§ 150B-1. Policy and scope.

1. Purpose. - This Chapter establishes a uniform system of administrative rule making and adjudicatory procedures for agencies. The procedures ensure that the functions of rule making, investigation, advocacy, and adjudication are not all performed by the same person in the administrative process.
2. Rights. - This Chapter confers procedural rights.
3. Full Exemptions. - This Chapter applies to every agency except:
   1. The North Carolina National Guard in exercising its court-martial jurisdiction.
   2. The Department of Health and Human Services in exercising its authority over the Camp Butner reservation granted in Article 6 of Chapter 122C of the General Statutes.
   3. The Utilities Commission.
   4. Repealed by Session Laws 2011-287, s. 21(a), effective June 24, 2011, and applicable to rules adopted on or after that date.
   5. Repealed by Session Laws 2011-401, s. 1.10(a), effective November 1, 2011.
   6. The State Board of Elections in administering the HAVA Administrative Complaint Procedure of Article 8A of Chapter 163 of the General Statutes.
   7. The North Carolina State Lottery.
   8. [Expired June 30, 2012.]
4. Exemptions from Rule Making. - Article 2A of this Chapter does not apply to the following:
   1. The Commission.
   2. Repealed by Session Laws 2000-189, s. 14, effective July 1, 2000.
   3. Repealed by Session Laws 2001-474, s. 34, effective November 29, 2001.
   4. The Department of Revenue, with respect to the notice and hearing requirements contained in Part 2 of Article 2A. With respect to the Secretary of Revenue's authority to redetermine the State net taxable income of a corporation under G.S. 105-130.5A, the Department is subject to the rule-making requirements of G.S. 105-262.1.
   5. The North Carolina Global TransPark Authority with respect to the acquisition, construction, operation, or use, including fees or charges, of any portion of a cargo airport complex.
   6. The Department of Public Safety, with respect to matters relating to executions under Article 19 of Chapter 15 of the General Statutes and matters relating solely to persons in its custody or under its supervision, including prisoners, probationers, and parolees.
   7. The State Health Plan for Teachers and State Employees in administering the provisions of Article 3B of Chapter 135 of the General Statutes.
   8. The North Carolina Federal Tax Reform Allocation Committee, with respect to the adoption of the annual qualified allocation plan required by 26 U.S.C. § 42(m), and any agency designated by the Committee to the extent necessary to administer the annual qualified allocation plan.
   9. The Department of Health and Human Services in adopting new or amending existing medical coverage policies for the State Medicaid and NC Health Choice programs pursuant to G.S. 108A-54.2.
   10. The Economic Investment Committee in developing criteria for the Job Development Investment Grant Program under Part 2F of Article 10 of Chapter 143B of the General Statutes.
   11. The North Carolina State Ports Authority with respect to fees established pursuant to G.S. 136-262(a)(11).
   12. The Department of Commerce and the Economic Investment Committee in developing criteria and administering the Site Infrastructure Development Program under G.S. 143B-437.02.
   13. The Department of Commerce and the Governor's Office in developing guidelines for the One North Carolina Fund under Part 2H of Article 10 of Chapter 143B of the General Statutes.
   14. Repealed by Session Laws 2011-145, s. 8.18(a), as amended by Session Laws 2011-391, s. 19, effective June 15, 2011.
   15. Repealed by Session Laws 2009-445, s. 41(b), effective August 7, 2009.
   16. The State Ethics Commission with respect to Chapter 138A and Chapter 120C of the General Statutes.
   17. The Department of Commerce in developing guidelines for the NC Green Business Fund under Part 2B of Article 10 of Chapter 143B of the General Statutes.
   18. The Department of Commerce and the Economic Investment Committee in developing criteria and administering the Job Maintenance and Capital Development Fund under G.S. 143B-437.012.
   19. The Department of Commerce in developing criteria and administering the Expanded Gas Products Service to Agriculture Fund under G.S. 143B-437.020.
   20. The Department of Commerce in administering the Film and Entertainment Grant Fund under G.S. 143B-437.02A.
   21. Repealed by Session Laws 2011-145, s. 8.18(a), as amended by Session Laws 2011-391, s. 19, effective June 15, 2011.
   22. The Department of Health and Human Services in implementing, operating, or overseeing new 1915(b)/(c) Medicaid Waiver programs or amendments to existing 1915(b)/(c) Medicaid Waiver programs.
   23. Reserved for future codification purposes.
   24. The Department of Health and Human Services with respect to the content of State Plans, State Plan Amendments, and Waivers approved by the Centers for Medicare and Medicaid Services (CMS) for the North Carolina Medicaid Program and the NC Health Choice program.
   25. The Department of Natural and Cultural Resources with respect to admission fees or related activity fees at historic sites and museums pursuant to G.S. 121-7.3.
   26. Tryon Palace Commission with respect to admission fees or related activity fees pursuant to G.S. 143B-71.
   27. U.S.S. Battleship Commission with respect to admission fees or related activity fees pursuant to G.S. 143B-73.
   28. The Board of Agriculture in the Department of Agriculture and Consumer Services with respect to the following:
       1. Annual admission fees for the State Fair.
       2. Operating hours, admission fees, or related activity fees at State forests.
       3. Fee schedules for the preparation of forest management plans developed pursuant to G.S. 106-1004.
   29. The Department of Natural and Cultural Resources with respect to operating hours, admission fees, or related activity fees at:
       1. The North Carolina Zoological Park pursuant to G.S. 143B-135.205.
       2. State parks pursuant to G.S. 143B-135.16.
       3. The North Carolina Aquariums pursuant to G.S. 143B-135.188.
       4. The North Carolina Museum of Natural Sciences.
   30. The Division of Motor Vehicles with respect to fee adjustments under G.S. 20-4.02.
   31. The Commission for Public Health with respect to adding to the Newborn Screening Program established under G.S. 130A-125 screening tests for Pompe disease, Mucopolysaccharidosis Type I (MPS I), and X-Linked Adrenoleukodystrophy (X-ALD).
   32. (For applicability, see editor's note) The Retirement System Boards of Trustees established under G.S. 128-28 and G.S. 135-6 when adopting actuarial tables, assumptions, and contribution-based benefit cap factors after presentation of recommendations from the actuary. This exemption includes, but is not limited to, the following actuarial tables, assumptions, methods, and factors:
       1. Joint and survivor tables.
       2. Reserve transfer tables.
       3. Interest rate assumptions.
       4. Salary increase assumptions.
       5. Mortality assumptions.
       6. Separation and retirement assumptions.
       7. Asset smoothing methods.
       8. Actuarial cost methods.
       9. Contribution-based benefit cap factors.
       10. Required contribution rates.
       11. Amortization policies.
5. Exemptions From Contested Case Provisions. - The contested case provisions of this Chapter apply to all agencies and all proceedings not expressly exempted from the Chapter. The contested case provisions of this Chapter do not apply to the following:
   1. The Department of Health and Human Services and the Department of Environmental Quality in complying with the procedural safeguards mandated by Section 680 of Part H of Public Law 99-457 as amended (Education of the Handicapped Act Amendments of 1986).
   2. Repealed by Session Laws 1993, c. 501, s. 29.
   3. , (4) Repealed by Session Laws 2001-474, s. 35, effective November 29, 2001.
6. Exemption for the University of North Carolina. - Except as provided in G.S. 143-135.3, no Article in this Chapter except Article 4 applies to The University of North Carolina.
7. Exemption for the State Board of Community Colleges. - Except as provided in G.S. 143-135.3, no Article in this Chapter except Article 4 applies to the State Board of Community Colleges.

The Board shall annually post the admission fee and operating hours schedule on its Web site and provide notice of the schedule, along with a citation to this section, to all persons named on the mailing list maintained pursuant to G.S. 150B-21.2(d).

The exclusion from rule making for the setting of operating hours set forth in this subdivision (i) shall not apply to a decision to eliminate all public operating hours for the sites and facilities listed and (ii) does not authorize any of the sites and facilities listed in this subdivision that do not currently charge an admission fee to charge an admission fee until authorized by an act of the General Assembly.

(5) Hearings required pursuant to the Rehabilitation Act of 1973, (Public Law 93-122), as amended and federal regulations promulgated thereunder. G.S. 150B-51(a) is considered a contested case hearing provision that does not apply to these hearings.

(6) Repealed by Session Laws 2007-491, s. 2, effective January 1, 2008.

(7) The Division of Adult Correction and Juvenile Justice of the Department of Public Safety.

(8) The Department of Transportation, except as provided in G.S. 136-29.

(9) The North Carolina Occupational Safety and Health Review Commission.

(10) The North Carolina Global TransPark Authority with respect to the acquisition, construction, operation, or use, including fees or charges, of any portion of a cargo airport complex.

(11) Repealed by Session Laws 2019-177, s. 8.2, effective July 26, 2019.

(12) The State Health Plan for Teachers and State Employees respect to disputes involving the performance, terms, or conditions of a contract between the Plan and an entity under contract with the Plan.

(13) The State Health Plan for Teachers and State Employees with respect to determinations by the Executive Administrator and Board of Trustees, the Plan's designated utilization review organization, or a self-funded health maintenance organization under contract with the Plan that an admission, availability of care, continued stay, or other health care service has been reviewed and, based upon the information provided, does not meet the Plan's requirements for medical necessity, appropriateness, health care setting, or level of care or effectiveness, and the requested service is therefore denied, reduced, or terminated.

(14) The Department of Public Safety for hearings and appeals authorized under Chapter 20 of the General Statutes.

(15) The Wildlife Resources Commission with respect to determinations of whether to authorize or terminate the authority of a person to sell licenses and permits as a license agent of the Wildlife Resources Commission.

(16) Repealed by Session Laws 2011-399, s. 3, effective July 25, 2011.

(17) The Department of Health and Human Services with respect to the review of North Carolina Health Choice Program determinations regarding delay, denial, reduction, suspension, or termination of health services, in whole or in part, including a determination about the type or level of services, commenced under G.S. 108A-70.29(b).

(18) Hearings provided by the Department of Health and Human Services to decide appeals pertaining to adult care home resident discharges initiated by adult care homes under G.S. 131D-4.8.

(19) The Industrial Commission.

(20) The Department of Commerce for hearings and appeals authorized under Chapter 96 of the General Statutes.

(21) The Department of Health and Human Services for actions taken under G.S. 122C-124.2.

(22) The Department of Public Safety, with respect to matters relating to executions under Article 19 of Chapter 15 of the General Statutes.

(23) The Secretary of Environmental Quality for the waiver or modification of non-State cost-share requirements under G.S. 143-215.73G.

(24) The Department of Information Technology in the written decision from a protest petition under G.S. 143B-1373.

(25) The Department of Health and Human Services with respect to disputes involving the performance, terms, or conditions of a contract between the Department and a prepaid health plan, as defined in G.S. 108D-1.

(26) The State Board of Education with respect to the disapproval, termination, renewal, or nonrenewal of charters under Article 14A of Chapter 115C of the General Statutes.

History

(1973, c. 1331, s. 1; 1975, c. 390; c. 716, s. 5; c. 721, s. 1; c. 742, s. 4; 1981, c. 614, s. 22; 1983, c. 147, s. 2; c. 927, s. 13; 1985, c. 746, ss. 1, 19; 1987, c. 112, s. 2; c. 335, s. 2; c. 536, s. 1; c. 847, s. 2; c. 850, s. 20; 1987 (Reg. Sess., 1988), c. 1082, s. 14; c. 1111, s. 9; 1989, c. 76, s. 29; c. 168, s. 33; c. 373, s. 2; c. 538, s. 1; c. 751, s. 7(44); 1989 (Reg. Sess., 1990), c. 1004, s. 36; 1991, c. 103, s. 1; c. 418, s. 2; c. 477, s. 1; c. 749, ss. 9, 10; 1991 (Reg. Sess., 1992), c. 1030, s. 46; 1993, c. 501, s. 29; 1993 (Reg. Sess., 1994), c. 777, ss. 4(j), 4(k); 1995, c. 249, s. 4; c. 507, s. 27.8(m); 1997-35, s. 2; 1997-278, s. 1; 1997-412, s. 8; 1997-443, ss. 11A.110, 11A.119(a); 2000-189, s. 14; 2001-192, s. 1; 2001-299, s. 1; 2001-395, s. 6(c); 2001-424, ss. 6.20(b), 21.20(c); 2001-446, s. 5(d); 2001-474, ss. 34, 35; 2001-496, s. 8(c); 2002-99, s. 7(b); 2002-159, ss. 31.5(b), 49; 2002-172, s. 2.6; 2002-190, s. 16; 2003-226, s. 17(b); 2003-416, s. 2; 2003-435, 2nd Ex. Sess., s. 1.3; 2004-88, s. 1(e); 2005-133, s. 10; 2005-276, s. 31.1(ff); 2005-300, s. 1; 2005-344, s. 11.1; 2005-455, s. 3.3; 2006-66, ss. 12.8(c), 8.10(d); 2006-201, s. 2(a); 2007-323, ss. 13.2(c), 28.22A(o); 2007-345, s. 12; 2007-491, s. 2; 2007-552, 1st. Ex. Sess., s. 3; 2008-107, s. 10.15A(f); 2008-168, s. 5(a); 2008-187, s. 26(b); 2009-445, s. 41(b); 2009-475, s. 4; 2009-523, s. 2(a); 2010-70, s. 2; 2011-85, s. 2.11(a); 2011-145, ss. 8.18(a), (b), 14.6(j), 19.1(g), (h); 2011-264, s. 4; 2011-272, s. 5; 2011-287, s. 21(a), (b); 2011-391, s. 19; 2011-399, ss. 2, 3; 2011-401, ss. 1.10(a), (b); 2012-43, s. 3; 2013-85, s. 10; 2013-360, ss. 19.2(d), 12H.6(c), 12H.9(c); 2014-100, ss. 13.2(a), 15.13(b), 15.14B(b); 2014-103, s. 17; 2015-198, ss. 3, 4; 2015-241, ss. 14.6(g), 14.11(a), 14.30(c), (s), (u), (v), (w), 29.30(t); 2016-113, s. 7(a); 2017-6, s. 3; 2017-186, s. 2(ddddddddd); 2017-212, s. 4.3; 2018-5, ss. 11E.1(b), 37.1(h); 2018-142, s. 21; 2018-146, ss. 3.1(a), (b), 6.1; 2019-81, s. 10; 2019-165, s. 7; 2019-177, s. 8.2; 2020-48, s. 4.1(c).)

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor conformed multiple references in subdivisions (c)(6) and (d)(16).

Session Laws 2018-146, ss. 3.1(a), (b), and 6.1, repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in subdivisions (c)(6) and (d)(16).

Community Support Providers Appeals Process. - Session Laws 2008-107, s. 10.15A(e1)-(e4), as amended by Session Laws 2009-526, s. 2(c), and Session Laws 2009-550, s. 1.1(c), provides: "(e1) For the purpose of expediting the resolution of community support provider appeals and thereby saving State and federal funds that are paid for services that are found to be unnecessary or otherwise ineligible for payment, the Department shall implement on a temporary basis a community support provider appeals process. The process shall be a substitute for informal provider appeals at the Department level and formal provider appeals by the Office of Administrative Hearings. The community support provider appeals process shall apply to a community support services provider:

"(1) Who is aggrieved by a decision of the Department to reduce, deny, recoup, or recover reimbursement for community support services, or to deny, suspend, or revoke a provider agreement to provide community support services.

"(2) Whose endorsement has been withdrawn or whose application for endorsement has been denied by a local management entity.

"(e2) The community support provider appeals process shall be developed and implemented as follows:

"(1) A hearing under this section shall be commenced by filing a petition with the chief hearings clerk of the Department within 30 days of the mailing of the notice by the Department of the action giving rise to the contested case. The petition shall identify the petitioner, be signed by the party or representative of the party, and shall describe the agency action giving rise to the contested case. As used in this section, "file or filing" means to place the paper or item to be filed into the care and custody of the chief hearings clerk of the Department and acceptance thereof by the chief hearings clerk, except that the hearing officer may permit the papers to be filed with the hearing officer, in which event the hearing officer shall note thereon the filing date. The Department shall supply forms for use in these contested cases.

"(2) If there is a timely request for an appeal, the Department shall promptly designate a hearing officer who shall hold an evidentiary hearing. The hearing officer shall conduct the hearing according to applicable federal law and regulations and shall ensure that:

"a. Notice of the hearing is given not less than 15 days before the hearing. The notice shall state the date, hour, and place of the hearing and shall be deemed to have been given on the date that a copy of the notice is mailed, via certified mail, to the address provided by the petitioner in the petition for hearing.

"b. The hearing is held in Wake County, except that the hearing officer may, take testimony and receive evidence by telephone or other electronic means. The petitioner and the petitioner's legal representative may appear before the hearing officer in Wake County.

"c. Discovery is no more extensive or formal than that required by federal law and regulations applicable to the hearings. Prior to and during the hearing, a provider representative shall have adequate opportunity to examine the provider's own case file. No later than five days before the date of the hearing, each party to a contested case shall identify each witness that the party intends to call.

"(3) The hearing officer shall have the power to administer oaths and affirmations and regulate the conduct of the hearing. The following shall apply to hearings held pursuant to this section:

"a. At the hearing, the parties may present such sworn evidence, law, and regulations as are relevant to the issues in the case.

"b. The petitioner and the respondent agency each have a right to be represented by a person of his choice, including an attorney obtained at the party's own expense.

"c. The petitioner and the respondent agency shall each have the right to cross-examine witnesses as well as make a closing argument summarizing his view of the case and the law.

"d. The appeal hearing shall be recorded. If a petition for judicial review is filed the Department shall include a copy of the recording of the hearing as part of the official record. The recording of the appeal hearing may be erased or otherwise destroyed 180 days after the final decision is mailed as provided in G.S. 108A-79(i)(5).

"(4) The hearing officer shall decide the case based upon a preponderance of the evidence, giving deference to the demonstrated knowledge and expertise of the agency as provided in G.S. 150B-34(a). The hearing officer shall prepare a proposal for the decision, citing relevant law, regulations, and evidence, which shall be served upon the petitioner or the petitioner's representative by certified mail, with a copy furnished to the respondent agency.

"(5) The petitioner and the respondent agency shall have 15 days from the date of the mailing of the proposal for decision to present written arguments in opposition to or in support of the proposal for decision to the designated official of the Department who will make the final decision. If neither written arguments are presented, nor extension of time granted by the final agency decision maker for good cause, within 15 days of the date of the mailing of the proposal for decision, the proposal for decision becomes final. If written arguments are presented, such arguments shall be considered and the final decision shall be rendered. The final decision shall be rendered not more than 180 days from the date of the filing of the petition. This time limit may be extended by agreement of the parties or by final agency decision maker, for good cause shown. The final decision shall be served upon the petitioner or the petitioner's representative by certified mail, with a copy furnished to the respondent agency. In the absence of a petition for judicial review filed pursuant to subsection (f) of this section, the final decision shall be binding upon the petitioner and the Department.

"(6) A petitioner who is dissatisfied with the final decision of the Department may file, within 30 days of the service of the decision, a petition for judicial review in the Superior Court of Wake County or of the county from which the case arose. The judicial review shall be conducted according to Article 4 of Chapter 150B of the General Statutes.

"(7) In the event of a conflict between federal law or regulations and State law or regulations, federal law or regulations shall control. This section applies to all petitions that are filed by a Medicaid community support services provider on or after July 1, 2008, and for all Medicaid community support services provider petitions that have been filed at the Office of Administrative Hearings previous to July 1, 2008, but for which a hearing on the merits has not been commenced prior to that date. The requirement that the agency decision must be rendered not more than 180 days from the date of the filing of the petition for hearing shall not apply to (i) community support services provider petitions that were filed at the Office of Administrative Hearings or (ii) requests for a hearing under the Department's informal settlement process prior to the effective date of this act. The Office of Administrative Hearings shall transfer all cases affected by this section to the Department of Health and Human Services within 30 days of the effective date of this section. This act preempts the existing informal appeal process and reconsideration review process at the Department of Health and Human Services and the existing appeal process at the Office of Administrative Hearings with regard to all appeals filed by Medicaid community support services providers under the Medical Assistance program.

"(e3) Notwithstanding any other provision of law to the contrary, the Department of Health and Human Services may, pursuant to its statutory authority or federal Medicaid requirements, suspend the endorsement or Medicaid participation of a provider of community support services pending a final agency decision based on a fair hearing of the provider's appeal filed with the Department under its community support provider appeal process. A provider of community support services whose endorsement, Medicaid participation, or services have been suspended is not entitled to payment during the period the appeal is pending, and the Department shall make no such payment to the provider during that period. If the final agency decision is in favor of the provider, the Department shall remove the suspension, commence payment for provider services, and reimburse the provider for payments withheld during the period of appeal. Contracts between the Department or a local management entity and the provider shall contain a provision indicating the circumstances under which a provider may appeal an agency decision and giving notice of the suspension of payments to the provider while the appeal is pending. This subsection applies to community support provider appeals pending in the Department of Health and Human Services or the Office of Administrative Hearings, as applicable, on and after July 1, 2008.

"(e4) The Department's community support provider appeals process established under this section shall expire July 1, 2010. The Department shall report to the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, and the Fiscal Research Division on March 1, 2009, October 1, 2009, and March 1, 2010, on the effectiveness and efficiency of the community support provider appeals process."

Appeal to State MH/DD/SA Appeals Panel. - Session Laws 2008-107, s. 10.15A(h1)-(h6), as amended and added to by Session Laws 2008-118, s. 3.13(a), (b), Session Laws 2009-526, s. 2(a) and (b), and Session Laws 2009-550, s. 1.1(a) and (b), provides for administrative appeals by Medicaid applicants and recipients. See notes under G.S. 108A-54.

Editor's Note. - This Chapter is former Chapter 150A, as rewritten by Session Laws 1985, c. 746, s. 1, effective January 1, 1986, and recodified. Where appropriate, the historical citations to the sections in the former Chapter have been added to the corresponding sections in the Chapter as rewritten and recodified.

In addition, Session Laws 1985, c. 746, s. 19, had provided that the act would expire January 1, 1992, and would not be effective on or after that date, but the expiration date was deleted by Session Laws 1991, c. 103, ss. 1 and 2 and Session Laws 1991, c. 689, s. 182.

Section 1 of Session Laws 1987, c. 827, provided: " The General Statutes are amended by deleting the reference '150A' and substituting the reference '150B' each time it appears."

Session Laws 1987, c. 536, s. 6 provided that a county ordinance that applies to the Camp Butner reservation on the effective date of the act (July 2, 1987) shall continue to apply until the Secretary of the Department of Human Resources withdraws his approval of the ordinance or the county amends or repeals the ordinance so that it no longer applies to the Camp Butner reservation.

Session Laws 1997-412, s. 14, provided that ss. 6, 7, 8, 10 and 11 of the act, which amended G.S. 143-341(3), 143-135.3, 150B-1(f), 143-135.1, 133-1.1(d), and G.S. 116-31.11, as enacted by s. 1 thereof, would expire on July 1, 2001. Subsequently, Session Laws 2001-496, s. 8(c), effective July 1, 2001, reenacted ss. 5, 7, 8 and 10 of Session Laws 1997-412. Session Laws 2001-496, s. 14(a) provided that ss. 8(a) to 8(e) of that act would expire December 31, 2006. Subsequently, Session Laws 2005-300, s. 1, amended Session Laws 2001-496, s. 14(a), by deleting the expiration clause.

Session Laws 1999-294, s. 13 provides that the Codifier of Rules may amend the text of the administrative rules in Title 11 of the North Carolina Administrative Code to reflect the recodification of Chapter 58 of the General Statutes. An amendment pursuant to this section is exempt from Chapter 150B of the General Statutes and review by the Rules Review Commission to the extent that it does not change the substance of the rule.

Session Laws 2001-395, s. 6(c), would have added subdivision (d)(9) effective August 29, 2001. Session Laws 2001-424, s. 6.20(b), effective July 1, 2001, repealed Session Laws 2001-395, s. 6, so that the provisions of 2001-395 never went into effect.

Session Laws 2001-424, s. 21.10, provides: "The Codifier of Rules may continue the process of reorganizing Titles 10 and 15A of the North Carolina Administrative Code to reflect the recent reorganization of the Department of Health and Human Services and the Department of Environment and Natural Resources. The reorganization of the Code may include replacing Title 10 with a new Title 10A if desirable for clarity. The Codifier of Rules may make changes in the text of the affected rules to reflect changes in organizational structure of the Department of Health and Human Services and the Department of Environment and Natural Resources. So long as the changes in text do not change the substance of the rules, the reorganization by the Codifier is exempt from the requirements of Chapter 150B of the General Statutes and does not require the review or approval of the Rules Review Commission."

Session Laws 2001-424, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Acts of 2001'."

Session Laws 2001-424, s. 36.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium."

Session Laws 2001-424, s. 36.5, is a severability clause.

Session Laws 2002-190, s. 17, as amended by Session Laws 2002-159, s. 31.5, provides: "The Governor shall resolve any dispute between the Department of Transportation and the Department of Crime Control and Public Safety concerning the implementation of this act [Session Laws 2002-190]."

Session Laws 2003-226, s. 1, provides: "The purpose of this act is to ensure that the State of North Carolina has a system for all North Carolina elections that complies with the requirements for federal elections set forth in the federal Help America Vote Act of 2002, Public Law 107-252, 116 Stat. 1666 (2002), codified at 42 U.S.C. §§ 15481-15485.

"The General Assembly finds that the education and training of election officials as required by G.S. 163-82.34 has met and continues to meet the mandate for the education and training of precinct officials and other election officials in section 254(a)(3) of the Help America Vote Act of 2002. The General Assembly further finds that the establishment, development, and continued operation of the statewide list maintenance program for voter registration set forth in G.S. 163-82.14 has met and continues to meet the mandates of section 303(a)(2) of the Help America Vote Act of 2002.

"In certain other areas of the election statutes and other laws, the General Assembly finds that the statutes must be amended to comply with the Help America Vote Act."

Session Laws 2003-416, s. 2, provides that S.L. 2002-172 is reenacted.

Subdivision (c)(6), added by Session Laws 2003-226, s. 17(b), effective January 1, 2004, is applicable with respect to primaries and elections held on or after that date.

Session Laws 2005-133, s. 1, effective June 29, 2005, as amended by Session Laws 2006-226, s. 30, provides: "Under the Occupational Safety and Health Act of North Carolina, the name of the Safety and Health Review Board is changed to the North Carolina Occupational Safety and Health Review Commission. The Revisor of Statutes is authorized to substitute the term 'Commission' for the term 'Board' wherever that term appears in the General Statutes in relation to the Act. The Revisor of Statutes is also authorized to insert the words 'North Carolina Occupational' in front of the phrase 'Safety and Health Review Commission' wherever that phrase appears in the General Statutes in relation to the Act."

Subdivision (d)(15) was enacted as subdivision (d)(14) by Session Laws 2006-66, s. 12.8(c). Subdivision (d)(16) was enacted as subdivision (d)(14) by Session Laws 2006-201, s. 2(a). They have been redesignated as subdivisions (d)(15) and (d)(16), respectively, at the direction of the Revisor of Statutes.

Session Laws 2006-66, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2006.' "

Session Laws 2006-66, s. 28.6, is a severability clause.

Session Laws 2009-475, s. 15, provides: "The General Assembly finds that it is in the public interest of the State of North Carolina to ensure expeditious awards of ARRA [America Recovery and Reinvestment Act of 2009] funds to maximize the economic recovery impact of the ARRA. It is the policy of the State to provide fair regulation, oversight, and transparency for the use of ARRA funds and to quickly and efficiently complete the awards of grants and contracts under the ARRA. It is also the policy of this State that, due to the historic level of federal and State oversight of ARRA grant and contract awards, restraint should be exercised in the granting of legal and injunctive relief that might forestall awards to programs and contractors."

Session Laws 2009-475, s. 4, effective February 17, 2009, which added subdivision (c)(8), provided for a June 30, 2012 expiration.

Session Laws 2011-272, s. 5, Session Laws 2011-287, s. 21(b) and Session Laws 2011-401, s. 1.10(b) each added a subdivision designated (e)(18). At the direction of the Revisor of Statutes, the subdivision (e)(18) added by Session Laws 2011-287, s. 21(b) has been redesignated subdivision (e)(19), and the subdivision (e)(18) added by Session Laws 2011-401, s. 1.10(b) has been redesignated subdivision (e)(20).

Session Laws 2014-100, s. 15.14B(c), as amended by Session Laws 2017-212, s. 4.3, provides: "This section becomes effective January 1, 2015. The Secretary shall not award a grant for any qualifying expenses for which a taxpayer receives a tax credit under G.S. 105-130.47 or G.S. 105-151.29."

Session Laws 2014-100, s. 13.2(a) and 2014-103, s. 17 both added subdivision (d)(26) with identical provisions.

Session Laws 2014-100, s. 15.14B(b), and Session Laws 2014-100, s. 15.13(b), each added subdivisions designated as (d)(18a). At the direction of the Revisor of Statutes, the subdivision enacted by Session Laws 2014-100, s. 15.14B(b), has been redesignated as subdivision (d)(18b).

Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year."

Session Laws 2014-100, s. 38.7, is a severability clause.

Session Laws 2015-198, s. 7, is a severability clause.

Session Laws 2015-198, s. 4 and Session Laws 2015-241, s. 14.6(g) both enacted a subdivision (e)(22). Subdivision (e)(22), as enacted by Session Laws 2015-241, s. 14.6(g) has been redesignated as subdivision (e)(23) at the direction of the Revisor of Statutes.

Session Laws 2015-241, s. 14.11(b), provides: "The Department of Environment and Natural Resources [Department of Natural and Cultural Resources], or any other department given responsibilities for the North Carolina Zoological Park, State parks, and the North Carolina Aquariums, may establish admission fees and related activity fees for those sites and facilities. In setting these fees, the Department of Environment and Natural Resources [Department of Natural and Cultural Resources] shall use a dynamic pricing strategy as defined in subsection (e) of this section. Any rule currently in the Administrative Code related to fees covered by subsection (a) of this section is ineffective and repealed upon the effective date of new admission fees and related activity fees adopted by the Department under the authority set out in that subsection. Notice of the initial adoption of new admission fees and related activity fees under subsection (a) of this section shall be given by the Department to the Codifier of Rules, who, upon receipt of notice of the initial adoption of new admission fees and related activity fees by the Department, shall note the repeal of these rules in the Administrative Code. Nothing in this subsection is intended to authorize the Department or any other department to charge new parking fees at the North Carolina Zoological Park, State parks, or the North Carolina Aquariums or to charge an admission fee at any other site or facility that does not currently charge an admission fee."

Session Laws 2015-241, s. 14.11(e), provides: "For purposes of this section, 'dynamic pricing' is the adjustment of fees for admission and related activities from time to time to reflect market forces, including seasonal variations and special event interests, with the intent and effect to maximize revenues from use of these State resources to the extent practicable to offset appropriations from the General Assembly."

Session Laws 2015-241, s. 14.11(i), provides: "This section applies to admission fees or related activity fees charged on or after the effective date [July 1, 2015] of this act."

Session Laws 2015-241, s. 14.30(c), provides authority to construe references to the "Department of Environment and Natural Resources" taking effect on or after July 1, 2015, to be construed as the "Department of Natural and Cultural Resources" where appropriate, and to construe duties or requirements of the Department of Environment and Natural Resources to be the duties or requirements of the Department of Natural and Cultural Resources where appropriate. In addition, Session Laws 2015-241, s. 14.30(w) provides in part: "In any other instances in the General Statutes in which there is a reference to the Department of Environment and Natural Resources or a derivative thereof, the Revisor of Statutes may replace that reference with a reference to the Department of Natural and Cultural Resources or a derivative thereof, when necessary to harmonize the statutes with the transfers set forth in subsections (a) and (b) of this section." Pursuant to this authority, "Department of Natural and Cultural Resources" has been substituted for "Department of Environment and Natural Resources" in subdivision (d)(27) at the direction of the Revisor of Statutes.

Also at the direction of the Revisor of Statutes, the references in subdivision (d)(27) to G.S. 143B-335, 113-35, and 143B-289.44 have been changed to G.S. 143B-135.205, 143B-135.16, and 143B-135.188, respectively, to conform to the recodification of those sections by Session Laws 2015-241, s. 14.30(c), (g), (i).

Session Laws 2015-241, s. 14.11(a) and Session Laws 2015-241, s. 29.30(t), both enacted a subdivision (d)(27). Subdivision (d)(27), as enacted by Session Laws 2015-241, s. 29.30(t) has been redesignated as subdivision (d)(28) at the direction of the Revisor of Statutes.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2016-113, s. 19(a), is a severability clause.

This section was amended by Session Laws 2017-186, s. 2(ddddddddd), in the coded bill drafting format provided by G.S. 120-20.1. The act failed to account for the amendment to subdivision (d)(6) by Session Laws 2015-198, s. 3, which substituted "Department of Public Safety" for "Division of Adult Correction of the Department of Public Safety" and inserted "matters relating to executions under Article 19 of Chapter 15 of the General Statutes and." Session Laws 2017-186, s. 2(ddddddddd), would have inserted "and Juvenile Justice" following "Correction" in subdivision (d)(6). Subdivision (d)(6) has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2018-5, s. 11E.1(d), made subdivision (d)(29) of this section, as added by Session Laws 2018-5, s. 11E.1(b), effective July 1, 2018, and the fee authorized by G.S. 130A-125(c) applies to laboratory tests performed by the North Carolina State Laboratory of Public Health as part of the Newborn Screening Program on or after that date.

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year."

Session Laws 2018-5, s. 39.7, is a severability clause.

Session Laws 2020-48, s. 4.1(d), made G.S. 150B-1(d)(30), as added by Session Laws 2020-48, s. 4.1(c), effective June 26, 2020, and applicable to actuarial tables, assumptions, and contribution-based benefit cap factors adopted or changed on or after that date.

Session Laws 2020-48, s. 6.1, is a severability clause.

Effect of Amendments. - Session Laws 1997-412, s. 8, effective January 1, 1998, and effective until July 1, 2001, substituted "for The University of North Carolina" for "from All But Judicial Review", and inserted "Except as provided in G.S. 143-135.3." Session Laws 1997-412, s. 14, provided that this amendment would expire July 1, 2001. Subsequently, Session Laws 2001-496, s. 8(c), effective July 1, 2001, and expiring December 31, 2006, reenacted Session Laws 1997-412, s. 8. Subsequently, Session Laws 2005-300, s. 1, amended Session Laws 2001-496, s. 14(a), by deleting the expiration clause.

Session Laws 2004-88, s. 1(e), effective June 30, 2004, added subdivision (d)(13).

Session Laws 2005-133, s. 10, effective June 29, 2005, rewrote subdivision (e)(9) by substituting "The North Carolina Occupational Safety and Health Review Commission" for "The Occupational Safety and Health Review Board."

Session Laws 2005-344, s. 11.1, as added by Session Laws 2005-276, s. 31.1(ff), effective August 31, 2005, added subdivision (c)(7).

Session Laws 2005-455, s. 3.3, effective January 1, 2006, and applicable to determinations made on or after that date, added subdivision (e)(15).

Session Laws 2006-66, ss. 8.10(d) and 12.8(c), effective July 1, 2006, added subdivisions (d)(14) and (d)(15), respectively.

Session Laws 2006-201, s. 2(a), effective October 1, 2006, and applicable to covered persons and legislative employees on or after January 1, 2007, to gifts received on or after January 1, 2007, to acts and conflicts of interest that arise on or after January 1, 2007, and to offenses committed on or after January 1, 2007, added subdivision (d)(16).

Session Laws 2007-323, s. 13.2(c), effective July 1, 2007, added subdivision (d)(17).

Session Laws 2007-323, s. 28.22A(o), as amended by Session Laws 2007-345, s. 12, effective July 1, 2008, substituted "State Health Plan for Teachers and State Employees" for "North Carolina Teachers' and State Employees' Comprehensive Major Medical Plan" in subdivisions (d)(7) and (e)(12), and substituted "State Health Plan for Teachers and State Employees" for "Teachers' and State Employees' Comprehensive Major Medical Plan" in subdivision (e)(13).

Session Laws 2007-491, s. 2, effective January 1, 2008, deleted former subdivision (e)(6), which read: "Department of Revenue."

Session Laws 2007-552, 1st Ex. Sess., s. 3, effective July 1, 2007, added subdivision (d)(18).

Session Laws 2008-107, s. 10.15A(f), effective July 1, 2008, inserted "agencies" in the introductory paragraph of subsection (e); added subdivision (e)(16).

Session Laws 2008-168, s. 5(a), effective July 1, 2008, substituted "Article 3A of" for "Parts 2, 3, 4, and 5 of Article 3" in subdivision (d)(7).

Session Laws 2008-187, s. 26(b), effective August 7, 2008, substituted "G.S. 143B-437.012" for "G.S. 143B-437.11" in subdivision (d)(18).

Session Laws 2009-445, s. 41(b), effective August 7, 2009, deleted subdivision (d)(15), which read: "The Department of Commerce in developing guidelines for the North Carolina Economic Development Reserve."

Session Laws 2009-475, s. 4, effective February 17, 2009, and expiring June 30, 2012, added subdivision (c)(8).

Session Laws 2009-523, s. 2(a), effective August 26, 2009, added subdivision (d)(19).

Session Laws 2010-70, s. 2, effective July 1, 2010, and applicable to reviews of Health Choice Program enrollment, eligibility, or health services decisions requested by Health Choice Program applicants or recipients on or after that date, added subdivision (e)(17).

Session Laws 2011-145, s. 8.18(a) and (b), as amended by Session Laws 2011-391, s. 19, effective June 15, 2011, deleted subdivisions (d)(14) and (d)(19); and added subsection (g).

Session Laws 2011-145, s. 14.6(j), effective July 1, 2011, substituted "G.S. 136-262(a)(11)" for "G.S. 143B-454(a)(11)" in subsection (d)(11).

Session Laws 2011-264, s. 4, effective June 23, 2011, added subdivision (d)(20).

Session Laws 2011-272, s. 5, effective October 1, 2011, added subdivision (e)(18).

Session Laws 2011-287, s. 21(a) and (b), deleted subdivision (c)(4), which read: "The Industrial Commission"; and added subdivision (e)(19). For effective date and applicability, see editor's note.

Session Laws 2011-399, ss. 2 and 3, effective July 25, 2011, added "pursuant to G.S. 108A-54.2" at the end of subdivision (d)(9); and deleted subdivision (e)(16).

Session Laws 2011-401, s. 1.10, effective November 1, 2011, deleted subdivision (c)(5), which read: "The Employment Security Commission"; and added subdivision (e)(20).

Session Laws 2014-100, s. 13.2(a), effective July 1, 2014, added subdivision (d)(26). See Editor's note.

Session Laws 2014-100, s. 15.13(b), effective July 1, 2014, added subdivision (d)(18a).

Session Laws 2014-100, s. 15.14B(b), effective January 1, 2015, added subdivision (d)(18a). See Editor's notes for applicability and redesignation.

Session Laws 2014-103, s. 17, effective August 6, 2014, added subdivision (d)(26).

Session Laws 2015-198, ss. 3, 4, effective August 5, 2015, in subdivision (d)(6), substituted "Department of Public Safety" for "Division of Adult Correction of the Department of Public Safety" and inserted "matters relating to executions under Article 19 of Chapter 15 of the General Statutes and"; and added subdivision (e)(22).

Session Laws 2015-198, s. 3, effective August 5, 2015, rewrote subdivision (d)(6).

Session Laws 2015-198, s. 4, effective August 5, 2015, added subdivision (e)(22).

Session Laws 2015-241, ss. 14.6(g), 14.30(s), (u), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources" in subdivision (d)(23); substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subdivision (e)(1); and added subdivision (e)(22) (now (e)(23)).

Session Laws 2015-241, s. 14.11(a), effective July 1, 2015, and applicable to admission fees or related activity fees charged on or after July 1, 2015, in subdivision (d)(26), inserted the a. designation, inserted b., and inserted "and operating hours" in the last sentence; added subdivision (d)(27); and made minor stylistic changes.

Session Laws 2015-241, s. 14.30(v), effective July 1, 2015, substituted "Secretary of Environmental Quality" for "Secretary of Environment and Natural Resources" in subdivision (e)(23).

Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources" in subdivision (d)(23).

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subdivisions (d)(27) and (e)(1).

Session Laws 2015-241, s. 14.30(v), effective July 1, 2015, substituted "Secretary of Environmental Quality" for "Secretary of Environment and Natural Resources" in subsection (a).

Session Laws 2015-241, s. 29.30(t), effective July 1, 2020, added subdivision (d)(28). See editor's note for redesignation of subdivision.

Session Laws 2016-113, s. 7(a), effective July 26, 2016, added sub-subdivision (d)(26)c.

Session Laws 2017-186, s. 2(ddddddddd), effective December 1, 2017, inserted "and Juvenile Justice" in subdivision (e)(7).

Session Laws 2018-5, s. 11E.1(b), added subdivision (d)(29). For effective date and applicability, see editor's note.

Session Laws 2018-5, s. 37.1(h), effective June 12, 2018, added subdivision (e)(24).

Session Laws 2018-142, s. 21, effective December 15, 2018, in subdivision (d)(6), deleted "and Juvenile Justice" preceding "The Department of."

Session Laws 2019-81, s. 10, effective October 1, 2019, added "commenced under G.S. 108A-70.29b" in subdivision (e)(17); and added subdivision (e)(25).

Session Laws 2019-165, s. 7, effective July 26, 2019, added subdivision (e)(26).

Session Laws 2019-177, s. 8.2, effective July 26, 2019, repealed subdivision (e)(11) pertaining to hearings on eligibility of assaultive or violent children..

Session Laws 2020-48, s. 4.1(c), added subdivision (d)(30). For effective date and applicability, see editor's note.

Legal Periodicals. - For comment on former Chapter 150, see 31 N.C.L. Rev. 378 (1953).

For note as to constitutionality of statutes licensing occupations, see 35 N.C.L. Rev. 473 (1957).

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For interpretative analysis of former Chapter 150A, see 53 N.C.L. Rev. 833 (1975).

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For article, "A Powerless Judiciary? The North Carolina Courts' Perceptions of Review of Administrative Action," see 12 N.C. Cent. L.J. 21 (1980).

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1026 (1981).

For survey of 1982 law on administrative law, see 61 N.C.L. Rev. 961 (1983).

For article, "The New Administrative Procedures Act: A Practical Guide to Understanding and Using It," see 9 Campbell L. Rev. 293 (1987).

For note, "The Forty-Two Hundred Dollar Question: 'May State Agencies Have Discretion in Setting Civil Penalties Under the North Carolina Constitution?'," see 68 N.C.L. Rev. 1035 (1990).

For survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

For article, "Powers of Administrative Law Judges, Agencies, and Courts: An Analytical and Empirical Assessment," see 79 N.C.L. Rev. 1571 (2001).

For article, "What Were We Thinking?: Legislative Intent and the 2000 Amendments to the North Carolina APA," see 79 N.C.L. Rev. 1657 (2001).

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).

For article, "Plenary Power in the Modern Administrative State," see 96 N.C.L. Rev. 77 (2017).

For article, "The Re-'Tooling' of Federal ALJs: Lucia v. SEC and Executive Order 13,843," see 97 N.C. L. Rev. Addendum 21 (2019).

§ 150B-2. Definitions.

As used in this Chapter,

1. "Administrative law judge" means a person appointed under G.S. 7A-752, 7A-753, or 7A-757.
2. "Agency" means an agency or an officer in the executive branch of the government of this State and includes the Council of State, the Governor's Office, a board, a commission, a department, a division, a council, and any other unit of government in the executive branch. A local unit of government is not an agency.
3. "Adopt" means to take final action to create, amend, or repeal a rule.
4. "Codifier of Rules" means the person appointed by the Chief Administrative Law Judge of the Office of Administrative Hearings pursuant to G.S. 7A-760(b).
5. "Commission" means the Rules Review Commission.
6. "Contested case" means an administrative proceeding pursuant to this Chapter to resolve a dispute between an agency and another person that involves the person's rights, duties, or privileges, including licensing or the levy of a monetary penalty. "Contested case" does not include rulemaking, declaratory rulings, or the award or denial of a scholarship, a grant, or a loan.
7. Repealed by Session Laws 1991, c. 418, s. 3.
8. "Hearing officer" means a person or group of persons designated by an agency that is subject to Article 3A of this Chapter to preside in a contested case hearing conducted under that Article.
9. "License" means any certificate, permit or other evidence, by whatever name called, of a right or privilege to engage in any activity, except licenses issued under Chapter 20 and Subchapter I of Chapter 105 of the General Statutes, occupational licenses, and certifications of electronic poll books, ballot duplication systems, or voting systems under G.S. 163-165.7.
10. "Licensing" means any administrative action issuing, failing to issue, suspending, or revoking a license or occupational license. "Licensing" does not include controversies over whether an examination was fair or whether the applicant passed the examination.
11. "Occupational license" means any certificate, permit, or other evidence, by whatever name called, of a right or privilege to engage in a profession, occupation, or field of endeavor that is issued by an occupational licensing agency.
12. "Occupational licensing agency" means any board, commission, committee or other agency of the State of North Carolina which is established for the primary purpose of regulating the entry of persons into, and/or the conduct of persons within a particular profession, occupation or field of endeavor, and which is authorized to issue and revoke licenses. "Occupational licensing agency" does not include State agencies or departments which may as only a part of their regular function issue permits or licenses.
13. "Party" means any person or agency named or admitted as a party or properly seeking as of right to be admitted as a party and includes the agency as appropriate.
14. "Person aggrieved" means any person or group of persons of common interest directly or indirectly affected substantially in his or its person, property, or employment by an administrative decision.
15. "Person" means any natural person, partnership, corporation, body politic and any unincorporated association, organization, or society which may sue or be sued under a common name.
16. "Policy" means any nonbinding interpretive statement within the delegated authority of an agency that merely defines, interprets, or explains the meaning of a statute or rule. The term includes any document issued by an agency which is intended and used purely to assist a person to comply with the law, such as a guidance document.
17. "Residence" means domicile or principal place of business.
18. "Rule" means any agency regulation, standard, or statement of general applicability that implements or interprets an enactment of the General Assembly or Congress or a regulation adopted by a federal agency or that describes the procedure or practice requirements of an agency. The term includes the establishment of a fee and the amendment or repeal of a prior rule. The term does not include the following:
    1. Statements concerning only the internal management of an agency or group of agencies within the same principal office or department enumerated in G.S. 143A-11 or 143B-6, including policies and procedures manuals, if the statement does not directly or substantially affect the procedural or substantive rights or duties of a person not employed by the agency or group of agencies.
    2. Budgets and budget policies and procedures issued by the Director of the Budget, by the head of a department, as defined by G.S. 143A-2 or G.S. 143B-3, by an occupational licensing board, as defined by G.S. 93B-1.
    3. Nonbinding interpretative statements within the delegated authority of an agency that merely define, interpret, or explain the meaning of a statute or rule.
    4. A form, the contents or substantive requirements of which are prescribed by rule or statute.
    5. Statements of agency policy made in the context of another proceeding, including:
       1. Declaratory rulings under G.S. 150B-4.
       2. Orders establishing or fixing rates or tariffs.
    6. Requirements, communicated to the public by the use of signs or symbols, concerning the use of public roads, bridges, ferries, buildings, or facilities.
    7. Statements that set forth criteria or guidelines to be used by the staff of an agency in performing audits, investigations, or inspections; in settling financial disputes or negotiating financial arrangements; or in the defense, prosecution, or settlement of cases.
    8. Scientific, architectural, or engineering standards, forms, or procedures, including design criteria and construction standards used to construct or maintain highways, bridges, or ferries.
    9. Job classification standards, job qualifications, and salaries established for positions under the jurisdiction of the State Human Resources Commission.
    10. Establishment of the interest rate that applies to tax assessments under G.S. 105-241.21.
    11. The State Medical Facilities Plan, if the Plan has been prepared with public notice and hearing as provided in G.S. 131E-176(25), reviewed by the Commission for compliance with G.S. 131E-176(25), and approved by the Governor.
    12. Standards adopted by the Department of Information Technology applied to information technology as defined by G.S. 147-33.81.
19. Repealed by Session Laws 2011-398, s. 61.2, effective July 25, 2011.
20. "Substantial evidence" means relevant evidence a reasonable mind might accept as adequate to support a conclusion.
21. Repealed by Session Laws 1991, c. 418, s. 3.

History

(1973, c. 1331, s. 1; 1975, 2nd Sess., c. 983, ss. 61, 62; 1977, c. 915, s. 5; 1983, c. 641, s. 1; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(2)-1(5); 1987, c. 878, ss. 1, 2, 21; 1987 (Reg. Sess., 1988), c. 1111, s. 17; 1991, c. 418, s. 3; c. 477, ss. 3.1, 3.2, 9; 1995, c. 390, s. 29; 1996, 2nd Ex. Sess., c. 18, s. 7.10(g); 1997-456, s. 27; 2003-229, s. 12; 2007-491, s. 44(1)b; 2011-13, s. 2; 2011-398, ss. 15, 61.2; 2013-188, s. 7; 2013-382, s. 9.1(c); 2013-413, s. 1; 2015-2, s. 2.2(c); 2015-241, ss. 7A.3, 30.16(a); 2017-6, s. 3; 2018-13, s. 3.8(b); 2018-146, s. 4.5(b); ss. 3.1(a), (b), 4.5(b).)

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes substituted "Bipartisan State Board of Elections and Ethics Enforcement" for "State Board of Elections" in sub-subdivision (8a)b. The reference was deleted by Session Laws 2018-146, s. 4.5(b).

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1, repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3.

Editor's Note. - Subdivisions (01), (1), (1a), (1b), and (1c) of this section were renumbered as subdivisions (1), (1a), (1b), (1c) and (1d), respectively, pursuant to S.L. 1997-456, s. 27 which authorized the Revisor of Statutes to renumber or reletter sections and parts of sections having a number or letter designation that is incompatible with the General Assembly's computer database.

Subdivision (8b) was enacted as subdivision (8c) by Session Laws 2011-13, s. 2. It was renumbered as subdivision (8b) and former subdivision (8b) was renumbered as subdivision (8c) to maintain alphabetical order at the direction of the Revisor of Statutes.

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 2013-382, s. 9.1(b), provides: "The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

"(1) The State Personnel Commission is renamed the 'North Carolina Human Resources Commission.'

"(2) The Office of State Personnel is renamed the 'North Carolina Office of State Human Resources.'

"(3) The State Personnel Director is renamed the 'Director of the North Carolina Office of State Human Resources.'"

Session Laws 2013-382, s. 9.1(c), provides: "Modification of References. - The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary."

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.

Session Laws 2015-241, s. 7A.3, provides in part: "The Revisor of Statutes may conform names and titles changed by this section and may correct statutory references as required by this section throughout the General Statutes. In making the changes authorized by this section, the Revisor may also adjust subject and verb agreement and the placement of conjunctions." Pursuant to this authority, the Revisor of Statutes substituted "Department of Information Technology" for "Office of Information Technology Services" in sub-subdivision (8a) l .

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2018-13, s. 6, is a severability clause.

Session Laws 2018-13, s. 7, made the amendment of subdivision (3) of this section by Session Laws 2018-13, s. 3.8(b), effective June 20, 2018, and applicable to elections held on or after that date.

Effect of Amendments. - Session Laws 2007-491, s. 44(1)b, effective January 1, 2008, substituted "G.S. 105-241.21" for "G.S. 105-241.1" in subdivision (8a)j.

Session Laws 2011-13, s. 2, effective March 25, 2011, and applicable to rules published in the North Carolina Register by an agency on or after that date, added subdivision (8b), defining "Substantial estimated additional costs."

Session Laws 2011-398, s. 61.2, effective July 25, 2011, repealed subdivision (8b), as added by Session Laws 2011-13, s. 2.

Session Laws 2015-2, s. 2.2(c), effective January 1, 2016, deleted "and the variable component of the excise tax on motor fuel under G.S. 105-449.80" at the end of subdivision (8a)j.

Session Laws 2015-241, s. 30.16(a), effective July 1, 2015, rewrote subsection (1c), which formerly read: " 'Codifier of Rules' means the Chief Administrative Law Judge of the Office of Administrative Hearings or a designated representative of the Chief Administrative Law Judge."

Session Laws 2018-13, s. 3.8(b), substituted "Statutes, occupational licenses, and certifications of electronic poll books, ballot duplication systems, or voting systems under G.S. 163A-1115" for "Statutes and occupational licenses" in subdivision (3). For effective date and applicability, see editor's note.

Session Laws 2018-146, s. 4.5(b), effective December 27, 2018, substituted "G.S. 93B-1" for "G.S. 93B-1, or by the Bipartisan State Board of Elections and Ethics Enforcement" in subdivision (8a)b.

Legal Periodicals. - For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For article, "A Powerless Judiciary? The North Carolina Courts' Perceptions of Review of Administrative Action," see 12 N.C. Cent. L.J. 21 (1980).

For survey of 1980 property law, see 59 N.C.L. Rev. 1209 (1981).

For note, "Contested Case Hearings Under the North Carolina Administrative Procedure Act: 1985 Rewrite Contains Dual System of Administrative Adjudication," see 64 N.C.L. Rev. 852 (1986).

For survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

For article, "Outlawed and Exiled: Zero Tolerance and Second Generation Race Discrimination in Public Schools," see 29 N.C. Cent. L.J. 147 (2007).

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).

§ 150B-3. Special provisions on licensing.

1. When an applicant or a licensee makes a timely and sufficient application for issuance or renewal of a license or occupational license, including the payment of any required license fee, the existing license or occupational license does not expire until a decision on the application is finally made by the agency, and if the application is denied or the terms of the new license or occupational license are limited, until the last day for applying for judicial review of the agency order. This subsection does not affect agency action summarily suspending a license or occupational license under subsections (b) and (c) of this section.
2. Before the commencement of proceedings for the suspension, revocation, annulment, withdrawal, recall, cancellation, or amendment of any license other than an occupational license, the agency shall give notice to the licensee, pursuant to the provisions of G.S. 150B-23. Before the commencement of such proceedings involving an occupational license, the agency shall give notice pursuant to the provisions of G.S. 150B-38. In either case, the licensee shall be given an opportunity to show compliance with all lawful requirements for retention of the license or occupational license.
3. If the agency finds that the public health, safety, or welfare requires emergency action and incorporates this finding in its order, summary suspension of a license or occupational license may be ordered effective on the date specified in the order or on service of the certified copy of the order at the last known address of the licensee, whichever is later, and effective during the proceedings. The proceedings shall be promptly commenced and determined.
4. This section does not apply to the following:
   1. Revocations of occupational licenses based solely on a court order of child support delinquency or a Department of Health and Human Services determination of child support delinquency issued pursuant to G.S. 110-142, 110-142.1, or 110-142.2.
   2. Refusal to renew an occupational license pursuant to G.S. 87-10.1, 87-22.2, 87-44.2, or 89C-18.1, based solely on a Department of Revenue determination that the licensee owes a delinquent income tax debt.

Nothing in this subsection shall be construed as amending or repealing any special statutes, in effect prior to February 1, 1976, which provide for the summary suspension of a license.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1995, c. 538, s. 2(i); 1997-443, s. 11A.118(a); 1998-162, s. 8.)

Legal Periodicals. - For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

§ 150B-4. Declaratory rulings.

1. On request of a person aggrieved, an agency shall issue a declaratory ruling as to the validity of a rule or as to the applicability to a given state of facts of a statute administered by the agency or of a rule or order of the agency. Upon request, an agency shall also issue a declaratory ruling to resolve a conflict or inconsistency within the agency regarding an interpretation of the law or a rule adopted by the agency. The agency shall prescribe in its rules the procedure for requesting a declaratory ruling and the circumstances in which rulings shall or shall not be issued. A declaratory ruling is binding on the agency and the person requesting it unless it is altered or set aside by the court. An agency may not retroactively change a declaratory ruling, but nothing in this section prevents an agency from prospectively changing a declaratory ruling.
2. An agency shall respond to a request for a declaratory ruling as follows:
   1. Within 30 days of receipt of the request for a declaratory ruling, the agency shall make a written decision to grant or deny the request. If the agency fails to make a written decision to grant or deny the request within 30 days, the failure shall be deemed a decision to deny the request.
   2. If the agency denies the request, the decision is immediately subject to judicial review in accordance with Article 4 of this Chapter.
   3. If the agency grants the request, the agency shall issue a written ruling on the merits within 45 days of the decision to grant the request. A declaratory ruling is subject to judicial review in accordance with Article 4 of this Chapter.
   4. If the agency fails to issue a declaratory ruling within 45 days, the failure shall be deemed a denial on the merits, and the person aggrieved may seek judicial review pursuant to Article 4 of this Chapter. Upon review of an agency's failure to issue a declaratory ruling, the court shall not consider any basis for the denial that was not presented in writing to the person aggrieved.
3. Repealed by Session Laws 1997-34, s. 1.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1991, c. 418, s. 4; c. 477, s. 2.1; 1997-34, s. 1; 2011-398, s. 56.)

Editor's Note. - This section is former G.S. 150B-17, as recodified by Session Laws 1991, c. 418, s. 4.

Effect of Amendments. - Session Laws 2011-398, s. 56, effective July 25, 2011, in subsection (a), deleted "except when the agency for good cause finds issuance of a ruling undesirable" from the end of the first sentence, added the present second sentence, inserted "procedure for requesting a declaratory ruling and the" in the third sentence, and deleted the former last two sentences; and added subsection (a1).

Legal Periodicals. - For article, "Advisory Rulings by Administrative Agencies: Their Benefits and Dangers," see 2 Campbell L. Rev. 1 (1980).

§§ 150B-9 through 150B-16: Repealed by Session Laws 1991, c. 418, s. 5.

Cross References. - As to rulemaking, see now G.S. 150B-18 et seq.

§ 150B-17: Recodified as § 150B-4 by Session Laws 1991, c. 418, s. 4, effective October 1, 1991.

§ 150B-18. Scope and effect.

This Article applies to an agency's exercise of its authority to adopt a rule. A rule is not valid unless it is adopted in substantial compliance with this Article. An agency shall not seek to implement or enforce against any person a policy, guideline, or other interpretive statement that meets the definition of a rule contained in G.S. 150B-2(8a) if the policy, guideline, or other interpretive statement has not been adopted as a rule in accordance with this Article.

History

(1991, c. 418, s. 1; 2011-398, s. 1; 2012-187, s. 2.)

Editor's Note. - Session Laws 1991, ch. 418 repealed former Articles 2 and 5 and enacted in their place a new Article 2A. Where appropriate, the historical citations to sections in the repealed Articles have been added to corresponding sections in new Article 2A.

Session Laws 2004-124, s. 22A.1.(a), provides: "All personnel and equipment presently assigned to the Rules Review Commission for the purpose of carrying out Article 2A of Chapter 150B of the General Statutes, are transferred to the Office of Administrative Hearings by a Type I transfer as defined by G.S. 143A-6(a). The Chief Administrative Law Judge shall be responsible for the hiring of the Director and other staff of the Rules Review Commission."

Session Laws 2011-145, s. 6.3(b), provides: "Notwithstanding G.S. 150B-21.1A(a), an agency may adopt an emergency rule in accordance with G.S. 150B-21.1A to establish or increase a fee as authorized by this act if the adoption of a rule would otherwise be required under Article 2A of Chapter 150B of the General Statutes."

Session Laws 2013-360, s. 9.3(d), provides: "For the 2013-2014 fiscal year only and notwithstanding Article 2A of Chapter 150B of the General Statutes, the State Board of Education shall be exempt from rulemaking in establishing a schedule of fees for teacher licensure and administrative changes pursuant to G.S. 115C-296(a2), as amended by this section."

Session Laws 2013-360, s. 13.6, provides: "Notwithstanding 02 NCAC 20B.0104, the Board of Agriculture may set admission fees for the 2013 State Fair without complying with the requirements of Article 2A of Chapter 150B of the General Statutes. When this act becomes law, the Board shall post the 2013 admission fee schedule on its Web site and provide notice of the fee schedule, along with a citation to this section, to all persons named on the mailing list maintained pursuant to G.S. 150B-21.2(d)."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Effect of Amendments. - Session Laws 2011-398, s. 1, effective July 25, 2011, added the last sentence.

Legal Periodicals. - For article, "Advisory Rulings by Administrative Agencies: Their Benefits and Dangers," see 2 Campbell L. Rev. 1 (1980).

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1017 (1981).

For article discussing limitations on ad hoc adjudicatory rulemaking by an administrative agency, see 61 N.C.L. Rev. 67 (1982).

For note, "The Forty-Two Hundred Dollar Question: 'May State Agencies Have Discretion in Setting Civil Penalties Under the North Carolina Constitution?'," see 68 N.C. L. Rev. 1035 (1990).

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).

§ 150B-19. Restrictions on what can be adopted as a rule.

An agency may not adopt a rule that does one or more of the following:

1. Implements or interprets a law unless that law or another law specifically authorizes the agency to do so.
2. Enlarges the scope of a profession, occupation, or field of endeavor for which an occupational license is required.
3. Imposes criminal liability or a civil penalty for an act or omission, including the violation of a rule, unless a law specifically authorizes the agency to do so or a law declares that violation of the rule is a criminal offense or is grounds for a civil penalty.
4. Repeats the content of a law, a rule, or a federal regulation. A brief statement that informs the public of a requirement imposed by law does not violate this subdivision and satisfies the "reasonably necessary" standard of review set in G.S. 150B-21.9(a)(3).
5. Establishes a fee or other charge for providing a service in fulfillment of a duty unless a law specifically authorizes the agency to do so or the fee or other charge is for one of the following:
   1. A service to a State, federal, or local governmental unit.
   2. A copy of part or all of a State publication or other document, the cost of mailing a document, or both.
   3. A transcript of a public hearing.
   4. A conference, workshop, or course.
   5. Data processing services.
6. Allows the agency to waive or modify a requirement set in a rule unless a rule establishes specific guidelines the agency must follow in determining whether to waive or modify the requirement.
7. Repealed by Session Laws 2011-398, s. 61.2, effective July 25, 2011.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1991, c. 418, s. 1; 1996, 2nd Ex. Sess., c. 18, s. 7.10(a); 2011-13, s. 1; 2011-398, s. 61.2.)

Editor's Note. - Session Laws 2009-216, s. 2(c), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. 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 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)." Section 2 of Session Laws 2009-216 pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Sections 3(c) through 3(i) 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 Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)." Section 3 of Session Laws 2009-216 pertains to stormwater management, Jordan Lake Reservoir. For provisions on interpretation of certain rules to implement nutrient management strategies for the B. Everett Jordan Reservoir adopted pursuant to Session Laws 2009-216, see Session Laws 2012-187, s. 12.1.

Session Laws 2011-39, s. 4, provides: "Rule-making Authority. - No later than January 1, 2012, the Commission for Public Health shall adopt rules consistent with the provisions of Sections 1 and 2 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 Sections 1 and 2 of this act." Session Laws 2011-39, ss. 1 and 2, which are noted in full under G.S. 130A-280 and 130A-282, modify the applicability of certain fencing requirements to public swimming pools and provide that requirements related to dressing and sanitary facilities do not apply to interactive play attractions.

Session Laws 2011-48, s. 2(c), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Permitting by Regulation Rule 15A NCAC 02U.0113. 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 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)."

Session Laws 2011-48, s. 3(c), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Reclaimed Water Utilization Rule 15A NCAC 02U.0501. 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 3(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)." Session Laws 2011-48, ss. 2(b) and 3(b), which are noted in full under G.S. 143-211, 143-215.1 and 143-215.3, provide that uses of reclaimed water for irrigation of ornamental crops by field nurseries and aboveground container nurseries are deemed to be permitted by regulation without issuance of an individual permit or coverage under a general permit, and that artificial lakes or ponds that are used for storage and irrigation of reclaimed water are exempt from certain setback requirements and design criteria for wastewater treatment storage facilities."

Session Laws 2011-394, s. 15(a), provides: "Notwithstanding G.S. 150B-19, as amended by S.L. 2011-13, the Commission for Public Health may adopt rules to incorporate all or part of the United States Food and Drug Administration Food Code 2009 and to require that employees of establishments regulated under subsections (a) and (a2) of G.S. 130A-248 be certified in food protection in accordance with the United States Food and Drug Administration Food Code 2009."

Session Laws 2013-77, s. 4, provides: "Additional rule-making authority. - Notwithstanding G.S. 150B-19(4), the Commission shall adopt amendments to the Homeless Shelter Provision to be substantively identical to the provisions of Section 3 of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14. 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)."

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. 28(a)-(d), provides: "(a) 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit). - Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 28(c) of this act, the Commission, the Department, and any other political subdivision of the State that implements 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) shall implement the rule, as provided in Section 28(b) of this act.

"(b) Implementation. - Notwithstanding 15A NCAC 02D.1903(b)(2)(F)(Open Burning Without an Air Quality Permit), open burning for land clearing or right-of-way maintenance is permissible without an air quality permit if materials are not carried off site or transported over public roads for open burning unless the materials are carried or transported to:

"(1) Facilities permitted in accordance with 15A NCAC 02D.1904 (Air Curtain Burners) for the operation of an air curtain burner at a permanent site; or

"(2) A location, where the material is burned not more than four times per year, that meets all of the following criteria:

"a. At least 500 feet from any dwelling, group of dwellings, or commercial or institutional establishment, or other occupied structure not located on the property on which the burning is conducted.

"b. There are no more than two piles, each 20 feet in diameter, being burned at one time.

"c. The location is not a permitted solid waste management facility.

"(c) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) consistent with Section 28(b) 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 28(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14. 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 28(b) of this act expires on the date that rules adopted pursuant to Section 28(c) of this act become effective."

Session Laws 2013-413, s. 34(a)-(d), as amended by Session Laws 2014-120, s. 53, provides: "(a) 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units). - Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 34(c) of this act, the Commission, the Department, and any other political subdivision of the State shall implement 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units) as provided in Section 34(b) of this act.

"(b) Implementation. - Notwithstanding the Daily Flow for Design rates listed for dwelling units in 15A NCAC 18A .1949(a) or for other establishments in Table No. 1 of 15A NCAC 18A .1949(b)(Sewage Flow Rates for Design Units), a wastewater system shall be exempt from the Daily Flow for Design, and any other design flow standards that are established by the Department of Health and Human Services or the Commission for Public Health provided flow rates that are less than those listed in 15A NCAC 18A .1949 (Sewage Flow Rates for Design Units) can be achieved through engineering design that utilizes low-flow fixtures and low-flow technologies and the design is prepared, sealed, and signed by a professional engineer licensed pursuant to Chapter 89C of the General Statutes. The Department and Commission may establish, by rule, lower limits on reduced flow rates as necessary to ensure wastewater system integrity and protect public health, safety, and welfare, provided that the Commission relies on scientific evidence specific to soil types found in North Carolina that the lower limits are necessary for those soil types. 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). Proposed daily design flows for wastewater systems that are calculated to be less than 3,000 total gallons per day shall not require State review pursuant to 15A NCAC 18A .1938(e). Neither the State nor any local health department shall be liable for any damages caused by a system approved or permitted pursuant to this section.

"(c) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend 15A NCAC 18A .1949(b)(Sewage Flow Rates for Design Units) consistent with Section 34(b) 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 34(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14. 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 34(b) of this act expires on the date that rules adopted pursuant to Section 34(c) of this act become effective."

Session Laws 2013-413, s. 61(a) is a severability clause.

Session Laws 2017-10, s. 5.1 , is a severability clause.

Session Laws 2019-129, s. 1, provides: "Notwithstanding G.S. 150B-19(4), the Commission for Public Health may adopt rules to incorporate all or part of the 2017 edition of the United States Food and Drug Administration Food Code."

Effect of Amendments. - Session Laws 2011-13, s. 1, effective March 25, 2011, and applicable to rules published in the North Carolina Register by an agency on or after that date, added subdivision (7).

Session Laws 2011-398, s. 61.2, effective July 25, 2011, repealed subdivision (7), as added by Session Laws 2011-13, s. 1.

§ 150B-19.1. Requirements for agencies in the rule-making process.

1. In developing and drafting rules for adoption in accordance with this Article, agencies shall adhere to the following principles:
   1. An agency may adopt only rules that are expressly authorized by federal or State law and that are necessary to serve the public interest.
   2. An agency shall seek to reduce the burden upon those persons or entities who must comply with the rule.
   3. Rules shall be written in a clear and unambiguous manner and must be reasonably necessary to implement or interpret federal or State law.
   4. An agency shall consider the cumulative effect of all rules adopted by the agency related to the specific purpose for which the rule is proposed. The agency shall not adopt a rule that is unnecessary or redundant.
   5. When appropriate, rules shall be based on sound, reasonably available scientific, technical, economic, and other relevant information. Agencies shall include a reference to this information in the notice of text required by G.S. 150B-21.2(c).
   6. Rules shall be designed to achieve the regulatory objective in a cost-effective and timely manner.
2. Each agency subject to this Article shall conduct an annual review of its rules to identify existing rules that are unnecessary, unduly burdensome, or inconsistent with the principles set forth in subsection (a) of this section. The agency shall repeal any rule identified by this review.
3. Each agency subject to this Article shall post on its Web site, no later than the publication date of the notice of text in the North Carolina Register, all of the following:
   1. The text of a proposed rule.
   2. An explanation of the proposed rule and the reason for the proposed rule.
   3. The federal certification required by subsection (g) of this section.
   4. Instructions on how and where to submit oral or written comments on the proposed rule, including a description of the procedure by which a person can object to a proposed rule and subject the proposed rule to legislative review.
   5. Any fiscal note that has been prepared for the proposed rule.
4. Each agency shall determine whether its policies and programs overlap with the policies and programs of another agency. In the event two or more agencies' policies and programs overlap, the agencies shall coordinate the rules adopted by each agency to avoid unnecessary, unduly burdensome, or inconsistent rules.
5. Each agency shall quantify the costs and benefits to all parties of a proposed rule to the greatest extent possible. Prior to submission of a proposed rule for publication in accordance with G.S. 150B-21.2, the agency shall review the details of any fiscal note prepared in connection with the proposed rule and approve the fiscal note before submission.
6. If the agency determines that a proposed rule will have a substantial economic impact as defined in G.S. 150B-21.4(b1), the agency shall consider at least two alternatives to the proposed rule. The alternatives may have been identified by the agency or by members of the public.
7. Whenever an agency proposes a rule that is purported to implement a federal law, or required by or necessary for compliance with federal law, or on which the receipt of federal funds is conditioned, the agency shall:
   1. Prepare a certification identifying the federal law requiring adoption of the proposed rule. The certification shall contain a statement setting forth the reasons why the proposed rule is required by federal law. If all or part of the proposed rule is not required by federal law or exceeds the requirements of federal law, then the certification shall state the reasons for that opinion.
   2. Post the certification on the agency Web site in accordance with subsection (c) of this section.
   3. Maintain a copy of the federal law and provide to the Office of State Budget and Management the citation to the federal law requiring or pertaining to the proposed rule.
8. Repealed by Session Laws 2014-120, s. 6(a), effective September 18, 2014, and applicable to proposed rules published on or after that date.

If an agency proposes any change to a rule or fiscal note prior to the date it proposes to adopt a rule, the agency shall publish the proposed change on its Web site as soon as practicable after the change is drafted. If an agency's staff proposes any such change to be presented to the rule-making agency, the staff shall publish the proposed change on the agency's Web site as soon as practicable after the change is drafted.

History

(2011-398, s. 2; 2012-187, s. 3; 2013-143, s. 1.1; 2014-120, s. 6(a).)

Editor's Note. - Session Laws 2011-398, s. 63, made this section effective October 1, 2011, and applicable to rules adopted on or after that date.

Session Laws 2011-398, s. 62, is a severability clause.

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 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 2014-4, s. 2(g), provides: "The Mining and Energy Commission, the Environmental Management Commission, and the Commission for Public Health are exempt from the provisions of Chapter 150B of the General Statutes that require that a certification be obtained from the Office of State Budget and Management, including requirements under G.S. 150B-19.1(h) and G.S. 150B-21.4, and any requirement for preliminary review by the Office of State Budget and Management pursuant to G.S. 150B-21.26, for any rule proposed for the creation of a modern regulatory program for the management of oil and gas exploration and development activities in the State, including the use of horizontal drilling and hydraulic fracturing for that purpose."

Session Laws 2014-120, s. 6(c), made the repeal of subsection (h) by Session Laws 2014-120, s. 6(a), applicable to proposed rules published on or after September 18, 2014.

Session Laws 2014-120, s. 60, is a severability clause.

Effect of Amendments. - Session Laws 2014-120, s. 6(a), effective September 18, 2014, deleted subsection (h). See Editor's note for applicability.

§ 150B-19.2: Repealed by Session Laws 2013-413, s. 3(c). For effective date, see editor's note.

History

(2011-398, s. 2; repealed by 2013-413, s. 3(c). For effective date, see editor's note.)

Editor's Note. - Former G.S. 150B-19.2 pertained to review of existing rules.

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.

§ 150B-19.3. Limitation on certain environmental rules.

1. An agency authorized to implement and enforce State and federal environmental laws may not adopt a rule for the protection of the environment or natural resources that imposes a more restrictive standard, limitation, or requirement than those imposed by federal law or rule, if a federal law or rule pertaining to the same subject matter has been adopted, unless adoption of the rule is required by one of the subdivisions of this subsection. A rule required by one of the following subdivisions of this subsection shall be subject to the provisions of G.S. 150B-21.3(b1) as if the rule received written objections from 10 or more persons under G.S. 150B-21.3(b2):
   1. A serious and unforeseen threat to the public health, safety, or welfare.
   2. An act of the General Assembly or United States Congress that expressly requires the agency to adopt rules.
   3. A change in federal or State budgetary policy.
   4. A federal regulation required by an act of the United States Congress to be adopted or administered by the State.
   5. A court order.
2. For purposes of this section, "an agency authorized to implement and enforce State and federal environmental laws" means any of the following:
   1. The Department of Environmental Quality created pursuant to G.S. 143B-279.1.
   2. The Environmental Management Commission created pursuant to G.S. 143B-282.
   3. The Coastal Resources Commission established pursuant to G.S. 113A-104.
   4. The Marine Fisheries Commission created pursuant to G.S. 143B-289.51.
   5. The Wildlife Resources Commission created pursuant to G.S. 143-240.
   6. The Commission for Public Health created pursuant to G.S. 130A-29.
   7. The Sedimentation Control Commission created pursuant to G.S. 143B-298.
   8. The North Carolina Oil and Gas  Commission created pursuant to G.S. 143B-293.1.
   9. The Pesticide Board created pursuant to G.S. 143-436.

History

(2011-398, s. 2; 2012-143, s. 1(d); 2014-4, s. 4(c); 2014-120, s. 57; 2015-241, s. 14.30(u).)

Editor's Note. - Session Laws 2011-398, s. 63, made this section effective October 1, 2011, and applicable to rules adopted on or after that date.

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 2014-4, s. 2(e), provides: "G.S. 150B-19.3 shall not apply to rules adopted by the Mining and Energy Commission, the Environmental Management Commission, the Sedimentation Control Commission, and the Commission for Public Health for the management of oil and gas exploration, development, and production activities in the State, including the use of horizontal drilling and hydraulic fracturing for that purpose."

Effect of Amendments. - Session Laws 2014-4, s. 4(c), effective August 1, 2015, substituted "Oil and Gas Commission" for "Mining and Energy Commission" in subdivision (b)(8).

Session Laws 2014-120, s. 57, effective September 18, 2014, in the introductory language of subsection (a), substituted "subdivisions of this subsection" for "following" at the end of the first sentence and added the present last sentence.

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subdivision (b)(1).

§ 150B-20. Petitioning an agency to adopt a rule.

1. 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. An agency receiving a rule-making petition shall, within three business days of receipt of the petition, send the proposed text of the requested rule change and the statement of the effect of the requested rule change to the Office of Administrative Hearings. The Office of Administrative Hearings shall, within three business days of receipt of the proposed text of the requested rule change and the statement of the effect of the requested rule change, distribute the information via its mailing list and publish the information on its Web site.
2. Time. - An agency must grant or deny a rule-making petition submitted to it within 30 days after the date the rule-making petition is submitted, unless the agency is a board or commission. If the agency is a board or commission, it must grant or deny a rule-making petition within 120 days after the date the rule-making petition is submitted.
3. 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. 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.
4. 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.
5. Repealed by Session Laws 1996, Second Extra Session, c. 18, s. 7.10(b).

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1991, c. 418, s. 1; c. 477, s. 2; 1996, 2nd Ex. Sess., c. 18, s. 7.10(b); 1997-34, s. 2; 2003-229, s. 1; 2017-211, s. 1(a).)

Editor's Note. - Session Laws 1999-237, s. 11 provides that the Codifier of Rules may reorganize Titles 10 and 15A of the North Carolina Administrative Code to reflect the recent reorganization of the Department of Health and Human Services and the Department of Environment and Natural Resources.

Effect of Amendments. - Session Laws 2017-211, s. 1(a), effective January 1, 2018, added the fifth and sixth sentences to subsection (a).

Legal Periodicals. - For article, "Advisory Rulings by Administrative Agencies: Their Benefits and Dangers," see 2 Campbell L. Rev. 1 (1980).

§ 150B-21. Agency must designate rule-making coordinator; duties of coordinator.

1. Each agency must designate one or more rule-making coordinators to oversee the agency's rule-making functions. The coordinator shall serve as the liaison between the agency, other agencies, units of local government, and the public in the rule-making process. The coordinator shall report directly to the agency head.
2. The rule-making coordinator shall be responsible for the following:
   1. Preparing notices of public hearings.
   2. Coordinating access to the agency's rules.
   3. Screening all proposed rule actions prior to publication in the North Carolina Register to assure that an accurate fiscal note has been completed as required by G.S. 150B-21.4(b).
   4. Consulting with the North Carolina Association of County Commissioners and the North Carolina League of Municipalities to determine which local governments would be affected by any proposed rule action.
   5. Providing the North Carolina Association of County Commissioners and the North Carolina League of Municipalities with copies of all fiscal notes required by G.S. 150B-21.4(b), prior to publication in the North Carolina Register of the proposed text of a permanent rule change.
   6. Coordinating the submission of proposed rules to the Governor as provided by G.S. 150B-21.26.
3. At the earliest point in the rule-making process and in consultation with the North Carolina Association of County Commissioners, the North Carolina League of Municipalities, and with samples of county managers or city managers, as appropriate, the rule-making coordinator shall lead the agency's efforts in the development and drafting of any rules or rule changes that could:
   1. Require any unit of local government, including a county, city, school administrative unit, or other local entity funded by or through a unit of local government to carry out additional or modified responsibilities;
   2. Increase the cost of providing or delivering a public service funded in whole or in part by any unit of local government; or
   3. Otherwise affect the expenditures or revenues of a unit of local government.
4. The rule-making coordinator shall send to the Office of State Budget and Management for compilation a copy of each final fiscal note prepared pursuant to G.S. 150B-21.4(b).
5. The rule-making coordinator shall compile a schedule of the administrative rules and amendments expected to be proposed during the next fiscal year. The coordinator shall provide a copy of the schedule to the Office of State Budget and Management in a manner proposed by that Office.
6. Repealed by Session Laws 2011-398, s. 3, effective October 1, 2011, and applicable to rules adopted on or after that date.

History

(1991, c. 418, s. 1; 1995, c. 415, s. 1; c. 507, s. 27.8(v); 2000-140, s. 93.1(a); 2001-424, s. 12.2(b); 2011-398, s. 3.)

Editor's Note. - For subject matter similar to former subsection (f), see subsection (g) of G.S. 150B-19.1.

Effect of Amendments. - Session Laws 2011-398, s. 3, effective October 1, 2011, and applicable to rules adopted on or after that date, deleted subsection (f).

Opinions of Attorney General

Adoption of Rules. - The Water Quality Committee of the Environmental Management Commission could immediately adopt temporary rules under G.S. 150B-21(a)(5) to establish a permit program for regulating impacts to isolated wetlands and surface waters because a recent decision of the U.S. Supreme Court invalidating the Army Corps of Engineers' exercise of jurisdiction over such isolated waters was a court order under G.S. 150B-21.1(a)(5). See opinion of Attorney General to Dr. Charles H. Peterson, Vice Chairman, Environmental Management Commission, and Ms. Coleen Sullins, Water Quality Section, Division of Water Quality, 2001 N.C. AG LEXIS 33 (9/5/01).

PART 2. ADOPTION OF RULES.

§ 150B-21.1. Procedure for adopting a temporary rule.

1. Adoption. - An agency may adopt a temporary rule when it finds that adherence to the notice and hearing requirements of G.S. 150B-21.2 would be contrary to the public interest and that the immediate adoption of the rule is required by one or more of the following:
   1. A serious and unforeseen threat to the public health, safety, or welfare.
   2. The effective date of a recent act of the General Assembly or the United States Congress.
   3. A recent change in federal or State budgetary policy.
   4. A recent federal regulation.
   5. A recent court order.
   6. The need for a rule establishing review criteria as authorized by G.S. 131E-183(b) to complement or be made consistent with the State Medical Facilities Plan approved by the Governor, if the rule addresses a matter included in the State Medical Facilities Plan, and the proposed rule and a notice of public hearing is submitted to the Codifier of Rules prior to the effective date of the Plan.
   7. The need for the Wildlife Resources Commission to establish any of the following:
      1. No wake zones.
      2. Hunting or fishing seasons, including provisions for manner of take or any other conditions required for the implementation of such season.
      3. Hunting or fishing bag limits.
      4. Management of public game lands as defined in G.S. 113-129(8a).
   8. The need for the Secretary of State to implement the certification technology provisions of Article 11A of Chapter 66 of the General Statutes, to adopt uniform Statements of Policy that have been officially adopted by the North American Securities Administrators Association, Inc., for the purpose of promoting uniformity of state securities regulation, and to adopt rules governing the conduct of hearings pursuant to this Chapter.
   9. The need for the Commissioner of Insurance to implement the provisions of G.S. 58-2-205.
   10. The need for the State Chief Information Officer to implement the information technology procurement provisions of Article 15 of Chapter 143B of the General Statutes.
   11. The need for the State Board of Elections to adopt a temporary rule after prior notice or hearing or upon any abbreviated notice or hearing the agency finds practical for one or more of the following:
       1. In accordance with the provisions of G.S. 163-22.2.
       2. To implement any provisions of state or federal law for which the State Board of Elections has been authorized to adopt rules.
       3. The need for the rule to become effective immediately in order to preserve the integrity of upcoming elections and the elections process.
   12. Repealed by Session Laws 2015-264, s. 22, effective October 1, 2015.
   13. , (14) Reserved.
2. Recodified as subdivision (a)(16) of this section by Session Laws 2004-156, s. 1.
3. A recent act, change, regulation, or order as used in subdivisions (2) through (5) of subsection (a) of this section means an act, change, regulation, or order occurring or made effective no more than 210 days prior to the submission of a temporary rule to the Rules Review Commission. Upon written request of the agency, the Commission may waive the 210-day requirement upon consideration of the degree of public benefit, whether the agency had control over the circumstances that required the requested waiver, notice to and opposition by the public, the need for the waiver, and previous requests for waivers submitted by the agency.
4. Unless otherwise provided by law, the agency shall:
   1. At least 30 business days prior to adopting a temporary rule, submit the rule and a notice of public hearing to the Codifier of Rules, and the Codifier of Rules shall publish the proposed temporary rule and the notice of public hearing on the Internet to be posted within five business days.
   2. At least 30 business days prior to adopting a temporary rule, notify persons on the mailing list maintained pursuant to G.S. 150B-21.2(d) and any other interested parties of its intent to adopt a temporary rule and of the public hearing.
   3. Accept written comments on the proposed temporary rule for at least 15 business days prior to adoption of the temporary rule.
   4. Hold at least one public hearing on the proposed temporary rule no less than five days after the rule and notice have been published. If notice of a public hearing has been published and that public hearing has been cancelled, the agency shall publish notice at least five days prior to the date of any rescheduled hearing.
5. An agency must also prepare a written statement of its findings of need for a temporary rule stating why adherence to the notice and hearing requirements in G.S. 150B-21.2 would be contrary to the public interest and why the immediate adoption of the rule is required. If the temporary rule establishes a new fee or increases an existing fee, the agency shall include in the written statement that it has complied with the requirements of G.S. 12-3.1. The statement must be signed by the head of the agency adopting the temporary rule.
6. Review. - When an agency adopts a temporary rule it must submit the rule and the agency's written statement of its findings of the need for the rule to the Rules Review Commission. Within 15 business days after receiving the proposed temporary rule, the Commission shall review the agency's written statement of findings of need for the rule and the rule to determine whether the statement meets the criteria listed in subsection (a) of this section and the rule meets the standards in G.S. 150B-21.9. The Commission shall direct a member of its staff who is an attorney licensed to practice law in North Carolina to review the statement of findings of need and the rule. The staff member shall make a recommendation to the Commission, which must be approved by the Commission or its designee. The Commission's designee shall be a panel of at least three members of the Commission. In reviewing the statement, the Commission or its designee may consider any information submitted by the agency or another person. If the Commission or its designee finds that the statement meets the criteria listed in subsection (a) of this section and the rule meets the standards in G.S. 150B-21.9, the Commission or its designee must approve the temporary rule and deliver the rule to the Codifier of Rules within two business days of approval. The Codifier of Rules must enter the rule into the North Carolina Administrative Code on the sixth business day following receipt from the Commission or its designee.
7. If the Commission or its designee finds that the statement does not meet the criteria listed in subsection (a) of this section or that the rule does not meet the standards in G.S. 150B-21.9, the Commission or its designee must immediately notify the head of the agency. The agency may supplement its statement of need with additional findings or submit a new statement. If the agency provides additional findings or submits a new statement, the Commission or its designee must review the additional findings or new statement within five business days after the agency submits the additional findings or new statement. If the Commission or its designee again finds that the statement does not meet the criteria listed in subsection (a) of this section or that the rule does not meet the standards in G.S. 150B-21.9, the Commission or its designee must immediately notify the head of the agency and return the rule to the agency.
8. If an agency decides not to provide additional findings or submit a new statement when notified by the Commission or its designee that the agency's findings of need for a rule do not meet the required criteria or that the rule does not meet the required standards, the agency must notify the Commission or its designee of its decision. The Commission or its designee shall then return the rule to the agency. When the Commission returns a rule to an agency in accordance with this subsection, the agency may file an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 of Chapter 1 of the General Statutes.
9. Notwithstanding any other provision of 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.
10. Standing. - A person aggrieved by a temporary rule adopted by an agency may file an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 of Chapter 1 of the General Statutes. In the action, the court shall determine whether the agency's written statement of findings of need for the rule meets the criteria listed in subsection (a) of this 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.
11. Filing a petition for rule making or a request for a declaratory ruling with the agency that adopted the rule is not a prerequisite to filing an action under this subsection. A person who files an action for declaratory judgment under this subsection must serve a copy of the complaint on the agency that adopted the rule being contested, the Codifier of Rules, and the Commission.
12. Effective Date and Expiration. - 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 specified in the rule.
    2. The effective date of the permanent rule adopted to replace the temporary rule, if the Commission approves the permanent rule.
    3. The date the Commission returns to an agency a permanent rule the agency adopted to replace the temporary rule.
    4. The effective date of an act of the General Assembly that specifically disapproves a permanent rule adopted to replace the temporary rule.
    5. 270 days from the date the temporary rule was published in the North Carolina Register, unless the permanent rule adopted to replace the temporary rule has been submitted to the Commission.
13. Publication. - When the Codifier of Rules enters a temporary rule in the North Carolina Administrative Code, the Codifier must publish the rule in the North Carolina Register.

(15) Expired pursuant to Session Laws 2002-164, s. 5, effective October 1, 2004.

(16) Expired pursuant to Session Laws 2003-184, s. 3, effective July 1, 2005.

(17) To maximize receipt of federal funds for the Medicaid or NC Health Choice programs within existing State appropriations, to reduce Medicaid or NC Health Choice expenditures, and to reduce Medicaid and NC Health Choice fraud and abuse.

History

(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, ss. 2.3, 5.3; 2001-424, ss. 27.17(b), (c), 27.22(a), (b); 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; 2011-398, s. 4; 2013-360, s. 12H.9(d); 2013-413, s. 39; 2015-241, s. 7A.4(ee); 2015-264, s. 22; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1; 2020-3, s. 4.25(a).)

Cross References. - As to Commission's ability to adopt temporary rules, notwithstanding this section, to establish maximum mass loads or concentration limits relating to nitrogen and phosphorous discharge limits pursuant to G.S. 143-215.1B, see G.S. 143-215.1B(c).

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes, in subdivision (a)(11), substituted "G.S. 163A-742" for "G.S. 163-22.2" once, and substituted "Bipartisan State Board of Elections and Ethics Enforcement" for "State Board of Elections" twice.

Session Laws 2018-146, ss. 3.1(a), (b), and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in subdivision (a)(11).

Coastal Energy Facilities. - Session Laws 1998-221, s. 2.1 provided: "Notwithstanding G.S. 150B-21.1(a) and 26 NCAC 2C.0102(11), the Coastal Resources Commission may adopt temporary rules governing coastal energy facilities until 1 July 2005."

Conservation Reserve Enhancement Program. - Session Laws 1998-165, s. 2 provides that the Soil and Water Conservation Commission may adopt temporary rules to implement the Conservation Reserve Enhancement Program. This section shall constitute a recent act of the General Assembly for purposes of G.S. 150B-21.1(a)(2).

Area Mental Health Programs. - Session Laws 1998-212, s. 12.35C(b) provides: "Notwithstanding G.S. 150B-21.1, the Secretary may adopt temporary rules to implement subsection (a) of this section [which amended G.S. 122C-112(a)], provided that the temporary rules shall not become effective until 60 days after the Secretary has provided notice and opportunity for written comment to the general public of the Secretary's intent to adopt temporary rules, the purpose and subject matter of the rules, and the effective date of the rules. Notice and comment shall be through publication in the North Carolina Register, in the print media, and through mailings to area mental health authorities and other appropriate mental health institutions and providers that will be subject to the temporary rules."

Hurricane Floyd Recovery Act. - Session Laws 1999-463, s. 4 authorizes every State agency to adopt temporary rules necessary to implement the provisions of the act, the Hurricane Floyd Recovery Act of 1999, and provides that notwithstanding § 150B-21.1 (a)(2) and 26 NCAC 2C.0102(11), the authority to adopt temporary rules to implement the provisions of the act shall continue in effect until all rules necessary to implement the provisions of the act have become effective as either temporary rules or permanent rules. Notwithstanding § 150B-21.1 (d), a temporary rule adopted to implement the provisions of the act shall specify the date on which the rule will expire and shall continue in effect until that date. Any agency that adopts a temporary rule to implement the provisions of the act shall report the text of the rule and the agency's written statement of its findings of the need for the rule to the Joint Legislative Administrative Procedure Oversight Committee within 30 days of the adoption of the temporary rule. Section 4 applies to the adoption of temporary rules by the Department of Administration under § 113A-11 (a) and to the adoption of temporary rules that establish minimum criteria by any State agency, as defined in § 113A-9, under § 113A-11 (b).

Adult Care Homes - Short-Term Admission. - Session Laws 2000-50, s. 2, provides: "Notwithstanding G.S. 150B-21.1(a), the Medical Care Commission shall adopt temporary rules for the purpose of defining the circumstances under which adult care homes may admit residents on a short-term basis for the purpose of caregiver respite and the rules that shall apply during the course of their stay. The Commission's authority to adopt temporary rules under this section expires on the date that permanent rules pertaining to the same subject matter adopted by the Commission as authorized under G.S. 143B-165(10) become effective."

Mental Health Facilities. - Session Laws 2000-55, s. 6, provides: "Notwithstanding G.S. 150B-21.1(a), the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services shall adopt temporary rules to implement G.S. 122C-26(5)."

Abuser Treatment Programs. - Session Laws 2000-67, s. 21.5, provides that, notwithstanding the provisions of G.S. 150B-21.1(a), the Department of Administration may adopt temporary rules to approve abuser treatment programs that apply to the North Carolina Council for Women.

Session Laws 2000-67, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2000.' "

Session Laws 2000-67, s. 28.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2000-2001 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2000-2001 fiscal year."

Session Laws 2000-67, s. 28.4, contains a severability clause.

Approval of Temporary Rules Governing Residential Treatment for Children or Adolescents. - Session Laws 2005-276, s. 10.35B, provides: "Notwithstanding G.S. 150B-21.1(b) and G.S. 150B-21.3(b2), the Department of Health and Human Services may adopt as temporary rules the rules governing residential treatment for children or adolescents approved for adoption or revision on May 18, 2005, by the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services, and approved by the Rules Review Commission. The temporary rules shall become effective as provided in G.S. 150B-21.3(a)."

Minimum Separation Distances Between Well Serving Single-Family Dwellings and Certain Other Structures. - Session Laws 2001-113, ss. 1 to 4, provide: "For a well serving a single-family dwelling where lot size or other fixed conditions preclude the separation distances specified in subparagraph (a) (2) of 15A NCAC 2C.0107 (Standards of Construction: Water-Supply Wells), as adopted by the Environmental Management Commission on October 12, 2000, and approved by the Rules Review Commission on November 16, 2000, the required separation distances shall be the maximum possible, but shall in no case be less than the following:

"(1) Septic tank and drainfield 50 feet

"(2) Water-tight sewage or liquid-waste collection or transfer facility 25 feet

"(3) Animal barns 50 feet

"(4) Cesspool or privies 50 feet.

"This act [Session Laws 2001-113] constitutes a recent act of the General Assembly within the meaning of G.S. 150B-21.1(a). The Environmental Management Commission may adopt a temporary rule that incorporates the provisions of Section 1 of this act [Section 1 of Session Laws 2001-113]. Notwithstanding G.S. 150B-21.1(d), a temporary rule adopted in accordance with this section shall remain in effect until a permanent rule adopted to replace the temporary rule becomes effective.

"Except as provided by Section 1 of this act [Section 1 of Session Laws 2001-113], this act does not limit the authority of the Environmental Management Commission to adopt rules governing the location, construction, repair, and abandonment of wells pursuant to G.S. 87-87 and Article 2A of Chapter 150B of the General Statutes.

"This act is effective retroactively to the date on which it is ratified. If the Environmental Management Commission adopts a temporary rule as provided in Section 2 of this act, Section 1 of this act [Sections 1 and 2 of Session Laws 2001-113] expires when the temporary rule becomes effective."

Air Quality. - Session Laws 2000-134, s. 21, provides that Session Laws 2000-134, relating to air quality emission inspections, and fund expenditures, constitutes a recent act of the General Assembly within the meaning of G.S. 150B-21.1, and that, notwithstanding G.S. 150B-21.1(a)(2) and 26 NCAC 2C.0102(11), the Environmental Management Commission and the Division of Motor Vehicles of the Department of Transportation may adopt temporary rules to implement the provisions of the act. Section 21 is to continue in effect until all rules necessary to implement the provisions of the act have become effective as either temporary rules or permanent rules.

Tar-Pamlico River Basin. - Session Laws 2001-355, s. 5(b) provides that the Environmental Management Commission may adopt a temporary rule that incorporates the provisions of Sections 2 and 3 of the act (providing for implementation of the Tar-Pamlico River Basin-Nutrient Sensitive Waters Management Strategy: Agricultural Nutrient Control Strategy, as adopted by the Environmental Management Commission on 12 October 2000 and approved by the Rules Review Commission on 20 November 2000, to become effective on 1 September 2001). Notwithstanding G.S. 150B-21.1(d), a temporary rule adopted in accordance with s. 5(b) shall remain in effect until a temporary or permanent rule adopted to replace the temporary rule becomes effective.

Catawba River Basin. - Session Laws 2001-418, s. 4(a), as amended by Session Laws 2003-340, s. 5, provides: "Notwithstanding G.S. 150B-21.1(d), temporary rules 15A NCAC 2B.0243 and 15A NCAC 2B.0244, which were adopted pursuant to Section 7.1 of S.L. 1999-329 and which became effective on or before 1 July 2001, shall continue in effect until 1 September 2004 in order to provide sufficient time for the Environmental Management Commission to further consult with businesses and industries, local governments, landowners, and other interested or potentially affected persons in the upper and lower Catawba River Basin as to the appropriate scope of permanent rules to protect water quality and riparian buffers in that river basin. In developing permanent rules, the Commission shall consider whether riparian buffers on the main stem of the Catawba River and on lake shorelines are adequate to protect water quality in the river and whether riparian buffer protection requirements should or should not be extended to some or all of the tributary streams in the river basin, taking into account the sources of water quality degradation in the river, the topography of the land in the river basin, and other relevant factors."

Session Laws 2001-418, s. 4(b), provides: "Vested rights recognized or established under the common law or by G.S. 153A-344(b), 153A-344.1, 160A-385(b), or 160A-385.1 shall include the right, as provided in this subsection, to undertake and complete development in the Catawba River Basin without application of temporary rule 15A NCAC 2B.0243. The Commission and the Department shall not apply temporary rule 15A NCAC 2B.0243 to development with vested rights recognized or established under G.S. 153A-344(b), 153A-344.1, 160A-385(b), or 160A-385.1 prior to 1 July 2001. The Commission and the Department shall not apply temporary rule 15A NCAC 2B.0243 to development with vested rights recognized or established under the common law prior to the date this section [s. 4 of Session Laws 2001-418] becomes effective if the Commission has issued a certification pursuant to G.S. 143B-282(a)(1)u. prior to 1 July 2001. The Commission shall not adopt or enforce rules that confer or restrict a vested right to undertake or complete development. It is the intent of the General Assembly that this subsection [s. 4(b)] apply only to the particular circumstances that are the subject of this section [s. 4 of Session Laws 2001-418]. This subsection [s. 4(b)] does not establish a precedent as to the application of vesting under a zoning or land-use planning program administered by a local government or to any other environmental program."

Session Laws 2001-416, s. 4(c), provides: "Notwithstanding G.S. 150B-21.3(a), this section [s. 4 of Session Laws 2001-416] shall not be construed to authorize the adoption of additional temporary rules related to protection of water quality and riparian buffers."

Medicaid - Other Mental Health Services. - Session Laws 2003-284, s. 10.19(a)(22), as amended by Session Laws 2004-124, s. 10.4, contains provisions regarding the following services and payment bases: 1) services as defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services and approved by the Centers for Medicare and Medicaid Services (CMS); and 2) for children eligible for certain EPSDT services; and 3) certain services for Medicaid-eligible adults. The subdivision further provides: "Notwithstanding G.S. 150B-21.1(a), the Department of Health and Human Services may adopt temporary rules in accordance with Chapter 150B of the General Statutes further defining the qualifications of providers and referral procedures in order to implement this subdivision. Coverage policy for services defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services under sub-subdivisions a. and b.2 of this subdivision shall be established by the Division of Medical Assistance."

Reorganization of Human Resources Development Program. - Session Laws 2001-424, ss. 30.3(a) to (e), provide:

"(a) The State Board of Community Colleges shall establish a committee to develop and recommend to the Board a core series of employability skills training classes that should be coded in the Continuing Education Master Course List as Human Resources Development.

"(b) The State Board of Community Colleges may waive tuition and fees for enrollment in classes coded in the Continuing Education Master Course List as Human Resources Development if the individual enrolling:

"(1) Is unemployed;

"(2) Has received notification of a pending layoff;

"(3) Is working and is eligible for the Federal Earned Income Tax Credit (FEITC); or

"(4) Is working and earning wages at or below two hundred percent (200%) of the federal poverty guidelines.

"Individuals for whom tuition and fees are waived must sign a form adopted by the State Board of Community Colleges verifying that they meet one of these criteria.

"(c) The State Board of Community Colleges shall study the feasibility of integrating the delivery of human resources development services into the frame work of the JobLink Career Centers. The Board shall report its recommendations to the Joint Legislative Education Oversight Committee by May 1, 2002.

"(d) The State Board of Community Colleges shall report to the Joint Legislative Education Oversight Committee on its reorganization of the Human Resources Development Program by January 1, 2003.

"(e) The State Board of Community Colleges may adopt temporary rules to implement reorganization of the Human Resources Development Program."

Buffer Requirement. - Session Laws 2001-494, s. 3, provides: "The Coastal Resources Commission may adopt a temporary rule to amend 15A NCAC 7H.0209 that incorporates the provision of Section 1 of this act [s. 1 of Session Laws 2001-494, relating to the 30 foot buffer requirement along public trust and estuarine waters]. Notwithstanding G.S. 150B-21.1(d), a temporary rule adopted in accordance with this section [s. 1 of Session Laws 2001-494] shall remain in effect until the permanent rule that incorporates the temporary rule becomes effective. Notwithstanding G.S. 150B-21.1(a)(2), this act [Session Laws 2001-494] shall not be construed to authorize the adoption of temporary rules except as specifically provided in this section [s. 1 of Session Laws 2001-494]."

Motor Vehicle Emissions. - Session Laws 2001-504, s. 19, provides: "This act constitutes a recent act of the General Assembly within the meaning of G.S. 150B-21.1. Notwithstanding G.S. 150B-21.1(a) (2) and 26 NCAC 2C.0102(11), the Environmental Management Commission and the Division of Motor Vehicles of the Department of Transportation may adopt temporary rules to implement the provisions of this act. This section [s. 19 of Session Laws 2001-504] shall continue in effect until all rules necessary to implement the provisions of this act have become effective as either temporary rules or permanent rules. "

Medicaid Services and Payment Bases. - Session Laws 2011-145, s. 10.31(d), as amended by Session Laws 2012-72, s. 8, provides: "Services and Payment Bases. - The Department shall spend funds appropriated for Medicaid services in accordance with the following schedule of services and payment bases. Unless otherwise provided, services and payment bases will be as prescribed in the State Plan as established by the Department of Health and Human Services and may be changed with the approval of the Director of the Budget.

"The Department of Health and Human Services (DHHS) shall operate and manage the Medicaid program within the annual State appropriation. DHHS shall establish policies, practices, rates, and expenditure procedures that are in compliance with CMS regulations and approved State Plans, State laws, and regulations.

"Additionally, the Department shall be required to use the Physician's Advisory Group for review and will collaborate with other stakeholder groups in the adoption and implementation of all clinical and payment policies, including all public notice and posting provisions in use as of the effective date of this provision.

"(1) Mandatory Services. - In order to manage the Medicaid program within the annual State appropriation, the Secretary shall have the authority to submit State Plan amendments and establish temporary rules affecting the amount of service and payment rate for the following mandatory services:

"a. Hospital inpatient. - Payment for hospital inpatient services will be prescribed by the State Plan as established by the Department of Health and Human Services.

"b. Hospital outpatient. - Eighty percent (80%) of allowable costs or a prospective reimbursement plan as established by the Department of Health and Human Services.

"c. Nursing facilities. - Nursing facilities providing services to Medicaid recipients who also qualify for Medicare must be enrolled in the Medicare program as a condition of participation in the Medicaid program. State facilities are not subject to the requirement to enroll in the Medicare program. Residents of nursing facilities who are eligible for Medicare coverage of nursing facility services must be placed in a Medicare-certified bed. Medicaid shall cover facility services only after the appropriate services have been billed to Medicare.

"d. Physicians, certified nurse midwife services, nurse practitioners, physician assistants. - Fee schedules as developed by the Department of Health and Human Services.

"e. EPSDT screens. - Payments in accordance with rate schedule developed by the Department of Health and Human Services.

"f. Home health and related services, durable medical equipment. - Payments according to reimbursement plans developed by the Department of Health and Human Services.

"g. Rural health clinical services. - Provider-based, reasonable cost, nonprovider-based, single-cost reimbursement rate per clinic visit.

"h. Family planning. - Negotiated rate for local health departments. For other providers see specific services, e.g., hospitals, physicians.

"i. Independent laboratory and X-ray services. - Uniform fee schedules as developed by the Department of Health and Human Services.

"j. Medicare Buy-In. - Social Security Administration premium.

"k. Ambulance services. - Uniform fee schedules as developed by the Department of Health and Human Services. Public ambulance providers will be reimbursed at cost.

"l. Medicare crossover claims. - The Department shall apply Medicaid medical policy to Medicare claims for dually eligible recipients. The Department shall pay an amount up to the actual coinsurance or deductible or both, in accordance with the State Plan, as approved by the Department of Health and Human Services. The Department may disregard application of this policy in cases where application of the policy would adversely affect patient care.

"m. Pregnancy-related services. - Covered services for pregnant women shall include nutritional counseling, psychosocial counseling, and predelivery and postpartum home visits as described in clinical policy.

"n. Mental health services. - Coverage is limited to children eligible for EPSDT services provided by:

"1. Licensed or certified psychologists, licensed clinical social workers, licensed clinical social workers associates, certified clinical nurse specialists in psychiatric mental health advanced practice, nurse practitioners certified as clinical nurse specialists in psychiatric mental health advanced practice, licensed psychological associates, licensed professional counselors, licensed professional counselor associates, licensed marriage and family therapists, licensed marriage and family therapist associates, licensed clinical addictions specialists, licensed clinical addiction specialists associate, and certified clinical supervisors, when Medicaid-eligible children are referred by the Community Care of North Carolina primary care physician, a Medicaid-enrolled psychiatrist, or the area mental health program or local management entity, and

"2. Institutional providers of residential services as defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services and approved by the Centers for Medicare and Medicaid Services (CMS) for children and Psychiatric Residential Treatment Facility services that meet federal and State requirements as defined by the Department.

"(2) Optional Services. - In order to manage the Medicaid program within the annual State appropriation, the Secretary shall have the authority to submit State Plan amendments and establish temporary rules affecting the amount of service, payment rate, or elimination of the following optional services:

"a. Certified registered nurse anesthetists.

"b. Community Alternative Programs.

"c. Hearing aids. - Wholesale cost plus dispensing fee to provider.

"d. Ambulatory surgical centers.

"e. Private duty nursing, clinic services, prepaid health plans.

"f. Intermediate care facilities for the mentally retarded.

"g. Chiropractors, podiatrists, optometrists, dentists.

"h. Dental coverage. - Dental services shall be provided on a restricted basis in accordance with criteria adopted by the Department to implement this subsection.

"i. Optical supplies. - Payment for materials is made to a contractor in accordance with 42 C.F.R. § 431.54(d). Fees paid to dispensing providers are negotiated fees established by the State agency based on industry charges.

"j. Physical therapy, occupational therapy, and speech therapy. - Services for adults. Payments are to be made only to qualified providers at rates negotiated by the Department of Health and Human Services.

"k. Personal care services. - Payment in accordance with the State Plan developed by the Department of Health and Human Services.

"l. Case management services. - Reimbursement in accordance with the availability of funds to be transferred within the Department of Health and Human Services.

"m. Hospice and palliative care.

"n. Medically necessary prosthetics or orthotics. - In order to be eligible for reimbursement, providers must be licensed or certified by the occupational licensing board or the certification authority having authority over the provider's license or certification. Medically necessary prosthetics and orthotics are subject to prior approval and utilization review.

"o. Health insurance premiums.

"p. Medical care/other remedial care. - Services not covered elsewhere in this section include related services in schools; health professional services provided outside the clinic setting to meet maternal and infant health goals.

"q. Bariatric surgeries. - Covered as described in clinical policy 1A-15, Surgery for Clinically Severe Obesity. In order to raise the standard of bariatric care in North Carolina, approval for these procedures shall be granted only to those providers (facilities and surgeons) who are designated as a Bariatric Surgery Center of Excellence (BSCOE) by the American Society for Metabolic and Bariatric Surgery (ASMBS). Providers must then submit to NC Medicaid documentation of their designation as a BSCOE, as well as verify their continued annual participation.

"r. Drugs. -

"1. Reimbursements. - Reimbursements shall be available for prescription drugs as allowed by federal regulations plus a professional services fee per month, excluding refills for the same drug or generic equivalent during the same month. Payments for drugs are subject to the provisions of this subdivision or in accordance with the State Plan adopted by the Department of Health and Human Services, consistent with federal reimbursement regulations. Payment of the professional services fee shall be made in accordance with the State Plan adopted by the Department of Health and Human Services, consistent with federal reimbursement regulations. The professional services fee shall be established by the Department. In addition to the professional services fee, the Department may pay an enhanced fee for pharmacy services.

"2. Limitations on quantity. - The Department of Health and Human Services may establish authorizations, limitations, and reviews for specific drugs, drug classes, brands, or quantities in order to manage effectively the Medicaid program. The Department may impose prior authorization requirements on brand-name drugs for which the phrase 'medically necessary' is written on the prescription.

"3. Dispensing of generic drugs. - Notwithstanding G.S. 90-85.27 through G.S. 90-85.31, or any other law to the contrary, under the Medical Assistance Program (Title XIX of the Social Security Act), and except as otherwise provided in this subsection for drugs listed in the narrow therapeutic index, a prescription order for a drug designated by a trade or brand name shall be considered to be an order for the drug by its established or generic name, except when the prescriber has determined, at the time the drug is prescribed, that the brand-name drug is medically necessary and has written on the prescription order the phrase 'medically necessary.' An initial prescription order for a drug listed in the narrow therapeutic drug index that does not contain the phrase 'medically necessary' shall be considered an order for the drug by its established or generic name, except that a pharmacy shall not substitute a generic or established name prescription drug for subsequent brand or trade name prescription orders of the same prescription drug without explicit oral or written approval of the prescriber given at the time the order is filled. Generic drugs shall be dispensed at a lower cost to the Medical Assistance Program rather than trade or brand-name drugs. Notwithstanding this subdivision to the contrary, the Secretary of Health and Human Services may prevent substitution of a generic equivalent drug, including a generic equivalent that is on the State maximum allowable cost list, when the net cost to the State of the brand-name drug, after consideration of all rebates, is less than the cost of the generic equivalent. As used in this subsection, 'brand name' means the proprietary name the manufacturer places upon a drug product or on its container, label, or wrapping at the time of packaging; and 'established name' has the same meaning as in section 502(e)(3) of the Federal Food, Drug, and Cosmetic Act, as amended, 21 U.S.C. § 352(e)(3).

"4. Specialty drug provider network. - The Department of Health and Human Services shall work with specialty drug providers, manufacturers of specialty drugs, Medicaid recipients who are prescribed specialty drugs, and the medical professionals that treat Medicaid recipients who are prescribed specialty drugs to develop ways to ensure that best practices and the prevention of overutilization are maintained in the delivery and utilization of specialty drugs.

"5. Lock controlled substances prescriptions into single pharmacy/provider. - The Department of Health and Human Services, Division of Medical Assistance, shall lock Medicaid enrollees into a single pharmacy and provider when the Medicaid enrollee's utilization of selected controlled substance medications meets the lock-in criteria approved by the North Carolina Physicians Advisory Group, as follows:

"I. Enrollees may be prescribed selected controlled substance medications by only one prescribing physician and may not change the prescribing physician at any time without prior approval or authorization by the Division.

"II. Enrollees may have prescriptions for selected controlled substance medications filled at only one pharmacy and may not change to another pharmacy at any time without prior approval or authorization by the Division.

"5A. Prior authorization. - The Department of Health and Human Services shall not impose prior authorization requirements or other restrictions under the State Medical Assistance Program on medications prescribed for Medicaid recipients for the treatment of (i) mental illness, including, but not limited to, medications for schizophrenia, bipolar disorder, major depressive disorder or (ii) HIV/AIDS. Medications prescribed for the treatment of mental illness shall be included on the Preferred Drug List (PDL). The Department of Health and Human Services, Division of Medical Assistance, may initiate prior authorization for the prescribing of drugs specified for the treatment of mental illness by providers who fail to prescribe those drugs in accordance with indications and dosage levels approved by the federal Food and Drug Administration. The Department may require retrospective clinical justification for the use of multiple psychotropic drugs for a Medicaid patient. For individuals 18 years of age and under who are prescribed three or more psychotropic medications, the Department shall implement clinical edits that target inefficient, ineffective, or potentially harmful prescribing patterns. When such patterns are identified, the Medical Director for the Division of Medical Assistance and the Chief of Clinical Policy for the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services shall require a peer-to-peer consultation with the target prescribers. Alternatives discussed during the peer-to-peer consultations shall be based upon:

"a. Evidence-based criteria available regarding efficacy or safety of the covered treatments; and

"b. Policy approval by a majority vote of the North Carolina Physicians Advisory Group (NCPAG).

"The target prescriber has final decision-making authority to determine which prescription drug to prescribe or refill.

"6. Preferred Drug List. - The Department of Health and Human Services shall establish and implement a preferred drug list program under the Division of Medical Assistance. Medications prescribed for the treatment of mental illness shall be included on the Preferred Drug List (PDL).

"The pharmaceutical and therapeutics committee of the Physician's Advisory Group (PAG) shall provide ongoing review of the preferred drug list, including the implementation of prior authorization on identified drugs. Members of the committee shall submit conflict of interest disclosure statements to the Department and shall have an ongoing duty to disclose conflicts of interest not included in the original disclosure.

"The Department, in consultation with the PAG, shall adopt and publish policies and procedures relating to the preferred drug list, including the following:

"I. Guidelines for the presentation and review of drugs for inclusion on the preferred drug list.

"II. The manner and frequency of audits of the preferred drug list for appropriateness of patient care and cost-effectiveness.

"III. An appeals process for the resolution of disputes.

"IV. Such other policies and procedures as the Department deems necessary and appropriate.

"The Department and the pharmaceutical and therapeutics committee shall consider all therapeutic classes of prescription drugs for inclusion on the preferred drug list, except medications for treatment of human immunodeficiency virus or acquired immune deficiency syndrome shall not be subject to consideration for inclusion on the preferred drug list.

"The Department shall maintain an updated preferred drug list in electronic format and shall make the list available to the public on the Department's Internet Web site.

"The Department shall (i) enter into a multistate purchasing pool; (ii) negotiate directly with manufacturers or labelers; (iii) contract with a pharmacy benefit manager for negotiated discounts or rebates for all prescription drugs under the medical assistance program; or (iv) effectuate any combination of these options in order to achieve the lowest available price for such drugs under such program.

"The Department may negotiate supplemental rebates from manufacturers that are in addition to those required by Title XIX of the Social Security Act. The committee shall consider a product for inclusion on the preferred drug list if the manufacturer provides a supplemental rebate. The Department may procure a sole source contract with an outside entity or contractor to conduct negotiations for supplemental rebates.

"The Secretary of the Department of Health and Human Services shall establish a Preferred Drug List (PDL) Policy Review Panel within 60 days after the effective date of this section. The purpose of the PDL Policy Review Panel is to review the Medicaid PDL recommendations from the Department of Health and Human Services, Division of Medical Assistance, and the Physician Advisory Group Pharmacy and Therapeutics (PAG P&T) Committee.

"The Secretary shall appoint the following individuals to the review panel: (i) the Director of Pharmacy for the Division of Medical Assistance, (ii) a representative from the PAG P&T Committee, (iii) a representative from the Old North State Medical Society, (iv) a representative from the North Carolina Association of Pharmacists, (v) a representative from Community Care of North Carolina, (vi) a representative from the North Carolina Psychiatric Association, (vii) a representative from the North Carolina Pediatric Society, (viii) a representative from the North Carolina Academy of Family Physicians, (ix) a representative from the North Carolina Chapter of the American College of Physicians, (x) a representative from a research-based pharmaceutical company, (xi) a representative from a hospital-based pharmacy.

"Individuals appointed to the Review Panel, except for the Division's Director of Pharmacy, shall serve only a two-year term.

"After the Department, in consultation with the PAG P&T Committee, publishes a proposed policy or procedure related to the Medicaid PDL, the Review Panel shall hold an open meeting to review the recommended policy or procedure along with any written public comments received as a result of the posting. The Review Panel shall provide an opportunity for public comment at the meeting. After the conclusion of the meeting, the Review Panel shall submit policy recommendations about the proposed Medicaid PDL policy or procedure to the Secretary.

"The Department may establish a Preferred Drug List for the North Carolina Health Choice for Children program and pursue negotiated discounts or rebates for all prescription drugs under the program in order to achieve the lowest available price for such drugs under such program. The Department may procure a sole source contract with an outside entity or contractor to conduct negotiations for these discounts or rebates. The PAG P&T Committee and Preferred Drug List Policy Review Panel will provide recommendations on policies and procedures for the NC Health Choice Preferred Drug List.

"s. Incentive Payments as outlined in the State Medicaid Health Information Plan for Electronic Health Records.

"t. Other mental health services. - Unless otherwise covered by this section, coverage is limited to the following:

"1. Services as established by the Division of Medical Assistance in consultation with the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services and approved by the Centers for Medicare and Medicaid Services (CMS) when provided in agencies meeting the requirements and reimbursement is made in accordance with a State Plan developed by the Department of Health and Human Services, not to exceed the upper limits established in federal regulations.

"2. For Medicaid-eligible adults, services provided by licensed or certified psychologists, licensed clinical social workers, certified clinical nurse specialists in psychiatric mental health advanced practice, nurse practitioners certified as clinical nurse specialists in psychiatric mental health advanced practice, licensed psychological associates, licensed professional counselors, licensed marriage and family therapists, certified clinical addictions specialists, and licensed clinical supervisors may be self-referred.

"3. Payments made for services rendered in accordance with this subdivision shall be qualified providers in accordance with approved policies and the State Plan. Nothing in sub-sub-subdivisions 1. or 2. of this sub-subdivision shall be interpreted to modify the scope of practice of any service provider, practitioner, or licensee, nor to modify or attenuate any collaboration or supervision requirement related to the professional activities of any service provider, practitioner, or licensee. Nothing in sub-sub-subdivisions 1. or 2. of this sub-subdivision shall be interpreted to require any private health insurer or health plan to make direct third-party reimbursements or payments to any service provider, practitioner, or licensee.

"Notwithstanding G.S. 150B-21.1(a), the Department of Health and Human Services may adopt temporary rules in accordance with Chapter 150B of the General Statutes further defining the qualifications of providers and referral procedures in order to implement this subdivision. Coverage policy for services established by the Division of Medical Assistance in consultation with the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services under sub-subdivision a. and sub-sub-subdivision b.2. of this subdivision shall be established by the Division of Medical Assistance.

"u. Experimental/investigational medical procedures. - Coverage is limited to services, supplies, drugs, or devices recognized as standard medical care for the condition, disease, illness, or injury being treated as determined by nationally recognized scientific professional organizations or scientifically based federal organizations such as the Food and Drug Administration, the National Institutes of Health, the Centers for Disease Control, or the Agency for Health Care Research and Quality.

"v. Clinical trials. - The Division of Medical Assistance shall develop clinical policy for the coverage of routine costs in clinical trial services for life-threatening conditions using resources such as coverage criteria from Medicare, NC State Health Plan, and the input of the Physicians Advisory Group.

"w. Organ transplants.

"(3) Never Events and Hospital Acquired Conditions (HACs) shall not be reimbursed. Medicaid will adhere to Medicare requirements for definition of events and conditions."

For prior similar provisions, see Session Laws 2007-323, s. 10.36(d), as amended by Session Laws 2007-345, ss. 1-3, and as amended by Session Laws 2008-107, s. 10.10(b), and Session Laws 2009-451, s. 10.58(d).

Medicaid - Rules, Reports, and Other Matters. - Session Laws 2011-145, s. 10.31(g), provides: "Rules, Reports, and Other Matters. -

"Rules. - The Department of Health and Human Services may adopt temporary or emergency rules according to the procedures established in G.S. 150B-21.1 and G.S. 150B-21.1A when it finds that these rules are necessary to maximize receipt of federal funds within existing State appropriations, to reduce Medicaid expenditures, and to reduce fraud and abuse. The Department of Health and Human Services shall adopt rules requiring providers to attend training as a condition of enrollment and may adopt temporary or emergency rules to implement the training requirement.

"Prior to the filing of the temporary or emergency rules authorized under this subsection with the Rules Review Commission and the Office of Administrative Hearings, the Department shall consult with the Office of State Budget and Management on the possible fiscal impact of the temporary or emergency rule and its effect on State appropriations and local governments."

For prior similar provisions, see Session Laws 2007-323, s. 10.36(g), and Session Laws 2009-451, s. 10.58(g).

Editor's Note. - Session Laws 2000-69, s. 4, in part, provides:

"Interpretation of Act.

"(a) Additional Method. This act provides an additional and alternative method for the doing of the things it authorizes and is as supplemental and additional to powers conferred by other laws. Except as otherwise expressly provided, it does not derogate any powers now existing.

"(b) Statutory References. References in this act to specific sections or Chapters of the General Statutes are intended to be references to those sections or Chapters as they may be amended from time to time by the General Assembly.

"(c) Liberal Construction. This act, being necessary for the health and welfare of the people of the State, shall be liberally construed to effect its purposes."

This section, as rewritten by Session Laws 2003-229, s. 2, effective July 1, 2003, is applicable to temporary and emergency rules adopted on or after that date and to permanent rules adopted on or after October 1, 2003.

Session Laws 2003-229, s. 14, provides that nothing in the act shall be construed to limit or repeal any specific grant of temporary rule-making authority to an agency enacted by the General Assembly prior to July 1, 2003.

Session Laws 2003-284, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2003'."

Session Laws 2003-284, s. 10.19(s), provides: "The Department of Health and Human Services may adopt temporary or emergency rules according to the procedures established in G.S. 150B-21.1 and G.S. 150B-21.1A when it finds that these rules are necessary to maximize receipt of federal funds within existing State appropriations, to reduce Medicaid expenditures, and to reduce fraud and abuse. Prior to the filing of these temporary or emergency rules with the Rules Review Commission and the Office of Administrative Hearings, the Department shall consult with the Office of State Budget and Management on the possible fiscal impact of the temporary or emergency rule and its effect on State appropriations and local governments."

Session Laws 2003-284, s. 35.1(c), provides: "Notwithstanding G.S. 150B-21.1, the Department of Environment and Natural Resources may adopt temporary rules to establish fees under G.S. 113-35(b)(3), as amended by subsection (b) of this section, within six months after the effective date of this section." Session Laws 2003-284, s. 35.1 became effective on July 1, 2003.

Session Laws 2003-284, s. 48.1, provides: "Parts 32 through 47 of this act do not affect the rights or liabilities of the State, a taxpayer, or another person arising under a statute amended or repealed by those parts before the effective date of its amendment or repeal; nor do they affect the right to any refund or credit of a tax that accrued under the amended or repealed statute before the effective date of its amendment or repeal."

Session Laws 2003-284, s. 49.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2003-2005 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2003-2005 fiscal biennium."

Session Laws 2003-284, s. 49.5, is a severability clause.

Session Laws 2003-352, s. 11, provides: "In order to reduce costs associated with the assessment and cleanup of discharges and releases of petroleum from petroleum underground storage tanks, the Environmental Management Commission may adopt temporary and permanent rules to modify the testing requirements set out in 15A NCAC 2L.0115 (Risk-Based Assessment and Corrective Action for Petroleum Underground Storage Tanks). Reference to this section shall satisfy the requirement for a statement of finding of need for a temporary rule."

Session Laws 2003-413, s. 29, provides in part that, if House Bill 1151, 2003 Regular Session, becomes law, then the amendment to G.S. 150B-21.1(a2) made by s. 27 of the act is instead made to G.S. 150B-21.1(a)(8). House Bill 1151 is Session Laws 2003-229, which was approved on June 19, 2003.

Session Laws 2003-427, ss. 1 and 2 provide: "Pursuant to G.S. 113A-118.1, the Coastal Resources Commission may adopt temporary and permanent rules to establish a general permit to allow the construction of offshore parallel sills made of stone or other suitable riprap materials for shoreline protection in conjunction with existing, created, or restored wetlands. The permit shall be applicable only where a shoreline is experiencing erosion in public trust areas and estuarine waters. The permit shall not apply to oceanfront shorelines or to waters and shorelines adjacent to the ocean hazard areas of environmental concern except that the permit may apply to those shorelines that exhibit characteristics of estuarine shorelines. Characteristics of estuarine shorelines include the presence of wetland vegetation, lower wave energy, and lower erosion rates than are generally characteristic of ocean erodible areas. Notwithstanding G.S. 150B-21.1(a), the authorization to adopt temporary rules pursuant to this section shall continue in effect until 1 July 2004. Reference to this section shall satisfy the requirement for a statement of finding of need for a temporary rule set out in G.S. 150B-21.1.

"The fee for a general permit established by temporary rules pursuant to Section 1 of this act shall be one hundred dollars ($100.00). In adopting permanent rules pursuant to Section 1 of this act, the Coastal Resources Commission shall set a fee for the general permit as provided in G.S. 113A-119.1."

Session Laws 2003-433, s. 4, provides: "The Environmental Management Commission shall adopt temporary and permanent rules to amend the North Carolina Administrative Code to incorporate the provisions of Section 1 of this act. Notwithstanding G.S. 150B-21.1, this act shall not be construed to authorize the Environmental Management Commission to adopt a temporary rule related to the subject matter of this act except as specifically provided by this section, and the Environmental Management Commission shall not be required to provide prior notice or a hearing to adopt the temporary rule required by this section. Reference to this section shall satisfy the requirement for a statement of finding of need for a temporary rule set out in G.S. 150B-21.1."

Session Laws 2003-184, s. 3, amended this section by enacting a new subsection (a)(11); however, because of the rewrite of this section by Session Laws 2003-229, s. 2, the subsection was redesignated as (a1) at the direction of the Revisor of Statutes. As a result, the last paragraph of subsection (a) and former subsection (a1), as enacted by Session Laws 2003-229, s. 2, were redesignated as subsections (a2) and (a3), respectively, also at the direction of the Revisor of Statutes.

Session Laws 2004-148, s. 3(a), which expires June 30, 2005, provides: "The Secretary of Transportation may adopt temporary rules in accordance with G.S. 150B-21.1 to implement the provisions of G.S. 136-28.1(k) governing the acceptance of bids by electronic means. The authority granted to the Secretary by this section shall expire when the permanent rules necessary to implement this provision are adopted."

Session Laws 2005-276, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2005'."

Session Laws 2005-276, s. 46.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium."

Session Laws 2005-276, s. 46.5 is a severability clause.

Session Laws 2006-66, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2006'."

Session Laws 2006-66, s. 10.3(e), as amended by Session Laws 2006-198, s. 1, provides: "Services and Payment Bases. - Funds appropriated for Medicaid services shall be expended in accordance with the following schedule of services and payment bases. All services and payments are subject to the language at the end of this subsection. Unless otherwise provided, services and payment bases will be as prescribed in the State Plan as established by the Department of Health and Human Services and may be changed with the approval of the Director of the Budget.

"(1) Hospital inpatient.

"(2) Hospital outpatient. - Eighty percent (80%) of allowable costs or a prospective reimbursement plan as established by the Department of Health and Human Services.

"(3) Nursing facilities. - Nursing facilities providing services to Medicaid recipients who also qualify for Medicare must be enrolled in the Medicare program as a condition of participation in the Medicaid program. State facilities are not subject to the requirement to enroll in the Medicare program. Residents of nursing facilities who are eligible for Medicare coverage of nursing facility services must be placed in a Medicare-certified bed. Medicaid shall cover facility services only after the appropriate services have been billed to Medicare. The Division of Medical Assistance shall allow nursing facility providers sufficient time from the effective date of this act to certify additional Medicare beds if necessary. In determining the date that the requirements of this subdivision become effective, the Division of Medical Assistance shall consider the regulations governing certification of Medicare beds and the length of time required for this process to be completed.

"(4) Physicians, certified nurse midwife services, nurse practitioners. - Fee schedules as development by the Department of Health and Human Services.

"(5) Community Alternative Program, EPSDT Screens. - Payments in accordance with rate schedule developed by the Department of Health and Human Services.

"(6) Home health and related services, durable medical equipment. - Payments according to reimbursement plans developed by the Department of Health and Human Services.

"(7) Hearing aids. - Wholesale cost plus dispensing fee to provider.

"(8) Rural health clinical services. - Provider-based, reasonable cost; non-provider-based, single cost reimbursement rate per clinic visit.

"(9) Family planning. - Negotiated rate for local health departments. For other providers see specific services, e.g. hospitals, physicians.

"(10) Independent laboratory and X-ray services. - Uniform fee schedules as developed by the Department of Health and Human Services.

"(11) Ambulatory surgical centers.

"(12) Private duty nursing, clinic services, prepaid health plans.

"(13) Intermediate care facilities for the mentally retarded.

"(14) Chiropractors, podiatrists, optometrists, dentists.

"(15) Limitations on Dental Coverage. - Dental services shall be provided on a restricted basis in accordance with criteria adopted by the Department to implement this subsection.

"(16) Medicare Buy-In. - Social Security Administration premium.

"(17) Ambulance services. - Uniform fee schedules as developed by the Department of Health and Human Services. Public ambulance providers will be reimbursed at cost.

"(18) Optical supplies. - Payment for materials is made to a contractor in accordance with 42 C.F.R. § 431.54(d). Fees paid to dispensing providers are negotiated fees established by the State agency based on industry charges.

"(19) Medicare crossover claims. - The Department shall apply Medicaid medical policy to Medicare claims for dually eligible recipients. The Department shall pay an amount up to the actual coinsurance or deductible or both, in accordance with the State Plan, as approved by the Department of Health and Human Services.

"(20) Physical therapy, occupational therapy, and speech therapy. - Services limited to EPSDT-eligible children. Payments are to be made only to qualified providers at rates negotiated by the Department of Health and Human Services. Physical therapy, occupational therapy, and speech therapy services are subject to prior approval and utilization review.

"(21) Personal care services.

"(22) Case management services. - Reimbursement in accordance with the availability of funds to be transferred within the Department of Health and Human Services.

"(23) Hospice.

"(24) Medically necessary prosthetics or orthotics. - In order to be eligible for reimbursement, providers must be licensed or certified by the occupational licensing board or the certification authority having authority over the provider's license or certification, or in the case of ocular prosthetists Board certified, licensed, or accredited in accordance with the requirements established by the Department. Medically necessary prosthetics and orthotics are subject to prior approval and utilization review.

"(25) Health insurance premiums.

"(26) Medical care/other remedial care. - Services not covered elsewhere in this section include related services in schools; health professional services provided outside the clinic setting to meet maternal and infant health goals; and services to meet federal EPSDT mandates.

"(27) Pregnancy-related services. - Covered services for pregnant women shall include nutritional counseling, psychosocial counseling, and predelivery and postpartum home visits by maternity care coordinators and public health nurses.

"(28) Drugs. - Reimbursements. Reimbursements shall be available for prescription drugs as allowed by federal regulations plus a professional services fee per month, excluding refills for the same drug or generic equivalent during the same month. Payments for drugs are subject to the provisions of this subdivision or in accordance with the State Plan adopted by the Department of Health and Human Services, consistent with federal reimbursement regulations. Payment of the professional services fee shall be made in accordance with the State Plan adopted by the Department of Health and Human Services, consistent with federal reimbursement regulations. The professional services fee shall be five dollars and sixty cents ($5.60) per prescription for generic drugs and four dollars ($4.00) per prescription for brand-name drugs. Adjustments to the professional services fee shall be established by the General Assembly. In addition to the professional services fee, the Department may pay an enhanced fee for pharmacy services.

"Limitations on quantity. - The Department of Health and Human Services may establish authorizations, limitations, and reviews for specific drugs, drug classes, brands, or quantities in order to manage effectively the Medicaid pharmacy program, except that the Department shall not impose limitations on brand-name medications for which there is a generic equivalent in cases where the prescriber has determined, at the time the drug is prescribed, that the brand-name drug is medically necessary and has written on the prescription order the phrase 'medically necessary'. In addition to the entities listed in subsection (a) of this section, the Department shall report to the Joint Legislative Commission on Governmental Operations on authorizations, limitations, and reviews established under this subparagraph, including limitations on monthly brand-name and generic prescriptions as well as restrictions on the total number of medications. The Department shall submit the report not later than May 1, 2006.

"Dispensing of generic drugs. - Notwithstanding G.S. 90-85.27 through G.S. 90-85.31, or any other law to the contrary, under the Medical Assistance Program (Title XIX of the Social Security Act), and except as otherwise provided in this subsection for atypical antipsychotic drugs and drugs listed in the narrow therapeutic index, a prescription order for a drug designated by a trade or brand name shall be considered to be an order for the drug by its established or generic name, except when the prescriber has determined, at the time the drug is prescribed, that the brand-name drug is medically necessary and has written on the prescription order the phrase 'medically necessary'. An initial prescription order for an atypical antipsychotic drug or a drug listed in the narrow therapeutic drug index that does not contain the phrase 'medically necessary' shall be considered an order for the drug by its established or generic name, except that a pharmacy shall not substitute a generic or established name prescription drug for subsequent brand or trade name prescription orders of the same prescription drug without explicit oral or written approval of the prescriber given at the time the order is filled. Generic drugs shall be dispensed at a lower cost to the Medical Assistance Program rather than trade or brand-name drugs. As used in this subsection, 'brand name' means the proprietary name the manufacturer places upon a drug product or on its container, label, or wrapping at the time of packaging; and 'established name' has the same meaning as in section 502(e)(3) of the Federal Food, Drug, and Cosmetic Act as amended, 21 U.S.C. § 352(e)(3).

"Prior authorization. - The Department of Health and Human Services shall not impose prior authorization requirements or other restrictions under the State Medical Assistance Program on medications prescribed for Medicaid recipients for the treatment of: (i) mental illness, including, but not limited to, medications for schizophrenia, bipolar disorder, and major depressive disorder, or (ii) HIV/AIDS.

"(29) Other mental health services. - Unless otherwise covered by this section, coverage is limited to:

"a. Services as defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services and approved by the Centers for Medicare and Medicaid Services (CMS) when provided in agencies meeting the requirements of the rules established by the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services and reimbursement is made in accordance with a State Plan developed by the Department of Health and Human Services not to exceed the upper limits established in federal regulations, and

"b. For children eligible for EPSDT services provided by:

"1. Licensed or certified psychologists, licensed clinical social workers, certified clinical nurse specialists in psychiatric mental health advanced practice, nurse practitioners certified as clinical nurse specialists in psychiatric mental health advanced practice, licensed psychological associates, licensed professional counselors, licensed marriage and family therapists, certified clinical addictions specialists, and certified clinical supervisors, when Medicaid-eligible children are referred by the Community Care of North Carolina primary care physician, a Medicaid-enrolled psychiatrist, or the area mental health program or local management entity, and

"2. Institutional providers of residential services as defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services and approved by the Centers for Medicare and Medicaid Services (CMS) for children and Psychiatric Residential Treatment Facility services that meet federal and State requirements as defined by the Department.

"c. For Medicaid-eligible adults, services provided by licensed or certified psychologists, licensed clinical social workers, certified clinical nurse specialists in psychiatric mental health advanced practice, and nurse practitioners certified as clinical nurse specialists in psychiatric mental health advanced practice, licensed psychological associates, licensed professional counselors, licensed marriage and family therapists, licensed clinical addictions specialists, and licensed clinical supervisors, Medicaid-eligible adults may be self-referred.

"d. Payments made for services rendered in accordance with this subdivision shall be to qualified providers in accordance with approved policies and the State Plan. Nothing in sub-subdivision b. or c. of this subdivision shall be interpreted to modify the scope of practice of any service provider, practitioner, or licensee, nor to modify or attenuate any collaboration or supervision requirement related to the professional activities of any service provider, practitioner, or licensee. Nothing in sub-subdivision b. or c. of this subdivision shall be interpreted to require any private health insurer or health plan to make direct third-party reimbursements or payments to any service provider, practitioner, or licensee.

"e. The Department of Health and Human Services shall not enroll licensed psychological associates, licensed professional counselors, licensed marriage and family therapists, licensed clinical addiction specialists, and licensed clinical supervisors until all of the following conditions have been met:

"1. The fiscal impact of payments to these qualified providers has been projected;

"2. Funding for any projected requirements in excess of budgeted Division of Medical Assistance funding has been identified from within State funds appropriated to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services to support area mental health programs or county programs, or identified from other sources; and

"3. Approval has been obtained from the Office of State Budget and Management to transfer these State or other source funds from the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services to the Division of Medical Assistance. Upon approval and implementation, the Department of Health and Human Services shall, on a quarterly basis, provide a status report to the Office of State Budget and Management and the Fiscal Research Division.

"Notwithstanding G.S. 150B-21.1(a), the Department of Health and Human Services may adopt temporary rules in accordance with Chapter 150B of the General Statutes further defining the qualifications of providers and referral procedures in order to implement this subdivision. Coverage policy for services defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services under sub-subdivisions a. and b.2 of this subdivision shall be established by the Division of Medical Assistance."

Session Laws 2006-66, s. 10.3(h), provides: "Rules, Reports, and Other Matters. -

"(1) Rules. - The Department of Health and Human Services may adopt temporary or emergency rules according to the procedures established in G.S. 150B-21.1 and G.S. 150B-21.1A when it finds that these rules are necessary to maximize receipt of federal funds within existing State appropriations, to reduce Medicaid expenditures, and to reduce fraud and abuse. Prior to the filing of these temporary or emergency rules with the Rules Review Commission and the Office of Administrative Hearings, the Department shall consult with the Office of State Budget and Management on the possible fiscal impact of the temporary or emergency rule and its effect on State appropriations and local governments.

"(2) Changes to Medicaid program; reports. - The Department shall report on any change it anticipates making in the Medicaid program that impacts the type or level of service, reimbursement methods, or waivers, any of which require a change in the State Plan or other approval by the Centers for Medicare and Medicaid Services (CMS). The reports shall be provided at the same time they are submitted to CMS for approval. In addition to the entities listed in subsection (a)(4) of this section, the report shall be submitted to the Joint Legislative Health Care Oversight Committee."

Session Laws 2006-66, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year."

Session Laws 2006-66, s. 28.6 is a severability clause.

Session Laws 2006-240, s. 5, provides: "The Governor's Commission on Early Childhood Vision Care may adopt temporary rules in accordance with G.S. 150B-21.1 to implement this act."

Session Laws 2006-264, s. 52(b), provides: "This section constitutes a recent act of the General Assembly within the meaning of G.S. 150B-21.1(a). The Department of Labor shall adopt within 30 days of the effective date of this section temporary rules to clarify when employees who are subject to Article 20 of Chapter 95 of the General Statutes may utilize a preliminary screening procedure involving a single-use test device consistent with this section."

Session Laws 2006-264, s. 102(a) and (b), provides: "(a) The Department of Labor shall adopt rules in connection with its requirements regarding fall protection for tower climbers as follows:

"(1) With regard to employer-provided rescue procedures, employers must ensure that at least two trained and designated rescue employees are on-site when employees are working at heights over six feet on the tower, except that where only two employees are on-site, then an employer may comply with this requirement if one employee is a trained and designated rescue employee and one employee has been employed for less than nine months and has received documented orientation from the employer outlining steps to take in an emergency.

"(2) With regard to third-party-provided rescue procedures, the employer must obtain verification from the third-party rescue service that the service is able to respond to a rescue summons in a timely manner and that the service is proficient in rescue-related tasks and equipment needed to rescue climbers from elevated heights on communication structures. The employer must also provide the selected third-party rescue service with contact information regarding the tower site and allow the service to conduct whatever preparation for rescue it deems necessary.

"(b) Notwithstanding G.S. 150B-21.1(a), the Department of Labor may adopt the rules provided for by this section as temporary rules within 270 days after the effective date of this act."

Session Laws 2009-217, s. 5, provides: "Notwithstanding G.S. 150B-21.1, upon the effective date of this act, the Department of Labor shall immediately adopt a temporary rule that is consistent with the requirements of Section 6 of this act without prior notice or hearing. When the Department adopts the rule, it shall submit the rule and a copy of this act to the Codifier of Rules. Within two business days after submission of the rule, the Codifier must review the rule to determine whether the rule as adopted is consistent with the requirements of this act. If the Codifier of Rules finds that the rule as adopted is consistent with the requirements of this act, the Codifier shall notify the Department and enter the rule in the North Carolina Administrative Code on the sixth business day following approval by the Codifier of Rules. The rule shall become effective and shall expire in accordance with G.S. 150B-21.1(d)." The effective date of this act is June 30, 2009.

Session Laws 2009-217, s. 6, provides: "The Department of Labor shall adopt a temporary rule in accordance with the procedure set forth in Section 5 of this act. The temporary rule shall establish the scope of application for the Department's rules governing the standards for cranes and derricks in a manner substantially identical to the rule disapproved by this act, except that the temporary rule shall include an exclusion for service trucks with mobile lifting devices designed specifically for use in the power line and electric service industries such as digger derricks (radial boom derricks)."

Session Laws 2011-145, s. 6.3(b), provides: "Notwithstanding G.S. 150B-21.1A(a), an agency may adopt an emergency rule in accordance with G.S. 150B-21.1A to establish or increase a fee as authorized by this act if the adoption of a rule would otherwise be required under Article 2A of Chapter 150B of the General Statutes."

Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'"

Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium."

Session Laws 2011-145, s. 32.5 is a severability clause.

Session Laws 2011-398, s. 4, which amended subsection (a3), is applicable to rules adopted on or after October 1, 2011.

Session Laws 2011-398, s. 62 is a severability clause.

Session Laws 2011-401, s. 1.10(c), as amended by Session Laws 2015-238, s. 2.7, provides: "The Department of Commerce, Division of Employment Security, shall adopt rules and regulations in accordance with Article 2A of Chapter 150B of the General Statutes. Any existing rule that has not been readopted and filed with the Rules Review Commission by May 20, 2015, shall expire."

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. 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.

At the direction of the Revisor of Statutes, the reference in subdivision (a)(10) to "Article 14 of Chapter 143B" has been changed to "Article 15 of Chapter 143B" to conform to the renumbering of that Article.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2003-184, s. 3, effective June 12, 2003 and expiring July 1, 2005, added subsection (a1)[(a)(16)]. See Editor's note.

Session Laws 2004-156, s. 1, effective August 2, 2004, in subdivision (a)(6), substituted "a rule establishing review criteria as authorized by G.S. 131E-183(b) to complement" for "the rule to implement" and added the language beginning "and the proposed rule" at the end; redesignated subsection (a1) as subdivision (a)(16); rewrote subdivision (a)(16); inserted the subsection designation and the second sentence in the subsection designated as (a4); and inserted the subsection (b1), (b2), (b3) and (c1) designations.

Session Laws 2011-398, s. 4, effective October 1, 2011, and applicable to rules adopted on or after that date, deleted "at least 30 business days prior to adopting a temporary rule" following "provided by law" in the introductory paragraph of subsection (a3); and added "At least 30 business days prior to adopting a temporary rule" in subdivisions (a3)(1) and (a3)(2).

Session Laws 2015-241, s. 7A.4(ee), effective September 18, 2015, in subdivision (a)(10), inserted "State" near the beginning and substituted "Article 14 of Chapter 143B" for "Article 3D of Chapter 147."

Session Laws 2015-264, s. 22, effective October 1, 2015, repealed subdivision (a)(12).

Session Laws 2020-3, s. 4.25(a), effective retroactively to March 10, 2020, added the second sentence in subdivision (a3)(4).

§ 150B-21.1A. Adoption of an emergency rule.

1. Adoption. - An agency may adopt an emergency rule without prior notice or hearing or upon any abbreviated notice or hearing the agency finds practical when it finds that adherence to the notice and hearing requirements of this Part would be contrary to the public interest and that the immediate adoption of the rule is required by a serious and unforeseen threat to the public health or safety. When an agency adopts an emergency rule, it must simultaneously commence the process for adopting a temporary rule by submitting the rule to the Codifier of Rules for publication on the Internet in accordance with G.S. 150B-21.1(a3). The Department of Health and Human Services or the appropriate rule-making agency within the Department may adopt emergency rules in accordance with this section when a recent act of the General Assembly or the United States Congress or a recent change in federal regulations authorizes new or increased services or benefits for children and families and the emergency rule is necessary to implement the change in State or federal law.
2. Review. - An agency must prepare a written statement of its findings of need for an emergency rule. The statement must be signed by the head 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 of the need for the rule to the Codifier of Rules. Within two business days after an agency submits an emergency rule, the Codifier of Rules must review the agency's written statement of findings of need for the rule to determine whether the statement of need meets the criteria in subsection (a) of this section. In reviewing the statement, the Codifier of Rules may consider any information submitted by the agency or another person. If the Codifier of Rules finds that the statement meets the criteria, the Codifier of Rules must notify the head of the agency and enter the rule in the North Carolina Administrative Code on the sixth business day following approval by the Codifier of Rules.
3. Standing. - A person aggrieved by an emergency rule adopted by an agency may file an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 of Chapter 1 of the General Statutes. In the action, the court shall determine whether the agency's written statement of findings of need for the rule meets the criteria listed in subsection (a) of this 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.
4. Effective Date and Expiration. - An emergency rule becomes effective on the date specified in G.S. 150B-21.3. An emergency rule expires on the earliest of the following dates:
   1. The date specified in the rule.
   2. The effective date of the temporary rule adopted to replace the emergency rule, if the Commission approves the temporary rule.
   3. The date the Commission returns to an agency a temporary rule the agency adopted to replace the emergency rule.
   4. Sixty days from the date the emergency rule was published in the North Carolina Register, unless the temporary rule adopted to replace the emergency rule has been submitted to the Commission.
5. Publication. - When the Codifier of Rules enters an emergency rule in the North Carolina Administrative Code, the Codifier of Rules must publish the rule in the North Carolina Register.

If the Codifier of Rules finds that the statement does not meet the criteria in subsection (a) of this section, the Codifier of Rules must immediately notify the head of the agency. The agency may supplement its statement of need with additional findings or submit a new statement. If the agency provides additional findings or submits a new statement, the Codifier of Rules must review the additional findings or new statement within one business day after the agency submits the additional findings or new statement. If the Codifier of Rules again finds that the statement does not meet the criteria in subsection (a) of this section, the Codifier of Rules must immediately notify the head of the agency.

If an agency decides not to provide additional findings or submit a new statement when notified by the Codifier of Rules that the agency's findings of need for a rule do not meet the required criteria, the agency must notify the Codifier of Rules of its decision. The Codifier of Rules must then enter the rule in the North Carolina Administrative Code on the sixth business day after receiving notice of the agency's decision. Notwithstanding any other provision of 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.

Filing a petition for rule making or a request for a declaratory ruling with the agency that adopted the rule is not a prerequisite to filing an action under this subsection. A person who files an action for declaratory judgment under this subsection must serve a copy of the complaint on the agency that adopted the rule being contested, the Codifier of Rules, and the Commission.

History

(2003-229, s. 3.)

Medicaid - Rules, Reports, and Other Matters. - Session Laws 2011-145, s. 10.31(g), provides: "Rules, Reports, and Other Matters. -

"Rules. - The Department of Health and Human Services may adopt temporary or emergency rules according to the procedures established in G.S. 150B-21.1 and G.S. 150B-21.1A when it finds that these rules are necessary to maximize receipt of federal funds within existing State appropriations, to reduce Medicaid expenditures, and to reduce fraud and abuse. The Department of Health and Human Services shall adopt rules requiring providers to attend training as a condition of enrollment and may adopt temporary or emergency rules to implement the training requirement.

"Prior to the filing of the temporary or emergency rules authorized under this subsection with the Rules Review Commission and the Office of Administrative Hearings, the Department shall consult with the Office of State Budget and Management on the possible fiscal impact of the temporary or emergency rule and its effect on State appropriations and local governments."

For prior similar provisions, see Session Laws 2007-323, s. 10.36(g), and Session Laws 2009-451, s. 10.58(g).

Establishing or Increasing Fees. - Session Laws 2017-57, s. 6.2(b), provides: "Notwithstanding G.S. 150B-21.1A(a), an agency may adopt an emergency rule in accordance with G.S. 150B-21.1A to establish or increase a fee as authorized by this act if the adoption of a rule would otherwise be required under Article 2A of Chapter 150B of the General Statutes."

Editor's Note. - Session Laws 2003-229, s. 14, provides that nothing in the act shall be construed to limit or repeal any specific grant of temporary rule-making authority to an agency enacted by the General Assembly prior to July 1, 2003.

Session Laws 2003-284, s. 10.19(s), provides: "The Department of Health and Human Services may adopt temporary or emergency rules according to the procedures established in G.S. 150B-21.1 and G.S. 150B-21.1A when it finds that these rules are necessary to maximize receipt of federal funds within existing State appropriations, to reduce Medicaid expenditures, and to reduce fraud and abuse. Prior to the filing of these temporary or emergency rules with the Rules Review Commission and the Office of Administrative Hearings, the Department shall consult with the Office of State Budget and Management on the possible fiscal impact of the temporary or emergency rule and its effect on State appropriations and local governments."

Session Laws 2003-284, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2003.' "

Session Laws 2003-284, s. 49.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2003-2005 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2003-2005 fiscal biennium."

Session Laws 2003-284, s. 49.5, is a severability clause.

Session Laws 2006-66, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2006.' "

Session Laws 2006-66, s. 10.3(h), provides: "Rules, Reports, and Other Matters. -

"(1) Rules. - The Department of Health and Human Services may adopt temporary or emergency rules according to the procedures established in G.S. 150B-21.1 and G.S. 150B-21.1A when it finds that these rules are necessary to maximize receipt of federal funds within existing State appropriations, to reduce Medicaid expenditures, and to reduce fraud and abuse. Prior to the filing of these temporary or emergency rules with the Rules Review Commission and the Office of Administrative Hearings, the Department shall consult with the Office of State Budget and Management on the possible fiscal impact of the temporary or emergency rule and its effect on State appropriations and local governments.

"(2) Changes to Medicaid program; reports. - The Department shall report on any change it anticipates making in the Medicaid program that impacts the type or level of service, reimbursement methods, or waivers, any of which require a change in the State Plan or other approval by the Centers for Medicare and Medicaid Services (CMS). The reports shall be provided at the same time they are submitted to CMS for approval. In addition to the entities listed in subsection (a)(4) of this section, the report shall be submitted to the Joint Legislative Health Care Oversight Committee."

Session Laws 2006-66, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year."

Session Laws 2006-66, s. 28.6, is a severability clause.

Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium."

Session Laws 2011-145, s. 32.5, is a severability clause.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2018-5, s. 6.1(b), provides: "Notwithstanding G.S. 150B-21.1A(a), an agency may adopt an emergency rule in accordance with G.S. 150B-21.1A to establish or increase a fee as authorized by this act if the adoption of a rule would otherwise be required under Article 2A of Chapter 150B of the General Statutes." For similar provisions see Session Laws 2009-451, s. 6.4(b); Session Laws 2010-31, s. 6.5(b); Session Laws 2012-142, s. 6.10(b); Session Laws 2013-360, s. 6.2(b); Session Laws 2014-100, s. 6.2(b); Session Laws 2015-241, s. 6.2(b); and Session Laws 2016-94, s. 6.1(b).

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year."

Session Laws 2018-5, s. 39.7, is a severability clause.

Session Laws 2019-231, s. 1.4(b), provides: "Notwithstanding G.S. 150B-21.1A(a), the Department of Transportation may adopt an emergency rule in accordance with G.S. 150B-21.1A to establish or increase a fee as authorized by this act if the adoption of a rule would otherwise be required under Article 2A of Chapter 150B of the General Statutes."

Session Laws 2019-231, s. 5.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2019-2021 fiscal biennium."

Session Laws 2019-231, s. 5.5, is a severability clause.

Session Laws 2020-97, s. 3.20(a)-(g), as amended by Session Laws 2021-13, s. 3(a), provides: "(a) For purposes of this section, the following definitions apply:

"(1) "Coronavirus" has the same meaning as defined in Section 506 of the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020.

"(2) "Coronavirus emergency" means the period from August 1, 2020, through the date the Governor signs an executive order rescinding Executive Order No. 116, Declaration of a State of Emergency to Coordinate Response and Protective Actions to Prevent the Spread of COVID-19.

"(3) "State agency" means an agency or an officer in the executive branch of the government of this State and includes the Council of State, the Governor's Office, a board, a commission, a department, a division, a council, and any other unit of government in the executive branch. "State agency" does not include the Division of Employment Security of the Department of Commerce, the Department of Health and Human Services, the State Board of Education, the Department of Public Instruction, The University of North Carolina, the State Board of Community Colleges, or the State Board of Elections.

"(b) Notwithstanding any other provision of State law, if a State agency determines that, due to the impacts of the coronavirus, it is in the public interest, including the public health, safety, and welfare and the economic well-being of the citizens and businesses of the State, the agency shall:

"(1) Delay the collection, or modify the method of collection, of any fees, fines, or late payments assessed by the agency under its statutes, including the accrual of interest associated with any fees, fines, or late payments.

"(2) Delay the renewal dates of permits, licenses, and other similar certifications, registrations, and authorizations issued by the agency pursuant to its statutes.

"(3) Delay or modify any educational or examination requirements implemented by the agency pursuant to its statutes.

"(c) No later than December 1, 2020, each State agency shall make an interim report, and a final report no later than 90 days after this section expires, to the Joint Legislative Administrative Procedure Oversight Committee, the Joint Legislative Commission on Governmental Operations, and the Office of State Budget and Management on its specific efforts to exercise regulatory flexibility under this section.

"(d) State agencies shall exercise the authority granted pursuant to this section to the maximum extent practicable in order to protect the economic well-being of the citizens and businesses of the State, while also continuing to protect public health, safety, and welfare.

"(e) State agencies may adopt emergency rules for the implementation of this section in accordance with G.S. 150B-21.1A. Notwithstanding G.S. 150B-21.1A(a), an agency shall not commence the adoption of temporary rules pursuant to this section. Notwithstanding G.S. 150B-21.1A(d)(4), an emergency rule adopted pursuant to this section shall expire 30 days after Executive Order No. 116 is rescinded or March 31, 2021, whichever is earlier.

"(f) This section is effective retroactively to August 1, 2020. Subsections (a), (b), (d), and (e) of this section expire 30 days after Executive Order No. 116 is rescinded or March 31, 2021, whichever is earlier.

"(g) Notwithstanding the expiration dates in subsections (e) and (f) of this section, the Division of Motor Vehicles' authority to adopt emergency rules under this section shall expire 30 days after Executive Order No. 116 is rescinded or September 30, 2021, whichever is earlier."

Session Laws 2020-97, s. 4.5, is a severability clause.

Session Laws 2021-3, s. 2.11(a), provides: "The North Carolina Appraisal Board may amend, extend, or adopt emergency rules to modify any educational requirements implemented by the Board, in accordance with Section 3.20 of S.L. 2020-97. Notwithstanding Section 3.20(e) of S.L. 2020-97, any emergency rules adopted pursuant to this section shall expire on December 31, 2021."

§ 150B-21.1B:

History

(2009-475, s. 3; expired pursuant to 2009-475, s. 16, effective June 30, 2012.)

Editor's Note. - Former G.S. 150B-21.1B, which established an expedited procedure for adoption of rules to implement the American Recovery and Reinvestment Act, expired June 30, 2012, pursuant to Session Laws 2009-475, s. 16.

Session Laws 2009-475, s. 15, provides: "The General Assembly finds that it is in the public interest of the State of North Carolina to ensure expeditious awards of ARRA funds to maximize the economic recovery impact of the ARRA. It is the policy of the State to provide fair regulation, oversight, and transparency for the use of ARRA funds and to quickly and efficiently complete the awards of grants and contracts under the ARRA. It is also the policy of this State that, due to the historic level of federal and State oversight of ARRA grant and contract awards, restraint should be exercised in the granting of legal and injunctive relief that might forestall awards to programs and contractors."

§ 150B-21.2. Procedure for adopting a permanent rule.

1. 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:
   1. Publish a notice of text in the North Carolina Register.
   2. When required by G.S. 150B-21.4, prepare or obtain a fiscal note for the proposed rule.
   3. Repealed by Session Laws 2003-229, s. 4, effective July 1, 2003.
   4. 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.
   5. Accept oral or written comments on the proposed rule as required by subsection (f) of this section.
2. Repealed by Session Laws 2003-229, s. 4, effective July 1, 2003.
3. Notice of Text. - A notice of the proposed text of a rule must include all of the following:
   1. 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.
   2. A short explanation of the reason for the proposed rule.
   3. A link to the agency's Web site containing the information required by G.S. 150B-19.1(c).
   4. A citation to the law that gives the agency the authority to adopt the rule.
   5. The proposed effective date of the rule.
   6. The date, time, and place of any public hearing scheduled on the rule.
   7. 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.
   8. The period of time during which and the person within the agency to whom written comments may be submitted on the proposed rule.
   9. 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.
   10. Repealed by Session Laws 2013-143, s. 1, effective June 19, 2013.
4. Mailing List. -  An agency must maintain a mailing list of persons who have requested notice of rule making. 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 or text to each person on the mailing list who 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.
5. 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.
6. 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.
7. 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 shall 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.
   1. Affects the interests of persons who, 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.
   2. Addresses a subject matter or an issue that is not addressed in the proposed text of the rule.
   3. Produces an effect that could not reasonably have been expected based on the proposed text of the rule.
8. 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.
9. Record. - An agency must keep a record of a rule-making 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 shall 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).)

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).

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).

§ 150B-21.3. Effective date of rules.

1. Temporary and Emergency Rules. - A temporary rule or an emergency rule becomes effective on the date the Codifier of Rules enters the rule in the North Carolina Administrative Code.
2. Permanent Rule. - A permanent rule approved by the Commission becomes effective on the first day of the month following the month the rule is approved by the Commission, unless the Commission received written objections to the rule in accordance with subsection (b2) of this section, or unless the agency that adopted the rule specifies a later effective date.
3. Delayed Effective Dates. - Except as provided in G.S. 14-4.1, if the Commission received written objections to the rule in accordance with subsection (b2) of this section, the rule becomes effective on the earlier of the thirty-first legislative day or the day of adjournment of the next regular session of the General Assembly that begins at least 25 days after the date the Commission approved the rule, unless a different effective date applies under this section. If a bill that specifically disapproves the rule is introduced in either house of the General Assembly before the thirty-first legislative day of that session, the rule becomes effective on the earlier of either the day an unfavorable final action is taken on the bill or the day that session of the General Assembly adjourns without ratifying a bill that specifically disapproves the rule. If the agency adopting the rule specifies a later effective date than the date that would otherwise apply under this subsection, the later date applies. A permanent rule that is not approved by the Commission or that is specifically disapproved by a bill enacted into law before it becomes effective does not become effective.
4. Objection. - Any person who objects to the adoption of a permanent rule may submit written comments to the agency. If the objection is not resolved prior to adoption of the rule, a person may submit written objections to the Commission. If the Commission receives written objections from 10 or more persons, no later than 5:00 P.M. of the day following the day the Commission approves the rule, clearly requesting review by the legislature in accordance with instructions posted on the agency's Web site pursuant to G.S. 150B-19.1(c)(4), and the Commission approves the rule, the rule will become effective as provided in subsection (b1) of this section. The Commission shall notify the agency that the rule is subject to legislative disapproval on the day following the day it receives 10 or more written objections. When the requirements of this subsection have been met and a rule is subject to legislative disapproval, the agency may adopt the rule as a temporary rule if the rule would have met the criteria listed in G.S. 150B-21.1(a) at the time the notice of text for the permanent rule was published in the North Carolina Register. If the Commission receives objections from 10 or more persons clearly requesting review by the legislature, and the rule objected to is one of a group of related rules adopted by the agency at the same time, the agency that adopted the rule may cause any of the other rules in the group to become effective as provided in subsection (b1) of this section by submitting a written statement to that effect to the Commission before the other rules become effective.
5. Executive Order Exception. - The Governor may, by executive order, make effective a permanent rule that has been approved by the Commission but the effective date of which has been delayed in accordance with subsection (b1) of this section upon finding that it is necessary that the rule become effective in order to protect public health, safety, or welfare. A rule made effective by executive order becomes effective on the date the order is issued or at a later date specified in the order. When the Codifier of Rules enters in the North Carolina Administrative Code a rule made effective by executive order, the entry must reflect this action.
6. Fees. - Notwithstanding any other provision of this section, a rule that establishes a new fee or increases an existing fee shall not become effective until the agency has complied with the requirements of G.S. 12-3.1.
7. Legislative Day and Day of Adjournment. - As used in this section:
   1. A "legislative day" is a day on which either house of the General Assembly convenes in regular session.
   2. The "day of adjournment" of a regular session held in an odd-numbered year is the day the General Assembly adjourns by joint resolution or by operation of law for more than 30 days.
   3. The "day of adjournment" of a regular session held in an even-numbered year is the day the General Assembly adjourns sine die.
8. OSHA Standard. - A permanent rule concerning an occupational safety and health standard that is adopted by the Occupational Safety and Health Division of the Department of Labor and is identical to a federal regulation promulgated by the Secretary of the United States Department of Labor becomes effective on the date the Division delivers the rule to the Codifier of Rules, unless the Division specifies a later effective date. If the Division specifies a later effective date, the rule becomes effective on that date.
9. Technical Change. - A permanent rule for which no notice or hearing is required under G.S. 150B-21.5(a)(1) through (a)(5) or G.S. 150B-21.5(b) becomes effective on the first day of the month following the month the rule is approved by the Rules Review Commission.

A bill specifically disapproves a rule if it contains a provision that refers to the rule by appropriate North Carolina Administrative Code citation and states that the rule is disapproved. Notwithstanding any rule of either house of the General Assembly, any member of the General Assembly may introduce a bill during the first 30 legislative days of any regular session to disapprove a rule that has been approved by the Commission and that either has not become effective or has become effective by executive order under subsection (c) of this section.

A rule that is made effective by executive order remains in effect unless it is specifically disapproved by the General Assembly in a bill enacted into law on or before the day of adjournment of the regular session of the General Assembly that begins at least 25 days after the date the executive order is issued. A rule that is made effective by executive order and that is specifically disapproved by a bill enacted into law is repealed as of the date specified in the bill. If a rule that is made effective by executive order is not specifically disapproved by a bill enacted into law within the time set by this subsection, the Codifier of Rules must note this in the North Carolina Administrative Code.

History

(1991, c. 418, s. 1; 1995, c. 507, s. 27.8(e); 1995 (Reg. Sess., 1996), c. 742, s. 43; 1996, 2nd Ex. Sess., c. 18, s. 7.10(f); 1997-34, s. 3; 2001-487, s. 80(b); 2002-97, s. 5; 2003-229, s. 5; 2004-156, ss. 2, 3; 2012-194, s. 66.5(b); 2015-264, s. 23; 2019-198, s. 2.)

Administrative Rules Governing Sanitation of Hospitals, Nursing Homes, Rest Homes, and Other Institutions. - Session Laws 2002-160, ss. 1-5, effective October 17, 2002, provide: "Notwithstanding G.S. 150B-21.3(b), amendments to the following rules governing sanitation of hospitals, nursing homes, rest homes, and other institutions, adopted by the Commission for Health Services [now the Commission for Public Health] and approved by the Rules Review Commission on October 18, 2001, become effective March 1, 2003: 15A NCAC 18A .1301 (Definitions), 15A NCAC 18A .1302 (Approval of Plans), 15A NCAC 18A .1304 (Inspections), 15A NCAC 18A .1305 (Grading Residential Care Facilities in Institutions), 15A NCAC 18A .1306 (Public Display of Grade Card), 15A NCAC 18A .1307 (Reinspections), 15A NCAC 18A .1308 (Approved Institutions), 15A NCAC 18A .1309 (Floors), 15A NCAC 18A .1310 (Walls and Ceilings), 15A NCAC 18A .1312 (Toilet: Handwashing: Laundry: and Bathing Facilities), 15A NCAC 18A .1313 (Water Supply), 15A NCAC 18A .1314 (Drinking Water Facilities: Ice Handling), 15A NCAC 18A .1315 (Liquid Wastes), 15A NCAC 18A .1316 (Solid Wastes), 15A NCAC 18A .1317 (Vermin Control: Premises: Animal Maintenance), 15A NCAC 18A .1318 (Miscellaneous), 15A NCAC 18A .1319 (Furnishings and Patient Contact Items), 15A NCAC 18A .1320 (Food Service Utensils and Equipment), 15A NCAC 18A .1322 (Milk and Milk Products), 15A NCAC 18A .1323 (Food Protection), and 15A NCAC 18A .1324 (Employees).

"Notwithstanding G.S. 150B-21.3(b), 15A NCAC 18A .1327 (Incorporated Rules) adopted by the Commission for Health Services [now the Commission for Public Health] and approved by the Rules Review Commission on October 18, 2001 becomes effective March 1, 2003.

"Notwithstanding G.S. 150B-21.3(b), amendments to 15A NCAC 18A .1311 (Lighting, Ventilation and Moisture Control) and 15A NCAC 18A .1321 (Food Supplies) adopted by the Commission for Health Services [now the Commission for Public Health] and approved by the Rules Review Commission on November 15, 2001 become effective March 1, 2003.

"The Division of Environmental Health [Division of Water Resources] of the Department of Environment and Natural Resources, with the assistance of local health departments, shall field test the amended rules listed in Sections 1 through 3 of this act by conducting trial inspections of a representative sample of facilities subject to the amended rules throughout the State. Trial inspections under the amended rules shall be performed during the period 1 October 2002 through 1 February 2003 in conjunction with the regular inspection of the representative sample of facilities under rules in effect during the field test period. A facility that is subject to a trial inspection shall not be liable for an enforcement action for any violation of an amended rule that is observed during a trial inspection but may be liable for an enforcement action under rules in effect during the field test period. The purposes of the field test shall be to determine what expenditures, if any, will be required of facilities in order to comply with the amended rules and whether the amended rules will result in lower inspection grades for facilities. As a part of the field test, the Division shall also review the amended rules, giving particular attention to applicable federal regulations and to the incorporation by reference of any other rules or standards in the amended rules, to determine whether the amended rules will result in any duplication or conflict in applicable requirements or standards and whether the amended rules will result in duplicative or conflicting inspection or enforcement policies or procedures. The Division of Environmental Health [Division of Water Resources] shall compile and analyze field test data to determine whether any of the amended rules should be revised. The Division shall report the results of the field test required by this section, any recommendations to the Commission for Health Services [now the Commission for Public Health] regarding revisions to the amended rules, and the status of any recommended rule revisions to the Environmental Review Commission on or before March 1, 2003.

"The Division of Environmental Health [Division of Water Resources] of the Department of Environment and Natural Resources shall offer training to staff of facilities that are subject to the amended rules listed in Sections 1 through 3 of this act. Training shall be offered in the various regions of the State as appropriate and shall include information on the requirements of the amended rules, enforcement policies and procedures, and updated information as to any revisions to the amended rules that may be recommended as a result of the field test of the amended rules required by Section 4 of this act."

Temporary and Permanent Rules Governing Licensing of Family Care Homes and Homes for the Aged and Infirm. - Session Laws 2002-160, s. 6(a)-(d), effective October 17, 2002, as amended by Session Laws 2003-284, s. 10.8C, effective July 1, 2003, provides: "This act constitutes a recent act of the General Assembly within the meaning of G.S. 150B-21.1(a).

"Notwithstanding Sections 1 through 3 of this act, the Commission for Health Services [now the Commission for Public Health] may adopt temporary and permanent rules to further delay the effective date of any of the rules listed in Sections 1 through 3 of this act. The Commission for Health Services may adopt temporary and permanent rules to revise any of the rules listed in Sections 1 through 3 of this act.

"The Medical Care Commission may adopt temporary and permanent rules to amend Subchapter 42C (Licensing of Family Care Homes) and Subchapter 42D (Licensing of Homes for the Aged and Infirm) of Chapter 42 (Individual and Family Support) of Title 10 (Department of Health and Human Services) of the North Carolina Administrative Code. Prior to the adoption of temporary rules under this subsection, the Commission shall:

"(1) Consult with persons who may be interested in the subject matter of the temporary rule during the development of the text of the proposed temporary rule.

"(2) Notify persons on the mailing list that the Commission maintains pursuant to G.S. 150B-21.2(d) of its intent to adopt a temporary rule.

"(3) Publish a notice of intent to adopt a temporary rule in the North Carolina Register. The notice shall set out the text of the proposed temporary rule and include the name of the person to whom questions and written comment on the proposed rule may be submitted. The Commission shall accept written comment on the proposed temporary rule for at least 30 days after the notice of intent to adopt the temporary rule is published in the North Carolina Register.

"(4) Hold at least one public hearing on the proposed temporary rule.

"Notwithstanding 26 NCAC 2C.0102(11), the Medical Care Commission may adopt temporary rules as provided in this section until July 1, 2004."

Disapproval of Life Insurance Replacement Rules. - Session Laws 2003-143, s. 1, effective June 4, 2003, provides: "Pursuant to G.S. 150B-21.3(b), the following Life Insurance Replacement Rules that were adopted by the Department of Insurance and approved by the Rules Review Commission on December 19, 2002, are disapproved:

"(1) 11 NCAC 12.0601 - Purpose and Scope.

"(2) 11 NCAC 12.0602 - Definition of Replacement.

"(3) 11 NCAC 12.0603 - Other Definitions.

"(4) 11 NCAC 12.0604 - Exemptions.

"(5) 11 NCAC 12.0605 - Duties of Producers.

"(6) 11 NCAC 12.0606 - Duties of Existing Insurer.

"(7) 11 NCAC 12.0607 - Duties of Insurers That Use Producers.

"(8) 11 NCAC 12.0608 - Duties of Insurers With Respect to Direct Response Sales.

"(9) 11 NCAC 12.0609 - Violations and Penalties.

"(10) 11 NCAC 12.0611 - Notice Regarding Replacement.

"(11) 11 NCAC 12.0612 - Duties of Replacing Insurers That Use Producers."

Approval of Rules Governing Residential Treatment for Children or Adolescents. - Session Laws 2005-276, s. 10.35B, provides: "Notwithstanding G.S. 150B-21.1(b) and G.S. 150B-21.3(b2), the Department of Health and Human Services may adopt as temporary rules the rules governing residential treatment for children or adolescents approved for adoption or revision on May 18, 2005, by the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services, and approved by the Rules Review Commission. The temporary rules shall become effective as provided in G.S. 150B-21.3(a)."

Session Laws 2005-276, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2005.' "

Session Laws 2005-276, s. 46.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium."

Session Laws 2005-276, s. 46.5, is a severability clause.

Editor's Note. - Session Laws 1996, Second Extra Session, c. 18, s. 27.36, provides: "G.S. 150B-21.3(c) does not apply to a rule that extends the data set in 15A NCAC 13B.1627(c)(10)(A) for closure of a municipal solid waste landfill facility beyond January 1, 2000."

Session Laws 1999-237, s. 11.30 provides that, notwithstanding G.S. 150B-21.3(b), Administrative Rules 10 NCAC 41S and 41T, adopted by the Social Services Commission on January 13, 1999, and approved by the Rules Review Commission on February 18, 1999, and Administrative Rules 10 NCAC 41E, 41G, and 41R, repealed by the Social Services Commission on January 13, 1999, and approved by the Rules Review Commission on February 18, 1999, become effective July 1, 1999.

Session Laws 2000-172, s. 2.2, as amended by Session Laws 2000-140, s. 92.1(b), provides that notwithstanding G.S. 150B-21.3(a) and 25 NCAC 2C.0102(11), the Coastal Resources Commission shall adopt a temporary rule to establish use standards for waterfront development in urban areas to replace G.S. 113A-120.2 when it expires. The temporary rule shall become effective April 1, 2000, and shall remain in effect until a permanent rule that replaces the temporary rule becomes effective.

Session Laws 2000-142, s. 3, provides that, notwithstanding G.S. 150B-21.3(a) and 26 NCAC 2C.0102(11), the Coastal Resources Commission may adopt a temporary rule to establish criteria for exceptions to the regulatory requirement, effective August 1, 2000, of a 30-foot development setback along public trust and estuarine waters to allow construction of residences on previously platted undeveloped lots of 5,000 square feet or less that are located in intensively developed areas and that would otherwise be prohibited under rules adopted by the Commission pursuant to Article 7 of Chapter 113A of the General Statutes. The temporary rule shall become effective upon its adoption by the Commission and shall remain in effect until a permanent rule that replaces the temporary rule becomes effective.

Session Laws 2001-361, s. 1, provides: "Notwithstanding G.S. 150-21.3(b), 15 NCAC 2B.0315 (Neuse River Basin), as amended by the Environmental Management Commission on 12 October 2000 and approved by the Rules Review Commission on 16 November 2000, becomes effective 1 July 2004 unless the 2004 Regular Session of the 2003 General Assembly specifically disapproves 15A NCAC 2B.0315 (Neuse River Basin), as amended by the Environmental Commission of 12 October 2000 and approved by the Rules Review Commission on 16 November 2000, by enactment of a bill as provided in G.S. 150B-21.3(b)."

Session Laws 2001-418, ss. 1 to 3, authorize the Coastal Resources Commission to adopt temporary rules to establish additional exceptions to the 30-foot buffer requirement along public trust and estuarine waters in certain circumstances and to allow structural modifications to piers to prevent or minimize storm damage.

Session Laws 2002-116, s. 1, effective September 17, 2002, provides: "Pursuant to G.S. 150B-21.3(b), the amendment to 15A NCAC 07H.0309 (Use Standards for Ocean Hazard Areas: Exceptions), as adopted by the Coastal Resources Commission and approved by the Rules Review Commission on 15 November 2001, by which subdivision '(9) swimming pools;' would be deleted from subsection (a) of the rule is disapproved and shall not become effective. The remainder of the amendments to 15A NCAC 7H.0309, as adopted by the Coastal Resources Commission and approved by the Rules Review Commission on 15 November 2001, shall become effective on 1 August 2002."

Session Laws 2003-433, s. 1, provides: "Pursuant to G.S. 150B-21.3(b), 15A NCAC 2B.0225 (Outstanding Resource Waters) and 15A NCAC 2B.0316 (Tar-Pamlico River Basin), as adopted by the Environmental Management Commission on 11 July 2002 and approved by the Rules Review Commission on 15 August 2002, are approved effective 1 August 2003 with respect to all waters and lands that are located west of Nash County State Road 1003 (Red Oak Road)."

Session Laws 2003-433, s. 2, provides: "With respect to all waters and lands that are located east of Nash County State Road 1003 (Red Oak Road), 15A NCAC 2B.0225 (Outstanding Resource Waters) and 15A NCAC 2B.0316 (Tar-Pamlico River Basin), as adopted by the Environmental Management Commission on 11 July 2002 and approved by the Rules Review Commission on 15 August 2002, shall not become effective as provided in G.S. 150B-21.3(b) and shall become effective only as the 2004 Regular Session of the 2003 General Assembly may provide by law."

Session Laws 2003-433, s. 4, provides: "The Environmental Management Commission shall adopt temporary and permanent rules to amend the North Carolina Administrative Code to incorporate the provisions of Section 1 of this act. Notwithstanding G.S. 150B-21.1, this act shall not be construed to authorize the Environmental Management Commission to adopt a temporary rule related to the subject matter of this act except as specifically provided by this section, and the Environmental Management Commission shall not be required to provide prior notice or a hearing to adopt the temporary rule required by this section. Reference to this section shall satisfy the requirement for a statement of finding of need for a temporary rule set out in G.S. 150B-21.1."

Session Laws 2007-442, s. 3(b), provides: "Notwithstanding G.S. 150B-21.3(b1), 10A NCAC 21B.0314, adopted by the Department of Health and Human Services on January 19, 2007, and approved by the Rules Review Commission on March 15, 2007, is disapproved."

Session Laws 2007-442, s. 3.6, provides: "Unless required by federal law, the Department of Health and Human Services, Division of Medical Assistance shall limit notification of estate recovery to the application process for Medicaid and to following the death of the recipient."

Session Laws 2009-217, s. 1, provides: "Pursuant to G.S. 150B-21.3(b1), 21 NCAC 32X.0103 (Reporting of Medical Judgments, Awards, Payments or Settlements) and 21 NCAC 32X.0105 (Publication of Judgments, Awards, Payments or Settlements), as adopted by the North Carolina Medical Board on July 16, 2008, and approved by the Rules Review Commission on August 21, 2008, are disapproved."

Session Laws 2009-217, s. 4, provides: "Notwithstanding G.S. 150B-21.3(b1), 13 NCAC 07F.0901 (Scope) as adopted by the Department of Labor on February 19, 2009, and approved by the Rules Review Commission on March 19, 2009, is disapproved."

Session Laws 2010-157, ss. 1 to 3, provides: "SECTION 1. Notwithstanding G.S. 150B-21.3, French Broad River Basin Rule 15A NCAC 02B.0304, as adopted by the Environmental Management Commission on March 12, 2009, and approved by the Rules Review Commission on April 16, 2009, is effective July 1, 2011. Nothing in this act restricts the authority of the General Assembly to take further action on this issue, either as to the substance of the Rule or its effective date.

"SECTION 2. No later than January 1, 2011, the Department of Environment and Natural Resources shall provide for at least two public meetings on French Broad River Basin Rule 15A NCAC 02B.0304, as adopted by the Environmental Management Commission on March 12, 2009, and approved by the Rules Review Commission on April 16, 2009, in the vicinity of the area to be affected by the adoption of the Rule. The purpose of the public meetings is to provide information on the operation of the Rule, including what activities would be allowed and what activities would be prohibited by operation of the Rule.

"SECTION 3. No later than January 15, 2011, the Department of Environment and Natural Resources shall report to the Environmental Review Commission regarding the public meetings required by Section 2 of this act."

Session Laws 2011-24, s. 1, provides: "Notwithstanding G.S. 150B-21.3 and S.L. 2010-157, French Broad River Basin Rule 15A NCAC 02B.0304, as adopted by the Environmental Management Commission on March 12, 2009, and approved by the Rules Review Commission on April 16, 2009, shall not become effective."

Session Laws 2013-294, s. 1, provides: "Pursuant to G.S. 150B-21.3(b1), 04 NCAC 10A.0102 (Official Forms), 04 NCAC 10A.0105 (Electronic Payment of Costs), 04 NCAC 10A.0405 (Reinstatement of Compensation), 04 NCAC 10A.0601 (Employer's Obligations Upon Notice; Denial of Liability...), 04 NCAC 10A.0603 (Responding to a Party's Request for Hearing), 04 NCAC 10A.0605 (Discovery), 04 NCAC 10A.0608 (Statement of Incident Leading to Claim), 04 NCAC 10A.0609A (Medical Motions and Emergency Medical Motions), 04 NCAC 10A.0612 (Depositions and Additional Hearings), 04 NCAC 10A.0613 (Expert Witnesses and Fees), 04 NCAC 10A.0701 (Review by Full Commission), 04 NCAC 10A.0704 (Remand from the Appellate Courts), 04 NCAC 10C.0103 (Definitions), 04 NCAC 10C.0109 (Vocational Rehabilitation Services Return to Work), 04 NCAC 10E.0201 (Document and Record Fees), 04 NCAC 10E.0202 (Hearing Costs or Fees), 04 NCAC 10E.0203 (Fees Set by the Commission), 04 NCAC 10G.0104A (Foreign Language Interpreters), as adopted by the Industrial Commission on September 20, 2012, and approved by the Rules Review Commission on October 18, 2012, are disapproved."

Session Laws 2013-294, s. 2, provides: "Pursuant to G.S. 150B-21.3(b1), 04 NCAC 10A.0801 (Suspension of Rules), 04 NCAC 10B.0501 (Suspension of Rules), 04 NCAC 10C.0108 (Interaction with Physicians), 04 NCAC 10C.0201 (Suspension of Rules), 04 NCAC 10D.0110 (Suspension of Rules), 04 NCAC 10E.0301 (Suspension of Rules), 04 NCAC 10G.0107 (Compensation of the Mediator), 04 NCAC 10G.0110 (Waiver of Rules), 04 NCAC 10H.0206 (Waiver of Rules), 04 NCAC 10I.0204 (Suspension of Rules), as adopted by the Industrial Commission on September 20, 2012, and approved by the Rules Review Commission on November 15, 2012, are disapproved."

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. 28(a)-(d), provides: "(a) 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit). - Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 28(c) of this act, the Commission, the Department, and any other political subdivision of the State that implements 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) shall implement the rule, as provided in Section 28(b) of this act.

"(b) Implementation. - Notwithstanding 15A NCAC 02D.1903(b)(2)(F)(Open Burning Without an Air Quality Permit), open burning for land clearing or right-of-way maintenance is permissible without an air quality permit if materials are not carried off site or transported over public roads for open burning unless the materials are carried or transported to:

"(1) Facilities permitted in accordance with 15A NCAC 02D.1904 (Air Curtain Burners) for the operation of an air curtain burner at a permanent site; or

"(2) A location, where the material is burned not more than four times per year, that meets all of the following criteria:

"a. At least 500 feet from any dwelling, group of dwellings, or commercial or institutional establishment, or other occupied structure not located on the property on which the burning is conducted.

"b. There are no more than two piles, each 20 feet in diameter, being burned at one time.

"c. The location is not a permitted solid waste management facility.

"(c) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) consistent with Section 28(b) 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 28(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14. 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 28(b) of this act expires on the date that rules adopted pursuant to Section 28(c) of this act become effective."

Session Laws 2013-413, s. 34(a)-(d), as amended by Session Laws 2014-120, s. 53, provides: "(a) 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units). - Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 34(c) of this act, the Commission, the Department, and any other political subdivision of the State shall implement 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units) as provided in Section 34(b) of this act.

"(b) Implementation. - Notwithstanding the Daily Flow for Design rates listed for dwelling units in 15A NCAC 18A .1949(a) or for other establishments in Table No. 1 of 15A NCAC 18A .1949(b)(Sewage Flow Rates for Design Units), a wastewater system shall be exempt from the Daily Flow for Design, and any other design flow standards that are established by the Department of Health and Human Services or the Commission for Public Health provided flow rates that are less than those listed in 15A NCAC 18A .1949 (Sewage Flow Rates for Design Units) can be achieved through engineering design that utilizes low-flow fixtures and low-flow technologies and the design is prepared, sealed, and signed by a professional engineer licensed pursuant to Chapter 89C of the General Statutes. The Department and Commission may establish, by rule, lower limits on reduced flow rates as necessary to ensure wastewater system integrity and protect public health, safety, and welfare, provided that the Commission relies on scientific evidence specific to soil types found in North Carolina that the lower limits are necessary for those soil types. 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). Proposed daily design flows for wastewater systems that are calculated to be less than 3,000 total gallons per day shall not require State review pursuant to 15A NCAC 18A .1938(e). Neither the State nor any local health department shall be liable for any damages caused by a system approved or permitted pursuant to this section.

"(c) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend 15A NCAC 18A .1949(b)(Sewage Flow Rates for Design Units) consistent with Section 34(b) 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 34(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14. 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 34(b) of this act expires on the date that rules adopted pursuant to Section 34(c) of this act become effective."

Session Laws 2013-413, s. 61(a), is a severability clause.

Session Laws 2014-4, s. 2(a)-(c), provides: "(a) Notwithstanding G.S. 150B-21.3(b1) and Section 1(a) of S.L. 2013-365, all rules adopted pursuant to Section 2(m) of S.L. 2012-143 shall be subject to legislative review during the next regular session of the General Assembly that begins after the date the Rules Review Commission approved the rule or during the regular session that is underway on the date the Commission approved the rule.'

"(b) Notwithstanding G.S. 150B-21.3(b1) and any rule of either house of the General Assembly, any member of the General Assembly may introduce a bill to disapprove any rule adopted pursuant to Section 2(m) of S.L. 2012-143 that has been approved by the Rules Review Commission and that either has not become effective or has become effective by executive order, as follows: (i) if the Rules Review Commission approves the rule prior to the start of a legislative session, during the first 30 calendar days of the regular session of the General Assembly that begins after the date the Commission approved all rules adopted pursuant to Section 2(m) of S.L. 2012-143 or (ii) if the Rules Review Commission approves the rule during a legislative session, 30 calendar days from the date the Rules Review Commission approved all rules adopted pursuant to Section 2(m) of S.L. 2012-143.'

"(c) Notwithstanding G.S. 150B-21.3(b1) and any rule of either house of the General Assembly, all rules adopted pursuant to Section 2(m) of S.L. 2012-143 become effective on the earlier of the following:

"(1) If the Rules Review Commission approves all rules adopted pursuant to Section 2(m) of S.L. 2012-143 prior to the start of a legislative session, the earlier of (i) the 31st calendar day of the regular session of the General Assembly that begins after the date the Commission approved all rules adopted pursuant to Section 2(m) of S.L. 2012-143 if a bill that specifically disapproves any of these rules has not been introduced in either house of the General Assembly by that date; (ii) if a bill that specifically disapproves a rule is introduced in either house of the General Assembly before the 31st calendar day of that session, the rule becomes effective on the earlier of either the day an unfavorable final action is taken on the bill or the 61st calendar day of that session if by that date a bill that specifically disapproves the rule has not been ratified; or (iii) the day that session of the General Assembly adjourns without ratifying a bill that specifically disapproves the rule.

"(2) If the Rules Review Commission approves all rules adopted pursuant to Section 2(m) of S.L. 2012-143 during a legislative session, the earlier of (i) the 31st calendar day after the date the Commission approved all rules adopted pursuant to Section 2(m) of S.L. 2012-143 if a bill that specifically disapproves a rule has not been introduced in either house of the General Assembly by that date; (ii) if a bill that specifically disapproves a rule is introduced in either house of the General Assembly within 30 calendar days of the date that the Commission approved all rules adopted pursuant to Section 2(m) of S.L. 2012-143, the rule becomes effective on the earlier of either the day an unfavorable final action is taken on the bill or the 61st day after the date that the Commission approved all rules adopted pursuant to Section 2(m) of S.L. 2012-143 if by that date a bill that specifically disapproves the rule has not been ratified; or (iii) the day that session of the General Assembly adjourns without ratifying a bill that specifically disapproves the rule."

Effect of Amendments. - Session Laws 2004-156, ss. 2 and 3, effective August 2, 2004, added "or unless the agency that adopted the rule specifies a later effective date" at the end of subsection (b); and in subsection (b2), inserted "no later than 5:00 P.M. of the day following the day the commission approves the rules" in the third sentence, and added the fourth and sixth sentences.

Session Laws 2015-264, s. 23, effective October 1, 2015, substituted "posted on the agency's Web site pursuant to G.S. 150B-19.1(c)(4)" for "contained in the notice pursuant to G.S. 150B-21.2(c)(9)" in the third sentence of subsection (b2).

Session Laws 2019-198, s. 2, effective January 1, 2020, inserted "Except as provided in G.S. 14-4.1" in subsection (b1).

§ 150B-21.3A. Periodic review and expiration of existing rules.

1. Definitions. - For purposes of this section, the following definitions apply:
   1. Commission. - Means the Rules Review Commission.
   2. Committee. - Means the Joint Legislative Administrative Procedure Oversight Committee.
   3. Necessary rule. - Means any rule other than an unnecessary rule.
   4. , (4) Repealed by Session Laws 2019-140, s. 3(a), effective July 19, 2019, and applicable to agency rule reports submitted to the Office of Administrative Hearings pursuant to G.S. 150B-21.3A(c)(1) on or after October 1, 2019.
2. Automatic Expiration. - Except as provided in subsection (e) of this section, any rule for which the agency that adopted the rule has not conducted a review in accordance with this section shall expire on the date set in the schedule established by the Commission pursuant to subsection (d) of this section.
3. Review Process. - Each agency subject to this Article shall conduct a review of the agency's existing rules at least once every 10 years in accordance with the following process:
   1. Step 1: The agency shall conduct an analysis of each existing rule and make an initial determination as to whether the rule is necessary or unnecessary. The agency shall then post the results of the initial determination on its Web site and invite the public to comment on the rules and the agency's initial determination. The agency shall also submit the results of the initial determination to the Office of Administrative Hearings for posting on its Web site. The agency shall accept public comment for no less than 60 days following the posting. The agency shall review the public comments and prepare a brief response addressing the merits of each comment. After completing this process, the agency shall submit a report to the Commission. The report shall include the following items:
      1. The agency's initial determination.
      2. All public comments received in response to the agency's initial determination.
      3. The agency's response to the public comments.
   2. Step 2: The Commission shall review the reports received from the agencies pursuant to subdivision (1) of this subsection. If a public comment relates to a rule that the agency determined to be unnecessary, the Commission shall determine whether the public comment has merit and, if so, designate the rule as necessary. For purposes of this subsection, a public comment has merit if it addresses the specific substance of the rule. The Commission shall prepare a final determination report and submit the report to the Committee for consultation in accordance with subdivision (3) of this subsection. The report shall include the following items:
      1. The agency's initial determination.
      2. All public comments received in response to the agency's initial determination.
      3. The agency's response to the public comments.
      4. A summary of the Commission's determinations regarding public comments.
      5. Repealed by Session Laws 2019-140, s. 3(a), effective July 19, 2019, and applicable to agency rule reports submitted to the Office of Administrative Hearings pursuant to G.S. 150B-21.3A(c)(1) on or after October 1, 2019.
      6. A determination that all rules that the agency determined to be unnecessary and for which no public comment was received or for which the Commission determined that the public comment was without merit shall expire on the first day of the month following the date the report becomes effective in accordance with this section.
      7. A determination that all rules that the agency determined to be necessary or that the Commission designated as necessary shall be readopted as though the rules were new rules in accordance with this Article.
   3. Step 3: The final determination report shall not become effective until the agency has consulted with the Committee. The determinations contained in the report pursuant to sub-subdivisions f. and g. of subdivision (2) of this subsection shall become effective on the date the report is reviewed by the Committee. If the Committee does not hold a meeting to hear the consultation required by this subdivision within 60 days of receipt of the final determination report, the consultation requirement is deemed satisfied, and the determinations contained in the report become effective on the 61st day following the date the Committee received the report. If the Committee disagrees with a determination regarding a specific rule contained in the report, the Committee may recommend that the General Assembly direct the agency to conduct a review of the specific rule in accordance with this section in the next year following the consultation.
4. Timetable. - The Commission shall establish a schedule for the review and readoption of existing rules in accordance with this section on a decennial basis as follows:
   1. With regard to the review process, the Commission shall assign each Title of the Administrative Code a date by which the review required by this section must be completed. In establishing the schedule, the Commission shall consider the scope and complexity of rules subject to this section and the resources required to conduct the review required by this section. The Commission shall have broad authority to modify the schedule and extend the time for review in appropriate circumstances. Except as provided in subsections (e) and (f) of this section, if the agency fails to conduct the review by the date set by the Commission, the rules contained in that Title which have not been reviewed will expire. The Commission shall report to the Committee any agency that fails to conduct the review. The Commission may exempt rules that have been adopted or amended within the previous 10 years from the review required by this section. However, any rule exempted on this basis must be reviewed in accordance with this section no more than 10 years following the last time the rule was amended.
   2. With regard to the readoption of rules as required by sub-subdivision (c)(2)g. of this section, once the final determination report becomes effective, the Commission shall establish a date by which the agency must readopt the rules. The Commission shall consult with the agency and shall consider the agency's rule-making priorities in establishing the readoption date. The agency may amend a rule as part of the readoption process. If a rule is readopted without substantive change or if the rule is amended to impose a less stringent burden on regulated persons, the agency is not required to prepare a fiscal note as provided by G.S. 150B-21.4.
5. Exclusions. - The Commission shall report annually to the Committee on any rules that do not expire pursuant to this subsection. The following rules shall not expire as provided in this section:
   1. Rules adopted to conform to or implement federal law.
   2. Rules deemed by the Boards of Trustees established under G.S. 128-28 and G.S. 135-6 to protect inchoate or accrued rights of members of the Retirement Systems administered by the State Treasurer.
6. Repealed by Session Laws 2019-140, s. 3(a), effective July 19, 2019, and applicable to agency rule reports submitted to the Office of Administrative Hearings pursuant to G.S. 150B-21.3A(c)(1) on or after October 1, 2019.
7. Other Reviews. - Notwithstanding any provision of this section, an agency may subject a rule that it determines to be unnecessary to review under this section at any time by notifying the Commission that it wishes to be placed on the schedule for the current year. The Commission may also subject a rule to review under this section at any time by notifying the agency that the rule has been placed on the schedule for the current year.

(5) Public comment. - Means written comments objecting to the rule, in whole or in part, or objecting to an agency's determination of the rule as necessary or unnecessary, received by an agency from any member of the public, including an association or other organization representing the regulated community or other members of the public.

(6) Unnecessary rule. - Means a rule that the agency determines to be obsolete, redundant, or otherwise not needed.

History

(2013-413, s. 3(b); 2014-115, s. 17; 2014-120, s. 2; 2015-164, s. 7; 2015-286, s. 1.6(a); 2019-140, s. 3(a).)

Editor's Note. - Subsections (d1) and (e), as enacted by Session Laws 2013-413, s. 3(b), were redesignated as subsections (e) and (f), respectively, at the direction of the Revisor of Statutes.

Session Laws 2019-140, s. 3(b), made the rewriting of this section by Session Laws 2019-140, s. 3(a), effective July 19, 2019, and applicable to agency rule reports submitted to the Office of Administrative Hearings pursuant to G.S. 150B-21.3A(c)(1) on or after October 1, 2019.

Effect of Amendments. - Session Laws 2014-120, s. 2, effective September 18, 2014, rewrote subsection (d).

Session Laws 2015-164, s. 7, effective October 1, 2015, added subsection (e1).

Session Laws 2015-286, s. 1.6(a), effective October 22, 2015, inserted "or if the rule is amended to impose a less stringent burden on regulated persons" in the last sentence of subdivision (d)(2). For applicability, see editor's note.

Session Laws 2019-140, s. 3(a), effective July 19, 2019, rewrote the section. For effective date and applicability, see editor's note.

§ 150B-21.4. Fiscal and regulatory impact analysis on rules.

1. State Funds. - Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would require the expenditure or distribution of funds subject to the State Budget Act, Chapter 143C of the General Statutes, it must submit the text of the proposed rule change, an analysis of the proposed rule change, and a fiscal note on the proposed rule change to the Office of State Budget and Management and obtain certification from the Office of State Budget and Management that the funds that would be required by the proposed rule change are available. The fiscal note must state the amount of funds that would be expended or distributed as a result of the proposed rule change and explain how the amount was computed. The Office of State Budget and Management must certify a proposed rule change if funds are available to cover the expenditure or distribution required by the proposed rule change.
2. DOT Analyses. - In addition to the requirements of subsection (a) of this section, any agency that adopts a rule affecting environmental permitting of Department of Transportation projects shall conduct an analysis to determine if the rule will result in an increased cost to the Department of Transportation. The analysis shall be conducted and submitted to the Board of Transportation when the agency submits the notice of text for publication. The agency shall consider any recommendations offered by the Board of Transportation prior to adopting the rule. Once a rule subject to this subsection is adopted, the Board of Transportation may submit any objection to the rule it may have to the Rules Review Commission. If the Rules Review Commission receives an objection to a rule from the Board of Transportation no later than 5:00 P.M. of the day following the day the Commission approves the rule, then the rule shall only become effective as provided in G.S. 150B-21.3(b1).
3. Local Funds. - Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would affect the expenditures or revenues of a unit of local government, it must submit the text of the proposed rule change and a fiscal note on the proposed rule change to the Office of State Budget and Management as provided by G.S. 150B-21.26, the Fiscal Research Division of the General Assembly, the North Carolina Association of County Commissioners, and the North Carolina League of Municipalities. The fiscal note must state the amount by which the proposed rule change would increase or decrease expenditures or revenues of a unit of local government and must explain how the amount was computed.
4. Substantial Economic Impact. - Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would have a substantial economic impact and that is not identical to a federal regulation that the agency is required to adopt, the agency shall prepare a fiscal note for the proposed rule change and have the note approved by the Office of State Budget and Management. The agency must also obtain from the Office a certification that the agency adhered to the regulatory principles set forth in G.S. 150B-19.1(a)(2), (5), and (6). The agency may request the Office of State Budget and Management to prepare the fiscal note only after, working with the Office, it has exhausted all resources, internal and external, to otherwise prepare the required fiscal note. If an agency requests the Office of State Budget and Management to prepare a fiscal note for a proposed rule change, that Office must prepare the note within 90 days after receiving a written request for the note. If the Office of State Budget and Management fails to prepare a fiscal note within this time period, the agency proposing the rule change shall prepare a fiscal note. A fiscal note prepared in this circumstance does not require approval of the Office of State Budget and Management.
   1. Determine and identify the appropriate time frame of the analysis.
   2. Assess the baseline conditions against which the proposed rule is to be measured.
   3. Describe the persons who would be subject to the proposed rule and the type of expenditures these persons would be required to make.
   4. Estimate any additional costs that would be created by implementation of the proposed rule by measuring the incremental difference between the baseline and the future condition expected after implementation of the rule. The analysis should include direct costs as well as opportunity costs. Cost estimates must be monetized to the greatest extent possible. Where costs are not monetized, they must be listed and described.
   5. For costs that occur in the future, the agency shall determine the net present value of the costs by using a discount factor of seven percent (7%).
5. Content. - A fiscal note required by subsection (b1) of this section must contain the following:
   1. A description of the persons who would be affected by the proposed rule change.
   2. A description of the types of expenditures that persons affected by the proposed rule change would have to make to comply with the rule and an estimate of these expenditures.
   3. A description of the purpose and benefits of the proposed rule change.
   4. An explanation of how the estimate of expenditures was computed.
   5. A description of at least two alternatives to the proposed rule that were considered by the agency and the reason the alternatives were rejected. The alternatives may have been identified by the agency or by members of the public.
6. Errors. - An erroneous fiscal note prepared in good faith does not affect the validity of a rule.
7. If an agency proposes the repeal of an existing rule, the agency is not required to prepare a fiscal note on the proposed rule change as provided by this section.

If an agency prepares the required fiscal note, the agency must submit the note to the Office of State Budget and Management for review. The Office of State Budget and Management shall review the fiscal note within 14 days after it is submitted and either approve the note or inform the agency in writing of the reasons why it does not approve the fiscal note. After addressing these reasons, the agency may submit the revised fiscal note to that Office for its review. If an agency is not sure whether a proposed rule change would have a substantial economic impact, the agency shall ask the Office of State Budget and Management to determine whether the proposed rule change has a substantial economic impact. Failure to prepare or obtain approval of the fiscal note as required by this subsection shall be a basis for objection to the rule under G.S. 150B-21.9(a)(4).

As used in this subsection, the term "substantial economic impact" means an aggregate financial impact on all persons affected of at least one million dollars ($1,000,000) in a 12-month period. In analyzing substantial economic impact, an agency shall do the following:

History

(1973, c. 1331, s. 1; 1979, 2nd Sess., c. 1137, s. 41.1; 1983, c. 761, s. 185; 1985, c. 746, s. 1; 1987, c. 827, s. 54; 1991, c. 418, s. 1; 1995, c. 415, s. 2; c. 507, s. 27.8(b); 2000-140, s. 93.1(a); 2001-424, s. 12.2(b); 2003-229, s. 6; 2005-276, s. 28.8(a); 2006-203, s. 124; 2011-398, s. 6; 2012-187, s. 4; 2013-149, s. 1; 2013-413, s. 2; 2014-115, s. 17; 2014-120, s. 6(b).)

Editor's Note. - Session Laws 2013-149, s. 2, made subsection (d), as added by Session Laws 2013-149, s. 1, applicable to all proposed rules published in the North Carolina Register on or after June 19, 2013.

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. 60(c), had provided that: "This act becomes effective July 1, 2015."

Session Laws 2014-4, s. 2(g), provides: "The Mining and Energy Commission, the Environmental Management Commission, and the Commission for Public Health are exempt from the provisions of Chapter 150B of the General Statutes that require that a certification be obtained from the Office of State Budget and Management, including requirements under G.S. 150B-19.1(h) and G.S. 150B-21.4, and any requirement for preliminary review by the Office of State Budget and Management pursuant to G.S. 150B-21.26, for any rule proposed for the creation of a modern regulatory program for the management of oil and gas exploration and development activities in the State, including the use of horizontal drilling and hydraulic fracturing for that purpose."

Effect of Amendments. - Session Laws 2005-276, s. 28.8(a), effective July 1, 2005, added subsection (a1).

Session Laws 2006-203, s. 124, effective July 1, 2007, and applicable to the budget for the 2007-2009 biennium and each subsequent biennium thereafter, substituted "State Budget Act, Chapter 143C of the General Statutes" for "Executive Budget Act, Article 1 of Chapter 143," in the first sentence of subsection (a).

Session Laws 2011-398, s. 6, effective October 1, 2011, and applicable to rules adopted on or after that date, rewrote the section.

Session Laws 2014-120, s. 6(b), effective September 18, 2014, in the catchline substituted "and regulatory impact analysis" for "notes"; substituted "publishes in the North Carolina Register the proposed text of" for "adopts" three times in this section; in subsection (a), near the beginning inserted "submit the text of the proposed rule change, an analysis of the proposed rule change, and a fiscal note on the proposed rule change to the Office of State Budget and Management and" and deleted the former second sentence; added the second sentence in subsection (b)(1). See Editor's note for applicability.

§ 150B-21.5. Circumstances when notice and rule-making hearing not required; circumstances when submission to the Commission not required.

1. Amendment. - An agency is not required to publish a notice of text in the North Carolina Register, hold a public hearing, or submit the amended rule to the Commission for review when it proposes to amend a rule to do one of the following:
   1. Reletter or renumber the rule or subparts of the rule.
   2. Substitute one name for another when an organization or position is renamed.
   3. Correct a citation in the rule to another rule or law when the citation has become inaccurate since the rule was adopted because of the repeal or renumbering of the cited rule or law.
   4. Change information that is readily available to the public, such as an address, email address, a telephone number, or a Web site.
   5. Correct a typographical error.
   6. Repealed by Session Laws 2019-140, s. 1(a), effective July 19, 2019.
2. Response to Commission. - An agency is not required to publish a notice of text in the North Carolina Register or hold a public hearing when it proposes to change the rule in response to a request or an objection by the Commission, unless the Commission determines that the change is substantial.
3. Repeal. - An agency is not required to publish a notice of text in the North Carolina Register or hold a public hearing when it proposes to repeal a rule as a result of any of the following:
   1. The law under which the rule was adopted is repealed.
   2. The law under which the rule was adopted or the rule itself is declared unconstitutional.
   3. The rule is declared to be in excess of the agency's statutory authority.
4. OSHA Standard. - The Occupational Safety and Health Division of the Department of Labor is not required to publish a notice of text in the North Carolina Register or hold a public hearing when it proposes to adopt a rule that concerns an occupational safety and health standard and is identical to a federal regulation promulgated by the Secretary of the United States Department of Labor. The Occupational Safety and Health Division is not required to submit to the Commission for review a rule for which notice and hearing is not required under this subsection.
5. State Building Code. - The Building Code Council is not required to publish a notice of text in the North Carolina Register when it proposes to adopt a rule that concerns the North Carolina State Building Code. The Building Code Council is required to publish a notice in the North Carolina Register when it proposes to adopt a rule that concerns the North Carolina State Building Code. The notice must include all of the following:
   1. A statement of the subject matter of the proposed rule making.
   2. A short explanation of the reason for the proposed action.
   3. A citation to the law that gives the agency the authority to adopt a rule on the subject matter of the proposed rule making.
   4. The person to whom questions or written comments may be submitted on the subject matter of the proposed rule making.
6. An agency that adopts or amends a rule pursuant to subsection (a) or (c) of this section shall notify the Codifier of Rules of its actions. When notified of an agency action taken pursuant to subsection (a) or (c) of this section, the Codifier of Rules shall make the appropriate change to the North Carolina Administrative Code.

The Building Code Council is required to submit to the Commission for review a rule for which notice of text is not required under this subsection. In adopting a rule, the Council shall comply with the procedural requirements of G.S. 150B-21.3.

History

(1991, c. 418, s. 1; 1995, c. 504, s. 12; 1997-34, s. 4; 2001-141, s. 5; 2001-421, s. 1.3; 2003-229, s. 7; 2019-140, s. 1(a).)

Effect of Amendments. - Session Laws 2019-140, s. 1(a), effective July 19, 2019, inserted "circumstances when submission to the Commission not required" in the catchline; rewrote subsection (a); and added subsections (a1) and (e).

§ 150B-21.6. Incorporating material in a rule by reference.

An agency may incorporate the following material by reference in a rule without repeating the text of the referenced material:

1. Another rule or part of a rule adopted by the agency.
2. All or part of a code, standard, or regulation adopted by another agency, the federal government, or a generally recognized organization or association.
3. Repealed by Session Laws 1997-34, s. 5.

In incorporating material by reference, the agency must designate in the rule whether or not the incorporation includes subsequent amendments and editions of the referenced material. The agency can change this designation only by a subsequent rule-making proceeding. The agency must have copies of the incorporated material available for inspection and must specify in the rule both where copies of the material can be obtained and the cost on the date the rule is adopted of a copy of the material.

A statement in a rule that a rule incorporates material by reference in accordance with former G.S. 150B-14(b) is a statement that the rule does not include subsequent amendments and editions of the referenced material. A statement in a rule that a rule incorporates material by reference in accordance with former G.S. 150B-14(c) is a statement that the rule includes subsequent amendments and editions of the referenced material.

History

(1973, c. 1331, s. 1; 1975, 2nd Sess., c. 983, s. 64; 1981 (Reg. Sess., 1982), c. 1359, s. 5; 1983, c. 641, s. 3; c. 768, s. 19; 1985, c. 746, s. 1; 1987, c. 285, s. 13; 1991, c. 418, s. 1; 1997-34, s. 5.)

§ 150B-21.7. Effect of transfer of duties or termination of agency on rules.

1. When a law that authorizes an agency to adopt a rule is repealed and another law gives the same or another agency substantially the same authority to adopt a rule, the rule remains in effect until the agency with authority over the rule amends or repeals the rule. When a law that authorizes an agency to adopt a rule is repealed and another law does not give the same or another agency substantially the same authority to adopt a rule, a rule adopted under the repealed law is repealed as of the date the law is repealed. The agency that adopted the rule shall notify the Codifier of Rules that the rule is repealed pursuant to this subsection.
2. When an executive order abolishes part or all of an agency and transfers a function of that agency to another agency, a rule concerning the transferred function remains in effect until the agency to which the function is transferred amends or repeals the rule. When an executive order abolishes part or all of an agency and does not transfer a function of that agency to another agency, a rule concerning a function abolished by the executive order is repealed as of the effective date of the executive order. The agency that adopted the rule shall notify the Codifier of Rules that the rule is repealed pursuant to this subsection.
3. When notified of a rule repealed under this section, the Codifier of Rules must enter the repeal of the rule in the North Carolina Administrative Code.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1991, c. 418, s. 1; 2013-143, s. 2.)

PART 3. REVIEW BY COMMISSION.

§ 150B-21.8. Review of rule by Commission.

1. Emergency Rule. - The Commission does not review an emergency rule.
2. Temporary and Permanent Rules. - An agency must submit temporary and permanent rules adopted by it to the Commission before the rule can be included in the North Carolina Administrative Code. The Commission reviews a temporary or permanent rule in accordance with the standards in G.S. 150B-21.9 and follows the procedure in this Part in its review of a rule.
3. Scope. - When the Commission reviews an amendment to a permanent rule, it may review the entire rule that is being amended. The procedure in G.S. 150B-21.12 applies when the Commission objects to a part of a permanent rule that is within its scope of review but is not changed by a rule amendment.
4. Judicial Review. - When the Commission returns a permanent rule to an agency in accordance with G.S. 150B-21.12(d), the agency may file an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 of Chapter 1 of the General Statutes.

History

(1991, c. 418, s. 1; 2003-229, s. 8.)

Editor's Note. - Session Laws 2013-77, s. 4, provides: "Additional rule-making authority. - Notwithstanding G.S. 150B-19(4), the Commission shall adopt amendments to the Homeless Shelter Provision to be substantively identical to the provisions of Section 3 of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14. 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)."

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. 23, provides: "No later than January 1, 2014, the Commission for Public Health shall amend and clarify its rules adopted pursuant to G.S. 130A-497 for the implementation of the prohibition on smoking in restaurants and bars. The rules shall ensure the consistent interpretation and enforcement of Part 1C of Article 23 of Chapter 130A of the General Statutes and shall specifically clarify the definition of enclosed areas for purposes of implementation of the Part. Rules adopted pursuant to this section (i) shall be exempt from the requirements of G.S. 150B-21.4, (ii) are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes, and (iii) 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). No later than November 1, 2013, the Commission shall report to the Joint Legislative Oversight Committee on Health and Human Services on its progress in amending and clarifying the rules."

Session Laws 2013-413, s. 28(a)-(d), provides: "(a) 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit). - Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 28(c) of this act, the Commission, the Department, and any other political subdivision of the State that implements 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) shall implement the rule, as provided in Section 28(b) of this act.

"(b) Implementation. - Notwithstanding 15A NCAC 02D.1903(b)(2)(F)(Open Burning Without an Air Quality Permit), open burning for land clearing or right-of-way maintenance is permissible without an air quality permit if materials are not carried off site or transported over public roads for open burning unless the materials are carried or transported to:

"(1) Facilities permitted in accordance with 15A NCAC 02D.1904 (Air Curtain Burners) for the operation of an air curtain burner at a permanent site; or

"(2) A location, where the material is burned not more than four times per year, that meets all of the following criteria:

"a. At least 500 feet from any dwelling, group of dwellings, or commercial or institutional establishment, or other occupied structure not located on the property on which the burning is conducted.

"b. There are no more than two piles, each 20 feet in diameter, being burned at one time.

"c. The location is not a permitted solid waste management facility.

"(c) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) consistent with Section 28(b) 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 28(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14. 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 28(b) of this act expires on the date that rules adopted pursuant to Section 28(c) of this act become effective."

Session Laws 2013-413, s. 34(a)-(d), as amended by Session Laws 2014-120, s. 53, provides: "(a) 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units). - Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 34(c) of this act, the Commission, the Department, and any other political subdivision of the State shall implement 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units) as provided in Section 34(b) of this act.

"(b) Implementation. - Notwithstanding the Daily Flow for Design rates listed for dwelling units in 15A NCAC 18A .1949(a) or for other establishments in Table No. 1 of 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units), a wastewater system shall be exempt from the Daily Flow for Design, and any other design flow standards that are established by the Department of Health and Human Services or the Commission for Public Health provided flow rates that are less than those listed in 15A NCAC 18A .1949 (Sewage Flow Rates for Design Units) can be achieved through engineering design that utilizes low-flow fixtures and low-flow technologies and the design is prepared, sealed, and signed by a professional engineer licensed pursuant to Chapter 89C of the General Statutes. The Department and Commission may establish, by rule, lower limits on reduced flow rates as necessary to ensure wastewater system integrity and protect public health, safety, and welfare, provided that the Commission relies on scientific evidence specific to soil types found in North Carolina that the lower limits are necessary for those soil types. 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). Proposed daily design flows for wastewater systems that are calculated to be less than 3,000 total gallons per day shall not require State review pursuant to 15A NCAC 18A .1938(e). Neither the State nor any local health department shall be liable for any damages caused by a system approved or permitted pursuant to this section.

"(c) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units) consistent with Section 34(b) 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 34(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14. 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 34(b) of this act expires on the date that rules adopted pursuant to Section 34(c) of this act become effective."

Session Laws 2017-10, s. 5.1 , is a severability clause.

§ 150B-21.9. Standards and timetable for review by Commission.

1. Standards. - The Commission must determine whether a rule meets all of the following criteria:
   1. It is within the authority delegated to the agency by the General Assembly.
   2. It is clear and unambiguous.
   3. It is reasonably necessary to implement or interpret an enactment of the General Assembly, or of Congress, or a regulation of a federal agency. The Commission shall consider the cumulative effect of all rules adopted by the agency related to the specific purpose for which the rule is proposed.
   4. It was adopted in accordance with Part 2 of this Article.
2. Entry of a rule in the North Carolina Administrative Code after review by the Commission creates a rebuttable presumption that the rule was adopted in accordance with Part 2 of this Article.
3. Timetable. - The Commission must review a permanent rule submitted to it on or before the twentieth of a month by the last day of the next month. The Commission must review a rule submitted to it after the twentieth of a month by the last day of the second subsequent month. The Commission must review a temporary rule in accordance with the timetable and procedure set forth in G.S. 150B-21.1.

The Commission shall not consider questions relating to the quality or efficacy of the rule but shall restrict its review to determination of the standards set forth in this subsection.

The Commission may ask the Office of State Budget and Management to determine if a rule has a substantial economic impact and is therefore required to have a fiscal note. The Commission must ask the Office of State Budget and Management to make this determination if a fiscal note was not prepared for a rule and the Commission receives a written request for a determination of whether the rule has a substantial economic impact.

History

(1991, c. 418, s. 1; 1995, c. 507, s. 27.8(f); 2000-140, s. 93.1(a); 2001-424, s. 12.2(b); 2003-229, s. 9.)

Editor's Note. - Session Laws 2003-229, s. 15 provides that the amendments to subsections (a) and (b) by s. 9 of the act are applicable to temporary and emergency rules adopted on or after that date and to permanent rules adopted on or after October 1, 2003. Subsection (a1), as amended by s. 9 of the act, applies only to rules adopted on or after July 1, 2003.

Session Laws 2009-216, as amended by Session Laws 2009-484, s. 7(a) and (b), provided for improvements in the management of the Jordan Watershed in order to restore water quality in the Jordan Reservoir. See Editor's note at G.S. 143-214.7 for details.

Session Laws 2009-216, s. 2(c), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. 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 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)." Section 2 of Session Laws 2009-216 pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Sections 3(c) through 3(i) 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 Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)." Section 3 of Session Laws 2009-216 pertains to stormwater management, Jordan Lake Reservoir. For provisions on interpretation of certain rules to implement nutrient management strategies for the B. Everett Jordan Reservoir adopted pursuant to Session Laws 2009-216, see Session Laws 2012-187, s. 12.1.

Session Laws 2014-4, s. 2(d), provides: "Notwithstanding G.S. 150B-21.9, the Rules Review Commission must review any permanent rule adopted pursuant to Section 2(m) of S.L. 2012-143 submitted to it by the end of a month by the last day of the next month."

§ 150B-21.10. Commission action on permanent rule.

At the first meeting at which a permanent rule is before the Commission for review, the Commission must take one of the following actions:

1. Approve the rule, if the Commission determines that the rule meets the standards for review.
2. Object to the rule, if the Commission determines that the rule does not meet the standards for review.
3. Extend the period for reviewing the rule, if the Commission determines it needs additional information on the rule to be able to decide whether the rule meets the standards for review.

In reviewing a new rule or an amendment to an existing rule, the Commission may request an agency to make technical changes to the rule and may condition its approval of the rule on the agency's making the requested technical changes.

History

(1991, c. 418, s. 1.)

Editor's Note. - Session Laws 2009-216, as amended by Session Laws 2009-484, s. 7(a) and (b), provided for improvements in the management of the Jordan Watershed in order to restore water quality in the Jordan Reservoir. See Editor's note at G.S. 143-214.7 for details.

Session Laws 2009-216, s. 2(c), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. 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 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)." Section 2 of Session Laws 2009-216 pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Sections 3(c) through 3(i) 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 Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)." Section 3 of Session Laws 2009-216 pertains to stormwater management, Jordan Lake Reservoir. For provisions on interpretation of certain rules to implement nutrient management strategies for the B. Everett Jordan Reservoir adopted pursuant to Session Laws 2009-216, see Session Laws 2012-187, s. 12.1.

§ 150B-21.11. Procedure when Commission approves permanent rule.

When the Commission approves a permanent rule, it must notify the agency that adopted the rule of the Commission's approval, and deliver the approved rule to the Codifier of Rules.

If the approved rule will increase or decrease expenditures or revenues of a unit of local government, the Commission must also notify the Governor of the Commission's approval of the rule and deliver a copy of the approved rule to the Governor by the end of the month in which the Commission approved the rule.

History

(1991, c. 418, s. 1; 1995, c. 415, s. 4; c. 507, s. 27.8(g); 2011-291, s. 2.59; 2011-398, s. 7; 2018-142, s. 22.)

Editor's Note. - Session Laws 2009-216, as amended by Session Laws 2009-484, s. 7(a) and (b), provided for improvements in the management of the Jordan Watershed in order to restore water quality in the Jordan Reservoir. See Editor's note at G.S. 143-214.7 for details.

Session Laws 2009-216, s. 2(c), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. 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 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)." Section 2 of Session Laws 2009-216 pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Sections 3(c) through 3(i) 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 Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)." Section 3 of Session Laws 2009-216 pertains to stormwater management, Jordan Lake Reservoir. For provisions on interpretation of certain rules to implement nutrient management strategies for the B. Everett Jordan Reservoir adopted pursuant to Session Laws 2009-216, see Session Laws 2012-187, s. 12.1.

Session Laws 2011-291, s. 2.59, and Session Laws 2011-398, s. 7 both amended G.S. 150B-21.11 in the coded bill drafting format provided by G.S. 120-20.1. However, the amendment by Session Laws 2011-398, s. 7 did not account for all of the changes made by Session Laws 2011-291, s. 2.59, and the section has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2011-398, s. 62, is a severability clause.

Effect of Amendments. - Session Laws 2011-291, s. 2.59, effective June 24, 2011, substituted "Joint Regulatory Reform Committee" for "Joint Legislative Administrative Procedure Oversight Committee" in the first paragraph.

Session Laws 2011-398, s. 7, effective October 1, 2011, and applicable to rules adopted on or after that date, in the first paragraph, inserted "and" and deleted "and include the text of the approved rule and a summary of the rule in its next report to the Joint Legislative Administrative Procedure Oversight Committee" from the end.

Session Laws 2018-142, s. 22, effective December 15, 2018, deleted "Regulatory Reform" from the end of the first paragraph.

§ 150B-21.12. Procedure when Commission objects to a permanent rule.

1. Action. - When the Commission objects to a permanent rule, it must send the agency that adopted the rule a written statement of the objection and the reason for the objection. The agency that adopted the rule must take one of the following actions:
   1. Change the rule to satisfy the Commission's objection and submit the revised rule to the Commission.
   2. Submit a written response to the Commission indicating that the agency has decided not to change the rule.
2. Time Limit. - An agency that is not a board or commission must take one of the actions listed in subsection (a) of this section within 30 days after receiving the Commission's statement of objection. A board or commission must take one of these actions within 30 days after receiving the Commission's statement of objection or within 10 days after the board or commission's next regularly scheduled meeting, whichever comes later.
3. Changes. - When an agency changes a rule in response to an objection by the Commission, the Commission must determine whether the change satisfies the Commission's objection. If it does, the Commission must approve the rule. If it does not, the Commission must send the agency a written statement of the Commission's continued objection and the reason for the continued objection. The Commission must also determine whether the change is substantial. In making this determination, the Commission shall use the standards set forth in G.S. 150B-21.2(g). If the change is substantial, the revised rule shall be published and reviewed in accordance with the procedure set forth in G.S. 150B-21.1(a3) and (b).
4. Return of Rule. - A rule to which the Commission has objected remains under review by the Commission until the agency that adopted the rule decides not to satisfy the Commission's objection and makes a written request to the Commission to return the rule to the agency. When the Commission returns a rule to which it has objected, it must notify the Codifier of Rules of its action. If the rule that is returned would have increased or decreased expenditures or revenues of a unit of local government, the Commission must also notify the Governor of its action and must send a copy of the record of the Commission's review of the rule to the Governor. The record of review consists of the rule, the Commission's letter of objection to the rule, the agency's written response to the Commission's letter, and any other relevant documents before the Commission when it decided to object to the rule.

Regulatory Reform

History

(1991, c. 418, s. 1; 1995, c. 415, s. 5; c. 507, s. 27.8(h), (y); 2003-229, s. 10; 2011-291, s. 2.60; 2011-398, s. 8.)

Editor's Note. - Session Laws 2009-216, as amended by Session Laws 2009-484, s. 7(a) and (b), provided for improvements in the management of the Jordan Watershed in order to restore water quality in the Jordan Reservoir. See Editor's note at G.S. 143-214.7 for details.

Session Laws 2009-216, s. 2(c), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. 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 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)." Section 2 of Session Laws 2009-216 pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Sections 3(c) through 3(i) 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 Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)." Section 3 of Session Laws 2009-216 pertains to stormwater management, Jordan Lake Reservoir. For provisions on interpretation of certain rules to implement nutrient management strategies for the B. Everett Jordan Reservoir adopted pursuant to Session Laws 2009-216, see Session Laws 2012-187, s. 12.1.

Session Laws 2011-291, s. 2.60, and Session Laws 2011-398, s. 8 both amended G.S. 150B-21.12 in the coded bill drafting format provided by G.S. 120-20.1. However, the amendment by Session Laws 2011-398, s. 8 did not account for all of the changes made by Session Laws 2011-291, s. 2.60, and the section has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2011-398, s. 62, is a severability clause.

Effect of Amendments. - Session Laws 2011-291, s. 2.60, effective June 24, 2011, substituted "Joint Regulatory Reform Committee" for "Joint Legislative Administrative Procedure Oversight Committee" in the second sentence of subsection (d).

Session Laws 2011-398, s. 8, effective October 1, 2011, and applicable to rules adopted on or after that date, deleted "and must send a copy of the record of the Commission's review of the rule to the Joint Legislative Administrative Procedure Oversight Committee in its next report to that Committee" from the end of the second sentence in subsection (d).

§ 150B-21.13. Procedure when Commission extends period for review of permanent rule.

When the Commission extends the period for review of a permanent rule, it must notify the agency that adopted the rule of the extension and the reason for the extension. After the Commission extends the period for review of a rule, it may call a public hearing on the rule. Within 70 days after extending the period for review of a rule, the Commission must decide whether to approve the rule, object to the rule, or call a public hearing on the rule.

History

(1991, c. 418, s. 1.)

Editor's Note. - Session Laws 2009-216, as amended by Session Laws 2009-484, s. 7(a) and (b), provided for improvements in the management of the Jordan Watershed in order to restore water quality in the Jordan Reservoir. See Editor's note at G.S. 143-214.7 for details.

Session Laws 2009-216, s. 2, pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 2(c), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. 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 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)."

Session Laws 2009-216, s. 3, pertains to stormwater management of the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Sections 3(c) through 3(i) 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 Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)."

§ 150B-21.14. Public hearing on a rule.

The Commission may call a public hearing on a rule when it extends the period for review of the rule. At the request of an agency, the Commission may call a public hearing on a rule that is not before it for review. Calling a public hearing on a rule not already before the Commission for review places the rule before the Commission for review. When the Commission decides to call a public hearing on a rule, it must publish notice of the public hearing in the North Carolina Register.

After a public hearing on a rule, the Commission must approve the rule or object to the rule in accordance with the standards and procedures in this Part. The Commission must make its decision of whether to approve or object to the rule within 70 days after the public hearing.

History

(1991, c. 418, s. 1.)

Editor's Note. - Session Laws 2009-216, as amended by Session Laws 2009-484, s. 7(a) and (b), provided for improvements in the management of the Jordan Watershed in order to restore water quality in the Jordan Reservoir. See Editor's note at G.S. 143-214.7 for details.

Session Laws 2009-216, s. 2, pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 2(c), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. 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 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)."

Session Laws 2009-216, s. 3, pertains to stormwater management of the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Sections 3(c) through 3(i) 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 Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. 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)." For provisions on interpretation of certain rules to implement nutrient management strategies for the B. Everett Jordan Reservoir adopted pursuant to Session Laws 2009-216, see Session Laws 2012-187, s. 12.1.

§ 150B-21.16: Repealed by Session Laws 2011-398, s. 9, effective October 1, 2011, and applicable to rules adopted on or after that date.

History

(1995, c. 507, s. 27.8(j); 2011-291, s. 2.61; repealed by 2011-398, s. 9, effective October 1, 2011, and applicable to rules adopted on or after that date.)

Editor's Note. - Former G.S. 150B-21.16 pertained to reports to the Joint Legislative Administrative Procedure Oversight Committee.

PART 4. PUBLICATION OF CODE AND REGISTER.

§ 150B-21.17. North Carolina Register.

1. Content. - The Codifier of Rules must publish the North Carolina Register. The North Carolina Register must be published at least two times a month and must contain the following:
   1. Temporary rules entered in the North Carolina Administrative Code.
   2. The text of proposed rules and the text of permanent rules approved by the Commission.
   3. Emergency rules entered into the North Carolina Administrative Code.
   4. Repealed by Session Laws 2011-398, s. 10,  effective October 1, 2011, and applicable to rules adopted on or after that date
   5. Executive orders of the Governor.
   6. Final decision letters from the United States Attorney General concerning changes in laws that affect voting in a jurisdiction subject to section 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H.
   7. Repealed by Session Laws 2011-330, s. 33(c), effective June 27, 2011, and by Session Laws 2011-398, s. 10,  effective October 1, 2011, and applicable to rules adopted on or after that date.
   8. Other information the Codifier determines to be helpful to the public.
2. Form. - When an agency publishes notice in the North Carolina Register of the proposed text of a new rule, the Codifier of Rules must publish the complete text of the proposed new rule. In publishing the text of a proposed new rule, the Codifier must indicate the rule is new by underlining the proposed text of the rule.
3. The Codifier may authorize and license the private indexing, marketing, sales, reproduction, and distribution of the Register.

When an agency publishes notice in the North Carolina Register of the proposed text of an amendment to an existing rule, the Codifier must publish the complete text of the rule that is being amended unless the Codifier determines that publication of the complete text of the rule being amended is not necessary to enable the reader to understand the proposed amendment. In publishing the text of a proposed amendment to a rule, the Codifier must indicate deleted text with overstrikes and added text with underlines.

When an agency publishes notice in the North Carolina Register of the proposed repeal of an existing rule, the Codifier must publish the complete text of the rule the agency proposes to repeal unless the Codifier determines that publication of the complete text is impractical. In publishing the text of a rule the agency proposes to repeal, the Codifier must indicate the rule is to be repealed.

History

(1991, c. 418, s. 1; 1995, c. 507, s. 27.8(k); 2001-141, s. 6; 2001-421, s. 1.4; 2003-229, s. 11; 2006-66, s. 18.1; 2011-330, s. 33(c); 2011-398, s. 10.)

Editor's Note. - Session Laws 1985, c. 746, s. 4, effective January 1, 1986, provided: "All personnel and equipment presently assigned to the Department of Justice for the purpose of carrying out the provisions of Article 5, Chapter 150A [recodified as this Article] of the General Statutes, are transferred to the Office of Administrative Hearings by a Type I transfer as defined by G.S. 143A-6(a)."

Effect of Amendments. - Session Laws 2006-66, s. 18.1, effective July 1, 2006, added subsection (c).

Session Laws 2011-330, s. 33(c), effective June 27, 2011, repealed subdivision (a)(5), which read: "Orders of the Tax Review Board issued under G.S. 105-241.2."

Session Laws 2011-398, s. 10, effective October 1, 2011, and applicable to rules adopted on or after that date, deleted subdivision (a)(2), which read: "Notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165"; and deleted subdivision (a)(5), which read: "Orders of the Tax Review Board issued under G.S. 105-241.2."

§ 150B-21.18. North Carolina Administrative Code.

The Codifier of Rules must compile all rules into a Code known as the North Carolina Administrative Code. The format and indexing of the Code must conform as nearly as practical to the format and indexing of the North Carolina General Statutes. The Codifier must publish printed copies of the Code and may publish the Code in other forms. The Codifier may authorize and license the private indexing, marketing, sales, reproduction, and distribution of the Code. The Codifier must keep superseded rules.

History

(1973, c. 1331, s. 1; 1979, c. 69, ss. 3, 7; c. 541, s. 2; c. 688, s. 1; 1979, 2nd Sess., c. 1266, ss. 1-3; 1981 (Reg. Sess., 1982), c. 1359, s. 6; 1983, c. 641, s. 6; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1003, s. 2; c. 1022, s. 1(1), (19); c. 1032, s. 12; 1987, c. 774, ss. 2-4; 1987 (Reg. Sess., 1988), c. 1111, s. 3; 1989, c. 500, s. 43(a); 1991, c. 418, s. 1; 1993 (Reg. Sess., 1994), c. 777, s. 2; 2011-398, s. 11.)

Effect of Amendments. - Session Laws 2011-398, s. 11, effective October 1, 2011, and applicable to rules adopted on or after that date, deleted the former fourth sentence, which read: "The Codifier must keep the Code current by publishing the Code in a loose-leaf format and periodically providing new pages to be substituted for outdated pages, by publishing the Code in volumes and periodically publishing cumulative supplements, or by another means."

§ 150B-21.19. Requirements for including rule in Code.

To be acceptable for inclusion in the North Carolina Administrative Code, a rule must:

1. Cite the law under which the rule is adopted.
2. Be signed by the head of the agency or the rule-making coordinator for the agency that adopted the rule.
3. Be in the physical form specified by the Codifier of Rules.
4. Have been approved by the Commission, if the rule is a permanent rule.
5. Have complied with the provisions of G.S. 12-3.1, if the rule establishes a new fee or increases an existing fee.

History

(1973, c. 1331, s. 1; 1979, c. 571, s. 1; 1981, c. 688, s. 14; 1983, c. 927, ss. 6, 9; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(1); c. 1028, s. 35; 1987, c. 285, s. 16; 1991, c. 418, s. 1; 1995, c. 507, s. 27.8( l ); 2002-97, s. 4.)

§ 150B-21.20. Codifier's authority to revise rules.

1. Authority. - After consulting with the agency that adopted the rule, the Codifier of Rules may revise a rule to do one or more of the following:
   1. Rearrange the order of the rule in the Code or the order of the subsections, subdivisions, or other subparts of the rule.
   2. Provide a catch line or heading for the rule or revise the catch line or heading of the rule.
   3. Reletter or renumber the rule or the subparts of the rule in accordance with a uniform system.
   4. Rearrange definitions and lists.
   5. Make other changes in arrangement or in form that do not change the substance of the rule and are necessary or desirable for a clear and orderly arrangement of the rule.
   6. Omit from the published rule a map, a diagram, an illustration, a chart, or other graphic material, if the Codifier of Rules determines that the Office of Administrative Hearings does not have the capability to publish the material or that publication of the material is not practicable. When the Codifier of Rules omits graphic material from the published rule, the Codifier must insert a reference to the omitted material and information on how to obtain a copy of the omitted material.
   7. Substitute one name for another when an organization or position is renamed.
   8. Correct a citation in the rule to another rule or law when the citation has become inaccurate since the rule was adopted because of the repeal or renumbering of the cited rule or law.
   9. Change information that is readily available to the public, such as an address, email address, a telephone number, or a Web site.
   10. Correct a typographical error.
2. Effect. - Revision of a rule by the Codifier of Rules under this section does not affect the effective date of the rule or require the agency to readopt or resubmit the rule. When the Codifier of Rules revises the form of a rule, the Codifier of Rules must send the agency that adopted the rule a copy of the revised rule. The revised rule is the official rule, unless the rule was revised under subdivision (a)(6) of this section to omit graphic material. When a rule is revised under that subdivision, the official rule is the published text of the rule plus the graphic material that was not published.

History

(1973, c. 1331, s. 1; 1979, c. 571, s. 1; 1981, c. 688, s. 14; 1983, c. 927, ss. 6, 9; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(1); c. 1028, s. 35; 1987, c. 285, s. 16; 1987 (Reg. Sess., 1988), c. 1111, s. 23; 1991, c. 418, s. 1; 1997-34, s. 6; 2013-143, s. 3; 2019-140, s. 1(b).)

Editor's Note. - Session Laws 2007-444, s. 5.5(a) and(b), provides: "(a) Wherever the name 'Division of Facility Services' appears in the North Carolina Administrative Code, the Codifier of Rules shall replace 'Division of Facility Services' with 'Division of Health Service Regulation.'

"(b) Wherever the name 'Health Services Commission' appears in the North Carolina Administrative Code, the Codifier of Rules shall replace 'Health Services Commission' with 'Commission for Public Health.'"

Session Laws 2014-115, s. 55.3(h), provides: "The Codifier of Rules shall make all necessary changes in nomenclature in Title 25 of the North Carolina Administrative Rules as follows:

"(1) To change the name of the Office of State Personnel to the Office of State Human Resources.

"(2) To change the name of the State Personnel Commission to the State Human Resources Commission.

"(3) To change the name of the Director of the Office of State Personnel to the Director of the Office of State Human Resources.

"(4) To change the name of the Office of State Personnel Director to the Office of State Human Resources Director.

"(5) Any other change consistent with this section."

Effect of Amendments. - Session Laws 2019-140, s. 1(b), effective July 19, 2019, deleted "form of" preceding "rules" from the catchline; substituted "a rule" for "the form of a rule submitted for inclusion in the North Carolina Administrative Code" in subsection (a); and added subdivisions (a)(7)-(a)(10).

§ 150B-21.21. Publication of rules of North Carolina State Bar, Building Code Council, and exempt agencies.

1. State Bar. - The North Carolina State Bar must submit a rule adopted or approved by it and entered in the minutes of the North Carolina Supreme Court to the Codifier of Rules for inclusion in the North Carolina Administrative Code. The State Bar must submit a rule within 30 days after it is entered in the minutes of the Supreme Court. The Codifier of Rules must compile, make available for public inspection, and publish a rule included in the North Carolina Administrative Code under this subsection in the same manner as other rules in the Code.
2. Building Code Council. - The Building Code Council shall publish the North Carolina State Building Code as provided in G.S. 143-138(g). The Codifier of Rules is not required to publish the North Carolina State Building Code in the North Carolina Administrative Code.
3. Exempt Agencies. - Notwithstanding any other provision of law, an agency that is exempted from this Article by G.S. 150B-1 or any other statute must submit a temporary or permanent rule adopted by it to the Codifier of Rules for inclusion in the North Carolina Administrative Code. These exempt agencies must submit a rule to the Codifier of Rules within 30 days after adopting the rule.
4. Publication. - A rule submitted to the Codifier of Rules under this section must be in the physical form specified by the Codifier of Rules. The Codifier of Rules must compile, make available for public inspection, and publish a rule submitted under this section in the same manner as other rules in the North Carolina Administrative Code.

History

(1991, c. 418, s. 1; 1997-34, s. 7; 2001-141, s. 7; 2011-398, s. 12.)

Effect of Amendments. - Session Laws 2011-398, s. 12, effective October 1, 2011, and applicable to rules adopted on or after that date, rewrote subsection (b).

§ 150B-21.22. Effect of inclusion in Code.

Official or judicial notice can be taken of a rule in the North Carolina Administrative Code and shall be taken when appropriate.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1991, c. 418, s. 1; 1997-34, s. 8.)

§ 150B-21.23: Repealed by Session Laws 2011-398, s. 13, effective October 1, 2011, and applicable to rules adopted on or after that date.

History

(1973, c. 1331, s. 1; 1979, c. 571, s. 1; 1981, c. 688, s. 14; 1983, c. 927, ss. 6, 9; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(1); c. 1028, s. 35; 1987, c. 285, s. 16; 1991, c. 418, s. 1; 1997-34, s. 9; repealed by 2011-398, s. 13, effective October 1, 2011, and applicable to rules adopted on or after that date.)

Editor's Note. - Former G.S. 150B-21.23 pertained to a manual for rule publication.

§ 150B-21.24. Access to Register and Code.

1. Register. - The Codifier of Rules shall make available the North Carolina Register on the Internet at no charge.
2. Code. - The Codifier of Rules shall make available the North Carolina Administrative Code on the Internet at no charge.

History

(1973, c. 1331, s. 1; c. 69, ss. 3, 7; c. 688, s. 1; 1979, c. 541, s. 2; 1979, 2nd Sess., c. 1266, ss. 1-3; 1981 (Reg. Sess., 1982), c. 1359, s. 6; 1983, c. 641, s. 6; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1003, s. 2; c. 1022, s. 1(1), (19); c. 1032, s. 12; 1987, c. 774, ss. 2-4; 1987 (Reg. Sess., 1988), c. 1111, s. 3; 1989, c. 500, s. 43(a); 1991, c. 418, s. 1; 2002-97, s. 1; 2011-145, s. 24.1.)

Effect of Amendments. - Session Laws 2011-145, s. 24.1, effective July 1, 2011, deleted the former last sentence of subsection (a), which read: "Upon request the Codifier shall provide a free copy of the current volume of the Register to any person who receives a free copy of the North Carolina Administrative Code or any member of the General Assembly"; deleted the former last sentence of subsection (b), which read: "The Codifier shall distribute copies of the North Carolina Administrative Code as soon after publication as practical, without charge, to the following"; and deleted subdivisions (b)(1) through (b)(9), which were the destinations of the aforementioned copies of the North Carolina Administrative Code.

Legal Periodicals. - For article, "A Powerless Judiciary? The North Carolina Courts' Perceptions of Review of Administrative Action," see 12 N.C. Cent. L.J. 21 (1980).

§ 150B-21.25. Paid copies of Register and Code.

A person who is not entitled to a free copy of the North Carolina Administrative Code or North Carolina Register may obtain a copy by paying a fee set by the Codifier of Rules. The Codifier must set separate fees for the North Carolina Register and the North Carolina Administrative Code in amounts that cover publication, copying, and mailing costs. All monies received under this section must be credited to the General Fund.

History

(1991, c. 418, s. 1.)

PART 5. RULES AFFECTING LOCAL GOVERNMENTS.

§ 150B-21.26. Office of State Budget and Management to conduct preliminary review of certain administrative rules.

1. Preliminary Review. -  At least 60 days before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would affect the expenditures or revenues of a unit of local government, the agency must submit all of the following to the Office of State Budget and Management for preliminary review:
   1. The text of the proposed rule change.
   2. A short explanation of the reason for the proposed change.
   3. A fiscal note stating the amount by which the proposed rule change would increase or decrease expenditures or revenues of a unit of local government and explaining how the amount was computed.
2. Scope. -  The preliminary review of a proposed permanent rule change that would affect the expenditures or revenues of a unit of local government shall include consideration of the following:
   1. The agency's explanation of the reason for the proposed change.
   2. Any unanticipated effects of the proposed change on local government budgets.
   3. The potential costs of the proposed change weighed against the potential risks to the public of not taking the proposed change.

History

(1995, c. 415, s. 3; c. 507, s. 27.8(w); 2011-398, s. 14.)

Editor's Note. - This Part was enacted by Session Laws 1995, c. 415, s. 3, as Part 4 of Article 2A. It has been renumbered as Part 5 at the direction of the Revisor of Statutes.

Session Laws 2014-4, s. 2(g), provides: "The Mining and Energy Commission, the Environmental Management Commission, and the Commission for Public Health are exempt from the provisions of Chapter 150B of the General Statutes that require that a certification be obtained from the Office of State Budget and Management, including requirements under G.S. 150B-19.1(h) and G.S. 150B-21.4, and any requirement for preliminary review by the Office of State Budget and Management pursuant to G.S. 150B-21.26, for any rule proposed for the creation of a modern regulatory program for the management of oil and gas exploration and development activities in the State, including the use of horizontal drilling and hydraulic fracturing for that purpose."

Effect of Amendments. - Session Laws 2011-398, s. 14, effective October 1, 2011, and applicable to rules adopted on or after that date, in the section catchline and in the introductory paragraph of subsection (a), substituted "Office of State Budget and Management" for "Governor"; in the introductory paragraph of subsection (a), substituted "60 days" for "30 days"; and in the introductory paragraph of subsection (b), deleted "Governor's" preceding "preliminary review."

§ 150B-21.27. Minimizing the effects of rules on local budgets.

In adopting permanent rules that would increase or decrease the expenditures or revenues of a unit of local government, the agency shall consider the timing for implementation of the proposed rule as part of the preparation of the fiscal note required by G.S. 150B-21.4(b). If the computation of costs in a fiscal note indicates that the proposed rule change will disrupt the budget process as set out in the Local Government Budget and Fiscal Control Act, Article 3 of Chapter 159 of the General Statutes, the agency shall specify the effective date of the change as July 1 following the date the change would otherwise become effective under G.S. 150B-21.3.

History

(1995, c. 415, s. 3; c. 507, s. 27.8(x).)

§ 150B-21.28. Role of the Office of State Budget and Management.

The Office of State Budget and Management shall:

1. Compile an annual summary of the projected fiscal impact on units of local government of State administrative rules adopted during the preceding fiscal year.
2. Compile from information provided by each agency schedules of anticipated rule actions for the upcoming fiscal year.
3. Provide the Governor, the General Assembly, the North Carolina Association of County Commissioners, and the North Carolina League of Municipalities with a copy of the annual summary and schedules by no later than March 1 of each year.

History

(1995, c. 415, s. 3; 2000-140, s. 93.1(a); 2001-424, s. 12.2(b).)

§ 150B-22. Settlement; contested case.

1. It is the policy of this State that any dispute between an agency and another person that involves the person's rights, duties, or privileges, including licensing or the levy of a monetary penalty, should be settled through informal procedures. In trying to reach a settlement through informal procedures, the agency may not conduct a proceeding at which sworn testimony is taken and witnesses may be cross-examined.
2. If the agency and the other person do not agree to a resolution of the dispute through informal procedures, either the agency or the person may commence an administrative proceeding to determine the person's rights, duties, or privileges, at which time the dispute becomes a "contested case." A party or person aggrieved shall not be required to petition an agency for rule making or to seek or obtain a declaratory ruling before commencing a contested case pursuant to G.S. 150B-23.

History

(1985 (Reg. Sess., 1986), c. 1022, s. 1(11); 1991, c. 418, s. 16; 2019-140, s. 2(a).)

Department of Health and Human Services Waiver Application. - Session Laws 2011-398, s. 55.1, provides: "Pursuant to 31 U.S.C. § 6504, the Department of Health and Human Services shall request a waiver from the single State agency requirement contained in 42 C.F.R. § 432.10(e)(3) with regard to final decisions in administrative hearings. The waiver application shall include the following:

"(1) The waiver request is made at the direction of the North Carolina General Assembly, which is responsible for the organizational structure of State government.

"(2) The single State agency requirement prevents the establishment of the most effective and efficient arrangement for providing administrative hearings to claimants because it requires that after a hearing and decision by an administrative law judge, the case must be returned to the agency for a final decision. The return to the agency is an unnecessary, time-consuming, and costly additional step.

"(3) The use of another State administrative hearings arrangement will not endanger the objectives of the law authorizing the Medicaid program because the administrative law judges will abide by the properly adopted policies, rules, and regulations of the State Medicaid agency in making final decisions."

Request to Administer Certain Environmental Protection Programs. - Session Laws 2011-398, s. 55.2, as amended by Session Laws 2012-187, s. 7.3, provides: "If necessary to effectuate the purposes of this act, the Office of Administrative Hearings shall seek United States Environmental Protection Agency approval to become an agency responsible for administering programs under the federal Clean Water Act, 33 U.S.C. § 1251 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. On or before December 31, 2011, the Office of Administrative Hearings and the Department of Environment and Natural Resources shall jointly develop and submit any Memoranda of Agreement, delineations of programmatic responsibility, procedure for coordination, and other information that United States Environmental Protection Agency may require in order to effectuate any necessary approval process."

Report on Mediation. - Session Laws 2011-398, s. 61.1, effective July 25, 2011, provides: "The Office of Administrative Hearings shall evaluate the use of mediated settlement conferences under G.S. 150B-23.1 and shall develop a plan to expand the use of mediation in the contested case process. The Office of Administrative Hearings shall report its findings and recommendations to the Joint Legislative Regulatory Reform Committee by February 1, 2012."

Appeal to State MH/DD/SA Appeals Panel. - Session Laws 2008-107, s. 10.15A(h1)-(h6), as amended and added to by Session Laws 2008-118, s. 3.13(a), (b), and as amended by Session Laws 2009-526, s. 2(a) and (b), Session Laws 2009-550, s. 1.1(a) and (b), and Session Laws 2010-31, s. 10.30(b), provides:

"(h1)(1) General Rule. - Notwithstanding any provision of State law or rules to the contrary, this subsection shall govern the process used by a Medicaid applicant or recipient to appeal a determination made by the Department of Health and Human Services to deny, terminate, suspend, or reduce Medicaid covered services. For purposes of this subsection, the phrase 'adverse determination' means a determination by the Department to deny, terminate, suspend, or reduce Medicaid covered services. For purposes of this subsection, all references to an applicant or recipient include the applicant or recipient's parent, guardian, or legal representative; however, notice need only be given to a parent, guardian, or legal representative who has requested in writing to receive the notice.

"(2) Notice. - Except as otherwise provided by federal law or regulation, at least 10 days before the effective date of an adverse determination, the Department shall notify the applicant or recipient, and the provider, if applicable, in writing of the determination and of the applicant's or recipient's right to appeal the determination. The notice shall be mailed on the date indicated on the notice as the date of the determination. The notice shall include:

"a. An identification of the applicant or recipient whose services are being affected by the adverse determination, including full name and Medicaid identification number.

"b. An explanation of what service is being denied, terminated, suspended, or reduced and the reason for the determination.

"c. The specific regulation, statute, or medical policy that supports or requires the adverse determination.

"d. The effective date of the adverse determination.

"e. An explanation of the applicant's or recipient's right to appeal the Department's adverse determination in an evidentiary hearing before an administrative law judge.

"f. An explanation of how the applicant or recipient can request a hearing and a statement that the applicant or recipient may represent himself or use legal counsel, a relative, or other spokesperson.

"g. A statement that the applicant or recipient will continue to receive Medicaid services at the level provided on the day immediately preceding the Department's adverse determination or the amount requested by the applicant or recipient, whichever is less, if the applicant or recipient requests a hearing before the effective date of the adverse determination. The services shall continue until the hearing is completed and a final decision is rendered.

"h. The name and telephone number of a contact person at the Department to respond in a timely fashion to the applicant's or recipient's questions.

"i. The telephone number by which the applicant or recipient may contact a Legal Aid/Legal Services office.

"j. The appeal request form described in subdivision (4) of this subsection that the applicant or recipient may use to request a hearing.

"(3) Appeals. - Except as provided by this subsection and subsection 10.15A(h2) of this act, a request for a hearing to appeal an adverse determination of the Department under this section is a contested case subject to the provisions of Article 3 of Chapter 150B of the General Statutes. The applicant or recipient must request a hearing within 30 days of the mailing of the notice required by subdivision (2) of this subsection by sending an appeal request form to the Office of Administrative Hearings and the Department. Where a request for hearing concerns the reduction, modification, or termination of Medicaid services, upon the receipt of a timely appeal, the Department shall reinstate the services to the level or manner prior to action by the Department as permitted by federal law or regulation. The Department shall immediately forward a copy of the notice to the Office of Administrative Hearings electronically. The information contained in the notice is confidential unless the recipient appeals. The Office of Administrative Hearings may dispose of the records after one year. The Department may not influence, limit, or interfere with the applicant's or recipient's decision to request a hearing.

"4. Appeal Request Form. - Along with the notice required by subdivision (2) of this subsection, the Department shall also provide the applicant or recipient with an appeal request form which shall be no more than one side of one page. The form shall include the following:

"a. A statement that in order to request an appeal, the applicant or recipient must send the form by mail or fax to the address or fax number listed on the form within 30 days of mailing of the notice.

"b. The applicant's or recipient's name, address, telephone number, and Medicaid identification number.

"c. A preprinted statement that indicates that the applicant or recipient would like to appeal the specific adverse determination of which the applicant or recipient was notified in the notice.

"d. A statement informing the applicant or recipient that he or she may choose to be represented by a lawyer, a relative, a friend, or other spokesperson.

"e. A space for the applicant's or recipient's signature and date.

"(5) Final Decision. - After a hearing before an administrative law judge, the judge shall return the decision and record to the Department in accordance with subsection 10.15A(h2) of this act. The Department shall make a final decision in the case within 20 days of receipt of the decision and record from the administrative law judge and promptly notify the applicant or recipient of the final decision and of the right to judicial review of the decision pursuant to Article 4 of Chapter 150B of the General Statutes.

"(h2)(1) Application. - This subsection applies only to contested Medicaid cases commenced by Medicaid applicants or recipients under subsection 10.15A(h1) of this act. Except as otherwise provided by subsection 10.15A(h1) and this subsection governing time lines and procedural steps, a contested Medicaid case commenced by a Medicaid applicant or recipient is subject to the provisions of Article 3 of Chapter 150B. To the extent any provision in this subsection or subsection 10.15A(h1) of this act conflicts with another provision in Article 3 of Chapter 150B, this subsection and subsection 10.15A(h1) controls.

"(2) Simple Procedures. - Notwithstanding any other provision of Article 3 of Chapter 150B of the General Statutes, the chief administrative law judge may limit and simplify the procedures that apply to a contested Medicaid case involving a Medicaid applicant or recipient in order to complete the case as quickly as possible. To the extent possible, the Office of Administrative Hearings shall schedule and hear all contested Medicaid cases within 55 days of submission of a request for appeal. Hearings shall be conducted telephonically or by video technology, however the recipient or applicant, or the recipient's or applicant's representative may request that the hearing be conducted before the administrative law judge in-person. An in-person hearing shall be conducted in Wake County, however for good cause shown, the in-person hearing may be conducted in the county of residence of the recipient or applicant. Good cause shall include but is not limited to the applicant's or recipient's impairments limiting travel or the unavailability of the applicant's or recipient's treating professional witnesses. The Department shall provide written notice to the recipient or applicant of the use of telephonic hearings, hearings by video conference, and in-person hearings before the administrative law judge, and how to request a hearing in the recipient's or applicant's county of residence. The simplified procedure may include requiring that all prehearing motions be considered and ruled on by the administrative law judge in the course of the hearing of the case on the merits. An administrative law judge assigned to a contested Medicaid case shall make reasonable efforts in a case involving a Medicaid applicant or recipient who is not represented by an attorney to assure a fair hearing and to maintain a complete record of the hearing. The administrative law judge may allow brief extensions of the time limits contained in this section for good cause and to ensure that the record is complete. Good cause includes delays resulting from untimely receipt of documentation needed to render a decision and other unavoidable and unforeseen circumstances. Continuances shall only be granted in accordance with rules adopted by the Office of Administrative Hearings, and shall not be granted on the day of the hearing, except for good cause shown. If a petitioner fails to make an appearance at a hearing that has been properly noticed via certified mail by the Office of Administrative Hearings, the Office of Administrative Hearings shall immediately dismiss the contested case provision.

"(3) Mediation. - Upon receipt of an appeal request form as provided by subdivision 10.15A(h1)(4) of this act or other clear request for a hearing by a Medicaid applicant or recipient, the Office of Administrative Hearings shall immediately notify the Mediation Network of North Carolina which shall within five days contact the petitioner to offer mediation in an attempt to resolve the dispute. If mediation is accepted, the mediation must be completed within 25 days of submission of the request for appeal. Upon completion of the mediation, the mediator shall inform the Office of Administrative Hearings and the Department within 24 hours of the resolution by facsimile or electronic messaging. If the parties have resolved matters in the mediation, the case shall be dismissed by the Office of Administrative Hearings. The Office of Administrative Hearings shall not conduct any contested Medicaid cases hearings until it has received notice from the mediator assigned that either: (i) the mediation was unsuccessful, or (ii) the petitioner has rejected the offer of mediation, or (iii) the petitioner has failed to appear at a scheduled mediation. Nothing in this subdivision shall restrict the right to a contested case hearing.

"(4) Burden of Proof. - The petitioner has the burden of proof to show entitlement to a requested benefit or the propriety of requested agency action when the agency has denied the benefit or refused to take the particular action. The agency has the burden of proof when the appeal is from an agency determination to impose a penalty or reduce, terminate, or suspend a benefit previously granted. The party with the burden of proof on any issue has the burden of going forward, and the administrative law judge shall not make any ruling on the preponderance of evidence until the close of all evidence.

"(4a) New Evidence. - The petitioner shall be permitted to submit evidence regardless of whether obtained prior to or subsequent to the Department's actions and regardless of whether the Department had an opportunity to consider the evidence in making its determination to deny, reduce, terminate or suspend a benefit. When such evidence is received, at the request of the Department, the administrative law judge shall continue the hearing for a minimum of 15 days and a maximum of 30 days to allow for the Department's review of the evidence. Subsequent to review of the evidence, if the Department reverses its original decision, it shall immediately inform the administrative law judge.

"(4b) Issue for Hearing. - For each penalty imposed or benefit reduced, terminated, or suspended, the hearing shall determine whether the Department substantially prejudiced the rights of the petitioner and if the Department, based upon evidence at the hearing:

"a. Exceeded its authority or jurisdiction;

"b. Acted erroneously;

"c. Failed to use proper procedure;

"d. Acted arbitrarily or capriciously; or,

"e. Failed to act as required by law or rule.

"(5) Decision. - The administrative law judge assigned to a contested Medicaid case shall hear and decide the case without unnecessary delay. The Office of Administrative Hearings shall send a copy of the audiotape or diskette of the hearing to the agency within five days of completion of the hearing. The judge shall prepare a written decision and send it to the parties. The decision must be sent together with the record to the agency within 20 days of the conclusion of the hearing.

"(h3) From funds available to the Department of Health and Human Services (Department) for the 2010-2011 fiscal year, the sum of one million dollars ($1,000,000) shall be transferred by the Department to the Office of Administrative Hearings (OAH). These funds shall be allocated by OAH for mediation services provided for Medicaid recipient appeals and to contract for other services necessary to conduct the appeals process. OAH shall continue the Memorandum of Agreement (MOA) with the Department for mediation services provided for Medicaid recipient appeals and contracted services necessary to conduct the appeals process. The MOA will facilitate the Department's ability to draw down federal Medicaid funds to support this administrative function. Upon receipt of invoices from OAH for covered services rendered in accordance with the MOA, the Department shall transfer the federal share of Medicaid funds drawn down for this purpose.

"(h4) Effective October 1, 2008, the Department of Health and Human Services shall discontinue its current informal appeals process for Medicaid applicants and recipients appealing a determination made by the Department to deny, terminate, suspend, or reduce Medicaid covered services. All such informal appeals by Medicaid applicants or recipients under the current system which are pending on that date and for which a hearing has not been held shall be discontinued and the applicant or recipient offered an opportunity to appeal to the Office of Administrative Hearings in accordance with the provisions of subsection 10.15A(h1) of this act. The Department shall make every effort to resolve or settle all of the backlogged cases prior to the effective date of this act.

"(h5) Nothing in this act shall prevent the Department of Health and Human Services from engaging in an informal review of the case with the applicant or recipient prior to issuing a notice of adverse determination as provided by subsection 10.15A(h1) of this act.

"(h6) The appeals process for Medicaid applicants and recipients established under this section shall expire July 1, 2010. The Department of Health and Human Services and the Office of Administrative Hearings shall each report to the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Subcommittee on Health and Human Services, the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, and the Fiscal Research Division on March 1, 2009, October 1, 2009, and March 1, 2010, on the costs, effectiveness, and efficiency of the appeals process for Medicaid applicants and recipients and make recommendations regarding the continuation of the process."

Community Support Providers Appeals Process. - Session Laws 2008-107, s. 10.15A(e1)-(e4), as amended by Session Laws 2009-526, s. 2(c), provides for administrative appeals by community support providers. See notes under G.S. 150B-1, 122C-115.4, and 122C-151.4.

Editor's Note. - Session Laws 2008-107, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2008.' "

Session Laws 2008-107, s. 30.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2008-2009 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2008-2009 fiscal year."

Session Laws 2008-107, s. 30.5, is a severability clause.

This chapter was amended by various sections in Session Laws 2011-398. 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."

Session Laws 2020-3, s. 1.1(a)-(d), provides: "(a) Interest Waiver. - As a result of the COVID-19 outbreak, the Secretary of Revenue has extended the franchise, corporate income, and individual income tax payment deadline from April 15, 2020, to July 15, 2020, and pursuant to G.S. 105-249.2, the Secretary will not assess a penalty for failure to file a return or pay a tax due as long as the return is filed and the tax due is paid by July 15, 2020. Notwithstanding G.S. 105-241.21(b), the Secretary of Revenue shall also waive the accrual of interest from April 15, 2020, through July 15, 2020, on an underpayment of tax imposed on a franchise, corporate income, or individual income tax return, including a partnership and estate and trust tax return, due from April 15, 2020, through July 15, 2020. The relief from accrual of interest from April 15, 2020, through July 15, 2020, also includes interest imposed pursuant to G.S. 105-163.15 and G.S. 105-163.41 for payments due on or before July 15, 2020.

"(b) Refund Request. - For franchise, corporate income, and individual income tax, the statute of limitations for obtaining a refund is extended to July 15, 2020, for refund claims for which the statute of limitations to seek a refund expires on or after April 15, 2020, and before July 15, 2020.

"(c) Time-Sensitive Actions. - Certain actions required to be taken by a taxpayer on or after April 1, 2020, and before July 15, 2020, will be considered timely if the request or petition is filed on or before July 15, 2020. This subsection applies to requests for Departmental review under G.S. 105-241.11, petitions for a contested case hearing at the Office of Administrative Hearings under Article 3 of Chapter 150B of the General Statutes and G.S. 105-241.15, and petitions for judicial review under Article 4 of Chapter 150B of the General Statutes and G.S. 105-241.16.

"(d) This section is effective when it becomes law." Session Laws 2020-3 became law on May 4, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2019-140, s. 2(a), effective July 19, 2019, designated the existing provisions as subsections (a) and (b), and added the last sentence to subsection (b).

Legal Periodicals. - For note on the Brownfields Property Reuse Act of 1997, see 78 N.C.L. Rev. 1015 (1998).

§ 150B-22.1. Special education petitions.

1. Notwithstanding any other provision of this Chapter, timelines and other procedural safeguards required to be provided under IDEA and Article 9 of Chapter 115C of the General Statutes must be followed in an impartial due process hearing initiated when a petition is filed under G.S. 115C-109.6 with the Office of Administrative Hearings.
2. The administrative law judge who conducts a hearing under G.S. 115C-109.6 shall not be a person who has a personal or professional interest that conflicts with the judge's objectivity in the hearing. Furthermore, the judge must possess knowledge of, and the ability to understand, IDEA and legal interpretations of IDEA by federal and State courts. The judges are encouraged to participate in training developed and provided by the State Board of Education under G.S. 115C-107.2(h)[(g)].
3. For the purpose of this section, the term "IDEA" means The Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1400, et seq., (2004), as amended, and its regulations.

History

(2006-69, s. 5.)

Editor's Note. - The bracketed reference, "[(g)]" in subsection (b), was added at the direction of the Revisor of Statutes as it appears to be the intended reference.

§ 150B-23. Commencement; assignment of administrative law judge; hearing required; notice; intervention.

1. A contested case shall be commenced by paying a fee in an amount established in G.S. 150B-23.2 and by filing a petition with the Office of Administrative Hearings and, except as provided in Article 3A of this Chapter, shall be conducted by that Office. The party who files the petition shall serve a copy of the petition on all other parties and, if the dispute concerns a license, the person who holds the license. A party who files a petition shall file a certificate of service together with the petition. A petition shall be signed by a party, an attorney representing a party, or other representative of the party as may specifically be authorized by law, and, if filed by a party other than an agency, shall state facts tending to establish that the agency named as the respondent has deprived the petitioner of property, has ordered the petitioner to pay a fine or civil penalty, or has otherwise substantially prejudiced the petitioner's rights and that the agency:
   1. Exceeded its authority or jurisdiction;
   2. Acted erroneously;
   3. Failed to use proper procedure;
   4. Acted arbitrarily or capriciously; or
   5. Failed to act as required by law or rule.
2. Repealed by Session Laws 1985 (Regular Session, 1986), c. 1022, s. 1(9).
3. An administrative law judge assigned to a contested case may require a party to the case to file a prehearing statement. A party's prehearing statement must be served on all other parties to the contested case.
4. A Medicaid or NC Health Choice enrollee, or the enrollee's authorized representative, who appeals a notice of resolution issued by a managed care entity under Chapter 108D of the General Statutes may commence a contested case under this Article in the same manner as any other petitioner. The case shall be conducted in the same manner as other contested cases initiated by Medicaid or NC Health Choice enrollees under this Article. Solely and only for the purposes of contested cases commenced pursuant to G.S. 108D-15 by enrollees of LME/MCOs to appeal a notice of resolution issued by the LME/MCO, an LME/MCO is considered an agency as defined in G.S. 150B-2(1a). The LME/MCO shall not be considered an agency for any other purpose. When a prepaid health plan, as defined in G.S. 108D-1, other than an LME/MCO, is under contract with the Department of Health and Human Services to issue notices of resolution under Article 2 of Chapter 108D of the General Statutes, then solely and only for the purposes of contested cases commenced pursuant to G.S. 108D-15 to appeal a notice of resolution issued by the prepaid health plan, the prepaid health plan shall be considered an agency as defined in G.S. 150B-2(1a). The prepaid health plan shall not be considered an agency for any other purpose.
5. If an agency fails to take any required action within the time period specified by law, any person whose rights are substantially prejudiced by the agency's failure to act may commence a contested case in accordance with this section seeking an order that the agency act as required by law. If the administrative law judge finds that the agency has failed to act as required by law, the administrative law judge may order that the agency take the required action within a specified time period.
6. A county that appeals a decision of the Department of Health and Human Services to temporarily assume Medicaid eligibility administration in accordance with G.S. 108A-70.42 or G.S. 108A-70.50 may commence a contested case under this Article in the same manner as any other petitioner. The case shall be conducted in the same manner as other contested cases under this Article.
7. The parties to a contested case shall be given a notice of hearing not less than 15 days before the hearing by the Office of Administrative Hearings. If prehearing statements have been filed in the case, the notice shall state the date, hour, and place of the hearing.  If prehearing statements have not been filed in the case, the notice shall state the date, hour, place, and nature of the hearing, shall list the particular sections of the statutes and rules involved, and shall give a short and plain statement of the factual allegations.
8. Notice shall be given by one of the methods for service of process under G.S. 1A-1, Rule 4(j) or Rule 4(j3). If given by registered or certified mail, by signature confirmation as provided by the United States Postal Service, or by designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, notice shall be deemed to have been given on the delivery date appearing on the return receipt, copy of the proof of delivery provided by the United States Postal Service, or delivery receipt. If giving of notice cannot be accomplished by a method under G.S. 1A-1, Rule 4(j) or Rule 4(j3), notice shall then be given in the manner provided in G.S. 1A-1, Rule 4(j1).
9. Any person may petition to become a party by filing a motion to intervene in the manner provided in G.S. 1A-1, Rule 24. In addition, any person interested in a contested case may intervene and participate in that proceeding to the extent deemed appropriate by the administrative law judge.
10. All hearings under this Chapter shall be open to the public. Hearings shall be conducted in an impartial manner. Hearings shall be conducted according to the procedures set out in this Article, except to the extent and in the particulars that specific hearing procedures and time standards are governed by another statute.
11. Unless another statute or a federal statute or regulation sets a time limitation for the filing of a petition in contested cases against a specified agency, the general limitation for the filing of a petition in a contested case is 60 days. The time limitation, whether established by another statute, federal statute, or federal regulation, or this section, shall commence when notice is given of the agency decision to all persons aggrieved who are known to the agency by personal delivery, electronic delivery, or by the placing of the notice in an official depository of the United States Postal Service wrapped in a wrapper addressed to the person at the latest address given by the person to the agency. The notice shall be in writing, and shall set forth the agency action, and shall inform the persons of the right, the procedure, and the time limit to file a contested case petition. When no informal settlement request has been received by the agency prior to issuance of the notice, any subsequent informal settlement request shall not suspend the time limitation for the filing of a petition for a contested case hearing. When the Chief Justice of the North Carolina Supreme Court determines and declares that catastrophic conditions exist or have existed in one or more counties of the State and issues an order pursuant to G.S. 7A-39(b), the chief administrative law judge may by order entered pursuant to this subsection extend, to a date certain no fewer than 10 days after the effective date of the order, the time or period of limitation, whether established by another statute or this section, for the filing of a petition for a contested case. The order shall be in writing and shall become effective for each affected county upon the date set forth in the order, and if no date is set forth in the order, then upon the date the order is signed by the chief administrative law judge. The order shall provide that it shall expire upon the expiration of the Chief Justice's order.
12. Where multiple licenses are required from an agency for a single activity, the Secretary or chief administrative officer of the agency may issue a written determination that the administrative decision reviewable under Article 3 of this Chapter occurs on the date the last license for the activity is issued, denied, or otherwise disposed of. The written determination of the administrative decision is not reviewable under this Article. Any licenses issued for the activity prior to the date of the last license identified in the written determination are not reviewable under this Article until the last license for the activity is issued, denied, or otherwise disposed of. A contested case challenging the last license decision for the activity may include challenges to agency decisions on any of the previous licenses required for the activity.

The parties in a contested case shall be given an opportunity for a hearing without undue delay. Any person aggrieved may commence a contested case hereunder.

A local government employee, applicant for employment, or former employee to whom Chapter 126 of the General Statutes applies may commence a contested case under this Article in the same manner as any other petitioner. The case shall be conducted in the same manner as other contested cases under this Article.

A business entity may represent itself using a nonattorney representative who is one or more of the following of the business entity: (i) officer, (ii) manager or member-manager, if the business entity is a limited liability company, (iii) employee whose income is reported on IRS Form W-2, if the business entity authorizes the representation in writing, or (iv) owner of the business entity, if the business entity authorizes the representation in writing and if the owner's interest in the business entity is at least twenty-five percent (25%). Authority for and prior notice of nonattorney representation shall be made in writing, under penalty of perjury, to the Office on a form provided by the Office.

History

(1973, c. 1331, s. 1; 1975, 2nd Sess., c. 983, s. 65; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, ss. 1(9), (10), 6(2), (3); 1987, c. 878, ss. 3-5; c. 879, s. 6.1; 1987 (Reg. Sess., 1988), c. 1111, s. 5; 1991, c. 35, s. 1; 1993 (Reg. Sess., 1994), c. 572, s. 2; 2009-451, s. 21A.1(a); 2011-332, s. 2.1; 2011-398, s. 16; 2012-187, s. 6; 2013-397, s. 4; 2014-120, ss. 7(a), 48, 59(a); 2016-94, s. 12H.17(c); 2017-57, s. 11H.22(d); 2018-114, s. 1; 2019-81, s. 11; 2020-3, s. 4.26(a).)

Editor's Note. - Session Laws 2011-398, s. 62, is a severability clause.

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." Session Laws 2011-398, s. 16 rewrote the last paragraph of subsection (a) of this section. For Section 55.2, see editor's note under G.S. 150B-34.

Session Laws 2016-94, s. 12H.17(d), effective January 1, 2017, provides: "The corrective action procedures described in this section supersede the corrective action procedures in 10A NCAC 23C .0204 and 10A NCAC 23C .0205 related to timeliness processing of Medicaid applications by county departments of social services."

Session Laws 2016-94, s. 12H.17(e), effective July 1, 2016, provides: "The Department of Health and Human Services may adopt and amend rules to implement subsections (b) through (d) of this section."

Session Laws 2016-94, s. 12H.17(f), made subsection (a5), as enacted by Session Laws 2016-94, s. 12H.17(c), effective January 1, 2017, and applicable to monthly timely processing standards beginning on that date.

Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"

Session Laws 2016-94, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year."

Session Laws 2016-94, s. 39.7, is a severability clause.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2009-451, s. 21A.1(a), effective October 1, 2009, and applicable to contested cases filed on and after that date, inserted "paying a fee in an amount established in G.S. 150B-23.2 and by" in the first sentence of the introductory language of subsection (a).

Session Laws 2011-332, s. 2.1, effective October 1, 2011, and applicable to notices given on or after that date, rewrote subsection (c).

Session Laws 2014-120, s. 7(a), effective September 18, 2014, added the third undesignated paragraph to subsection (a). See Editor's note for applicability.

Session Laws 2014-120, s. 48, effective September 18, 2014, added subsection (g).

Session Laws 2014-120, s. 59(a), effective September 18, 2014, added subsection (a4).

Session Laws 2016-94, s. 12H.17(c), effective January 1, 2017, added subsection (a5). See editor's note for effective date and applicability.

Session Laws 2017-57, s. 11H.22(d), effective June 28, 2017, substituted "G.S. 108A-70.42 or G.S. 108A-70.50" for "G.S. 108A-70.37" in subsection (a5).

Session Laws 2018-114, s. 1, effective June 27, 2018, inserted ", electronic delivery," in the second sentence of subsection (f).

Session Laws 2019-81, s. 11, effective October 1, 2019, rewrote subsection (a3).

Session Laws 2020-3, s. 4.26(a), effective retroactively to March 10, 2020, added the last three sentences in subsection (f).

Legal Periodicals. - For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For survey of 1976 case law dealing with administrative law, see 55 N.C.L. Rev. 898 (1977).

For article, "Advisory Rulings by Administrative Agencies: Their Benefits and Dangers," see 2 Campbell L. Rev. 1 (1980).

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1017 (1981).

For survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

§ 150B-23.1. Mediated settlement conferences.

1. Purpose. - This section authorizes a mediation program in the Office of Administrative Hearings in which the chief administrative law judge may require the parties in a contested case to attend a prehearing settlement conference conducted by a mediator. The purpose of the program is to determine whether a system of mediated settlement conferences may make the operation of the Office of Administrative Hearings more efficient, less costly, and more satisfying to the parties.
2. Definitions. - The following definitions apply in this section:
   1. Mediated settlement conference. - A conference ordered by the chief administrative law judge involving the parties to a contested case and conducted by a mediator prior to a contested case hearing.
   2. Mediator. - A neutral person who acts to encourage and facilitate a resolution of a contested case but who does not make a decision on the merits of the contested case.
3. Conference. - The chief administrative law judge may order a mediated settlement conference for all or any part of a contested case to which an administrative law judge is assigned to preside. All aspects of the mediated settlement conference shall be conducted insofar as possible in accordance with the rules adopted by the Supreme Court for the court-ordered mediation pilot program under G.S. 7A-38.
4. Attendance. - The parties to a contested case in which a mediated settlement conference is ordered, their attorneys, and other persons having authority to settle the parties' claims shall attend the settlement conference unless excused by the presiding administrative law judge.
5. Mediator. - The parties shall have the right to stipulate to a mediator. Upon the failure of the parties to agree within a time limit established by the presiding administrative law judge, a mediator shall be appointed by the presiding administrative law judge.
6. Sanctions. - Upon failure of a party or a party's attorney to attend a mediated settlement conference ordered under this section, the presiding administrative law judge may impose any sanction authorized by G.S. 150B-33(b)(8) or (10).
7. Standards. - Mediators authorized to conduct mediated settlement conferences under this section shall comply with the standards adopted by the Supreme Court for the court-ordered mediation pilot program under G.S. 7A-38.
8. Immunity. - A mediator acting pursuant to this section shall have judicial immunity in the same manner and to the same extent as a judge of the General Court of Justice.
9. Costs. - Costs of a mediated settlement conference shall be paid one share by the petitioner, one share by the respondent, and an equal share by any intervenor, unless otherwise apportioned by the administrative law judge.
10. Inadmissibility of Negotiations. - All conduct or communications made during a mediated settlement conference are presumed to be made in compromise negotiations and shall be governed by Rule 408 of the North Carolina Rules of Evidence.
11. Right to Hearing. - Nothing in this section restricts the right to a contested case hearing.

History

(1993, c. 321, s. 25(b); c. 363, ss. 1, 3; 1995, c. 145, s. 1.)

Editor's Note. - Section 7A-38, referred to in this section, was repealed by Session Laws, 1995, c. 500, s. 3.

Legal Periodicals. - For comment, "Good Faith Mediation: Improving Efficiency, Cost, and Satisfaction in North Carolina's Pre-Trial Process," see 18 Campbell L. Rev. 281 (1996).

§ 150B-23.2. Fee for filing a contested case hearing.

1. Filing Fee. - In every contested case commenced in the Office of Administrative Hearings by a person aggrieved, the petitioner shall pay a filing fee, and the administrative law judge shall have the authority to assess that filing fee against the losing party, in the amount of one hundred twenty-five dollars ($125.00), unless the Office of Administrative Hearings establishes a lesser filing fee by rule.
2. Time of Collection. - All fees that are required to be assessed, collected, and remitted under subsection (a) of this section shall be collected by the Office of Administrative Hearings at the time of commencement of the contested case except as may be allowed by rule to permit or complete late payment or in suits in forma pauperis.
3. Forms of Payment. - The Office of Administrative Hearings may by rule provide for the acceptable forms for payment and transmission of the filing fee.
4. Waiver or Refund. - The Office of Administrative Hearings shall by rule provide for the fee to be waived in a contested case in which the petition is filed in forma pauperis and supported by such proofs as are required in G.S. 1-110 and in a contested case involving a mandated federal cause of action. The Office of Administrative Hearings shall by rule provide for the fee to be refunded in a contested case in which the losing party is the State.

History

(2009-451, s. 21A.1(b); 2012-187, s. 5; 2015-264, s. 24.)

Effect of Amendments. - Session Laws 2015-264, s. 24, effective October 1, 2015, substituted "Waiver" for "Wavier" in the subsection (d) heading.

§ 150B-23.3. Electronic filing.

In addition to any other method specified in G.S. 150B-23, documents filed and served in a contested case may be filed and served electronically by means of an Electronic Filing Service Provider. For purposes of this section, the following definitions apply:

1. "Electronic filing" means the electronic transmission of the petition, notice of hearing, pleadings, or any other documents filed in a contested case with the Office of Administrative Hearings, as further defined by rules adopted by the Office of Administrative Hearings.
2. "Electronic Filing Service Provider (EFSP)" means the service provided by the Office of Administrative Hearings for e-filing and e-service of documents via the Internet.
3. "Electronic service" means the electronic transmission of the petition, notice of hearing, pleadings, or any other documents in a contested case, as further defined by rules adopted by the Office of Administrative Hearings.

History

(2014-120, s. 5(a).)

Editor's Note. - Pursuant to the direction of the Revisor of Statutes, quotation marks were added to the definitions in subdivisions (1) through (3).

§ 150B-24. Venue of hearing.

1. The hearing of a contested case shall be conducted:
   1. In the county in this State in which any person whose property or rights are the subject matter of the hearing maintains his residence;
   2. In the county where the agency maintains its principal office if the property or rights that are the subject matter of the hearing do not affect any person or if the subject matter of the hearing is the property or rights of residents of more than one county; or
   3. In any county determined by the administrative law judge in his discretion to promote the ends of justice or better serve the convenience of witnesses.
2. Any person whose property or rights are the subject matter of the hearing waives his objection to venue by proceeding in the hearing.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878, s. 6.)

Legal Periodicals. - For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

§ 150B-25. Conduct of hearing; answer.

1. If a party fails to appear in a contested case after proper service of notice, and if no adjournment or continuance is granted, the administrative law judge may proceed with the hearing in the absence of the party.
2. Repealed by Session Laws 1991, c. 35, s. 2.
3. The parties shall be given an opportunity to present arguments on issues of law and policy and an opportunity to present evidence on issues of fact.
4. A party may cross-examine any witness, including the author of a document prepared by, on behalf of, or for use of the agency and offered in evidence. Any party may submit rebuttal evidence.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(13); 1987, c. 878, s. 6; 1991, c. 35, s. 2.)

Legal Periodicals. - For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For article, "Advisory Rulings by Administrative Agencies: Their Benefits and Dangers," see 2 Campbell L. Rev. 1 (1980).

§ 150B-25.1. Burden of proof.

1. Except as otherwise provided by law or by this section, the petitioner in a contested case has the burden of proving the facts alleged in the petition by a preponderance of the evidence.
2. In a contested case involving the imposition of civil fines or penalties by a State agency for violation of the law, the burden of showing by clear and convincing evidence that the person who was fined actually committed the act for which the fine or penalty was imposed rests with the State agency.
3. The burden of showing by a preponderance of the evidence that a career State employee subject to Chapter 126 of the General Statutes was discharged, suspended, or demoted for just cause rests with the agency employer.

History

(2015-286, s. 1.2(a).)

Editor's Note. - Session Laws 2015-286, s. 1.2(c), made this section effective October 22, 2015, and applicable to contested cases commenced on or after that date.

Session Laws 2015-286, s. 1.2(b), provides: "The Joint Legislative Administrative Procedure Oversight Committee shall study whether there are other categories of contested cases in which the burden of proof should be placed with the agency."

Session Laws 2015-286, s. 5.1 is a severability clause.

§ 150B-26. Consolidation.

When contested cases involving a common question of law or fact or multiple proceedings involving the same or related parties are pending, the Director of the Office of Administrative Hearings may order a joint hearing of any matters at issue in the cases, order the cases consolidated, or make other orders to reduce costs or delay in the proceedings.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1985, (Reg. Sess., 1986), c. 1022, s. 1(1), 1(14).)

Legal Periodicals. - For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

§ 150B-27. Subpoena.

After the commencement of a contested case, subpoenas may be issued and served in accordance with G.S. 1A-1, Rule 45. In addition to the methods of service in G.S. 1A-1, Rule 45, a State law enforcement officer may serve a subpoena on behalf of an agency that is a party to the contested case by any method by which a sheriff may serve a subpoena under that Rule. Upon a motion, the administrative law judge may quash a subpoena if, upon a hearing, the administrative law judge finds that the evidence the production of which is required does not relate to a matter in issue, the subpoena does not describe with sufficient particularity the evidence the production of which is required, or for any other reason sufficient in law the subpoena may be quashed.

Witness fees shall be paid by the party requesting the subpoena to subpoenaed witnesses in accordance with G.S. 7A-314. However, State officials or employees who are subpoenaed shall not be entitled to witness fees, but they shall receive their normal salary and they shall not be required to take any annual leave for the witness days. Travel expenses of State officials or employees who are subpoenaed shall be reimbursed as provided in G.S. 138-6.

History

(1973, c. 1331, s. 1; 1975, 2nd Sess., c. 983, s. 66; 1985, c. 746, s. 1; 1987, c. 878, s. 6; 1991, c. 35, s. 3.)

Legal Periodicals. - For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

§ 150B-28. Depositions and discovery.

1. A deposition may be used in lieu of other evidence when taken in compliance with the Rules of Civil Procedure, G.S. 1A-1. Parties in contested cases may engage in discovery pursuant to the provisions of the Rules of Civil Procedure, G.S. 1A-1.
2. Repealed by Session Laws 2007-491, s. 2, effective January 1, 2008.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 2007-491, s. 2.)

Effect of Amendments. - Session Laws 2007-491, s. 2, effective January 1, 2008, deleted former subsection (b) which read: "On a request for identifiable agency records, with respect to material facts involved in a contested case, except records related solely to the internal procedures of the agency or which are exempt from disclosure by law, an agency shall promptly make the records available to a party."

§ 150B-29. Rules of evidence.

1. In all contested cases, irrelevant, immaterial and unduly repetitious evidence shall be excluded. Except as otherwise provided, the rules of evidence as applied in the trial division of the General Court of Justice shall be followed; but, when evidence is not reasonably available under the rules to show relevant facts, then the most reliable and substantial evidence available shall be admitted. On the judge's own motion, an administrative law judge may exclude evidence that is inadmissible under this section. The party with the burden of proof in a contested case must establish the facts required by G.S. 150B-23(a) by a preponderance of the evidence. It shall not be necessary for a party or his attorney to object at the hearing to evidence in order to preserve the right to object to its consideration by the administrative law judge in making a decision or by the court on judicial review.
2. Evidence in a contested case, including records and documents, shall be offered and made a part of the record. Factual information or evidence not made a part of the record shall not be considered in the determination of the case, except as permitted under G.S. 150B-30. Documentary evidence may be received in the form of a copy or excerpt or may be incorporated by reference, if the materials so incorporated are available for examination by the parties. Upon timely request, a party shall be given an opportunity to compare the copy with the original if available.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878, s. 7; 1991, c. 35, s. 4; 2000-190, s. 4; 2012-187, s. 7.1.)

Legal Periodicals. - For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For article, "A Powerless Judiciary? The North Carolina Courts' Perceptions of Review of Administrative Action," see 12 N.C. Cent. L.J. 21 (1980).

For article, "Administrative Justice: No Longer Just a Recommendation," see 79 N.C.L. Rev. 1639 (2001).

§ 150B-30. Official notice.

Official notice may be taken of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the agency. The noticed fact and its source shall be stated and made known to affected parties at the earliest practicable time, and any party shall on timely request be afforded an opportunity to dispute the noticed fact through submission of evidence and argument.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1.)

Legal Periodicals. - For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For article, "A Powerless Judiciary? The North Carolina Courts' Perceptions of Review of Administrative Action," see 12 N.C. Cent. L.J. 21 (1980).

For article, "Administrative Justice: No Longer Just a Recommendation," see 79 N.C.L. Rev. 1639 (2001).

For article, "What Were We Thinking?: Legislative Intent and the 2000 Amendments to the North Carolina APA," see 79 N.C.L. Rev. 1657 (2001).

§ 150B-31. Stipulations.

1. The parties in a contested case may, by a stipulation in writing filed with the administrative law judge, agree upon any fact involved in the controversy, which stipulation shall be used as evidence at the hearing and be binding on the parties thereto. Parties should agree upon facts when practicable.
2. Except as otherwise provided by law, disposition may be made of a contested case by stipulation, agreed settlement, consent order, waiver, default, or other method agreed upon by the parties.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878, s. 6.)

§ 150B-31.1. Contested tax cases.

1. Application. - This section applies only to contested tax cases. A contested tax case is a case involving a disputed tax matter arising under G.S. 105-241.15. To the extent any provision in this section conflicts with another provision in this Article, this section controls.
2. Simple Procedures. - The Chief Administrative Law Judge may limit and simplify the procedures that apply to a contested tax case involving a taxpayer who is not represented by an attorney. An administrative law judge assigned to a contested tax case must make reasonable efforts to assist a taxpayer who is not represented by an attorney in order to assure a fair hearing.
3. Venue. - A hearing in a contested tax case must be conducted in Wake County, unless the parties agree to hear the case in another county.
4. Reports. - The following agency reports are admissible without testimony from personnel of the agency:
   1. Law enforcement reports.
   2. Government agency lab reports used for the enforcement of motor fuel tax laws.
5. Confidentiality. - The record, proceedings, and decision in a contested tax case are confidential until the final decision is issued in the case.

History

(2007-491, s. 42; 2008-134, s. 9.)

Editor's Note. - Session Laws 2007-491, s. 47, made this section effective January 1, 2008.

Effect of Amendments. - Session Laws 2008-134, s. 9, effective July 28, 2008, rewrote subsection (d).

§ 150B-32. Designation of administrative law judge.

1. The Director of the Office of Administrative Hearings shall assign himself or another administrative law judge to preside over a contested case.
2. Repealed by Sessions Laws 1985 (Regular Session, 1986), c. 1022, s. 1(15).
3. On the filing in good faith by a party of a timely and sufficient affidavit of personal bias or disqualification of an administrative law judge, the administrative law judge shall determine the matter as a part of the record in the case, and this determination shall be subject to judicial review at the conclusion of the proceeding.
4. When an administrative law judge is disqualified or it is impracticable for him to continue the hearing, the Director shall assign another administrative law judge to continue with the case unless it is shown that substantial prejudice to any party will result, in which event a new hearing shall be held or the case dismissed without prejudice.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(1), 1(12), 1(15); c. 1028, s. 40; 1987, c. 878, s. 8.)

Legal Periodicals. - For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For article, "Lead Us Not into Temptation: Should Attorneys Who Contract to Provide Administrative Adjudication Services Be Insulated from Those Who Compensate Them?," see 68 Duke L.J. 24 (2019).

For article, "Judicial Ethics: Ethics and Judicial Independence in an Executive Branch Judiciary," see 68 Duke L.J. 40 (2019).

§ 150B-33. Powers of administrative law judge.

1. An administrative law judge shall stay any contested case under this Article on motion of an agency which is a party to the contested case, if the agency shows by supporting affidavits that it is engaged in other litigation or administrative proceedings, by whatever name called, with or before a federal agency, and this other litigation or administrative proceedings will determine the position, in whole or in part, of the agency in the contested case. At the conclusion of the other litigation or administrative proceedings, the contested case shall proceed and be determined as expeditiously as possible.
2. An administrative law judge may:
   1. Administer oaths and affirmations;
   2. Sign, issue, and rule on subpoenas in accordance with G.S. 150B-27 and G.S. 1A-1, Rule 45;
   3. Provide for the taking of testimony by deposition and rule on all objections to discovery in accordance with G.S. 1A-1, the Rules of Civil Procedure;
   4. Rule on all prehearing motions that are authorized by G.S. 1A-1, the Rules of Civil Procedure;
   5. Regulate the course of the hearings, including discovery, set the time and place for continued hearings, and fix the time for filing of briefs and other documents;
   6. Direct the parties to appear and confer to consider simplification of the issues by consent of the parties;
   7. Stay the contested action by the agency pending the outcome of the case, upon such terms as he deems proper, and subject to the provisions of G.S. 1A-1, Rule 65;
   8. Determine whether the hearing shall be recorded by a stenographer or by an electronic device; and
   9. Enter an order returnable in the General Court of Justice, Superior Court Division, to show cause why the person should not be held in contempt. The Court shall have the power to impose punishment as for contempt for any act which would constitute direct or indirect contempt if the act occurred in an action pending in Superior Court.
   10. Determine that a rule as applied in a particular case is void because (1) it is not within the statutory authority of the agency, (2) is not clear and unambiguous to persons it is intended to direct, guide, or assist, or (3) is not reasonably necessary to enable the agency to fulfill a duty delegated to it by the General Assembly.
   11. Impose the sanctions provided for in G.S. 1A-1 or Chapter 3 of Title 26 of the North Carolina Administrative Code for noncompliance with applicable procedural rules.
   12. Order the assessment of reasonable attorneys' fees and witnesses' fees against the State agency involved in contested cases decided under this Article where the administrative law judge finds that the State agency named as respondent has substantially prejudiced the petitioner's rights and has acted arbitrarily or capriciously or under Chapter 126 where the administrative law judge finds discrimination, harassment, or orders reinstatement or back pay.
   13. Repealed by Session Laws 2011-398, s. 17. For effective date and applicability, see editor's note.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878, ss. 5, 9, 10, 26; 1987 (Reg. Sess., 1988), c. 1111, ss. 18, 19; 1991, c. 35, s. 5; 2000-190, s. 5; 2004-156, s. 4; 2011-398, s. 17; 2012-187, s. 7.2.)

Editor's Note. - Session Laws 2011-398, s. 62, is a severability clause.

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.

Effect of Amendments. - Session Laws 2011-398, s. 17, deleted subdivision (b)(12), which pertained to the acceptance of a remanded case from an agency. For effective date and applicability, see editor's note.

Legal Periodicals. - For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For article, "Powers of Administrative Law Judges, Agencies, and Courts: An Analytical and Empirical Assessment," see 79 N.C.L. Rev. 1571 (2001).

§ 150B-34. Final decision or order.

1. In each contested case the administrative law judge shall make a final decision or order that contains findings of fact and conclusions of law. The administrative law judge shall decide the case based upon the preponderance of the evidence, giving due regard to the demonstrated knowledge and expertise of the agency with respect to facts and inferences within the specialized knowledge of the agency.
2. Repealed by Session Laws 1991, c. 35, s. 6.
3. Repealed by Session Laws 2011-398, s. 18. For effective date and applicability, see editor's note.
4. Except for the exemptions contained in G.S. 150B-1, the provisions of this section regarding the decision of the administrative law judge shall apply only to agencies subject to Article 3 of this Chapter, notwithstanding any other provisions to the contrary relating to recommended decisions by administrative law judges.
5. An administrative law judge may grant judgment on the pleadings, pursuant to a motion made in accordance with G.S. 1A-1, Rule 12(c), or summary judgment, pursuant to a motion made in accordance with G.S. 1A-1, Rule 56, that disposes of all issues in the contested case. Notwithstanding subsection (a) of this section, a decision granting a motion for judgment on the pleadings or summary judgment need not include findings of fact or conclusions of law, except as determined by the administrative law judge to be required or allowed by G.S. 1A-1, Rule 12(c), or Rule 56.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878, ss. 5, 23; 1987 (Reg. Sess., 1988), c. 1111, s. 21; 1991, c. 35, s. 6; 2000-190, s. 6; 2011-398, s. 18.)

Department of Health and Human Services Waiver Application. - Session Laws 2011-398, s. 55.1, provides: "Pursuant to 31 U.S.C. § 6504, the Department of Health and Human Services shall request a waiver from the single State agency requirement contained in 42 C.F.R. § 432.10(e)(3) with regard to final decisions in administrative hearings. The waiver application shall include the following:

"(1) The waiver request is made at the direction of the North Carolina General Assembly, which is responsible for the organizational structure of State government.

"(2) The single State agency requirement prevents the establishment of the most effective and efficient arrangement for providing administrative hearings to claimants because it requires that after a hearing and decision by an administrative law judge, the case must be returned to the agency for a final decision. The return to the agency is an unnecessary, time-consuming, and costly additional step.

"(3) The use of another State administrative hearings arrangement will not endanger the objectives of the law authorizing the Medicaid program because the administrative law judges will abide by the properly adopted policies, rules, and regulations of the State Medicaid agency in making final decisions."

Request to Administer Certain Environmental Protection Programs. - Session Laws 2011-398, s. 55.2, as amended by Session Laws 2012-187, s. 7.3, provides: "If necessary to effectuate the purposes of this act, the Office of Administrative Hearings shall seek United States Environmental Protection Agency approval to become an agency responsible for administering programs under the federal Clean Water Act, 33 U.S.C. § 1251 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. On or before December 31, 2011, the Office of Administrative Hearings and the Department of Environment and Natural Resources shall jointly develop and submit any Memoranda of Agreement, delineations of programmatic responsibility, procedure for coordination, and other information that United States Environmental Protection Agency may require in order to effectuate any necessary approval process."

Session Laws 2005-276, s. 10.40(B)(a), expiring 30 days from the date of the Department's decision on the new certificate of need or adjournment sine die of the 2005 General Assembly, whichever occurs later, provides: "Notwithstanding provisions to the contrary in Chapter 150B and Article 9 of Chapter 131E of the General Statutes, a licensed health care facility in operation on July 1, 2005, under a certificate of need issued by the Department of Health and Human Services prior to that date and subsequently invalidated based on a procedural defect in the awarding of the certificate of need, may remain in operation for the purpose of applying for a new certificate of need in accordance with Article 9 of Chapter 131E of the General Statutes. The health care facility may remain in operation for the period pending the decision of the Department on the application for the new certificate of need."

Session Laws 2005-276, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2005'."

Session Laws 2005-276, s. 46.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium."

Session Laws 2005-276, s. 46.5 is a severability clause.

Editor's Note. - Session Laws 2011-398, s. 62, is a severability clause.

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."

Effect of Amendments. - Session Laws 2011-398, s. 18, rewrote the section. For effective date and applicability, see editor's note.

Legal Periodicals. - For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For article, "Advisory Rulings by Administrative Agencies: Their Benefits and Dangers," see 2 Campbell L. Rev. 1 (1980).

For article, "Administrative Justice: No Longer Just a Recommendation," see 79 N.C.L. Rev. 1639 (2001).

For article, "What Were We Thinking?: Legislative Intent and the 2000 Amendments to the North Carolina APA," see 79 N.C.L. Rev. 1657 (2001).

§ 150B-35. No ex parte communication; exceptions.

Unless required for disposition of an ex parte matter authorized by law, the administrative law judge assigned to a contested case may not communicate, directly or indirectly, in connection with any issue of fact, or question of law, with any person or party or his representative, except on notice and opportunity for all parties to participate.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878, s. 11; 2011-398, s. 19.)

Editor's Note. - Session Laws 2011-398, s. 62, is a severability clause.

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.

Effect of Amendments. - Session Laws 2011-398, s. 19, deleted "neither" preceding "the administrative law judge" and "nor a member or employee of the agency making a final decision in the case" following "contested case," and substituted "may not communicate" for "may communicate." For effective date and applicability, see editor's note.

§ 150B-36: Repealed by Session Laws 2011-398, s. 20. For effective date and applicability, see editor's note.

History

(1973, c. 1331, s. 1; 1975, 2nd Sess., c. 983, s. 67; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(16); 1987, c. 878, ss. 12, 24; 1987 (Reg. Sess., 1988), c. 1111, s. 20; 1991, c. 35, s. 7; 2000-190, s. 7; 2009-51, s. 1; 2011-332, s. 2.2; repealed by 2011-398, s. 20.)

Editor's Note. - Former G.S. 150B-36 pertained to final decisions.

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.

§ 150B-37. Official record.

1. In a contested case, the Office of Administrative Hearings shall prepare an official record of the case that includes:
   1. Notices, pleadings, motions, and intermediate rulings;
   2. Questions and offers of proof, objections, and rulings thereon;
   3. Evidence presented;
   4. Matters officially noticed, except matters so obvious that a statement of them would serve no useful purpose; and
   5. Repealed by Session Laws 1987, c. 878, s. 25.
   6. The administrative law judge's final decision or order.
2. Proceedings at which oral evidence is presented shall be recorded, but need not be transcribed unless requested by a party. Each party shall bear the cost of the transcript or part thereof or copy of said transcript or part thereof which said party requests, and said transcript or part thereof shall be added to the official record as an exhibit.
3. The Office of Administrative Hearings shall forward a copy of the administrative law judge's final decision to each party.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878, ss. 13, 25; 2000-190, s. 8; 2011-398, s. 21.)

Editor's Note. - Session Laws 2011-398, s. 62, is a severability clause.

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.

Effect of Amendments. - Session Laws 2011-398, s. 21, in subdivision (a)(6), substituted "final decision" for "decision"; and in subsection (c), deleted "official record to the agency making the final decision and shall forward a copy of the" following "copy of the" and inserted "final." For effective date and applicability, see editor's note.

§ 150B-38. Scope; hearing required; notice; venue.

1. The provisions of this Article shall apply to:
   1. Occupational licensing agencies.
   2. The State Banking Commission, the Commissioner of Banks, and the Credit Union Division of the Department of Commerce.
   3. The Department of Insurance and the Commissioner of Insurance.
   4. The State Chief Information Officer in the administration of the provisions of Article 15 of Chapter 143B of the General Statutes.
   5. The North Carolina State Building Code Council.
   6. Repealed by Session Laws 2018-146, s. 4.4(b), effective December 27, 2018.
2. Prior to any agency action in a contested case, the agency shall give the parties in the case an opportunity for a hearing without undue delay and notice not less than 15 days before the hearing. Notice to the parties shall include:
   1. A statement of the date, hour, place, and nature of the hearing;
   2. A reference to the particular sections of the statutes and rules involved; and
   3. A short and plain statement of the facts alleged.
3. Notice shall be given by one of the methods for service of process under G.S. 1A-1, Rule 4(j) or Rule 4(j3). If given by registered or certified mail, by signature confirmation as provided by the United States Postal Service, or by designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, notice shall be deemed to have been given on the delivery date appearing on the return receipt, copy of proof of delivery provided by the United States Postal Service, or delivery receipt. If notice cannot be given by one of the methods for service of process under G.S. 1A-1, Rule 4(j) or Rule 4(j3), then notice shall be given in the manner provided in G.S. 1A-1, Rule 4(j1).
4. A party who has been served with a notice of hearing may file a written response with the agency. If a written response is filed, a copy of the response must be mailed to all other parties not less than 10 days before the date set for the hearing.
5. All hearings conducted under this Article shall be open to the public. A hearing conducted by the agency shall be held in the county where the agency maintains its principal office. A hearing conducted for the agency by an administrative law judge requested under G.S. 150B-40 shall be held in a county in this State where any person whose property or rights are the subject matter of the hearing resides. If a different venue would promote the ends of justice or better serve the convenience of witnesses, the agency or the administrative law judge may designate another county. A person whose property or rights are the subject matter of the hearing waives his objection to venue if he proceeds in the hearing.
6. Any person may petition to become a party by filing with the agency or hearing officer a motion to intervene in the manner provided by G.S. 1A-1, Rule 24. In addition, any person interested in a contested case under this Article may intervene and participate to the extent deemed appropriate by the agency hearing officer.
7. When contested cases involving a common question of law or fact or multiple proceedings involving the same or related parties are pending before an agency, the agency may order a joint hearing of any matters at issue in the cases, order the cases consolidated, or make other orders to reduce costs or delay in the proceedings.
8. Every agency shall adopt rules governing the conduct of hearings that are consistent with the provisions of this Article.
9. Standards adopted by the State Chief Information Officer and applied to information technology as defined in G.S. 143B-1320.

History

(1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 6(3); 1989, c. 76, s. 30; c. 751, s. 7(45); 1991 (Reg. Sess., 1992), c. 959, s. 76; 1999-434, s. 17; 2001-141, s. 8; 2001-193, s. 12; 2001-487, s. 21(h); 2010-169, s. 7; 2011-332, s. 2.3; 2015-241, ss. 7A.3, 7A.4(ff); 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 4.4(b).)

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes, in subdivision (a)(6), substituted "Bipartisan State Board of Elections and Ethics Enforcement" for "State Board of Elections," and substituted "Article 23 of Chapter 163A" for "Article 22A of Chapter 163." Subdivision (a)(6), was deleted by Session Laws 2018-146, s. 4.4(b), effective December 27, 2018.

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1, repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3.

Editor's Note. - Session Laws 2011-398, s. 58, provides: "The Joint Regulatory Reform Committee shall study the procedural and substantive requirements of administrative hearings conducted under Article 3A of Chapter 150B of the General Statutes. The Committee shall examine the various procedures used by the entities that conduct administrative hearings under Article 3A to identify areas of consistency and inconsistency with the purpose of designing procedures that are applicable to all Article 3A hearings and that ensure that the hearings provide a meaningful opportunity to be heard and for dispute resolution. The Joint Regulatory Reform Committee shall report its findings and recommendations to the 2012 Regular Session of the 2011 General Assembly."

Session Laws 2015-241, s. 7A.3, provides, in part: "The Revisor of Statutes may conform names and titles changed by this section and may correct statutory references as required by this section throughout the General Statutes. In making the changes authorized by this section, the Revisor may also adjust subject and verb agreement and the placement of conjunctions." Pursuant to this authority, the Revisor of Statutes substituted "Article 14 of Chapter 143B" for "Article 3D of Chapter 147" in subdivision (a)(4).

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2010-169, s. 7, effective August 2, 2010, added subdivision (a)(6).

Session Laws 2011-332, s. 2.3, effective October 1, 2011, and applicable to notices given on or after that date, rewrote subsection (c).

Session Laws 2015-241, s. 7A.4(ff), effective September 18, 2015, added subsection (i).

Session Laws 2018-146, s. 4.4(b), effective December 18, 2018, repealed subdivision (a)(6), which read: "The Bipartisan State Board of Elections and Ethics Enforcement in the administration of any investigation or audit under the provisions of Article 23 of Chapter 163A of the General Statutes."

Legal Periodicals. - For note, "Contested Case Hearings Under the North Carolina Administrative Procedure Act: 1985 Rewrite Contains Dual System of Administrative Adjudication," see 64 N.C.L. Rev. 852 (1986).

For article, "Expanding the Role of North Carolina State Courts in Resolving Public Housing Disputes," see 33 N.C. Cent. L. Rev. 40 (2010).

§ 150B-39. Depositions; discovery; subpoenas.

1. A deposition may be used in lieu of other evidence when taken in compliance with the Rules of Civil Procedure, G.S. 1A-1. Parties in a contested case may engage in discovery pursuant to the provisions of the Rules of Civil Procedure, G.S. 1A-1.
2. Upon a request for an identifiable agency record involving a material fact in a contested case, the agency shall promptly provide the record to a party, unless the record relates solely to the agency's internal procedures or is exempt from disclosure by law.
3. In preparation for, or in the conduct of, a contested case subpoenas may be issued and served in accordance with G.S. 1A-1, Rule 45. Upon a motion, the agency may quash a subpoena if, upon a hearing, the agency finds that the evidence, the production of which is required, does not relate to a matter in issue, the subpoena does not describe with sufficient particularity the evidence the production of which is required, or for any other reason sufficient in law the subpoena may be quashed. Witness fees shall be paid by the party requesting the subpoena to subpoenaed witnesses in accordance with G.S. 7A-314. However, State officials or employees who are subpoenaed shall not be entitled to any witness fees, but they shall receive their normal salary and they shall not be required to take any annual leave for the witness days. Travel expenses of State officials or employees who are subpoenaed shall be reimbursed as provided in G.S. 138-6.

History

(1985, c. 746, s. 1; 1991, c. 35, s. 8.)

§ 150B-40. Conduct of hearing; presiding officer; ex parte communication.

1. Hearings shall be conducted in a fair and impartial manner. At the hearing, the agency and the parties shall be given an opportunity to present evidence on issues of fact, examine and cross-examine witnesses, including the author of a document prepared by, on behalf of or for the use of the agency and offered into evidence, submit rebuttal evidence, and present arguments on issues of law or policy.
2. Except as provided under subsection (e) of this section, hearings under this Article shall be conducted by a majority of the agency. An agency shall designate one or more of its members to preside at the hearing. If a party files in good faith a timely and sufficient affidavit of the personal bias or other reason for disqualification of any member of the agency, the agency shall determine the matter as a part of the record in the case, and its determination shall be subject to judicial review at the conclusion of the proceeding. If a presiding officer is disqualified or it is impracticable for him to continue the hearing, another presiding officer shall be assigned to continue with the case, except that if assignment of a new presiding officer will cause substantial prejudice to any party, a new hearing shall be held or the case dismissed without prejudice.
3. The presiding officer may:
   1. Administer oaths and affirmations;
   2. Sign and issue subpoenas in the name of the agency, requiring attendance and giving of testimony by witnesses and the production of books, papers, and other documentary evidence;
   3. Provide for the taking of testimony by deposition;
   4. Regulate the course of the hearings, set the time and place for continued hearings, and fix the time for filing of briefs and other documents;
   5. Direct the parties to appear and confer to consider simplification of the issues by consent of the parties; and
   6. Apply to any judge of the superior court resident in the district or presiding at a term of court in the county where a hearing is pending for an order to show cause why any person should not be held in contempt of the agency and its processes, and the court shall have the power to impose punishment as for contempt for acts which would constitute direct or indirect contempt if the acts occurred in an action pending in superior court.
4. Unless required for disposition of an ex parte matter authorized by law, a member of an agency assigned to make a decision or to make findings of fact and conclusions of law in a contested case under this Article shall not communicate, directly or indirectly, in connection with any issue of fact or question of law, with any person or party or his representative, except on notice and opportunity for all parties to participate. This prohibition begins at the time of the notice of hearing. An agency member may communicate with other members of the agency and may have the aid and advice of the agency staff other than the staff which has been or is engaged in investigating or prosecuting functions in connection with the case under consideration or a factually-related case. This section does not apply to an agency employee or party representative with professional training in accounting, actuarial science, economics or financial analysis insofar as the case involves financial practices or conditions.
5. When a majority of an agency is unable or elects not to hear a contested case, the agency shall apply to the Director of the Office of Administrative Hearings for the designation of an administrative law judge to preside at the hearing of a contested case under this Article. Upon receipt of the application, the Director shall, without undue delay, assign an administrative law judge to hear the case.

If a party fails to appear in a contested case after he has been given proper notice, the agency may continue the hearing or proceed with the hearing and make its decision in the absence of the party.

The provisions of this Article, rather than the provisions of Article 3, shall govern a contested case in which the agency requests an administrative law judge from the Office of Administrative Hearings.

The administrative law judge assigned to hear a contested case under this Article shall sit in place of the agency and shall have the authority of the presiding officer in a contested case under this Article. The administrative law judge shall make a proposal for decision, which shall contain proposed findings of fact and proposed conclusions of law.

An administrative law judge shall stay any contested case under this Article on motion of an agency which is a party to the contested case, if the agency shows by supporting affidavits that it is engaged in other litigation or administrative proceedings, by whatever name called, with or before a federal agency, and this other litigation or administrative proceedings will determine the position, in whole or in part, of the agency in the contested case. At the conclusion of the other litigation or administrative proceedings, the contested case shall proceed and be determined as expeditiously as possible.

The agency may make its final decision only after the administrative law judge's proposal for decision is served on the parties, and an opportunity is given to each party to file exceptions and proposed findings of fact and to present oral and written arguments to the agency.

History

(1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, ss. 1(1), 6(3), 6(4).)

Legal Periodicals. - For article, "Powers of Administrative Law Judges, Agencies, and Courts: An Analytical and Empirical Assessment," see 79 N.C.L. Rev. 1571 (2001).

For article, "Expanding the Role of North Carolina State Courts in Resolving Public Housing Disputes," see 33 N.C. Cent. L. Rev. 40 (2010).

§ 150B-41. Evidence; stipulations; official notice.

1. In all contested cases, irrelevant, immaterial, and unduly repetitious evidence shall be excluded. Except as otherwise provided, the rules of evidence as applied in the trial division of the General Court of Justice shall be followed; but, when evidence is not reasonably available under such rules to show relevant facts, they may be shown by the most reliable and substantial evidence available. It shall not be necessary for a party or his attorney to object to evidence at the hearing in order to preserve the right to object to its consideration by the agency in reaching its decision, or by the court of judicial review.
2. Evidence in a contested case, including records and documents shall be offered and made a part of the record. Other factual information or evidence shall not be considered in determination of the case, except as permitted under subsection (d) of this section. Documentary evidence may be received in the form of a copy or excerpt or may be incorporated by reference, if the materials so incorporated are available for examination by the parties. Upon timely request, a party shall be given an opportunity to compare the copy with the original if available.
3. The parties in a contested case under this Article by a stipulation in writing filed with the agency may agree upon any fact involved in the controversy, which stipulation shall be used as evidence at the hearing and be binding on the parties thereto. Parties should agree upon facts when practicable. Except as otherwise provided by law, disposition may be made of a contested case by stipulation, agreed settlement, consent order, waiver, default, or other method agreed upon by the parties.
4. Official notice may be taken of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the agency. The noticed fact and its source shall be stated and made known to affected parties at the earliest practicable time, and any party shall on timely request be afforded an opportunity to dispute the noticed fact through submission of evidence and argument. An agency may use its experience, technical competence, and specialized knowledge in the evaluation of evidence presented to it.

History

(1985, c. 746, s. 1; 2014-115, s. 14.)

Effect of Amendments. - Session Laws 2014-115, s. 14, effective August 11, 2014, substituted "subsection (d) of this section" for "G.S. 150B-30" at the end of the second sentence of subsection (b).

§ 150B-42. Final agency decision; official record.

1. After compliance with the provisions of G.S. 150B-40(e), if applicable, and review of the official record, as defined in subsection (b) of this section, an agency shall make a written final decision or order in a contested case. The decision or order shall include findings of fact and conclusions of law. Findings of fact shall be based exclusively on the evidence and on matters officially noticed. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting them. A decision or order shall not be made except upon consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and shall be supported by substantial evidence admissible under G.S. 150B-41. A copy of the decision or order shall be served upon each party by one of the methods for service of process under G.S. 1A-1, Rule 5(b). If service is by registered, certified, or first-class mail, by signature confirmation as provided by the United States Postal Service, or by designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, the copy shall be addressed to the party at the latest address given by the party to the agency. Service by one of the additional methods provided in G.S. 1A-1, Rule 5(b), is effective as provided therein and shall be accompanied by a certificate of service as provided in G.S. 1A-1, Rule 5(b1). G.S. 1A-1, Rule 6(e), applies if service is by first-class mail. A copy shall be furnished to the party's attorney of record.
2. An agency shall prepare an official record of a hearing that shall include:
   1. Notices, pleadings, motions, and intermediate rulings;
   2. Questions and offers of proof, objections, and rulings thereon;
   3. Evidence presented;
   4. Matters officially noticed, except matters so obvious that a statement of them would serve no useful purpose;
   5. Proposed findings and exceptions; and
   6. Any decision, opinion, order, or report by the officer presiding at the hearing and by the agency.
3. Proceedings at which oral evidence is presented shall be recorded, but need not be transcribed unless requested by a party. Each party shall bear the cost of the transcript or part thereof or copy of said transcript or part thereof which said party requests.

History

(1985, c. 746, s. 1; 2011-332, s. 2.4.)

Effect of Amendments. - Session Laws 2011-332, s. 2.4, effective October 1, 2011, and applicable to decisions or orders served on or after that date, rewrote subsection (a).

§ 150B-43. Right to judicial review.

Any party or person aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to the party or person aggrieved by statute or agency rule, is entitled to judicial review of the decision under this Article, unless adequate procedure for judicial review is provided by another statute, in which case the review shall be under such other statute. Nothing in this Chapter shall prevent any party or person aggrieved from invoking any judicial remedy available to the party or person aggrieved under the law to test the validity of any administrative action not made reviewable under this Article. A party or person aggrieved shall not be required to petition an agency for rule making or to seek or obtain a declaratory ruling before obtaining judicial review of a final decision or order made pursuant to G.S. 150B-34.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 2011-398, s. 22; 2012-194, s. 62.1; 2019-140, s. 2(b).)

Local Modification. - (As to Article 4) City of Gastonia: 1985 (Reg. Sess., 1986), c. 902, s. 3; 1991, c. 557, s. 1.

Editor's Note. - Session Laws 2000-67, ss. 24(a) and (b), establishes a reserve in the Office of State Budget and Management (now the Office of State Budget, Planning, and Management), consisting of appropriations from the General Assembly and funds received from any State agency in accordance with s. 24. When a State agency files a petition for judicial review of a final decision of the Rules Review Commission under Article 4 of Chapter 150B and the Rules Review Commission prevails in that action, that State agency is to deposit to the reserve a sum equal to the Commission's actual attorneys' fees.

Session Laws 2000-67, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2000.' "

Session Laws 2000-67, s. 28.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2000-2001 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2000-2001 fiscal year."

Session Laws 2000-67, s. 28.4, is a severability clause.

Session Laws 2011-398, s. 62, is a severability clause.

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 2020-3, s. 1.1(a)-(d), provides: "(a) Interest Waiver. - As a result of the COVID-19 outbreak, the Secretary of Revenue has extended the franchise, corporate income, and individual income tax payment deadline from April 15, 2020, to July 15, 2020, and pursuant to G.S. 105-249.2, the Secretary will not assess a penalty for failure to file a return or pay a tax due as long as the return is filed and the tax due is paid by July 15, 2020. Notwithstanding G.S. 105-241.21(b), the Secretary of Revenue shall also waive the accrual of interest from April 15, 2020, through July 15, 2020, on an underpayment of tax imposed on a franchise, corporate income, or individual income tax return, including a partnership and estate and trust tax return, due from April 15, 2020, through July 15, 2020. The relief from accrual of interest from April 15, 2020, through July 15, 2020, also includes interest imposed pursuant to G.S. 105-163.15 and G.S. 105-163.41 for payments due on or before July 15, 2020.

"(b) Refund Request. - For franchise, corporate income, and individual income tax, the statute of limitations for obtaining a refund is extended to July 15, 2020, for refund claims for which the statute of limitations to seek a refund expires on or after April 15, 2020, and before July 15, 2020.

"(c) Time-Sensitive Actions. - Certain actions required to be taken by a taxpayer on or after April 1, 2020, and before July 15, 2020, will be considered timely if the request or petition is filed on or before July 15, 2020. This subsection applies to requests for Departmental review under G.S. 105-241.11, petitions for a contested case hearing at the Office of Administrative Hearings under Article 3 of Chapter 150B of the General Statutes and G.S. 105-241.15, and petitions for judicial review under Article 4 of Chapter 150B of the General Statutes and G.S. 105-241.16.

"(d) This section is effective when it becomes law." Session Laws 2020-3 became law on May 4, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2011-398, s. 22, substituted "Any party or person aggrieved" for "Any person who is aggrieved" and substituted "the party or person aggrieved" for "him," or similar language throughout. For effective date and applicability, see editor's note.

Session Laws 2019-140, s. 2(b), effective July 19, 2019, deleted "Absent a specific statutory requirement, nothing in this Chapter shall require" and inserted "shall not be required" in the last sentence.

Legal Periodicals. - For comment on former Article 33 of Chapter 143, see 31 N.C.L. Rev. 378, 382 (1953).

For note on determination of validity of rules and regulations before their application in specific cases, see 36 N.C.L. Rev. 473 (1958).

For note on judicial review of student disciplinary proceedings, see 43 N.C.L. Rev. 152 (1964).

For case law survey as to judicial review of decisions of administrative agencies, see 45 N.C.L. Rev. 816 (1967).

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For survey of 1976 case law dealing with administrative law, see 55 N.C.L. Rev. 898 (1977).

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For survey of 1979 tax law, see 58 N.C.L. Rev. 1548 (1980).

For article, "Advisory Rulings by Administrative Agencies: Their Benefits and Dangers," see 2 Campbell L. Rev. 1 (1980).

For article, "A Powerless Judiciary? The North Carolina Courts' Perceptions of Review of Administrative Action," see 12 N.C. Cent. L.J. 21 (1980).

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1017 (1981).

For comment discussing life insurance, divorce, and inheritance tax in light of In re Kapoor, 303 N.C. 102, 277 S.E.2d 403 (1981), see 13 N.C. Cent. L.J. 253 (1982).

For article, "Powers of Administrative Law Judges, Agencies, and Courts: An Analytical and Empirical Assessment," see 79 N.C.L. Rev. 1571 (2001).

§ 150B-44. Right to judicial intervention when final decision unreasonably delayed.

Failure of an administrative law judge subject to Article 3 of this Chapter or failure of an agency subject to Article 3A of this Chapter to make a final decision within 120 days of the close of the contested case hearing is justification for a person whose rights, duties, or privileges are adversely affected by the delay to seek a court order compelling action by the agency or by the administrative law judge.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(17); 1987, c. 878, ss. 5, 27; 1991, c. 35, s. 9; 2000-190, s. 9; 2008-168, s. 5(b); 2011-398, s. 23; 2014-120, s. 59(b).)

Editor's Note. - Session Laws 2011-398, s. 62, is a severability clause.

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.

Effect of Amendments. - Session Laws 2008-168, s. 5(b), effective July 1, 2008, added the last sentence.

Session Laws 2011-398, s. 23, deleted the former second through sixth sentences, and rewrote the next-to-last sentence. For effective date and applicability, see editor's note.

Session Laws 2014-120, s. 59(b), effective September 18, 2014, inserted "final" in the section catchline; deleted the former first sentence which read: "Unreasonable delay on the part of any agency or administrative law judge in taking any required action shall be justification for any person whose rights, duties, or privileges are adversely affected by such delay to seek a court order compelling action by the agency or administrative law judge."; and deleted the former last sentence which read: "The Board of Trustees of the North Carolina State Health Plan for Teachers and State Employees is a "board" for purposes of this section."

Legal Periodicals. - For article, "Advisory Rulings by Administrative Agencies: Their Benefits and Dangers," see 2 Campbell L. Rev. 1 (1980).

For article, "Administrative Justice: No Longer Just a Recommendation," see 79 N.C.L. Rev. 1639 (2001).

§ 150B-45. Procedure for seeking review; waiver.

1. Procedure. - To obtain judicial review of a final decision under this Article, the person seeking review must file a petition within 30 days after the person is served with a written copy of the decision. The petition must be filed as follows:
   1. Contested tax cases. - A petition for review of a final decision in a contested tax case arising under G.S. 105-241.15 must be filed in the Superior Court of Wake County.
   2. Other final decisions. - A petition for review of any other final decision under this Article must be filed in the superior court of the county where the person aggrieved by the administrative decision resides, or in the case of a person residing outside the State, in the county where the contested case which resulted in the final decision was filed.
2. Waiver. - A person who fails to file a petition within the required time waives the right to judicial review under this Article. For good cause shown, however, the superior court may accept an untimely petition.
3. (See editor's note.) Judicial Review for State Board of Elections and Ethics Enforcement. - For a stay entered pursuant to G.S. 150B-33(b)(6), the State Board of Elections and Ethics Enforcement may obtain judicial review of the temporary restraining order or preliminary injunction in the superior court of the county designated in subsection (a) of this section.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878, s. 16; 2007-491, s. 43; 2013-143, s. 4; 2018-13, s. 3.1.)

Local Modification. - Durham: 1983, c. 373; 1993, c. 227, s. 3; 1993 (Reg. Sess., 1994), c. 658, s. 1.2); city of Asheville: 1999-206, s. 3; city of Gastonia: 1985 (Reg. Sess., 1986), c. 902, s. 3; 1991, c. 557, s. 1.

Editor's Note. - Session Laws 2007-491, s. 47, provides, in part: "The procedures for review of disputed tax matters enacted by this act apply to assessments of tax that are not final as of the effective date of this act and to claims for refund pending on or filed on or after the effective date of this act. This act does not affect matters for which a petition for review was filed with the Tax Review Board under G.S. 105-241.2 [repealed] before the effective date of this act. The repeal of G.S. 105-122(c) and G.S. 105-130.4(t) and Sections 11 and 12 apply to requests for alternative apportionment formulas filed on or after the effective date of this act. A petition filed with the Tax Review Board for an apportionment formula before the effective date of this act is considered a request under G.S. 105-122(c1) or G.S. 105-130.4(t1), as appropriate."

Session Laws 2013-143, s. 5, made the amendments to this section by Session Laws 2013-143, s. 4, effective October 1, 2013, and applicable to petitions for judicial review filed on or after that date.

Session Laws 2018-13, s. 6, is a severability clause.

Session Laws 2018-13, s. 7, made subsection (c) of this section, as added by Session Laws 2018-13, s. 3.1, effective June 20, 2018, and applicable to elections held on or after that date.

Session Laws 2018-146, s. 6.1, provides: "Consistent with this act, the Revisor is authorized to change all references to the Bipartisan State Board of Elections and Ethics Enforcement to instead be references to the State Board of Elections, State Ethics Commission, or Secretary of State, as appropriate. The Revisor may modify statutory citations throughout the General Statutes, as appropriate, and may modify any references to statutory divisions, such as 'Chapter,' 'Subchapter,' 'Article,' 'Part,' 'section,' and 'subsection'; adjust the order of lists of multiple statutes to maintain statutory order; correct terms and conform names and titles changed by this act; eliminate duplicative references to the State Boards that result from the changes authorized by this section; and make conforming changes to catch lines and references to catch lines. The Revisor may also adjust subject and verb agreement and the placement of conjunctions. The Revisor shall consult with the Bipartisan State Board of Elections and Ethics Enforcement, the State Board of Elections, the State Ethics Commission, and the Secretary of State, as appropriate, on this recodification." At the direction of the Revisor of Statutes, no substitution was made for the reference to "State Board of Elections and Ethics Enforcement" in subsection (c) due to uncertainty as to the correct replacement.

Effect of Amendments. - Session Laws 2007-491, s. 43, effective January 1, 2008, rewrote subsection (a) and added the subsection heading in subsection (b).

Session Laws 2018-13, s. 3.1, added subsection (c). For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For survey of 1979 tax law, see 58 N.C.L. Rev. 1548 (1980).

For article, "A Powerless Judiciary? The North Carolina Courts' Perceptions of Review of Administrative Action," see 12 N.C. Cent. L.J. 21 (1980).

§ 150B-46. Contents of petition; copies served on all parties; intervention.

The petition shall explicitly state what exceptions are taken to the decision or procedure and what relief the petitioner seeks. Within 10 days after the petition is filed with the court, the party seeking the review shall serve copies of the petition by personal service or by certified mail upon all who were parties of record to the administrative proceedings. Names and addresses of such parties shall be furnished to the petitioner by the agency upon request. Any party to the administrative proceeding is a party to the review proceedings unless the party withdraws by notifying the court of the withdrawal and serving the other parties with notice of the withdrawal. Other parties to the proceeding may file a response to the petition within 30 days of service. Parties, including agencies, may state exceptions to the decision or procedure and what relief is sought in the response.

Any person aggrieved may petition to become a party by filing a motion to intervene as provided in G.S. 1A-1, Rule 24.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1991, c. 35, s. 10.)

Cross References. - As to hearings and appeals of the State Banking Commission, see G.S. 53C-2-6.

Legal Periodicals. - For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For article, "A Powerless Judiciary? The North Carolina Courts' Perceptions of Review of Administrative Action," see 12 N.C. Cent. L.J. 21 (1980).

§ 150B-47. Records filed with clerk of superior court; contents of records; costs.

Within 30 days after receipt of the copy of the petition for review, or within such additional time as the court may allow, the Office of Administrative Hearings shall transmit to the reviewing court the original or a certified copy of the official record in the contested case under review. With the permission of the court, the record may be shortened by stipulation of all parties to the review proceedings. Any party unreasonably refusing to stipulate to limit the record may be taxed by the court for such additional costs as may be occasioned by the refusal. The court may require or permit subsequent corrections or additions to the record when deemed desirable.

History

(1973, c. 1331, s. 1; 1983, c. 919, s. 3; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(18); 1987, c. 878, s. 22; 2011-398, s. 24.)

Editor's Note. - Session Laws 2011-398, s. 62, is a severability clause.

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.

Effect of Amendments. - Session Laws 2011-398, s. 24, rewrote the first sentence. For effective date and applicability, see editor's note.

§ 150B-48. Stay of decision.

At any time before or during the review proceeding, the person aggrieved may apply to the reviewing court for an order staying the operation of the administrative decision pending the outcome of the review. The court may grant or deny the stay in its discretion upon such terms as it deems proper and subject to the provisions of G.S. 1A-1, Rule 65.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1.)

Legal Periodicals. - For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For article, "Advisory Rulings by Administrative Agencies: Their Benefits and Dangers," see 2 Campbell L. Rev. 1 (1980).

§ 150B-49. New evidence.

A party or person aggrieved who files a petition in the superior court may apply to the court to present additional evidence. If the court is satisfied that the evidence is material to the issues, is not merely cumulative, and could not reasonably have been presented at the administrative hearing, the court may remand the case so that additional evidence can be taken. If an administrative law judge did not make a final decision in the case, the court shall remand the case to the agency that conducted the administrative hearing under Article 3A of this Chapter. After hearing the evidence, the agency may affirm or modify its previous findings of fact and final decision. If an administrative law judge made a final decision in the case, the court shall remand the case to the administrative law judge. After hearing the evidence, the administrative law judge may affirm or modify his previous findings of fact and final decision. The additional evidence and any affirmation or modification of a final decision shall be made part of the official record.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878, s. 17; 2000-190, s. 10; 2011-398, s. 25.)

Editor's Note. - Session Laws 2011-398, s. 62, is a severability clause.

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.

Effect of Amendments. - Session Laws 2011-398, s. 25, substituted "A party or person aggrieved" for "An aggrieved person" in the first sentence; inserted "final" preceding "decision" in the third, fifth, sixth and last sentences; deleted the former next-to-last sentence; and deleted "of the administrative law judge or final decision" following "modification of a final decision" in the last sentence. For effective date and applicability, see editor's note.

Legal Periodicals. - For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

§ 150B-50. Review by superior court without jury.

The review by a superior court of administrative decisions under this Chapter shall be conducted by the court without a jury.

History

(1973, c. 1331, s. 1; 1983, c. 919, s. 2; 1985, c. 746, s. 1; 1987, c. 878, s. 18; 2011-398, s. 26.)

Editor's Note. - Session Laws 2011-398, s. 62, is a severability clause.

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.

Effect of Amendments. - Session Laws 2011-398, s. 26, substituted "administrative" for "agency." For effective date and applicability, see editor's note.

Legal Periodicals. - For article, "A Powerless Judiciary? The North Carolina Courts' Perceptions of Review of Administrative Action," see 12 N.C. Cent. L.J. 21 (1980).

For survey of 1980 property law, see 59 N.C.L. Rev. 1209 (1981).

§ 150B-51. Scope and standard of review.

1. ,  (a1) Repealed by Sessions Laws, 2011-398, s. 27. For effective date and applicability, see editor's note.
2. The court reviewing a final decision may affirm the decision or remand the case for further proceedings. It may also reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the findings, inferences, conclusions, or decisions are:
   1. In violation of constitutional provisions;
   2. In excess of the statutory authority or jurisdiction of the agency or administrative law judge;
   3. Made upon unlawful procedure;
   4. Affected by other error of law;
   5. Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or
   6. Arbitrary, capricious, or an abuse of discretion.
3. In reviewing a final decision in a contested case, the court shall determine whether the petitioner is entitled to the relief sought in the petition based upon its review of the final decision and the official record. With regard to asserted errors pursuant to subdivisions (1) through (4) of subsection (b) of this section, the court shall conduct its review of the final decision using the de novo standard of review. With regard to asserted errors pursuant to subdivisions (5) and (6) of subsection (b) of this section, the court shall conduct its review of the final decision using the whole record standard of review.
4. In reviewing a final decision allowing judgment on the pleadings or summary judgment, the court may enter any order allowed by G.S. 1A-1, Rule 12(c) or Rule 56. If the order of the court does not fully adjudicate the case, the court shall remand the case to the administrative law judge for such further proceedings as are just.

History

(1973, c. 1331, s. 1; 1983, c. 919, s. 4; 1985, c. 746, s. 1; 1987, c. 878, s. 19; 2000-140, s. 94.1; 2000-190, s. 11; 2011-398, s. 27.)

Local Modification. - City of Durham: 1993 (Reg. Sess., 1994) c. 658, s. 1.2.

Editor's Note. - Session Laws 2011-398, s. 62, is a severability clause.

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.

Effect of Amendments. - Session Laws 2011-398, s. 27, rewrote the section. For effective date and applicability, see editor's note.

Legal Periodicals. - For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For survey of 1979 tax law, see 58 N.C.L. Rev. 1548 (1980).

For article, "A Powerless Judiciary? The North Carolina Courts' Perceptions of Review of Administrative Action," see 12 N.C. Cent. L.J. 21 (1980).

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For article, "What Were We Thinking?: Legislative Intent and the 2000 Amendments to the North Carolina APA," see 79 N.C.L. Rev. 1657 (2001).

For article, "Negotiating the Federal Government's Compliance with Court Orders: An Initial Exploration," see 97 N.C.L. Rev. 899 (2019).

§ 150B-52. Appeal; stay of court's decision.

A party to a review proceeding in a superior court may appeal to the appellate division from the final judgment of the superior court as provided in G.S. 7A-27. The scope of review to be applied by the appellate court under this section is the same as it is for other civil cases. In cases reviewed under G.S. 150B-51(c), the court's findings of fact shall be upheld if supported by substantial evidence. Pending the outcome of an appeal, an appealing party may apply to the court that issued the judgment under appeal for a stay of that judgment or a stay of the administrative decision that is the subject of the appeal, as appropriate.

History

(1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878, s. 20; 2000-140, s. 94; 2000-190, s. 12.)

§§ 150B-58 through 150B-64: Repealed by Session Laws 1991, c. 418, s. 5, effective October 1, 1991.

Editor's Note. - Section 150B-63.1 was repealed by Session Laws 1985 (Reg. Sess., 1986), c. 1022, s. 1(20).