FILED SENATE
Apr 6, 2023
GENERAL ASSEMBLY OF NORTH CAROLINA
S.B. 693
SESSION 2023 PRINCIPAL CLERK
S D
SENATE BILL DRS15299-TQ-2
Short Title: Administrative Procedure Act Amendments. (Public)
Sponsors: Senator Moffitt (Primary Sponsor).
Referred to:
1 A BILL TO BE ENTITLED
2 AN ACT TO AMEND RULEMAKING PROCEDURES IN THE ADMINISTRATIVE
3 PROCEDURE ACT.
4 The General Assembly of North Carolina enacts:
5 SECTION 1. G.S. 150B-2(6) reads as rewritten:
6 "(6) Person aggrieved. – Any person or group of persons of common interest
7 directly or indirectly affected substantially in his, her, or its person, property,
8 or employment by an administrative decision.decision or by the adoption of a
9 temporary or permanent rule."
10 SECTION 2. G.S. 150B-19.3(a) reads as rewritten:
11 "§ 150B-19.3. Limitation on certain environmental rules.
12 (a) An agency authorized to implement and enforce State and federal environmental laws
13 may not adopt a rule for the protection of the environment or natural resources that imposes a
14 more restrictive standard, limitation, or requirement than those imposed by federal law or rule, if
15 a federal law or rule pertaining to the same subject matter has been adopted, unless adoption of
16 the rule is required by one of the subdivisions of this subsection. An agency authorized to
17 implement and enforce State and federal environmental laws may not adopt a rule for the
18 protection of the environment or natural resources if a specific State statute, federal law, or
19 federal regulation does not exist pertaining to and regulating the same subject matter unless
20 adoption of the rule is required by State statute, federal law. or federal regulation. A rule required
21 by one of the following subdivisions of this subsection shall be subject to the provisions of
22 G.S. 150B-21.3(b1) as if the rule received written objections from 10 or more persons under
23 G.S. 150B-21.3(b2):
24 (1) A serious and unforeseen threat to the public health, safety, or welfare.
25 (2) An act of the General Assembly or United States Congress that expressly
26 requires the agency to adopt rules.
27 (3) A change in federal or State budgetary policy.
28 (4) A federal regulation required by an act of the United States Congress to be
29 adopted or administered by the State.
30 (5) A court order."
31 SECTION 3. G.S. 150B-21.1 reads as rewritten:
32 "§ 150B-21.1. Procedure for adopting a temporary rule.
33 …
34 (b1) If the Commission or its designee finds that the statement does not meet the criteria
35 listed in subsection (a) of this section or that the rule does not meet the standards in
36 G.S. 150B-21.9, G.S. 150B-21.9 or Part 1 of this Article, the Commission or its designee must
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1 immediately notify the head of the agency. The agency may supplement its statement of need
2 with additional findings or submit a new statement. statement within 30 days of the notification.
3 If the agency fails to supplement its statement of need with additional findings or submit a new
4 statement to the Commission within 30 days, or submits written notice within 30 days to the
5 Commission that the agency does not intend to supplement its statement of need with additional
6 findings or submit a new statement, the Commission or its designee shall immediately return the
7 rule to the agency. If the agency provides additional findings or submits a new statement, the
8 Commission or its designee must review the additional findings or new statement within five
9 business days after the agency submits the additional findings or new statement. If the
10 Commission or its designee again finds that the statement does not meet the criteria listed in
11 subsection (a) of this section or that the rule does not meet the standards in G.S. 150B-21.9,
12 G.S. 150B-21.9 or Part 1 of this Article, the Commission or its designee must immediately notify
13 the head of the agency and return the rule to the agency. When the Commission returns a rule to
14 an agency in accordance with this subsection, the agency may file an action for declaratory
15 judgment within 30 days after notification by the Commission in Wake County Superior Court
16 pursuant to Article 26 of Chapter 1 of the General Statutes.
17 (b2) If an agency decides not to provide additional findings or submit a new statement
18 when notified by the Commission or its designee that the agency's findings of need for a rule do
19 not meet the required criteria or that the rule does not meet the required standards, the agency
20 must notify the Commission or its designee of its decision. The Commission or its designee shall
21 then return the rule to the agency. When the Commission returns a rule to an agency in
22 accordance with this subsection, the agency may file an action for declaratory judgment in Wake
23 County Superior Court pursuant to Article 26 of Chapter 1 of the General Statutes.
24 (b3) When the Commission returns to an agency a proposed permanent rule intended to
25 replace a temporary rule, the holder of a permit from the agency may submit revised plans for a
26 revised permit removing the impacts of the returned rule if all of the following conditions apply:
27 (1) The permit was conditioned upon adherence to the requirements of a
28 temporary rule that the returned proposed permanent rule was intended to
29 replace.
30 (2) The revised plans comply with all other applicable development regulations.
31 The agency shall review the revised plans and approve or deny the revised permit within 45
32 days of the receipt of the revised plans. The agency may not impose an additional permit fee for
33 review of a revised plan resulting from the expiration of a temporary rule.
34 (b4) If an agency has proposed a permanent rule pursuant to G.S. 150B-21.2 and the
35 Commission has objected to the rule, the agency may not propose a temporary rule of
36 substantially the same subject matter within 24 months unless either of the following
37 circumstances applies:
38 (1) Adoption of the rule is otherwise required by State or federal law.
39 (2) There are changed conditions or circumstances that support the proposed
40 temporary rule and the agency provides a statement citing the changed
41 conditions or circumstances. For purposes of this subdivision, the changed
42 conditions or circumstances shall be limited to changes in State or federal law
43 or federal regulation. If the Commission finds that there are changed
44 conditions or circumstances that justify the adoption of the proposed
45 temporary rule, the agency may proceed with temporary rulemaking and may
46 adopt a permanent rule to replace the temporary rule.
47 (b5) Once an agency has proposed a permanent rule pursuant to G.S. 150B-21.2 and the
48 proposed rule has been published in the North Carolina Register, the agency may not propose a
49 temporary rule of substantially the same subject matter within 24 months of the publication of
50 the proposed permanent rule unless otherwise required by State or federal law.
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1 (b3)(b6) Notwithstanding any other provision of this subsection, if the agency has not
2 complied with the provisions of G.S. 12-3.1, the Codifier of Rules shall not enter the rule into
3 the Code.
4 (c) Standing. – A person aggrieved by a temporary rule adopted by an agency may file
5 an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 of
6 Chapter 1 of the General Statutes. In the action, the court shall determine whether the agency's
7 written statement of findings of need for the rule meets the criteria listed in subsection (a) of this
8 section and whether the rule meets the standards in G.S. 150B-21.9. G.S. 150B-21.9 or Part 1 of
9 this Article. The court shall not grant an ex parte temporary restraining order.
10 (c1) Filing a petition for rule making or a request for a declaratory ruling with the agency
11 that adopted the rule is not a prerequisite to filing an action under this subsection. A person who
12 files an action for declaratory judgment under this subsection must serve a copy of the complaint
13 on the agency that adopted the rule being contested, the Codifier of Rules, and the Commission.
14 (d) Effective Date and Expiration. – A temporary rule becomes effective on the date
15 specified in G.S. 150B-21.3. A temporary rule expires on the earliest of the following dates:
16 (1) The date specified in the rule.
17 (2) The effective date of the permanent rule adopted to replace the temporary rule,
18 if the Commission approves the permanent rule.
19 (3) The date the Commission returns to an agency a permanent rule the agency
20 adopted to replace the temporary rule.
21 (4) The effective date of an act of the General Assembly that specifically
22 disapproves a permanent rule adopted to replace the temporary rule.
23 (5) 270 days from the date the temporary rule was published in the North Carolina
24 Register, unless the permanent rule adopted to replace the temporary rule has
25 been submitted to the Commission.
26 (6) Notwithstanding subdivision (5) of this subsection, 12 months after the
27 effective date of the temporary rule.
28 (e) Publication. – When the Codifier of Rules enters a temporary rule in the North
29 Carolina Administrative Code, the Codifier must publish the rule in the North Carolina Register.
30 (f) Any person aggrieved by the adoption of a temporary rule or by the amendment of a
31 temporary rule may file a petition for a contested case in accordance with the requirements set
32 forth under G.S. 150B-23(a) within 30 days of the effective date of a temporary rule adoption or
33 amendment."
34 SECTION 4. G.S. 150B-21.2 reads as rewritten:
35 "§ 150B-21.2. Procedure for adopting a permanent rule.
36 (a) Steps. – Before an agency adopts a permanent rule, the agency must comply with the
37 requirements of this Article, including G.S. 150B-19.1, and it must take the following actions:
38 …
39 (e) Hearing. – An agency must hold a public hearing on a rule it proposes to adopt if the
40 agency publishes the text of the proposed rule in the North Carolina Register and the agency
41 receives a written request for a public hearing on the proposed rule within 15 days after the notice
42 of text is published. The agency must accept comments at the public hearing on both the proposed
43 rule and any fiscal note that has been prepared in connection with the proposed rule.
44 An agency may hold a public hearing on a proposed rule and fiscal note in other
45 circumstances. When an agency is required to hold a public hearing on a proposed rule or decides
46 to hold a public hearing on a proposed rule when it is not required to do so, the agency must
47 publish in the North Carolina Register a notice of the date, time, and place of the public hearing.
48 The hearing date of a public hearing held after the agency publishes notice of the hearing in the
49 North Carolina Register must be at least 15 but not later than 60 days after the date the notice is
50 published. If notice of a public hearing has been published in the North Carolina Register and
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1 that public hearing has been cancelled, the agency must publish notice in the North Carolina
2 Register at least 15 days prior to the date of any rescheduled hearing.
3 (f) Comments. – An agency must accept comments on the text of a proposed rule that is
4 published in the North Carolina Register and any fiscal note that has been prepared in connection
5 with the proposed rule for at least 60 days after the text is published or until the date of any public
6 hearing held on the proposed rule, whichever is longer. An agency must consider fully all written
7 and oral comments received.
8 (g) Adoption. – An agency shall not adopt a rule until the time for commenting on the
9 proposed text of the rule has elapsed and shall not adopt a rule if more than 12 months have
10 elapsed since the end of the time for commenting on the proposed text of the rule. Prior to
11 adoption, an agency must review any fiscal note that has been prepared for the proposed rule and
12 consider any public comments received in connection with the proposed rule or the fiscal note.
13 An agency shall not adopt a rule that differs substantially from the text of a proposed rule
14 published in the North Carolina Register unless the agency publishes the text of the proposed
15 different rule in the North Carolina Register and accepts comments on the proposed different rule
16 for the time set in subsection (f) of this section.complies with this Article, including
17 G.S. 150B-19.1.
18 An adopted rule differs substantially from a proposed rule if it does one or more of the
19 following:
20 (1) Affects the interests of persons that, based on the proposed text of the rule
21 published in the North Carolina Register, could not reasonably have
22 determined that the rule would affect their interests.
23 (2) Addresses a subject matter or an issue that is not addressed in the proposed
24 text of the rule.
25 (3) Produces an effect that could not reasonably have been expected based on the
26 proposed text of the rule.
27 When an agency adopts a rule, it shall not take subsequent action on the rule without following
28 the procedures in this Part. An agency must submit an adopted rule to the Rules Review
29 Commission within 30 days of the agency's adoption of the rule. After 12 months have elapsed
30 without approval of the proposed rule by the Commission, the Commission shall return the rule
31 to the agency. An agency may propose a permanent rule with substantially the same subject
32 matter following its return, but the new proposed rule must comply with the requirements set
33 forth in subsections (a) through (f) of this section and G.S. 150B-21.9 prior to adoption of the
34 rule.
35 (h) Explanation. – An agency must issue a concise written statement explaining why the
36 agency adopted a rule if, within 15 days after the agency adopts the rule, a person asks the agency
37 to do so. The explanation must state the principal reasons for and against adopting the rule and
38 must discuss why the agency rejected any arguments made or considerations urged against the
39 adoption of the rule. The agency must issue the explanation within 15 days after receipt of the
40 request for an explanation.
41 (i) Record. – An agency must keep a record of a rulemaking proceeding. The record must
42 include all written comments received, a transcript or recording of any public hearing held on the
43 rule, any fiscal note that has been prepared for the rule, and any written explanation made by the
44 agency for adopting the rule.
45 (j) Any person aggrieved by the adoption of a permanent rule or by the amendment of a
46 permanent rule may file a petition for a contested case in accordance with the requirements set
47 forth under G.S. 150B-23(a) within 30 days of the effective date of a permanent rule adoption or
48 amendment."
49 SECTION 5. G.S. 150B-21.3 reads as rewritten:
50 "§ 150B-21.3. Effective date of rules.
51 …
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1 (b2) Objection. – Any person who objects to the adoption of a permanent rule may submit
2 written comments to the agency. If the objection is not resolved prior to adoption of the rule, a
3 person may submit written objections to the Commission. If the Commission receives written
4 objections from 10 or more persons, no later than 5:00 P.M. of the day following seven days after
5 the day the Commission approves the rule, clearly requesting review by the legislature in
6 accordance with instructions posted on the agency's Web site pursuant to G.S. 150B-19.1(c)(4),
7 and the Commission approves the rule, the rule will become effective as provided in subsection
8 (b1) of this section. The Commission shall notify the agency that the rule is subject to legislative
9 disapproval on the day following the day it receives 10 or more written objections. When the
10 requirements of thi