GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

S	1 

SENATE BILL 1299*

Short Title:  Codify Temp. Rule Exceptions.	(Public)

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Sponsors: Senator Hartsell.

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Referred to:  Judiciary I.

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May 18, 2000

A BILL TO BE ENTITLED
AN ACT TO IMPLEMENT A RECOMMENDATION OF THE JOINT LEGISLATIVE ADMINISTRATIVE PROCEDURE OVERSIGHT COMMITTEE TO CODIFY AND CROSS-REFERENCE PROVISIONS OF THE GENERAL STATUTES AND SESSION LAWS GRANTING TEMPORARY RULE-MAKING AUTHORITY TO VARIOUS AGENCIES.
The General Assembly of North Carolina enacts:
Section 1.  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.
(7)	The need for the Division of Medical Assistance, Department of Health and Human Services, to administer Medicaid estate recovery mandated by the Omnibus Budget Reconciliation Act of 1993, (OBRA 1993), 42 U.S.C. § 1396p(b), and G.S. 108-70.5.
(8)	A finding by the Department of Health and Human Services that rules are necessary to maximize receipt of federal funds, to reduce Medicaid expenditures, and to reduce fraud and abuse.
(9)	The provisions of G.S. 143-215.1B(c).
(10)	The provisions of G.S. 130A-125(b1).
(11)	The provisions of G.S. 108A-27(c).
(12)	The provisions of G.S. 143B-289.52(e).
(13)	The provisions of G.S. 113-291.2(a1), provided nothing contained in this subsection shall supersede the public notice requirements contained in G.S. 113-291.2(a1).
(14)	Until July 1, 2005, the Coastal Resources Commission, when adopting temporary rules governing coastal energy facilities.
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.
(a1)	Notwithstanding the provisions of subsection (a) of this section, the Wildlife Resources Commission may adopt a temporary rule after prior notice or hearing or upon any abbreviated notice or hearing the agency finds practical to protect the public health, safety, or welfare, conserve wildlife resources, or provide for the orderly and efficient operation of game lands by establishing any of the following:
(1)	No wake zones;
(2)	Hunting or fishing seasons;
(3)	Hunting or fishing bag limits;
(4)	Management of public game lands as defined in G.S. 113-129(8a).
When the Wildlife Resources Commission adopts a temporary rule pursuant to this subsection, it must submit the reference to this subsection as its statement of need to the Codifier of Rules.
(a2)	Notwithstanding the provisions of subsection (a) of this section, the Secretary of State may adopt temporary rules to implement the certification technology provisions of Article 11A of Chapter 66 of the General Statutes. After having the proposed temporary rule published in the North Carolina Register and at least 30 days prior to adopting a temporary rule pursuant to this subsection, the Secretary shall:
(1)	Notify persons on its mailing list maintained pursuant to G.S. 150B-21.2(d) and any other interested parties of its intent to adopt a temporary rule;
(2)	Accept oral and written comments on the proposed temporary rule; and
(3)	Hold at least one public hearing on the proposed temporary rule.
When the Secretary adopts a temporary rule pursuant to this subsection, the Secretary must submit a reference to this subsection as the Secretary's statement of need to the Codifier of Rules.
Notwithstanding any other provision of this Chapter, the Codifer of Rules shall publish in the North Carolina Register a proposed temporary rule received from the Secretary in accordance with this subsection.
(a3)	Notwithstanding the provisions of subsection (a) of this section, the Commissioner of Insurance may adopt a temporary rule to implement the provisions of G.S. 58-2-205 after prior notice or hearing or upon any abbreviated notice or hearing. When the Commissioner adopts a temporary rule pursuant to this subsection, the Commissioner must submit the reference to this subsection as the Commissioner's statement of need to the Codifier of Rules.
(a4)	Notwithstanding the provisions of subsection (a) of this section, the Secretary of Commerce may adopt temporary rules to implement the information technology procurement provisions of Part 16 of Article 10 of Chapter 143B of the General Statutes. After having the proposed temporary rule published in the North Carolina Register and at least 30 days prior to adopting a temporary rule pursuant to this subsection, the Secretary shall:
(1)	Notify persons on its mailing list maintained pursuant to G.S. 150B-21.2(d) and any other interested parties of its intent to adopt a temporary rule;
(2)	Accept oral and written comments on the proposed temporary rule; and
(3)	Hold at least one public hearing on the proposed temporary rule.
When the Secretary adopts a temporary rule pursuant to this subsection, the Secretary must submit a reference to this subsection as the Secretary's statement of need to the Codifier of Rules.
Notwithstanding any other provision of this Chapter, the Codifer of Rules shall publish in the North Carolina Register a proposed temporary rule received from the Secretary in accordance with this subsection.
(a5)	Notwithstanding the provisions of subsection (a) of this section, the State Board of Elections may adopt a temporary rule after prior notice or hearing or upon any abbreviated notice or hearing the agency finds practical for one or more of the following:
(1)	In accordance with the provisions of G.S. 163-22.2.
(2)	To implement any provisions of state or federal law for which the State Board of Elections has been authorized to adopt rules.
(3)	The need for the rule to become effective immediately in order to preserve the integrity of upcoming elections and the elections process.
When the State Board of Elections adopts a temporary rule pursuant to this subsection, it must submit the reference to this subsection as its statement of need to the Codifier of Rules.
(a6)	Notwithstanding the provisions of subsection (a) of this section and Section 8.6 of S.L. 1997-458, until July 1, 2001, the Environmental Management Commission may adopt temporary rules to protect water quality standards and uses as required to implement basinwide water quality management plans for the Cape Fear, Catawba, and Tar-Pamlico River Basins pursuant to G.S. 143-214.1, 143-214.7, 143-215.3, and 143B-282.  Prior to the adoption of a temporary rule under this subsection, the Commission shall:
(1)	Consult with persons who may be interested in the subject matter of the temporary rule during the development of the text of the proposed temporary rule.
(2)	Publish a notice of intent to adopt a temporary rule in the North Carolina Register.  The notice shall set out the text of the proposed temporary rule and include the name of the person to whom questions and written comment on the proposed rule may be submitted.  The Commission shall accept written comment on the proposed temporary rule for at least 30 days after the notice of intent to adopt the temporary rule is published in the North Carolina Register.
(3)	Hold a public hearing on the proposed temporary rule in the river basin to which the proposed temporary rule applies.
(a7)	Notwithstanding the provisions of subdivision (a)(2) of this section, an agency may adopt a temporary rule to implement the provisions of any of the following acts until all rules necessary to implement the provisions of the act have become effective as either temporary or permanent rules:
(1)	S.L. 1998-212, Section 9.1(e), relating to Driving Education Certificates.
(2)	S.L. 1997-400, Section 6.10, relating to the Fisheries Reform Act of 1997.
(3)	S.L. 1998-225, Section 5.3, relating to amendments to the Fisheries Reform Act of 1997.
(4)	S.L. 1997-507, Section 8, relating to Dropout Prevention/Drivers License.
(5)	S.L. 1999-463 ES, Section 4, relating to the Hurricane Floyd Recovery Act of 1999. Any agency that adopts a temporary rule pursuant to this subdivision shall report the text of the rule and the agency's written statement of its findings of the need for the rule to the Joint Legislative Administrative Procedure Oversight Committee within 30 days of the adoption of the temporary 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 the need for the 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) or (a1) of this section. 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)	or (a1) of this section, 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) or (a1) of this section and whether the rule meets the standards in G.S. 150B-21.9 that apply to review of a permanent rule. The court shall 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. Except as provided in subsection (d1) of this section, 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.
(d1)	Notwithstanding the provisions of subsection (d) of this section, the following expiration dates shall apply:
(1)	Temporary rules adopted to implement G.S. 143-215.94V, as enacted by Section 1 of Chapter 377 of the 1995 Session Laws, may remain in effect until the Environmental Management Commission adopts permanent rules, and
(2)	Temporary rules adopted to implement the Hurricane Floyd Recovery Act of 1999, (S.L. 1999-463 ES, Section 4) shall specify the date on which the rule will expire and shall continue in effect until that date.  
(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."
Section 2. This act is effective when it becomes law.