§ 150B‑21.1. Procedurefor adopting a temporary rule.
(a) Adoption. Anagency may adopt a temporary rule when it finds that adherence to the noticeand hearing requirements of G.S. 150B‑21.2 would be contrary to thepublic interest and that the immediate adoption of the rule is required by oneor more of the following:
(1) A serious andunforeseen threat to the public health, safety, or welfare.
(2) The effective dateof a recent act of the General Assembly or the United States Congress.
(3) A recent change infederal or State budgetary policy.
(4) A recent federalregulation.
(5) A recent courtorder.
(6) The need for a ruleestablishing review criteria as authorized by G.S. 131E‑183(b) tocomplement or be made consistent with the State Medical Facilities Planapproved by the Governor, if the rule addresses a matter included in the StateMedical Facilities Plan, and the proposed rule and a notice of public hearingis submitted to the Codifier of Rules prior to the effective date of the Plan.
(7) The need for theWildlife Resources Commission to establish any of the following:
a. No wake zones.
b. Hunting or fishingseasons.
c. Hunting or fishingbag limits.
d. Management of publicgame lands as defined in G.S. 113‑129(8a).
(8) The need for theSecretary of State to implement the certification technology provisions ofArticle 11A of Chapter 66 of the General Statutes, to adopt uniform Statementsof Policy that have been officially adopted by the North American SecuritiesAdministrators Association, Inc., for the purpose of promoting uniformity ofstate securities regulation, and to adopt rules governing the conduct ofhearings pursuant to this Chapter.
(9) The need for theCommissioner of Insurance to implement the provisions of G.S. 58‑2‑205.
(10) The need for theChief Information Officer to implement the information technology procurementprovisions of Article 3D of Chapter 147 of the General Statutes.
(11) The need for theState Board of Elections to adopt a temporary rule after prior notice orhearing or upon any abbreviated notice or hearing the agency finds practicalfor one or more of the following:
a. In accordance withthe provisions of G.S. 163‑22.2.
b. To implement anyprovisions of state or federal law for which the State Board of Elections hasbeen authorized to adopt rules.
c. The need for therule to become effective immediately in order to preserve the integrity ofupcoming elections and the elections process.
(12) The need for anagency to adopt a temporary rule to implement the provisions of any of thefollowing acts until all rules necessary to implement the provisions of the acthave become effective as either temporary or permanent rules:
a. Repealed by SessionLaws 2000‑148, s. 5, effective July 1, 2002.
b. Repealed by SessionLaws 2000‑69, s. 5, effective July 1, 2003.
(13) Reserved
(14) Reserved.
(15) Expired pursuant toSession Laws 2002‑164, s. 5, effective October 1, 2004.
(16) Expired pursuant toSession Laws 2003-184, s. 3, effective July 1, 2005.
(a1) Recodified assubdivision (a)(16) of this section by Session Laws 2004‑156, s. 1.
(a2) A recent act,change, regulation, or order as used in subdivisions (2) through (5) ofsubsection (a) of this section means an act, change, regulation, or orderoccurring or made effective no more than 210 days prior to the submission of atemporary rule to the Rules Review Commission. Upon written request of theagency, the Commission may waive the 210‑day requirement uponconsideration of the degree of public benefit, whether the agency had controlover the circumstances that required the requested waiver, notice to andopposition by the public, the need for the waiver, and previous requests forwaivers submitted by the agency.
(a3) Unless otherwiseprovided by law, at least 30 business days prior to adopting a temporary rule,the agency shall:
(1) Submit the rule anda notice of public hearing to the Codifier of Rules, and the Codifier of Rulesshall publish the proposed temporary rule and the notice of public hearing onthe Internet to be posted within five business days.
(2) Notify persons onthe mailing list maintained pursuant to G.S. 150B‑21.2(d) and any otherinterested parties of its intent to adopt a temporary rule and of the publichearing.
(3) Accept writtencomments on the proposed temporary rule for at least 15 business days prior toadoption of the temporary rule.
(4) Hold at least onepublic hearing on the proposed temporary rule no less than five days after therule and notice have been published.
(a4) An agency must alsoprepare a written statement of its findings of need for a temporary rulestating why adherence to the notice and hearing requirements in G.S. 150B‑21.2would be contrary to the public interest and why the immediate adoption of therule is required. If the temporary rule establishes a new fee or increases anexisting fee, the agency shall include in the written statement that it hascomplied with the requirements of G.S. 12‑3.1. The statement must besigned by the head of the agency adopting the temporary rule.
(b) Review. When anagency adopts a temporary rule it must submit the rule and the agency's writtenstatement of its findings of the need for the rule to the Rules ReviewCommission. Within 15 business days after receiving the proposed temporaryrule, the Commission shall review the agency's written statement of findings ofneed for the rule and the rule to determine whether the statement meets thecriteria listed in subsection (a) of this section and the rule meets thestandards in G.S. 150B‑21.9. The Commission shall direct a member of itsstaff who is an attorney licensed to practice law in North Carolina to reviewthe statement of findings of need and the rule. The staff member shall make arecommendation to the Commission, which must be approved by the Commission orits designee. The Commission's designee shall be a panel of at least threemembers of the Commission. In reviewing the statement, the Commission or itsdesignee may consider any information submitted by the agency or another person.If the Commission or its designee finds that the statement meets the criterialisted in subsection (a) of this section and the rule meets the standards inG.S. 150B‑21.9, the Commission or its designee must approve the temporaryrule and deliver the rule to the Codifier of Rules within two business days ofapproval. The Codifier of Rules must enter the rule into the North CarolinaAdministrative Code on the sixth business day following receipt from theCommission or its designee.
(b1) If the Commission orits designee finds that the statement does not meet the criteria listed insubsection (a) of this section or that the rule does not meet the standards inG.S. 150B‑21.9, the Commission or its designee must immediately notifythe head of the agency. The agency may supplement its statement of need withadditional findings or submit a new statement. If the agency providesadditional findings or submits a new statement, the Commission or its designeemust review the additional findings or new statement within five business daysafter the agency submits the additional findings or new statement. If theCommission or its designee again finds that the statement does not meet thecriteria listed in subsection (a) of this section or that the rule does notmeet the standards in G.S. 150B‑21.9, the Commission or its designee mustimmediately notify the head of the agency and return the rule to the agency.
(b2) If an agency decidesnot to provide additional findings or submit a new statement when notified bythe Commission or its designee that the agency's findings of need for a rule donot meet the required criteria or that the rule does not meet the requiredstandards, the agency must notify the Commission or its designee of itsdecision. The Commission or its designee shall then return the rule to theagency. When the Commission returns a rule to an agency in accordance with thissubsection, the agency may file an action for declaratory judgment in WakeCounty Superior Court pursuant to Article 26 of Chapter 1 of the GeneralStatutes.
(b3) Notwithstanding anyother provision of this subsection, if the agency has not complied with theprovisions of G.S. 12‑3.1, the Codifier of Rules shall not enter the ruleinto the Code.
(c) Standing. Aperson aggrieved by a temporary rule adopted by an agency may file an actionfor declaratory judgment in Wake County Superior Court pursuant to Article 26of Chapter 1 of the General Statutes. In the action, the court shall determinewhether the agency's written statement of findings of need for the rule meetsthe criteria listed in subsection (a) of this section and whether the rulemeets the standards in G.S. 150B‑21.9. The court shall not grant an exparte temporary restraining order.
(c1) Filing a petitionfor rule making or a request for a declaratory ruling with the agency thatadopted the rule is not a prerequisite to filing an action under thissubsection. A person who files an action for declaratory judgment under thissubsection must serve a copy of the complaint on the agency that adopted therule being contested, the Codifier of Rules, and the Commission.
(d) Effective Date andExpiration. 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 specifiedin the rule.
(2) The effective dateof the permanent rule adopted to replace the temporary rule, if the Commissionapproves the permanent rule.
(3) The date theCommission returns to an agency a permanent rule the agency adopted to replacethe temporary rule.
(4) The effective dateof an act of the General Assembly that specifically disapproves a permanentrule adopted to replace the temporary rule.
(5) 270 days from thedate the temporary rule was published in the North Carolina Register, unlessthe permanent rule adopted to replace the temporary rule has been submitted tothe Commission.
(e) Publication. Whenthe Codifier of Rules enters a temporary rule in the North CarolinaAdministrative Code, the Codifier must publish the rule in the North CarolinaRegister. (1973,c. 1331, s. 1; 1981, c. 688, s. 12; 1981 (Reg. Sess., 1982), c. 1232, s. 1;1983, c. 857; c. 927, ss. 4, 8; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c.1022, s. 1(1), 1(8); 1987, c. 285, ss. 10‑12; 1991, c. 418, s. 1; 1991(Reg. Sess., 1992), c. 900, s. 149; 1993, c. 553, s. 54; 1995, c. 507, s.27.8(c); 1996, 2nd Ex. Sess., c. 18, ss. 7.10(c), (d); 1997‑403, ss. 1‑3;1998‑127, s. 2; 1998‑212, s. 26B(h); 1999‑434, s. 16; 1999‑453,s. 5(a); 2000‑69, ss. 3, 5; 2000‑148, ss. 4, 5; 2001‑126, s.12; 2001‑421, s. 2.3; 2001‑424, ss. 27.17(b), 27.22(a); 2001‑487,s. 21(g); 2002‑97, ss. 2, 3; 2002‑164, s. 4.6; 2003‑184, s.3; 2003‑229, s. 2; 2003‑413, ss. 27, 29; 2004‑156, s. 1.)
§ 150B‑21.1. Procedurefor adopting a temporary rule.
(a) Adoption. Anagency may adopt a temporary rule when it finds that adherence to the noticeand hearing requirements of G.S. 150B‑21.2 would be contrary to thepublic interest and that the immediate adoption of the rule is required by oneor more of the following:
(1) A serious andunforeseen threat to the public health, safety, or welfare.
(2) The effective dateof a recent act of the General Assembly or the United States Congress.
(3) A recent change infederal or State budgetary policy.
(4) A recent federalregulation.
(5) A recent courtorder.
(6) The need for a ruleestablishing review criteria as authorized by G.S. 131E‑183(b) tocomplement or be made consistent with the State Medical Facilities Planapproved by the Governor, if the rule addresses a matter included in the StateMedical Facilities Plan, and the proposed rule and a notice of public hearingis submitted to the Codifier of Rules prior to the effective date of the Plan.
(7) The need for theWildlife Resources Commission to establish any of the following:
a. No wake zones.
b. Hunting or fishingseasons.
c. Hunting or fishingbag limits.
d. Management of publicgame lands as defined in G.S. 113‑129(8a).
(8) The need for theSecretary of State to implement the certification technology provisions ofArticle 11A of Chapter 66 of the General Statutes, to adopt uniform Statementsof Policy that have been officially adopted by the North American SecuritiesAdministrators Association, Inc., for the purpose of promoting uniformity ofstate securities regulation, and to adopt rules governing the conduct ofhearings pursuant to this Chapter.
(9) The need for theCommissioner of Insurance to implement the provisions of G.S. 58‑2‑205.
(10) The need for theChief Information Officer to implement the information technology procurementprovisions of Article 3D of Chapter 147 of the General Statutes.
(11) The need for theState Board of Elections to adopt a temporary rule after prior notice orhearing or upon any abbreviated notice or hearing the agency finds practicalfor one or more of the following:
a. In accordance withthe provisions of G.S. 163‑22.2.
b. To implement anyprovisions of state or federal law for which the State Board of Elections hasbeen authorized to adopt rules.
c. The need for therule to become effective immediately in order to preserve the integrity ofupcoming elections and the elections process.
(12) The need for anagency to adopt a temporary rule to implement the provisions of any of thefollowing acts until all rules necessary to implement the provisions of the acthave become effective as either temporary or permanent rules:
a. Repealed by SessionLaws 2000‑148, s. 5, effective July 1, 2002.
b. Repealed by SessionLaws 2000‑69, s. 5, effective July 1, 2003.
(13) Reserved
(14) Reserved.
(15) Expired pursuant toSession Laws 2002‑164, s. 5, effective October 1, 2004.
(16) Expired pursuant toSession Laws 2003-184, s. 3, effective July 1, 2005.
(a1) Recodified assubdivision (a)(16) of this section by Session Laws 2004‑156, s. 1.
(a2) A recent act,change, regulation, or order as used in subdivisions (2) through (5) ofsubsection (a) of this section means an act, change, regulation, or orderoccurring or made effective no more than 210 days prior to the submission of atemporary rule to the Rules Review Commission. Upon written request of theagency, the Commission may waive the 210‑day requirement uponconsideration of the degree of public benefit, whether the agency had controlover the circumstances that required the requested waiver, notice to andopposition by the public, the need for the waiver, and previous requests forwaivers submitted by the agency.
(a3) Unless otherwiseprovided by law, at least 30 business days prior to adopting a temporary rule,the agency shall:
(1) Submit the rule anda notice of public hearing to the Codifier of Rules, and the Codifier of Rulesshall publish the proposed temporary rule and the notice of public hearing onthe Internet to be posted within five business days.
(2) Notify persons onthe mailing list maintained pursuant to G.S. 150B‑21.2(d) and any otherinterested parties of its intent to adopt a temporary rule and of the publichearing.
(3) Accept writtencomments on the proposed temporary rule for at least 15 business days prior toadoption of the temporary rule.
(4) Hold at least onepublic hearing on the proposed temporary rule no less than five days after therule and notice have been published.
(a4) An agency must alsoprepare a written statement of its findings of need for a temporary rulestating why adherence to the notice and hearing requirements in G.S. 150B‑21.2would be contrary to the public interest and why the immediate adoption of therule is required. If the temporary rule establishes a new fee or increases anexisting fee, the agency shall include in the written statement that it hascomplied with the requirements of G.S. 12‑3.1. The statement must besigned by the head of the agency adopting the temporary rule.
(b) Review. When anagency adopts a temporary rule it must submit the rule and the agency's writtenstatement of its findings of the need for the rule to the Rules ReviewCommission. Within 15 business days after receiving the proposed temporaryrule, the Commission shall review the agency's written statement of findings ofneed for the rule and the rule to determine whether the statement meets thecriteria listed in subsection (a) of this section and the rule meets thestandards in G.S. 150B‑21.9. The Commission shall direct a member of itsstaff who is an attorney licensed to practice law in North Carolina to reviewthe statement of findings of need and the rule. The staff member shall make arecommendation to the Commission, which must be approved by the Commission orits designee. The Commission's designee shall be a panel of at least threemembers of the Commission. In reviewing the statement, the Commission or itsdesignee may consider any information submitted by the agency or another person.If the Commission or its designee finds that the statement meets the criterialisted in subsection (a) of this section and the rule meets the standards inG.S. 150B‑21.9, the Commission or its designee must approve the temporaryrule and deliver the rule to the Codifier of Rules within two business days ofapproval. The Codifier of Rules must enter the rule into the North CarolinaAdministrative Code on the sixth business day following receipt from theCommission or its designee.
(b1) If the Commission orits designee finds that the statement does not meet the criteria listed insubsection (a) of this section or that the rule does not meet the standards inG.S. 150B‑21.9, the Commission or its designee must immediately notifythe head of the agency. The agency may supplement its statement of need withadditional findings or submit a new statement. If the agency providesadditional findings or submits a new statement, the Commission or its designeemust review the additional findings or new statement within five business daysafter the agency submits the additional findings or new statement. If theCommission or its designee again finds that the statement does not meet thecriteria listed in subsection (a) of this section or that the rule does notmeet the standards in G.S. 150B‑21.9, the Commission or its designee mustimmediately notify the head of the agency and return the rule to the agency.
(b2) If an agency decidesnot to provide additional findings or submit a new statement when notified bythe Commission or its designee that the agency's findings of need for a rule donot meet the required criteria or that the rule does not meet the requiredstandards, the agency must notify the Commission or its designee of itsdecision. The Commission or its designee shall then return the rule to theagency. When the Commission returns a rule to an agency in accordance with thissubsection, the agency may file an action for declaratory judgment in WakeCounty Superior Court pursuant to Article 26 of Chapter 1 of the GeneralStatutes.
(b3) Notwithstanding anyother provision of this subsection, if the agency has not complied with theprovisions of G.S. 12‑3.1, the Codifier of Rules shall not enter the ruleinto the Code.
(c) Standing. Aperson aggrieved by a temporary rule adopted by an agency may file an actionfor declaratory judgment in Wake County Superior Court pursuant to Article 26of Chapter 1 of the General Statutes. In the action, the court shall determinewhether the agency's written statement of findings of need for the rule meetsthe criteria listed in subsection (a) of this section and whether the rulemeets the standards in G.S. 150B‑21.9. The court shall not grant an exparte temporary restraining order.
(c1) Filing a petitionfor rule making or a request for a declaratory ruling with the agency thatadopted the rule is not a prerequisite to filing an action under thissubsection. A person who files an action for declaratory judgment under thissubsection must serve a copy of the complaint on the agency that adopted therule being contested, the Codifier of Rules, and the Commission.
(d) Effective Date andExpiration. 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 specifiedin the rule.
(2) The effective dateof the permanent rule adopted to replace the temporary rule, if the Commissionapproves the permanent rule.
(3) The date theCommission returns to an agency a permanent rule the agency adopted to replacethe temporary rule.
(4) The effective dateof an act of the General Assembly that specifically disapproves a permanentrule adopted to replace the temporary rule.
(5) 270 days from thedate the temporary rule was published in the North Carolina Register, unlessthe permanent rule adopted to replace the temporary rule has been submitted tothe Commission.
(e) Publication. Whenthe Codifier of Rules enters a temporary rule in the North CarolinaAdministrative Code, the Codifier must publish the rule in the North CarolinaRegister. (1973,c. 1331, s. 1; 1981, c. 688, s. 12; 1981 (Reg. Sess., 1982), c. 1232, s. 1;1983, c. 857; c. 927, ss. 4, 8; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c.1022, s. 1(1), 1(8); 1987, c. 285, ss. 10‑12; 1991, c. 418, s. 1; 1991(Reg. Sess., 1992), c. 900, s. 149; 1993, c. 553, s. 54; 1995, c. 507, s.27.8(c); 1996, 2nd Ex. Sess., c. 18, ss. 7.10(c), (d); 1997‑403, ss. 1‑3;1998‑127, s. 2; 1998‑212, s. 26B(h); 1999‑434, s. 16; 1999‑453,s. 5(a); 2000‑69, ss. 3, 5; 2000‑148, ss. 4, 5; 2001‑126, s.12; 2001‑421, s. 2.3; 2001‑424, ss. 27.17(b), 27.22(a); 2001‑487,s. 21(g); 2002‑97, ss. 2, 3; 2002‑164, s. 4.6; 2003‑184, s.3; 2003‑229, s. 2; 2003‑413, ss. 27, 29; 2004‑156, s. 1.)
§ 150B‑21.1. Procedurefor adopting a temporary rule.
(a) Adoption. Anagency may adopt a temporary rule when it finds that adherence to the noticeand hearing requirements of G.S. 150B‑21.2 would be contrary to thepublic interest and that the immediate adoption of the rule is required by oneor more of the following:
(1) A serious andunforeseen threat to the public health, safety, or welfare.
(2) The effective dateof a recent act of the General Assembly or the United States Congress.
(3) A recent change infederal or State budgetary policy.
(4) A recent federalregulation.
(5) A recent courtorder.
(6) The need for a ruleestablishing review criteria as authorized by G.S. 131E‑183(b) tocomplement or be made consistent with the State Medical Facilities Planapproved by the Governor, if the rule addresses a matter included in the StateMedical Facilities Plan, and the proposed rule and a notice of public hearingis submitted to the Codifier of Rules prior to the effective date of the Plan.
(7) The need for theWildlife Resources Commission to establish any of the following:
a. No wake zones.
b. Hunting or fishingseasons.
c. Hunting or fishingbag limits.
d. Management of publicgame lands as defined in G.S. 113‑129(8a).
(8) The need for theSecretary of State to implement the certification technology provisions ofArticle 11A of Chapter 66 of the General Statutes, to adopt uniform Statementsof Policy that have been officially adopted by the North American SecuritiesAdministrators Association, Inc., for the purpose of promoting uniformity ofstate securities regulation, and to adopt rules governing the conduct ofhearings pursuant to this Chapter.
(9) The need for theCommissioner of Insurance to implement the provisions of G.S. 58‑2‑205.
(10) The need for theChief Information Officer to implement the information technology procurementprovisions of Article 3D of Chapter 147 of the General Statutes.
(11) The need for theState Board of Elections to adopt a temporary rule after prior notice orhearing or upon any abbreviated notice or hearing the agency finds practicalfor one or more of the following:
a. In accordance withthe provisions of G.S. 163‑22.2.
b. To implement anyprovisions of state or federal law for which the State Board of Elections hasbeen authorized to adopt rules.
c. The need for therule to become effective immediately in order to preserve the integrity ofupcoming elections and the elections process.
(12) The need for anagency to adopt a temporary rule to implement the provisions of any of thefollowing acts until all rules necessary to implement the provisions of the acthave become effective as either temporary or permanent rules:
a. Repealed by SessionLaws 2000‑148, s. 5, effective July 1, 2002.
b. Repealed by SessionLaws 2000‑69, s. 5, effective July 1, 2003.
(13) Reserved
(14) Reserved.
(15) Expired pursuant toSession Laws 2002‑164, s. 5, effective October 1, 2004.
(16) Expired pursuant toSession Laws 2003-184, s. 3, effective July 1, 2005.
(a1) Recodified assubdivision (a)(16) of this section by Session Laws 2004‑156, s. 1.
(a2) A recent act,change, regulation, or order as used in subdivisions (2) through (5) ofsubsection (a) of this section means an act, change, regulation, or orderoccurring or made effective no more than 210 days prior to the submission of atemporary rule to the Rules Review Commission. Upon written request of theagency, the Commission may waive the 210‑day requirement uponconsideration of the degree of public benefit, whether the agency had controlover the circumstances that required the requested waiver, notice to andopposition by the public, the need for the waiver, and previous requests forwaivers submitted by the agency.
(a3) Unless otherwiseprovided by law, at least 30 business days prior to adopting a temporary rule,the agency shall:
(1) Submit the rule anda notice of public hearing to the Codifier of Rules, and the Codifier of Rulesshall publish the proposed temporary rule and the notice of public hearing onthe Internet to be posted within five business days.
(2) Notify persons onthe mailing list maintained pursuant to G.S. 150B‑21.2(d) and any otherinterested parties of its intent to adopt a temporary rule and of the publichearing.
(3) Accept writtencomments on the proposed temporary rule for at least 15 business days prior toadoption of the temporary rule.
(4) Hold at least onepublic hearing on the proposed temporary rule no less than five days after therule and notice have been published.
(a4) An agency must alsoprepare a written statement of its findings of need for a temporary rulestating why adherence to the notice and hearing requirements in G.S. 150B‑21.2would be contrary to the public interest and why the immediate adoption of therule is required. If the temporary rule establishes a new fee or increases anexisting fee, the agency shall include in the written statement that it hascomplied with the requirements of G.S. 12‑3.1. The statement must besigned by the head of the agency adopting the temporary rule.
(b) Review. When anagency adopts a temporary rule it must submit the rule and the agency's writtenstatement of its findings of the need for the rule to the Rules ReviewCommission. Within 15 business days after receiving the proposed temporaryrule, the Commission shall review the agency's written statement of findings ofneed for the rule and the rule to determine whether the statement meets thecriteria listed in subsection (a) of this section and the rule meets thestandards in G.S. 150B‑21.9. The Commission shall direct a member of itsstaff who is an attorney licensed to practice law in North Carolina to reviewthe statement of findings of need and the rule. The staff member shall make arecommendation to the Commission, which must be approved by the Commission orits designee. The Commission's designee shall be a panel of at least threemembers of the Commission. In reviewing the statement, the Commission or itsdesignee may consider any information submitted by the agency or another person.If the Commission or its designee finds that the statement meets the criterialisted in subsection (a) of this section and the rule meets the standards inG.S. 150B‑21.9, the Commission or its designee must approve the temporaryrule and deliver the rule to the Codifier of Rules within two business days ofapproval. The Codifier of Rules must enter the rule into the North CarolinaAdministrative Code on the sixth business day following receipt from theCommission or its designee.
(b1) If the Commission orits designee finds that the statement does not meet the criteria listed insubsection (a) of this section or that the rule does not meet the standards inG.S. 150B‑21.9, the Commission or its designee must immediately notifythe head of the agency. The agency may supplement its statement of need withadditional findings or submit a new statement. If the agency providesadditional findings or submits a new statement, the Commission or its designeemust review the additional findings or new statement within five business daysafter the agency submits the additional findings or new statement. If theCommission or its designee again finds that the statement does not meet thecriteria listed in subsection (a) of this section or that the rule does notmeet the standards in G.S. 150B‑21.9, the Commission or its designee mustimmediately notify the head of the agency and return the rule to the agency.
(b2) If an agency decidesnot to provide additional findings or submit a new statement when notified bythe Commission or its designee that the agency's findings of need for a rule donot meet the required criteria or that the rule does not meet the requiredstandards, the agency must notify the Commission or its designee of itsdecision. The Commission or its designee shall then return the rule to theagency. When the Commission returns a rule to an agency in accordance with thissubsection, the agency may file an action for declaratory judgment in WakeCounty Superior Court pursuant to Article 26 of Chapter 1 of the GeneralStatutes.
(b3) Notwithstanding anyother provision of this subsection, if the agency has not complied with theprovisions of G.S. 12‑3.1, the Codifier of Rules shall not enter the ruleinto the Code.
(c) Standing. Aperson aggrieved by a temporary rule adopted by an agency may file an actionfor declaratory judgment in Wake County Superior Court pursuant to Article 26of Chapter 1 of the General Statutes. In the action, the court shall determinewhether the agency's written statement of findings of need for the rule meetsthe criteria listed in subsection (a) of this section and whether the rulemeets the standards in G.S. 150B‑21.9. The court shall not grant an exparte temporary restraining order.
(c1) Filing a petitionfor rule making or a request for a declaratory ruling with the agency thatadopted the rule is not a prerequisite to filing an action under thissubsection. A person who files an action for declaratory judgment under thissubsection must serve a copy of the complaint on the agency that adopted therule being contested, the Codifier of Rules, and the Commission.
(d) Effective Date andExpiration. 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 specifiedin the rule.
(2) The effective dateof the permanent rule adopted to replace the temporary rule, if the Commissionapproves the permanent rule.
(3) The date theCommission returns to an agency a permanent rule the agency adopted to replacethe temporary rule.
(4) The effective dateof an act of the General Assembly that specifically disapproves a permanentrule adopted to replace the temporary rule.
(5) 270 days from thedate the temporary rule was published in the North Carolina Register, unlessthe permanent rule adopted to replace the temporary rule has been submitted tothe Commission.
(e) Publication. Whenthe Codifier of Rules enters a temporary rule in the North CarolinaAdministrative Code, the Codifier must publish the rule in the North CarolinaRegister. (1973,c. 1331, s. 1; 1981, c. 688, s. 12; 1981 (Reg. Sess., 1982), c. 1232, s. 1;1983, c. 857; c. 927, ss. 4, 8; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c.1022, s. 1(1), 1(8); 1987, c. 285, ss. 10‑12; 1991, c. 418, s. 1; 1991(Reg. Sess., 1992), c. 900, s. 149; 1993, c. 553, s. 54; 1995, c. 507, s.27.8(c); 1996, 2nd Ex. Sess., c. 18, ss. 7.10(c), (d); 1997‑403, ss. 1‑3;1998‑127, s. 2; 1998‑212, s. 26B(h); 1999‑434, s. 16; 1999‑453,s. 5(a); 2000‑69, ss. 3, 5; 2000‑148, ss. 4, 5; 2001‑126, s.12; 2001‑421, s. 2.3; 2001‑424, ss. 27.17(b), 27.22(a); 2001‑487,s. 21(g); 2002‑97, ss. 2, 3; 2002‑164, s. 4.6; 2003‑184, s.3; 2003‑229, s. 2; 2003‑413, ss. 27, 29; 2004‑156, s. 1.)
