Petitions for Rulemaking: Brief Overview of Process

1. Petitions for Rulemaking: Brief Overview of Process

2. Purpose • Overview of Petition Process • Issue Before the Commission • Not an endorsement, recommendation, or approval as to the petition’s merits or to how the Commission should vote • This information does not constitute a formal or informal opinion of the Attorney General’s Office

3. NC Administrative Procedure Act • Establishes the requirements for making rules, but does not control everything • Just most of everything • Establishes broad requirements for what can be in a rule and the procedures for adopting a rule • Does not replace the Commission’s authority regarding rulemaking, only controls the process

4. Petitions for Rulemaking • The petition before the Commission seeks to have the Commission initiate the rulemaking process for reclassification of a wetland. • Petition process provided by the APA • Commission Rules for Hearings and Classifications and Standards • Involves the permanent rulemaking process

5. N.C. Gen. Stat. § 150B-20 • (a) Petition. -- A person may petition an agency to adopt a rule by submitting to the agency a written rule-making petition requesting the adoption. A person may submit written comments with a rule-making petition. If a rule-making petition requests the agency to create or amend a rule, the person must submit the proposed text of the requested rule change and a statement of the effect of the requested rule change. Each agency must establish by rule the procedure for submitting a rule-making petition to it and the procedure the agency follows in considering a rule-making petition.

6. 15A NCAC 02I .0501 • (b) The petition shall contain the following information: • (1) the text of the proposed rule(s) for adoption or amendment; • (2) a statement of the reasons for adoption or amendment of the proposed rule(s), or the repeal of an existing rule(s); • (3) a statement of the effect on existing rules or orders; • (4) the name(s) and address(es) of the petitioner(s); and • (5) a request to present the petition to the committee in accordance with Rule .0502 of this Section, if desired.

7. 15A NCAC 02I .0501 Cont’d • (c) In its review of the proposed rule, the Commission shall consider whether it has authority to adopt the rule; the effect of the proposed rule on existing rules, programs, and practices; probable costs and cost factors of the proposed rule; and the impact of the rule on the public and regulated entities. The petitioner may include the following information within the request: • (1) the statutory authority for the agency to promulgate the rules(s); • (2) a statement of the effect of the proposed rule(s) on existing practices in the area involved, including cost factors for persons affected by the proposed rule(s); • (3) a statement explaining the computation of the cost factors; • (4) a description, including the names and addresses, if known, of those most likely to be affected by the proposed rule(s); and • (5) documents and data supporting the proposed rule(s).

8. 15A NCAC 2I .0502 • (a) The Chairman shall refer complete petitions to the appropriate subject area committee of the Commission for review and recommended action. … … • (d) The petitioner shall be afforded the opportunity to present the petition for rulemaking to the committee. The Director, through staff, may make a presentation to the committee. … • (e) The Chairman of the committee shall allow one interested person to present the viewpoint of those who oppose initiating rulemaking. The Chairman of the committee may determine whether additional interested persons shall make oral presentations before the committee. Interested persons must request the opportunity to make a presentation to the committee through the Director. … • (f) During the committee's review, members of the Commission, other than committee members, who are present may participate as a member of the committee in discussions of the petition but may not vote on the recommended action on the petition.

9. 15A N.C.A.C. 2B.0101 • (b) The Environmental Management Commission, prior to classifying and assigning standards of water quality to any waters of the state, shall proceed as follows: • (3) In the case of a petition for classification and assignment of water quality standards according to the requirements of General Statute 150B 20, the Director shall make a preliminary recommendation on the appropriate classifications and water quality standards of the identified waters on the basis of the study findings or information included in the petition supporting the classification and standards changes.

10. Examples of Sources of Authority • Organic Statutes Creating the Commission • Statutes providing specific authority to the Commission and general authorities • Inherent power necessary to carry out its duties • Specific limits on the Commission’s authority • General limits applicable to certain duties and responsibilities

11. Lights, Camera … Action? • N.C. Gen. Stat. § 150B-20(c) Action. -- If an agency denies a rule-making petition, it must send the person who submitted the petition a written statement of the reasons for denying the petition. If an agency grants a rule-making petition, it must inform the person who submitted the rule-making petition of its decision and must initiate rule-making proceedings.

12. If Denied • N.C. Gen. Stat. § 150B-20(d) Review. -- Denial of a rule-making petition is a final agency decision and is subject to judicial review under Article 4 of this Chapter. Failure of an agency to grant or deny a rule-making petition within the time limits set in subsection (b) is a denial of the rule-making petition. • Judicial Review in Superior Court

13. If Granted • § 150B-20(c) When an agency grants a rule-making petition, the notice of text it publishes in the North Carolina Register may state that the agency is initiating rule making as the result of a rule-making petition and state the name of the person who submitted the rule-making petition. If the rule-making petition requested the creation or amendment of a rule, the notice of text the agency publishes may set out the text of the requested rule change submitted with the rule-making petition and state whether the agency endorses the proposed text.

14. Initiate ≠ Adopt • The plain language of the statute does not require the Commission to adopt the rules if it grants the petition, only that it initiate rulemaking • North Carolina Chiropractic Association, v. North Carolina State Board of Education, 122 N.C. App. 122, 468 S.E.2d 539 (1996) • The statute and previous decisions indicate that “initiate the rulemaking process” means publishing the notice of text of the proposed rule; however, recent changes to the APA may alter the meaning of “initiate the rule making process.”

15. The Issue before the Committee • The issue before the Committee is whether it will act to recommend that the petition be granted or denied. In other words, the issue is whether to recommend to the full Commission that the rulemaking petition should be started or whether the petition should be denied. • Questions?