House committee substitute, reported in on 6/3/11, makes the following changes to 2nd edition.
Amends proposed GS 64-11(d), which sets the penalty for knowingly submitting false certification to a public entity, to make it a Class 1 misdemeanor (was, Class I felony) for contractors to knowingly submit false certification. Makes a conforming change to proposed GS 64-12(c), which sets the penalty for subcontractors. Requires the subcontractor to certify two specified issues to the contractor before commencing performance under a subcontract (was, required certification within seven days of first furnishing construction or repair work, or other products). Makes other clarifying changes.
Enacts new Article 3, Verification of Work Authorization, to GS Chapter 64, requiring each employer in the state to register and participate in E-Verify to verify the work authorization of new employees. Includes definitions for terms applicable in the new Article. Directs each employer to retain the work authorization record while the employee is employed and for one year thereafter. Exempts entities that employ seasonal temporary employees for 90 or fewer days during a 12-consecutive-month period. Directs the Attorney General to prepare a complaint form, which must state that completed forms be sent to the Attorney General or the district attorney. States that the complainant is not required to list his or her Social Security number or have the form notarized. Authorizes any person with a good faith belief that an employer is violating the E-Verify requirement to file a complaint, as detailed. Makes a person who knowingly files a false and frivolous complaint guilty of a Class 1 misdemeanor. Sets out the procedure for the Attorney General or district attorney to follow to investigate complaints, including the issuance of subpoenas. Lists four actions for the Attorney General or district attorney to take after determining that a complaint is not false and frivolous. Directs the court to order an employer to file an affidavit stating that the employer requested authorization through E-Verify; requires the employer to pay a civil penalty of $10,000 upon failure to timely file an affidavit. Sets out the penalties for second and subsequent violations. Requires the Attorney General to maintain copies of specified court orders and maintain a database of the employers and business locations with violations on the Attorney General's website. Directs the Attorney General or district attorney, when investigating a complaint, to verify the work authorization of the alleged unauthorized alien with the federal government. Directs a court to consider only the federal government's determination when considering whether an employee is unauthorized. Specifies that proof that an employer's work authorization was verified through E-Verify creates a rebuttable presumption that an employer did not violate the E-Verify requirement. Provides that an employer establishing compliance in good faith with specified federal law establishes an affirmative defense. Prohibits proposed Article 3 from being construed to require an employer to take action that the employer believes in good faith would violate federal or state law.
Amends GS 126-7.1(f), requiring each state agency, department, institution, university, community college, and local education agency to register and participate in E-Verify to verify the work authorization of new employees (currently, must verify in accordance with the Basic Pilot Program administered by the U.S. Department of Homeland Security).
Makes other clarifying changes and makes a conforming change to the bill title. Clarifies that the act becomes effective according to the following schedule, and applies to all bids submitted and all contracts entered into on or after that date: (1) January 1, 2012, for contractors, subcontractors, and employers that employ 500 or more employees in the state as of that date; (2) July 1, 2012, for contractors, subcontractors, and employers that employ between 100 and 500 employees; and (3) January 1, 2013, for contractors, subcontractors, and employers that employ between 25 and 100 employees.
The Daily Bulletin: 2011-06-06
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The Daily Bulletin: 2011-06-06
| Intro. by H. Warren, Cleveland. |
House committee substitute makes the following changes to 2nd edition. Amends proposed GS 44A-24.3 to clarify under what circumstances a broker will have a lien upon commercial real estate. Provides that a lien under the statute is available only against the commercial real estate which is the subject of the written agreement for broker services. Provides lien process when payment of commission to a broker is due in installments, a portion of which is due only after the conveyance or transfer of the commercial real estate.
Amends proposed GS 44A-24.4 to clarify when a lien attaches to commercial real estate and provides when notice is timely. Requires that filing for the lien occur in the office of the clerk of superior court (previously register of deeds).
Amends proposed GS 44-24.7 to require the lien claimant file proof of service with the clerk of superior court. Makes similar change to proposed GS 44A-24.10. Amends GS 44-24.8 to require a lien claimant to commence proceedings within 18 months after filing the lien, and failure to do so will extinguish the lien. If the claim is based upon an option to purchase the commercial real estate, the lien claimant must commence proceedings within one year of the option to purchase being exercised. Provides that a lender must not be made a party to any suit to enforce a lien unless the lender willfully or intentionally caused the nonpayment of the commission giving rise to the lien. Amends proposed GS 44A-24.11, requiring the claimant to acknowledge satisfaction or release of the lien in writing upon written demand within 30 days (was, within 60 days).
Deletes proposed GS 44A-24.13, concerning the use of escrow accounts. Enacts new 44A-24.13 providing for, and detailing instances for discharge of a lien on commercial real estate.
Enacts new GS 44A-24.14 to provide that any claim of lien on real property or funds, as described in this act, are superior in all respects to other liens filed under new Part 4, regardless of the effective date of the competing liens, and survive any judgment awarding a lien under Part 4. Provides that no claimant filing a lien pursuant to Part 4 will be entitled to participate in any pro rata distributions to claimants proceeding under GS 44A-21.
Enacts new GS 93A-13 requiring that contracts for broker’s services be in writing and signed by the party to be charged in order to bring a claim for recovery under a broker services agreement.
Makes other organizational, technical, conforming, and clarifying changes. Clarifies that the act is effective October 1, 2011, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.
| Intro. by McCormick, Gibson, Daughtry. |
Senate committee substitute makes the following changes to 2nd edition.
Amends GS 20-101(b) to clarify that a motor vehicle with a weight rating over 26,000 pounds (was, over 10,000 pounds) used in intrastate commerce must have (1) the name of the owner and (2) the motor carrier's identification number preceded by 'USDOT' and followed by 'NC' printed on each side of the vehicle in letters at least three inches tall, unless the motor vehicle is subject to federal motor carrier safety regulations (clarifies previous provision). Applies to offenses committed on or after December 1, 2012 (was, December 1, 2011), provided a motor vehicle operator will only be given a warning for a violation between December 1, 2012, and November 30, 2013.
| Intro. by McComas. | GS 20 |
House committee substitute makes the following changes to 1st edition.
Amends proposed GS 84-5(c) to add nonprofit corporations operating as labor organizations to those entities permitted to provide legal services to members solely by and through attorneys licensed to practice law in North Carolina. Specifies that attorneys providing such legal services are governed by and subject to the Rules of Professional Conduct of the NC State Bar. Requires any association providing legal services to first provide the member of the organization a written policy including specified items. Makes a conforming change to the bill title.
| Intro. by Torbett. |
House amendment makes the following changes to 1st edition, as amended. Enacts new subsection (j) to proposed GS 93B-15.1, stating that the NC Medical Board is not considered an occupational licensing board for the purposes of the statute. Also directs the Legislative Research Commission to study allowing licensure by the NC Medical Board for individuals with military training and experience, for military spouses by endorsement, and for temporary licenses for military-trained applicants or military-spouse applicants, and to report to the 2012 General Assembly when it convenes.
| Intro. by Martin, Killian. |
The Daily Bulletin: 2011-06-06
Senate committee substitute makes the following changes to 1st edition. Amends GS 143-215.3(a), which grants the North Carolina Environmental Review Commission (Commission), in part, the power to adopt rules for the prevention of pollution from underground tanks containing petroleum, petroleum products, or hazardous substances. Directs that the rules adopted under the statute may not incorporate standards and restrictions which exceed or are more comprehensive than comparable federal regulations. Grants the Commission the power to adopt rules pertaining to the discharge or release of petroleum, from any source, which provide for risk-based assessment and cleanup.
Amends GS 143-215.94B(b) to include the cost of a site investigation by the Department of Environment and Natural Resources (DENR) for the purpose of determining whether a release from a tank system occurred, whether or not the investigation confirms that a release has occurred, as a Commercial Fund expense.
Amends GS 143-215.94B(b1) to include additional criteria for use when calculating the multiple discharge amount. Applies to discharges or releases discovered or reported on or after January 1, 2009.
Amends GS 143-215.94B by adding a new subsection providing that in the event a discharge or release of petroleum from an underground storage tank results in contamination in soil or groundwater that becomes commingled with contamination that is the result of a discharge or release of petroleum from another source, the Commercial Fund may be used to reimburse applicable persons for cleanup.
Amends GS 143-215.94B(d) to provide that the Commercial Fund may not be used for costs incurred as a result of a discharge or release from an aboveground tank, aboveground pipe or fitting not connected to an underground storage tank, or vehicle, unless the discharge or release becomes commingled with contamination from an underground storage tank. Makes similar change to GS 143-215.94D(d), which concerns the Noncommercial Fund.
Amends GS 143-215.94B to add new subsection directing DENR to use up to $1 million of the funds in the Commercial Fund, each fiscal year, to clean up discharges or releases when a responsible party demonstrates it would be a severe financial hardship and for such party to do so. Directs the Commission to adopt rules defining severe financial hardship, establish a process for evaluation and determinations of eligibility with respect to applications for assistance due to severe financial hardships.
Amends GS 143-215.94C by creating a new subsection to provide that payment of a fee is not required for a compartment of a commercial underground storage tank that has not contained a petroleum product at any point during the applicable calendar year. Amends GS 143-215.94C(b) to provide that the annual operating fee is due and payable in equal installments on a quarterly basis on the first day of the month of each quarter in accordance with a staggered schedule established by DENR in order that the total amount of fees collected by DENR is about the same each quarter.
Amends GS 143-215.94T to specify that the statute is not to be construed to limit the right of an owner or operator to repair any existing component of an underground storage tank system. Provides that if an existing tank or piping is replaced, the secondary containment and interstitial monitoring requirements apply only to the replaced tank or piping. Creates new subsection directing DENR to allow non-tank unprotected metallic components that are visible or accessible for visual inspections to have corrosion protection added as an alternative to replacement, if the component does not have visible corrosion and passes a tightness test.
Provides that all UST systems installed after January 1, 1991, are not required to provide secondary containment until January 1, 2020. Directs the Commission to establish a process for the grant of variances from the setbacks required for UST systems from certain public water supply wells if the Commission finds facts to demonstrate that such variance will not endanger human health and welfare or groundwater. Requires that, no later than January 1, 2012, the Environmental Management Commission must adopt rules consistent with the above provisions.
Deletes previous amendments to GS 143-215.94V(b). Amends GS 143-215.94V(b) to direct the Commission to adopt rules to establish a risk-based approach for the assessment, prioritization, and cleanup of discharges and releases of petroleum (previously limited to releases from petroleum underground storage tanks). Adds additional language stating that rules that use the distance between a source area of a confirmed discharge or release to a water supply well or private drinking well, as defined, must include a determination of whether a nearby well is likely to be affected by the discharge or release as a factor in determining levels of risk. Amends GS 143-215.94V(h) to delete the provision prohibiting DENR from paying or reimbursing any costs associated with the assessment or remediation of the portion of contamination that results from a release or discharge of petroleum from a source other than an underground storage tank from either the Commercial Fund or Noncommercial Fund.
Provides that DENR must not prohibit the use of tanks that are constructed of steel and cathodically protected as provided under federal law (40 CFR §280.20(a)(2)) in order to meet external corrosion protection standards of that rule. Directs the Environmental Management Commission to adopt rules to carry out this provision no later than January 1, 2012. Appears to make amendments to GS 143-215.94V applicable to discharges or releases reported on or before January 2, 1998. Unless otherwise indicated, effective when the act becomes law, and applies to assessments initiated on or after that date.
Changes title to AN ACT TO MAKE VARIOUS CHANGES TO THE LAWS GOVERNING THE STATE’S UNDERGROUND STORAGE TANK PROGRAM AND PETROLEUM DISCHARGES.
| Intro. by East. |
Senate amendment makes the following changes to 2nd edition.
Deletes proposed subdivision (43) to GS 20-305, which made it unlawful for any manufacturer, factory branch, distributor, or distributor branch to require, coerce, or attempt to coerce any new motor vehicle dealer to change location of the dealership or to make any substantial alterations, if the dealer changed location of the dealership premises or facilities within the preceding seven years at a cost of over $500,000 upon the written request of the manufacturer, factory branch, distributor, or distributor branch. Makes conforming changes.
| Intro. by Apodaca. |
Senate committee substitute makes the following changes to 1st edition. Rewrites proposed GS 108C-2 to include adverse determination, managing employee, and owner and/or operator as defined terms. Removes Affordable Care Act and payment suspension as defined terms, and makes other clarifying changes. Amends proposed GS 108C-3(c) by removing Transplants and Transplant-related services and vision providers from the list of limited risk provider types. Amends GS 108C-3(e) to remove from the moderate risk category the following providers: 1) revalidating agencies providing behavioral health services and 2) revalidating agencies providing HIV case management. Makes other clarifying and technical changes. Removes proposed provisions GS 108C-3(k)-(n), relating to Department of Health and Human Services’ (DHHS) verification and confirmation of provider licensure, revalidation of licensure, and inspection of providers. Directs DHHS to return the provider to the original risk category not later than 12 months after completion of the provider repayment.
Amends proposed GS 108C-4 to remove the definition provisions. Removes several provisions related to criminal history checks, except that DHHS must conduct criminal history record checks of provider applicants and enrolled providers in accordance with federal law and regulation. Provides that DHHS must honor civil and criminal settlement agreements entered into with a provider or any person with a 5% or greater direct or indirect ownership interest in the provider within 10 years of the effective date of the act.
Amends GS 108C-5 to detail reasons DHHS may suspend payment to providers, suspension procedures, and audit procedures. Effective when the act becomes law, and applies to audits instituted on or after that date and to final overpayments, assessments, or fines due on or after that date.
Deletes all provisions of proposed GS 108C-6 and replaces them with a new GS 108C-6 providing that DHHS may establish a registry of billing agents, clearinghouses, and/or alternate payees that submit claims on behalf of providers and to charge a fee to recover the costs of maintaining the registry in accordance with federal law and implementing regulations. Provides procedure for registration. Effective January 1, 2012.
Enacts new GS 108C-7 providing a provider may be required to undergo prepayment claims review by DHHS. Details the procedure for prepayment claims review.
Enacts new GS 108C-8 providing that, absent specified circumstances, DHHS is not to pursue recovery of Medicaid or Health Choice overpayments owed to the state for any total amount less than $150.
Enacts new GS 108C-9 detailing the application procedure for provider enrollment in North Carolina Medicaid or North Carolina Health Choice.
Enacts new GS 108C-10 providing that a provider must notify DHHS at least 30 calendar days prior to the effective date of any change of ownership. Details the instances that constitute a change of ownership under the act. Provides that assigned Medicaid administrative participation or enrollment agreements are subject to all applicable statutes, regulations, and the terms and conditions under which they were originally issued. Prohibits DHHS from requiring a provider to accept an assigned Medicaid administrative participation or enrollment agreement upon change in ownership as a condition of enrollment.
Enacts new GS 108C-11 to require a provider cooperate with all activities, announced or unannounced, conducted by DHHS. Directs DHHS to make attempts to examine documentation without interfering with the clinical activities of the provider while conducting activities on the provider’s premises.
Enacts new GS 108C-12 detailing the appeals process for a Medicaid provider or applicant to appeal an adverse determination made by DHHS.
Rewrites GS 150B-1(d)(9) to provide that DHHS is exempt from the rule making procedures under the Article when adopting new or amending existing medical coverage policies under the State Medicaid Program pursuant to GS 108A-54.2. Rewrites GS 150B-(1)(e) to remove the exemption from the contested case provisions of the following: (1) Medicaid providers appealing a denial or reduction in reimbursement for community support services and (2) community support services providers appealing decisions by the LME to deny or withdraw the provider’s endorsement.
Makes other clarifying and organizational changes. Deletes provisions authorizing the Division of Medical Assistance and other entities to study the criminal history record and other employment background checks among all providers and health care licensing boards. Unless otherwise noted, act is effective when it becomes law. Changes title to AN ACT RELATING TO REQUIREMENTS OF MEDICAID AND HEALTH CHOICE PROVIDERS.
| Intro. by Pate. |
Senate committee substitute makes the following changes to 1st edition. Deletes the provisions of the 1st edition and replaces it with AN ACT TO PROMOTE EFFICIENCY AND EFFECTIVENESS IN THE PUBLIC HEALTH SYSTEM BY ESTABLISHING A PUBLIC HEALTH IMPROVEMENT INCENTIVE PROGRAM, STRENGTHENING LOCAL PUBLIC HEALTH INFRASTRUCTURE, AND ASSURING THE PROVISION OF THE TEN ESSENTIAL PUBLIC HEALTH SERVICES.
Enacts new GS 130A-34.2, directing the Department of Health and Human Services (DHHS) to establish a Public Health Improvement Incentive Program (Program). Directs the Program to provide monetary incentives for the creation and expansion of multi-county local health departments serving a population of no less than 100,000. Requires the Commission to adopt rules to implement the Program.
Specifies that certain criteria must be met by (1) a local health department and (2) the county or counties comprising the local health department, by July 1, 2014, in order for a local health department to be eligible to receive state and federal public health funding from the Division of Public Health. This required criteria is in addition to any other funding criteria established by state or federal law. Permits the State Health Director to grant exceptions to the population requirements specified in the criteria of proposed GS 130A-34.3(a)(1)b.
Amends GS 130A-1.1(b) to require that a local health department ensure that the identified ten essential public health services are available and accessible to the population in each county served by that local health department (was, listed essential public health services categories and directed the Commission for Public Health to determine specific services to be provided under each of the categories).
Directs DHHS to allocate $5 million from appropriated funds to the Division of Public Health to provide incentives to local health departments through the Program. Effective July 1, 2011.
Directs the Program Evaluation Division of the General Assembly to study the feasibility of transferring all functions, powers, duties, and obligations vested in the Division of Public Health in DHHS to the University of North Carolina Healthcare System. Directs the Program Evaluation Division to submit its findings and recommendations from the study to the Joint Legislative Program Evaluation Oversight Committee and the Joint Legislative Oversight Committee on Health and Human Services no later than February 1, 2012.
Effective when the act becomes law, except as otherwise indicated.
| Intro. by Hartsell. |
Senate committee substitute makes the following changes to 1st edition.
Deletes provisions creating and providing for the Joint Legislative Study Commission on State Leased Space and instead directs the Program Evaluation Division (Division) of the General Assembly to study the same matters related to the leasing of property by state agencies, as well as any other matters the Division deems relevant. Directs the Division to report findings and recommendations to specified entities at a date to be determined. Deletes appropriation to the General Assembly. Makes conforming changes to the bill title. Changes effective date to July 1, 2012 (was, July 1, 2011).
| Intro. by Daniel. |
Senate committee substitute makes the following changes to 1st edition.
Authorizes the Legislative Research Commission (previous edition directed the Commission) to solicit input from interested parties during the study.
| Intro. by Atwater. |
Identical to H 933, filed 6/6/11.
Scope and effect. Current law provides that Article 2A of GS Chapter 150B applies to an agency's exercise of its authority to adopt a rule. Amends GS 150B-18 to clarify that an agency is prohibited from seeking to implement or enforce a policy, guideline, or other nonbinding interpretive statement that has not been adopted as a rule in accordance with Article 2A of GS Chapter 150B.
Requirements for agencies in the rule-making process. (Effective October 1, 2011). Enacts new GS 150B-19.1 directing agencies to adhere to the following principles in developing and drafting rules for adoption in accordance with Article 2A of GS Chapter 150B (Article 2A): (1) agencies may only adopt rules expressly authorized by federal or state law and that are necessary to serve the public interest; (2) requires an agency to seek to reduce the burden on those persons or entities who must comply with the rule; (3) directs that rules be written in a clear and unambiguous manner and be reasonably necessary to implement or interpret federal or state law; (4) requires an agency to consider the cumulative effect of all rules adopted by that agency. Prohibits an agency from adopting a rule that is unnecessary or redundant; (5) provides that when appropriate, rules are to be based on sound, reasonably available scientific, technical, economic, and other relevant information and include a reference to this information in the notice of text required by GS 150B-21.2(c); and (6) requires rules to be designed to achieve the regulatory objective in a cost-effective and timely manner.
Directs each agency subject to Article 2A to conduct an annual review of its rules to identify any rules that are unnecessary, unduly burdensome, or inconsistent with the specified rule making principles and to repeal any rule identified by this review.
Requires each agency subject to Article 2A to post the following information on its website, to maintain the information in a searchable database, and to periodically update this online information: (1) the text of a proposed rule, (2) an explanation of and reason for the proposed rule, (3) the required federal certification, (4) instructions on how and where to make oral or written comments on the proposed rule, and (5) any fiscal note for the proposed rule. Imposes additional requirements regarding evaluating the fiscal impact of a proposed rule. Provides that if a proposed rule has a substantial economic impact as defined in GS 150B-21.4(b1), the proposing agency must consider at least two alternatives to the proposed rule. Requires that an agency prepare and post on the agency website a certification identifying a federal law requiring the adoption of a proposed rule whenever an agency proposes a rule that is identified as implementing a federal law or required under federal law (was codified as GS 150B-21(f) except directed the rule-making coordinator to prepare the certification). Repeals GS 150B-21(f).
Review of existing rules. (Effective October 1, 2011). Establishes the Rules Modification and Improvement Program, under the coordination and oversight of the Office of State Budget and Management (OSBM), to conduct an annual review of existing rules. Specifies the responsibilities of the OSBM in providing the opportunity for public comment on existing rules. Requires the OSBM to direct each agency to engage in an internal review of its rules as required by GS 150B-19.1(b) and to submit its report to OSBM. Specifies the responsibilities of each agency in reviewing and taking appropriate action based on public comment. Includes annual reporting requirements for agencies and the OSBM. Requires the OSBM to establish a single Web portal dedicated to receiving public comments and tracking agency progress on reforming rules.
Limitation on certain environmental rules. (Effective October 1, 2011.) Prohibits an agency from adopting a rule for the protection of the environment or natural resources that imposes a more restrictive standard, limitation, or requirement than those imposed by federal law or rule pertaining to the same subject, unless adoption of the more restrictive rule is required by one of the following: (1) a serious and unforeseen threat to the public health, safety, or welfare; (2) an act of the General Assembly or the United States Congress (Congress) that expressly requires the agency to adopt rules; (3) a change in federal or state budgetary policy; (4) a federal regulation required by an act of Congress to be adopted or administered by the state; or (5) a court order. Specifies that the limitation applies to an agency authorized to implement and enforce state and federal environmental laws and lists the following agencies as meeting that definition: (1) the Department of Environment and Natural Resources, (2) the Environmental Management Commission, (3) the Coastal Resources Commission, (4) the Marine Fisheries Commission, (5) the Wildlife Resources Commission, (6) the Commission of Public Health, (7) the Sedimentation Control Commission, and (8) the Mining Commission.
Makes stylistic changes to GS 150B-21.1(a3).
Procedure for adopting a permanent rule. (Effective October 1, 2011). Amends GS 150B-21.2 to require an agency to accept comments at the public hearing on both the proposed rule and any fiscal note that has been prepared in connection with the proposed rule. Directs an agency to review any fiscal note received in connection with the proposed rule and consider any public comment offered on the proposed rule before adopting a proposed rule. Requires that the record also contain any fiscal note prepared for the proposed rule. Makes additional conforming changes.
Fiscal notes on rules. (Effective October 1, 2011.) Amends GS 150B-21.4 to provide that in addition to the proposed text of a permanent rule change and its fiscal note, an agency must also submit to the OSBM (was, the Director of the Budget) an analysis of the proposed rule change before publishing a permanent rule change that requires a distribution of funds under the State Budget Act in the North Carolina Register. Transfers responsibilities regarding certification to the OSBM (was, the Director of the Budget). Removes requirement that an agency must submit the text of a proposed rule change and the fiscal note on that proposed change to the Office of the Governor before publishing the proposed text in the North Carolina Register when the proposed rule change affects the expenditures or revenues of a unit of local government. Adds requirement that the required fiscal note must contain a description of at least two alternatives to the proposed rule that were considered by the agency and rejected, and the reasons for the rejection. Provides that the alternatives may have been identified by the agency or by members of the public.
Requires an agency to prepare a fiscal note (was, required the agency to obtain a fiscal note from the OSBM) for a proposed permanent rule change that would have a substantial economic impact and that is not identical to a federal regulation that the agency is required to adopt, and have that fiscal note approved by the OSBM. Permits the agency to request the OSBM to prepare the fiscal note only after the agency, working with the OSBM, has exhausted all resources, internal and external, to otherwise prepare the fiscal note. Provides that if an agency asks OSBM to prepare a fiscal note and the OSBM fails to prepare the fiscal note within 90 days after receiving the written request from the agency for the note, then the agency must (was, may) prepare a fiscal note. If there is uncertainty by the agency as to whether or not a proposed rule change would have a substantial economic impact, the agency must (was, may) ask the OSBM to make a determination as to if the proposed rule change has a substantial economic impact. Declares that failure to prepare or obtain approval of the fiscal note is basis for objection to the rule under GS 150B-21.9(a)(4).
Provides that substantial economic impact means an aggregate financial impact on all persons affected of at least $500,000 (was, $3 million) in a 12-month period. Provides guidelines to be followed by an agency in analyzing substantial economic impact.
Procedure when Rules Review Commission approves permanent rule. (Effective October 1, 2011.) Removes requirements that the Rules Review Commission (Commission) must provide notice of rule approval to the Joint Legislative Administrative Procedure Oversight Committee (Oversight Committee). Repeals GS 150B-21.16, which required the Commission to make monthly reports to the Oversight Committee.
Amends GS 150B-21.17(a) to delete requirement that the North Carolina Register, published at least twice monthly, must contain (1) notices of receipt of a petition for municipal incorporation as required by GS 120-165 and (2) orders of the Tax Review Board issued under GS 105-241.2.
North Carolina Administrative Code. (Effective October 1, 2011.) Amends GS 150B-21.18 to delete requirement that the Codifier of Rules must keep the North Carolina Administrative Code (Code) current by publishing it in a loose-leaf format, periodically providing new pages to substitute for outdated pages, by publishing the Code in volumes and periodically publishing cumulative supplements, or by other means.
Exempt agencies. (Effective October 1, 2011.) Current law identifies specified agencies that are fully exempt from the provisions of GS Chapter 150B, the Administrative Procedure Act (APA). Amends GS 150B-21.21(b) to provide that an agency that is exempted from the APA by GS 150B-1 or any other statute must submit a temporary or permanent rule adopted by it to the Codifier of Rules for inclusion in the Code (was, this provision applied to exempt agencies other than the North Carolina Utilities Commission). Repeals GS 150B-21.23, which requires the Codifier of Rules to publish a rule publication manual.
Rules affecting local governments. (Effective October 1, 2011.) Amends GS 150B-21.26 to provide that the OSBM (was, Governor) is to conduct preliminary review of administrative rules that would affect the expenditures or revenues of a unit of local government at least 60 days (was, 30) before an agency publishes the proposed text of the permanent rule change in the North Carolina Register. Makes a conforming change.
Contested Cases. (Effective January 1, 2012.) Amends GS 150B-2(5) to delete restriction that prohibits an agency making a final decision, or an officer or employee of that agency, from petitioning for initial judicial review of that decision. Amends GS 150B-23(a) to delete the exception that requires the State Personnel Commission to enter final decisions in cases involving discrimination as prohibited by Article 6 of GS Chapter 126 and provides that a contested case involving a local government employee, an applicant for employment, or a former employee to whom GS Chapter 126 apples is to be conducted in the same manner as other contested cases under Article 3A of GS Chapter 150B.
Amends GS 150B-33(b) to delete provision regarding an administrative law judge's authority to accept or refuse to accept a remanded case from an agency.
Final decision or order. (Effective January 1, 2012). Amends GS 150B-34 to provide that the administrative law judge (ALJ) is to make a final decision or order that contains findings of fact and conclusions of law; deletes exceptions provided in GS 150B-34(c) regarding a final decision or order (was, directed the ALJ to make a decision or order that contained findings of fact and conclusions of law and to return the decision to the agency for a final decision). Declares that the provisions of this statute regarding the decision of the administrative law judge apply only to agencies subject to Article 3 of GS Chapter 150B except for the exemptions contained in GS 150B-1. Provides additional specifications regarding the authority of the administrative law judge. Makes conforming changes to GS 150B-35 (regarding ex parte communications) and GS 150B-37 (regarding the official record).
Repeals GS 150B-36 (providing that the agency makes the final decision in a contested case).
Makes technical changes to GS 150B-43.
Makes a conforming change to GS 150B-44, deleting provisions relating to an agency's authority to make a final decision in a contested case as deleted in this act. Sets as an unreasonable delay the failure of an ALJ who is subject to Article 3 of GS Chapter 150B to make a decision within 120 days of the close of the contested case hearing and provides for a right of judicial intervention.
Amends GS 150B-47 to direct the Office of Administrative Hearings (was, the agency that made the final decision in the contested case) to transmit to the reviewing court the original or a certified copy of the official record in the contested case under review. Makes technical and conforming changes to GS 150B-49 and GS 150B-50.
Scope and standard of review. (Effective January 1, 2012.) Makes conforming changes to GS 150B-51 consistent with amendments in this act authorizing ALJs to make final decisions and orders in contested cases. Also clarifies that a superior court reviewing a final decision may affirm the decision or remand the case for further proceedings, or it may reverse or modify the decision based on specified standards. Provides that the superior court, in reviewing a final decision in a contested case, is to determine whether the decision is supported by substantial evidence admissible under GS 150B-29, 150B-30, or 150B-31 in view of the entire record. Provides additional criteria applicable to reversing or remanding the contested case to the ALJ or the agency.
Makes conforming changes to GS 7A-759(e), 74-58(b), 74-61, 74-85, 108A-70.9A(f), 108A-70.9B(g), 113-171(e), 113-202, and 122C-24.1(h). Also makes conforming changes deleting references to the authority of the Commission to make final decisions in a contested case in GS 113-229(f), 113A-121.1(b), and 113A-126(d). Makes additional conforming changes to the following various provisions: GS 122C-151.4(f), 126-14.4(e), 126-37, 131D-34(e), 131E-188(a), 131F-5(b), 131F-15(e), 143-215.22L(o), 143-215.94E(e3), 143-215.94U(e), 143-215.104P(d), 143-215.104S, and 153A-223.
Repeals GS 126-4.1 (allowing the State Personnel Commission to make a final agency decision in a contested case), 126-14.4(f) (regarding the rendering of a final decision by the State Personnel Commission), and 135-44.7(c) (permitting the Board of trustees to make a final decision in a contested case).
Miscellaneous issues. Directs an agency to issue a declaratory ruling to resolve a conflict or inconsistency within the agency regarding an interpretation of the law or a rule adopted by the agency. Requires the agency to also prescribe in its rules the procedure for requesting a declaratory ruling. Provides that a declaratory ruling is a final agency decision and is subject to judicial review in accordance with Article 4 of GS Chapter 150B. Failing to issue a declaratory reading within 60 days of the request for such a ruling constitutes a determination in favor of the aggrieved person (was, constitutes a denial of the request and its merits, and is subject to judicial review).
Directs every entity with rule making powers to deliver to the Joint Select Regulatory Reform Committee (Reform Committee) of the General Assembly, no later than October 1, 2011, a list of all permanent rules adopted by that entity that includes specified information for each rule. Includes study requirements and a reporting deadline for the Reform Committee.
Amends GS 113A-12 to provide that no environmental document is required in connection with a major development as defined in GS 113A-118(c) that receives a permit issued under Article 7 of GS Chapter 113A. Applies to any major development for which a permit application is received by the Department of Environment and Natural Resources (DENR).
Amends GS 143-215.108(d1) to prohibit issuance or renewal of a Title V permit for a term exceeding five years. Provides that all other permits issued under this statute are issued for a term of 10 years. Makes a conforming change to GS 143-215.1(c) and GS 143-215.1.
Directs DENR to review the types of permits it issues and the rule making agencies under its authority and recommend whether the duration of any types of permits should be extended beyond their duration under current rule or law. Requires DENR to report its findings to the Environmental Review Commission no later than February 1, 2012. Applies to permits that are issued on or after July 1, 2011.
Directs the Secretary of Environment and Natural Resources to develop a uniform policy for notification of deficiencies and violations for all of the regulatory programs within DENR. Provides additional guidelines regarding the development of the notification policy. Requires the policy to be implemented no later than February 1, 2012.
Includes a severability clause. Except as otherwise indicated, the provisions of this act are effective when they become law. For provisions indicated as effective October 1, 2011, those provisions apply to rules adopted on or after that date. For provisions indicated as effective January 1, 2012, those provisions apply to contested cases commenced on or after that date.
The Daily Bulletin: 2011-06-06
House amendment makes the following changes to 3rd edition, as amended.
Specifies that the power of eminent domain may not be used for purposes not necessary for the operation of the airport; specifically, no property may be acquired by eminent domain for use as a hotel, motel, restaurant, or industrial park. States that eminent domain may not be used to acquire any interest in the Ferncliff Industrial Park as it existed on June 1, 2011, except for an aviation need required by a federal agency. Adds that any claim by Henderson County against Asheville or the current airport authority on account of acquisition of property by either or both in Henderson County is extinguished. Makes clarifying changes to the provision specifying the construction of the Authority’s powers created in the act.
The Daily Bulletin: 2011-06-06
Actions on Bills: 2011-06-06
H 36: EMPLOYERS & LOCAL GOV'T MUST USE E-VERIFY (NEW).
H 117: ELECTRIC CITIES/USES OF RATE REVENUE.
H 119: AMEND ENVIRONMENTAL LAWS 2011.
H 174: COMMERCIAL REAL ESTATE BROKER LIEN ACT.
H 177: CLEAN ENERGY TRANSPORTATION ACT (NEW).
H 227: DISTURBING/DISMEMBERING HUMAN REMAINS (NEW).
H 237: 2012 WORKERS' COMPENSATION AMENDMENTS (NEW).
H 320: WATER RESOURCES FLEXIBILITY (NEW).
H 340: UTILITIES COMMISSION/CRIMINAL RECORDS CHECK.
H 342: HIGH SCHOOL ACCREDITATION.
H 374: EUGENICS RECORDS/PUBLIC RECORDS EXEMPTION.
H 384: REGISTER OF DEEDS/FEES.
H 417: EXTEND TIME FOR SITE OF LOW/MOD. INC. HOUSING.
H 452: JUDICIAL ELECTIONS CHANGES (NEW).
H 462: CONTINGENCY CONTRACTS FOR AUDITS/ASSESSMENTS (NEW).
H 476: PROTECT GALAX & VENUS FLYTRAP/WRC RULE FINES.
H 503: PARENT CHOICE/CLARIFY PRE-K (NEW).
H 538: LGERS LEO DISABILITY (NEW).
H 542: TORT REFORM FOR CITIZENS AND BUSINESSES.
H 556: VOLUNTEER SERVICE AS A GAL IN RETIREMENT (NEW).
H 571: PREPAID WIRELESS/POINT OF SALE COLLECTION.
H 586: ENHANCE WATER SUPPLY FUNDING.
H 595: REORGANIZATION/LEGISLATIVE OVERSIGHT COMNS.
H 607: HABITUAL DWI RESTORATION CLARIFICATION.
H 609: PROMOTE WATER SUPPLY DEVELOPMENT/EFFICIENCY (NEW).
H 617: PORTABLE ELECTRONICS INSURANCE COVERAGE.
H 627: STUDY EFFICIENCY AND COST SAVINGS/STATE GOVT.
H 641: CERTIFICATE OF RELIEF ACT (NEW).
H 642: JUSTICE REINVESTMENT ACT.
H 644: ESTABLISH PHARMACY AUDIT RIGHTS.
H 650: AMEND VARIOUS GUN LAWS/CASTLE DOCTRINE (NEW).
H 654: HOMEOWNER/HOMEBUYER PROTECTION ACT.
H 659: CAPITAL PROCEDURE/SEVERE MENTAL DISABILITY.
H 662: ELECTRONIC MONITORING FEE.
H 696: ASSAULT/OFFICER/PHYSICAL INJURY (NEW).
H 704: STUDY STATE'S FUTURE ENERGY NEEDS.
H 706: ALIMONY/POSTSEPARATION SUPPORT CHANGES.
H 707: REGISTER OF DEEDS/DIRECTED TRUSTEES/ESTATES (NEW).
H 713: PUBLIC CONTRACTS/MULTIPLE AWARD.
H 714: LEGAL SERVICES.
H 741: LAW ENFORCEMENT/EMERGENCY VEHICLE LENGTH (NEW).
H 749: MODIFY STATE PORTS AUTHORITY.
H 772: STUDY SORNA COMPLIANCE (NEW).
H 773: STUDIES ACT OF 2011.
H 778: AMEND INNOCENCE COMMISSION LAWS.
H 799: LICENSURE BY ENDORSEMENT/MILITARY SPOUSES.
H 800: PRESERVING THE RIGHT TO SECRET BALLOT (NEW).
H 810: CONSUMER FINANCE ACT AMENDMENTS.
H 813: BLDG. CODE INSPECTIONS/INDUSTRIAL MACHINERY (NEW).
H 832: LRC STUDY/NONATTORNEY OWNERSHIP/PC LAW FIRMS (NEW).
H 882: REGISTER/TITLE OFF-ROAD ATVS & MOTORCYCLES (NEW).
H 896: FACILITATE ELECTRONIC LISTING (NEW).
H 914: AEDS IN STATE BUILDINGS.
H 916: STATEWIDE EXPANSION OF 1915(B)/(C) WAIVER.
H 933: REGULATORY REFORM ACT OF 2011.
S 16: OBTAIN BLOOD SAMPLE/IMPLIED-CONSENT LAWS. (NEW)
S 31: CLARIFY PENALTY UNAUTH. PRACTICE OF MEDICINE (NEW).
S 148: GSC TECH CORRECTIONS/OTHER CHANGES (NEW).
S 181: UNDERGROUND STORAGE TANK PRGRM. AMENDS (NEW).
S 203: SET ASIDE PATERNITY/CHILD SUPPORT (NEW).
S 205: NO BENEFITS FOR ILLEGAL ALIENS.
S 252: DEVISEE/DEVISE/STATUTORY COMMISSION
S 303: REAL ID COMPLIANCE/LIMITED DURATION LICENSES (NEW).
S 307: SMART CARD BIOMETRICS AGAINST MEDICAID FRAUD.
S 315: ROADSIDE CAMPAIGN SIGNS.
S 321: SURPLUS LINES/PREMIUM TAX.
S 438: CLARIFY MOTOR VEHICLE LICENSING LAW.
S 446: COMM. COLL. TUITION FOR MEMBERS OF MILITARY.
S 484: REPS CREDITS AT CLEANFIELDS PARKS.
S 496: MEDICAID AND HEALTH CHOICE PROVIDER REQ. (NEW).
S 501: SWINE HOUSE RENOVATIONS/SITE LIMITS.
S 513: ALLOW SAVINGS PROMOTION RAFFLES.
S 552: INCENTIVE PROGRAM FOR PUBLIC HEALTH IMPROV.
S 562: STANDARDS FOR SOME NURSERY STOCK PURCHASES.
S 565: OBSERVE JULY AS WATERMELON MONTH.
S 578: FACILITATE TRANSFER SPH BEDS COM. FACILITY (NEW).
S 581: CLARIFY MOTOR VEHICLE LAWS.
S 617: LRC STUDY FOOD ALLERGY & ANAPHYLAXIS MGMT.
S 635: MINORS/SENTENCING FOR 1ST DEGREE MURDER (NEW).
S 659: WC/TAXI DRIVER/INDEPENDENT CONTRACTOR.
S 684: SEX OFFENDER SUPERVISION/FORENSIC AMENDMENTS (NEW).
S 696: ADDRESS PRIMARY CARE SHORTAGE.
S 717: PHOTO I.D. FOR SNAP RECIPIENTS.
S 743: ENCOURAGE VOLUNTEER HEALTH CARE PROVIDERS.
S 745: BEER FRANCHISE LAW CLARIFICATIONS.
S 778: CONFIRM EDWARD FINLEY TO UTILITIES COMMISSION.
S 780: CROSSOVER RULE.
S 781: REGULATORY REFORM ACT OF 2011.
Actions on Bills: 2011-06-06
H 96: ALLEGHANY/JACKSON/GROVER OT (NEW).
H 134: COMM. COLLEGES/OPT OUT OF FED'L LOAN PROG.-2 (NEW).
H 440: ADOPT OFFICIAL LIVERMUSH FESTIVALS (NEW).
H 469: ADDL. LUMBERTON & ST. PAULS OCCUP. TAX (NEW).
H 518: AUTHORIZE ADD'L PERSON COUNTY OCCUPANCY TAX.
H 552: ASHEVILLE AIRPORT/WNC AG CENTER (NEW).
S 155: LOCAL STORMWATER UTILITY FEES (NEW).
S 237: INCORPORATE CASTLE HAYNE.
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