A BILL TO BE ENTITLED
AN ACT to make technical and clarifying changes to the administrative procedure act.
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 when it finds that adherence to the notice and hearing requirements of G.S. 150B‑21.2 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 recent federal regulation.
(5)	A recent court order.
(6)	The need for a rule establishing review criteria as authorized by G.S. 131E‑183(b) to complement or be made consistent with the State Medical Facilities Plan approved by the Governor, if the rule addresses a matter included in the State Medical Facilities  Plan, and the proposed rule and a notice of public hearing is submitted to the Codifier of Rules prior to the effective date of the Plan.
(7)	The need for the Wildlife Resources Commission to establish any of the following:
a.	No wake zones.
b.	Hunting or fishing seasons.
c.	Hunting or fishing bag limits.
d.	Management of public game lands as defined in G.S. 113‑129(8a).
(8)	The need for the Secretary of State to implement the certification technology provisions of Article 11A of Chapter 66 of the General Statutes, to adopt uniform Statements of Policy that have been officially adopted by the North American Securities Administrators Association, Inc., for the purpose of promoting uniformity of state securities regulation, and to adopt rules governing the conduct of hearings pursuant to this Chapter.
(9)	The need for the Commissioner of Insurance to implement the provisions of G.S. 58‑2‑205.
(10)	The need for the Chief Information Officer to implement the information technology procurement provisions of Article 3D of Chapter 147 of the General Statutes.
(11)	The need for the State Board of Elections to 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:
a.	In accordance with the provisions of G.S. 163‑22.2.
b.	To implement any provisions of state or federal law for which the State Board of Elections has been authorized to adopt rules.
c.	The need for the rule to become effective immediately in order to preserve the integrity of upcoming elections and the elections process.
(12)	The need for an agency to 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:
a.	Repealed by Session Laws 2000‑148, s. 5, effective July 1, 2002.
b.	Repealed by Session Laws 2000‑69, s. 5, effective July 1, 2003.
(13)	(14)	Reserved.
(15)	The need for the Department of Health and Human Services to adopt temporary rules concerning the placement of individuals in facilities licensed under Article 2 of Chapter 122C of the General Statutes and the enrollment of providers of services to such individuals in the Medicaid program.
	(16)	(Expires July 1, 2005)  The need for the Department of Transportation to adopt temporary rules concerning logo signs pursuant to G.S. 136‑89.56. 			 
 
(a1)	A recent act, change, regulation, or order as used in subdivisions (2) through (5) of subsection (a) of this section means an act, change, regulation, or order occurring or made effective no more than 210 days prior to the submission of a temporary rule to the Rules Review Commission. Upon written request of the agency, the Commission may waive the 210‑day requirement upon consideration of the degree of public benefit, whether the agency had control over the circumstances that required the requested waiver, notice to and opposition by the public, the need for the waiver, and previous requests for waivers submitted by the agency.
(a2)	Unless otherwise provided by law, at least 30 business days prior to adopting a temporary rule, the agency shall:
(1)	Submit the rule and a notice of public hearing to the Codifier of Rules, and the Codifier of Rules shall publish the proposed temporary rule and the notice of public hearing on the Internet to be posted within five business days.
(2)	Notify persons on the mailing list maintained pursuant to G.S. 150B‑21.2(d) and any other interested parties of its intent to adopt a temporary rule and of the public hearing.
(3)	Accept written comments on the proposed temporary rule for at least 15 business days prior to adoption of the temporary rule.
(4)	Hold at least one public hearing on the proposed temporary rule no less than five days after the rule and notice have been published.
(a3)	An agency must also prepare a written statement of its findings of need for a temporary rule stating why adherence to the notice and hearing requirements in G.S. 150B‑21.2 would be contrary to the public interest and why the immediate adoption of the rule is required. If the temporary rule establishes a new fee or increases an existing fee, the agency shall include in the written statement that it has complied with the requirements of G.S. 12‑3.1. The statement must be signed by the head of the agency adopting 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 Rules Review Commission. Within 15 business days after receiving the proposed temporary rule, the Commission shall review the agency's written statement of findings of need for the rule and the rule to determine whether the statement meets the criteria listed in subsection (a) of this section and the rule meets the standards in G.S. 150B‑21.9. The Commission shall direct a member of its staff who is an attorney licensed to practice law in North Carolina to review the statement of findings of need and the rule. The staff member shall make a recommendation to the Commission, which must be approved by the Commission or its designee. The Commission's designee shall be a panel of at least three members of the Commission. In reviewing the statement, the Commission or its designee may consider any information submitted by the agency or another person. If the Commission or its designee finds that the statement meets the criteria listed in subsection (a) of this section and the rule meets the standards in G.S. 150B‑21.9, the Commission or its designee must approve the temporary rule and deliver the rule to the Codifier of Rules within two business days of approval. The Codifier of Rules must enter the rule into the North Carolina Administrative Code on the sixth business day following receipt from the Commission or its designee.
(b1)	If the Commission or its designee finds that the statement does not meet the criteria listed in subsection (a) of this section or that the rule does not meet the standards in G.S. 150B‑21.9, the Commission or its designee 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 Commission or its designee must review the additional findings or new statement within five business days after the agency submits the additional findings or new statement. If the Commission or its designee again finds that the statement does not meet the criteria listed in subsection (a) of this section or that the rule does not meet the standards in G.S. 150B‑21.9, the Commission or its designee must immediately notify the head of the agency and return the rule to the agency.
(b2)	If an agency decides not to provide additional findings or submit a new statement when notified by the Commission or its designee that the agency's findings of need for a rule do not meet the required criteria or that the rule does not meet the required standards, the agency must notify the Commission or its designee of its decision. The Commission or its designee shall then return the rule to the agency. When the Commission returns a rule to an agency in accordance with this subsection, the agency may file an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 of Chapter 1 of the General Statutes.
(b3)	Notwithstanding any other provision of this subsection, if the agency has not complied with the provisions of G.S. 12‑3.1, the Codifier of Rules shall not enter the rule into the Code.
(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) of this section and whether the rule meets the standards in G.S. 150B‑21.9. The court shall not grant an ex parte temporary restraining order.
(c1)	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 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.
(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."
SECTION 2.  G.S. 150B‑21.3(b) reads as rewritten:
"(b)	Permanent Rule. – A permanent rule approved by the Commission becomes effective on the first day of the month following the month the rule is approved by the Commission, unless the Commission received written objections to the rule in accordance with subsection (b2) of this  section, or unless the agency that adopted the rule specifies a later effective date."
SECTION 3.  G.S. 150B‑21.3(b2) reads as rewritten:
"(b2)	Objection. – Any person who objects to the adoption of a permanent rule may submit written comments to the agency. If the objection is not resolved prior to adoption of the rule, a person may submit written objections to the Commission. If the Commission receives written objections from 10 or more persons, no later than 5:00 P.M. of the day following the day the Commission approves the rule, clearly requesting review by the legislature in accordance with instructions contained in the notice pursuant to G.S. 150B‑21.2(c)(9), and the Commission approves the rule, the rule will become effective as provided in subsection (b1) of this section. The Commission shall notify the agency that the rule is subject to legislative disapproval on the day following the day it receives 10 or more written objections. When the requirements of this subsection have been met and a rule is subject to legislative disapproval, the agency may adopt the rule as a temporary rule if the rule would have met the criteria listed in G.S. 150B‑21.1(a) at the time the notice of text for the permanent rule was published in the North Carolina Register. If the Commission receives objections from 10 or more persons clearly requesting review by the legislature, and the rule objected to is one of a group of related rules adopted by the agency at the same time, the agency that adopted the rule may cause any of the other rules in the group to become effective as provided in subsection (b1) of this section by submitting a written statement to that effect to the Commission before the other rules become effective."
SECTION 4.  G.S. 150B‑33(b) is amended by adding the following subdivision to read:
"(12)	Except as provided in G.S. 150B‑36(d), accept a remanded case from an agency only when a claim for relief has been raised in the petition, and the decision of the administrative law judge makes no findings of fact or conclusions of law regarding the claim for relief, and the agency requests that the administrative law judge make findings of fact and conclusions of law as to the specific claim for relief. The administrative law judge may refuse to accept a remand if there is a sufficient record to allow the agency to make a final decision."
SECTION 5.  Section 4 of this act becomes effective October 1, 2004, and applies to contested cases commenced on or after that date. The remainder of this act is effective when it becomes law.