North Carolina § 150B-21 - 2. Procedure for adopting a permanent rule.

§ 150B-21. 2. Procedure for adopting a permanent rule.

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: Publish a notice of text in the North Carolina Register. When required by G.S. 150B-21.4, prepare or obtain a fiscal note for the proposed rule. Repealed by Session Laws 2003-229, s. 4, effective July 1, 2003. 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. Accept oral or written comments on the proposed rule as required by subsection (f) of this section. Repealed by Session Laws 2003-229, s. 4, effective July 1, 2003. Notice of Text. - A notice of the proposed text of a rule must include all of the following: 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. A short explanation of the reason for the proposed rule. A link to the agency's website containing the information required by G.S. 150B-19.1(c). A citation to the law that gives the agency the authority to adopt the rule. The proposed effective date of the rule. The date, time, and place of any public hearing scheduled on the rule. 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. The (i) period of time during which and (ii) person within the agency to whom written comments may be submitted on the proposed rule. 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. Repealed by Session Laws 2013-143, s. 1, effective June 19, 2013. 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. 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. 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. 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. 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. Addresses a subject matter or an issue that is not addressed in the proposed text of the rule. Produces an effect that could not reasonably have been expected based on the proposed text of the rule. 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. 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. An agency may hold a public hearing on a proposed rule and fiscal note in other circumstances. When an agency is required to hold a public hearing on a proposed rule or decides to hold a public hearing on a proposed rule when it is not required to do so, the agency must publish in the North Carolina Register a notice of the date, time, and place of the public hearing. The hearing date of a public hearing held after the agency publishes notice of the hearing in the North Carolina Register must be at least 15 days after the date the notice is published. If notice of a public hearing has been published in the North Carolina Register and that public hearing has been cancelled, the agency must publish notice in the North Carolina Register at least 15 days prior to the date of any rescheduled hearing. An adopted rule differs substantially from a proposed rule if it does one or more of the following: 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. History (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); 2003-229, s. 4; 2011-398, s. 5; 2013-143, s. 1; 2013-413, s. 3(a); 2021-88, s. 17.) Editor's Note. - Session Laws 1986, Extra Session, c. 2, effective February 18, 1986, s. 1 provided: "Prior to the first publication of the North Carolina Register the notice of publication requirements of G.S. 150B-12(c) [now repealed] are met if an agency publishes in one or more newspapers of general circulation notice which includes: "(1) A reference to the statutory authority under which the action is proposed. "(2) The time and place of the public hearing and a statement of the manner in which data, views, and arguments may be submitted to the agency either at the hearing or at other times by any person. "(3) A statement of the terms or substance of the proposed rule or a description of the subjects and issues involved, and the proposed effective date of the rule." Session Laws 2011-398, s. 5, which amended subsections (a), (c), (e), (f), (g), and (i) of this section, is applicable to rules adopted on or after October 1, 2011. Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: "Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law." For Section 55.2, see editor's note under G.S. 150B-34. Session Laws 2011-398, s. 62, is a severability clause. Session Laws 2013-294, s. 11, provides: "Notwithstanding G.S. 150B-21.2, the Industrial Commission shall adopt permanent rules in accordance with the provisions of this act using the procedure and time lines for temporary rules set forth in G.S. 150B-21.1(a3). Rules adopted by the Industrial Commission in accordance with this section shall be subject to review by the Rules Review Commission as provided by G.S. 150B-21.1(b); provided however, that if the rules are approved by the Rules Review Commission, they shall become effective as provided by G.S. 150B-21.3(b). Rules adopted pursuant to this section shall not be subject to G.S. 150B-19.1(h) or G.S. 150B-21.4. The Industrial Commission shall consult with the Office of Administrative Hearings to ensure that rules adopted in accordance with this section are submitted to the Rules Review Commission in time to be eligible for legislative disapproval in the 2014 Regular Session of the 2013 General Assembly. The rules of the Industrial Commission that were in effect on the effective date of S.L. 2011-287 shall remain in effect with regard to rules disapproved by Sections 1 and 2 of this act until rules adopted to replace the disapproved rules become effective pursuant to this section." Session Laws 2013-413, s. 21(a)-(d), as amended by Session Laws 2015-263, s. 16, provides: "(a) 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards). - Until the effective date of the revised permanent rules that the Environmental Management Commission is required to adopt pursuant to Section 21(c) of this act, the Commission and the Department of Environment and Natural Resources shall implement 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards) as provided in Section 21(b) of this act. "(b) Implementation. - Notwithstanding 15A NCAC 02T.1302 (Definitions), "new animal waste management system" means animal waste management systems which are constructed and operated at a site where no feedlot existed previously or where a permit for a system has been rescinded, and is then reissued when the permittee confines animals in excess of the thresholds established in G.S. 143-215.10B. Notwithstanding subsection (a) of 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards), the Swine Waste Management System Performance Standards shall: "(1) Apply to any farm facility that receives a permit for its animal waste management system that allows a level of production at the farm, as measured by steady state live weight, greater than the largest production for which the farm has received a permit in the past, and so that they also apply to any other animal waste management system otherwise subject to regulation under G.S. 143-215.10I. "(2) Not apply to any facility that meets all of the following conditions: "a. Has had no animals on site for five continuous years or more. "b. Notifies the Division of Water Resources in writing at least 60 days prior to bringing any animals back on to the site. "c. The system depopulated after January 1, 2005, and the system ceased operation no longer than 10 years prior to the current date. "d. At the time the system ceased operation, the system was in compliance with an individual permit or a general permit issued pursuant to G.S. 143-215.10C. "e. The Division of Water Resources issues an individual permit or certificate of coverage under a general permit issued pursuant to G.S. 143-215.10C for operation of the system before any animals are brought on the facility. "f. The permit for the animal waste management system does not allow production, measured by steady state live weight, to exceed the greatest steady state live weight previously permitted for the system under G.S. 143-215.10C. "g. No component of the animal waste management system and swine farm, other than an existing swine house or land application site, shall be constructed on land that is located within the 100-year floodplain. "h. The inactive animal waste management system was not closed using the expenditure of public funds and was not closed pursuant to a settlement agreement, court order, cost share agreement, or grant condition. "(c) Additional Rule-Making Authority. - The Environmental Management Commission shall adopt rules as promptly as practicable to amend 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards) consistent with Section 21(b) of this act. Notwithstanding G.S. 150B-19(4), the rules adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 21(b) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2). "(d) Sunset. - Section 21(b) of this act expires on the date that rules adopted pursuant to Section 21(c) of this act become effective." Session Laws 2013-413, s. 22(a)-(e), provides: "(a) The definitions set out in G.S. 143-212 and 15A NCAC 02U.0103 (Definitions) apply to this section. "(b) 15A NCAC 02U.0701 (Setbacks). - Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 22(d) of this act, the Commission and the Department shall implement 15A NCAC 02U.0701 (Setbacks) as provided in Section 22(c) of this act. "(c) Implementation. - Notwithstanding 15A NCAC 02U.0701 (Setbacks), the rule shall be implemented as provided in this section. "(1) Setbacks in subsection (c) of the rule for surface waters not classified as SA shall not apply provided that the reclaimed water to be utilized contains no more than 10 mg/l of Total Nitrogen and no more than 2 mg/l of Total Phosphorus. The elimination of setbacks to surface waters does not exempt any discharge of reclaimed water to waters of the State from meeting permit requirements established in 15A NCAC 02U.0101 (Purpose). "(2) Notwithstanding subsections (a) and (b) of the rule, no setback shall be required between final reclaimed water effluent storage facilities and property lines provided that the proposed final effluent storage facility was constructed prior to June 18, 2011. "(3) Setbacks between reclaimed water storage ponds and property lines or wells under separate ownership may be waived by the adjoining property owner. A copy of the signed waiver shall be provided to the Department. "(4) Setbacks between reclaimed water storage ponds and wells under the same ownership as the reclaimed water storage pond may be waived by the property owner. "(d) Additional Rule-Making Authority. - The Environmental Management Commission shall adopt a rule to amend 15A NCAC 02U.0701 (Setbacks) consistent with Section 22(c) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 22(c) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2). "(e) Sunset. - Section 22(c) of this act expires on the date that rules adopted pursuant to Section 22(d) of this act become effective." Session Laws 2013-413, s. 61(b), provides: "Except as otherwise provided, this act is effective when it becomes law [August 23, 2013]." Session Laws 2013-413, s. 60(c), had provided that: "This act becomes effective July 1, 2015." Session Laws 2014-115, s. 17, amended Session Laws 2013-413, s. 60(c), to replace the reference to "This act" with the words "This Part." Session Laws 2013-413, s. 61(a), is a severability clause. Effect of Amendments. - Session Laws 2011-398, s. 5, effective October 1, 2011, and applicable to rules adopted on or after that date, inserted "the agency must comply with the requirements of G.S. 150B-19.1, and" in the introductory paragraph of subsection (a); added "and a link to the agency's Web site containing the information required by G.S. 150B-19.1(c)" in subdivision (c)(2); in subsection (e), added the last sentence of the first paragraph, and inserted "and fiscal note" in the first sentence of the second paragraph; inserted "and any fiscal note that has been prepared in connection with the proposed rule" in subsection (f); added the second sentence in subsection (g); and inserted "any fiscal note that has been prepared for the rule" in the last sentence of subsection (i). Session Laws 2021-88, s. 17, effective July 22, 2021, substituted "website” for "Web site” in subdivision (c)(2a); rewrote subsection (d); substituted "must publish” for shall publish” in the last paragraph in subsection (e); substituted "must review” for "shall review” in subsection (g); substituted "persons that, based” for "persons who, based” in subdivision (1) of the last paragraph in subsection (g); and substituted "rulemaking” for "rule making” in subsection (i). Legal Periodicals. - For article, "Wind Over North Carolina Waters: The State's Preparedness to Address Offshore and Coastal Water-Based Wind Energy Projects," see 87 N.C.L. Rev. 1819 (2009).