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Administrative Procedure Act – North Dakota

In North Dakota, Administrative Procedure Act is known as Administrative Agencies Practice Act and is found in Title 28, chapter 28-32 of North Dakota Century Code.  N.D. Cent. Code, § 28-32-02 provides that every administrative agency may adopt, amend, or repeal reasonable rules in conformity with Administrative Agencies Practice Act.  An agency may also state the general course and method of operation, so that the public may obtain information.

According to N.D. Cent. Code, § 28-32-03, if an agency finds that emergency rulemaking is necessary, the agency may adopt an emergency rule.  Such rule is effective for a period of not longer than 180 days.  A proposed rule may be given effect on an emergency basis if any of the following grounds exists regarding that rule:

  • imminent peril threatens public health, safety, or welfare, which would be abated by emergency effectiveness,
  • a delay in the effective date of the rule is likely to cause a loss of funds appropriated to support a duty imposed by law upon the agency,
  • emergency effectiveness is reasonably necessary to avoid a delay in implementing an appropriations measure, or
  • emergency effectiveness is necessary to meet a mandate of federal law.

As per N.D. Cent. Code, § 28-32-04, an agency should repeal or amend any existing rule that was adopted from federal guidelines and which is not relevant to state regulatory programs.  Also, an agency may not adopt rules from federal guidelines which are not relevant to state regulatory programs when developing or modifying programs.

N.D. Cent. Code, § 28-32-10 provides that an agency should prepare a full notice and an abbreviated notice of rulemaking.  The agency’s full notice should be filed with the legislative council, and the agency should request publication of an abbreviated newspaper publication notice at least once in each official county newspaper published in North Dakota.

N.D. Cent. Code, § 28-32-11 request an agency to afford reasonable opportunity to submit data, views, or arguments, orally or in writing, concerning the proposed rule, including data respecting the impact of the proposed rule.  Further, an agency should allow interested parties to request and receive notice from the agency of the date and place the rule will be reviewed by the administrative rules committee.  In case of substantive rules, the agency should conduct an oral hearing.  The agency should consider fully all written and oral submissions respecting a proposed rule prior to the adoption, amendment, or repeal of any rule not of an emergency nature.  The agency should also make a written record of its consideration of all written and oral submissions contained in the rulemaking record respecting a proposed rule.

As per N.D. Cent. Code, § 28-32-12, an agency should allow, after the conclusion of any rulemaking hearing, a comment period of at least ten days during which data, views, or arguments concerning the proposed rulemaking will be received by the agency and made a part of the rulemaking record to be considered by the agency.  N.D. Cent. Code, § 28-32-14 directs an administrative agencies to submit proposed rules to the attorney general for an opinion as to its legality before final adoption.

According to N.D. Cent. Code, § 28-32-15, an agency should file with the legislative council for publication of the rule in the North Dakota Administrative Code the following records:

  • a copy of each rule adopted by an administrative agency,
  • a copy of each written comment, and
  • a written summary of each oral comment on the rule, and the attorney general’s opinion on the rule.

N.D. Cent. Code, § 28-32-16 provides that any person substantially interested in the effect of a rule adopted by an administrative agency may petition such agency for a reconsideration of any such rule or for an amendment or repeal thereof.  As per N.D. Cent. Code, § 28-32-17, if the legislative management’s administrative rules committee objects to a rule, the committee may file that objection with the legislative council.  The legislative council should publish an objection filed, in the next issue of the North Dakota Administrative Code supplement.

According to N.D. Cent. Code, § 28-32-19, the legislative council should compile, index, and publish all rules and objections filed, in North Dakota Administrative Code.  The legislative council should also compile and publish the North Dakota Administrative Code supplement.  The code supplement should contain all rules and objections that have been filed with the legislative council or rules which have become effective since the compilation and publication of the preceding issue of the code supplement.

Procedures to be followed in adjudicative proceedings are provided in N.D. Cent. Code, § 28-32-21.  For adjudicative proceedings, a complainant should prepare and file a clear and concise complaint with the agency having subject matter jurisdiction of the proceeding.  After a complaint is filed, the appropriate administrative agency should serve a copy of the complaint upon the respondent.  The administrative agency should designate the time and place for the hearing and should serve a copy of the notice of hearing upon the respondent at least twenty days before the hearing.  A respondent is given less than twenty days to answer the complaint.  During hearing, the parties are afforded opportunity to present evidence and to examine and cross-examine.

According to N.D. Cent. Code, § 28-32-32, an administrative agency may use an emergency adjudicative proceeding in an emergency situation involving imminent peril to the public health, safety, or welfare.  In an emergency, an administrative agency may serve a complaint less than forty-five days before the hearing and give notice of a hearing on the complaint by giving less than twenty days’ notice as is necessary to prevent or avoid imminent peril to the public health, safety, or welfare.

N.D. Cent. Code, § 28-32-36 provides that an administrative agency should make a record of all testimony, written statements, documents, exhibits, and other evidence presented at any adjudicative proceeding or other administrative proceeding heard by it.  As per N.D. Cent. Code, § 28-32-39, in an adjudicative proceeding an administrative agency should make and state concisely and explicitly its findings of fact and its separate conclusions of law and the order of the agency based upon its findings and conclusions.

According to N.D. Cent. Code, § 28-32-42, any party to a proceeding heard by an administrative agency may appeal from the order within thirty days after notice of the order is given.  Also, any interested person who has participated in the rulemaking process of an administrative agency may appeal the agency’s rulemaking action if the appeal is taken within ninety days after the date of publication of rule in the North Dakota Administrative Code.  The appeal of an order may be taken to the district court of the county in which the hearing or a part thereof was held.  The appeal of an agency’s rulemaking action may be taken to the district court of Burleigh County.  N.D. Cent. Code, § 28-32-49 provides that the judgment of the district court in an appeal from an order or rulemaking action of an administrative agency may be reviewed in the supreme court on appeal.

Inside Administrative Procedure Act – North Dakota