Administrative Procedure Act – North Carolina
The North Carolina Administrative Procedure Act is found in Chapter 150B of the General Statutes of North Carolina. According to N.C. Gen. Stat. § 150B-20, a person may petition an agency to adopt a rule by submitting to the agency a petition requesting the adoption. An agency may grant or deny a rule-making petition submitted to it within thirty days after the date the rule-making petition is submitted. If an agency denies a rule-making petition, it should 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 should inform the person who submitted the rule-making petition of its decision and must initiate rule-making proceedings.
N.C. Gen. Stat. § 150B-21 provides that each agency should designate one or more rule-making coordinators to oversee the agency’s rule-making functions. Further, the coordinator should serve as the liaison between the agency, other agencies, units of local government, and the public in the rule-making process.
According to N.C. Gen. Stat. § 150B-21.1, an agency may adopt a temporary rule when it finds that adherence to the notice and hearing requirements will be contrary to the public interest and that the immediate adoption of the rule is required. As per N.C. Gen. Stat. § 150B-21.1A, an agency may adopt an emergency rule without prior notice or hearing or upon any abbreviated notice, when the agency finds that adherence to the notice and hearing requirements 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.
Procedure for adopting a permanent rule is provided in N.C. Gen. Stat. § 150B-21.2. Before adopting an permanent rule, an agency should:
- publish a notice of text in the North Carolina Register,
- prepare or obtain a fiscal note for the proposed rule,
- hold a public hearing on the proposed rule after publication of the proposed text of the rule, and
- accept oral or written comments on the proposed rule.
An agency should hold a public hearing when the agency receives a written request for a public hearing on the proposed rule within fifteen days after the notice of text is published in the North Carolina Register.
As per N.C. Gen. Stat. § 150B-21.3, 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. A permanent rule becomes effective on the first day of the month following the month the rule is approved by the Rules Review Commission.
N.C. Gen. Stat. § 150B-21.6 provides that an agency may incorporate the following material by reference in a rule without repeating the text of the referenced material:
- another rule or part of a rule adopted by the agency.
- all or part of a code, standard, or regulation adopted by another agency, the federal government, or a generally recognized organization or association.
According to N.C. Gen. Stat. § 150B-21.8, an agency should submit temporary and permanent rules adopted by it to the Rules Review Commission before the rule can be included in the North Carolina Administrative Code. As per N.C. Gen. Stat. § 150B-21.11, when the Commission approves a permanent rule; it should notify the agency, deliver the approved rule to the Codifier of Rules, 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. As per N.C. Gen. Stat. § 150B-21.12, when the Commission objects to a permanent rule, it should send the agency that adopted the rule a written statement of the objection and the reason for the objection.
N.C. Gen. Stat. § 150B-4 directs an agency to 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, on request of a person aggrieved.
According to N.C. Gen. Stat. § 150B-23, a contested case is commenced by filing a petition with the Office of Administrative Hearings. The party who files the petition should serve a copy of the petition on all other parties. Further, the parties in a contested case should be given an opportunity for a hearing. All hearings are open to the public and should be conducted in an impartial manner.
As per N.C. Gen. Stat. § 150B-24, the hearing of a contested case should be conducted:
- in the county in which any person whose property or rights are the subject matter of the hearing maintains his residence, or
- 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
- 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.
N.C. Gen. Stat. § 150B-36 provides that a final decision in a contested case should be in writing and should include findings of fact and conclusions of law. However, before the agency makes a final decision, it should give each party an opportunity to file exceptions to the decision made by the administrative law judge, and to present written arguments.
According to N.C. Gen. Stat. § 150B-43, any person who is aggrieved by the final decision in a contested case is entitled to judicial review of the decision. To obtain judicial review of a final decision, the person seeking review should file a petition within thirty days after the person is served with a written copy of the decision. A petition for review of final decision should be filed in the Superior Court of Wake County or in the superior court of the county where the person resides. N.C. Gen. Stat. § 150B-52 provides that a party to a review proceeding in a superior court may appeal to the appellate division from the final judgment of the superior court.