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KJ^VKl-^/ 7 m /' d /' 1 The ^fORTH CAROLINA REGISTER IN THIS ISSUE GENERAL STATUTES IN ADDITION Final Decision Letter PROPOSED RULES Agriculture Environment, Health, and Natural Resources Human Resources Medical Examiners, Board of RRC OBJECTIONS RULES INVALIDATED BY JUDICIAL DECISION CONTESTED CASE DECISIONS ISSUE DATE: October 1, 1992 Volume 7 • Issue 13 • Pages 1254-1350 RECEIVED OCT s 1992 LAW LIBRARY INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE NORTH CAROLINA REGISTER TEMPORARY RULES The North Carolina Register is published twice a month and contains information relating to agency, executive, legislative and judicial actions required by or affecting Chapter 150B of the General Statutes. All proposed administrative rules and notices of public hearings filed under G.S. 150B-21.2 must be published in the Register. The Register will typically comprise approximately fifty pages per issue of legal text. State law requires that a copy of each issue be provided free of charge to each county in the state and to various state officials and institutions. The North Carolina Register is available by yearly subscription at a cost of one hundred and five dollars (S105.00) for 24 issues. Individual issues may be purchased for eight dollars (S8.00). Requests for subscription to the North Carolina Register should be directed to the Office of Administrative Hearings, P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. Under certain emergency conditions, agencies may issue temporary rules. Within 24 hours of submission to OAH, the Codifier of Rules must review the agency's written statement of findings of need for the temporary rule pursuant to the provisions in G.S. 150B-21.1. If the Codifier determines that the findings meet the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If the Codifier determines that the findings do not meet the criteria, the rule is returned to the agency. The agency may supplement its findings and resubmit the temporary rule for an additional review or the agency may respond that it will remain with its initial position. The Codifier, thereafter, will enter the rule into the NCAC. A temporary rule becomes effective either when the Codifier of Rules enters the rule in the Code or on the sixth business day after the agency resubmits the rule without change. The temporary rule is in effect for the period specified in the rule or 180 days, whichever is less. An agency adopting a temporary rule must begin rule-making procedures on the permanent rule at the same time the temporary rule is filed with the Codifier. ADOPTION AMENDMENT, AND REPEAL OF RULES NORTH CAROLINA ADMINISTRATIVE CODE The following is a generalized statement of the procedures to be followed for an agency to adopt, amend, or repeal a rule. For the specific statutory authority, please consult Article 2A of Chapter 150B of the General Statutes. Any agency intending to adopt, amend, or repeal a rule must first publish notice of the proposed action in the North Carolina Register. The notice must include the time and place of the public hearing (or instructions on how a member of the public may request a hearing); a statement of procedure for public comments; the text of the proposed rule or the statement of subject matter; the reason for the proposed action; a reference to the statutory authority for the action and the proposed effective date. Unless a specific statute provides otherwise, at least 15 days must elapse following publication of the notice in the North Carolina Register before the agency may conduct the public hearing and at least 30 days must elapse before the agency can take action on the proposed rule. An agency may not adopt a rule that differs substantially from the proposed form published as part of the public notice, until the adopted version has been published in the North Carolina Register for an additional 30 day comment period. When final action is taken, the promulgating agency must file the rule with the Rules Review Commission (RRC). After approval by RRC, the adopted rule is filed with the Office of Administrative Hearings (OAH). A rule or amended rule generally becomes effective 5 business days after the rule is filed with the Office of Administrative Hearings for publication in the North Carolina Administrative Code (NCAC). Proposed action on rules may be withdrawn by the promulgating agency at any time before final action is taken by the agency or before filing with OAH for publication in the NCAC. The North Carolina Administrative Code (NCAC) is a compilation and index of the administrative rules of 25 state agencies and 38 occupational licensing boards. The NCAC comprises approximately 15,000 letter size, single spaced pages of material of which approximately 35% of is changed annually. Compilation and publication of the NCAC is mandated by G.S. 150B-21.18. The Code is divided into Titles and Chapters. Each state agency is assigned a separate title which is further broken down by chapters. Title 21 is designated for occupational licensing boards. The NCAC is available in two formats. (1) Single pages may be obtained at a minimum cost of two dollars and 50 cents (S2.50) for 10 pages or less, plus fifteen cents (SO. 15) per each additional page. (2) The full publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly with replacement pages. A one year subscription to the full publication including supplements can be purchased for seven hundred and fifty dollars (S750.00). Individual volumes may also be purchased with supplement service. Renewal subscriptions for supplements to the initial publication are available. Requests for pages of rules or volumes of the NCAC should be directed to the Office of Administrative Hearings. CITATION TO THE NORTH CAROLINA REGISTER The North Carolina Register is cited by volume, issue, page number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volume 1, Issue 1, pages 101 through 201 of the North Carolina Register issued on April 1, 1986. FOR INFORMATION CONTACT Office of Administrative Hearings, ATTN: Ru es Division, P.O. Drawer 27447, Raleigh, North Carolina 27611-7447, (919) 733-2678. NORTH CAROLINA REGISTER Office of Administrative Hearings P. O. Drawer 27447 Raleigh, North Carolina 27611-7447 (919) 733-2678 Julian Mann III, Director James R. Scarcella Sr., Deputy Director Molly Masich, Director of APA Services Staff: Ruby Creech, Publications Coordinator Teresa Kilpatrick, Editorial Assistant Jean Shirley, Editorial Assistant ISSUE CONTENTS I. GENERAL STATUTES Chapter 150B 1254 II. IN ADDITION Final Decision Letter 1275 III. PROPOSED RULES Agriculture Pesticide Board 1276 Environment, Health, and Natural Resources Wildlife Resources Commission 1299 Human Resources Medical Assistance 1295 Mental Health, Developmental Disabilities and Substance Abuse Services 1276 Licensing Board Medical Examiners, Board of . . 1304 IV. RRC OBJECTIONS 1309 V. RULES INVALIDATED BY JUDICIAL DECISION 1313 VI. CONTESTED CASE DECISIONS Index to ALJ Decisions 1314 Text of Selected Decisions 90 EHR 0415 1326 92 EDC 0023 1333 VII. CUMULATIVE INDEX 1348 NORTH CAROLINA REGISTER Publication Schedule (August 1992 - December 1993) Last Day Earliest Earliest for Elec- Date for Date for Last Day *Earliest Issue Last Day tronic Public Adoption to Submit Effective Date for Filing Filing Hearing by Agency to RRC Date tikdkzk&iksksk ;k :: sksk ^< :»; :*< ******* aje^t^c^e^cjjesjc tjc3fc;joje:{o{c3{e ^< :< :< ^c ^« ^e ^ 08/03/92 07/13/92 07/20/92 08/18/92 09/02/92 09/20/92 11/02/92 08/14/92 07/24/92 07/31/92 08/29/92 09/13/92 09/20/92 11/02/92 09/01/92 08/11/92 08/18/92 09/16/92 10/01/92 10/20/92 12/01/92 09/15/92 08/25/92 09/01/92 09/30/92 10/15/92 10/20/92 12/01/92 10/01/92 09/10/92 09/17/92 10/16/92 10/31/92 11/20/92 01/04/93 10/15/92 09/24/92 10/01/92 10/30/92 11/14/92 11/20/92 01/04/93 11/02/92 10/12/92 10/19/92 11/17/92 12/02/92 12/20/92 02/01/93 11/16/92 10/23/92 10/30/92 12/01/92 12/16/92 12/20/92 02/01/93 12/01/92 11/06/92 11/13/92 12/16/92 12/31/92 01/20/93 03/01/93 12/15/92 11/24/92 12/01/92 12/30/92 01/14/93 01/20/93 03/01/93 01/04/93 12/09/92 12/16/92 01/19/93 02/03/93 02/20/93 04/01/93 01/15/93 12/22/92 12/31/92 01/30/93 02/14/93 02/20/93 04/01/93 02/01/93 01/08/93 01/15/93 02/16/93 03/03/93 03/20/93 05/03/93 02/15/93 01/25/93 02/01/93 03/02/93 03/17/93 03/20/93 05/03/93 03/01/93 02/08/93 02/15/93 03/16/93 03/31/93 04/20/93 06/01/93 03/15/93 02/22/93 03/01/93 03/30/93 04/14/93 04/20/93 06/01/93 04/01/93 03/11/93 03/18/93 04/16/93 05/01/93 05/20/93 07/01/93 04/15/93 03/24/93 03/31/93 04/30/93 05/15/93 05/20/93 07/01/93 05/03/93 04/12/93 04/19/93 05/18/93 06/02/93 06/20/93 08/02/93 05/14/93 04/23/93 04/30/93 05/29/93 06/13/93 06/20/93 08/02/93 06/01/93 05/10/93 05/17/93 06/16/93 07/01/93 07/20/93 09/01/93 06/15/93 05/24/93 06/01/93 06/30/93 07/15/93 07/20/93 09/01/03 07/01/93 06/10/93 06/17/93 07/16/93 07/31/93 08/20/93 10/01/93 07/15/93 06/23/93 06/30/93 07/30/93 08/14/93 08/20/93 10/01/93 08/02/93 07/12/93 07/19/93 08/17/93 09/01/93 09/20/93 11/01/93 08/16/93 07/26/93 08/02/93 08/31/93 09/15/93 09/20/93 11/01/93 09/01/93 08/11/93 08/18/93 09/16/93 10/01/93 10/20/93 12/01/93 09/15/93 08/24/93 08/31/93 09/30/93 10/15/93 10/20/93 12/01/93 10/01/93 09/10/93 09/17/93 10/16/93 10/31/93 11/20/93 01/04/94 10/15/93 09/24/93 10/01/93 10/30/93 11/14/93 11/20/93 01/04/94 11/01/93 10/11/93 10/18/93 11/16/93 12/01/93 12/20/93 02/01/94 11/15/93 10/22/93 10/29/93 11/30/93 12/15/93 12/20/93 02/01/94 12/01/93 11/05/93 11/15/93 12/16/93 12/31/93 01/20/94 03/01/94 12/15/93 11/24/93 12/01/93 12/30/93 01/14/94 01/20/94 03/01/94 * Tlie "Earliest Effective Date" is computed assuming that the agency follows the publication schedule above, that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next calendar month. GENERAL STATUTES OF NORTH CAROLINA CHAPTER 150B THE ADMINISTRATIVE PROCEDURE ACT [The following excerpt contains the statutory provisions of the Administrative Procedure Act as amended by the 1991 General Assembly, Second Session effective July 1, 1992.] Article 1. General Provisions. § 150B-1. Policy and scope. (a) Purpose. -- This Chapter establishes a uni-form system of administrative rule making and adjudicatory procedures for agencies. The proce-dures ensure that the functions of rule making, investigation, advocacy, and adjudication are not all performed by the same person in the adminis-trative process. (b) Rights. — This Chapter confers procedural rights. (c) 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 Human Resources in exercising its authority over the Camp Butner reservation granted in Article 6 of Chapter 122C of the Gen-eral Statutes. (3) The Utilities Commission. (4) The Industrial Commission. (5) The Employment Security Commission. (d) Exemptions From Rule Making. — Article 2A of this Chapter does not apply to the following: (1) The Commission. (2) The North Carolina Low-Level Radio-active Waste Management Authority in administering the provisions of G.S. 104G-10and G.S. 104G-11. (3) The North Carolina Hazardous Waste Management Commission in administer-ing the provisions of G.S. 130B-13 and G.S. 130B-14. (4) The Department of Revenue, except that Parts 3 and 4 of Article 2A apply to the Department. (5) The North Carolina Air Cargo Airport Authority with respect to the acquisi-tion, construction, operation, or use, including fees or charges, of any por-tion of a cargo airport complex. (e) Exemptions From Contested Case Provi-sions. -- 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 Human Resources and the Department of Environment, Health, and Natural Resources in com-plying with the procedural safeguards mandated by Section 680 of Part H of Public Law 99-457 as amended (Educa-tion of the Handicapped Act Amend-ments of 1986). (2) The Governor's Waste Management Board in administering the provisions of G.S. 104E-6.2and G.S. 130A-293. (3) The North Carolina Low-Level Radio-active Waste Management Authority in administering the provisions of G.S. 104G-9, 104G-10, and 104G-11. (4) The North Carolina Hazardous Waste Management Commission in administer-ing the provisions of G.S. 130B-11, 130B-13, and BOB- 14. (5) Hearings required pursuant to the Reha-bilitation Act of 1973, (Public Law 93-122), as amended and federal regu-lations promulgated thereunder. G.S. 150B-51(a) is considered a contested case hearing provision that does not apply to these hearings. (6) The Department of Revenue. (7) The Department of Correction. (8) The Department of Transportation, except as provided in G.S. 136-29. (9) The Occupational Safety and Health Review Board in all actions that do not involve agricultural employers. (10) The North Carolina Air Cargo Airport Authority with respect to the acquisi-tion, construction, operation, or use, including fees or charges, of any por-tion of a cargo airport complex. (f) Exemption From All But Judicial Review. — No Article in this Chapter except Article 4 applies to the University of North Carolina. § 150B-2. Definitions. — As used in this Chapter, (01) 'Administrative law judge" means a person appointed under G.S. 7A-752, 7:13 NORTH CAROLINA REGISTER October 1, 1992 1254 GENERAL STATUTES OF NORTH CAROLINA 7A-753, or 7A-757. (1) "Agency" means an agency or an offi-cer in the executive branch of the gov-ernment of this State and includes the Council of State, the Governor's Of-fice, a board, a commission, a depart-ment, a division, a council, and any other unit of government in the execu-tive branch. A local unit of govern-ment is not an agency. (la) "Adopt" means to take final action to create, amend, or repeal a rule. (lb) "Codifier of Rules" means the Chief Administrative Law Judge of the Office of Administrative Hearings or a desig-nated representative of the Chief Ad-ministrative Law Judge. (lc) "Commission" means the Rules Review Commission. (2) "Contested case" means an administra-tive 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, declarato-ry rulings, or the award or denial of a scholarship or grant. (2a) Repealed. (2b) "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 Arti-cle. (3) "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 and occupational licenses. (4) "Licensing" means any administrative action issuing, failing to issue, suspend-ing, or revoking a license or occupa-tional license. "Licensing" does not include controversies over whether an examination was fair or whether the applicant passed the examination. (4a) Occupational license" means any certifi-cate, 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. (4b) "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 agen-cy" does not include State agencies or departments which may as only a part of their regular function issue permits or licenses. (5) "Party" means any person or agency named or admitted as a party or proper-ly seeking as of right to be admitted as a party and includes the agency as appropriate. This subdivision does not permit an agency that makes a final decision, or an officer or employee of the agency, to petition for initial judi-cial review of that decision. (6) "Person aggrieved" means any person or group of persons of common interest directly or indirectly affected substan-tially in his or its person, property, or employment by an administrative deci-sion. (7) "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. (8) "Residence" means domicile or princi-pal place of business. (8a) "Rule" means any agency regulation, standard, or statement of general appli-cability 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 amend-ment or repeal of a prior rule. The term does not include the following: a. Statements concerning only the internal management of an agency or group of agencies within the same principal office or depart-ment enumerated in G.S. 143-11 or 143B-6, including policies and 1255 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA procedures manuals, if the state-ment does not directly or substan-tially affect the procedural or substantive rights or duties of a person not employed by the agen-cy or group of agencies. b. 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, or by the State Board of Elections. c. Nonbinding interpretive state-ments within the delegated author-ity of an agency that merely define, interpret, or explain the meaning of a statute or rule. d. A form, the contents or substan-tive requirements of which are prescribed by rule or statute. e. Statements of agency policy made in the context of another proceed-ing, including: 1 Declaratory rulings under G.S. 150B-4. 2. Orders establishing or fixing rates or tariffs. f. Requirements, communicated to the public by the use of signs or symbols, concerning the use of public roads, bridges, ferries, buildings, or facilities. g. Statements that set forth criteria or guidelines to be used by the staff of an agency in performing audits, investigations, or inspec-tions; in settling financial disputes or negotiating financial arrange-ments; or in the defense, prosecu-tion, or settlement of cases. h. Scientific, architectural, or engi-neering standards, forms, or procedures, including design criteria and construction standards used to construct or maintain highways, bridges, or ferries. i. Job classification standards, job qualifications, and salaries estab-lished for positions under the jurisdiction of the State Personnel Commission. j. Establishment of the interest rate that applies to tax assessments under G.S. 105-241.1 and the variable component of the excise tax on motor fuel under G.S. 105-434. (8b) "Substantial evidence" means relevant evidence a reasonable mind might accept as adequate to support a con-clusion. (9) Repealed. § 150B-3. Special provisions on licensing. (a) 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 occu-pational 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 sec-tion. (b) Before the commencement of proceedings for the suspension, revocation, annulment, with-drawal, 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 opportu-nity to show compliance with all lawful require-ments for retention of the license or occupational license. (c) 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 pro-ceedings. The proceedings shall be promptly commenced and determined. 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. § 150B-4. Declaratory rulings. (a) 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 7:13 NORTH CAROLINA REGISTER October 1, 1992 1256 GENERAL STATUTES OF NORTH CAROLINA facts of a statute administered by the agency or of a rule or order of the agency, except when the agency for good cause finds issuance of a ruling undesirable. The agency shall prescribe in its rules the circumstances in which rulings shall or shall not be issued. A declaratory ruling is bind-ing 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. A declaratory ruling is subject to judicial review in the same manner as an order in a con-tested case. Failure of the agency to issue a declaratory ruling on the merits within 60 days of the request for such ruling shall constitute a denial of the request as well as a denial of the merits of the request and shall be subject to judicial review, (b) This section does not apply to the Depart-ment of Correction. Article 2. Rule Making. Repealed. Article 2A. Rules. Part 1. General Provisions. § 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. § 150B-19. Restrictions on what can be adopt-ed 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 re-quired. (3) Imposes criminal liability or a civil penalty for an act or omission, includ-ing 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. (5) Establishes a reasonable fee or other reasonable charge for providing a ser-vice 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: a. A service to a State, federal, or local governmental unit. b. A copy of part or all of a State publi-cation or other document, the cost of mailing a document, or both. c. A transcript of a public hearing. d. A conference, workshop, or course. e. Data processing services. (6) Allows the agency to waive or modify a requirement set in a rule unless a rule establishes specific guidelines the agen-cy must follow in determining whether to waive or modify the requirement. § 150B-20. Petitioning an agency to adopt a rule. (a) Petition. -- A person may petition an agency to adopt a rule by submitting to the agency a written rule-making petition requesting the adop-tion. 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. (b) 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. (c) Action. — If an agency denies a rule-making petition, it must send the person who submitted the petition a written statement of the reasons for denying the petition. If an agency grants a rule-making petition, it must inform the person who submitted the rule-making petition of its decision and must initiate rule-making proceedings. When an agency grants a rule-making petition requesting the creation or amendment of a rule, the notice of rule making it publishes in the North Carolina Register may state that the agency is initiating rule-making proceedings as the result of a rule-making petition, state the name of the person who submitted the rule-making petition, set out the text of the requested rule change submitted with the rule-making petition, and state whether the agency endorses the proposed rule change. 1257 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA (d) Review. — Denial of a rule-making petition is a final agency decision and is subject to judicial review under Article 4 of this Chapter. Failure of an agency to grant or deny a rule-making petition within the time limits set in subsection (b) is a denial of the rule-making petition. (e) Exception. — This section does not apply to the Department of Correction. § 150B-21. Agency must designate rule-making coordinator. Each agency must designate one or more rule-making coordinators to oversee the agency's rule-making functions. The coordinator must prepare notices of public hearings, coordinate access to the agency's rules, and serve as the liaison between the agency, other agencies, and the public in the rule-making process. Part 2. Adoption of Rules. § 150B-21.1. Procedure for adopting a tem-porary rule. (a) Adoption. — An agency may adopt a tempo-rary 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 immedi-ate 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 federal regulation. (5) A court order. (6) The need for the rule to become effec-tive the same date as the State Medical Facilities Plan approved by the Gover-nor, if the rule addresses a matter included in the State Medical Facilities Plan. An agency must prepare a written statement of its findings of need for a temporary rule. The statement must be signed by the head of the agen-cy adopting the rule. An agency must begin rule-making proceedings for a permanent rule by the day it adopts a tempo-rary rule. An agency begins rule-making proceed-ings for a permanent rule by submitting to the codifier written notice of its intent to adopt a permanent rule. (b) Review. — When an agency adopts a tempo-rary rule it must submit the rule, the agency's written statement of its findings of need for the rule, and the notice of intent to adopt a permanent rule to the Codifier of Rules. Within one business day after an agency submits a temporary rule, the Codifier of Rules must review the agency's written statement of findings of need for the rule to deter-mine whether the statement of need meets the criteria listed in subsection (a). 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. If the Codifier of Rules finds that the statement does not meet the criteria, 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 state-ment within one business day after the agency submits the additional findings or new statement. If the Codifier of Rules again finds that the state-ment does not meet the criteria listed in subsection (a), 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 crite-ria, 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. (c) Standing. — A person aggrieved by a tempo-rary 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) and whether the rule meets the standards in G.S. 150B-21.9 that apply to review of a permanent rule. The court may not grant an ex parte temporary restraining order. 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 subsec-tion must serve a copy of the complaint on the agency that adopted the rule being contested, the 7:13 NORTH CAROLINA REGISTER October 1, 1992 1258 GENERAL STATUTES OF NORTH CAROLINA Codifier of Rules, and the Commission. (d) Effective Date and Expiration. — A tempo-rary rule becomes effective on the date specified in G.S. 150B-21.3. A temporary rule expires on the date specified in the rule or 180 days from the date the rule becomes effective, whichever comes first. § 150B-21.2. Procedure for adopting a per-manent rule. (a) Notice. -- Before an agency adopts a perma-nent rule, it must publish notice of its intent to adopt a permanent rule in the North Carolina Register and as required by any other law. The notice published in the North Carolina Register must include all of the following: (1) Either the text of the proposed rule or 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 the pro-posed rule, if the notice includes the text of the proposed rule, or a citation to the law that gives the agency the authority to adopt a rule on the subject matter of the proposed rule making, if the notice includes only a statement of the subject matter of the proposed rule making. (4) The proposed effective date of the proposed rule, if the notice includes the text of the proposed rule, or the pro-posed effective date of a rule adopted on the subject matter of the proposed rule making, if the notice includes only a statement of the subject matter of the proposed rule making. (5) The date, time, and place of any public hearing scheduled on the proposed rule or subject matter of the proposed rule making. (6) 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 (c) requires the agency to hold a public hearing on the proposed rule when requested to do so. (7) The period of time during which and the person to whom written comments may be submitted on the proposed rule or subject matter of the proposed rule making. (8) If a fiscal note has been prepared for the proposed rule or will be prepared when a rule is proposed on the subject matter of the proposed rule making, a statement that a copy of the fiscal note can be obtained from the agency. (b) Mailing List. -- An agency must maintain a mailing list of persons who have requested notice of rule making. When an agency publishes a rule-making notice in the North Carolina Register, it must mail a copy of the notice to each person on the mailing list who has requested notice of rule-making proceedings on the rule or the subject matter for rule making described in the notice. An agency may charge an annual fee to each person on the agency's mailing list to cover copying and mailing costs. (c) Hearing. — An agency must hold a public hearing on a rule it proposes to adopt in two circumstances and may hold a public hearing 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. An agency must hold a public hearing on a rule it proposes to adopt in the following two circum-stances: (1 The agency publishes a statement of the subject matter of the proposed rule making in the notice in the North Caro-lina Register. (2) The agency publishes the text of the proposed rule in the notice in the North Carolina Register and all the following apply: a. The notice does not schedule a public hearing on the proposed rule. b. Within 15 days after the notice is published, the agency receives a written request for a public hearing on the proposed rule. c. The proposed rule is not part of a rule-making proceeding the agency initiated by publishing a statement of the subject matter of proposed rule making. d. The proposed text is not a changed version of proposed text the agency previously published in the course of rule-making proceedings but did not adopt. 1259 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA (d) Text After Subject-Matter Notice. — When an agency publishes notice of the subject matter of proposed rule making in the North Carolina Register, it must subsequently publish in the North Carolina Register the text of the rule it proposes to adopt as a result of the public hearing and of any comments received on the subject matter. An agency may not publish the proposed text of a rule for which it published a subject-matter notice before the public hearing on the subject matter. (e) Comments. -- An agency must accept com-ments on the text of a proposed rule published in the North Carolina Register for at least 30 days after the text is published or until the date of any public hearing held on the proposed rule, whichev-er is longer. An agency must accept comments on a statement of the subject matter of proposed rule making until the public hearing on the subject matter. An agency must consider fully all written and oral comments received. (f) Adoption. — An agency may not adopt a rule until the time for commenting on the proposed text of the rule has elapsed and may 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. An agency may 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 pro-posed different rule in the North Carolina Register and accepts comments on the proposed different rule for the time set in subsection (e). An adopted rule differs substantially from a proposed rule if it does one or more of the follow-ing: (1) Affects the interests of persons who, based on the notice published in the North Carolina Register or the pro-posed text of the rule, could not reason-ably 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 rea-sonably have been expected based on the proposed text of the rule. When an agency adopts a rule, it may not take subsequent action on the rule without following the procedures in this Part. (g) Explanation. — An agency must issue a concise written statement explaining why the agency adopted a rule if, within 30 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. (h) 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, and any written explanation made by the agency for adopting the rule. § 150B-21.3. Effective date of rules. (a) Temporary Rule. — A temporary rule be-comes effective on the date the Codifier of Rules enters the rule in the North Carolina Administra-tive Code. (b) Permanent Rule. - A permanent rule ap-proved by the Commission becomes effective five business days after the Commission delivers the rule to the Codifier of Rules, unless the agency adopting the rule specifies a later effective date. If the agency specifies a later effective date, the rule becomes effective on that date. A permanent rule that is not approved by the Commission becomes effective five business days after the agency adopting the rule delivers the rule to the Codifier of Rules, unless the agency adopt-ing the rule specifies a later effective date. If the agency specifies a later effective date, the rule becomes effective on that date. (c) OSHA Standard. — A permanent rule con-cerning 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. § 150B-21.4. Fiscal notes on rules. (a) 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 Executive Budget Act, Article 1 of Chapter 143, it must submit the text of the proposed rule change and a fiscal note on the proposed rule change to the Director of the Budget and obtain certification from the Director 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 Director of the Budget must 7:13 NORTH CAROLINA REGISTER October 1, 1992 1260 GENERAL STATUTES OF NORTH CAROLINA certify a proposed rule change if funds are avail-able to cover the expenditure or distribution required by the proposed rule change. (b) 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 govern-ment, it must submit the text of the proposed rule change and a fiscal note on the proposed rule change to the Fiscal Research Division of the General Assembly, the Office of State Budget and Management, 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. (c) Errors. — An erroneous fiscal note prepared in good faith does not affect the validity of a rule. § 150B-21.5. Circumstances when notice and rule-making hearing not required. (a) Amendment. — An agency is not required to publish a notice of rule making in the North Carolina Register or hold a public hearing when it proposes to amend a rule, without changing the substance of the 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 be-come inaccurate since the rule was adopted because of the repeal or renum-bering of the cited rule or law. (4) Change information that is readily available to the public, such as an address or a telephone number. (5) Correct a typographical error made in entering the rule in the North Carolina Administrative Code. (6) Change a rule in response to a request or an objection by the Commission. (b) Repeal. — An agency is not required to publish a notice of rule making 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. (c) OSHA Standard. — The Occupational Safety and Health Division of the Department of Labor is not required to publish a notice of rule making in the North Carolina Register or hold a public hearing when it proposes to adopt a rule that concerns an occupational safety and health stan-dard and is identical to a federal regulation pro-mulgated 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. § 150B-21.6. Incorporating material in a rule by reference. An agency may incorporate the following materi-al 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 regula-tion adopted by another agency, the federal government, or a generally recog-nized organization or association. (3) Material adopted to meet a requirement of the federal government. 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 adopt-ed 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 accor-dance with former G.S. 150B-14(c) is a statement that the rule includes subsequent amendments and editions of the referenced material. § 150B-21.7. Effect of transfer of duties or termination of agency on rules. 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 amends or repeals the rule. When a law that authorizes an agency to adopt a rule is re-pealed and another law does not give the same or ( 1261 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA 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. 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 trans-ferred function remains in effect until the agency to which the function is transferred amends or repeals the rule. When an executive order abolish-es 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 Director of Fiscal Research of the General Assembly must notify the Codifier of Rules when a rule is repealed under this section. When noti-fied of a rule repealed under this section, the Codifier of Rules must enter the repeal of the rule in the North Carolina Administrative Code. Part 3. Review by Commission. § 150B-21.8. Review of rule by Commission. (a) Temporary Rule. — The Commission does not review a temporary rule. (b) Permanent Rule. — An agency must submit a permanent rule adopted by it to the Commission before the rule can be included in the North Carolina Administrative Code. The Commission reviews a 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 permanent rule. (c) Scope. — When the Commission reviews an amendment to a rule, it may review the entire rule that is being amended. The procedure in G.S. 1 50B-2 1.12 applies when the Commission objects to a part of a rule that is within its scope of review but is not changed by a rule amendment. § 150B-21.9. Standards and timetable for review by Commission. (a) Standards. -- The Commission must deter-mine 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 fulfill a duty delegated to the agency by the General Assembly. The Commission may determine if a rule submit-ted to it was adopted in accordance with Part 2 of this Article. The Commission must notify the agency that adopted the rule if it determines that a rule was not adopted in accordance with Part 2 of this Article and must return the rule to the agency. Entry of a rule in the North Carolina Administra-tive Code after review by the Commission is conclusive evidence that the rule was adopted in accordance with Part 2 of this Article. (b) Timetable. — The Commission must review a 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. § 150B-21.10. Commission action on perma-nent rule. At the first meeting at which a permanent rule is before the Commission for review, the Commis-sion must take one of the following actions: (1) Approve the rule, if the Commission determines that the rule meets the stan-dards 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. § 150B-21.il. 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 must deliver the approved rule to the Codifier of Rules. The Commission must deliver an approved rule by the end of the month in which the Commission approved the rule, unless the agency asks the Commission to delay the delivery of the rule. § 150B-21.12. Procedure when Commission objects to a permanent rule. (a) Action. -- When the Commission objects to a permanent rule, it must send the agency that adopted the rule a written statement of the objec-tion and the reason for the objection. The agency that adopted the rule must take one of the follow-ing 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 Com-mission indicating that the agency has decided not to change the rule. 7:13 NORTH CAROLINA REGISTER October 1, 1992 1262 GENERAL STATUTES OF NORTH CAROLINA An agency that is not a board or commission must take one of these actions 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 regular-ly scheduled meeting, whichever comes later. 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 Commis-sion 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. 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 may send to the President of the Senate and each member of the General Assembly a report of its objection to the rule. (b) Entry in Code. -- When the Commission returns a rule to which it has objected to the agency that adopted the rule, the Commission must notify the Codifier of Rules of its action and of the basis of the Commission's objection. An agency whose rule is returned may file the rule with the Codifier of Rules. When the Codifier of Rules enters in the North Carolina Administrative Code a rule to which the Commission objected, the entry must reflect the Commission's objection and must state the standard on which the Commission based its objection. § 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 Commis-sion 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. § 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. § 150B-21.15. Declaratory judgment action authorized when Commission objects to a per-manent rule. (a) Standing. -- A person aggrieved by a perma-nent rule entered in the North Carolina Adminis-trative Code with an objection by the Commission based on a lack of statutory authority 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 exceeded its authority in adopting the rule. A declaratory judgment action under this section must be filed within 90 days after the rule that is the subject of the action is entered in 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 section. A person who files an action for declaratory judgment under this section must serve a copy of the complaint on the agency that adopted the rule being contested, the Codifier of Rules, and the Commission. (b) Record. -- Within 10 days after a declaratory judgment action is filed under this section, the agency that adopted the rule that is the subject of the action must send to the court the original or a certified copy of the record in the Commission's review of the rule. The record 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 docu-ments before the Commission when it decided to object to the rule. (c) Effect. — A rule remains in effect during the pendency of an action for declaratory judgment under this section unless the court suspends the rule after finding that the agency that adopted the rule has no substantial likelihood of prevailing in the action. (d) Changes. — While a rule is the subject of a declaratory judgment action under this section, the agency that adopted the rule may submit to the Commission changes in the rule to satisfy the 1263 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA Commission's objection. If the Commission determines that changes submitted to it satisfy its objection, the Commission must accept the changes and file the revised rule with the Codifier of Rules. The Codifier must then enter the rule in the North Carolina Administrative Code. When the Commission determines that changes submitted to it satisfy its objection, the agency that submitted the changes must notify the court of the changes and of the Commission's action. Part 4. Publication of Code and Register. § 150B-21.17. North Carolina Register. (a) 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) Notices of proposed adoptions of rules. (2) Notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165. (3) Executive orders of the Governor. (4) Final decision letters from the United States Attorney General concerning changes in laws that affect voting in a jurisdiction subject to § 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H. (5) Orders of the Tax Review Board issued under G.S. 105-241.2. (6) Other information the Codifier deter-mines helpful to the public. (b) 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 pub-lishing the text of a proposed new rule, the Codifi-er must indicate the rule is new by underlining the proposed text of the rule. 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 publish-ing the text of a proposed amendment to a rule, the Codifier must indicate deleted text with over-strikes 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 com-plete 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. § 150B-21.18. North Carolina Administrative Code. The Codifier of Rules must compile all rules into a Code known as the North Carolina Administra-tive Code. The format and indexing of the Code must conform as nearly as practical to the format and indexing of the North Carolina General Stat-utes. The Codifier must publish printed copies of the Code and may publish the Code in other forms. 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. The Codifier must keep superseded rules. § 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 agen-cy that adopted the rule. (3) Be in the physical form specified by the Codifier of Rules. (4) Have been reviewed by the Commission, if the rule is a permanent rule. § 150B-21.20. Codifier's authority to revise form of rules. (a) Authority. — After consulting with the agency that adopted the rule, the Codifier of Rules may revise the form of a rule submitted for inclu-sion in the North Carolina Administrative Code within 10 business days after the rule is submitted 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 sub-stance of the rule and are necessary or desirable for a clear and orderly ar-rangement of the rule. 7:13 NORTH CAROLINA REGISTER October 1, 1992 1264 GENERAL STATUTES OF NORTH CAROLINA (b) 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. § 150B-21.21. Publication of rules of North Carolina State Bar and exempt agencies. (a) 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 inclu-sion in the North Carolina Administrative Code. The State Bar must submit a rule within 15 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. (b) Exempt Agencies. — Notwithstanding G.S. 150B-1, the North Carolina Utilities Commission must submit to the Codifier of Rules those rules of the Utilities Commission that are published from time to time in the publication titled "North Caroli-na Utilities Laws and Regulations." The Utilities Commission must submit a rule required to be included in the Code within 15 days after it is adopted. The Codifier of Rules must publish the rules submitted by the Utilities Commission in the North Carolina Administrative Code in the same format as they are submitted. Notwithstanding G.S. 150B-1, an agency other than the Utilities Commission that is exempted from this Article by that statute must submit a temporary or permanent rule adopted by it to the Codifier of Rules for inclusion in the North Caroli-na Administrative Code. One of these exempt agencies must submit a rule to the Codifier of Rules within 15 days after it adopts the rule. The Codifier of Rules must compile, make available for public inspection, and publish a rule of one of these agencies in the North Carolina Administra-tive Code in the same manner as other rules in the Code. § 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. Codification of a rule in the North Carolina Administrative Code is prima facie evidence of compliance with this Article. § 150B-21.23. Rule publication manual. The Codifier of Rules must publish a manual that sets out the form and method for publishing a notice of rule making in the North Carolina Regis-ter and for filing a rule in the North Carolina Administrative Code. § 150B-21.24. Free copies of Register and Code. (a) Register. — The Codifier of Rules must distribute copies of the North Carolina Register as soon after publication as practical, without charge, to the following: (1) A person who receives a free copy of the North Carolina Administrative Code. (2) Upon request, one copy to each mem-ber of the General Assembly. (b) Code. — The Codifier of Rules must distrib-ute copies of the North Carolina Administrative Code as soon after publication as practical, without charge, to the following: (1) One copy to the board of commission-ers of each county, to be placed at the county clerk of court's office or at another place selected by the board of commissioners. (2) One copy to the Commission. (3) One copy to the Clerk of the Supreme Court and to the Clerk of the Court of Appeals of North Carolina. (4) One copy to the Supreme Court Library and one copy to the library of the Court of Appeals. (5) One copy to the Administrative Office of the Courts. (6) One copy to the Governor. (7) Five copies to the Legislative Services Commission for the use of the General Assembly. (8) Upon request, one copy to each State official or department to whom or to which copies of the appellate division reports are furnished under G.S. 7A-343.1. (9) Five copies to the Division of State Library of the Department of Cultural Resources pursuant to G.S. 125-11.7. § 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. 1265 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA and mailing costs. All monies received under this section must be credited to the General Fund. Article 3. Administrative Hearings. § 150B-22. Settlement; contested case. It is the policy of this State that any dispute between an agency and another person that in-volves the person's rights, duties, or privileges, including licensing or the levy of a monetary penalty, should be settled through informal proce-dures. 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. If the agency and the other person do not agree to a resolution of the dispute through informal proce-dures, either the agency or the person may com-mence an administrative proceeding to determine the person's rights, duties, or privileges, at which time the dispute becomes a "contested case." § 150B-23. Commencement; assignment of administrative law judge; hearing required; notice; intervention. (a) A contested case shall be commenced 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 or a represen-tative of the party and, if filed by a party other than an agency, shall state facts tending to estab-lish 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. 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 Chap-ter 126 of the General Statutes applies may com-mence a contested case under this Article in the same manner as any other petitioner. The case shall be conducted in the Office of Administrative Hearings in the same manner as other contested cases under this Article, except that the decision of the State Personnel Commission shall be advisory only and not binding on the local appointing authority, unless (1) the employee, applicant, or former employee has been subjected to discrimina-tion prohibited by Article 6 of Chapter 126 of the General Statutes or (2) applicable federal stan-dards require a binding decision. In these two cases, the State Personnel Commission's decision shall be binding. (al) Repealed by Session Laws 1985 (Reg. Sess., 1986), c. 1022, s. 1(9). (a2) 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. (b) 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. (c) Notice shall be given personally or by certified mail. If given by certified mail, it shall be deemed to have been given on the delivery date appearing on the return receipt. If giving of notice cannot be accomplished either personally or by certified mail, notice shall then be given in the manner provided in G.S. 1A-1, Rule 4(jl). (d) 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. (e) 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. (f) 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 7:13 NORTH CAROLINA REGISTER October 1, 1992 1266 GENERAL STATUTES OF NORTH CAROLINA 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 or by the placing of the notice in an official deposito-ry 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 settle-ment 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. § 150B-24. Venue of hearing. (a) 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 main-tains 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 admin-istrative law judge in his discretion to promote the ends of justice or better serve the convenience of witnesses. (b) Any person whose property or rights are the subject matter of the hearing waives his objection to venue by proceeding in the hearing. § 150B-25. Conduct of hearing; answer. (a) If a party fails to appear in a contested case after proper service of notice, and if no adjourn-ment or continuance is granted, the administrative law judge may proceed with the hearing in the absence of the party. (b) Repealed. (c) 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. (d) 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. § 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 Hear-ings 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. § 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 re-quired does not relate to a matter in issue, the subpoena does not describe with sufficient particu-larity 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. § 150B-28. Depositions and discovery. (a) 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 contest-ed cases may engage in discovery pursuant to the provisions of the Rules of Civil Procedure, G.S. 1A-1. (b) On a request for identifiable agency records, with respect to material facts involved in a contest-ed case, except records related solely to the inter-nal 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. (a) In all contested cases, irrelevant, immaterial and unduly repetitious evidence shall be excluded. Except as otherwise provided, the rules of evi-dence as applied in the trial division of the General Court of Justice shall be followed; but. when evidence is not reasonably available under the 1267 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA rules to show relevant facts, then the most reliable and substantial evidence available shall be admit-ted. On the judge's own motion, an administrative law judge may exclude evidence that is inadmissi-ble under this section. 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 recommended decision, by the agency in making a final decision, or by the court on judicial review. (b) 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 exami-nation by the parties. Upon timely request, a party shall be given an opportunity to compare the copy with the original if available. § 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. § 150B-31. Stipulations. (a) 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. (b) Except as otherwise provided by law, dispo-sition may be made of a contested case by stipula-tion, agreed settlement, consent order, waiver, default, or other method agreed upon by the parties. § 150B-32. Designation of administrative law judge. (a) The Director of the Office of Administrative Hearings shall assign himself or another adminis-trative law judge to preside over a contested case. (al) Repealed by Session Laws 1985 (Reg. Sess., 1986), c. 1022, s. 1 (15), effective July 15, 1986. (b) 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 deter-mination shall be subject to judicial review at the conclusion of the proceeding. (c) When an administrative law judge is disqual-ified or it is impracticable for him to continue the hearing, the Director shall assign another adminis-trative 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. § 150B-33. Powers of administrative law judge. (a) 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 pro-ceedings, 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 con-tested case shall proceed and be determined as expeditiously as possible. (b) 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; (3a) Rule on all prehearing motions that are authorized by G.S. 1A-1, the Rules of Civil Procedure; (4) 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; (5) Direct the parties to appear and confer to consider simplification of the issues by consent of the parties; (6) 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; (7) Determine whether the hearing shall be recorded by a stenographer or by an 7:13 NORTH CAROLINA REGISTER October 1, 1992 1268 GENERAL STATUTES OF NORTH CAROLINA electronic device; and (8) Enter an order returnable in the General Court of Justice, Superior Court Divi-sion, 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 indi-rect contempt if the act occurred in an action pending in Superior Court. (9) 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 unambigu-ous 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. (10) Impose the sanctions provided for in G.S. 1 A-l or Chapter 3 of Title 26 of the North Carolina Administrative Code for noncompliance with applicable procedural rules. § 150B-34. Recommended decision or order of administrative law judge. (a) Except as provided in G.S. 150B-36(c), in each contested case the administrative law judge shall make a recommended decision or order that contains findings of fact and conclusions of law. (b) Repealed. § 150B-35. No ex parte communication; exceptions. Unless required for disposition of an ex parte matter authorized by law, neither the administra-tive law judge assigned to a contested case nor a member or employee of the agency making a final decision in the case may 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. § 150B-36. Final decision. (a) Before the agency makes a final decision, it shall give each party an opportunity to file excep-tions to the decision recommended by the adminis-trative law judge, and to present written arguments to those in the agency who will make the final decision or order. If a party files in good faith a timely and sufficient affidavit of personal bias or other reason for disqualification of a member of the agency making the final decision, the agency shall determine the matter as a part of the record in the case, and the determination is subject to judicial review at the conclusion of the case. (b) A final decision or order in a contested case shall be made by the agency in writing after review of the official record as defined in G.S. 150B-37(a) and shall include findings of fact and conclusions of law. If the agency does not adopt the administrative law judge's recommended decision as its final decision, the agency shall state in its decision or order the specific reasons why it did not adopt the administrative law judge's rec-ommended decision. The agency may consider only the official record prepared pursuant to G.S. 150B-37 in making a final decision or order, and the final decision or order shall be supported by substantial evidence admissible under G.S. 150B-29(a), 150B-30. or 150B-31. A copy of the decision or order shall be served upon each party personally or by certified mail addressed to the party at the latest address given by the party to the agency, and a copy shall be furnished to his attorney of record and the Office of Administrative Hearings. (c) The following decisions made by administra-tive law judges in contested cases are final deci-sions: (1) A determination that the Office of Administrative Hearings lacks jurisdic-tion. (2) An order entered pursuant to the au-thority in G.S. 7A-759(e). (3) An order entered pursuant to a written prehearing motion that either dismisses the contested case for failure of the petitioner to prosecute or grants the relief requested when a party does not comply with procedural requirements. (4) An order entered pursuant to a prehearing motion to dismiss the con-tested case in accordance with G.S. 1A-1, Rule 12(b) when the order dis-poses of all issues in the contested case. § 150B-37. Official record. (a) In a contested case, the Office of Adminis-trative Hearings shall prepare an official record of the case that includes: (1) Notices, pleadings, motions, and inter-mediate rulings; (2) Questions and offers of proof, objec-tions, and rulings thereon; (3) Evidence presented; (4) Matters officially noticed, except mat-ters so obvious that a statement of them would serve no useful purpose; and (5) Repealed by Session Laws 1987. c. 878, s. 25, effective August 14, 1987. (6) The administrative law judge's recom- 1269 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA mended decision or order, (b) 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. (c) The Office of Administrative Hearings shall forward a copy of the official record to the agency making the final decision and shall forward a copy of the recommended decision to each party. Article 3A. Other Administrative Hearings. § 150B-38. Scope; hearing required; notice; venue. (a) The provisions of this Article shall apply to the following agencies: (1) Occupational licensing agencies; (2) The State Banking Commission, the Commissioner of Banks, the Savings Institutions Division of the Department of Economic and Community Develop-ment, and the Credit Union Division of the Department of Economic and Com-munity Development; and (3) The Department of Insurance and the Commissioner of Insurance. (b) 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 hear-ing. 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. (c) Notice shall be given personally or by certified mail. If given by certified mail, notice shall be deemed to have been given on the delivery date appearing on the return receipt. If notice cannot be given personally or by certified mail, then notice shall be given in the manner provided in G.S. 1A-1, Rule 4(jl). (d) 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 hear-ing. (e) 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 administra-tive 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 admin-istrative 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. (f) 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. 1 A- 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. (g) 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. (h) Every agency shall adopt rules governing the conduct of hearings that are consistent with the provisions of this Article. § 150B-39. Depositions; discovery; subpoe-nas. (a) 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. (b) 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. (c) 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 7:13 NORTH CAROLINA REGISTER October 1, 1992 1270 GENERAL STATUTES OF NORTH CAROLINA 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 em-ployees who are subpoenaed shall be reimbursed as provided in G.S. 138-6. § 150B-40. Conduct of hearing; presiding officer: ex parte communication. (a) 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. 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. (b) 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 person-al 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 tc any party, a new hearing shall be held or the case dismissed without prejudice. (c) 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 hear-ings, 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 presid-ing 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. (d) 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 con-tested case under this Article shall not communi-cate, 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 investi-gating 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, econom-ics or financial analysis insofar as the case in-volves financial practices or conditions. (e) 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 Administra-tive Hearings for the designation of an administra-tive law judge to preside at the hearing of a con-tested case under this Article. Upon receipt of the application, the Director shall, without undue delay, assign an administrative law judge to hear the case. The provisions of this Article, rather than the provisions of Article 3, shall govern a contested case in which the agency requests an administra-tive 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 1271 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA a proposal for decision, which shall contain pro-posed 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 pro-ceedings, 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 con-tested 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 opportuni-ty is given to each party to file exceptions and proposed findings of fact and to present oral and written arguments to the agency. § 150B-41. Evidence; stipulations; official notice. (a) In all contested cases, irrelevant, immaterial, and unduly repetitious evidence shall be excluded. Except as otherwise provided, the rules of evi-dence 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 consider-ation by the agency in reaching its decision, or by the court of judicial review. (b) 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 G.S. 150B-30. Documentary evidence may be received in the form of a copy or excerpt or may be incor-porated by reference, if the materials so incorpo-rated 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. (c) 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. (d) 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. § 150B-42. Final agency decision; official record. (a) 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 deci-sion or order shall include findings of fact and conclusions of law. Findings of fact shall be based exclusively on the evidence and on matters offi-cially 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 personally or by certified mail addressed to the party at the latest address given by the party to the agency and a copy shall be furnished to his attorney of record. (b) An agency shall prepare an official record of a hearing that shall include: (1) Notices, pleadings, motions, and inter-mediate rulings; (2) Questions and offers of proof, objec-tions, and rulings thereon; (3) Evidence presented; (4) Matters officially noticed, except mat-ters 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. (c) Proceedings at which oral evidence is pre- 7:13 NORTH CAROLINA REGISTER October 1, 1992 1272 GENERAL STATUTES OF NORTH CAROLINA sented shall be recorded, but need not be tran-scribed 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. Article 4. Judicial Review. § 150B-43. Right to judicial review. Any person who is aggrieved by the final deci-sion in a contested case, and who has exhausted all administrative remedies made available to him 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 person from invoking any judi-cial remedy available to him under the law to test the validity of any administrative action not made reviewable under this Article. § 150B-44. Right to judicial intervention when decision unreasonably delayed. 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. An agency that is subject to Article 3 of this Chapter and is not a board or commission has 90 days from the day it receives the official record in a contested case from the Office of Administrative Hearings to make a final decision in the case. This time limit may be extended by the parties or, for good cause shown, by the agency for an additional period of up to 90 days. An agency that is subject to Article 3 of this Chapter and is a board or commission has 90 days from the day it receives the official record in a contested case from the Office of Administrative Hearings or 90 days after its next regularly scheduled meeting, whichever is longer, to make a final decision in the case. This time limit may be extended by the parties or, for good cause shown, by the agency for an additional period of up to 90 days. If an agency subject to Article 3 of this Chapter has not made a final decision within these time limits, the agency is considered to have adopted the adminis-trative law judge's recommended decision as the agency's final decision. Failure of an agency subject to Article 3A of this Chapter to make a final decision within 180 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 compel-ling action by the agency or, if the case was heard by an administrative law judge, by the administra-tive law judge. § 150B-45. Procedure for seeking review; waiver. To obtain judicial review of a final decision under this Article, the person seeking review must file a petition in the Superior Court of Wake County or in the superior court of the county where the person resides. The person seeking review must file the petition within 30 days after the person is served with a written copy of the decision. 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. § 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 peti-tion 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 re-sponse. Any person aggrieved may petition to become a party by filing a motion to intervene as provided in G.S. 1A-1, Rule 24. § 150B-47. Records fded with clerk of superi-or 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 agency that made the final decision in the contested case shall transmit to the reviewing court the original or a certified copy of the official record in the contested case under review together with: (i) any exceptions, proposed findings of fact, or written arguments submitted to the agency in accordance with G.S. 150B-36(a); and (ii) the agency's final decision or order. With the permission of the court, the record may be shortened by stipulation of all 1273 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA parties to the review proceedings. Any party unreasonably refusing to stipulate to limit the record may be taxed by the court for such addi-tional costs as may be occasioned by the refusal. The court may require or permit subsequent corrections or additions to the record when deemed desirable. § 150B-48. Stay of decision. At any time before or during the review proceed-ing, the person aggrieved may apply to the review-ing 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. § 150B-49. New evidence. An aggrieved person 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 recommended decision in the case, the court shall remand the case to the agency that conducted the administrative hearing. 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 recommended 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 recommended decision. The administra-tive law judge shall forward a copy of his decision to the agency that made the final decision, which in turn may affirm or modify its previous findings of fact and final decision. The additional evidence and any affirmation or modification of a recom-mended decision or final decision shall be made part of the official record. § 150B-50. Review by superior court without jury- The review by a superior court of agency deci-sions under this Chapter shall be conducted by the court without a jury. § 150B-51. Scope of review. (a) Initial Determination in Certain Cases. In reviewing a final decision in a contested case in which an administrative law judge made a recom-mended decision, the court shall make two initial determinations. First, the court shall determine whether the agency heard new evidence after receiving the recommended decision. If the court determines that the agency heard new evidence, the court shall reverse the decision or remand the case to the agency to enter a decision in accor-dance with the evidence in the official record. Second, if the agency did not adopt the recom-mended decision, the court shall determine wheth-er the agency's decision states the specific reasons why the agency did not adopt the recommended decision. If the court determines that the agency did not state specific reasons why it did not adopt a recommended decision, the court shall reverse the decision or remand the case to the agency to enter the specific reasons. (b) Standard of Review. After making the determinations, if any, required by subsection (a), the court reviewing a final decision may affirm the decision of the agency or remand the case for further proceedings. It may also reverse or modi-fy the agency's decision if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are: (1) In violation of constitutional provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (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 or capricious. § 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. 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. Article 5. Publication of Administrative Rules. Repealed. 7:13 NORTH CAROLINA REGISTER October 1, 1992 1274 IN ADDITION G.S. 1 20-30. 9H, effective July 16, 1986, requires that all letters and other documents issued by the Attorney General of the United States in which a final decision is made concerning a "change affecting voting " under Section 5 of the Voting Rights Act of 1965 be published in the North Carolina Register. ( U.S. Department of Justice Civil Rights Division JRD:LLT:CGM:lrj Voting Section DJ 166-012-3 P.O. Box 66128 92-3079 Washington, D.C. 20035-6128 92-3343 August 28, 1992 Jesse L. Warren, Esq. City Attorney Drawer W-2 Greensboro, North Carolina 27402 Dear Mr. Warren: This refers to two annexations (Ordinance Nos. 92-75 and 92-88) and the designation of the annexed areas to election districts for the City of Greensboro in Guilford County, North Carolina, submissions, / submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submissions on June 29 and July 20, 1992. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. In addition, as authorized by Section 5, we reserve the right to reexamine this submission if additional information that would otherwise require an objection comes to our attention during the remainder of the sixty-day review period. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41 and 51.43). Sincerely, John R. Dunn Assistant Attorney General Civil Right Division By: Steven H. Rosenbaum Chief, Voting Section < 1275 7:13 NORTH CAROLINA REGISTER October 1, 1992 PROPOSED RULES TITLE 2 - DEPARTMENT OF AGRICULTURE Notice is hereby given in accordance with G.S. 150B-21. 2 that the North Carolina Pesticide Board intends to amend rule(s) cited as 2 NCAC 9L .0524 and .0701 . 1 he proposed effective date of this action is February 1, 1993. 1 he public hearing will be conducted at 1:00 p.m. on November 5, 1992, at the Board Room, Agriculture Building, 2 West Edenton Street, Raleigh, NC 27601. Keason for Proposed Action: 2 NCAC9L . 0524 - To include pest control consul-tants examination requirement citation from the N. C. Pesticide Law of 1971. 2 NCAC9L .0701 - To amend the North Carolina Pesticide Board's current rule in which pine voles and meadow voles have been declared to be pests in certain sites, to clarify those sites, and to include the additional sites of institutional, recre-ational, and residential areas. (comment Procedures: Interested persons may present statements either orally or in writing at the public hearing or in writing prior to the hearing by mail addressed to John L. Smith, Secretary, North Carolina Pesticide Board, P. O. Box 27647, Ra-leigh, NC 27611. CHAPTER 9 - FOOD AND DRUG PROTEC-TION DIVISION SUBCHAPTER 9L - PESTICIDE SECTION SECTION .0500 - PESTICIDE LICENSES .0524 EXPIRATION OF CERTIFICATION (a) The recertification period shall expire on June 30th. (b) At the direction of the Board, each certified individual will be notified 6-9 months prior to the recertification expiration date of the individual's remaining requirements for recertification. (c) A certified individual who has completed none of the recertification options in Rule .0522 of this Section prior to the recertification expiration date shall be required to retake and satisfactorily pass a comprehensive license examination defined in G.S. 143-453 or 143-455 before a license will be reissued in any category. This examination will be based on updated training materials approved by the Board. (d) No individual will be allowed to carry over any Continuing Certification Credits from one recertification period to another. Statutory Authority G.S. 143-437(1); 143-440(b); 143-453(c)(2); 143-455(d). SECTION .0700 - DECLARATION OF PESTS AND RESTRICTIONS ON THEIR CONTROL .0701 ORCHARD RATS The North Carolina Pesticide Board hereby declares as a pest pine voles [Pitymys (or Micro-tus) Pinetorum] and meadow voles (Microtus pennsylvanicus), (commonly called orchard rats) on or immediately adjacent to cultivated land or horticultural, nursery, or forest plantings of trees ef — shrubs cultivated land, forest plantations, ornamentals nurseries, orchards, or horticultural plantings in institutional, recreational, and residen-tial areas . Statutory Authority G.S. 143-444(1). TITLE 10 - DEPARTMENT OF HUMAN RESOURCES Notice is hereby given in accordance with G.S. 150B-21 .2 that the Commission for Mental Health, Developmental Disabilities and Substance Abuse Services intends to adopt rule cited as 10 NCAC 18L . 1525 and amend rules cited as 10 NCAC 14K .0103, .0314 - .0315; 140 .0106; 14Q .0106, .0303; 14R .0104 - .0105; 18J .0604; 18P .0903, .1003. 1 he proposed effective date of this action is January 4, 1993. 1 he public hearing will be conducted at 2:00 7:13 NORTH CAROLINA REGISTER October 1, 1992 1276 PROPOSED RULES p.m. on November 13, 1992 at the Wilmington Hilton, North Water Street, Garden Room - Second Floor, Wilmington, N.C. 28401. MXeason for Proposed Action: 10 NCAC 14K .0103, .0314, .0315 - Die pro-posed changes are to insert new language and new services into licensure requirements regarding early intervention to comply with changes in 34 CFR 303. 12 (Federal Early Intervention Regula-tions). In October of 1991, P.L. 99-457 was reauthorized by Congress. Statutory changes resulted in revi-sions in the federal regulations, most of which involved terminology and clarification only; howev-er, one change involving a new service require-ment is transportation. 10 NCAC 140 .0106 - Vie proposed change is to ensure the provider has all necessary information regarding the client, and that responsibilities for the provider are specified in the agreement. In addition, the proposed change is for consistency with same subject in other services regarding licensure requirements and client record documen-tation. 10 NCAC 14Q .0303 - To ensure informed con-sent is obtained whenever a restrictive intervention is employed on a planned basis. 10 NCAC 14R .0104 - To more clearly state in facility policy the required time frame for a review by a qualified professional whenever a restrictive intervention is used on a planned basis. 10 NCAC 14R .0105 - To qualify which facilities are subject to review by the Client Rights Commit-tee. early intervention service without jeopardizing their right to receive other early intervention services. 10 NCAC 18P .0903 - The proposed amendment is to delete the requirement for Division approval of written agreement. 10 NCAC 18P .1003 - The proposed amendment is to delete the requirement for Division approval of written agreement, and to allow consistency with other similar Rules for exchange of informa-tion. Comment Procedures: Any interested person may present his comments by oral presentation or by submitting a written statement. Written comments must be sent to Charlotte Tucker, Division of Mental Health, Developmental Disabilities and Substance Abuse Services, 325 North Salisbury Street, Raleigh, North Carolina 27603 by Novem-ber 2, 1992 and must state the Rules to which the comments are addressed. Persons wishing to make oral presentations should contact Charlotte Tucker at 919-733-4774 by November 11, 1992. Time limits for oral remarks may be imposed by the Commission Chairman. Fiscal information on these Rules is available from the Division by request. CHAPTER 14 - MENTAL HEALTH: GENERAL SUBCHAPTER 14K - CORE LICENSURE RULES FOR MENTAL HEALTH: MENTAL RETARDATION AND OTHER DEVELOP-MENTAL DISABILITDZS: AND SUBSTANCE ABUSE FACILITIES SECTION .0100 - GENERAL INFORMA-TION 10 NCAC 18J .0604 - 77zis Rule setsforth require-ments regarding State facility relationships for a facility which is area-operated or a contract agency. Tfie proposed change is to clarify the population served and to delete reference to re-gional director which no longer exists. Die pro-posed amendment will allow for consistency with other Rules. 10 NCAC 18L .1525 - Die proposed adoption of this Rule will allow parents of a child, eligible to receive services, to accept or decline any type of .0103 DEFINITIONS (a) This Rule contains the definitions that apply to all the rules in this Subchapter and Subchapters 14L through 140 of this Chapter. (b) In addition to the definitions contained in this Rule, the terms defined in G.S. 122C-3 also apply to all the rules in this Subchapter and Sub-chapters 14L through 140 of this Chapter. (c) The following terms shall have the meanings specified: (1) "Administering medication" means direct application of a drug to the body ( 7277 7:13 NORTH CAROLINA REGISTER October 1, 1992 PROPOSED RULES > of a client by injection, inhalation, ingestion, or any other means. (2) "Adolescent" means a minor from 13 through 17 years of age. (3) "Adult" means a person 18 years of age or older or a person under 18 years of age who has been married or who has been emancipated by a court of compe-tent jurisdiction or is a member of the armed forces. (4) "Aftercare" means those services pro-vided to substance abuse clients after discharge from a service which facili-tates the client's integration or reinte-gration into society. Activities may include self-help groups, supportive work programs and staff follow-up contacts and interventions. (5) "Alcohol abuse" means psychoactive substance abuse which is a residual category for noting maladaptive patterns of psychoactive substance use that have never met the criteria for dependence for that particular class of substance (criteria delineated in the 1987 edition of DSM-II1-R published by the Ameri-can Psychiatric Association, 1400 K Street, N.W., Washington, D.C. 20005 at a cost of twenty-nine dollars and ninety-five cents ($29.95) for the soft cover edition and thirty-nine dollars and ninety-five cents ($39.95) for the hard cover edition.) This adoption by refer-ence does not include subsequent amendments and editions of the refer-enced material. (6) "Alcohol dependence" means psychoac-tive substance dependence which is a cluster of cognitive behavioral, and physiologic symptoms that indicate that a person has impaired control of psy-choactive substance use and continues use of the substance despite adverse consequences (criteria delineated in the 1 987 edition of DSM-III-R published by the American Psychiatric Association, 1400 K Street, N.W., Washington, D.C. 20005 at a cost of twenty-nine dollars and ninety-five cents ($29.95) for the soft cover edition and thirty-nine dollars and ninety-five cents ($39.95) for the hard cover edition.) This adoption by reference does not include subsequent amendments and editions of the referenced material. (7) "Applicant" means any person who intends to establish, maintain or operate a licensable facility and who applies to the Department for a license to operate a facility under the provisions of G.S. 122C, Article 2. (8) "Approved supported employment conversion plan" means a planned approach to changing the type of servic-es delivered from ADAP facility-based to supported employment. Approval of the conversion plan is the responsibility of the Regional Director of the Division and the Area Director or his designee if the facility is operated by a contract agency of the area program or other service provider. The Division shall request appropriate personnel from the Division of Vocational Rehabilitation to participate in the review process. The request for approval of the supported employment conversion plan shall include specific written information in the following areas: (A) number of clients to be moved into supported employment placements; (B) types of supported employment mod-els to be used; (C) timeframe for the conversion period; (D) interim proposed facility staffing patterns and responsibilities; and (E) proposed budget for conversion plan. (9) "Area program" means a legally consti-tuted public agency providing mental health, mental retardation and substance abuse services for a catchment area designated by the Commission. For purposes of these Rules, the term "area program" means the same as "area authority" as defined in G.S. 122C-3. (10) "Assessment" means a procedure for determining the nature and extent of the problem for which the individual is seeking service. (11) "Atypical development" in children means those from birth to 60 months of age who demonstrate significantly atypical behavioral socioemotional, motor, or sensory development as manifested by: (A) Diagnosed hyperactivity, attention deficit disorder or other behavioral disorders, or (B) Identified emotional or behavioral disorders such as: 7:13 NORTH CAROLINA REGISTER October I, 1992 1278 PROPOSED RULES (i) delay or abnormality in achieving expected emotional milestones, such as pleasurable interest in adults and peers; ability to com-municate emotional needs; and ability to tolerate frustrations, (ii) persistent failure to initiate or respond to most social interac-tions, (iii) fearfulness or other distress that does not respond to comforting by caregivers, (iv) indiscriminate sociability, e.g. excessive familiarity with relative strangers, (v) self-injurious or unusually aggres-sive behavior, or (C) Substantiated physical abuse, sexual abuse, or other environmental situa-tions that raise significant concern regarding the child's emotional well-being. (12) "Certified counselor" means an alcohol-ism, drug abuse or substance abuse counselor who is certified by the North Carolina Substance Abuse Professional Certification Board. (13) "Child" means a minor from birth through 12 years of age. (14) "Chronically mentally ill adult" means an individual 18 years of age or older who, as a result of a mental disorder, exhibits emotional or behavioral func-tioning which is so impaired as to interfere substantially with his capacity to remain in the community without supportive treatment or services of a long-term or indefinite duration. In these persons, mental disability is se-vere and persistent, resulting in long-term limitation of their functional capacities for primary activities of daily living such as interpersonal relations, homemaking, self-care, employment and recreation. ( 15) "Client record" means a written account of all services provided a client from the time of admission of the client by the facility until discharge from the facility. (16) "Clinical" means having to do with the active direct treatment/habilitation of a client. (17) "Clinical staff member" means a pro-fessional who provides active direct treatment/habilitation to a client. (18) "Clinical/professional supervision" means regularly scheduled assistance by a qualified mental health professional, a qualified substance abuse professional or a qualified developmental disabilities professional to a staff member who is providing direct, therapeutic interven-tion to a client or clients. The purpose of clinical supervision is to ensure that each client receives appropriate treat-ment or habilitation which is consistent with accepted standards of practice and the needs of the client. (19) "Contested case" means an administra-tive proceeding under G.S. 150B, Article 3, in which the rights, privileg-es, or duties of a party are required by law to be determined. (20) "Contract agency" means a legally constituted entity with which the area program contracts for a service exclu-sive of intermittent purchase of service for an individually identified client. (21) "Day/night service" means a service provided on a regular basis, in a struc-tured environment that is offered to the same individual for a period of three or more hours within a 24-hour period. (22) "Declaratory ruling" means a formal and binding interpretation as to: (A) the validity of a rule; or (B) the applicability to a given state of facts of a statute administered by the Department of Human Resources, or a rule or order of the Department of Human Resources. (23) "Detoxification" means the physical withdrawal of an individual from alco-hol or other drugs in order that the individual can participate in rehabilita-tion activities. (24) "Developmentally delayed children" means those whose development is delayed in one or more of the following areas: cognitive development; physical development, including vision and hearing; language and speech; psycho social communication, social and emo-tional and self help adaptive skills. The specific level of delay must be: (A) for children from birth to 36 months of age, documented by scores 1 Vz standard deviations below the mean on standardized tests in at least one of 1279 7:13 NORTH CAROLINA REGISTER October 1, 1992 PROPOSED RULES I > the above areas of development. Or, it may be documented by a 20 percent delay on assessment instruments that yield scores in months; and (
Object Description
Description
Title | North Carolina register |
Date | 1992-10-01 |
Description | Vol. 7, issue 13 (October 1, 1992) |
Publisher | Raleigh, N.C. : Office of Administrative Hearings |
Digital Characteristics-A | 104 p.; 6.95 MB |
Digital Format | application/pdf |
Pres File Name-M | pubs_serial_ncregister19921001.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_serial_ncregister\images_master |
Full Text | KJ^VKl-^/ 7 m /' d /' 1 The ^fORTH CAROLINA REGISTER IN THIS ISSUE GENERAL STATUTES IN ADDITION Final Decision Letter PROPOSED RULES Agriculture Environment, Health, and Natural Resources Human Resources Medical Examiners, Board of RRC OBJECTIONS RULES INVALIDATED BY JUDICIAL DECISION CONTESTED CASE DECISIONS ISSUE DATE: October 1, 1992 Volume 7 • Issue 13 • Pages 1254-1350 RECEIVED OCT s 1992 LAW LIBRARY INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE NORTH CAROLINA REGISTER TEMPORARY RULES The North Carolina Register is published twice a month and contains information relating to agency, executive, legislative and judicial actions required by or affecting Chapter 150B of the General Statutes. All proposed administrative rules and notices of public hearings filed under G.S. 150B-21.2 must be published in the Register. The Register will typically comprise approximately fifty pages per issue of legal text. State law requires that a copy of each issue be provided free of charge to each county in the state and to various state officials and institutions. The North Carolina Register is available by yearly subscription at a cost of one hundred and five dollars (S105.00) for 24 issues. Individual issues may be purchased for eight dollars (S8.00). Requests for subscription to the North Carolina Register should be directed to the Office of Administrative Hearings, P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. Under certain emergency conditions, agencies may issue temporary rules. Within 24 hours of submission to OAH, the Codifier of Rules must review the agency's written statement of findings of need for the temporary rule pursuant to the provisions in G.S. 150B-21.1. If the Codifier determines that the findings meet the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If the Codifier determines that the findings do not meet the criteria, the rule is returned to the agency. The agency may supplement its findings and resubmit the temporary rule for an additional review or the agency may respond that it will remain with its initial position. The Codifier, thereafter, will enter the rule into the NCAC. A temporary rule becomes effective either when the Codifier of Rules enters the rule in the Code or on the sixth business day after the agency resubmits the rule without change. The temporary rule is in effect for the period specified in the rule or 180 days, whichever is less. An agency adopting a temporary rule must begin rule-making procedures on the permanent rule at the same time the temporary rule is filed with the Codifier. ADOPTION AMENDMENT, AND REPEAL OF RULES NORTH CAROLINA ADMINISTRATIVE CODE The following is a generalized statement of the procedures to be followed for an agency to adopt, amend, or repeal a rule. For the specific statutory authority, please consult Article 2A of Chapter 150B of the General Statutes. Any agency intending to adopt, amend, or repeal a rule must first publish notice of the proposed action in the North Carolina Register. The notice must include the time and place of the public hearing (or instructions on how a member of the public may request a hearing); a statement of procedure for public comments; the text of the proposed rule or the statement of subject matter; the reason for the proposed action; a reference to the statutory authority for the action and the proposed effective date. Unless a specific statute provides otherwise, at least 15 days must elapse following publication of the notice in the North Carolina Register before the agency may conduct the public hearing and at least 30 days must elapse before the agency can take action on the proposed rule. An agency may not adopt a rule that differs substantially from the proposed form published as part of the public notice, until the adopted version has been published in the North Carolina Register for an additional 30 day comment period. When final action is taken, the promulgating agency must file the rule with the Rules Review Commission (RRC). After approval by RRC, the adopted rule is filed with the Office of Administrative Hearings (OAH). A rule or amended rule generally becomes effective 5 business days after the rule is filed with the Office of Administrative Hearings for publication in the North Carolina Administrative Code (NCAC). Proposed action on rules may be withdrawn by the promulgating agency at any time before final action is taken by the agency or before filing with OAH for publication in the NCAC. The North Carolina Administrative Code (NCAC) is a compilation and index of the administrative rules of 25 state agencies and 38 occupational licensing boards. The NCAC comprises approximately 15,000 letter size, single spaced pages of material of which approximately 35% of is changed annually. Compilation and publication of the NCAC is mandated by G.S. 150B-21.18. The Code is divided into Titles and Chapters. Each state agency is assigned a separate title which is further broken down by chapters. Title 21 is designated for occupational licensing boards. The NCAC is available in two formats. (1) Single pages may be obtained at a minimum cost of two dollars and 50 cents (S2.50) for 10 pages or less, plus fifteen cents (SO. 15) per each additional page. (2) The full publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly with replacement pages. A one year subscription to the full publication including supplements can be purchased for seven hundred and fifty dollars (S750.00). Individual volumes may also be purchased with supplement service. Renewal subscriptions for supplements to the initial publication are available. Requests for pages of rules or volumes of the NCAC should be directed to the Office of Administrative Hearings. CITATION TO THE NORTH CAROLINA REGISTER The North Carolina Register is cited by volume, issue, page number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volume 1, Issue 1, pages 101 through 201 of the North Carolina Register issued on April 1, 1986. FOR INFORMATION CONTACT Office of Administrative Hearings, ATTN: Ru es Division, P.O. Drawer 27447, Raleigh, North Carolina 27611-7447, (919) 733-2678. NORTH CAROLINA REGISTER Office of Administrative Hearings P. O. Drawer 27447 Raleigh, North Carolina 27611-7447 (919) 733-2678 Julian Mann III, Director James R. Scarcella Sr., Deputy Director Molly Masich, Director of APA Services Staff: Ruby Creech, Publications Coordinator Teresa Kilpatrick, Editorial Assistant Jean Shirley, Editorial Assistant ISSUE CONTENTS I. GENERAL STATUTES Chapter 150B 1254 II. IN ADDITION Final Decision Letter 1275 III. PROPOSED RULES Agriculture Pesticide Board 1276 Environment, Health, and Natural Resources Wildlife Resources Commission 1299 Human Resources Medical Assistance 1295 Mental Health, Developmental Disabilities and Substance Abuse Services 1276 Licensing Board Medical Examiners, Board of . . 1304 IV. RRC OBJECTIONS 1309 V. RULES INVALIDATED BY JUDICIAL DECISION 1313 VI. CONTESTED CASE DECISIONS Index to ALJ Decisions 1314 Text of Selected Decisions 90 EHR 0415 1326 92 EDC 0023 1333 VII. CUMULATIVE INDEX 1348 NORTH CAROLINA REGISTER Publication Schedule (August 1992 - December 1993) Last Day Earliest Earliest for Elec- Date for Date for Last Day *Earliest Issue Last Day tronic Public Adoption to Submit Effective Date for Filing Filing Hearing by Agency to RRC Date tikdkzk&iksksk ;k :: sksk ^< :»; :*< ******* aje^t^c^e^cjjesjc tjc3fc;joje:{o{c3{e ^< :< :< ^c ^« ^e ^ 08/03/92 07/13/92 07/20/92 08/18/92 09/02/92 09/20/92 11/02/92 08/14/92 07/24/92 07/31/92 08/29/92 09/13/92 09/20/92 11/02/92 09/01/92 08/11/92 08/18/92 09/16/92 10/01/92 10/20/92 12/01/92 09/15/92 08/25/92 09/01/92 09/30/92 10/15/92 10/20/92 12/01/92 10/01/92 09/10/92 09/17/92 10/16/92 10/31/92 11/20/92 01/04/93 10/15/92 09/24/92 10/01/92 10/30/92 11/14/92 11/20/92 01/04/93 11/02/92 10/12/92 10/19/92 11/17/92 12/02/92 12/20/92 02/01/93 11/16/92 10/23/92 10/30/92 12/01/92 12/16/92 12/20/92 02/01/93 12/01/92 11/06/92 11/13/92 12/16/92 12/31/92 01/20/93 03/01/93 12/15/92 11/24/92 12/01/92 12/30/92 01/14/93 01/20/93 03/01/93 01/04/93 12/09/92 12/16/92 01/19/93 02/03/93 02/20/93 04/01/93 01/15/93 12/22/92 12/31/92 01/30/93 02/14/93 02/20/93 04/01/93 02/01/93 01/08/93 01/15/93 02/16/93 03/03/93 03/20/93 05/03/93 02/15/93 01/25/93 02/01/93 03/02/93 03/17/93 03/20/93 05/03/93 03/01/93 02/08/93 02/15/93 03/16/93 03/31/93 04/20/93 06/01/93 03/15/93 02/22/93 03/01/93 03/30/93 04/14/93 04/20/93 06/01/93 04/01/93 03/11/93 03/18/93 04/16/93 05/01/93 05/20/93 07/01/93 04/15/93 03/24/93 03/31/93 04/30/93 05/15/93 05/20/93 07/01/93 05/03/93 04/12/93 04/19/93 05/18/93 06/02/93 06/20/93 08/02/93 05/14/93 04/23/93 04/30/93 05/29/93 06/13/93 06/20/93 08/02/93 06/01/93 05/10/93 05/17/93 06/16/93 07/01/93 07/20/93 09/01/93 06/15/93 05/24/93 06/01/93 06/30/93 07/15/93 07/20/93 09/01/03 07/01/93 06/10/93 06/17/93 07/16/93 07/31/93 08/20/93 10/01/93 07/15/93 06/23/93 06/30/93 07/30/93 08/14/93 08/20/93 10/01/93 08/02/93 07/12/93 07/19/93 08/17/93 09/01/93 09/20/93 11/01/93 08/16/93 07/26/93 08/02/93 08/31/93 09/15/93 09/20/93 11/01/93 09/01/93 08/11/93 08/18/93 09/16/93 10/01/93 10/20/93 12/01/93 09/15/93 08/24/93 08/31/93 09/30/93 10/15/93 10/20/93 12/01/93 10/01/93 09/10/93 09/17/93 10/16/93 10/31/93 11/20/93 01/04/94 10/15/93 09/24/93 10/01/93 10/30/93 11/14/93 11/20/93 01/04/94 11/01/93 10/11/93 10/18/93 11/16/93 12/01/93 12/20/93 02/01/94 11/15/93 10/22/93 10/29/93 11/30/93 12/15/93 12/20/93 02/01/94 12/01/93 11/05/93 11/15/93 12/16/93 12/31/93 01/20/94 03/01/94 12/15/93 11/24/93 12/01/93 12/30/93 01/14/94 01/20/94 03/01/94 * Tlie "Earliest Effective Date" is computed assuming that the agency follows the publication schedule above, that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next calendar month. GENERAL STATUTES OF NORTH CAROLINA CHAPTER 150B THE ADMINISTRATIVE PROCEDURE ACT [The following excerpt contains the statutory provisions of the Administrative Procedure Act as amended by the 1991 General Assembly, Second Session effective July 1, 1992.] Article 1. General Provisions. § 150B-1. Policy and scope. (a) Purpose. -- This Chapter establishes a uni-form system of administrative rule making and adjudicatory procedures for agencies. The proce-dures ensure that the functions of rule making, investigation, advocacy, and adjudication are not all performed by the same person in the adminis-trative process. (b) Rights. — This Chapter confers procedural rights. (c) 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 Human Resources in exercising its authority over the Camp Butner reservation granted in Article 6 of Chapter 122C of the Gen-eral Statutes. (3) The Utilities Commission. (4) The Industrial Commission. (5) The Employment Security Commission. (d) Exemptions From Rule Making. — Article 2A of this Chapter does not apply to the following: (1) The Commission. (2) The North Carolina Low-Level Radio-active Waste Management Authority in administering the provisions of G.S. 104G-10and G.S. 104G-11. (3) The North Carolina Hazardous Waste Management Commission in administer-ing the provisions of G.S. 130B-13 and G.S. 130B-14. (4) The Department of Revenue, except that Parts 3 and 4 of Article 2A apply to the Department. (5) The North Carolina Air Cargo Airport Authority with respect to the acquisi-tion, construction, operation, or use, including fees or charges, of any por-tion of a cargo airport complex. (e) Exemptions From Contested Case Provi-sions. -- 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 Human Resources and the Department of Environment, Health, and Natural Resources in com-plying with the procedural safeguards mandated by Section 680 of Part H of Public Law 99-457 as amended (Educa-tion of the Handicapped Act Amend-ments of 1986). (2) The Governor's Waste Management Board in administering the provisions of G.S. 104E-6.2and G.S. 130A-293. (3) The North Carolina Low-Level Radio-active Waste Management Authority in administering the provisions of G.S. 104G-9, 104G-10, and 104G-11. (4) The North Carolina Hazardous Waste Management Commission in administer-ing the provisions of G.S. 130B-11, 130B-13, and BOB- 14. (5) Hearings required pursuant to the Reha-bilitation Act of 1973, (Public Law 93-122), as amended and federal regu-lations promulgated thereunder. G.S. 150B-51(a) is considered a contested case hearing provision that does not apply to these hearings. (6) The Department of Revenue. (7) The Department of Correction. (8) The Department of Transportation, except as provided in G.S. 136-29. (9) The Occupational Safety and Health Review Board in all actions that do not involve agricultural employers. (10) The North Carolina Air Cargo Airport Authority with respect to the acquisi-tion, construction, operation, or use, including fees or charges, of any por-tion of a cargo airport complex. (f) Exemption From All But Judicial Review. — No Article in this Chapter except Article 4 applies to the University of North Carolina. § 150B-2. Definitions. — As used in this Chapter, (01) 'Administrative law judge" means a person appointed under G.S. 7A-752, 7:13 NORTH CAROLINA REGISTER October 1, 1992 1254 GENERAL STATUTES OF NORTH CAROLINA 7A-753, or 7A-757. (1) "Agency" means an agency or an offi-cer in the executive branch of the gov-ernment of this State and includes the Council of State, the Governor's Of-fice, a board, a commission, a depart-ment, a division, a council, and any other unit of government in the execu-tive branch. A local unit of govern-ment is not an agency. (la) "Adopt" means to take final action to create, amend, or repeal a rule. (lb) "Codifier of Rules" means the Chief Administrative Law Judge of the Office of Administrative Hearings or a desig-nated representative of the Chief Ad-ministrative Law Judge. (lc) "Commission" means the Rules Review Commission. (2) "Contested case" means an administra-tive 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, declarato-ry rulings, or the award or denial of a scholarship or grant. (2a) Repealed. (2b) "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 Arti-cle. (3) "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 and occupational licenses. (4) "Licensing" means any administrative action issuing, failing to issue, suspend-ing, or revoking a license or occupa-tional license. "Licensing" does not include controversies over whether an examination was fair or whether the applicant passed the examination. (4a) Occupational license" means any certifi-cate, 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. (4b) "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 agen-cy" does not include State agencies or departments which may as only a part of their regular function issue permits or licenses. (5) "Party" means any person or agency named or admitted as a party or proper-ly seeking as of right to be admitted as a party and includes the agency as appropriate. This subdivision does not permit an agency that makes a final decision, or an officer or employee of the agency, to petition for initial judi-cial review of that decision. (6) "Person aggrieved" means any person or group of persons of common interest directly or indirectly affected substan-tially in his or its person, property, or employment by an administrative deci-sion. (7) "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. (8) "Residence" means domicile or princi-pal place of business. (8a) "Rule" means any agency regulation, standard, or statement of general appli-cability 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 amend-ment or repeal of a prior rule. The term does not include the following: a. Statements concerning only the internal management of an agency or group of agencies within the same principal office or depart-ment enumerated in G.S. 143-11 or 143B-6, including policies and 1255 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA procedures manuals, if the state-ment does not directly or substan-tially affect the procedural or substantive rights or duties of a person not employed by the agen-cy or group of agencies. b. 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, or by the State Board of Elections. c. Nonbinding interpretive state-ments within the delegated author-ity of an agency that merely define, interpret, or explain the meaning of a statute or rule. d. A form, the contents or substan-tive requirements of which are prescribed by rule or statute. e. Statements of agency policy made in the context of another proceed-ing, including: 1 Declaratory rulings under G.S. 150B-4. 2. Orders establishing or fixing rates or tariffs. f. Requirements, communicated to the public by the use of signs or symbols, concerning the use of public roads, bridges, ferries, buildings, or facilities. g. Statements that set forth criteria or guidelines to be used by the staff of an agency in performing audits, investigations, or inspec-tions; in settling financial disputes or negotiating financial arrange-ments; or in the defense, prosecu-tion, or settlement of cases. h. Scientific, architectural, or engi-neering standards, forms, or procedures, including design criteria and construction standards used to construct or maintain highways, bridges, or ferries. i. Job classification standards, job qualifications, and salaries estab-lished for positions under the jurisdiction of the State Personnel Commission. j. Establishment of the interest rate that applies to tax assessments under G.S. 105-241.1 and the variable component of the excise tax on motor fuel under G.S. 105-434. (8b) "Substantial evidence" means relevant evidence a reasonable mind might accept as adequate to support a con-clusion. (9) Repealed. § 150B-3. Special provisions on licensing. (a) 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 occu-pational 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 sec-tion. (b) Before the commencement of proceedings for the suspension, revocation, annulment, with-drawal, 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 opportu-nity to show compliance with all lawful require-ments for retention of the license or occupational license. (c) 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 pro-ceedings. The proceedings shall be promptly commenced and determined. 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. § 150B-4. Declaratory rulings. (a) 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 7:13 NORTH CAROLINA REGISTER October 1, 1992 1256 GENERAL STATUTES OF NORTH CAROLINA facts of a statute administered by the agency or of a rule or order of the agency, except when the agency for good cause finds issuance of a ruling undesirable. The agency shall prescribe in its rules the circumstances in which rulings shall or shall not be issued. A declaratory ruling is bind-ing 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. A declaratory ruling is subject to judicial review in the same manner as an order in a con-tested case. Failure of the agency to issue a declaratory ruling on the merits within 60 days of the request for such ruling shall constitute a denial of the request as well as a denial of the merits of the request and shall be subject to judicial review, (b) This section does not apply to the Depart-ment of Correction. Article 2. Rule Making. Repealed. Article 2A. Rules. Part 1. General Provisions. § 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. § 150B-19. Restrictions on what can be adopt-ed 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 re-quired. (3) Imposes criminal liability or a civil penalty for an act or omission, includ-ing 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. (5) Establishes a reasonable fee or other reasonable charge for providing a ser-vice 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: a. A service to a State, federal, or local governmental unit. b. A copy of part or all of a State publi-cation or other document, the cost of mailing a document, or both. c. A transcript of a public hearing. d. A conference, workshop, or course. e. Data processing services. (6) Allows the agency to waive or modify a requirement set in a rule unless a rule establishes specific guidelines the agen-cy must follow in determining whether to waive or modify the requirement. § 150B-20. Petitioning an agency to adopt a rule. (a) Petition. -- A person may petition an agency to adopt a rule by submitting to the agency a written rule-making petition requesting the adop-tion. 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. (b) 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. (c) Action. — If an agency denies a rule-making petition, it must send the person who submitted the petition a written statement of the reasons for denying the petition. If an agency grants a rule-making petition, it must inform the person who submitted the rule-making petition of its decision and must initiate rule-making proceedings. When an agency grants a rule-making petition requesting the creation or amendment of a rule, the notice of rule making it publishes in the North Carolina Register may state that the agency is initiating rule-making proceedings as the result of a rule-making petition, state the name of the person who submitted the rule-making petition, set out the text of the requested rule change submitted with the rule-making petition, and state whether the agency endorses the proposed rule change. 1257 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA (d) Review. — Denial of a rule-making petition is a final agency decision and is subject to judicial review under Article 4 of this Chapter. Failure of an agency to grant or deny a rule-making petition within the time limits set in subsection (b) is a denial of the rule-making petition. (e) Exception. — This section does not apply to the Department of Correction. § 150B-21. Agency must designate rule-making coordinator. Each agency must designate one or more rule-making coordinators to oversee the agency's rule-making functions. The coordinator must prepare notices of public hearings, coordinate access to the agency's rules, and serve as the liaison between the agency, other agencies, and the public in the rule-making process. Part 2. Adoption of Rules. § 150B-21.1. Procedure for adopting a tem-porary rule. (a) Adoption. — An agency may adopt a tempo-rary 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 immedi-ate 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 federal regulation. (5) A court order. (6) The need for the rule to become effec-tive the same date as the State Medical Facilities Plan approved by the Gover-nor, if the rule addresses a matter included in the State Medical Facilities Plan. An agency must prepare a written statement of its findings of need for a temporary rule. The statement must be signed by the head of the agen-cy adopting the rule. An agency must begin rule-making proceedings for a permanent rule by the day it adopts a tempo-rary rule. An agency begins rule-making proceed-ings for a permanent rule by submitting to the codifier written notice of its intent to adopt a permanent rule. (b) Review. — When an agency adopts a tempo-rary rule it must submit the rule, the agency's written statement of its findings of need for the rule, and the notice of intent to adopt a permanent rule to the Codifier of Rules. Within one business day after an agency submits a temporary rule, the Codifier of Rules must review the agency's written statement of findings of need for the rule to deter-mine whether the statement of need meets the criteria listed in subsection (a). 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. If the Codifier of Rules finds that the statement does not meet the criteria, 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 state-ment within one business day after the agency submits the additional findings or new statement. If the Codifier of Rules again finds that the state-ment does not meet the criteria listed in subsection (a), 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 crite-ria, 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. (c) Standing. — A person aggrieved by a tempo-rary 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) and whether the rule meets the standards in G.S. 150B-21.9 that apply to review of a permanent rule. The court may not grant an ex parte temporary restraining order. 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 subsec-tion must serve a copy of the complaint on the agency that adopted the rule being contested, the 7:13 NORTH CAROLINA REGISTER October 1, 1992 1258 GENERAL STATUTES OF NORTH CAROLINA Codifier of Rules, and the Commission. (d) Effective Date and Expiration. — A tempo-rary rule becomes effective on the date specified in G.S. 150B-21.3. A temporary rule expires on the date specified in the rule or 180 days from the date the rule becomes effective, whichever comes first. § 150B-21.2. Procedure for adopting a per-manent rule. (a) Notice. -- Before an agency adopts a perma-nent rule, it must publish notice of its intent to adopt a permanent rule in the North Carolina Register and as required by any other law. The notice published in the North Carolina Register must include all of the following: (1) Either the text of the proposed rule or 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 the pro-posed rule, if the notice includes the text of the proposed rule, or a citation to the law that gives the agency the authority to adopt a rule on the subject matter of the proposed rule making, if the notice includes only a statement of the subject matter of the proposed rule making. (4) The proposed effective date of the proposed rule, if the notice includes the text of the proposed rule, or the pro-posed effective date of a rule adopted on the subject matter of the proposed rule making, if the notice includes only a statement of the subject matter of the proposed rule making. (5) The date, time, and place of any public hearing scheduled on the proposed rule or subject matter of the proposed rule making. (6) 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 (c) requires the agency to hold a public hearing on the proposed rule when requested to do so. (7) The period of time during which and the person to whom written comments may be submitted on the proposed rule or subject matter of the proposed rule making. (8) If a fiscal note has been prepared for the proposed rule or will be prepared when a rule is proposed on the subject matter of the proposed rule making, a statement that a copy of the fiscal note can be obtained from the agency. (b) Mailing List. -- An agency must maintain a mailing list of persons who have requested notice of rule making. When an agency publishes a rule-making notice in the North Carolina Register, it must mail a copy of the notice to each person on the mailing list who has requested notice of rule-making proceedings on the rule or the subject matter for rule making described in the notice. An agency may charge an annual fee to each person on the agency's mailing list to cover copying and mailing costs. (c) Hearing. — An agency must hold a public hearing on a rule it proposes to adopt in two circumstances and may hold a public hearing 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. An agency must hold a public hearing on a rule it proposes to adopt in the following two circum-stances: (1 The agency publishes a statement of the subject matter of the proposed rule making in the notice in the North Caro-lina Register. (2) The agency publishes the text of the proposed rule in the notice in the North Carolina Register and all the following apply: a. The notice does not schedule a public hearing on the proposed rule. b. Within 15 days after the notice is published, the agency receives a written request for a public hearing on the proposed rule. c. The proposed rule is not part of a rule-making proceeding the agency initiated by publishing a statement of the subject matter of proposed rule making. d. The proposed text is not a changed version of proposed text the agency previously published in the course of rule-making proceedings but did not adopt. 1259 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA (d) Text After Subject-Matter Notice. — When an agency publishes notice of the subject matter of proposed rule making in the North Carolina Register, it must subsequently publish in the North Carolina Register the text of the rule it proposes to adopt as a result of the public hearing and of any comments received on the subject matter. An agency may not publish the proposed text of a rule for which it published a subject-matter notice before the public hearing on the subject matter. (e) Comments. -- An agency must accept com-ments on the text of a proposed rule published in the North Carolina Register for at least 30 days after the text is published or until the date of any public hearing held on the proposed rule, whichev-er is longer. An agency must accept comments on a statement of the subject matter of proposed rule making until the public hearing on the subject matter. An agency must consider fully all written and oral comments received. (f) Adoption. — An agency may not adopt a rule until the time for commenting on the proposed text of the rule has elapsed and may 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. An agency may 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 pro-posed different rule in the North Carolina Register and accepts comments on the proposed different rule for the time set in subsection (e). An adopted rule differs substantially from a proposed rule if it does one or more of the follow-ing: (1) Affects the interests of persons who, based on the notice published in the North Carolina Register or the pro-posed text of the rule, could not reason-ably 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 rea-sonably have been expected based on the proposed text of the rule. When an agency adopts a rule, it may not take subsequent action on the rule without following the procedures in this Part. (g) Explanation. — An agency must issue a concise written statement explaining why the agency adopted a rule if, within 30 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. (h) 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, and any written explanation made by the agency for adopting the rule. § 150B-21.3. Effective date of rules. (a) Temporary Rule. — A temporary rule be-comes effective on the date the Codifier of Rules enters the rule in the North Carolina Administra-tive Code. (b) Permanent Rule. - A permanent rule ap-proved by the Commission becomes effective five business days after the Commission delivers the rule to the Codifier of Rules, unless the agency adopting the rule specifies a later effective date. If the agency specifies a later effective date, the rule becomes effective on that date. A permanent rule that is not approved by the Commission becomes effective five business days after the agency adopting the rule delivers the rule to the Codifier of Rules, unless the agency adopt-ing the rule specifies a later effective date. If the agency specifies a later effective date, the rule becomes effective on that date. (c) OSHA Standard. — A permanent rule con-cerning 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. § 150B-21.4. Fiscal notes on rules. (a) 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 Executive Budget Act, Article 1 of Chapter 143, it must submit the text of the proposed rule change and a fiscal note on the proposed rule change to the Director of the Budget and obtain certification from the Director 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 Director of the Budget must 7:13 NORTH CAROLINA REGISTER October 1, 1992 1260 GENERAL STATUTES OF NORTH CAROLINA certify a proposed rule change if funds are avail-able to cover the expenditure or distribution required by the proposed rule change. (b) 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 govern-ment, it must submit the text of the proposed rule change and a fiscal note on the proposed rule change to the Fiscal Research Division of the General Assembly, the Office of State Budget and Management, 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. (c) Errors. — An erroneous fiscal note prepared in good faith does not affect the validity of a rule. § 150B-21.5. Circumstances when notice and rule-making hearing not required. (a) Amendment. — An agency is not required to publish a notice of rule making in the North Carolina Register or hold a public hearing when it proposes to amend a rule, without changing the substance of the 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 be-come inaccurate since the rule was adopted because of the repeal or renum-bering of the cited rule or law. (4) Change information that is readily available to the public, such as an address or a telephone number. (5) Correct a typographical error made in entering the rule in the North Carolina Administrative Code. (6) Change a rule in response to a request or an objection by the Commission. (b) Repeal. — An agency is not required to publish a notice of rule making 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. (c) OSHA Standard. — The Occupational Safety and Health Division of the Department of Labor is not required to publish a notice of rule making in the North Carolina Register or hold a public hearing when it proposes to adopt a rule that concerns an occupational safety and health stan-dard and is identical to a federal regulation pro-mulgated 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. § 150B-21.6. Incorporating material in a rule by reference. An agency may incorporate the following materi-al 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 regula-tion adopted by another agency, the federal government, or a generally recog-nized organization or association. (3) Material adopted to meet a requirement of the federal government. 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 adopt-ed 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 accor-dance with former G.S. 150B-14(c) is a statement that the rule includes subsequent amendments and editions of the referenced material. § 150B-21.7. Effect of transfer of duties or termination of agency on rules. 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 amends or repeals the rule. When a law that authorizes an agency to adopt a rule is re-pealed and another law does not give the same or ( 1261 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA 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. 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 trans-ferred function remains in effect until the agency to which the function is transferred amends or repeals the rule. When an executive order abolish-es 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 Director of Fiscal Research of the General Assembly must notify the Codifier of Rules when a rule is repealed under this section. When noti-fied of a rule repealed under this section, the Codifier of Rules must enter the repeal of the rule in the North Carolina Administrative Code. Part 3. Review by Commission. § 150B-21.8. Review of rule by Commission. (a) Temporary Rule. — The Commission does not review a temporary rule. (b) Permanent Rule. — An agency must submit a permanent rule adopted by it to the Commission before the rule can be included in the North Carolina Administrative Code. The Commission reviews a 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 permanent rule. (c) Scope. — When the Commission reviews an amendment to a rule, it may review the entire rule that is being amended. The procedure in G.S. 1 50B-2 1.12 applies when the Commission objects to a part of a rule that is within its scope of review but is not changed by a rule amendment. § 150B-21.9. Standards and timetable for review by Commission. (a) Standards. -- The Commission must deter-mine 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 fulfill a duty delegated to the agency by the General Assembly. The Commission may determine if a rule submit-ted to it was adopted in accordance with Part 2 of this Article. The Commission must notify the agency that adopted the rule if it determines that a rule was not adopted in accordance with Part 2 of this Article and must return the rule to the agency. Entry of a rule in the North Carolina Administra-tive Code after review by the Commission is conclusive evidence that the rule was adopted in accordance with Part 2 of this Article. (b) Timetable. — The Commission must review a 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. § 150B-21.10. Commission action on perma-nent rule. At the first meeting at which a permanent rule is before the Commission for review, the Commis-sion must take one of the following actions: (1) Approve the rule, if the Commission determines that the rule meets the stan-dards 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. § 150B-21.il. 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 must deliver the approved rule to the Codifier of Rules. The Commission must deliver an approved rule by the end of the month in which the Commission approved the rule, unless the agency asks the Commission to delay the delivery of the rule. § 150B-21.12. Procedure when Commission objects to a permanent rule. (a) Action. -- When the Commission objects to a permanent rule, it must send the agency that adopted the rule a written statement of the objec-tion and the reason for the objection. The agency that adopted the rule must take one of the follow-ing 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 Com-mission indicating that the agency has decided not to change the rule. 7:13 NORTH CAROLINA REGISTER October 1, 1992 1262 GENERAL STATUTES OF NORTH CAROLINA An agency that is not a board or commission must take one of these actions 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 regular-ly scheduled meeting, whichever comes later. 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 Commis-sion 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. 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 may send to the President of the Senate and each member of the General Assembly a report of its objection to the rule. (b) Entry in Code. -- When the Commission returns a rule to which it has objected to the agency that adopted the rule, the Commission must notify the Codifier of Rules of its action and of the basis of the Commission's objection. An agency whose rule is returned may file the rule with the Codifier of Rules. When the Codifier of Rules enters in the North Carolina Administrative Code a rule to which the Commission objected, the entry must reflect the Commission's objection and must state the standard on which the Commission based its objection. § 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 Commis-sion 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. § 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. § 150B-21.15. Declaratory judgment action authorized when Commission objects to a per-manent rule. (a) Standing. -- A person aggrieved by a perma-nent rule entered in the North Carolina Adminis-trative Code with an objection by the Commission based on a lack of statutory authority 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 exceeded its authority in adopting the rule. A declaratory judgment action under this section must be filed within 90 days after the rule that is the subject of the action is entered in 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 section. A person who files an action for declaratory judgment under this section must serve a copy of the complaint on the agency that adopted the rule being contested, the Codifier of Rules, and the Commission. (b) Record. -- Within 10 days after a declaratory judgment action is filed under this section, the agency that adopted the rule that is the subject of the action must send to the court the original or a certified copy of the record in the Commission's review of the rule. The record 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 docu-ments before the Commission when it decided to object to the rule. (c) Effect. — A rule remains in effect during the pendency of an action for declaratory judgment under this section unless the court suspends the rule after finding that the agency that adopted the rule has no substantial likelihood of prevailing in the action. (d) Changes. — While a rule is the subject of a declaratory judgment action under this section, the agency that adopted the rule may submit to the Commission changes in the rule to satisfy the 1263 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA Commission's objection. If the Commission determines that changes submitted to it satisfy its objection, the Commission must accept the changes and file the revised rule with the Codifier of Rules. The Codifier must then enter the rule in the North Carolina Administrative Code. When the Commission determines that changes submitted to it satisfy its objection, the agency that submitted the changes must notify the court of the changes and of the Commission's action. Part 4. Publication of Code and Register. § 150B-21.17. North Carolina Register. (a) 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) Notices of proposed adoptions of rules. (2) Notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165. (3) Executive orders of the Governor. (4) Final decision letters from the United States Attorney General concerning changes in laws that affect voting in a jurisdiction subject to § 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H. (5) Orders of the Tax Review Board issued under G.S. 105-241.2. (6) Other information the Codifier deter-mines helpful to the public. (b) 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 pub-lishing the text of a proposed new rule, the Codifi-er must indicate the rule is new by underlining the proposed text of the rule. 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 publish-ing the text of a proposed amendment to a rule, the Codifier must indicate deleted text with over-strikes 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 com-plete 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. § 150B-21.18. North Carolina Administrative Code. The Codifier of Rules must compile all rules into a Code known as the North Carolina Administra-tive Code. The format and indexing of the Code must conform as nearly as practical to the format and indexing of the North Carolina General Stat-utes. The Codifier must publish printed copies of the Code and may publish the Code in other forms. 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. The Codifier must keep superseded rules. § 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 agen-cy that adopted the rule. (3) Be in the physical form specified by the Codifier of Rules. (4) Have been reviewed by the Commission, if the rule is a permanent rule. § 150B-21.20. Codifier's authority to revise form of rules. (a) Authority. — After consulting with the agency that adopted the rule, the Codifier of Rules may revise the form of a rule submitted for inclu-sion in the North Carolina Administrative Code within 10 business days after the rule is submitted 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 sub-stance of the rule and are necessary or desirable for a clear and orderly ar-rangement of the rule. 7:13 NORTH CAROLINA REGISTER October 1, 1992 1264 GENERAL STATUTES OF NORTH CAROLINA (b) 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. § 150B-21.21. Publication of rules of North Carolina State Bar and exempt agencies. (a) 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 inclu-sion in the North Carolina Administrative Code. The State Bar must submit a rule within 15 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. (b) Exempt Agencies. — Notwithstanding G.S. 150B-1, the North Carolina Utilities Commission must submit to the Codifier of Rules those rules of the Utilities Commission that are published from time to time in the publication titled "North Caroli-na Utilities Laws and Regulations." The Utilities Commission must submit a rule required to be included in the Code within 15 days after it is adopted. The Codifier of Rules must publish the rules submitted by the Utilities Commission in the North Carolina Administrative Code in the same format as they are submitted. Notwithstanding G.S. 150B-1, an agency other than the Utilities Commission that is exempted from this Article by that statute must submit a temporary or permanent rule adopted by it to the Codifier of Rules for inclusion in the North Caroli-na Administrative Code. One of these exempt agencies must submit a rule to the Codifier of Rules within 15 days after it adopts the rule. The Codifier of Rules must compile, make available for public inspection, and publish a rule of one of these agencies in the North Carolina Administra-tive Code in the same manner as other rules in the Code. § 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. Codification of a rule in the North Carolina Administrative Code is prima facie evidence of compliance with this Article. § 150B-21.23. Rule publication manual. The Codifier of Rules must publish a manual that sets out the form and method for publishing a notice of rule making in the North Carolina Regis-ter and for filing a rule in the North Carolina Administrative Code. § 150B-21.24. Free copies of Register and Code. (a) Register. — The Codifier of Rules must distribute copies of the North Carolina Register as soon after publication as practical, without charge, to the following: (1) A person who receives a free copy of the North Carolina Administrative Code. (2) Upon request, one copy to each mem-ber of the General Assembly. (b) Code. — The Codifier of Rules must distrib-ute copies of the North Carolina Administrative Code as soon after publication as practical, without charge, to the following: (1) One copy to the board of commission-ers of each county, to be placed at the county clerk of court's office or at another place selected by the board of commissioners. (2) One copy to the Commission. (3) One copy to the Clerk of the Supreme Court and to the Clerk of the Court of Appeals of North Carolina. (4) One copy to the Supreme Court Library and one copy to the library of the Court of Appeals. (5) One copy to the Administrative Office of the Courts. (6) One copy to the Governor. (7) Five copies to the Legislative Services Commission for the use of the General Assembly. (8) Upon request, one copy to each State official or department to whom or to which copies of the appellate division reports are furnished under G.S. 7A-343.1. (9) Five copies to the Division of State Library of the Department of Cultural Resources pursuant to G.S. 125-11.7. § 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. 1265 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA and mailing costs. All monies received under this section must be credited to the General Fund. Article 3. Administrative Hearings. § 150B-22. Settlement; contested case. It is the policy of this State that any dispute between an agency and another person that in-volves the person's rights, duties, or privileges, including licensing or the levy of a monetary penalty, should be settled through informal proce-dures. 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. If the agency and the other person do not agree to a resolution of the dispute through informal proce-dures, either the agency or the person may com-mence an administrative proceeding to determine the person's rights, duties, or privileges, at which time the dispute becomes a "contested case." § 150B-23. Commencement; assignment of administrative law judge; hearing required; notice; intervention. (a) A contested case shall be commenced 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 or a represen-tative of the party and, if filed by a party other than an agency, shall state facts tending to estab-lish 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. 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 Chap-ter 126 of the General Statutes applies may com-mence a contested case under this Article in the same manner as any other petitioner. The case shall be conducted in the Office of Administrative Hearings in the same manner as other contested cases under this Article, except that the decision of the State Personnel Commission shall be advisory only and not binding on the local appointing authority, unless (1) the employee, applicant, or former employee has been subjected to discrimina-tion prohibited by Article 6 of Chapter 126 of the General Statutes or (2) applicable federal stan-dards require a binding decision. In these two cases, the State Personnel Commission's decision shall be binding. (al) Repealed by Session Laws 1985 (Reg. Sess., 1986), c. 1022, s. 1(9). (a2) 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. (b) 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. (c) Notice shall be given personally or by certified mail. If given by certified mail, it shall be deemed to have been given on the delivery date appearing on the return receipt. If giving of notice cannot be accomplished either personally or by certified mail, notice shall then be given in the manner provided in G.S. 1A-1, Rule 4(jl). (d) 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. (e) 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. (f) 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 7:13 NORTH CAROLINA REGISTER October 1, 1992 1266 GENERAL STATUTES OF NORTH CAROLINA 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 or by the placing of the notice in an official deposito-ry 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 settle-ment 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. § 150B-24. Venue of hearing. (a) 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 main-tains 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 admin-istrative law judge in his discretion to promote the ends of justice or better serve the convenience of witnesses. (b) Any person whose property or rights are the subject matter of the hearing waives his objection to venue by proceeding in the hearing. § 150B-25. Conduct of hearing; answer. (a) If a party fails to appear in a contested case after proper service of notice, and if no adjourn-ment or continuance is granted, the administrative law judge may proceed with the hearing in the absence of the party. (b) Repealed. (c) 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. (d) 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. § 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 Hear-ings 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. § 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 re-quired does not relate to a matter in issue, the subpoena does not describe with sufficient particu-larity 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. § 150B-28. Depositions and discovery. (a) 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 contest-ed cases may engage in discovery pursuant to the provisions of the Rules of Civil Procedure, G.S. 1A-1. (b) On a request for identifiable agency records, with respect to material facts involved in a contest-ed case, except records related solely to the inter-nal 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. (a) In all contested cases, irrelevant, immaterial and unduly repetitious evidence shall be excluded. Except as otherwise provided, the rules of evi-dence as applied in the trial division of the General Court of Justice shall be followed; but. when evidence is not reasonably available under the 1267 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA rules to show relevant facts, then the most reliable and substantial evidence available shall be admit-ted. On the judge's own motion, an administrative law judge may exclude evidence that is inadmissi-ble under this section. 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 recommended decision, by the agency in making a final decision, or by the court on judicial review. (b) 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 exami-nation by the parties. Upon timely request, a party shall be given an opportunity to compare the copy with the original if available. § 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. § 150B-31. Stipulations. (a) 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. (b) Except as otherwise provided by law, dispo-sition may be made of a contested case by stipula-tion, agreed settlement, consent order, waiver, default, or other method agreed upon by the parties. § 150B-32. Designation of administrative law judge. (a) The Director of the Office of Administrative Hearings shall assign himself or another adminis-trative law judge to preside over a contested case. (al) Repealed by Session Laws 1985 (Reg. Sess., 1986), c. 1022, s. 1 (15), effective July 15, 1986. (b) 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 deter-mination shall be subject to judicial review at the conclusion of the proceeding. (c) When an administrative law judge is disqual-ified or it is impracticable for him to continue the hearing, the Director shall assign another adminis-trative 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. § 150B-33. Powers of administrative law judge. (a) 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 pro-ceedings, 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 con-tested case shall proceed and be determined as expeditiously as possible. (b) 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; (3a) Rule on all prehearing motions that are authorized by G.S. 1A-1, the Rules of Civil Procedure; (4) 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; (5) Direct the parties to appear and confer to consider simplification of the issues by consent of the parties; (6) 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; (7) Determine whether the hearing shall be recorded by a stenographer or by an 7:13 NORTH CAROLINA REGISTER October 1, 1992 1268 GENERAL STATUTES OF NORTH CAROLINA electronic device; and (8) Enter an order returnable in the General Court of Justice, Superior Court Divi-sion, 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 indi-rect contempt if the act occurred in an action pending in Superior Court. (9) 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 unambigu-ous 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. (10) Impose the sanctions provided for in G.S. 1 A-l or Chapter 3 of Title 26 of the North Carolina Administrative Code for noncompliance with applicable procedural rules. § 150B-34. Recommended decision or order of administrative law judge. (a) Except as provided in G.S. 150B-36(c), in each contested case the administrative law judge shall make a recommended decision or order that contains findings of fact and conclusions of law. (b) Repealed. § 150B-35. No ex parte communication; exceptions. Unless required for disposition of an ex parte matter authorized by law, neither the administra-tive law judge assigned to a contested case nor a member or employee of the agency making a final decision in the case may 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. § 150B-36. Final decision. (a) Before the agency makes a final decision, it shall give each party an opportunity to file excep-tions to the decision recommended by the adminis-trative law judge, and to present written arguments to those in the agency who will make the final decision or order. If a party files in good faith a timely and sufficient affidavit of personal bias or other reason for disqualification of a member of the agency making the final decision, the agency shall determine the matter as a part of the record in the case, and the determination is subject to judicial review at the conclusion of the case. (b) A final decision or order in a contested case shall be made by the agency in writing after review of the official record as defined in G.S. 150B-37(a) and shall include findings of fact and conclusions of law. If the agency does not adopt the administrative law judge's recommended decision as its final decision, the agency shall state in its decision or order the specific reasons why it did not adopt the administrative law judge's rec-ommended decision. The agency may consider only the official record prepared pursuant to G.S. 150B-37 in making a final decision or order, and the final decision or order shall be supported by substantial evidence admissible under G.S. 150B-29(a), 150B-30. or 150B-31. A copy of the decision or order shall be served upon each party personally or by certified mail addressed to the party at the latest address given by the party to the agency, and a copy shall be furnished to his attorney of record and the Office of Administrative Hearings. (c) The following decisions made by administra-tive law judges in contested cases are final deci-sions: (1) A determination that the Office of Administrative Hearings lacks jurisdic-tion. (2) An order entered pursuant to the au-thority in G.S. 7A-759(e). (3) An order entered pursuant to a written prehearing motion that either dismisses the contested case for failure of the petitioner to prosecute or grants the relief requested when a party does not comply with procedural requirements. (4) An order entered pursuant to a prehearing motion to dismiss the con-tested case in accordance with G.S. 1A-1, Rule 12(b) when the order dis-poses of all issues in the contested case. § 150B-37. Official record. (a) In a contested case, the Office of Adminis-trative Hearings shall prepare an official record of the case that includes: (1) Notices, pleadings, motions, and inter-mediate rulings; (2) Questions and offers of proof, objec-tions, and rulings thereon; (3) Evidence presented; (4) Matters officially noticed, except mat-ters so obvious that a statement of them would serve no useful purpose; and (5) Repealed by Session Laws 1987. c. 878, s. 25, effective August 14, 1987. (6) The administrative law judge's recom- 1269 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA mended decision or order, (b) 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. (c) The Office of Administrative Hearings shall forward a copy of the official record to the agency making the final decision and shall forward a copy of the recommended decision to each party. Article 3A. Other Administrative Hearings. § 150B-38. Scope; hearing required; notice; venue. (a) The provisions of this Article shall apply to the following agencies: (1) Occupational licensing agencies; (2) The State Banking Commission, the Commissioner of Banks, the Savings Institutions Division of the Department of Economic and Community Develop-ment, and the Credit Union Division of the Department of Economic and Com-munity Development; and (3) The Department of Insurance and the Commissioner of Insurance. (b) 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 hear-ing. 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. (c) Notice shall be given personally or by certified mail. If given by certified mail, notice shall be deemed to have been given on the delivery date appearing on the return receipt. If notice cannot be given personally or by certified mail, then notice shall be given in the manner provided in G.S. 1A-1, Rule 4(jl). (d) 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 hear-ing. (e) 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 administra-tive 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 admin-istrative 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. (f) 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. 1 A- 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. (g) 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. (h) Every agency shall adopt rules governing the conduct of hearings that are consistent with the provisions of this Article. § 150B-39. Depositions; discovery; subpoe-nas. (a) 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. (b) 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. (c) 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 7:13 NORTH CAROLINA REGISTER October 1, 1992 1270 GENERAL STATUTES OF NORTH CAROLINA 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 em-ployees who are subpoenaed shall be reimbursed as provided in G.S. 138-6. § 150B-40. Conduct of hearing; presiding officer: ex parte communication. (a) 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. 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. (b) 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 person-al 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 tc any party, a new hearing shall be held or the case dismissed without prejudice. (c) 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 hear-ings, 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 presid-ing 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. (d) 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 con-tested case under this Article shall not communi-cate, 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 investi-gating 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, econom-ics or financial analysis insofar as the case in-volves financial practices or conditions. (e) 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 Administra-tive Hearings for the designation of an administra-tive law judge to preside at the hearing of a con-tested case under this Article. Upon receipt of the application, the Director shall, without undue delay, assign an administrative law judge to hear the case. The provisions of this Article, rather than the provisions of Article 3, shall govern a contested case in which the agency requests an administra-tive 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 1271 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA a proposal for decision, which shall contain pro-posed 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 pro-ceedings, 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 con-tested 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 opportuni-ty is given to each party to file exceptions and proposed findings of fact and to present oral and written arguments to the agency. § 150B-41. Evidence; stipulations; official notice. (a) In all contested cases, irrelevant, immaterial, and unduly repetitious evidence shall be excluded. Except as otherwise provided, the rules of evi-dence 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 consider-ation by the agency in reaching its decision, or by the court of judicial review. (b) 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 G.S. 150B-30. Documentary evidence may be received in the form of a copy or excerpt or may be incor-porated by reference, if the materials so incorpo-rated 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. (c) 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. (d) 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. § 150B-42. Final agency decision; official record. (a) 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 deci-sion or order shall include findings of fact and conclusions of law. Findings of fact shall be based exclusively on the evidence and on matters offi-cially 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 personally or by certified mail addressed to the party at the latest address given by the party to the agency and a copy shall be furnished to his attorney of record. (b) An agency shall prepare an official record of a hearing that shall include: (1) Notices, pleadings, motions, and inter-mediate rulings; (2) Questions and offers of proof, objec-tions, and rulings thereon; (3) Evidence presented; (4) Matters officially noticed, except mat-ters 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. (c) Proceedings at which oral evidence is pre- 7:13 NORTH CAROLINA REGISTER October 1, 1992 1272 GENERAL STATUTES OF NORTH CAROLINA sented shall be recorded, but need not be tran-scribed 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. Article 4. Judicial Review. § 150B-43. Right to judicial review. Any person who is aggrieved by the final deci-sion in a contested case, and who has exhausted all administrative remedies made available to him 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 person from invoking any judi-cial remedy available to him under the law to test the validity of any administrative action not made reviewable under this Article. § 150B-44. Right to judicial intervention when decision unreasonably delayed. 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. An agency that is subject to Article 3 of this Chapter and is not a board or commission has 90 days from the day it receives the official record in a contested case from the Office of Administrative Hearings to make a final decision in the case. This time limit may be extended by the parties or, for good cause shown, by the agency for an additional period of up to 90 days. An agency that is subject to Article 3 of this Chapter and is a board or commission has 90 days from the day it receives the official record in a contested case from the Office of Administrative Hearings or 90 days after its next regularly scheduled meeting, whichever is longer, to make a final decision in the case. This time limit may be extended by the parties or, for good cause shown, by the agency for an additional period of up to 90 days. If an agency subject to Article 3 of this Chapter has not made a final decision within these time limits, the agency is considered to have adopted the adminis-trative law judge's recommended decision as the agency's final decision. Failure of an agency subject to Article 3A of this Chapter to make a final decision within 180 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 compel-ling action by the agency or, if the case was heard by an administrative law judge, by the administra-tive law judge. § 150B-45. Procedure for seeking review; waiver. To obtain judicial review of a final decision under this Article, the person seeking review must file a petition in the Superior Court of Wake County or in the superior court of the county where the person resides. The person seeking review must file the petition within 30 days after the person is served with a written copy of the decision. 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. § 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 peti-tion 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 re-sponse. Any person aggrieved may petition to become a party by filing a motion to intervene as provided in G.S. 1A-1, Rule 24. § 150B-47. Records fded with clerk of superi-or 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 agency that made the final decision in the contested case shall transmit to the reviewing court the original or a certified copy of the official record in the contested case under review together with: (i) any exceptions, proposed findings of fact, or written arguments submitted to the agency in accordance with G.S. 150B-36(a); and (ii) the agency's final decision or order. With the permission of the court, the record may be shortened by stipulation of all 1273 7:13 NORTH CAROLINA REGISTER October 1, 1992 GENERAL STATUTES OF NORTH CAROLINA parties to the review proceedings. Any party unreasonably refusing to stipulate to limit the record may be taxed by the court for such addi-tional costs as may be occasioned by the refusal. The court may require or permit subsequent corrections or additions to the record when deemed desirable. § 150B-48. Stay of decision. At any time before or during the review proceed-ing, the person aggrieved may apply to the review-ing 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. § 150B-49. New evidence. An aggrieved person 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 recommended decision in the case, the court shall remand the case to the agency that conducted the administrative hearing. 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 recommended 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 recommended decision. The administra-tive law judge shall forward a copy of his decision to the agency that made the final decision, which in turn may affirm or modify its previous findings of fact and final decision. The additional evidence and any affirmation or modification of a recom-mended decision or final decision shall be made part of the official record. § 150B-50. Review by superior court without jury- The review by a superior court of agency deci-sions under this Chapter shall be conducted by the court without a jury. § 150B-51. Scope of review. (a) Initial Determination in Certain Cases. In reviewing a final decision in a contested case in which an administrative law judge made a recom-mended decision, the court shall make two initial determinations. First, the court shall determine whether the agency heard new evidence after receiving the recommended decision. If the court determines that the agency heard new evidence, the court shall reverse the decision or remand the case to the agency to enter a decision in accor-dance with the evidence in the official record. Second, if the agency did not adopt the recom-mended decision, the court shall determine wheth-er the agency's decision states the specific reasons why the agency did not adopt the recommended decision. If the court determines that the agency did not state specific reasons why it did not adopt a recommended decision, the court shall reverse the decision or remand the case to the agency to enter the specific reasons. (b) Standard of Review. After making the determinations, if any, required by subsection (a), the court reviewing a final decision may affirm the decision of the agency or remand the case for further proceedings. It may also reverse or modi-fy the agency's decision if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are: (1) In violation of constitutional provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (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 or capricious. § 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. 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. Article 5. Publication of Administrative Rules. Repealed. 7:13 NORTH CAROLINA REGISTER October 1, 1992 1274 IN ADDITION G.S. 1 20-30. 9H, effective July 16, 1986, requires that all letters and other documents issued by the Attorney General of the United States in which a final decision is made concerning a "change affecting voting " under Section 5 of the Voting Rights Act of 1965 be published in the North Carolina Register. ( U.S. Department of Justice Civil Rights Division JRD:LLT:CGM:lrj Voting Section DJ 166-012-3 P.O. Box 66128 92-3079 Washington, D.C. 20035-6128 92-3343 August 28, 1992 Jesse L. Warren, Esq. City Attorney Drawer W-2 Greensboro, North Carolina 27402 Dear Mr. Warren: This refers to two annexations (Ordinance Nos. 92-75 and 92-88) and the designation of the annexed areas to election districts for the City of Greensboro in Guilford County, North Carolina, submissions, / submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submissions on June 29 and July 20, 1992. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. In addition, as authorized by Section 5, we reserve the right to reexamine this submission if additional information that would otherwise require an objection comes to our attention during the remainder of the sixty-day review period. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41 and 51.43). Sincerely, John R. Dunn Assistant Attorney General Civil Right Division By: Steven H. Rosenbaum Chief, Voting Section < 1275 7:13 NORTH CAROLINA REGISTER October 1, 1992 PROPOSED RULES TITLE 2 - DEPARTMENT OF AGRICULTURE Notice is hereby given in accordance with G.S. 150B-21. 2 that the North Carolina Pesticide Board intends to amend rule(s) cited as 2 NCAC 9L .0524 and .0701 . 1 he proposed effective date of this action is February 1, 1993. 1 he public hearing will be conducted at 1:00 p.m. on November 5, 1992, at the Board Room, Agriculture Building, 2 West Edenton Street, Raleigh, NC 27601. Keason for Proposed Action: 2 NCAC9L . 0524 - To include pest control consul-tants examination requirement citation from the N. C. Pesticide Law of 1971. 2 NCAC9L .0701 - To amend the North Carolina Pesticide Board's current rule in which pine voles and meadow voles have been declared to be pests in certain sites, to clarify those sites, and to include the additional sites of institutional, recre-ational, and residential areas. (comment Procedures: Interested persons may present statements either orally or in writing at the public hearing or in writing prior to the hearing by mail addressed to John L. Smith, Secretary, North Carolina Pesticide Board, P. O. Box 27647, Ra-leigh, NC 27611. CHAPTER 9 - FOOD AND DRUG PROTEC-TION DIVISION SUBCHAPTER 9L - PESTICIDE SECTION SECTION .0500 - PESTICIDE LICENSES .0524 EXPIRATION OF CERTIFICATION (a) The recertification period shall expire on June 30th. (b) At the direction of the Board, each certified individual will be notified 6-9 months prior to the recertification expiration date of the individual's remaining requirements for recertification. (c) A certified individual who has completed none of the recertification options in Rule .0522 of this Section prior to the recertification expiration date shall be required to retake and satisfactorily pass a comprehensive license examination defined in G.S. 143-453 or 143-455 before a license will be reissued in any category. This examination will be based on updated training materials approved by the Board. (d) No individual will be allowed to carry over any Continuing Certification Credits from one recertification period to another. Statutory Authority G.S. 143-437(1); 143-440(b); 143-453(c)(2); 143-455(d). SECTION .0700 - DECLARATION OF PESTS AND RESTRICTIONS ON THEIR CONTROL .0701 ORCHARD RATS The North Carolina Pesticide Board hereby declares as a pest pine voles [Pitymys (or Micro-tus) Pinetorum] and meadow voles (Microtus pennsylvanicus), (commonly called orchard rats) on or immediately adjacent to cultivated land or horticultural, nursery, or forest plantings of trees ef — shrubs cultivated land, forest plantations, ornamentals nurseries, orchards, or horticultural plantings in institutional, recreational, and residen-tial areas . Statutory Authority G.S. 143-444(1). TITLE 10 - DEPARTMENT OF HUMAN RESOURCES Notice is hereby given in accordance with G.S. 150B-21 .2 that the Commission for Mental Health, Developmental Disabilities and Substance Abuse Services intends to adopt rule cited as 10 NCAC 18L . 1525 and amend rules cited as 10 NCAC 14K .0103, .0314 - .0315; 140 .0106; 14Q .0106, .0303; 14R .0104 - .0105; 18J .0604; 18P .0903, .1003. 1 he proposed effective date of this action is January 4, 1993. 1 he public hearing will be conducted at 2:00 7:13 NORTH CAROLINA REGISTER October 1, 1992 1276 PROPOSED RULES p.m. on November 13, 1992 at the Wilmington Hilton, North Water Street, Garden Room - Second Floor, Wilmington, N.C. 28401. MXeason for Proposed Action: 10 NCAC 14K .0103, .0314, .0315 - Die pro-posed changes are to insert new language and new services into licensure requirements regarding early intervention to comply with changes in 34 CFR 303. 12 (Federal Early Intervention Regula-tions). In October of 1991, P.L. 99-457 was reauthorized by Congress. Statutory changes resulted in revi-sions in the federal regulations, most of which involved terminology and clarification only; howev-er, one change involving a new service require-ment is transportation. 10 NCAC 140 .0106 - Vie proposed change is to ensure the provider has all necessary information regarding the client, and that responsibilities for the provider are specified in the agreement. In addition, the proposed change is for consistency with same subject in other services regarding licensure requirements and client record documen-tation. 10 NCAC 14Q .0303 - To ensure informed con-sent is obtained whenever a restrictive intervention is employed on a planned basis. 10 NCAC 14R .0104 - To more clearly state in facility policy the required time frame for a review by a qualified professional whenever a restrictive intervention is used on a planned basis. 10 NCAC 14R .0105 - To qualify which facilities are subject to review by the Client Rights Commit-tee. early intervention service without jeopardizing their right to receive other early intervention services. 10 NCAC 18P .0903 - The proposed amendment is to delete the requirement for Division approval of written agreement. 10 NCAC 18P .1003 - The proposed amendment is to delete the requirement for Division approval of written agreement, and to allow consistency with other similar Rules for exchange of informa-tion. Comment Procedures: Any interested person may present his comments by oral presentation or by submitting a written statement. Written comments must be sent to Charlotte Tucker, Division of Mental Health, Developmental Disabilities and Substance Abuse Services, 325 North Salisbury Street, Raleigh, North Carolina 27603 by Novem-ber 2, 1992 and must state the Rules to which the comments are addressed. Persons wishing to make oral presentations should contact Charlotte Tucker at 919-733-4774 by November 11, 1992. Time limits for oral remarks may be imposed by the Commission Chairman. Fiscal information on these Rules is available from the Division by request. CHAPTER 14 - MENTAL HEALTH: GENERAL SUBCHAPTER 14K - CORE LICENSURE RULES FOR MENTAL HEALTH: MENTAL RETARDATION AND OTHER DEVELOP-MENTAL DISABILITDZS: AND SUBSTANCE ABUSE FACILITIES SECTION .0100 - GENERAL INFORMA-TION 10 NCAC 18J .0604 - 77zis Rule setsforth require-ments regarding State facility relationships for a facility which is area-operated or a contract agency. Tfie proposed change is to clarify the population served and to delete reference to re-gional director which no longer exists. Die pro-posed amendment will allow for consistency with other Rules. 10 NCAC 18L .1525 - Die proposed adoption of this Rule will allow parents of a child, eligible to receive services, to accept or decline any type of .0103 DEFINITIONS (a) This Rule contains the definitions that apply to all the rules in this Subchapter and Subchapters 14L through 140 of this Chapter. (b) In addition to the definitions contained in this Rule, the terms defined in G.S. 122C-3 also apply to all the rules in this Subchapter and Sub-chapters 14L through 140 of this Chapter. (c) The following terms shall have the meanings specified: (1) "Administering medication" means direct application of a drug to the body ( 7277 7:13 NORTH CAROLINA REGISTER October 1, 1992 PROPOSED RULES > of a client by injection, inhalation, ingestion, or any other means. (2) "Adolescent" means a minor from 13 through 17 years of age. (3) "Adult" means a person 18 years of age or older or a person under 18 years of age who has been married or who has been emancipated by a court of compe-tent jurisdiction or is a member of the armed forces. (4) "Aftercare" means those services pro-vided to substance abuse clients after discharge from a service which facili-tates the client's integration or reinte-gration into society. Activities may include self-help groups, supportive work programs and staff follow-up contacts and interventions. (5) "Alcohol abuse" means psychoactive substance abuse which is a residual category for noting maladaptive patterns of psychoactive substance use that have never met the criteria for dependence for that particular class of substance (criteria delineated in the 1987 edition of DSM-II1-R published by the Ameri-can Psychiatric Association, 1400 K Street, N.W., Washington, D.C. 20005 at a cost of twenty-nine dollars and ninety-five cents ($29.95) for the soft cover edition and thirty-nine dollars and ninety-five cents ($39.95) for the hard cover edition.) This adoption by refer-ence does not include subsequent amendments and editions of the refer-enced material. (6) "Alcohol dependence" means psychoac-tive substance dependence which is a cluster of cognitive behavioral, and physiologic symptoms that indicate that a person has impaired control of psy-choactive substance use and continues use of the substance despite adverse consequences (criteria delineated in the 1 987 edition of DSM-III-R published by the American Psychiatric Association, 1400 K Street, N.W., Washington, D.C. 20005 at a cost of twenty-nine dollars and ninety-five cents ($29.95) for the soft cover edition and thirty-nine dollars and ninety-five cents ($39.95) for the hard cover edition.) This adoption by reference does not include subsequent amendments and editions of the referenced material. (7) "Applicant" means any person who intends to establish, maintain or operate a licensable facility and who applies to the Department for a license to operate a facility under the provisions of G.S. 122C, Article 2. (8) "Approved supported employment conversion plan" means a planned approach to changing the type of servic-es delivered from ADAP facility-based to supported employment. Approval of the conversion plan is the responsibility of the Regional Director of the Division and the Area Director or his designee if the facility is operated by a contract agency of the area program or other service provider. The Division shall request appropriate personnel from the Division of Vocational Rehabilitation to participate in the review process. The request for approval of the supported employment conversion plan shall include specific written information in the following areas: (A) number of clients to be moved into supported employment placements; (B) types of supported employment mod-els to be used; (C) timeframe for the conversion period; (D) interim proposed facility staffing patterns and responsibilities; and (E) proposed budget for conversion plan. (9) "Area program" means a legally consti-tuted public agency providing mental health, mental retardation and substance abuse services for a catchment area designated by the Commission. For purposes of these Rules, the term "area program" means the same as "area authority" as defined in G.S. 122C-3. (10) "Assessment" means a procedure for determining the nature and extent of the problem for which the individual is seeking service. (11) "Atypical development" in children means those from birth to 60 months of age who demonstrate significantly atypical behavioral socioemotional, motor, or sensory development as manifested by: (A) Diagnosed hyperactivity, attention deficit disorder or other behavioral disorders, or (B) Identified emotional or behavioral disorders such as: 7:13 NORTH CAROLINA REGISTER October I, 1992 1278 PROPOSED RULES (i) delay or abnormality in achieving expected emotional milestones, such as pleasurable interest in adults and peers; ability to com-municate emotional needs; and ability to tolerate frustrations, (ii) persistent failure to initiate or respond to most social interac-tions, (iii) fearfulness or other distress that does not respond to comforting by caregivers, (iv) indiscriminate sociability, e.g. excessive familiarity with relative strangers, (v) self-injurious or unusually aggres-sive behavior, or (C) Substantiated physical abuse, sexual abuse, or other environmental situa-tions that raise significant concern regarding the child's emotional well-being. (12) "Certified counselor" means an alcohol-ism, drug abuse or substance abuse counselor who is certified by the North Carolina Substance Abuse Professional Certification Board. (13) "Child" means a minor from birth through 12 years of age. (14) "Chronically mentally ill adult" means an individual 18 years of age or older who, as a result of a mental disorder, exhibits emotional or behavioral func-tioning which is so impaired as to interfere substantially with his capacity to remain in the community without supportive treatment or services of a long-term or indefinite duration. In these persons, mental disability is se-vere and persistent, resulting in long-term limitation of their functional capacities for primary activities of daily living such as interpersonal relations, homemaking, self-care, employment and recreation. ( 15) "Client record" means a written account of all services provided a client from the time of admission of the client by the facility until discharge from the facility. (16) "Clinical" means having to do with the active direct treatment/habilitation of a client. (17) "Clinical staff member" means a pro-fessional who provides active direct treatment/habilitation to a client. (18) "Clinical/professional supervision" means regularly scheduled assistance by a qualified mental health professional, a qualified substance abuse professional or a qualified developmental disabilities professional to a staff member who is providing direct, therapeutic interven-tion to a client or clients. The purpose of clinical supervision is to ensure that each client receives appropriate treat-ment or habilitation which is consistent with accepted standards of practice and the needs of the client. (19) "Contested case" means an administra-tive proceeding under G.S. 150B, Article 3, in which the rights, privileg-es, or duties of a party are required by law to be determined. (20) "Contract agency" means a legally constituted entity with which the area program contracts for a service exclu-sive of intermittent purchase of service for an individually identified client. (21) "Day/night service" means a service provided on a regular basis, in a struc-tured environment that is offered to the same individual for a period of three or more hours within a 24-hour period. (22) "Declaratory ruling" means a formal and binding interpretation as to: (A) the validity of a rule; or (B) the applicability to a given state of facts of a statute administered by the Department of Human Resources, or a rule or order of the Department of Human Resources. (23) "Detoxification" means the physical withdrawal of an individual from alco-hol or other drugs in order that the individual can participate in rehabilita-tion activities. (24) "Developmentally delayed children" means those whose development is delayed in one or more of the following areas: cognitive development; physical development, including vision and hearing; language and speech; psycho social communication, social and emo-tional and self help adaptive skills. The specific level of delay must be: (A) for children from birth to 36 months of age, documented by scores 1 Vz standard deviations below the mean on standardized tests in at least one of 1279 7:13 NORTH CAROLINA REGISTER October 1, 1992 PROPOSED RULES I > the above areas of development. Or, it may be documented by a 20 percent delay on assessment instruments that yield scores in months; and ( |