Section 150B-21.2 - Procedure for adopting a permanent rule(a) Steps. - Before an agency adopts a permanent rule, the agency must comply with the requirements of G.S.150B-19.1, and it must take the following actions: (1) Publish a notice of text in the North Carolina Register.(2) When required by G.S.150B-21.4, prepare or obtain a fiscal note for the proposed rule.(3) Repealed by Session Laws 2003-229, s. 4, effective July 1, 2003.(4) When required by subsection (e) of this section, hold a public hearing on the proposed rule after publication of the proposed text of the rule.(5) Accept oral or written comments on the proposed rule as required by subsection (f) of this section.(b) Repealed by Session Laws 2003-229, s. 4, effective July 1, 2003.(c) Notice of Text. - A notice of the proposed text of a rule must include all of the following: (1) The text of the proposed rule, unless the rule is a readoption without substantive changes to the existing rule proposed in accordance with G.S.150B-21.3A.(2) A short explanation of the reason for the proposed rule.(2a) A link to the agency's website containing the information required by G.S.150B-19.1(c).(3) A citation to the law that gives the agency the authority to adopt the rule.(4) The proposed effective date of the rule.(5) The date, time, and place of any public hearing scheduled on the rule.(6) Instructions on how a person may demand a public hearing on a proposed rule if the notice does not schedule a public hearing on the proposed rule and subsection (e) of this section requires the agency to hold a public hearing on the proposed rule when requested to do so.(7) The (i) period of time during which and (ii) person within the agency to whom written comments may be submitted on the proposed rule.(8) If a fiscal note has been prepared for the rule, a statement that a copy of the fiscal note can be obtained from the agency.(9) Repealed by Session Laws 2013-143, s. 1, effective June 19, 2013.(d) Mailing List. - An agency must maintain a mailing list of persons that have requested notice of rulemaking. When an agency publishes in the North Carolina Register a notice of text of a proposed rule, it must mail a copy of the notice of text to each person on the mailing list that has requested notice on the subject matter described in the notice or the rule affected. An agency may charge an annual fee to each person on the agency's mailing list to cover copying and mailing costs.(e) Hearing. - An agency must hold a public hearing on a rule it proposes to adopt if the agency publishes the text of the proposed rule in the North Carolina Register and the agency receives a written request for a public hearing on the proposed rule within 15 days after the notice of text is published. The agency must 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. (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 within 30 days of the notification. If the agency fails to supplement its statement of need with additional findings or submit a new statement to the Commission within 30 days, or submits written notice within 30 days to the Commission that the agency does not intend to supplement its statement of need with additional findings or submit a new statement, the Commission or its designee shall immediately return the rule to the agency. If the agency provides additional findings or submits a new statement within 30 days of the notification, 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. When the Commission returns a rule to an agency in accordance with this subsection, the agency may file an action for declaratory judgment within 30 days after notification of the return of the rule by the Commission in Wake County Superior Court pursuant to Article 26 of Chapter 1 of the General Statutes.(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 within 30 days of the date the rule is returned to the agency.(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.(b4) When the Commission returns to an agency a proposed permanent rule intended to replace a temporary rule, the holder of a permit from the agency may submit revised plans for a revised permit removing the impacts of the returned rule if all of the following conditions apply: (1) The permit was conditioned upon adherence to the requirements of a temporary rule that the returned proposed permanent rule was intended to replace.(2) The revised plans comply with all other applicable regulations. The agency shall review the revised plans and approve or deny the revised permit within 45 days of the receipt of the revised plans. The agency may not impose an additional permit fee for review of a revised plan resulting from the expiration of a temporary rule.
(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.(6) Notwithstanding subdivision (5) of this subsection, 12 months after the effective date of the temporary rule.(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....
(f) Comments. - An agency must accept comments on the text of a proposed rule that is published in the North Carolina Register and any fiscal note that has been prepared in connection with the proposed rule for at least 60 days after the text is published or until the date of any public hearing held on the proposed rule, whichever is longer. An agency must consider fully all written and oral comments received.(g) Adoption. - An agency shall not adopt a rule until the time for commenting on the proposed text of the rule has elapsed and shall not adopt a rule if more than 12 months have elapsed since the end of the time for commenting on the proposed text of the rule. Prior to adoption, an agency must review any fiscal note that has been prepared for the proposed rule and consider any public comments received in connection with the proposed rule or the fiscal note. An agency shall not adopt a rule that differs substantially from the text of a proposed rule published in the North Carolina Register unless the agency publishes the text of the proposed different rule in the North Carolina Register and accepts comments on the proposed different rule for the time set in subsection (f) of this section. An adopted rule differs substantially from a proposed rule if it does one or more of the following:
(1) Affects the interests of persons that, based on the proposed text of the rule published in the North Carolina Register, could not reasonably have determined that the rule would affect their interests.(2) Addresses a subject matter or an issue that is not addressed in the proposed text of the rule.(3) Produces an effect that could not reasonably have been expected based on the proposed text of the rule. When an agency adopts a rule, it shall not take subsequent action on the rule without following the procedures in this Part. An agency must submit an adopted rule to the Rules Review Commission within 30 days of the agency's adoption of the rule.
(h) Explanation. - An agency must issue a concise written statement explaining why the agency adopted a rule if, within 15 days after the agency adopts the rule, a person asks the agency to do so. The explanation must state the principal reasons for and against adopting the rule and must discuss why the agency rejected any arguments made or considerations urged against the adoption of the rule. The agency must issue the explanation within 15 days after receipt of the request for an explanation.(i) Record. - An agency must keep a record of a rulemaking proceeding. The record must include all written comments received, a transcript or recording of any public hearing held on the rule, any fiscal note that has been prepared for the rule, and any written explanation made by the agency for adopting the rule.N.C. Gen. Stat. § 150B-21.2
Amended by 2023 N.C. Sess. Laws 134,s. 21.2-b, eff. 9/22/2023.Amended by 2021 N.C. Sess. Laws 88, s. 17, eff. 7/22/2021.Amended by 2013 N.C. Sess. Laws 413, s. 3-a, eff. 8/23/2013.Amended by 2013 N.C. Sess. Laws 143, s. 1, eff. 6/19/2013.Amended by 2011 N.C. Sess. Laws 398, s. 5, eff. 10/1/2011.Amended by 2003 N.C. Sess. Laws 0229, s. 4, eff. 7/1/2003. 1973 , c. 1331, s. 1; 1975, 2nd Sess., c. 983, s. 63; 1977 , c. 915, s. 2; 1983 , c. 927, ss. 3, 7; 1985 , c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(1), (7); 1987 , c. 285, ss. 7 - 9; 1989 , c. 5, s. 1; 1991 , c. 418, s. 1; 1995 , c. 507, s. 27.8 (d) ; 1996, 2nd Ex. Sess., c. 18, s. 7.10(e).