GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2019

 

SESSION LAW 2019-140

HOUSE BILL 590

 

 

AN ACT to amend various ADMINISTRATIVE procedure laws.

 

The General Assembly of North Carolina enacts:

 

PART I. AUTHORIZE RULE TECHNICAL CORRECTIONS

SECTION 1.(a)  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 or Register, 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:

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(4)        Change information that is readily available to the public, such as an address or address, email address, a telephone number.number, or a Web site.

(5)        Correct a typographical error in the North Carolina Administrative Code.typographical 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.

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(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.(b)  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:

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(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, email address, a telephone number, or a Web site.

(10)      Correct a typographical error.

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PART II. CLARIFY CONTESTED CASE POLICY

SECTION 2.(a)  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.(b)  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 a 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 obtaining judicial review of a final decision or order made pursuant to G.S. 150B‑34.

 

PART III. AMEND PERIODIC REVIEW OF RULES PROCESS

SECTION 3.(a)  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:

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(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, or objecting to an agency's determination of the rule as necessary or unnecessary, 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.

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(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:

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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.

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(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.Exclusions. – The Commission shall report annually to the Committee on any rules that do not expire pursuant to this subsection. The following rules shall not expire as provided in this section:

(1)        Rules adopted to conform to or implement federal law.

(2)        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.

(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.

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SECTION 3.(b)  This Part is effective when it becomes law and applies to agency rule reports submitted to the Office of Administrative Hearings pursuant to G.S. 150B‑21.3A(c)(1) on or after October 1, 2019.

 

PART IV. EFFECTIVE DATE

SECTION 4.  Except as otherwise provided, this act is effective when it becomes law.

In the General Assembly read three times and ratified this the 10th day of July, 2019.

 

 

                                                                    s/  Ralph E. Hise

                                                                         Presiding Officer of the Senate

 

 

                                                                    s/  Tim Moore

                                                                         Speaker of the House of Representatives

 

 

                                                                    s/  Roy Cooper

                                                                         Governor

 

 

Approved 1:42 p.m. this 19th day of July, 2019