A BILL TO BE ENTITLED
AN ACT to amend the administrative procedure act to authorize a person to petition an agency to determine the need for a rule.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 150B‑20 reads as rewritten:
"§ 150B‑20.  Petitioning an agency to adopt a rule.
(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.
(a1)	Petition to Determine Need for Rule. – A person may petition an agency to review any policy statement, guidance document, interpretive memorandum, or other document created or relied upon by the agency to determine whether the document as written or as applied falls within the definition of a rule under this Chapter and should have been adopted as a rule in accordance with this Article. The petition shall be in writing and shall include a copy of the document and a statement describing the agency's application of the document. If the agency determines that the document should be adopted as a rule, it shall grant the petition. If the agency determines that the document should not be adopted as a rule, it shall deny the petition. Each agency shall establish by rule the procedure for submitting a petition to determine the need for a rule and the procedure the agency follows in reviewing and deciding the petition.
(b)	Time. – An agency must grant or deny a  petition authorized by this section submitted to it within 30 days after the date the  petition is submitted, unless the agency is a board or commission. If the agency is a board or commission, it must grant or deny  the petition within 120 days after the date the  petition is submitted. Upon the filing of a petition under subsection (a1) of this section, the petitioner may apply to the court, pursuant to G.S. 150B‑48, for a stay of the agency's implementatation of or reliance upon the document that is the subject of the petition. In its discretion, the court may grant the stay and any other injunctive relief available pursuant to G.S. 1A‑1, Rule 65, provided however, the petitioner need only make a prima facie showing that the challenged document can in good faith be classified as a rule.
(c)	Action. – If an agency denies a   petition authorized by this section, it must send the person who submitted the petition a written statement of the reasons for denying the petition. If an agency grants a  petition authorized by this section, it must inform the person who submitted the  petition of its decision and must initiate rule‑making proceedings. When an agency grants a  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  petition authorized by this section and state the name of the person who submitted the  petition. If the  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  petition and state whether the agency endorses the proposed text.
(d)	Review. – Denial of a  petition authorized by this section 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  petition within the time limits set in subsection (b) is a denial of the  petition.
(e)	Repealed by Session Laws 1996, Second Extra Session, c. 18, s. 7.10(b)."
SECTION 2.  G.S. 150B‑51 is amended by adding two new subsections to read:
"(e)	In reviewing an appeal from a denial of a petition under G.S. 150B‑20(a), the court shall review the record before the agency to determine whether the agency's decision may have prejudiced the rights of the petitioner in one or more of the ways set forth in subdivisions (1), (2), (3), (4), or (6) of subsection (b) of this section.
(f)	In reviewing an appeal from a denial of a petition under G.S. 150B‑20(a1), the court shall determine whether the document that is the subject of the petition falls within the definition of a rule under this Chapter, either as written or applied, and whether the document should have been adopted as a rule in accordance with Article 2A of this Chapter. If the court determines that the document should have been adopted as a rule, it may issue a stay of the agency's implementation of or reliance on the document in accordance with G.S. 150B‑48, or continue any stay previously issued. The court also may direct the agency to commence rule making in accordance with Article 2A of this Chapter to adopt the document as a rule. If the court determines that the document need not have been adopted as a rule, it may lift any stay previously issued subject to such terms or conditions as the court deems appropriate."
SECTION 3.  This act becomes effective October 1, 2004.