2005 North Carolina Code - General Statutes Article 1 - General Provisions.

Chapter 150B.

Administrative Procedure Act.

Article 1.

General Provisions.

§ 150B‑1.  Policy and scope.

(a)       Purpose. – This Chapter establishes a uniform system of administrative rule making and adjudicatory procedures for agencies. The procedures ensure that the functions of rule making, investigation, advocacy, and adjudication are not all performed by the same person in the administrative process.

(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 Health and Human Services in exercising its authority over the Camp Butner reservation granted in Article 6 of Chapter 122C of the General Statutes.

(3)       The Utilities Commission.

(4)       The Industrial Commission.

(5)       The Employment Security Commission.

(6)       The State Board of Elections in administering the HAVA Administrative Complaint Procedure of Article 8A of Chapter 163 of the General Statutes.

(7)       The North Carolina State Lottery.

(d)       Exemptions from Rule Making. – Article 2A of this Chapter does not apply to the following:

(1)       The Commission.

(2)       Repealed by Session Laws 2000‑189, s. 14, effective July 1, 2000.

(3)       Repealed by Session Laws 2001‑474, s. 34, effective November 29, 2001.

(4)       The Department of Revenue, with respect to the notice and hearing requirements contained in Part 2 of Article 2A.

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

(6)       The Department of Correction, with respect to matters relating solely to persons in its custody or under its supervision, including prisoners, probationers, and parolees.

(7)       The North Carolina Teachers' and State Employees' Comprehensive Major Medical Plan in administering the provisions of Parts 2, 3, 4, and 5 of Article 3 of Chapter 135 of the General Statutes.

(8)       The North Carolina Federal Tax Reform Allocation Committee, with respect to the adoption of the annual qualified allocation plan required by 26 U.S.C. § 42(m), and any agency designated by the Committee to the extent necessary to administer the annual qualified allocation plan.

(9)       The Department of Health and Human Services in adopting new or amending existing medical coverage policies under the State Medicaid Program.

(10)     The Economic Investment Committee in developing criteria for the Job Development Investment Grant Program under Part 2F of Article 10 of Chapter 143B of the General Statutes.

(11)     The North Carolina State Ports Authority with respect to fees established pursuant to G.S. 143B‑454(a)(11).

(12)     The Department of Commerce and the Economic Investment Committee in developing criteria and administering the Site Infrastructure Development Program under G.S. 143B‑437.02.

(13)     The Department of Commerce and the Governor's Office in developing guidelines for the One North Carolina Fund under Part 2H of Article 10 of Chapter 143B of the General Statutes.

(e)       Exemptions From Contested Case Provisions. – The contested case provisions of this Chapter apply to all agencies and all proceedings not expressly exempted from the Chapter. The contested case provisions of this Chapter do not apply to the following:

(1)       The Department of Health and Human Services and the Department of Environment and Natural Resources in complying with the procedural safeguards mandated by Section 680 of Part H of Public Law 99‑457 as amended (Education of the Handicapped Act Amendments of 1986).

(2)       Repealed by Session Laws 1993, c. 501, s. 29.

(3),      (4)  Repealed by Session Laws 2001‑474, s. 35, effective November 29, 2001.

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

(6)       The Department of Revenue.

(7)       The Department of Correction.

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

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

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

(11)     Hearings that are provided by the Department of Health and Human Services regarding the eligibility and provision of services for eligible assaultive and violent children, as defined in G.S. 122C‑3(13a), shall be conducted pursuant to the provisions outlined in G.S. 122C, Article 4, Part 7.

(12)     The North Carolina Teachers' and State Employees' Comprehensive Major Medical Plan with respect to disputes involving the performance, terms, or conditions of a contract between the Plan and an entity under contract with the Plan.

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

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

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

(f)        Exemption for the University of North Carolina. – Except as provided in G.S. 143‑135.3, no Article in this Chapter except Article 4 applies to The University of North Carolina. (1973, c. 1331, s. 1; 1975, c. 390; c. 716, s. 5; c. 721, s. 1; c. 742, s. 4; 1981, c. 614, s. 22; 1983, c. 147, s. 2; c. 927, s. 13; 1985, c. 746, ss. 1, 19; 1987, c. 112, s. 2; c. 335, s. 2; c. 536, s. 1; c. 847, s. 2; c. 850, s. 20; 1987 (Reg. Sess., 1988), c. 1082, s. 14; c. 1111, s. 9; 1989, c. 76, s. 29; c. 168, s. 33; c. 373, s. 2; c. 538, s. 1; c. 751, s. 7(44); 1989 (Reg. Sess., 1990), c. 1004, s. 36; 1991, c. 103, s. 1; c. 418, s. 2; c. 477, s. 1; c. 749, ss. 9, 10; 1991 (Reg. Sess., 1992), c. 1030, s. 46; 1993, c. 501, s. 29; 1993 (Reg. Sess., 1994), c. 777, ss. 4(j), 4(k); 1995, c. 249, s. 4; c. 507, s. 27.8(m); 1997‑35, s. 2; 1997‑278, s. 1; 1997‑412, s. 8; 1997‑443, ss. 11A.110, 11A.119(a); 2000‑189, s. 14; 2001‑192, s. 1; 2001‑299, s. 1; 2001‑395, s. 6(c); 2001‑424, ss. 6.20(b), 21.20(c); 2001‑446, s. 5(d); 2001‑474, ss. 34, 35; 2001‑496, s. 8(c); 2002‑99, s. 7(b); 2002‑159, ss. 31.5(b), 49; 2002‑172, s. 2.6; 2002‑190, s. 16; 2003‑226, s. 17(b); 2003‑416, s. 2; 2003‑435, 2nd Ex. Sess., s. 1.3; 2004‑88, s. 1(e); 2005‑133, s. 10; 2005‑276, s. 31.1(ff); 2005‑300, s. 1; 2005‑344, s. 11.1; 2005‑455, s. 3.3.)

 

§ 150B‑2.  Definitions.

As used in this Chapter,

(1)       "Administrative law judge" means a person appointed under G.S. 7A‑752, 7A‑753, or 7A‑757.

(1a)     "Agency" means an agency or an officer in the executive branch of the government of this State and includes the Council of State, the Governor's Office, a board, a commission, a department, a division, a council, and any other unit of government in the executive branch. A local unit of government is not an agency.

(1b)     "Adopt" means to take final action to create, amend, or repeal a rule.

(1c)     "Codifier of Rules" means the Chief Administrative Law Judge of the Office of Administrative Hearings or a designated representative of the Chief Administrative Law Judge.

(1d)     "Commission" means the Rules Review Commission.

(2)       "Contested case" means an administrative proceeding pursuant to this Chapter to resolve a dispute between an agency and another person that involves the person's rights, duties, or privileges, including licensing or the levy of a monetary penalty. "Contested case" does not include rulemaking, declaratory rulings, or the award or denial of a scholarship, a grant, or a loan.

(2a)     Repealed by Session Laws 1991, c. 418, s. 3.

(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 Article.

(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, suspending, or revoking a license or occupational license. "Licensing" does not include controversies over whether an examination was fair or whether the applicant passed the examination.

(4a)     "Occupational license" means any certificate, permit, or other evidence, by whatever name called, of a right or privilege to engage in a profession, occupation, or field of endeavor that is issued by an occupational licensing agency.

(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 agency" 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 properly 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 judicial review of that decision.

(6)       "Person aggrieved" means any person or group of persons of common interest directly or indirectly affected substantially in his or its person, property, or employment by an administrative decision.

(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 principal place of business.

(8a)     "Rule" means any agency regulation, standard, or statement of general applicability that implements or interprets an enactment of the General Assembly or Congress or a regulation adopted by a federal agency or that describes the procedure or practice requirements of an agency. The term includes the establishment of a fee and the amendment or repeal of a prior rule. The term does not include the following:

a.         Statements concerning only the internal management of an agency or group of agencies within the same principal office or department enumerated in G.S. 143A‑11 or 143B‑6, including policies and procedures manuals, if the statement does not directly or substantially affect the procedural or substantive rights or duties of a person not employed by the agency or group of agencies.

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 interpretative statements within the delegated authority of an agency that merely define, interpret, or explain the meaning of a statute or rule.

d.         A form, the contents or substantive requirements of which are prescribed by rule or statute.

e.         Statements of agency policy made in the context of another proceeding, including:

1.         Declaratory rulings under G.S. 150B‑4.

2.         Orders establishing or fixing rates or tariffs.

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 inspections; in settling financial disputes or negotiating financial arrangements; or in the defense, prosecution, or settlement of cases.

h.         Scientific, architectural, or engineering 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 established 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. 105‑449.80.

k.         The State Medical Facilities Plan, if the Plan has been prepared with public notice and hearing as provided in G.S. 131E‑176(25), reviewed by the Commission for compliance with G.S. 131E‑176(25), and approved by the Governor.

(8b)     "Substantial evidence" means relevant evidence a reasonable mind might accept as adequate to support a conclusion.

(9)       Repealed by Session Laws 1991, c. 418, s. 3. (1973, c. 1331, s. 1; 1975, 2nd Sess., c. 983, ss. 61, 62; 1977, c. 915, s. 5; 1983, c. 641, s. 1; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(2)‑1(5); 1987, c. 878, ss. 1, 2, 21; 1987 (Reg. Sess., 1988), c. 1111, s. 17; 1991, c. 418, s. 3; c. 477, ss. 3.1, 3.2, 9; 1995, c. 390, s. 29; 1996, 2nd Ex. Sess., c. 18, s. 7.10(g); 1997‑456, s. 27; 2003‑229, s. 12.)

 

§ 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 occupational license are limited, until the last day for applying for judicial review of the agency order. This subsection does not affect agency action summarily suspending a license or occupational license under subsections (b) and (c) of this section.

(b)       Before the commencement of proceedings for the suspension, revocation, annulment, withdrawal, recall, cancellation, or amendment of any license other than an occupational license, the agency shall give notice to the licensee, pursuant to the provisions of G.S. 150B‑23. Before the commencement of such proceedings involving an occupational license, the agency shall give notice pursuant to the provisions of G.S. 150B‑38. In either case, the licensee shall be given an opportunity to show compliance with all lawful requirements for retention of the license or occupational license.

(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 proceedings. 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.

(d)       This section does not apply to the following:

(1)       Revocations of occupational licenses based solely on a court order of child support delinquency or a Department of Health and Human Services determination of child support delinquency issued pursuant to G.S. 110‑142, 110‑142.1, or 110‑142.2.

(2)       Refusal to renew an occupational license pursuant to G.S. 87‑10.1, 87‑22.2, 87‑44.2, or 89C‑18.1, based solely on a Department of Revenue determination that the licensee owes a delinquent income tax debt. (1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1995, c. 538, s. 2(i); 1997‑443, s. 11A.118(a); 1998‑162, s. 8.)

 

§ 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 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 binding on the agency and the person requesting it unless it is altered or set aside by the court. An agency may not retroactively change a declaratory ruling, but nothing in this section prevents an agency from prospectively changing a declaratory ruling. A declaratory ruling is subject to judicial review in the same manner as an order in a contested 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)       Repealed by Session Laws 1997‑34, s. 1. (1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1991, c. 418, s. 4; c. 477, s. 2.1; 1997‑34, s. 1.)

 

§§ 150B‑5 through 150B‑8.  Reserved for future codification purposes.