
a.	Any service or creative work, the adequate performance of which requires engineering education, training, and experience, in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning, and design of engineering works and systems, planning the use of land and water, engineering surveys, and the observation of construction for the purposes of assuring compliance with drawings and specifications, including the consultation, investigation, evaluation, planning, and design for either private or public use, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects, and industrial or consumer products or equipment of a mechanical, electrical, hydraulic, pneumatic or thermal nature, insofar as they involve safeguarding life, health or property, and including such other professional services as may be necessary to the planning, progress and completion of any engineering services.
	A person shall be construed to practice or offer to practice engineering, within the meaning and intent of this Chapter, who practices any branch of the profession of engineering; or who, by verbal claim, sign, advertisement, letterhead, card, or in any other way represents himself to be a professional engineer, or through the use of some other title implies that he is a professional engineer or that he is registered under this Chapter; or who holds himself out as able to perform, or who does perform any engineering service or work not exempted by this Chapter, or any other service designated by the practitioner which is recognized as engineering.
b.	The term 'practice of engineering' shall not be construed to permit the location, description, establishment or reestablishment of property lines or descriptions of land boundaries for conveyance.  The term does not include the removal of an underground storage tank used to store a petroleum product when there is no discharge or release of the product from the tank."
Sec. 10.  G.S. 89E-3(4) reads as rewritten:
"(4)	'Geology' means the science dealing with the earth and its history; investigation, prediction and location of the materials and structures which compose it; the natural processes that cause change in the earth; and the applied science of utilizing knowledge of the earth and its constituent rocks, minerals, liquids, gases and other materials for the benefit of mankind. This definition shall not include any of the following:
a.	Service or creative works, the adequate performance of which requires engineering education, training, and experience.
b.	The removal of an underground storage tank used to store a petroleum product when there is no discharge or release of the product from the tank."
Sec. 11.  G.S. 89C-14(b) reads as rewritten:
"(b)	An applicant for registration who is required to take the written examination shall pay a fee equal to the cost of the examination to the Board plus an additional amount not to exceed one hundred dollars ($100.00).  The fee shall accompany the application. The fee for comity registration of engineers and land surveyors who hold unexpired certificates in another state or a territory of the United States or in Canada shall be the total current fee as fixed by the Board."
Sec. 12.  G.S. 131E-79(a) reads as rewritten:
"(a)	The Commission shall adopt rules necessary to implement this Article.  The rules may set qualifications and supervision requirements for licensed and unlicensed personnel."
Sec. 13.  G.S. 131E-104(a) reads as rewritten:
"(a)	The Commission is authorized to adopt, amend, and repeal all rules necessary for the implementation of this Part. The rules may set qualifications and supervision requirements for licensed and unlicensed personnel."
Sec. 14.  G.S. 131E-140(a) reads as rewritten:
"(a)	The Commission is authorized to adopt, amend, and repeal all rules necessary for the implementation of this Part.  The rules may set qualifications and supervision requirements for licensed and unlicensed personnel."
Sec. 15.  G.S. 131E-149(a) reads as rewritten:
"(a)	The Commission is authorized to adopt, amend, and repeal all rules necessary for the implementation of this Part. The rules may set qualifications and supervision requirements for licensed and unlicensed personnel.  These rules shall be no stricter than those issued by the Commission under G.S. 131E-79 of the Hospital Licensing Act."
Sec. 16.  G.S. 131E-154.4(a) reads as rewritten:
"(a)	The Commission shall adopt, amend, and repeal all rules necessary for the implementation of this Part.  These rules may set qualifications and supervision requirements for licensed and unlicensed personnel and shall include the following requirements:
(1)	The nursing pool shall document that each employee who provides care meets the minimum licensing, training, and continuing education standards for the position in which the employee will be working;
(2)	The nursing pool shall comply with all other pertinent regulations relating to the health and other qualifications of personnel;
(3)	The nursing pool shall carry general and professional liability insurance to insure against the loss, damage, or expense incident to a claim arising out of the death or injury of any person as the result of negligence or malpractice in the provision of health care services by the nursing pool or its employees;
(4)	The nursing pool shall have written administrative and personnel policies to govern the services that it provides.  These policies shall include those concerning patient care, personnel, training and orientation, supervision, employee evaluation, and organizational structure; and
(5)	Any other aspects of nursing pool services that may need to be regulated to protect the public."
Sec. 17.  G.S. 131E-169(a) reads as rewritten:
"(a)	The Department is authorized to adopt, amend, and repeal all rules as may be designed to further the accomplishment of this Article. The rules may set qualifications and supervision requirements for licensed and unlicensed personnel."
Sec. 18.  This act is effective upon ratification.