§ 150B-21.1A. Adoption of an emergency rule.
§ 150B‑21.1A. Adoption of an emergency rule.
(a) Adoption. An agency may adopt an emergency rule withoutprior notice or hearing or upon any abbreviated notice or hearing the agencyfinds practical when it finds that adherence to the notice and hearing requirementsof this Part would be contrary to the public interest and that the immediateadoption of the rule is required by a serious and unforeseen threat to thepublic health or safety. When an agency adopts an emergency rule, it mustsimultaneously commence the process for adopting a temporary rule by submittingthe rule to the Codifier of Rules for publication on the Internet in accordancewith G.S. 150B‑21.1(a3). The Department of Health and Human Services orthe appropriate rule‑making agency within the Department may adoptemergency rules in accordance with this section when a recent act of theGeneral Assembly or the United States Congress or a recent change in federalregulations authorizes new or increased services or benefits for children and familiesand the emergency rule is necessary to implement the change in State or federallaw.
(b) Review. An agency must prepare a written statement of itsfindings of need for an emergency rule. The statement must be signed by thehead of the agency adopting the rule. When an agency adopts an emergency rule,it must submit the rule and the agency's written statement of its findings ofthe need for the rule to the Codifier of Rules. Within two business days afteran agency submits an emergency rule, the Codifier of Rules must review theagency's written statement of findings of need for the rule to determinewhether the statement of need meets the criteria in subsection (a) of thissection. In reviewing the statement, the Codifier of Rules may consider any informationsubmitted by the agency or another person. If the Codifier of Rules finds thatthe statement meets the criteria, the Codifier of Rules must notify the head ofthe agency and enter the rule in the North Carolina Administrative Code on thesixth business day following approval by the Codifier of Rules.
If the Codifier of Rules finds that the statement does not meet thecriteria in subsection (a) of this section, the Codifier of Rules mustimmediately notify the head of the agency. The agency may supplement itsstatement of need with additional findings or submit a new statement. If theagency provides additional findings or submits a new statement, the Codifier ofRules must review the additional findings or new statement within one businessday after the agency submits the additional findings or new statement. If theCodifier of Rules again finds that the statement does not meet the criteria insubsection (a) of this section, the Codifier of Rules must immediately notifythe head of the agency.
If an agency decides not to provide additional findings or submit a newstatement when notified by the Codifier of Rules that the agency's findings ofneed for a rule do not meet the required criteria, the agency must notify theCodifier of Rules of its decision. The Codifier of Rules must then enter therule in the North Carolina Administrative Code on the sixth business day afterreceiving notice of the agency's decision. Notwithstanding any other provisionof 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.
(c) Standing. A person aggrieved by an emergency rule adoptedby an agency may file an action for declaratory judgment in Wake CountySuperior Court pursuant to Article 26 of Chapter 1 of the General Statutes. Inthe action, the court shall determine whether the agency's written statement offindings of need for the rule meets the criteria listed in subsection (a) ofthis 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.
Filing a petition for rule making or a request for a declaratory rulingwith the agency that adopted the rule is not a prerequisite to filing an actionunder this subsection. A person who files an action for declaratory judgmentunder this subsection must serve a copy of the complaint on the agency thatadopted the rule being contested, the Codifier of Rules, and the Commission.
(d) Effective Date and Expiration. An emergency rule becomeseffective on the date specified in G.S. 150B‑21.3. An emergency ruleexpires on the earliest of the following dates:
(1) The date specified in the rule.
(2) The effective date of the temporary rule adopted to replacethe emergency rule, if the Commission approves the temporary rule.
(3) The date the Commission returns to an agency a temporaryrule the agency adopted to replace the emergency rule.
(4) Sixty days from the date the emergency rule was published inthe North Carolina Register, unless the temporary rule adopted to replace theemergency rule has been submitted to the Commission.
(e) Publication. When the Codifier of Rules enters anemergency rule in the North Carolina Administrative Code, the Codifier of Rulesmust publish the rule in the North Carolina Register. (2003‑229, s. 3.)