Bill Text: NC H162 | 2017-2018 | Regular Session | Amended
Bill Title: Amend Administrative Procedure Laws
Spectrum: Bipartisan Bill
Status: (Engrossed - Dead) 2017-08-03 - Re-ref Com On Rules, Calendar, and Operations of the House [H162 Detail]
Download: North_Carolina-2017-H162-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2017
H 1
HOUSE BILL 162
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Short Title: Amend Administrative Procedure Laws. |
(Public) |
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Sponsors: |
Representatives Jordan, Stevens, Hardister, and Floyd (Primary Sponsors). For a complete list of sponsors, refer to the North Carolina General Assembly web site. |
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Referred to: |
Judiciary III |
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February 23, 2017
A BILL TO BE ENTITLED
AN ACT to authorize agencies to make rule technical corrections without review by the rules review commission and to authorize the codifier of rules to make rule technical corrections, to CLARIFY THAT a pArTY May commence a contested case in a dispute with an agency WITHOUT PETITIONING the AGENCY for RULE MAKING OR obtaining A DECLARATORY RULING, and to revise the process for the review and readoption of existing rules, as recommended by the joint legislative administrative Procedure oversight committee.
The General Assembly of North Carolina enacts:
AUTHORIZE RULE TECHNICAL CORRECTIONS
SECTION 1.1. G.S. 150B‑21.5 reads as rewritten:
"§ 150B‑21.5. Circumstances when notice and rule‑making
hearing not required.required; circumstances when submission to the
Commission not required.
(a) Amendment. – An agency
is not required to publish a notice of text in the North Carolina Register
orRegister, hold a public hearing hearing, or submit the
amended rule to the Commission for review when it proposes to amend a rule
to do one of the following:
(1) Reletter or renumber the rule or subparts of the rule.
(2) Substitute one name for another when an organization or position is renamed.
(3) Correct a citation in the rule to another rule or law when the citation has become inaccurate since the rule was adopted because of the repeal or renumbering of the cited rule or law.
(4) Change information that
is readily available to the public, such as an address oraddress,
a telephone number.number, or a Web site.
(5) Correct a typographical error
in the North Carolina Administrative Code.error.
(6) Change a rule in response to a request or an
objection by the Commission, unless the Commission determines that the change
is substantial.
(a1) Response to Commission. – An agency is not required to publish a notice of text in the North Carolina Register or hold a public hearing when it proposes to change the rule in response to a request or an objection by the Commission, unless the Commission determines that the change is substantial.
(b) Repeal. – An agency is not required to publish a notice of text in the North Carolina Register or hold a public hearing when it proposes to repeal a rule as a result of any of the following:
(1) The law under which the rule was adopted is repealed.
(2) The law under which the rule was adopted or the rule itself is declared unconstitutional.
(3) The rule is declared to be in excess of the agency's statutory authority.
(c) OSHA Standard. – The Occupational Safety and Health Division of the Department of Labor is not required to publish a notice of text in the North Carolina Register or hold a public hearing when it proposes to adopt a rule that concerns an occupational safety and health standard and is identical to a federal regulation promulgated by the Secretary of the United States Department of Labor. The Occupational Safety and Health Division is not required to submit to the Commission for review a rule for which notice and hearing is not required under this subsection.
(d) State Building Code. – The Building Code Council is not required to publish a notice of text in the North Carolina Register when it proposes to adopt a rule that concerns the North Carolina State Building Code. The Building Code Council is required to publish a notice in the North Carolina Register when it proposes to adopt a rule that concerns the North Carolina State Building Code. The notice must include all of the following:
(1) 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 a rule on the subject matter of the proposed rule making.
(4) The person to whom questions or written comments may be submitted on the subject matter of the proposed rule making.
The Building Code Council is required to submit to the Commission for review a rule for which notice of text is not required under this subsection. In adopting a rule, the Council shall comply with the procedural requirements of G.S. 150B‑21.3.
(e) An agency that adopts or amends a rule pursuant to subsection (a) or (c) of this section shall notify the Codifier of Rules of its actions. When notified of an agency action taken pursuant to subsection (a) or (c) of this section, the Codifier of Rules shall make the appropriate change to the North Carolina Administrative Code."
SECTION 1.2. G.S. 150B‑21.20 reads as rewritten:
"§ 150B‑21.20. Codifier's authority to revise form
of rules.
(a) Authority. – After
consulting with the agency that adopted the rule, the Codifier of Rules may
revise the form of a rule submitted for inclusion in the North Carolina
Administrative Code a rule to do one or more of the following:
(1) Rearrange the order of the rule in the Code or the order of the subsections, subdivisions, or other subparts of the rule.
(2) Provide a catch line or heading for the rule or revise the catch line or heading of the rule.
(3) Reletter or renumber the rule or the subparts of the rule in accordance with a uniform system.
(4) Rearrange definitions and lists.
(5) Make other changes in arrangement or in form that do not change the substance of the rule and are necessary or desirable for a clear and orderly arrangement of the rule.
(6) Omit from the published rule a map, a diagram, an illustration, a chart, or other graphic material, if the Codifier of Rules determines that the Office of Administrative Hearings does not have the capability to publish the material or that publication of the material is not practicable. When the Codifier of Rules omits graphic material from the published rule, the Codifier must insert a reference to the omitted material and information on how to obtain a copy of the omitted material.
(7) Substitute one name for another when an organization or position is renamed.
(8) Correct a citation in the rule to another rule or law when the citation has become inaccurate since the rule was adopted because of the repeal or renumbering of the cited rule or law.
(9) Change information that is readily available to the public, such as an address, a telephone number, or a Web site.
(10) Correct a typographical error.
(b) Effect. – Revision of a rule by the Codifier of Rules under this section does not affect the effective date of the rule or require the agency to readopt or resubmit the rule. When the Codifier of Rules revises the form of a rule, the Codifier of Rules must send the agency that adopted the rule a copy of the revised rule. The revised rule is the official rule, unless the rule was revised under subdivision (a)(6) of this section to omit graphic material. When a rule is revised under that subdivision, the official rule is the published text of the rule plus the graphic material that was not published."
CLARIFY CONTESTED CASE POLICY
SECTION 2.1. G.S. 150B‑22 reads as rewritten:
"§ 150B‑22. Settlement; contested case.
(a) It is the policy of this State that any 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, should be settled through informal procedures. In trying to reach a settlement through informal procedures, the agency may not conduct a proceeding at which sworn testimony is taken and witnesses may be cross‑examined.
(b) If the agency and the other person do not agree to a resolution of the dispute through informal procedures, either the agency or the person may commence an administrative proceeding to determine the person's rights, duties, or privileges, at which time the dispute becomes a "contested case." A party or person aggrieved shall not be required to petition an agency for rule making or to seek or obtain a declaratory ruling before commencing a contested case pursuant to G.S. 150B‑23."
SECTION 2.2. G.S. 150B‑43 reads as rewritten:
"§ 150B‑43. Right to judicial review.
Any party or person aggrieved by
the final decision in a contested case, and who has exhausted all
administrative remedies made available to the party or person aggrieved by
statute or agency rule, is entitled to judicial review of the decision under
this Article, unless adequate procedure for judicial review is provided by
another statute, in which case the review shall be under such other statute.
Nothing in this Chapter shall prevent any party or person aggrieved from
invoking any judicial remedy available to the party or person aggrieved under
the law to test the validity of any administrative action not made reviewable
under this Article. Absent a specific statutory requirement, nothing in this
Chapter shall require aA party or person aggrieved shall not be
required to petition an agency for rule making or to seek or obtain a
declaratory ruling before obtaining judicial review of a final decision or
order made pursuant to G.S. 150B‑34."
AMEND PERIODIC REVIEW OF RULES PROCESS
SECTION 3. G.S. 150B‑21.3A reads as rewritten:
"§ 150B‑21.3A. Periodic review and expiration of existing rules.
(a) Definitions. – For purposes of this section, the following definitions apply:
(1) Commission. – Means the Rules Review Commission.
(2) Committee. – Means the Joint Legislative Administrative Procedure Oversight Committee.
(2a) Necessary rule. – Means any rule other than an unnecessary rule.
(3) Necessary with substantive public interest. –
Means any rule for which the agency has received public comments within the
past two years. A rule is also "necessary with substantive public
interest" if the rule affects the property interest of the regulated
public and the agency knows or suspects that any person may object to the rule.
(4) Necessary without substantive public interest. –
Means a rule for which the agency has not received a public comment concerning
the rule within the past two years. A "necessary without substantive
public interest" rule includes a rule that merely identifies information
that is readily available to the public, such as an address or a telephone
number.
(5) Public comment. – Means written comments objecting to the rule, in whole or in part, received by an agency from any member of the public, including an association or other organization representing the regulated community or other members of the public.
(6) Unnecessary rule. – Means a rule that the agency determines to be obsolete, redundant, or otherwise not needed.
(b) Automatic Expiration. – Except as provided in subsection (e) of this section, any rule for which the agency that adopted the rule has not conducted a review in accordance with this section shall expire on the date set in the schedule established by the Commission pursuant to subsection (d) of this section.
(c) Review Process. – Each agency subject to this Article shall conduct a review of the agency's existing rules at least once every 10 years in accordance with the following process:
(1) Step 1: The agency shall
conduct an analysis of each existing rule and make an initial determination as
to whether the rule is (i) necessary with substantive public interest, (ii)
necessary without substantive public interest, or (iii)necessary or
unnecessary. The agency shall then post the results of the initial
determination on its Web site and invite the public to comment on the rules and
the agency's initial determination. The agency shall also submit the results of
the initial determination to the Office of Administrative Hearings for posting
on its Web site. The agency shall accept public comment for no less than 60
days following the posting. The agency shall review the public comments and
prepare a brief response addressing the merits of each comment. After
completing this process, the agency shall submit a report to the Commission.
The report shall include the following items:
a. The agency's initial determination.
b. All public comments received in response to the agency's initial determination.
c. The agency's response to the public comments.
(2) Step 2: The Commission
shall review the reports received from the agencies pursuant to subdivision (1)
of this subsection. If a public comment relates to a rule that the agency
determined to be necessary and without substantive public interest or unnecessary,
the Commission shall determine whether the public comment has merit and, if so,
designate the rule as necessary with substantive public interest.necessary.
For purposes of this subsection, a public comment has merit if it addresses the
specific substance of the rule and relates to any of the standards for
review by the Commission set forth in G.S. 150B‑21.9(a).rule.
The Commission shall prepare a final determination report and submit the report
to the Committee for consultation in accordance with subdivision (3) of this
subsection. The report shall include the following items:
a. The agency's initial determination.
b. All public comments received in response to the agency's initial determination.
c. The agency's response to the public comments.
d. A summary of the Commission's determinations regarding public comments.
e. A determination that all rules that the agency
determined to be necessary and without substantive public interest and for
which no public comment was received or for which the Commission determined
that the public comment was without merit be allowed to remain in effect
without further action.
f. A determination that all rules that the agency determined to be unnecessary and for which no public comment was received or for which the Commission determined that the public comment was without merit shall expire on the first day of the month following the date the report becomes effective in accordance with this section.
g. A determination that all rules
that the agency determined to be necessary with substantive public interest
or that the Commission designated as necessary with public interest as
provided in this subdivision shall be readopted as though the rules were
new rules in accordance with this Article.
(3) Step 3: The final
determination report shall not become effective until the agency has consulted
with the Committee. The determinations contained in the report pursuant to sub‑subdivisions
e., f., f. and g. of subdivision (2) of this subsection shall
become effective on the date the report is reviewed by the Committee. If the
Committee does not hold a meeting to hear the consultation required by this
subdivision within 60 days of receipt of the final determination report, the
consultation requirement is deemed satisfied, and the determinations contained
in the report become effective on the 61st day following the date the Committee
received the report. If the Committee disagrees with a determination regarding
a specific rule contained in the report, the Committee may recommend that the
General Assembly direct the agency to conduct a review of the specific rule in
accordance with this section in the next year following the consultation.
(d) Timetable. – The Commission shall establish a schedule for the review and readoption of existing rules in accordance with this section on a decennial basis as follows:
(1) With regard to the review
process, the Commission shall assign each Title of the Administrative Code a
date by which the review required by this section must be completed. In
establishing the schedule, the Commission shall consider the scope and complexity
of rules subject to this section and the resources required to conduct the
review required by this section. The Commission shall have broad authority to
modify the schedule and extend the time for review in appropriate
circumstances. Except as provided in subsections (e) and (e), (e1),
and (f) of this section, if the agency fails to conduct the review by the
date set by the Commission, the rules contained in that Title which have not
been reviewed will expire. The Commission shall report to the Committee any
agency that fails to conduct the review. The Commission may exempt rules that
have been adopted or amended within the previous 10 years from the review
required by this section. However, any rule exempted on this basis must be
reviewed in accordance with this section no more than 10 years following the
last time the rule was amended.
(2) With regard to the readoption of rules as required by sub‑subdivision (c)(2)g. of this section, once the final determination report becomes effective, the Commission shall establish a date by which the agency must readopt the rules. The Commission shall consult with the agency and shall consider the agency's rule‑making priorities in establishing the readoption date. The agency may amend a rule as part of the readoption process. If a rule is readopted without substantive change or if the rule is amended to impose a less stringent burden on regulated persons, the agency is not required to prepare a fiscal note as provided by G.S. 150B‑21.4.
(e) Rules to Conform to or Implement Federal Law. – Rules adopted to conform to or implement federal law shall not expire as provided by this section. The Commission shall report annually to the Committee on any rules that do not expire pursuant to this subsection.
(e1) Rules to Protect Inchoate or Accrued Rights of Retirement Systems Members. – Rules deemed by the Boards of Trustees established under G.S. 128‑28 and G.S. 135‑6 to protect inchoate or accrued rights of members of the Retirement Systems administered by the State Treasurer shall not expire as provided by this section. The Commission shall report annually to the Committee on any rules that do not expire pursuant to this subsection.
(f) Other Reviews. – Notwithstanding any provision of this section, an agency may subject a rule that it determines to be unnecessary to review under this section at any time by notifying the Commission that it wishes to be placed on the schedule for the current year. The Commission may also subject a rule to review under this section at any time by notifying the agency that the rule has been placed on the schedule for the current year."
EFFECTIVE DATE
SECTION 4. This act is effective when it becomes law. Section 3 of this act applies to agency rule reports submitted to the Office of Administrative Hearings pursuant to G.S. 150B‑21.3A(c)(1) on or after May 1, 2017.
