North Carolina register, April 1986 - June 1998

              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
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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.
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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.
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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
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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.
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(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.
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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
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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
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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
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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-
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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:
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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
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the above areas of development. Or,
it may be documented by a 20 percent
delay on assessment instruments that
yield scores in months; and
(