26 NCAC | Title 26 NCAC — Administrative Hearings

Chapter 01 General

26 NCAC 01 .0101 Location {#sec-26-ncac-01-.0101 omnilex-key=us-nc-regs-official--title-26--26 NCAC 01 .0101}

(a) The principal office of the Office of Administrative Hearings is located at 1711 New Hope Church Road, Raleigh, North Carolina. The mailing address is 1711 New Hope Church Road, Raleigh, North Carolina 27609.

(b) Forms and information about the office may be obtained from the agency's website at: www.oah.nc.gov.

History

Authority G.S. 7A-751(a)
Eff. January 1, 1991
Amended Eff. October 1, 2008; August 1, 2000; December 1, 1999; April 1, 1991
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. July 1, 2023.

26 NCAC 01 .0102 Office Hours: Filing of Documents {#sec-26-ncac-01-.0102 omnilex-key=us-nc-regs-official--title-26--26 NCAC 01 .0102}

History

Status: repealed
Authority G.S. 150B-11
Eff. January 1, 1991
Repealed Eff. July 1, 1998.

26 NCAC 01 .0103 Cost to Public {#sec-26-ncac-01-.0103 omnilex-key=us-nc-regs-official--title-26--26 NCAC 01 .0103}

(a) Copies of any public records filed in the Office of Administrative Hearings are available at the "actual cost" as defined in G.S. 132-6.2(b). The Office of Administrative Hearings shall provide its "actual cost" on the Office of Administrative Hearings website.

(b) There is no charge to the requesting party unless the actual cost is equal to or exceeds ten dollars ($10.00).

History

Authority G.S. 7A-751; 132-6.2; 150B-19; 150B-21.25; 150B-37
Eff. August 1, 1986
Amended Eff. April 1, 1990; January 1, 1989
Recodified from 26 NCAC 1 .0001 Eff. January 1, 1991
Amended Eff. April 1, 2009; May 1, 2001; August 1, 2000; February 1, 1994; August 2, 1993
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. August 1, 2021.

26 NCAC 01 .0104 Employee Insurance Committee {#sec-26-ncac-01-.0104 omnilex-key=us-nc-regs-official--title-26--26 NCAC 01 .0104}

History

Status: repealed
Authority G.S. 7A-751(a); 58-31-60
Eff. February 1, 1987
Recodified from 26 NCAC 1 .0003 Eff. January 1, 1991
Amended Eff. December 1, 1999; April 1, 1991; January 1, 1991
Repealed Eff. November 1, 2012.

26 NCAC 01 .0105 Emergency Waiver {#sec-26-ncac-01-.0105 omnilex-key=us-nc-regs-official--title-26--26 NCAC 01 .0105}

The Director of the Office of Administrative Hearings shall waive any rule adopted by the Office of Administrative Hearings that is not statutorily required if the Director finds that the waiver is necessary to protect the public health and safety at any time:

(1) the President of the United States, the Governor, the General Assembly, or a mayor or board of county commissioners, declares a state of emergency or state of disaster;

(2) the State Health Director or a local health director issues an isolation or quarantine order; or

(3) the business and disaster recovery plan required by G.S. 147-33.89 is implemented by the OAH Business Continuity Management Team.

History

Authority G.S. 7A-751(a)
Eff. October 1, 2009
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 01 .0201 Instructions for Filing a Petition for Rule-Making {#sec-26-ncac-01-.0201 omnilex-key=us-nc-regs-official--title-26--26 NCAC 01 .0201}

(a) Any person may petition the Office of Administrative Hearings (OAH) to adopt a new rule, or amend or repeal an existing rule by submitting a rule-making petition to OAH. The petition must be titled "Petition for Rule-making" and must include the following information:

(1) the name and address of the person submitting the petition;

(2) a citation to any rule for which an amendment or repeal is requested;

(3) a draft of any proposed rule or amended rule;

(4) an explanation of why the new rule or amendment or repeal of an existing rule is requested and the effect of the new rule, amendment, or repeal on the procedures of OAH;

(5) any other information the person submitting the petition considers relevant.

(b) The Director of the Office of Administrative Hearings (Director) must decide whether to grant or deny a petition for rule-making within 30 days of receiving the petition. In making his decision, the Director will consider the information submitted with the petition and any other relevant information.

(c) When the Director denies a petition for rule-making, he must send written notice of the denial to the person who submitted the request. The notice must state the reason for the denial. When the Director grants a rule-making petition, he must initiate rule-making proceedings and send written notice of the proceedings to the person who submitted the request.

History

Authority G.S. 150B-20
Eff. January 1, 1991
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 01 .0202 Declaratory Rulings: Availability {#sec-26-ncac-01-.0202 omnilex-key=us-nc-regs-official--title-26--26 NCAC 01 .0202}

(a) The Director or his designee may issue declaratory rulings. All requests for declaratory rulings shall be in writing and submitted to:

Office of Administrative Hearings

1711 New Hope Church Road

Raleigh, North Carolina 27609

(b) Every request for a declaratory ruling must include the following information:

(1) the name and address of the petitioner,

(2) the reference to the statute or rule in question,

(3) a statement as to why the petitioner is a person aggrieved, and

(4) the consequences of a failure to issue a declaratory ruling.

History

Authority G.S. 150B-4
Eff. January 1, 1987
Recodified from 26 NCAC 1 .0002 Eff. January 1, 1991
Amended Eff. November 1, 2012; August 2, 1993
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

Chapter 02 Rules Division

Subchapter A

26 NCAC 02A .0101 Publication of the NCAC {#sec-26-ncac-02a-.0101 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0101}

History

Status: repealed
Authority G.S. 150B-21.18; 150B-21.19; 150B-21.25
Eff. November 1, 1984
Amended Eff. April 1, 1995; August 2, 1993; December 1, 1991; January 1, 1991
Repealed Eff. April 1, 1996.

26 NCAC 02A .0102 Availability of the Ncac {#sec-26-ncac-02a-.0102 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0102}

History

Status: repealed
Authority G.S. 150B-21.18; 150B-21.19; 150B-21.25
Eff. November 1, 1984
Amended Eff. April 1, 1995; August 2, 1993; December 1, 1991; January 1, 1991
Repealed Eff. April 1, 1996.

26 NCAC 02A .0201 Adoption of Rules {#sec-26-ncac-02a-.0201 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0201}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0205) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.7; 150B-21.18; 150B-21.19; 150B-21.20; 150B-21.24
Eff. November 1, 1984
Amended Eff. December 1, 1991; January 21, 1991; July 1, 1989; May 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0202 Amendments to Rules {#sec-26-ncac-02a-.0202 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0202}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0205) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.7; 150B-21.18; 150B-21.19; 150B-21.20; 150B-21.24
Eff. November 1, 1984
Amended Eff. December 1, 1991; January 21, 1991; July 1, 1989; May 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0203 Repeal of Rules {#sec-26-ncac-02a-.0203 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0203}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0205) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.7; 150B-21.18; 150B-21.19; 150B-21.20; 150B-21.24
Eff. November 1, 1984
Amended Eff. December 1, 1991; January 21, 1991; July 1, 1989; May 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0204 Continuation/Recodification {#sec-26-ncac-02a-.0204 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0204}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0205) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.7; 150B-21.18; 150B-21.19; 150B-21.20; 150B-21.24
Eff. November 1, 1984
Amended Eff. December 1, 1991; January 21, 1991; July 1, 1989; May 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0205 Submission for Filing Form {#sec-26-ncac-02a-.0205 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0205}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0205) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.7; 150B-21.18; 150B-21.19; 150B-21.20; 150B-21.24
Eff. November 1, 1984
Amended Eff. December 1, 1991; January 21, 1991; July 1, 1989; May 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0206 Changes in Catchlines or History Notes {#sec-26-ncac-02a-.0206 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0206}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0205) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.7; 150B-21.18; 150B-21.19; 150B-21.20; 150B-21.24
Eff. November 1, 1984
Amended Eff. December 1, 1991; January 21, 1991; July 1, 1989; May 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0207 Rule Summaries {#sec-26-ncac-02a-.0207 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0207}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0205) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.7; 150B-21.18; 150B-21.19; 150B-21.20; 150B-21.24
Eff. November 1, 1984
Amended Eff. December 1, 1991; January 21, 1991; July 1, 1989; May 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0208 Illustrations/Notes {#sec-26-ncac-02a-.0208 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0208}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0205) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.7; 150B-21.18; 150B-21.19; 150B-21.20; 150B-21.24
Eff. November 1, 1984
Amended Eff. December 1, 1991; January 21, 1991; July 1, 1989; May 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0209 Refusal of Rules {#sec-26-ncac-02a-.0209 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0209}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0205) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.7; 150B-21.18; 150B-21.19; 150B-21.20; 150B-21.24
Eff. November 1, 1984
Amended Eff. December 1, 1991; January 21, 1991; July 1, 1989; May 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0210 Acceptance of Rules Filed {#sec-26-ncac-02a-.0210 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0210}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0205) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.7; 150B-21.18; 150B-21.19; 150B-21.20; 150B-21.24
Eff. November 1, 1984
Amended Eff. December 1, 1991; January 21, 1991; July 1, 1989; May 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0211 Agency Final Copy {#sec-26-ncac-02a-.0211 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0211}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Authority G.S. 150B-21; 150B-21.5
Eff. January 1, 1989
Amended Eff. July 1, 1992; December 1, 1991
Repealed Eff. April 1, 1996.

26 NCAC 02A .0212 Mailing List {#sec-26-ncac-02a-.0212 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0212}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Authority G.S. 150B-21; 150B-21.5
Eff. January 1, 1989
Amended Eff. July 1, 1992; December 1, 1991
Repealed Eff. April 1, 1996.

26 NCAC 02A .0301 Filing Temporary Rules: Adoptions: Amendments: Repeals {#sec-26-ncac-02a-.0301 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0301}

History

Status: repealed
Filed as a Temporary Repeal Eff. November 1, 1995 for a period of 180 days or until the
permanent rule becomes effective, whichever is sooner
Filed as a Temporary Amendment Eff. October 1, 1991 for a period of 180 days to expire
on March 29, 1992
Authority G.S. 150B-21.1; 150B-21.19
Eff. November 1, 1984
Amended Eff. December 1, 1991; January 21, 1991; January 1, 1988; August 1, 1986
Repealed Eff. April 1, 1996.

26 NCAC 02A .0302 Submission for Filing Form {#sec-26-ncac-02a-.0302 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0302}

History

Status: repealed
Authority G.S. 150B-60
Eff. November 1, 1984
Amended Eff. January 1, 1989; August 1, 1986
Repealed Eff. January 21, 1991.

26 NCAC 02A .0303 Procedure for Review of Temporary Rules {#sec-26-ncac-02a-.0303 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0303}

History

Status: repealed
Filed as a Temporary Repeal Eff. November 1, 1995 for a period of 180 days or until the
permanent rule becomes effective, whichever is sooner
Filed as a Temporary Adoption Eff. October 1, 1991 For a period of 180 days to expire on
March 29, 1992
Authority G.S. 150B-21.1
Eff. December 1, 1991
Repealed Eff. April 1, 1996.

26 NCAC 02A .0401 General Typing Instructions {#sec-26-ncac-02a-.0401 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0401}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the permanent
rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0402, .0403, .0404) Eff. October 1, 1991 for
a period of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.5; 150B-21.19
Eff. November 1, 1984
Amended Eff. August 2, 1993; December 1, 1991; May 1, 1989; January 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0402 Original Copy of Rules {#sec-26-ncac-02a-.0402 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0402}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the permanent
rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0402, .0403, .0404) Eff. October 1, 1991 for
a period of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.5; 150B-21.19
Eff. November 1, 1984
Amended Eff. August 2, 1993; December 1, 1991; May 1, 1989; January 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0403 Introductory Statement {#sec-26-ncac-02a-.0403 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0403}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the permanent
rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0402, .0403, .0404) Eff. October 1, 1991 for
a period of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.5; 150B-21.19
Eff. November 1, 1984
Amended Eff. August 2, 1993; December 1, 1991; May 1, 1989; January 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0404 Body of Rules {#sec-26-ncac-02a-.0404 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0404}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the permanent
rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0402, .0403, .0404) Eff. October 1, 1991 for
a period of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.5; 150B-21.19
Eff. November 1, 1984
Amended Eff. August 2, 1993; December 1, 1991; May 1, 1989; January 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0405 History Note {#sec-26-ncac-02a-.0405 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0405}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the permanent
rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0402, .0403, .0404) Eff. October 1, 1991 for
a period of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.5; 150B-21.19
Eff. November 1, 1984
Amended Eff. August 2, 1993; December 1, 1991; May 1, 1989; January 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0406 History Note: Temporary Adoptions: Amendments: Repeals {#sec-26-ncac-02a-.0406 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0406}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the permanent
rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2A .0402, .0403, .0404) Eff. October 1, 1991 for
a period of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.5; 150B-21.19
Eff. November 1, 1984
Amended Eff. August 2, 1993; December 1, 1991; May 1, 1989; January 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02A .0501 Codification System {#sec-26-ncac-02a-.0501 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0501}

History

Status: repealed
Filed as Temporary Repeals Effective November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Authority G.S. 150B-21.19
Eff. November 1, 1984
Amended Eff. January 1, 1988; January 1, 1988; August 1, 1986
Repealed Eff. April 1, 1996.

26 NCAC 02A .0502 Chapter Subdivision {#sec-26-ncac-02a-.0502 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0502}

History

Status: repealed
Filed as Temporary Repeals Effective November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Authority G.S. 150B-21.19
Eff. November 1, 1984
Amended Eff. January 1, 1988; January 1, 1988; August 1, 1986
Repealed Eff. April 1, 1996.

26 NCAC 02A .0503 Subchapter Subdivision {#sec-26-ncac-02a-.0503 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0503}

History

Status: repealed
Filed as Temporary Repeals Effective November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Authority G.S. 150B-21.19
Eff. November 1, 1984
Amended Eff. January 1, 1988; January 1, 1988; August 1, 1986
Repealed Eff. April 1, 1996.

26 NCAC 02A .0504 Section Subdivision {#sec-26-ncac-02a-.0504 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0504}

History

Status: repealed
Filed as Temporary Repeals Effective November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Authority G.S. 150B-21.19
Eff. November 1, 1984
Amended Eff. January 1, 1988; January 1, 1988; August 1, 1986
Repealed Eff. April 1, 1996.

26 NCAC 02A .0505 Rule {#sec-26-ncac-02a-.0505 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0505}

History

Status: repealed
Filed as Temporary Repeals Effective November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Authority G.S. 150B-21.19
Eff. November 1, 1984
Amended Eff. January 1, 1988; January 1, 1988; August 1, 1986
Repealed Eff. April 1, 1996.

26 NCAC 02A .0506 Subsections of Rules {#sec-26-ncac-02a-.0506 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0506}

History

Status: repealed
Filed as Temporary Repeals Effective November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Authority G.S. 150B-21.19
Eff. November 1, 1984
Amended Eff. January 1, 1988; January 1, 1988; August 1, 1986
Repealed Eff. April 1, 1996.

26 NCAC 02A .0507 Listing Within Rules {#sec-26-ncac-02a-.0507 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0507}

History

Status: repealed
Filed as Temporary Repeals Effective November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Authority G.S. 150B-21.19
Eff. November 1, 1984
Amended Eff. January 1, 1988; January 1, 1988; August 1, 1986
Repealed Eff. April 1, 1996.

26 NCAC 02A .0601 Apa Coordinators {#sec-26-ncac-02a-.0601 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0601}

History

Status: repealed
Authority G.S. 150B-60
Eff. November 1, 1984
Amended Eff. August 1, 1986
Repealed Eff. July 16, 1988 in accordance with 150B-59(c).

26 NCAC 02A .0602 Agency Responsibility {#sec-26-ncac-02a-.0602 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0602}

History

Status: repealed
Authority G.S. 150B-60
Eff. November 1, 1984
ARRC Objection Lodged Eff. January 19, 1988
Amended Eff. April 1, 1988; August 1, 1986
Repealed Eff. July 16, 1988 in accordance with G.S. 150B-59(c).

26 NCAC 02A .0701 Rules Filed Through Atms Computer System {#sec-26-ncac-02a-.0701 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02A .0701}

History

Status: repealed
Authority G.S. 150B-21.19
Eff. November 1, 1984
Amended Eff. January 21, 1991; August 1, 1986
Repealed Eff. August 2, 1993.

Subchapter B

26 NCAC 02B .0101 Publication of the North Carolina Register {#sec-26-ncac-02b-.0101 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02B .0101}

History

Status: repealed
Filed as a Temporary Repeal Eff. November 1, 1995 for a period of 180 days or until the
permanent rule becomes effective, whichever is sooner
Authority G.S. 150B-21.17
Eff. August 1, 1986
Repealed Eff. April 1, 1996.

26 NCAC 02B .0102 Statements of Organization {#sec-26-ncac-02b-.0102 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02B .0102}

History

Status: repealed
Authority G.S. 150B-10; 150B-63
Eff. August 1, 1986
Repealed Eff. December 1, 1991.

26 NCAC 02B .0103 Submission and Publication Schedule {#sec-26-ncac-02b-.0103 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02B .0103}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Authority G.S. 150B-21.17; 150B-21.25
Eff. August 1, 1986
Amended Eff. April 1, 1995; August 2, 1993; July 1, 1992; April 1, 1991
Repealed Eff. April 1, 1996.

26 NCAC 02B .0104 Availability of the North Carolina Register {#sec-26-ncac-02b-.0104 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02B .0104}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Authority G.S. 150B-21.17; 150B-21.25
Eff. August 1, 1986
Amended Eff. April 1, 1995; August 2, 1993; July 1, 1992; April 1, 1991
Repealed Eff. April 1, 1996.

26 NCAC 02B .0201 Publication of Proposed Rules {#sec-26-ncac-02b-.0201 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02B .0201}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the permanent
rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2B .0201, .0202) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.17
Eff. August 1, 1986
Amended Eff. December 1, 1991; January 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02B .0202 Notice Forms {#sec-26-ncac-02b-.0202 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02B .0202}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the permanent
rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2B .0201, .0202) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.17
Eff. August 1, 1986
Amended Eff. December 1, 1991; January 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02B .0203 Acceptance for Publication {#sec-26-ncac-02b-.0203 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02B .0203}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the permanent
rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2B .0201, .0202) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.17
Eff. August 1, 1986
Amended Eff. December 1, 1991; January 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02B .0204 Refusal of Publication {#sec-26-ncac-02b-.0204 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02B .0204}

History

Status: repealed
Filed as Temporary Repeals Eff. November 1, 1995 for a period of 180 days or until the permanent
rules become effective, whichever is sooner
Filed as a Temporary Amendment (26 NCAC 2B .0201, .0202) Eff. October 1, 1991 for a period
of 180 days to expire on March 29, 1992
Authority G.S. 150B-21.17
Eff. August 1, 1986
Amended Eff. December 1, 1991; January 1, 1989
Repealed Eff. April 1, 1996.

26 NCAC 02B .0301 General Typing Instructions {#sec-26-ncac-02b-.0301 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02B .0301}

History

Status: repealed
Filed as Temporary Repeals Effective November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Filed as Temporary Amendments Eff. October 1, 1991 for a period of 180 days to expire
on March 29, 1992
Authority G.S. 150B-21.17
Eff. August 1, 1986
Amended Eff. December 1, 1991; January 1, 1988
Repealed Eff. April 1, 1996.

26 NCAC 02B .0302 Original Copy of Proposed Rules {#sec-26-ncac-02b-.0302 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02B .0302}

History

Status: repealed
Filed as Temporary Repeals Effective November 1, 1995 for a period of 180 days or until the
permanent rules become effective, whichever is sooner
Filed as Temporary Amendments Eff. October 1, 1991 for a period of 180 days to expire
on March 29, 1992
Authority G.S. 150B-21.17
Eff. August 1, 1986
Amended Eff. December 1, 1991; January 1, 1988
Repealed Eff. April 1, 1996.

26 NCAC 02B .0303 Statement of Subject Matter {#sec-26-ncac-02b-.0303 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02B .0303}

History

Status: repealed
Filed as a Temporary Repeal Effective November 1, 1995 for a period of 180 days or until the
permanent rule becomes effective, whichever is sooner
Filed as a Temporary Amendment Eff. October 1, 1991 for a period of 180 days to expire on
March 29, 1992
Authority G.S. 150B-21.17
Eff. December 1, 1991
Repealed Eff. April 1, 1996.

26 NCAC 02B .0401 Electronic Filings and Format {#sec-26-ncac-02b-.0401 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02B .0401}

History

Status: repealed
Filed as a Temporary Repeal Eff. November 1, 1995 for a period of 180 days or until the
permanent rule becomes effective, whichever is sooner
Filed as a Temporary Amendment Eff. October 1, 1991 For a Period of 180 days to expire
on March 29, 1992
Authority G.S. 150B-21.17
Eff. August 1, 1986
Amended Eff. August 2, 1993; December 1, 1991
Repealed Eff. April 1, 1996.

Subchapter C

26 NCAC 02C .0101 Scope {#sec-26-ncac-02c-.0101 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0101}

(a) The rules in this Section set forth the general requirements for an agency to submit rules and documents for publication.

(b) For notices and rules submitted for publication in the Register, an agency shall also comply with the requirements set out in Sections .0200 and .0300 of this Subchapter.

(c) For a rule submitted for inclusion in the Code that was noticed in the Register, an agency shall also comply with the requirements set out in Section .0400 of this Subchapter.

(d) For a rule submitted for inclusion in the Code and the rule was not noticed in the Register, an agency shall also comply with the requirements set out in Sections .0200 and .0400 of this Subchapter.

(e) For a temporary rule submitted for publication in the Register and the Code, an agency shall also comply with the requirements set out in Sections .0200 through .0500 of this Subchapter.

(f) For a rule submitted for publication on the OAH website, an agency shall also comply with the requirements set out in Sections .0200 and .0700 of this Subchapter.

(g) For an emergency rule submitted for review and publication in the Register and Code, an agency shall also comply with the requirements set out in Sections .0200 and .0600 of this Subchapter.

History

Authority G.S. 150B-21.17; 150B-21.18; 150B-21.19
Eff. April 1, 1996
Temporary Amendment Eff. July 1, 2003
Amended Eff. April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0102 Definitions {#sec-26-ncac-02c-.0102 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0102}

The following definitions apply throughout this Chapter and to all forms prescribed pursuant to this Chapter unless the context indicates otherwise:

(1) "Action" means the adoption, amendment, or repeal of a rule.

(2) "Adoption" means a new rule with a new rule number.

(3) "Adoption by agency" means the date that an agency takes final action on a rule.

(4) "Amendment" means an existing rule with a deletion, addition or other change to that existing rule.

(5) "Citation" means a reference to a rule by Title, Chapter or Subchapter, and Section or Rule number.

(6) "Code" means the North Carolina Administrative Code.

(7) "Commission" means the Rules Review Commission.

(8) "Form" means an original form template provided by the OAH and completed by the submitting agency.

(9) "OAH" means the Codifier of Rules at the Office of Administrative Hearings.

(10) "Original" means a copy of the document marked or stamped as such.

(11) "Publication" includes publication on the OAH website or in the Register or entry into the Code.

(12) "Register" means the North Carolina Register.

(13) "Repeal" means the deletion of the entire text of a rule. When a rule is repealed, that rule number shall not be used again. The number, rule name, and final history note remain in the Code permanently for publication and reference purposes.

History

Authority G.S. 150B-21.17; 150B-21.18
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. April 1, 1997
Temporary Amendment Eff. July 1, 2003
Amended Eff. June 1, 2011; April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0103 Original and Duplicate Copy {#sec-26-ncac-02c-.0103 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0103}

(a) An agency shall submit an original and one copy of any document and form for publication in the Register or Code or on the OAH website.

(b) An agency shall include an additional copy of the rule with any rule that is submitted to the Commission.

(c) An agency shall permanently mark or stamp the original rule and form as original and date it at the time of marking or stamping.

(d) An agency shall submit documents in the following order:

(1) the original submission form;

(2) the original of the rule;

(3) a copy of the submission form;

(4) a copy of the rule; and

(5) a copy of the rule for the RRC if the rule is subject to review by RRC.

History

Authority G.S. 150B-21.17; 150B-21.18; 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. June 1, 2011; April 1, 2004; August 1, 2000; April 1, 1997
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0104 Return Copy {#sec-26-ncac-02c-.0104 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0104}

History

Status: repealed
Authority G.S. 150B-21.17; 150B-21.18; 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Temporary Amendment Eff. January 1, 2003
Amended Eff. April 1, 2004 (this amendment replaces the amendment approved by RRC on October 16, 2003)
Repealed Eff. June 1, 2011.

26 NCAC 02C .0105 Electronic Version {#sec-26-ncac-02c-.0105 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0105}

(a) Any electronic version required to be submitted must be compatible with or convertible to the most recent version of Microsoft Word. The OAH shall not accept for publication any file in which the electronic version does not comply with this requirement. The OAH shall not accept floppy disks.

(b) The electronic version must be labeled with the date and name of each file.

(c) The electronic version may contain multiple rules or other documents filed at the same time. Each rule must be saved as a separate file except repealed rules that are combined as set out in Rule .0406(b) of this Subchapter must be a single file. The name of the file must be the official rule citation.

(d) The electronic version must be received no later than the business day that the rule or document and its form are delivered to the OAH.

(e) Electronic versions submitted by email shall be sent to oah.rules@oah.nc.gov.

History

Authority G.S. 150B-21.17; 150B-21.18; 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. June 1, 2011; November 1, 2006; January 1, 2006; April 1, 2004; August 1, 2000
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0106 Refusal of Publication {#sec-26-ncac-02c-.0106 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0106}

(a) OAH shall refuse to publish any document submitted for publication that does not meet its requirements.

(b) OAH shall return the document to the agency with an indication of the changes needed.

(c) The agency may resubmit the document for publication, but the date that OAH receives such resubmission shall govern the publication date.

(d) If the returned rule is for inclusion in the Code, the agency shall resubmit the rule to OAH within 48 hours.

History

Authority G.S. 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Temporary Amendment Eff. July 1, 2003
Amended Eff. April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0107 rulemaking COORDINATOR AND MAILING LIST {#sec-26-ncac-02c-.0107 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0107}

(a) Each agency head shall notify OAH in writing of the name and address of the agency's rulemaking coordinator.

(b) The rulemaking coordinator shall notify OAH of any change in the agency's address.

History

Authority G.S. 150B-21
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. November 1, 2024.

26 NCAC 02C .0108 General Format Instructions {#sec-26-ncac-02c-.0108 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0108}

An agency shall format each rule submitted to OAH for publication in the Register or Code as follows:

(1) Paper Specifications:

(a) 8½ by 11 inch plain white paper;

(b) one side of the sheet only;

(d) 10 point font size;

(e) portrait print (8½ x 11);

(f) numbered lines on the left margin with each page starting with line 1;

(g) 1.5 line spacing;

(h) page numbers centered at the bottom of the page for each rule that has more than one page of text; and

(i) no staples.

(2) Tab and Margin Settings:

(a) tab settings for all rules shall be set relative from the left margin at increments of 0.5; and

(b) text shall be with a one inch margin on all sides.

(3) The Introductory Statement shall start on page 1, line 1 of each rule.

(4) When a new chapter, subchapter, or section of rules is adopted, the Chapter, Subchapter, and Section names shall be provided in bold print with the first rule following the introductory statement. One line shall be skipped between the introductory statement and each chapter, subchapter, and section name.

(5) One line shall be skipped before starting the line that provides the rule citation and rule name. The first digit of the title number shall be placed in position 1. One tab shall be between the rule number and rule name. The rule name shall be in capital letters and the rule number and name shall be in bold print.

(6) Body of the Rule:

(a) the body of the rule shall start on the line immediately following the rule name with the following markings:

(i) adoptions - new text shall be underlined;

(ii) amendments - any text to be deleted shall be struck through and new text shall be underlined; and

(iii) repeals - text of the rule shall not be included;

(b) there shall be no lines skipped in the body of the rule except before and in tables;

(d) the first level of text shall be flush left and with two spaces after the closing parenthesis if the paragraph is identified by a letter;

(e) the second level of text shall start with one tab and one hanging indent after the closing parenthesis;

(f) the third level of text shall start with two tabs and one hanging indent after the closing parenthesis;

(g) the fourth level of text shall start with three tabs and one hanging indent after the closing parenthesis;

(h) the fifth level of text shall start with four tabs and one hanging indent after the closing parenthesis; and

(i) the sixth level of text shall start with five tabs and one hanging indent after the closing parenthesis.

(7) The smallest unit of text to be struck through or underlined shall be an entire word with any punctuation that is part of the word or block of characters separated from other text by a space on each side. Punctuation shall be considered part of the word when there is no space between the punctuation and the word.

(8) History Note Specifications:

(a) shall be in italic font;

(b) shall start on the second line following the body of the rule;

(d) the first line shall start with the words "History Note:", followed by one tab and the word "Authority". The agency shall then cite the authority(ies) in numerical order for that rule;

(e) the effective date of the original adoption of the rule shall be the next line following the authority. The abbreviation "Eff." shall be followed by this date;

(f) on the line following the "Eff." date, the amended dates shall be preceded with the words "Amended Eff." and the dates shall be listed in chronological order, with the most recent amended date listed first;

(g) a temporary rule shall be listed as a separate item in the history note with the following words: "Temporary (Adoption, Amendment, or Repeal) Eff. (date)";

(h) an emergency rule shall be listed as a separate item in the history note with the following words: "Emergency (Adoption, Amendment, or Repeal) Eff. (date)";

(i) the repealed date of a rule shall be the last line of the history note and start with the words "Repealed Eff." followed by the date;

(j) all items in the history note shall be separated by semicolons with the last line ending with a period;

(k) all history of a rule shall be in chronological order following the authority for the rule; and

(l) all dates in the history note shall be complete with the month spelled out, and shall not contain any abbreviations.

(9) Numbers within the text shall be as follows:

(a) numbers from one to nine shall be spelled out;

(b) figures shall be used for numbers over nine; and

(10) Monetary figures within the text shall be spelled out followed by the numerical figure in parenthesis. Decimal and zeros shall be used only for even dollar amounts of sums less than one thousand dollars ($1,000).

Note: Examples of proper formatting can be found on the OAH website located at www.ncoah.com/rules.

History

Authority G.S. 150B-21.17; 150B-21.18; 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. August 1, 2000
Temporary Amendment Eff. July 1, 2003
Amended Eff. June 1, 2011; January 1, 2006; April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0109 Citation to Authorities {#sec-26-ncac-02c-.0109 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0109}

(a) The agency shall cite authorities according to the most current edition of the rules of citation contained in "A Uniform System of Citation" except as listed in Paragraph (b) of this Rule. "A Uniform System of Citation" is hereby incorporated by reference and includes subsequent amendments and editions. A copy may be obtained from the Harvard Law Review Association, Gannett House, 1511 Massachusetts Ave., Cambridge, Massachusetts 02138 at a cost of sixteen dollars ($16.00).

(b) The agency shall cite:

(1) the General Statutes of North Carolina as "G.S. #";

(2) the Session Laws of North Carolina as "S.L. 20xx-xxx, s. x";

(3) an Executive Order issued by the Governor as "E.O. #, (Governor's name), (year)";

(4) the North Carolina Administrative Code as "(Title #) NCAC (Chapter or Subchapter #) (.####)"; and

(5) the North Carolina Register as "(Vol. #) NCR (Issue #), (page #)".

History

Authority G.S. 150B-21.17; 150B-21.18; 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. December 1, 2002
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0110 Illustrations/Notes {#sec-26-ncac-02c-.0110 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0110}

An agency may include material in the text of a rule which is an illustration of something in the rule. Illustrations shall be merely examples or clarifications which, when not read, do not change the meaning of the rule. The material which is meant only as an illustration shall be set aside by preceding it with the word "Note:".

History

Authority G.S. 150B-21.18; 150B-21.19; 150B-21.20
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. June 1, 2011
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0111 Waiver {#sec-26-ncac-02c-.0111 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0111}

OAH may waive any rule in this Subchapter that is not statutorily required if an agency submits a written request. Factors OAH shall use in determining whether to grant the waiver are:

(1) degree of disruption to OAH publication and work schedule;

(2) cost to OAH;

(3) degree of benefit to the public;

(4) whether the agency had control over the circumstances that required the requested waiver;

(5) notice to and opposition by the public;

(6) need for the waiver; and

(7) previous requests for waivers submitted from the agency.

History

Authority G.S. 150B-19(6); 150B-21.19
Eff. April 1, 1997
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0112 Agency Final Copy {#sec-26-ncac-02c-.0112 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0112}

History

Authority G.S. 150B-21.5; 150B-21.20
Temporary Adoption Eff. January 1, 2003
Temporary Repeal Eff. July 1, 2003.

26 NCAC 02C .0113 Authorization for signature {#sec-26-ncac-02c-.0113 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0113}

(a) If the head of a principal state department has delegated the authority to sign forms to another pursuant to G.S. 143B-10(a), then the agency shall submit a copy of the delegation with rule filings. That delegation authorization does not apply to all agency, boards or commission heads. The following is a listing of principal state department heads that may delegate the function of signing forms for the agency head:

(1) Department of Natural and Cultural Resources

(2) Department of Health and Human Services

(3) Department of Revenue

(4) Department of Public Safety

(5) Department of Environmental Quality

(6) Department of Transportation

(7) Department of Administration

(8) Department of Commerce.

(b) It is necessary to submit only one copy of the delegation with all rules filed by an agency for a single month's review by the Commission.

History

Authority G.S. 150B-21.19
Eff. April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. October 1, 2022.

26 NCAC 02C .0114 agency final copy {#sec-26-ncac-02c-.0114 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0114}

(a) OAH shall send electronically a final draft of an adopted emergency, temporary or permanent rule to an agency's rulemaking coordinator after the rule is filed with OAH.

(b) The agency shall notify OAH of any error made in the draft within five business days of the date OAH sent the draft.

(c) If OAH receives written notification from the agency of any error made by OAH within the five business days, OAH shall correct the error.

(d) If OAH receives written notification from the agency of any error in the content of the rule not made by OAH, OAH shall return the rule to the Commission.

History

Authority G.S. 150B-21.5; 150B-21.20
Temporary Adoption Eff. July 1, 2003
Eff. April 1, 2004
Amended Eff. April 1, 2009
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. November 1, 2024.

26 NCAC 02C .0115 notification of consultation {#sec-26-ncac-02c-.0115 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0115}

An agency who is required by G.S. 12-3.1 to consult with the Joint Legislative Commission on Governmental Operations shall notify OAH of the date of the consultation by notation on the Emergency Rulemaking Findings of Need form, the Temporary Rulemaking Findings of Need form, or the Submission for Permanent Rule form if the consultation occurred before the form was filed with the Commission or OAH. If consultation occurred after the forms were filed with the Commission or OAH, the agency shall notify OAH in writing citing the rule and the date of consultation.

History

Authority G.S. 150B-21.3(c1); 150B-21.18
Eff. April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0201 Scope {#sec-26-ncac-02c-.0201 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0201}

The rules in this Section set forth the codification system of the North Carolina Administrative Code. Rules submitted for publication in the North Carolina Register and the North Carolina Administrative Code shall comply with this codification system.

History

Authority G.S. 150B-21.17; 150B-21.18; 150B-21.19
Eff. April 1, 1996
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0202 Codification System {#sec-26-ncac-02c-.0202 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0202}

(a) All rules shall be codified within the system described in this Section.

(b) OAH shall assign a title number to any agency that publishes its rules in the Code.

(c) The agency shall arrange its rules in Chapters, and arrange them in subchapters. The agency shall arrange the chapters or subchapters into sections, and the sections into rules.

(d) The agency may reserve in writing a specified chapter, subchapter, section or rule for future use.

History

Authority G.S. 150B-21.18; 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0203 Subchapter Subdivision {#sec-26-ncac-02c-.0203 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0203}

(a) An agency may use the subchapter to divide chapters into subject areas.

(b) When subdividing a chapter into subchapters, an agency shall subdivide the entire chapter into at least two subchapters.

(c) A subchapter of the Code shall be represented by a capital letter following the chapter number. Subchapters shall be lettered consecutively unless a subchapter letter has been reserved.

History

Authority G.S. 150B-21.18; 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0204 Section Subdivision {#sec-26-ncac-02c-.0204 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0204}

(a) The agency shall place rules in the same subject area in one section. The section is the subdivision that contains rules.

(b) All sections shall be represented as the first two digits of a four digit number following a decimal. Sections shall be consecutive starting with Section .0100 unless a section number has been reserved. There is a limit of 99 sections within any chapter or subchapter.

History

Authority G.S. 150B-21.18; 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0205 Rule {#sec-26-ncac-02c-.0205 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0205}

The rule shall be represented by the second two digits of the four numbers following a decimal. Rules shall be numbered consecutively unless a rule number has been reserved. The last two digits of the first rule shall be "01".

History

Authority G.S. 150B-21.18; 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0206 Rule Subdivision {#sec-26-ncac-02c-.0206 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0206}

(a) For rules adopted by an agency prior to July 1, 2004, an agency shall subdivide a rule containing more than one idea into paragraphs labeled: (a), (b), (c), .... Any subdivided paragraphs shall be labeled: (1), (2), (3), ...; (A), (B), (C), ...; (i), (ii), (iii), ...; (I), (II), (III), .... All subdivisions of rules shall be represented by this order, and each label shall be in parentheses.

(b) For rules adopted by an agency on or after July 1, 2004, an agency shall subdivide a rule containing more than one idea into paragraphs labeled: (a), (b), (c), .... Any subdivided paragraphs shall be labeled: (1), (2), (3), ...; (A), (B), (C), …. All subdivisions of rules shall be represented by this order, and each label shall be in parentheses.

History

Authority G.S. 150B-21.18; 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0207 Listing Within Rules {#sec-26-ncac-02c-.0207 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0207}

(a) For a rule adopted by an agency prior to July 1, 2004, when the rule is not subdivided into paragraphs but contains a list, the sequence of labels for the lists shall be: (1), (2), (3), ...; (a), (b), (c), ...; (i), (ii), (iii), ...; (A), (B), (C), ...; (I), (II), (III), ....

(b) For a rule adopted by an agency on or after July 1, 2004, when the rule is not subdivided into paragraphs but contains a list, the sequence of labels for the lists shall be: (1), (2), (3), ...; (a), (b), (c), ...; (i), (ii), (iii),….

(c) A rule shall not begin with a list. A list contained within a rule shall be preceded by some form of introductory material.

(d) If there is a list within a paragraph, the rule shall follow the sequence in Rule .0206 of this Section.

History

Authority G.S. 150B-21.18; 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0301 Scope {#sec-26-ncac-02c-.0301 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0301}

The rules in this Section set forth the filing requirements for rules submitted for publication in the North Carolina Register. The agency shall also comply with the requirements set out in Sections .0100 and .0200 of this Subchapter.

History

Authority G.S. 150B-21.17; 150B-21.18; 150B-21.19
Eff. April 1, 1996
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0302 Submission and Publication Schedule {#sec-26-ncac-02c-.0302 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0302}

(a) Submissions for publication in the Register shall be received in OAH by the closing date for the issue as determined under Paragraph (b) of this Rule.

(b) OAH shall publish the Register on the first and fifteenth of each month if the first or fifteenth of the month is not a Saturday, Sunday, or State holiday for employees mandated by the State Personnel Commission. If the first or fifteenth of any month is a Saturday, Sunday, or a holiday for State employees, OAH shall publish the Register on the next State business day. The last day for filing for any issue of the Register shall be 15 days before the issue date excluding Saturdays, Sundays, and holidays for State employees. In computing the time prescribed or allowed by this Rule, the day of publication of the Register shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or State holiday, in which event the period shall run until the preceding day which is not a Saturday, Sunday, or State holiday. OAH shall publish in each issue of the Register a table of publication deadlines and schedules for at least the next 12 issues. This table is published as a public service and the computation of time periods are not to be deemed binding or controlling.

History

Authority G.S. 150B-21.17
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0303 Availability of the North Carolina Register {#sec-26-ncac-02c-.0303 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0303}

(a) A print subscription to the Register is available from LexisNexis Matthew Bender and may be ordered directly from LexisNexis by calling 1-800-833-9844, ordering from the online store at www.lexisnexis.com/bookstorelink/, or by writing to LexisNexis Matthew Bender, Order Fulfillment, 1275 Broadway, Albany, NY 12204.

(b) The Register is available at no charge on the OAH website: http://www.ncoah.com.

History

Authority G.S. 150B-21.25
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. August 1, 2000; December 1, 1999
Temporary Amendment Eff. January 1, 2003
Amended Eff. November 1, 2007; August 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0304 Notice of Permanent Rule-Making Proceedings {#sec-26-ncac-02c-.0304 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0304}

History

Status: repealed
Authority G.S. 150B-21.17
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Temporary Amendment Eff. January 1, 2003(Rule .0305)
Temporary Repeal Eff. July 1, 2003
Repealed Eff. April 1, 2004.

26 NCAC 02C .0305 Publication of Rule-Making Agenda {#sec-26-ncac-02c-.0305 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0305}

History

Status: repealed
Authority G.S. 150B-21.17
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Temporary Amendment Eff. January 1, 2003(Rule .0305)
Temporary Repeal Eff. July 1, 2003
Repealed Eff. April 1, 2004.

26 NCAC 02C .0306 Publication of Notice of Text {#sec-26-ncac-02c-.0306 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0306}

(a) The agency shall submit its Notice of Text on an OAH Notice of Text form. If the information contained in the notice exceeds the space provided on the form, the agency shall also submit an electronic version of the information.

(b) All rules submitted for publication by an agency at the same time, with the same proposed effective date, and with the same public hearing date and location if a hearing is scheduled, shall be listed on a single form.

(c) The agency shall submit the text of the proposed rule and an electronic version of the rule (Rule .0105 of this Subchapter).

(d) A rule proposed to be adopted or amended shall meet the following requirements:

(1) The rule shall contain an introductory statement immediately preceding the text. The statement shall contain the rule citation and the action proposed to be taken.

(2) Following the introductory statement, the rule number, name, text and history note shall be in the form specified in Rule 26 NCAC 02C .0108.

(e) A rule proposed to be repealed shall meet the following requirements:

(1) The rule shall contain an introductory statement. The statement shall contain the rule citation and the action proposed to be taken.

(2) Following the introductory statement, the rule shall contain the number and rule name of the rule proposed to be repealed.

(3) A history note shall follow the rule number and name.

History

Authority G.S. 150B-21.17
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. August 1, 2000
Temporary Amendment Eff. January 1, 2003
Amended Eff. June 1, 2011; August 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0307 Other Notices for Publication {#sec-26-ncac-02c-.0307 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0307}

OAH may publish any document or notice that is not statutorily required if an agency submits a written request. Factors OAH shall use in determining whether to grant the request are:

(1) degree of disruption to OAH publication and work schedule; and

(2) degree of benefit to the public.

History

Authority G.S. 150B-21.17(6); 150B-19(5)(a); 150B-21.25
Eff. April 1, 1997
Amended Eff. November 1, 2007
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0308 electronic filing {#sec-26-ncac-02c-.0308 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0308}

(a) An agency may file rules and other documents for publication in the Register by email. The email shall include an attached document(s) prepared and sent as set out in Rule .0105 of this Subchapter.

(b) The agency shall simultaneously send a facsimile (fax) copy of the attachment(s).

(c) Electronic submission shall be deemed submitted for publication pursuant to 26 NCAC 02C .0302 on the business day when both the email with attachment(s) and the faxed copy are received.

History

Authority G.S. 150B-21.17
Eff. January 1, 2006
Amended Eff. June 1, 2011; May 1, 2009
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0401 Scope and Availability {#sec-26-ncac-02c-.0401 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0401}

(a) The rules in this Section set forth the requirements for submitting rules for inclusion in the Code. The agency shall also comply with the requirements in Sections .0100 - .0200 of this Subchapter.

(b) These Rules apply to agencies subject to G.S. 150B, Article 2A, as well as those agencies subject to G.S. 150B-21.21(a) and (b).

(c) The Official North Carolina Administrative Code is available by subscription from Thomson Reuters and may be ordered directly from a Thomson Reuters representative by calling 1-800-328-9352, online at http://www.thomsonreuters.com, or by writing to Thomson Reuters, 610 Opperman Drive, Eagan, MN 55123.

(d) The North Carolina Administrative Code is available on the OAH website: http://www.oah.state.nc.us.

History

Authority G.S. 150B-21.17; 150B-21.18; 150B-21.19
Eff. April 1, 1996
Amended Eff. October 1, 2008; December 1, 2002; April 1, 1997
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0402 Publication of a Permanent Rule {#sec-26-ncac-02c-.0402 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0402}

An agency must submit a permanent rule for publication in the Code with the following:

(1) An original submission form and copy (Rule .0403 of this Section).

(2) If applicable, a letter delegating authority for the signature on the submission form (Rule .0113 of this Subchapter).

(3) An original and copies of the permanent rule (Rule .0103 of this Subchapter) prepared in accordance with Rule .0108 of this Subchapter containing:

(a) an introductory statement (Rule .0404 of this Section);

(b) the body of the rule (Rule .0405 of this Section);

(d) the history note (Rule .0406 of this Section).

(4) An electronic version of the rule prepared in accordance with Rule .0105 of this Subchapter.

History

Authority G.S. 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. June 1, 2011; November 1, 2006; April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0403 Submission for Permanent Rule Form {#sec-26-ncac-02c-.0403 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0403}

(a) An agency shall submit a completed typed Submission for Permanent Rule form for each rule submitted for publication in the Code, except that the agency shall submit a single Submission for Permanent Rule form for all repealed rules that are codified within the same chapter.

(b) The agency head or rulemaking coordinator shall sign the Submission for Permanent Rule form.

History

Authority G.S. 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. April 1, 2004; August 1, 2000
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. November 1, 2024.

26 NCAC 02C .0404 Introductory Statement {#sec-26-ncac-02c-.0404 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0404}

(a) The agency shall include an introductory statement immediately preceding each rule submitted to OAH for publication in the Code. This introductory statement shall contain the rule citation and the action taken.

(b) If notice of the proposed action was published in the Register, the agency shall include the volume, issue and page or pages of the notice publication in the introductory statement.

(c) If the text differs in any way from the proposed rule published in the Register, the agency shall include the underlined words "with changes" in the introductory statement.

(d) When an agency repeals a rule that was noticed to be amended, the agency shall state that the rule was originally proposed to be amended but is repealed in the introductory statement.

(e) If notice of the proposed rule was not required for publication in the Register, the agency shall include a citation to the statute exempting the rule from notice in the introductory statement.

History

Authority G.S. 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0405 Body of the Rule {#sec-26-ncac-02c-.0405 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0405}

(a) An agency shall prepare for publication in the Code any permanent rule not published in the Register or that does not differ in any way from the proposed rule published in the Register according to the general format instructions in Rule .0108 of this Subchapter.

(b) If a permanent rule differs in any way from the proposed rule published in the Register, the following applies:

(1) An agency shall identify changes in an adopted rule by striking through deleted portions, and underlining added portions. The unchanged text shall not be underlined.

(2) An agency shall identify changes in an amended rule as follows:

(A) when text has been added, the text added shall be underlined and highlighted;

(B) when existing text has been deleted, the text deleted shall be struck through and highlighted;

(C) when text that was proposed to be deleted has been restored, the restored text shall be highlighted, but not underlined or struck through;

(D) when text that was proposed to be added has been deleted, the deleted proposed text shall be enclosed in brackets, struck through and highlighted; and

(E) when text is required to be highlighted, the highlighting shall be by highlight marker or shall be computer generated. The text shall show through the highlight and be clear and legible when reproduced.

(3) If the agency repeals a rule originally noticed to be amended, then the agency shall submit the rule as a permanent repeal.

History

Authority G.S. 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. June 1, 2011; January 1, 2006
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0406 History Note {#sec-26-ncac-02c-.0406 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0406}

(a) An agency shall include a history note for each rule submitted to the OAH for publication in the Code, containing the following information:

(1) the authority for the rule;

(2) the effective date of the adoption of the rule;

(3) the effective date of the amendments to the rule including the proposed amendment listed in chronological order with the proposed amendment first;

(4) the effective date of the repeal; and

(5) any other history references pertaining to the rule.

(b) Not withstanding Paragraph (a) of this Rule, the agency shall combine repealed rules with a single history note if the rules are consecutive numerically in the same section and the effective dates and repealed dates are identical. The agency shall combine authority cites and any other dates.

History

Authority G.S. 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. June 1, 2011
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0407 Changes to Rule, Section or Chapter Names and History Notes {#sec-26-ncac-02c-.0407 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0407}

An agency may change the name of a rule, section or chapter and to a history note by notifying OAH in writing. This letter shall cite the rule, identify the changes, and be signed by the agency head or rulemaking coordinator.

History

Authority G.S. 150B-21.19; 150B-21.20
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. November 1, 2024.

26 NCAC 02C .0408 Recodification of Rules {#sec-26-ncac-02c-.0408 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0408}

An agency may request that one or more of its rules be recodified. The agency shall submit a letter to OAH containing the citation to the existing rule and the recodified citation, and the reasons for the recodification. The letter shall be signed by the agency head or rulemaking coordinator. The recodification shall be effective upon approval by OAH. OAH may refuse to approve a recodification when the recodification does not facilitate the use of the Code.

History

Authority G.S. 150B-21.7; 150B-21.18; 150B-21.19; 150B-21.20
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. November 1, 2024.

26 NCAC 02C .0409 Transfer of Rules to Another Agency {#sec-26-ncac-02c-.0409 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0409}

An agency desiring to transfer rules pursuant to G.S. 150B-21.7 shall submit a letter to OAH requesting such transfer. The letter shall contain the citation to the existing rule, the recodified citation, and the authority for the transfer. The letter shall be signed by the agency head or rulemaking coordinator.

History

Authority G.S. 150B-21.7; 150B-21.18; 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. November 1, 2024.

26 NCAC 02C .0410 Agency Final Copy of Permanent Rules {#sec-26-ncac-02c-.0410 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0410}

History

Status: repealed
Authority G.S. 150B-21.5; 150B-21.20
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Temporary Repeal Eff. January 1, 2003
Repealed Eff. August 1, 2004.

26 NCAC 02C .0501 Scope {#sec-26-ncac-02c-.0501 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0501}

An agency submitting temporary rules to be published in the Register and Code shall comply with the requirements in Sections .0100 through .0500 of this Subchapter.

History

Authority G.S. 150B-21.17; 150B-21.18; 150B-21.19
Eff. April 1, 1996
Temporary Amendment Eff. July 1, 2003
Amended Eff. April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0502 Publication of a Temporary Rule {#sec-26-ncac-02c-.0502 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0502}

An agency shall submit each temporary rule for publication in the Code with the following:

(1) An original Temporary Rulemaking Findings of Need form and copies (Rule .0503 of this Section).

(2) If applicable, a letter delegating the authority for the signature on the form (Rule .0113 of this Subchapter).

(3) An original and copies of the temporary rule (Rule .0103 of this Subchapter) prepared in accordance with Rule .0108 of this Subchapter, containing:

(a) an introductory statement (Rule .0404 of this Subchapter);

(b) the body of the rule (Rule .0405 of this Subchapter);

(4) An electronic version of the rule (Rule .0105 of this Subchapter).

History

Authority G.S. 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Amended Eff. April 1, 1997
Temporary Amendment Eff. July 1, 2003
Amended Eff. June 1, 2011; April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0503 TEMPORARY RULEmaking findings of need FORM {#sec-26-ncac-02c-.0503 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0503}

(a) An agency shall submit a completed typed original Temporary Rulemaking Findings of Need form and two copies for a rule to be submitted for publication in the Code.

(b) The agency head shall sign the original form. If the agency head has delegated this authority to another pursuant to G.S. 143B-10(a), then the agency shall submit a copy of the delegation.

History

Authority G.S. 150B-21.19
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Temporary Amendment Eff. July 1, 2003
Amended Eff. April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0504 Appearance by Agency {#sec-26-ncac-02c-.0504 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0504}

History

Status: repealed
Authority G.S. 150B-21.1
Temporary Adoption Eff. November 1, 1995
Eff. April 1, 1996
Temporary Repeal Eff. July 1, 2003
Repealed Eff. April 1, 2004.

26 NCAC 02C .0601 Scope {#sec-26-ncac-02c-.0601 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0601}

An agency submitting emergency rules to be reviewed by the Codifier, and for publication in the Register and Code, shall comply with the requirements in Sections .0100 through .0400 of this Subchapter and this Section.

History

Authority G.S. 150B-21.17; 150B-21.18; 150B-21.19
Temporary Adoption Eff. July 1, 2003
Eff. April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0602 PUBLICATION OF An emergency RULE {#sec-26-ncac-02c-.0602 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0602}

An agency shall submit an emergency rule for review by the OAH and publication in the Register and the Code with the following:

(1) An original Emergency Rule Findings of Need form and copy (Rule .0603 of this Section).

(2) If applicable, a letter delegating the authority for the signature on the form (Rule .0113 of this Subchapter).

(3) An original and copies of the emergency rule (Rule .0103 of this Subchapter) prepared in accordance with Rule .0108 of this Subchapter, containing:

(a) an introductory statement (Rule .0404 of this Subchapter);

(b) the body of the rule (Rule .0405 of this Subchapter);

(4) An electronic version of the rule (Rule .0105 of this Subchapter).

(5) A copy of any document supporting the reason for the emergency rule pursuant to G.S. 150B-21.1A(a). The agency shall highlight the information in the document that is pertinent to the need for the emergency rule.

History

Authority G.S. 150B-21.19
Temporary Adoption Eff. July 1, 2003
Eff. April 1, 2004
Amended Eff. June 1, 2011
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0603 emergency RULE findings of need FORM {#sec-26-ncac-02c-.0603 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0603}

(a) An agency shall submit a completed typed Emergency Rule Findings of Need form for a rule to be submitted for publication in the Code. The agency shall submit a single Emergency Rule Findings of Need form for emergency rules when:

(1) the rules are codified within the same chapter in the Code;

(2) the finding for the action is the same;

(3) the proposed effective date is the same; and

(4) the rules are submitted at the same time for review by the Codifier of Rules.

(b) The agency head shall sign the Emergency Rule Findings of Need form. If the agency head has delegated this authority to another pursuant to G.S. 143B-10(a), then the agency shall submit a copy of such delegation.

History

Authority G.S. 150B-21.19
Temporary Adoption Eff. July 1, 2003
Eff. April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0604 Appearance by Agency {#sec-26-ncac-02c-.0604 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0604}

The Codifier may request that a representative of an agency appear before him during the review to clarify the agency's findings of need, to provide additional information, or to answer questions of any interested person.

History

Authority G.S. 150B-21.1A
Temporary Adoption Eff. July 1, 2003
Eff. April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0701 scope {#sec-26-ncac-02c-.0701 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0701}

An agency submitting rules that are required by state or federal law to be published on the OAH website shall comply with the requirements in Sections .0100 through .0400 and this Section.

History

Authority G.S. 150B-21.1
Temporary Adoption Eff. July 1, 2003
Eff. April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0702 publication of a rule on the oah website {#sec-26-ncac-02c-.0702 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0702}

An agency shall submit a rule to be published on the OAH website with the following:

(1) An original Publication on the OAH Website form and copy (Rule .0703 of this Section).

(2) If applicable, a letter delegating authority for the signature on the form (Rule .0113 of this Subchapter).

(3) An original and copies of the rule (Rule .0103 of this Subchapter) prepared in accordance with Rule .0108 of this Subchapter, containing:

(a) an introductory statement (Rule .0404 of this Subchapter);

(b) the body of the rule (Rule .0405 of this Subchapter);

(4) An electronic version of the rule (Rule .0105 of this Subchapter).

History

Authority G.S. 150B-21.19
Temporary Adoption Eff. July 1, 2003
Eff. April 1, 2004
Amended Eff. June 1, 2011
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 02C .0703 publication FORM {#sec-26-ncac-02c-.0703 omnilex-key=us-nc-regs-official--title-26--26 NCAC 02C .0703}

(a) An agency shall submit a completed typed Publication on the OAH Website form for a rule to be submitted for publication in the OAH website.

(b) Except as specified in Paragraph (c) of this Rule, the agency shall submit a single form for each permanent rule submitted for publication.

(1) the rules are codified in the same chapter in the Code;

(2) the rules are scheduled for the same public hearing(s); and

(3) the comment period is the same.

(d) The agency head or rulemaking coordinator shall sign the Publication form. If the agency head has delegated this authority to another pursuant to G.S. 143B-10(a), then the agency shall submit a copy of such delegation.

History

Authority G.S. 150B-21.19
Temporary Adoption Eff. July 1, 2003
Eff. April 1, 2004
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

Chapter 03 Hearings Division

26 NCAC 03 .0101 General {#sec-26-ncac-03-.0101 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0101}

(a) The Rules of Civil Procedure as contained in G.S. 1A-1 and the General Rules of Practice for the Superior and District Courts as authorized by G.S. 7A-34 and found in the Rules Volume of the North Carolina General Statutes shall apply in contested cases in the Office of Administrative Hearings (OAH) unless another specific statute or rule of the Office of Administrative Hearings provides otherwise.

(b) The Office of Administrative Hearings shall permit the filing of contested case documents and other pleadings in the OAH electronic filing system (e-OAH), by facsimile (fax), or by electronic mail with an attached file either in PDF format or a document compatible with the most recent version of Microsoft Word. Faxed documents shall be sent to: (984) 236-1871. Electronic mail with attached file shall be sent by electronic transmission to: oah.clerks@oah.nc.gov. The faxed documents or electronic mail with attached file shall be deemed a "filing" within the meaning of 26 NCAC 03 .0102(a)(2) provided the original signed filing and the appropriate filing fee (if a fee is required by G.S. 150B-23.2) are received by OAH within seven business days following the transmission of the faxed documents or electronic mail with attached file. Electronic mail without an attached file as specified in this Paragraph shall not constitute a valid filing with the Office of Administrative Hearings.

(c) Every pleading and other documents filed with OAH shall be signed by the attorney, mediator, or other party who prepared the document, and shall contain the preparer's name, mailing address, electronic mail address, and telephone number. Documents prepared by an attorney shall have the attorney's North Carolina State Bar number.

(d) Except as otherwise provided by statutes or by rules adopted under G.S. 150B-38(h), the rules contained in this Chapter shall govern the conduct of contested case hearings under G.S. 150B-40 when an Administrative Law Judge has been assigned to preside in the contested case.

History

Authority G.S. 7A-750; 7A-751(a); 150B-23.2; 150B-23.3; 150B-40(c)
Eff. August 1, 1986
Amended Eff. May 1, 2009; January 1, 2006; April 1, 2004; April 1, 2001; August 1, 2000; February 1, 1994; July 1, 1992; May 1, 1989; January 1, 1989
Emergency Amendment Eff. October 1, 2009
Temporary Amendment Eff. December 1, 2009
Amended Eff. October 1, 2010
Temporary Amendment Eff. January 1, 2012
Amended Eff. March 1, 2016; November 1, 2012
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. October 1, 2022.

26 NCAC 03 .0102 Definitions and Construction {#sec-26-ncac-03-.0102 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0102}

(a) The definitions contained in G.S. 150B-2 are incorporated herein by reference. In addition, the following definitions apply:

(1) "Chief Administrative Law Judge" means the person appointed according to G.S. 7A-752.

(2) "File" or "Filing" means:

(A) to place the paper or item to be filed into the care and custody of the chief hearings clerk of the Office of Administrative Hearings, and acceptance thereof by the clerk, except that when a party submits a document for filing to the administrative law judge during the course of a contested case hearing and the filing is accepted by the administrative law judge, the judge shall note thereon the filing date. All documents filed with the Office of Administrative Hearings, except exhibits, shall be in letter size 8 1/2" by 11"; or

(B) electronic filing as defined in 26 NCAC 03 .0501(1).

(3) "Service" or "Serve" means:

(A) delivery by electronic mail with an attached file in a format that is readily accessible to the recipient;

(B) delivery by facsimile (fax);

(D) delivery by first class United States Postal Service mail;

(E) delivery by overnight express mail service; or

(F) electronic service as defined in 26 NCAC 03 .0501(4).

(b) A Certificate of Service by the person making the service shall be appended to every document requiring service under these Rules.

(c) Service by mail is complete upon placing the item to be served, enclosed in a wrapper addressed to the person to be served, in an official depository of the United States Postal Service.

(d) Service by overnight express mail is complete upon placing the item to be served, enclosed in a wrapper addressed to the person to be served, in the custody of an overnight express mail service.

(e) Service by electronic mail or fax shall be deemed to occur one hour after it is sent, provided that:

(1) documents sent after 5 pm are deemed sent at 8 am the following business day; and

(2) documents sent by electronic mail or fax that are not readable by the recipient are not deemed served. Within five business days of receipt of an unreadable document, the receiving party shall notify the sending party of the unreadability of the document.

Service by electronic mail or fax is treated the same as service by mail for the purpose of adding three days to the prescribed period to respond under Rule 6(e) of the Rules of Civil Procedure as contained in G.S. 1A-1.

(f) The rules of statutory construction contained in Chapter 12 of the General Statutes shall be applied in the construction of these Rules.

History

Authority G.S. 7A-752; 150B-23; 150B-23.3
Eff. August 1, 1986
Amended Eff. October 1, 1991; January 1, 1989; November 1, 1987; September 1, 1986
Temporary Amendment Eff. January 1, 2012
Amended Eff. March 1, 2016; November 1, 2012
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0103 Commencement of Contested Case: Notice and Filing Fee {#sec-26-ncac-03-.0103 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0103}

(a) Within five days of filing a petition to commence a contested case, the Chief Administrative Law Judge shall assign an administrative law judge to the case. Within ten days of the filing of a petition commencing a contested case, the Chief Hearings Clerk of the Office of Administrative Hearings shall serve a Notice of Contested Case Filing and Assignment upon all who are parties to the dispute. The notice shall contain the following:

(1) name of case and date of filing;

(2) name, address, and telephone number of the assigned administrative law judge; and

(3) a request that the party send within 30 days a copy of the document constituting the agency action that caused the filing of the petition or a written explanation of why the petitioner is a party or person aggrieved if a document constituting the agency action does not exist.

(b) In contested cases commenced by a person aggrieved involving the following causes of action, the petitioner shall pay a filing fee of one hundred twenty-five dollars ($125.00):

(1) contested cases challenging certificate of need filed pursuant to G.S. 131E-188;

(2) contested cases challenging permit actions under G.S. 143-215.1, G.S. 143-215.10C, G.S. 143-215.15, and G.S. 143-215.108; and

(3) contested cases where the amount in controversy is fifty thousand dollars ($50,000) or greater.

(c) In contested cases commenced by a person aggrieved that do not involve the causes of action listed in Paragraph (b) of this Rule, the petitioner shall pay a fee of twenty dollars ($20.00).

(d) The filing fee shall be waived in a contested case involving a mandated federal cause of action. Examples of federal causes of action include cases involving Medicaid, foster care, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), Special Education/IDEA, the Health Care Personnel Registry, and the Supplemental Nutrition Assistance Program (SNAP).

(e) When filing a petition for a contested case, the petitioner shall simultaneously submit the filing fee or a request to proceed in forma pauperis.

(1) If the filing fee is not paid or is paid in an incorrect amount at the time of filing, the Office of Administrative Hearings shall notify the petitioner in writing and permit a late payment of the filing fee to be made within 60 days of the date the petition was filed. If the filing fee is not paid within 60 days of the date of filing, the petition may be dismissed pursuant to G.S. 150B-33(b)(10).

(2) To proceed in forma pauperis, a petitioner shall submit an affidavit on a form provided by OAH containing the substantive requirements listed in G.S. 1-110(a). Late forms shall be accepted within the timeframe set in Subparagraph (e)(1) of this Rule.

(f) The filing fee shall be refunded when Rule .0105(7) of this Section applies.

(g) The method of payment of the filing fee shall be:

(1) cash;

(2) money order;

(3) certified check;

(4) check drawn on an attorney's trust or operating account; or

(5) credit or debit card if the petition is filed electronically.

History

Authority G.S. 150B-23; 150B-23.2; 150B-33
Eff. August 1, 1986
Amended Eff. October 1, 1991; November 1, 1987; September 1, 1986
Emergency Amendment Eff. October 1, 2009
Temporary Amendment Eff. December 1, 2009
Amended Eff. June 1, 2014; October 1, 2010
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. April 1, 2023.

26 NCAC 03 .0104 Order for Prehearing Statements {#sec-26-ncac-03-.0104 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0104}

The administrative law judge may serve all parties with an Order for Prehearing Statements together with, or after service of, the Notice of Contested Case Filing and Assignment. The parties thus served shall, within 30 days of service, file the requested statements setting out the party's present position on the following:

(1) The nature of the proceeding and the issues to be resolved;

(2) A brief statement of the facts and reasons supporting the party's position on each matter in dispute;

(3) A list of proposed witnesses with a brief description of his or her proposed testimony;

(4) A description of what discovery, if any, the party will seek to conduct prior to the contested case hearing and an estimate of the time needed to complete discovery;

(5) Venue considerations;

(6) Estimation of length of the hearing;

(7) The name, address, and telephone number of the party's attorney, if any; and

(8) Other special matters.

History

Authority G.S. 150B-33
Eff. August 1, 1986
Amended Eff. October 1, 1991; November 1, 1987
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0105 Duties of the Administrative Law Judge {#sec-26-ncac-03-.0105 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0105}

In conjunction with the powers of administrative law judges prescribed by G.S. 150B-33 and G.S. 150B-34, the administrative law judge shall perform the following duties, consistent with law:

(1) Hear and rule on motions;

(2) Grant or deny continuances;

(3) Issue orders regarding prehearing matters, including directing the appearance of the parties at a prehearing conference;

(4) Examine witnesses when deemed necessary to make a complete record and to aid in the full development of material facts in the case;

(5) Make preliminary, interlocutory, or other orders as deemed appropriate;

(6) Grant dismissal when the case or any part thereof has become moot or for other reasons;

(7) Order the State of North Carolina, when it is the losing party as determined by the presiding Administrative Law Judge, to reimburse the filing fee to the petitioner; and

(8) Apply sanctions in accordance with Rule .0114 of this Section.

History

Authority G.S. 7A-751(a); 8C-1, Rule 614; 150B-23.2; 150B-33; 150B-34
Eff. August 1, 1986
Amended Eff. April 1, 2001; February 1, 1994; November 1, 1987
Emergency Amendment Eff. October 1, 2009
Temporary Amendment Eff. December 1, 2009
Amended Eff. October 1, 2010
Temporary Amendment Eff. January 1, 2012
Amended Eff. November 1, 2012
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

(a) Informal disposition may be made of a contested case or an issue in a contested case by stipulation, agreement, or consent order at any time during the proceedings. Parties may enter into such agreements on their own or may ask for a settlement conference with an administrative law judge to promote consensual disposition of the case.

(b) If an agency enters into a settlement agreement after the commencement of a contested case, the agency shall file a copy of the settlement agreement with OAH. The settlement agreement shall be included in the official record of the contested case consistent with G.S. 132-1.3.

History

Authority G.S. 7A-750; 7A-751; 150B-31(b); 150B-37
Eff. August 1, 1986
Amended Eff. November 1, 1987
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. September 1, 2023.

26 NCAC 03 .0107 Settlement Conference {#sec-26-ncac-03-.0107 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0107}

(a) A settlement conference is for the primary purpose of assisting the parties in resolving disputes and for the secondary purpose of narrowing the issues and preparing for hearing.

(b) A settlement conference shall be held at the request of any party, the administrative law judge, or the Chief Administrative Law Judge. Upon receipt of the request, the Chief Administrative Law Judge shall assign the case to another administrative law judge for the purpose of conducting a settlement conference. Unless both parties and the administrative law judge agree, a unilateral request for a settlement conference shall not constitute good cause for a continuance. The conference shall be conducted at a time and place agreeable to all parties and the administrative law judge. It shall be conducted by telephone if any party would be required to travel more than 50 miles to attend, unless that party agrees to travel to the location set for the conference. If a telephone conference is scheduled, the parties must be available by telephone at the time of the conference.

(c) All parties shall attend or be represented at a settlement conference under the same requirements as provided for in a mediation settlement conference under Rule .0204(a) of this Chapter. Parties or their representatives shall be prepared to participate in settlement discussions.

(d) The parties shall discuss the possibility of settlement before a settlement conference if they believe that a reasonable basis for settlement exists.

(e) At the settlement conference, the parties shall be prepared to provide information and to discuss all matters required in Rule .0104 of this Section.

(f) If, following a settlement conference, a settlement has not been reached but the parties have reached an agreement on any facts or other issues, the administrative law judge presiding over the settlement conference shall issue an order confirming and approving, if necessary, those matters agreed upon. The order is binding on the administrative law judge who is assigned to hear the case.

History

Authority G.S. 7A-751(a); 150B-22; 150B-31(b)
Eff. August 1, 1986
Amended Eff. April 1, 2001; February 1, 1994; November 1, 1987; September 1, 1986
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0108 Prehearing Conference {#sec-26-ncac-03-.0108 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0108}

(a) The purpose of the prehearing conference is to simplify the issues to be determined, to obtain stipulations in regard to foundations for testimony or exhibits, to obtain stipulations of agreement on nondisputed facts or the application of particular laws, to consider the proposed witnesses for each party, to identify and exchange documentary evidence intended to be introduced at the hearing, to determine deadlines for the completion of any discovery, to establish hearing dates and locations if not previously set, to consider such other matters that may be necessary or advisable and, if possible, to reach a settlement without the necessity for further hearing. Any final settlement shall be set forth in a settlement agreement or consent order and made a part of the record.

(b) Upon the request of any party or upon the administrative law judge's own motion, the administrative law judge may hold a prehearing conference prior to a contested case hearing. The administrative law judge may require the parties to file prehearing statements in accordance with Rule .0104 of this Section. A prehearing conference shall be an informal proceeding conducted expeditiously by the administrative law judge. Agreements on the simplification of issues, amendments, stipulations, or other matters may be entered on the record or may be made the subject of an order by the administrative law judge. Venue for purposes of a prehearing conference shall be determined in accordance with G.S. 150B-24.

History

Authority G.S. 150B-33(b)(4),(5)
Eff. August 1, 1986
Amended Eff. February 1, 1994; April 1, 1990; November 1, 1987
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0109 Notice of Hearing {#sec-26-ncac-03-.0109 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0109}

History

Status: expired
Authority G.S. 150B-23; 150B-32(b)
Eff. August 1, 1986
Amended Eff. October 1, 1991; November 1, 1987
Expired Eff. August 1, 2016 pursuant to G.S. 150B-21.3A.

26 NCAC 03 .0110 Disqualification of Administrative Law Judge {#sec-26-ncac-03-.0110 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0110}

History

Status: expired
Authority G.S. 150B-23; 150B-32(b)
Eff. August 1, 1986
Amended Eff. October 1, 1991; November 1, 1987
Expired Eff. August 1, 2016 pursuant to G.S. 150B-21.3A.

26 NCAC 03 .0111 Consolidation of Cases {#sec-26-ncac-03-.0111 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0111}

(a) The Chief Administrative Law Judge of the Office of Administrative Hearings may order a joint hearing of any matters at issue in contested cases involving common questions of law or fact or multiple proceedings involving the same or related parties, or may order the cases consolidated or make other orders to reduce costs or delay in the proceedings.

(b) A party requesting consolidation shall serve a petition for consolidation on all parties to the cases to be consolidated and shall file the original with the Office of Administrative Hearings, together with a Certificate of Service showing service on all parties as herein required. Any party objecting to the petition shall serve and file his objections within 10 days after service of the petition for consolidation.

(c) Upon determining whether cases should be consolidated, the Chief Administrative Law Judge shall serve a written order on all parties which contains a description of the cases for consolidation and the reasons for the decision.

(d) Nothing contained in this Rule shall be deemed to prohibit the parties from stipulating and agreeing to a consolidation which shall be granted upon submission of a written stipulation signed by all the parties to the Chief Administrative Law Judge.

(e) Following receipt of a notice of or order for consolidation, any party may petition for severance by serving it on all other parties and filing it with the Office of Administrative Hearings at least seven days prior to the first scheduled hearing date. If the Chief Administrative Law Judge finds that the consolidation will prejudice any party, he shall order the severance or other relief which will prevent the prejudice from occurring.

History

Authority G.S. 150B-23; 150B-31
Eff. August 1, 1986
Amended Eff. January 1, 1987; September 1, 1986
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0112 Discovery {#sec-26-ncac-03-.0112 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0112}

(a) Any means of discovery available pursuant to the North Carolina Rules of Civil Procedure, G.S. 1A-1, is allowed. If the party from whom discovery is sought objects to the discovery, the party seeking the discovery may file a motion with the administrative law judge to obtain an order compelling discovery. In the disposition of the motion, the party seeking discovery shall have the burden of showing that the discovery is needed for the proper presentation of the party's case, is not for purposes of delay, and that the issues in controversy are significant enough to warrant the discovery.

(b) When a party serves another party with a Request for Discovery, that request need not be filed with the Office of Administrative Hearings but shall be served upon all parties.

(c) The parties in any contested case shall voluntarily exchange information upon filing the contested case, seek access as provided by law to public documents, and exhaust other informal means of obtaining discoverable material within the timeframe set in the scheduling order.

All discovery shall be completed no later than the first day of the contested case hearing.

(d) No later than 15 days from receipt of a notice requesting discovery, the receiving party shall:

(1) move for relief from the request;

(2) provide the requested information, material or access; or

(3) offer a schedule for reasonable compliance with the request.

(e) Sanctions for failure of a party to comply with an order of the administrative law judge made pursuant to the discovery rules of this Chapter shall be as provided for by G.S. 1A-1, Rule 37 and Rule .0114 of this Section.

History

Authority G.S. 1A-1, Rule 5; 150B-28; 150B-33(b)(3)(4)
Eff. August 1, 1986
Amended Eff. February 1, 1994; November 1, 1987
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. April 1, 2023.

26 NCAC 03 .0113 Subpoenas {#sec-26-ncac-03-.0113 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0113}

(a) Subpoenas for the attendance and testimony of witnesses or for the production of documents, either at a hearing or for the purposes of discovery, shall be issued in accordance with G.S. 150B-27 and G.S. 1A-1, Rule 45.

(b) A subpoena shall be served in the manner provided by G.S. 150B-27 and G.S. 1A-1, Rule 45. The cost of service, fees, and expenses of any witnesses subpoenaed shall be paid by the party at whose request the witness appears. A party seeking an order imposing sanctions for failure to comply with any subpoena issued under this Rule must prove proper service of the subpoena.

History

Authority G.S. 150B-27; 150B-33
Eff. August 1, 1986
Amended Eff. October 1, 1991; November 1, 1987
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0114 Sanctions {#sec-26-ncac-03-.0114 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0114}

(a) If a party fails to appear at a hearing or fails to comply with an interlocutory order of an administrative law judge, the administrative law judge may:

(1) Find that the allegations of or the issues set out in the notice of hearing or other pleading may be taken as true or deemed proved without further evidence;

(2) Dismiss or grant the motion or petition;

(3) Suppress a claim or defense; or

(4) Exclude evidence.

(b) In the event that any party or attorney at law or other representative of a party engages in behavior that obstructs the orderly conduct of proceedings or would constitute contempt if done in the General Court of Justice, the administrative law judge presiding may enter a show cause order returnable in Superior Court for contempt proceedings in accordance with G.S. 150B-33(b)(8).

History

Authority G.S. 150B-25(a); 150B-33(b)(8),(10)
Eff. August 1, 1986
Amended Eff. January 1, 1989; November 1, 1987; March 1, 1987
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0115 Motions {#sec-26-ncac-03-.0115 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0115}

(a) Any application to the administrative law judge for an order shall be by motion, which shall be in writing unless made during a hearing, and must be filed and served upon all parties not less than ten days before the hearing, if any, is to be held either on the motion or the merits of the case. The nonmoving party shall have ten days from the date of service of the motion to file a response. A response must be in writing. Motions practice in contested cases before the Office of Administrative Hearings shall be governed by Rule 6 of the General Rules of Practice for the Superior and District Courts.

(b) If any party desires a hearing on the motion, he shall make a request for a hearing at the time of the filing of his motion or response. A response shall set forth the nonmoving party's objections. All motions in writing shall be decided without oral argument unless an oral argument is directed by the administrative law judge. When oral argument is directed by the administrative law judge, a motion shall be considered submitted for disposition at the close of the argument. A hearing on a motion will be directed by the administrative law judge only if it is determined that a hearing is necessary to the development of a full and complete record on which a proper decision can be made. All orders on such motions, other than those made during the course of a hearing, shall be in writing and shall be served upon all parties of record not less than five days before a hearing, if any, is held.

History

Authority G.S. 150B-33(b)
Eff. August 1, 1986
Amended Eff. November 1, 1987
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0116 Time {#sec-26-ncac-03-.0116 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0116}

Unless otherwise provided in the rules of the Office of Administrative Hearings or in a specific statute, time computations in contested cases before the Office of Administrative Hearings shall be governed by G.S. 1A-1, Rule 6.

History

Authority G.S. 150B-33(b)(4)
Eff. August 1, 1986
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0117 Intervention {#sec-26-ncac-03-.0117 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0117}

(a) Any person not named in the notice of hearing who desires to intervene in a contested case as a party shall file a timely motion to intervene and shall serve the motion upon all existing parties. Timeliness will be determined by the administrative law judge in each case based on circumstances at the time of filing. The motion shall show how the movant's rights, duties, or privileges may be determined or affected by the contested case; shall show how the movant may be directly affected by the outcome or that movant's participation is authorized by statute, rule, or court decision; shall set forth the grounds and purposes for which intervention is sought; and shall indicate movant's statutory right to intervene if one should exist.

(b) Any party may object to the motion for intervention by filing a written notice of objection with the administrative law judge within five days of service of the motion if there is sufficient time before the hearing. The notice of objection shall state the party's reasons for objection and shall be served upon all parties. If there is insufficient time before the hearing for a written objection, the objection may be made at the hearing.

(c) When determined to be necessary to develop a full record on the question of intervention, the administrative law judge may conduct a hearing on the motion to determine specific standards that will apply to each intervenor and to define the extent of allowed intervention.

(d) The administrative law judge shall allow intervention upon a proper showing under this Rule, unless the administrative law judge finds that the movant's interest is adequately represented by one or more parties participating in the case or unless intervention is mandated by statute, rule, or court decision. An order allowing intervention shall specify the extent of participation permitted the intervenor and shall state the administrative law judge's reasons. An intervenor may be allowed to:

(1) File a written brief without acquiring the status of a party;

(2) Intervene as a party with all the rights of a party; or

(3) Intervene as a party with all the rights of a party but limited to specific issues and to the means necessary to present and develop those issues.

History

Authority G.S. 150B-23(d)
Eff. August 1, 1986
Amended Eff. November 1, 1987
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0118 Continuances {#sec-26-ncac-03-.0118 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0118}

(a) Requests for a continuance of a hearing shall be granted upon a showing of good cause or extraordinary cause. Unless time does not permit, a request for a continuance of a hearing shall be made in writing to the administrative law judge and shall be served upon all parties of record. In determining whether good cause or extraordinary cause exists, due regard shall be given to the ability of the party requesting a continuance to proceed effectively without a continuance. A request for a continuance filed within five days of a hearing shall be denied unless the reason for the request could not have been ascertained earlier.

(1) "Good cause" includes death or incapacitating illness of a party, representative, or attorney of a party; a court order requiring a continuance; lack of proper notice of the hearing; a substitution of the representative or attorney of a party if the substitution is shown to be required; a change in the parties or pleadings requiring postponement; and agreement for a continuance by all parties if either more time is clearly necessary to complete mandatory preparation for the case, such as authorized discovery, and the parties and the administrative law judge have agreed to a new hearing date or the parties have agreed to a settlement of the case that has been or is likely to be approved by the final decision maker.

(2) "Good cause" shall not include: intentional delay; unavailability of counsel or other representative because of engagement in another judicial or administrative proceeding unless all other members of the attorney's or representative's firm familiar with the case are similarly engaged, or if the notice of the other proceeding was received subsequent to the notice of the hearing for which the continuance is sought; unavailability of a witness if the witness testimony can be taken by deposition, and failure of the attorney or representative to properly utilize the statutory notice period to prepare for the hearing.

(b) For the purpose of determining whether "extraordinary cause" exists to allow a final decision to be issued beyond 180 days after the commencement of a personnel case under G.S. 126-34.02(a) the phrase “extraordinary cause” is defined as follows: out of the ordinary; exceeding the usual, average, or normal measure or degree; not usual, regular, or of a customary kind. "Extraordinary cause" includes:

(1) a stay issued by a federal or state trial or appellate judge;

(2) a stay issued by an administrative law judge under G.S. 150B-33(a); or

(3) a pending OAH civil rights investigation which addresses the same issues of discrimination as the subject matter of the contested case when the OAH investigation has not been pending in the Civil Rights Division longer than 90 days.

"Extraordinary cause" shall not be granted for any cause listed in Subparagraph (a)(2) of this Rule.

(c) A continuance for good cause shall not be granted when to do so would prevent the case from being concluded within any statutory or regulatory deadline.

(d) During a hearing, if it appears in the interest of justice that further testimony should be received and sufficient time does not remain to conclude the testimony, the administrative law judge shall either order the additional testimony taken by deposition or continue the hearing to a future date for which oral notice on the record is sufficient.

History

Authority G.S. 126-34.02; 150B-33(b)(4)
Eff. August 1, 1986
Amended Eff. November 1, 1987
Temporary Amendment Eff. March 1, 2014
Amended Eff. February 1, 2015
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0119 Secure Leave Periods for Attorneys {#sec-26-ncac-03-.0119 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0119}

(a) Any attorney may designate one or more secure leave periods each year as provided in this Rule.

(b) Length, Number. A secure leave period shall consist of one or more complete calendar weeks. During any calendar year, an attorney's secure leave periods pursuant to this Rule shall not exceed, in the aggregate, three calendar weeks.

(c) Designation, Effect. To designate a secure leave period an attorney shall file a written designation containing the information required by Paragraph (d) with the Chief Hearings Clerk. The designation shall be filed:

(1) no later than 90 days before the beginning of the secure leave period; and

(2) before any argument or other proceeding before an administrative law judge has been scheduled for a time during the designated secure leave period.

Upon such filing, the secure leave period so designated shall be deemed allowed without further action by the presiding administrative law judge, and the attorney shall not be required to appear at any argument or other administrative proceeding during that secure leave period.

(d) Content of Designation. The designation shall contain the following information:

(1) the attorney's name, address, telephone number and state bar number;

(2) the date of the Monday on which the secure leave period is to begin and of the Friday on which it is to end;

(3) the dates of all other secure leave periods during the current calendar year that have previously been designated by the attorney pursuant to this Rule;

(4) a statement that the secure leave period is not being designated for the purpose of delaying, hindering or interfering with the timely disposition of any matter in any pending action or proceeding; and

(5) a statement that no argument or other proceeding has been scheduled during the designated secure leave period in any matter pending before an administrative law judge in which the attorney has entered an appearance.

History

Authority G.S. 7A-750; 150B-40(c)
Eff. August 1, 2000
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0120 Rights and Responsibilities of Parties {#sec-26-ncac-03-.0120 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0120}

(a) A party shall have all evidence to be presented, both oral and written, available on the date for hearing. In cases when the hearing time is expected to exceed one day, the parties shall be prepared to present their evidence at the date and time ordered by the administrative law judge or agreed upon at a prehearing conference.

(b) The administrative law judge shall send copies of all orders or decisions to all parties simultaneously. Any party sending a letter, exhibit, brief, memorandum, or other document to the administrative law judge shall simultaneously send a copy to all other parties.

(c) All parties have the continuing responsibility to notify the Office of Administrative Hearings of their current address and telephone number.

(d) A party may represent himself or herself or be represented by an attorney. If a party has notified other parties of that party's representation by an attorney, all communications shall be directed to that attorney.

(e) With prior notice to the administrative law judge, any person may offer testimony or other evidence relevant to the case. Any nonparty offering testimony or other evidence may be questioned by parties to the case and by the administrative law judge.

(f) Prior to issuing a decision, the administrative law judge may order any party to submit proposed findings of fact and written arguments.

(g) The Administrative Law Judge may allow remote participation via audio or video conference by participant(s) subject to available services at the hearing location. Requests for remote participation shall be made at least seven days in advance and are subject to equipment, staff, and scheduling availability.

(h) The administrative law judge shall not proceed to consideration of dispositive motions or a hearing on the merits in a contested case if an unrepresented party has notified the administrative law judge and the opposing party that the unrepresented party is seeking pro bono or reduced fee legal assistance, unless the administrative law judge has determined that acquisition of such legal assistance by the unrepresented party is improbable based on the circumstances, such as the failure of the unrepresented party to procure legal assistance after multiple attempts.

History

Authority G.S. 7A-751(a); 150B-25; 150B-33; 150B-34
Eff. August 1, 1986
Amended Eff. October 1, 1991; April 1, 1990; November 1, 1987
Recodified from Rule .0119 Eff. August 1, 2000
Amended Eff. May 1, 2009; April 1, 2001
Pursuant to G.S. 150B-33(b)(9), Administrative Law Judge Augustus B. Elkins, II declared Rule 26 NCAC 03 .0120(d) void as applied in Abundant Life Child Care Center, Tiffany D. Monroe v. Division of Child Development, June Locklear, Brenda Faircloth (08 DHR 2954)
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. April 1, 2017.

26 NCAC 03 .0121 Witnesses {#sec-26-ncac-03-.0121 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0121}

Any party may be a witness and may present witnesses on the party's behalf at the hearing. All oral testimony at the hearing shall be under oath or affirmation and shall be recorded. At the request of a party or upon the administrative law judge's own motion, the administrative law judge may exclude witnesses from the hearing room so that they cannot hear the testimony of other witnesses.

History

Authority G.S. 150B-25(c)(d); 150B-33(4); 150B-37(b)
Eff. August 1, 1986
Amended Eff. November 1, 1987
Recodified from Rule .0120 Eff. August 1, 2000
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0122 Evidence {#sec-26-ncac-03-.0122 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0122}

The North Carolina Rules of Evidence as found in Chapter 8C of the General Statutes shall govern in all contested case proceedings, except as provided otherwise in these Rules and G.S. 150B-29.

(1) The administrative law judge may admit all evidence that has probative value. Irrelevant, incompetent, and immaterial or unduly repetitious evidence shall be excluded. An administrative law judge may, in his discretion, exclude any evidence if its probative value is substantially outweighed by the risk that its admission will:

(a) necessitate undue consumption of time; or

(b) create substantial danger of undue prejudice or confusion.

(2) Contemporaneous objections by a party or a party's attorney are not required in the course of a hearing to preserve the right to object to the consideration of evidence by the administrative law judge in reaching a decision or by the court upon judicial review.

(3) All evidence to be considered in the case, including all records and documents or a true and accurate photocopy, shall be offered and made a part of the record in the case. No other factual information or evidence shall be considered in the determination of the case. Documentary evidence incorporated by reference may be admitted only if the materials so incorporated are available for examination by the parties.

(4) Documentary evidence in the form of copies or excerpts may be received in the discretion of the administrative law judge or upon agreement of the parties. Copies of a document shall be received to the same extent as the original document unless a genuine question is raised about the accuracy or authenticity of the copy or, under the circumstances, it would be unfair to admit the copy instead of the original.

(5) The administrative law judge may take notice of judicially cognizable facts by entering a statement of the noticed fact and its source into the record. Upon timely request, any party shall be given the opportunity to contest the facts so noticed through submission of evidence and argument.

(6) A party may call an adverse party or an officer, director, managing agent, or employee of the state or any political subdivision thereof or of a public or private corporation or of a partnership or association or body politic which is an adverse party, and interrogate that party by leading questions and contradict and impeach that party on material matters in all respects as if that party had been called by the adverse party. The adverse party may be examined by that party's counsel upon the subject matter of that party's examination in chief under the rules applicable to direct examination, and may be cross-examined, contradicted, and impeached by any other party adversely affected by the testimony.

History

Authority G.S. 150B-33(b)(4); 150B-29
Eff. August 1, 1986
Amended Eff. November 1, 1987; March 1, 1987
Recodified from Rule .0121 Eff. August 1, 2000
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0123 Official Record {#sec-26-ncac-03-.0123 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0123}

(a) The official record of a contested case shall be available for public inspection upon request. An administrative law judge may, consistent with law, order all or part of an official record sealed.

(b) The official record shall be prepared in accordance with G.S. 150B-37(a).

(c) Contested case hearings shall be recorded either by a hearing assistant provided by the Office of Administrative Hearings or a court reporter listed by the North Carolina Administrative Office of the Courts as authorized and approved to prepare transcripts of proceedings held in the courts of all counties procured directly by one or more parties to the contested case.

(d) If a contested case hearing is cancelled, the party responsible for the cancellation shall provide a 24-hour cancellation notice to the other parties in all cases in which a hearing assistant is provided by the Office of Administrative Hearings.

(e) Transcripts of proceedings held in the Office of Administrative Hearings shall be made only upon request of a party. When proceedings are recorded by a court reporter, transcript requests shall be made directly to the court reporter. When proceedings are recorded by a hearing assistant, transcript requests shall be made directly to a transcriptionist listed by the North Carolina Administrative Office of the Courts as authorized and approved to prepare transcripts of proceedings held in the courts of all counties.

(f) A party who orders a transcript shall use an Office of Administrative Hearings transcript form to order the transcript, which shall include the following information:

(1) case name and number;

(2) requestor information; and

(3) transcriptionist information.

That form is available on the Office of Administrative Hearings website at https://www.oah.nc.gov and may be obtained from the Chief Hearings Clerk upon request. The party ordering the transcript shall file the transcript form with the Office of Administrative Hearings and shall serve the transcript form on all other parties and the transcriptionist.

(g) The transcriptionist shall deliver the transcript to the party or parties that requested the transcript and file the transcript with the Office of Administrative Hearings by email to oah.clerks@oah.nc.gov in PDF format no later than 30 days after having been served with the transcript contract.

(g) Copies of recordings made by a hearing assistant are available upon written request at a cost set out in 26 NCAC 01 .0103.

History

Authority G.S. 7A-751; 150B-37
Eff. August 1, 1986
Amended Eff. August 1, 1998; April 1, 1990; February 1, 1989; November 1, 1987
September 1, 1986
Recodified from Rule .0122 Eff. August 1, 2000
Amended Eff. April 1, 2009
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. April 1, 2023; August 1, 2021.

26 NCAC 03 .0124 Venue {#sec-26-ncac-03-.0124 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0124}

History

Status: expired
Authority G.S. 150B-24
Eff. August 1, 1986
Recodified from Rule .0123 Eff. August 1, 2000
Expired Eff. August 1, 2016 pursuant to G.S. 150B-21.3A.

26 NCAC 03 .0125 Conduct of Hearing {#sec-26-ncac-03-.0125 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0125}

Hearings shall be conducted, as nearly as practical, in accordance with the practice in the Trial Division of the General Court of Justice.

History

Authority G.S. 150B-25; 150B-33
Eff. August 1, 1986
Recodified from Rule .0124 Eff. August 1, 2000
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0126 Hearing Officer's Proposal for Decision: Exceptions {#sec-26-ncac-03-.0126 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0126}

History

Status: repealed
Authority G.S. 150B-34
Eff. August 1, 1986
Temporary Repeal Eff. August 26, 1987 For a Period of 120 Days to Expire on December 24, 1987
Temporary Repeal Eff. December 24, 1987 For a Period of 8 Days to Expire on January 1, 1988
Repealed Eff. January 1, 1988
Recodified from Rule .0125 Eff. August 1, 2000.

26 NCAC 03 .0127 Administrative Law Judge's Decision {#sec-26-ncac-03-.0127 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0127}

(a) An administrative law judge shall issue a final decision or order in a contested case within 45 days after the later of the date the administrative law judge receives any proposed findings of fact and written arguments submitted by the parties and the date the contested case hearing ends.

(b) An administrative law judge's final decision shall be based exclusively on:

(1) competent evidence and arguments presented during the hearing and made a part of the official record;

(2) stipulations of fact;

(3) matters officially noticed;

(4) any proposed findings of fact and written arguments submitted by the parties under Rule .0120(f) of this Section; and

(5) other items in the official record that are not excluded by G.S. 150B-29(b).

(c) An administrative law judge's final decision shall fully dispose of all issues required to resolve the case and shall contain:

(1) a caption;

(2) the appearances of the parties;

(3) a statement of the issues;

(4) references to specific statutes or rules at issue;

(5) findings of fact;

(6) conclusions of law based on the findings of fact and applicable constitutional principles, statutes, rules, or federal regulations;

(7) in the discretion of the administrative law judge, a memorandum giving reasons for his findings of fact and conclusions of law; and

(8) a statement that each party has the right to file an appeal of the administrative law judge's final decision by filing a Petition for Judicial Review in the Superior Court of Wake County or in the Superior Court of the county in which the party resides, or, where applicable pursuant to G.S. 7A-29(a), a Notice of Appeal to the Court of Appeals.

(d) The chief administrative law judge may extend the 45-day time limit for issuing a decision. An administrative law judge who needs an extension must submit a request for extension to the chief administrative law judge before the 45-day period has expired.

History

Authority G.S. 7A-751(a); 150B-34; 150B-47
Eff. August 1, 1986
Temporary Amendment Eff. August 26, 1987 For a Period of 120 Days to Expire on December 24, 1987
Temporary Amendment Eff. December 24, 1987 For a Period of 8 Days to Expire on January 1, 1988
Amended Eff. February 1, 1994; October 1, 1991; April 1, 1990; January 1, 1989
Recodified from Rule .0126 Eff. August 1, 2000
Amended Eff. April 1, 2001
Temporary Amendment Eff. January 1, 2012
Amended Eff. November 1, 2012
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. January 1, 2025.

26 NCAC 03 .0128 Ex Parte Communications {#sec-26-ncac-03-.0128 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0128}

History

Status: expired
Authority G.S. 7A-750; 7A-751(a); 150B-14; 150B-34; 150B-35; 150B-62(b); 150B-63(f)
Eff. August 1, 1986
Amended Eff. January 1, 1991; November 1, 1987; January 1, 1987
Recodified from Rule .0127, .0128, .0129 Eff. August 1, 2000
Amended Eff. April 1, 2001
Expired Eff. August 1, 2016 pursuant to G.S. 150B-21.3A.

26 NCAC 03 .0129 Reconsideration or Rehearing {#sec-26-ncac-03-.0129 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0129}

History

Status: expired
Authority G.S. 7A-750; 7A-751(a); 150B-14; 150B-34; 150B-35; 150B-62(b); 150B-63(f)
Eff. August 1, 1986
Amended Eff. January 1, 1991; November 1, 1987; January 1, 1987
Recodified from Rule .0127, .0128, .0129 Eff. August 1, 2000
Amended Eff. April 1, 2001
Expired Eff. August 1, 2016 pursuant to G.S. 150B-21.3A.

26 NCAC 03 .0130 Availability of Copies {#sec-26-ncac-03-.0130 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0130}

History

Status: expired
Authority G.S. 7A-750; 7A-751(a); 150B-14; 150B-34; 150B-35; 150B-62(b); 150B-63(f)
Eff. August 1, 1986
Amended Eff. January 1, 1991; November 1, 1987; January 1, 1987
Recodified from Rule .0127, .0128, .0129 Eff. August 1, 2000
Amended Eff. April 1, 2001
Expired Eff. August 1, 2016 pursuant to G.S. 150B-21.3A.

26 NCAC 03 .0131 Final Decisions in Contested Cases {#sec-26-ncac-03-.0131 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0131}

A copy of a final decision issued by an administrative law judge shall be served on each party in accordance with Rule .0102(a)(3) and (b) through (f) of this Section.

History

Authority G.S. 150B-45
ARRC Objection Lodged November 17, 1988
Eff. April 1, 1989
ARRC Objection Removed Eff. April 1, 1990
Amended Eff. October 1, 1991; April 1, 1990
Recodified from Rule .0130 Eff. August 1, 2000
Temporary Amendment Eff. January 1, 2012
Amended Eff. November 1, 2012
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0201 Order for Mediated Settlement Conference {#sec-26-ncac-03-.0201 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0201}

(a) Order by Chief Administrative Law Judge. The Chief Administrative Law Judge may, by written order, require parties and their representatives to attend a pre-hearing mediated settlement conference in any contested case.

(b) Timing of the Order. The Chief Administrative Law Judge may issue the order within 10 days of the filing of the contested case petition. Paragraph (c) of this Rule and Paragraph (b) of Rule .0203 of this Section shall govern the content of the order and the date of completion of the conference.

(1) require the mediated settlement conference be held in the contested case;

(2) establish a deadline for the completion of the conference;

(3) state that the parties have the right to select their own mediator as provided in Paragraph (a) of Rule .0202 of this Section;

(4) state the rate of compensation of the mediator appointed by the presiding Administrative Law Judge pursuant to Paragraph (c) of Rule .0202 of this Section in the event that the parties do not exercise their right to select a mediator; and

(5) state that the parties shall be required to pay the mediator's fee at the conclusion of the settlement conference unless otherwise apportioned by the presiding Administrative Law Judge.

(d) Motion to Dispense with Mediated Settlement Conference. A party may move the presiding Administrative Law Judge, within 10 days after the date of the Chief Administrative Law Judge's order, to dispense with the conference. Such motion shall state the reasons the relief is sought. For good cause shown, the presiding Administrative Law Judge may grant the motion.

(e) Motion for Mediated Settlement Conference. In contested cases not ordered to mediated settlement conference, any party may move the presiding Administrative Law Judge to order such a conference. Such motion shall state the reasons why the order should be allowed and shall be served on non-moving parties. Objections may be filed in writing with the presiding Administrative Law Judge within 10 days after the date of the service of the motion. Thereafter, the presiding Administrative Law Judge shall rule upon the motion without a hearing and notify the parties or their attorneys of the ruling. In the event that mediation is ordered, the parties may select a mediator by agreement as provided in Paragraph (a) of Rule .0202 of this Section within 21 days of the date of the presiding Administrative Law Judge's order. If the parties cannot agree or have failed to select a mediator within the 21 days, the presiding Administrative Law Judge shall appoint a certified mediator pursuant to Paragraph (c) of Rule .0202 of this Section.

History

Authority G.S. 150B-23.1
Eff. February 1, 1994
Amended Eff. October 1, 2009
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0202 Selection of Mediator {#sec-26-ncac-03-.0202 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0202}

(a) Selection of Certified Mediator by Agreement of Parties. The parties may select a certified mediator by agreement within 21 days of the Chief Administrative Law Judge's order. The petitioner or petitioner's attorney shall file with the Office of Administrative Hearings a Notice of Selection of Mediator by Agreement within 21 days of the Chief Administrative Law Judge's order, however, any party may file the notice. Such notice shall include: the name, address and telephone number of the mediator selected; the rate of compensation of the mediator; the agreement of the parties as to the selection of the mediator and rate of compensation; and that the mediator is certified pursuant to these Rules.

(b) The presiding Administrative Law Judge shall appoint mediators certified by the Dispute Resolution Commission pursuant to Paragraph (c) of this Rule.

(c) Appointment of Mediator by the presiding Administrative Law Judge. If the parties cannot agree upon the selection of a mediator, the petitioner or petitioner's attorney shall so notify the presiding Administrative Law Judge and request by motion, on behalf of all parties, that the presiding Administrative Law Judge appoint a mediator. The motion must be filed within 21 days of the date of the Chief Administrative Law Judge's order and shall state that the parties have had a full and frank discussion concerning the selection of a mediator and have been unable to agree. Upon receipt of a motion to appoint a mediator, or failure of the parties to file a Notice of Selection with the presiding Administrative Law Judge within 21 days of the Chief Administrative Law Judge's order, the presiding Administrative Law Judge shall appoint a mediator, certified pursuant to these Rules, who has expressed a willingness to mediate contested cases.

(d) Mediator Information Directory. To assist the parties in the selection of a mediator by agreement, the Office of Administrative Hearings shall prepare and keep current a list of certified mediators who wish to mediate contested cases. The list shall be kept in the Office of Administrative Hearings and made available to the parties upon request.

(e) Disqualification of Mediator. Any party may move for an order disqualifying the mediator. For good cause, such order shall be entered. If the mediator is disqualified, a replacement mediator shall be selected by the parties or appointed by the presiding Administrative Law Judge pursuant to this Rule. Nothing in this Paragraph shall preclude mediators from disqualifying themselves.

History

Authority G.S. 7A-751(a); 150B-23.1
Eff. February 1, 1994
Amended Eff. October 1, 2009; April 1, 2001
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0203 Mediation Settlement Conference {#sec-26-ncac-03-.0203 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0203}

(a) Where Conference is to be Held. Unless all parties and the mediator otherwise agree, the mediated settlement conference shall be held in the courthouse or other public building in the county where the contested case is pending. The mediator shall reserve a place and make arrangements for the conference and give timely notice to all attorneys and unrepresented parties of the time and location of the conference.

(b) When Conference is to be Held. The Chief Administrative Law Judge's order issued pursuant to Paragraph (b) of Rule .0201 of this Section shall clearly state a date of completion for the conference. Such date shall not be less than 90 days or more than 120 days after the issuance of the Chief Administrative Law Judge's order. The Chief Administrative Law Judge may shorten these time limits in order to meet statutorily imposed deadlines for the hearing of certain types of contested cases.

(c) Request to Extend Date of Completion. A party, or the mediator, may request the presiding Administrative Law Judge to extend the deadline for completion of the conference. Such request shall state the reasons the continuance is sought and shall be served by the moving party upon the other parties and the mediator. The presiding Administrative Law Judge may grant the request and enter an order setting a new date for the completion of the conference, which date may be set at any time prior to hearing. Such order shall be served upon the parties and the mediator.

(d) Recesses. The mediator may recess the conference at any time and may set times for reconvening. If the time for reconvening is set before the conference is recessed, no further notification is required for persons present at the recessed conference.

(e) The Mediated Settlement Conference Is Not To Delay Other Proceedings. The mediated settlement conference shall not be cause for the delay of other proceedings in the contested case, including the completion of discovery, the filing or hearing of motions, or the hearing of the contested case, except by order of the presiding Administrative Law Judge.

History

Authority G.S. 7A-751(a); 150B-23.1
Eff. February 1, 1994
Amended Eff. April 1, 2001
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0204 Duties of Parties, Representatives, and Attorneys {#sec-26-ncac-03-.0204 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0204}

(a) Attendance. The following persons shall physically attend a mediated settlement conference:

(1) All individual parties, or an officer or employee or agent of a party who is not a natural person who is not the party's outside counsel and who has been authorized to decide on behalf of the party whether and on what terms to settle the contested case; or in the case of a governmental entity, an employee or agent who is not the party's outside counsel and who has authority to decide on behalf of the party whether and what terms to settle the contested case; provided if under law proposed settlement terms can be approved only by a Board, the representative shall have authority to negotiate on behalf of the party and to make a recommendation to that Board;

(2) At least one counsel of record for each party or other participant whose counsel has appeared in the contested case; and

(3) For any insured party against whom a claim is made, a representative of the insurance carrier who is not the carrier's outside counsel and who has authority to make a decision on behalf of the carrier or who has been authorized to negotiate on behalf of the carrier and can promptly communicate during the conference with persons who have the decision-making authority.

(b) Any party or person required to attend a mediated settlement conference shall physically attend until an agreement is reduced to writing and signed as provided in Paragraph (c) of this Rule or an impasse has been declared. The party or person may have the attendance requirement excused or modified including the allowance of that party's or person's participation without physical attendance by order of the presiding Administrative Law Judge, upon motion of a party and notice to all parties and persons required to attend and the mediator, or by agreement of all parties and persons required to attend and the mediator.

(c) Finalizing Agreement. If an agreement is reached in the conference parties shall reduce its terms to writing and sign it along with their counsel. By stipulation of one or more of the parties and at their expense, the agreement may be electronically recorded. A consent judgment, voluntary dismissals, or withdrawal of petition shall be filed with the Office of Administrative Hearings by the persons the parties designate.

(d) Payment of Mediator's Fee. The parties shall pay the mediator's fee as provided by Rule .0207 of this Section.

History

Authority G.S. 7A-751(a); 150B-23.1
Eff. February 1, 1994
Amended Eff. October 1, 2009; April 1, 2001
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0205 Sanctions for Failure to Attend {#sec-26-ncac-03-.0205 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0205}

If a party or other person required to attend a mediated settlement conference fails to attend without good cause, the presiding Administrative Law Judge may impose upon the party or person any appropriate monetary sanction including, but not limited to, the payment of fines, attorneys fees, mediator fees, expenses and loss of earnings incurred by persons attending the conference as authorized by G.S. 150B-33(b)(8) or (10). A party seeking sanctions against another party or person shall do so in a written motion stating the grounds for the motion and the relief sought. The motion shall be served upon all parties and on any person against whom sanctions are being sought. If the presiding Administrative Law Judge imposes sanctions, it shall do so, after notice and a hearing, in a written order, making findings of fact supported by substantial evidence and conclusions of law.

History

Authority G.S. 7A-751(a); 150B-23.1
Eff. February 1, 1994
Amended Eff. October 1, 2009; April 1, 2001
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0206 Authority and Duties of Mediators {#sec-26-ncac-03-.0206 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0206}

(a) Authority of Mediator.

(1) Control of Conference. The mediator shall at all times be in control of the conference and the procedures to be followed.

(2) Private Consultation. The mediator may communicate privately with any participant or counsel prior to and during the conference. The fact that private communications have occurred with a participant shall be disclosed to all other participants at the beginning of the conference.

(3) Scheduling the Conference. The mediator shall make a good faith effort to schedule the conference at a time that is convenient with the participants, attorneys and mediator. In the absence of agreement, the mediator shall select the date for the conference.

(b) Duties of Mediator.

(1) The mediator shall define and describe the following at the beginning of the conference:

(A) The process of mediation;

(B) The differences between mediation and other forms of conflict resolution;

(D) The fact that the mediated settlement conference is not a hearing, the mediator is not a judge, and the parties retain their right to a hearing if they do not reach settlement;

(E) The circumstances under which the mediator may meet and communicate privately with any of the parties or with any other person;

(F) Whether and under what conditions communications with the mediator will be held in confidence during the conference;

(G) The inadmissibility of conduct and statements as provided by Rule 408 of the North Carolina Rules of Evidence;

(H) The duties and responsibilities of the mediator and the participants; and

(I) The fact that any agreement reached will be reached by mutual consent.

(2) Disclosure. The mediator shall be impartial and advise all participants of any circumstances bearing on possible bias, prejudice or partiality.

(3) Declaring Impasse. It is the duty of the mediator to determine that an impasse exists, and that the conference should end.

(4) Reporting Results of Conference. The mediator shall file a written report with the parties and presiding Administrative Law Judge within 10 days as to whether or not agreement was reached by the parties. If an agreement was reached, the report shall state whether the action will be concluded by consent judgment, voluntary dismissal, or withdrawal of petition and shall identify the persons designated to file such pleadings. The mediator's report shall inform the presiding Administrative Law Judge of the absence of any party, attorney, or insurance representative known to the mediator to have been absent from the mediated settlement conference without permission.

(5) Scheduling and Holding the Conference. The mediator shall schedule the conference and conduct it prior to the conference completion deadline set out in the Chief Administrative Law Judge's order. Deadlines for completion of the conference shall be observed by the mediator unless said time limit is changed by a written order of the presiding Administrative Law Judge.

History

Authority G.S. 7A-751(a); 150B-23.1
Eff. February 1, 1994
Amended Eff. October 1, 2009; April 1, 2001
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0207 Compensation of the Mediator {#sec-26-ncac-03-.0207 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0207}

(a) By Agreement. When the mediator is stipulated to by the parties, compensation shall be as agreed upon between the parties and the mediator.

(b) By Order. When the mediator is appointed by the Office of Administrative Hearings, the mediator shall be compensated by the parties at the uniform hourly rate and a one-time, per contested case, administrative fee, due upon appointment, as set by the Chief Administrative Law Judge except as provided by Paragraph (d) of this Rule. The Chief Administrative Law Judge shall set the rate at the same rate set by Rule 7 of the Rules of the North Carolina Supreme Court Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions.

(c) Change of Appointed Mediator. Pursuant to Rule .0202 of this Section, the parties have 21 days to select a mediator. Parties who fail to select a mediator within that time frame and then desire a substitution after the presiding Administrative Law Judge has appointed a mediator, shall obtain approval from the presiding Administrative Law Judge for the substitution. If the presiding Administrative Law Judge approves the substitution, the parties shall pay the presiding Administrative Law Judge's original appointee the one time, per case administrative fee provided for in Paragraph (b) of this Rule.

(d) Indigent Cases. No party found to be indigent by the presiding Administrative Law Judge shall be required to pay a mediator fee. Any mediator conducting a settlement conference pursuant to these Rules shall waive the payment of fees from parties found by the presiding Administrative Law Judge to be indigent. Any party may move the presiding Administrative Law Judge for a finding of indigence and to be relieved of the obligation to pay that party's share of the mediator's fee. Such motion shall be heard subsequent to the completion of the conference or, if the parties do not settle their contested case, subsequent to the conclusion of the contested case hearing but prior to the issuance of the Administrative Law Judge's decision. In ruling upon such motions, the presiding Administrative Law Judge shall apply the criteria enumerated in G.S. 1-110(a), but shall take into consideration the outcome of the contested case, and whether a decision was rendered in movant's favor. The presiding Administrative Law Judge shall enter an order granting or denying a party's request.

(e) Postponement and Fees. As used in this Paragraph, the term "postponement" shall mean reschedule or not proceed with a settlement conference once a date for the settlement conference has been scheduled by the mediator. After a settlement conference has been scheduled for a specific date, a party may not unilaterally postpone the conference. A conference session may be postponed by the mediator for good cause beyond the control of the moving participant(s) only after notice by the movant to all parties of the reason for the postponement, and a finding of good cause by the mediator. Without a finding of good cause, a mediator may also postpone a scheduled conference session with the consent of all parties. Postponement fees shall be paid by the party requesting the postponement unless otherwise agreed to between the parties. Postponement fees are in addition to the one time, per case administrative fee provided for in Paragraph (b) of this Rule. The Chief Administrative Law Judge will set the rate at the same rate set by Rule 7 of the Rules of the North Carolina Supreme Court Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions.

(f) Payment of Compensation by Parties. Unless otherwise agreed to by the parties or ordered by the presiding Administrative Law Judge, mediator's fee shall be paid in equal shares by the parties. For purposes of this Rule, multiple parties shall be considered one party when they are represented by the same counsel. Parties obligated to pay a share of the costs shall pay them equally. Payment shall be due upon completion of the conference unless there is a pending motion for determination of indigency. In such case, payment shall be due upon a ruling on the motion.

History

Authority G.S. 7A-751(a); 150B-23.1
Eff. February 1, 1994
Amended Eff. October 1, 2009; April 1, 2001
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0208 Mediator {#sec-26-ncac-03-.0208 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0208}

For purposes of this Section the term "certified mediator" shall mean a person who is currently certified as a mediator by the Administrative Office of the Courts pursuant to Rule 8 of Rules of the North Carolina Supreme Court Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions, 329 N.C. 795, effective December 1, 1993 and as may be subsequently amended.

History

Authority G.S. 7A-751(a); 150B-23.1
Eff. February 1, 1994
Amended Eff. April 1, 2001
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0301 Order Designating Complex Contested Cases {#sec-26-ncac-03-.0301 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0301}

History

Status: repealed
Authority G.S. 150B-31(b)
Eff. April 1, 1997
Repealed Eff. November 1, 2012.

26 NCAC 03 .0302 Factors to Be Considered {#sec-26-ncac-03-.0302 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0302}

History

Status: repealed
Authority G.S. 150B-31(b)
Eff. April 1, 1997
Repealed Eff. November 1, 2012.

26 NCAC 03 .0303 Venue {#sec-26-ncac-03-.0303 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0303}

History

Status: repealed
Authority G.S. 150B-31(b)
Eff. April 1, 1997
Repealed Eff. November 1, 2012.

26 NCAC 03 .0304 Expedited Hearing Procedures for Complex Contested Cases {#sec-26-ncac-03-.0304 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0304}

History

Status: repealed
Authority G.S. 150B-31(b)
Eff. April 1, 1997
Repealed Eff. November 1, 2012.

26 NCAC 03 .0305 Rules and Procedures {#sec-26-ncac-03-.0305 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0305}

History

Status: repealed
Authority G.S. 150B-31(b)
Eff. April 1, 1997
Repealed Eff. November 1, 2012.

26 NCAC 03 .0401 MEDICAID hearing procedures rules {#sec-26-ncac-03-.0401 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0401}

(a) The rules in 26 NCAC 03 .0100 apply to contested Medicaid cases commenced by Medicaid applicants or recipients under S.L. 2008-107, s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13 except:

(1) 26 NCAC 03 .0101(b);

(2) 26 NCAC 03 .0102(a)(3), (b) – (e);

(3) 26 NCAC 03 .0103(a);

(4) 26 NCAC 03 .0104;

(5) 26 NCAC 03 .0106(b);

(6) 26 NCAC 03 .0107;

(7) 26 NCAC 03 .0108;

(8) 26 NCAC 03 .0112;

(9) 26 NCAC 03 .0115;

(10) 26 NCAC 03 .0117;

(11) 26 NCAC 03 .0118;

(12) 26 NCAC 03 .0120(e);

(13) 26 NCAC 03 .0123;

(14) 26 NCAC 03 .0125; and

(15) 26 NCAC 03 .0127(a).

(b) Nothing in this Rule affects discretionary powers granted to an administrative law judge as set out in G.S. 150B-33(b).

History

Authority G.S. 7A-751(a); S.L. 2008-107, s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13
Temporary Adoption Eff. December 2, 2008
Eff. August 1, 2009
Amended Eff. April 1, 2014; November 1, 2012
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. September 1, 2023; October 1, 2022.

26 NCAC 03 .0402 mediation settlement conference rules {#sec-26-ncac-03-.0402 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0402}

The rules in 26 NCAC 03 .0200 do not apply to contested Medicaid cases commenced by Medicaid applicants or recipients under S.L. 2008-107, s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13.

History

Authority G.S. 7A-751(a); S.L. 2008-107, s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13
Temporary Adoption Eff. December 2, 2008
Eff. August 1, 2009
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 03 .0403 expedited hearings procedures for complex contested cases {#sec-26-ncac-03-.0403 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0403}

History

Status: repealed
Authority G.S. 7A-751(a); S.L. 2008-107, s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13
Temporary Adoption Eff. December 2, 2008
Eff. August 1, 2009
Repealed Eff. November 1, 2012.

26 NCAC 03 .0501 Definitions {#sec-26-ncac-03-.0501 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0501}

In addition to the definitions contained in G.S. 150B-23.3, the following definitions apply to the rules in this Section:

(1) "Electronic filing" or "filed electronically" means the electronic transmission of the petition, notice of hearing, pleadings, or any other documents filed in a contested case with the Office of Administrative Hearings by uploading to the case docket using the OAH electronic filing system (e-OAH) accessed through a link on the OAH website at www.oah.nc.gov.

(2) "Electronic Filing Service Provider (EFSP)" means the service provided by the Office of Administrative Hearings for electronic filing and electronic service of documents by way of the Internet accessed through a link on the OAH website at www.oah.nc.gov.

(3) "Electronic signature" or "signed electronically" means a graphic version of the e-OAH user's signature or "s/" followed by the e-OAH user's typewritten name. This shall be the legal equivalent of the e-OAH user's handwritten signature.

(4) "Electronic service" or "served electronically" means the electronic transmission of the petition, notice of hearing, pleadings, or any other documents filed in a contested case with the Office of Administrative Hearings to an attorney, mediator, or party by means of the Electronic Filing Service Provider.

(5) "Filed" means received by the chief hearings clerk of the Office of Administrative Hearings in e-OAH.

History

Authority G.S. 7A-750; 150B-23; 150B-23.3
Eff. March 1, 2016
Amended Eff. January 1, 2025; October 1, 2016.

26 NCAC 03 .0502 General {#sec-26-ncac-03-.0502 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0502}

(a) The Office of Administrative Hearings shall permit documents filed and served in a contested case to be filed and served electronically by means of the Electronic Filing Service Provider. All attorneys, mediators, and other parties using e-OAH shall register to use the system through a link on the OAH website at www.oah.nc.gov. All e-OAH users shall keep current their electronic mail address in e-OAH. When all attorneys and unrepresented parties to a contested case are registered in e-OAH, all documents filed and served in that contested case shall be filed and served electronically by means of the Electronic Filing Service Provider.

(b) In contested cases filed in e-OAH, registration as an e-OAH user constitutes consent to electronic service and receipt of contested case documents, including a notice of hearing given by OAH, by means of the Electronic Filing Service Provider.

(c) An e-OAH user shall be responsible for the readability of any document filed or served electronically by that user. Within five business days of receipt of an unreadable document filed or served electronically, the receiving party shall notify the sending party of the unreadability of the document.

(d) Pleadings and other documents filed or served electronically shall contain the electronic signature of the attorney, mediator, or party who prepared the document and the preparer's name, mailing address, electronic mail address, and telephone number. Documents prepared by an attorney shall have the attorney's North Carolina State Bar number. An attorney registered as an e-OAH user in a non-Medicaid contested case shall electronically file a notice of appearance in that contested case. An attorney's electronic signature to a petition for a contested case filed electronically shall be that attorney's notice of appearance in that contested case.

(e) Documents filed in e-OAH are filed when received by the chief hearings clerk of the Office of Administrative Hearings. Upon completion of filing, the clerk shall send the e-OAH user a confirmation receipt that includes the date and time of filing which shall be proof of filing.

(f) Documents filed electronically after 5 pm shall be deemed filed at 8 am the following business day.

(g) Documents filed in a contested case by an e-OAH user shall be filed electronically by means of the Electronic Filing Service Provider, shall be served electronically by means of the Electronic Filing Service Provider on all other attorneys or other parties registered in e-OAH in that contested case, and shall include a certificate of service.

(h) A subpoena issued in a contested case by the chief hearings clerk of the Office of Administrative Hearings shall be signed electronically by the clerk.

(i) In contested cases filed electronically, the applicable filing fee shall be:

(1) forwarded by first class mail or overnight express mail contemporaneously with the electronic filing;

(2) paid personally to the chief hearings clerk of the Office of Administrative Hearings within five business days of the filing; or

(3) paid by electronic funds transfer.

(j) If e-OAH experiences technical failure that prevents the Office of Administrative Hearings from receiving filings in e-OAH in accordance with the Rules in this Section, either continuously or intermittently over the course of any period of time that, after 12:00 noon on such day, amounts to more than one hour, filings due that day that were not filed due to technical failure shall become due the next business day. Such delayed filings shall be deemed timely filed if accompanied by a certification attesting to the e-OAH user's failed attempts to file electronically at least two times after 12:00 noon separated by more than one hour on each day that e-OAH experiences technical failure. If a document must be filed to meet a statutory deadline on a date that e-OAH experiences technical failure, the e-OAH user shall file that document with the Office of Administrative Hearings pursuant to Rule .0101(b) or Rule .0102(a)(2)(A) of this Chapter and shall serve that document pursuant to Rule .0102(a)(3) of this Chapter.

History

Authority G.S. 7A-750; 150B-23; 150B-23.2; 150B-23.3
Eff. March 1, 2016
Amended Eff. January 1, 2025; April 1, 2021; April 1, 2017; October 1, 2016.

26 NCAC 03 .0503 Registrants {#sec-26-ncac-03-.0503 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0503}

Only attorneys, mediators, and other parties associated with a contested case docket shall be permitted to register with e-OAH.

History

Authority G.S. 7A-750; 150B-23; 150B-23.3
Eff. March 1, 2016.

26 NCAC 03 .0504 Integration with Other Rules {#sec-26-ncac-03-.0504 omnilex-key=us-nc-regs-official--title-26--26 NCAC 03 .0504}

The rules in this Section are intended to supplement the other rules in this Chapter. In the event of a conflict, the rules in this Section shall control with respect to contested cases filed in e-OAH.

History

Authority G.S. 7A-750; 150B-23.3
Eff. March 1, 2016.

Chapter 04 Civil Rights Division

26 NCAC 04 .0101 Introduction {#sec-26-ncac-04-.0101 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0101}

The Civil Rights Division shall investigate all charges filed under G.S. 7A-759 and deferred charges from the Equal Employment Opportunity Commission in accordance with the Federal regulations implementing Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act which are published in 29 C.F.R., Parts 1600 through 1699, and are hereby incorporated by reference to include subsequent amendments. Copies of 29 C.F.R., Parts 1600 through 1699 are available at no cost from the Government Printing Office website at www.gpoaccess.gov.

History

Authority G.S. 7A-751; 7A-759
Filed as a Temporary Rule Eff. October 15, 1986 for a period of 120 days to expire on February 11, 1987
Eff. February 1, 1987
Amended Eff. July 1, 1989
Temporary Amendment Eff. January 1, 1998
Amended Eff. November 1, 2012; August 1, 1998
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 04 .0102 Content and Procedure {#sec-26-ncac-04-.0102 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0102}

(a) Any person wishing to file a complaint of alleged employment discrimination under G.S. 7A-759 with the Civil Rights Division shall complete the preliminary intake form found at www.ncoah.com; or submit the complaint in writing or by telephone to:

(984) 236-1850

(b) The complaint shall include the following information:

(1) The full name, address, telephone number (work and home), and email address of person making the complaint;

(2) The full name and address of the person or agency against whom the complaint is made (the respondent);

(3) A statement of the alleged employment discrimination including pertinent dates;

(4) A statement of the specific employment issues (e.g. discharge, discipline, promotion) including the name and job title of the decision maker;

(5) A statement of the act, policy or practice which is alleged to be unlawful;

(6) For each act, policy or practice alleged, a statement of the facts which lead the person to believe the act, policy or practice is discriminatory; and

(7) The approximate number of employees of the respondent employer.

(c) A complaint is considered a charge when the Equal Employment Opportunity Commission's Charge of Discrimination form is signed and dated and received by the Civil Rights Division.

(d) The Civil Rights Division shall assess the charge to determine if it is within the jurisdiction of the Office of Administrative Hearings and if so, it shall be assigned a charge number. If the charge is not within the jurisdiction of the Office of Administrative Hearings, it shall be transferred to the Equal Employment Opportunity Commission.

History

Authority G.S. 7A-759
Temporary Rule Eff. October 15, 1986 for a Period of 120 Days to Expire on February 11, 1987
Eff. February 1, 1987
Amended Eff. November 1, 2012; December 1, 1999; April 1, 1991; April 1, 1989
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016
Amended Eff. October 1, 2022.

26 NCAC 04 .0103 Notification of Investigation {#sec-26-ncac-04-.0103 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0103}

(a) When a charge of employment discrimination is filed, the Civil Rights Division shall notify the charging party and respondent that an investigation will commence. Notice shall be served by registered U.S. mail.

(b) Any correspondence related to a charge must include the name of the charging party and the respondent and the Civil Rights Division's charge number and be submitted to:

Director of Civil Rights Division

Office of Administrative Hearings

6714 Mail Service Center

Raleigh, NC 27699-6714

History

Authority G.S. 7A-759
Temporary Rule Eff. October 15, 1986 for a Period of 120 Days to Expire on February 11, 1987
Eff. February 1, 1987
Amended Eff. November 1, 2012; December 1, 1999; April 1, 1991; April 1, 1989
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 04 .0104 Additional Information {#sec-26-ncac-04-.0104 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0104}

History

Status: repealed
Authority G.S. 7A-759; 150B-11
Temporary Rule Eff. October 15, 1986 For a Period of 120 Days to Expire on February 11, 1987
Eff. February 1, 1987
Amended Eff. December 1, 1999; April 1, 1991; April 1, 1989
Repealed Eff. November 1, 2012.

26 NCAC 04 .0105 Investigation {#sec-26-ncac-04-.0105 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0105}

History

Status: repealed
Authority G.S. 7A-759; 150B-11
Temporary Rule Eff. October 15, 1986 For a Period of 120 Days to Expire on February 11, 1987
Eff. February 1, 1987
Amended Eff. December 1, 1999; April 1, 1991; April 1, 1989
Repealed Eff. November 1, 2012.

26 NCAC 04 .0106 Investigation Report {#sec-26-ncac-04-.0106 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0106}

(a) The Civil Rights Division shall investigate all charges filed pursuant to this Section.

(b) A civil rights investigator shall prepare an investigative memorandum setting out the findings and the conclusions of the Civil Rights Division's investigation based on the allegations and appropriate statutes.

(c) The Civil Rights Division shall determine whether there is probable cause to believe the alleged discrimination has occurred.

(d) A civil rights investigator shall conduct a pre-decision interview with the charging party prior to the issuance of the Civil Rights Division's decision.

(e) Upon completion of the investigation the civil rights director shall issue a decision that shall be served on the charging party and respondent by US mail.

(f) If the investigation results in a determination that there is no probable cause to believe the alleged discrimination has occurred, the Civil Rights Division's director shall inform the charging party of the rights of appeal to the Equal Employment Opportunity Commission.

(g) If the investigation results in a determination that there is probable cause to believe the alleged discrimination has occurred, the civil rights director shall invite the parties to participate in pre-settlement discussions and attempt conciliation.

History

Authority G.S. 7A-759
Temporary Rule Eff. October 15, 1986 for a Period of 120 Days to Expire on February 11, 1987
Eff. February 1, 1987
Amended Eff. November 1, 2012; April 1, 1989
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 04 .0107 Conciliation and Settlement {#sec-26-ncac-04-.0107 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0107}

(a) A civil rights investigator shall contact the charging party and the respondent to schedule a settlement conference with the Civil Rights Division director and compliance manager within 10 days of the service of the decision that there is probable cause to believe discrimination has occurred upon the parties.

(b) Where a settlement is reached among the charging party, the respondent and the Civil Rights Division, an agreement shall be prepared by the investigator and executed by the parties.

(c) Upon notification to the Civil Rights Division by the respondent that all provisions of the settlement agreement have been met, the compliance manager shall close the charge.

(d) The compliance manager shall forward the settlement documents to the Equal Employment Opportunity Commission and the Civil Rights Division director shall notify the parties that the charge is closed.

(e) If conciliation is unsuccessful the charging party must make a declaration of intent within seven days of how to proceed with the charge. The charging party may:

(1) File a petition for a contested case hearing with the Hearings Division of the Office of Administrative Hearings;

(2) Request that the case be forwarded to the Equal Employment Opportunity Commission for further conciliation;

(3) Request a notice of right-to-sue from the Equal Employment Opportunity Commission for the purpose of filing in Federal District Court; or

(4) Choose not to pursue the matter any further.

(f) Upon receipt of the signed and dated declaration of intent, the Civil Rights Division shall close the charge and forward the case file to the Equal Employment Opportunity Commission.

(g) If no declaration of intent is received after seven days, the Civil Rights Division shall close the charge and forward the case file to the Equal Employment Opportunity Commission.

History

Authority G.S. 7A-759
Temporary Rule Eff. October 15, 1986 for a Period of 120 Days to Expire on February 11, 1987
Eff. February 1, 1987
Amended Eff. November 1, 2012; April 1, 1989
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 04 .0108 Contested Case Hearing {#sec-26-ncac-04-.0108 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0108}

(a) Any determination of probable cause that has not resulted in conciliation may be heard by an Administrative Law Judge. The charging party shall commence the proceedings by filing a petition for a contested case hearing.

(b) The Administrative Law Judge shall enter a stay in contested cases where there is a companion employment discrimination charge under investigation by the Civil Rights Division. The Civil Rights Division director shall notify the judge's assistant when the companion case is closed.

(c) The Civil Rights Division's investigative file, shall be made available to all parties, upon request, as provided in Section 83 of the EEOC Compliance Manual, Volume 1 (October, 1987) incorporated herein by reference as well as subsequent amendments thereto. Copies of Section 83 are available upon request from the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714 at no charge.

History

Authority G.S. 7A-759; 150B-21.6; 150B-26; 150B-33
Temporary Rule Eff. October 15, 1986 for a Period of 120 Days to Expire on February 11, 1987
Eff. February 1, 1987
Amended Eff. November 1, 2012; December 1, 1999; August 2, 1993; July 1, 1989
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 04 .0109 Authority to Administer Oaths or Affirmations {#sec-26-ncac-04-.0109 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0109}

History

Status: repealed
Authority G.S. 7A-759; 150B-11
Eff. April 1, 1989
Repealed Eff. November 1, 2012.

26 NCAC 04 .0110 Subpoenas {#sec-26-ncac-04-.0110 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0110}

If any subpoena, including a subpoena ducus tecum, is required for the proper investigation of a charge, the Director or any employee of the Civil Rights Division may apply to the Chief Administrative Law Judge for issuance of the subpoena under the authority of G.S. 7A-756(2). The subpoena shall issue in the discretion of the Chief Administrative Law Judge.

History

Authority G.S. 7A-756; 150B-11
Eff. April 1, 1989
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. July 23, 2016.

26 NCAC 04 .0201 Definitions {#sec-26-ncac-04-.0201 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0201}

History

Status: repealed
Authority G.S. 7A-751; 126-14.4; 150B-2
Temporary Adoption Eff. January 1, 1998
Eff. August 1, 1998
Amended Eff. October 1, 2008; December 1, 1999; August 1, 1998
Repealed Eff. August 21, 2013 [See S.L. 2013-382, s.7.6].

26 NCAC 04 .0202 Content and Filing Procedures {#sec-26-ncac-04-.0202 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0202}

History

Status: repealed
Authority G.S. 7A-751; 126-14.4; 150B-2
Temporary Adoption Eff. January 1, 1998
Eff. August 1, 1998
Amended Eff. October 1, 2008; December 1, 1999; August 1, 1998
Repealed Eff. August 21, 2013 [See S.L. 2013-382, s.7.6].

26 NCAC 04 .0203 Time {#sec-26-ncac-04-.0203 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0203}

History

Status: repealed
Authority G.S. 7A-751; 126-14.4; 150B-2
Temporary Adoption Eff. January 1, 1998
Eff. August 1, 1998
Amended Eff. October 1, 2008; December 1, 1999; August 1, 1998
Repealed Eff. August 21, 2013 [See S.L. 2013-382, s.7.6].

26 NCAC 04 .0204 Initial Determination {#sec-26-ncac-04-.0204 omnilex-key=us-nc-regs-official--title-26--26 NCAC 04 .0204}

History

Status: repealed
Authority G.S. 7A-751; 126-14.4; 150B-2
Temporary Adoption Eff. January 1, 1998
Eff. August 1, 1998
Amended Eff. October 1, 2008; December 1, 1999; August 1, 1998
Repealed Eff. August 21, 2013 [See S.L. 2013-382, s.7.6].

Chapter 05 Rules Review Commission

26 NCAC 05 .0101 Definitions {#sec-26-ncac-05-.0101 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0101}

As used in this Chapter the following terms have the following meanings unless the context indicates otherwise:

(1) "Agency" means as defined in G.S. 150B-2(1b).

(2) "Commission" or "RRC" means the Rules Review Commission as established in G.S. 143B-30.1.

(3) "Objection letter" means any letter or other written correspondence from the public pursuant to G.S. 150B-21.3(b2) objecting to a rule and requesting review of the rule by the General Assembly filed with the Rules Review Commission while the rule is under review by the Rules Review Commission.

(4) "Review" means the statutory "Part 3. Review by Commission" at G.S. 150B-21.8 and following including the RRC action as set out in G.S. 150B-21.10.

(5) "Rewritten rules" mean rules that have been revised in an attempt to satisfy an objection by the Commission.

(6) "Technical Changes" mean the changes made by an agency to reply to a request from the Commission or its staff as set out in G.S. 150B-21.10. Technical changes shall not result in a substantive change in the meaning, interpretation, or application of a rule and include the following categories of changes:

(a) Correcting errors of a general nature including:

(i) obvious typographical errors, misspellings, punctuation, and grammatical errors;

(ii) errors in complying with OAH or statutory requirements that are not substantive errors; and

(iii) proof of compliance with the legally required process.

(b) Correcting errors that would appear to be substantive changes except that they do not change the intended or accepted meaning, interpretation or application of the rule including:

(i) changing "should" or "will" to "shall" or "must;"

(ii) clarifying the use of "approved;"

(iii) clarifying or correcting the use of "and," "or" or "and/or;"

(iv) clarifying or deleting commonly used adjectives or adverbs such as "thoroughly," "clearly," "adequately," "appropriate," and "substantial;" and

(v) inserting substantive contents of a rule's name into the rule itself.

(c) Requesting agencies to rewrite a rule, paragraph, or portions of a rule to more clearly express the intent of the agency when the meaning and application of the rule is known and understood.

(d) Acting on agencies' requests on behalf of citizens or agency staff to clarify the intent, requirements, or prohibition of a rule that would not result in a change in the rule's enforcement.

(e) Deleting or rewriting portions of rules that are not necessary rather than raising objections.

History

Authority G.S. 143B-30.1
Eff. August 1, 2008
Amended Eff. June 1, 2023.

26 NCAC 05 .0102 Communications with Commissioners {#sec-26-ncac-05-.0102 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0102}

History

Status: repealed
Authority G.S. 143B-30.1
Eff. August 1, 2008
Repealed Eff. June 1, 2023.

26 NCAC 05 .0103 Submission of Written Comments Concerning Permanent Rules to the Rrc {#sec-26-ncac-05-.0103 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0103}

(a) Written comments submitted by any person concerning a permanent rule shall be received by the RRC staff by 5:00 p.m. Eastern Time of the fifth business day prior to the RRC meeting at which the permanent rule is to be reviewed. If comments are submitted electronically, the comments shall be sent to rrc.comments@oah.nc.gov.

(b) Written comments shall state how a rule either complies with or fails to comply with the statutory grounds for the RRC's review set out in G.S. 150B-21.9.

(c) Persons submitting comments shall also submit a copy of the comments at the same time and in the same manner to the agency's rulemaking coordinator. Rulemaking coordinator contact information is located at www.oah.nc.gov/rules-division.

(d) A person or agency may submit rebuttal comments concerning permanent rules. Comments from a person shall be submitted in the same manner as set out in Paragraph (a) of this Rule prior to 5:00 p.m. Eastern Time of the business day before the RRC meeting at which the rule is to be reviewed. An agency may submit rebuttal comments before or at the RRC meeting.

(e) Any person submitting written comments or submitting rebuttal comments at an RRC meeting shall submit sufficient copies for each of the Commissioners, commission counsel, agency rulemaking coordinator, and the permanent record, a total of 16 copies.

(f) The Chair may waive the requirements of this Rule based on the factors in Rule .0112 of this Chapter.

(g) Written comments not submitted in accordance with this Rule are subject to being excluded from the record by the Commission.

History

Authority G.S. 143B-30.1
Eff. August 1, 2008
Amended Eff. June 1, 2023; May 1, 2016.

26 NCAC 05 .0104 Submission of Written Comments Concerning Temporary Rules to the Rrc {#sec-26-ncac-05-.0104 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0104}

(a) Written comments submitted by any person concerning a temporary rule shall be received by the RRC staff by 5:00 p.m. Eastern Time on the business day prior to the RRC meeting at which the temporary rule is to be reviewed. If comments are submitted electronically, the comments shall be sent to rrc.comments@oah.nc.gov.

(b) Written comments shall state how a rule either complies with or fails to comply with the statutory grounds for the RRC's review set out in G.S. 150B-21.1 and G.S. 150B-21.9.

(d) A person or agency may submit rebuttal comments concerning temporary rules. An agency may submit rebuttal comments at the RRC meeting.

(e) Any person submitting written comments or rebuttal comments at an RRC meeting shall submit sufficient copies for each of the Commissioners, commission counsel, agency rulemaking coordinator, and the permanent record, a total of 16 copies.

(f) The Chair may waive the requirements of this Rule based on the factors in Rule .0112 of this Chapter.

(g) Written comments not submitted in accordance with this Rule are subject to being excluded from the record by the Commission.

History

Authority G.S. 143B-30.1
Eff. August 1, 2008
Amended Eff. June 1, 2023; May 1, 2016.

26 NCAC 05 .0105 Required Notice Prior to Oral Rrc Presentation {#sec-26-ncac-05-.0105 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0105}

(a) The Chair may allow an agency or any person to make oral statements in support of or in opposition to a rule, or to a report as set forth in Rule .0206 of this Chapter.

(b) Any person or agency desiring to make an oral statement concerning a permanent rule shall notify the RRC staff in writing by 5:00 p.m. Eastern Time of the second business day before the RRC meeting. The notice shall identify the rule upon which the oral statement will be made and shall also include the name, address, telephone number, fax number and email address of the individual who will be making the oral statement. If the person did not submit a written comment, the person shall state whether the oral statement will support or oppose the rule or report.

(c) Any person or agency desiring to make an oral statement concerning a temporary rule shall notify the RRC staff prior to the start of the RRC meeting or RRC designee meeting at which a temporary rule will be reviewed. The notice shall identify the rule upon which the oral statement will be made and shall also include the name, address, telephone number, fax number and email address of the individual who will be making the oral statement. If the person did not submit a written comment, the person shall state whether the oral statement will support or oppose the rule.

(d) At the same time the person notifies the RRC staff, the person shall also notify the rulemaking coordinator for the agency proposing the rule if the person wishes to speak in opposition to the rule or report. If a person fails to notify the agency in accordance with this rule, the Chair may deny a request to make an oral statement to the RRC.

(e) If the Commission asks an individual to address a rule or report, the prior notice required by this Rule does not apply.

History

Authority G.S. 143B-30.1
Eff. August 1, 2008
Amended Eff. October 1, 2024; June 1, 2023; April 1, 2014.

26 NCAC 05 .0106 Limitations on Oral Presentations {#sec-26-ncac-05-.0106 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0106}

(a) The RRC Chair in open session may set time limits on oral presentations before the Commission.

(b) Unless the Chair sets other time limits for oral presentations, the time allowed for presentations shall not exceed five minutes for each requesting person or agency. The Chair may require that oral presentations be limited to representative spokespersons for those advocating or those opposing rule approval by the RRC.

(1) the length of the agenda and of the meeting;

(2) the number of rules subject to comment;

(3) the complexity of the issues;

(4) the public interest in a particular rule or report;

(5) the number of people desiring to address the RRC concerning the rule or report;

(6) the variations in the speakers' arguments and the level of agreement within their positions or relationships;

(7) the nature of the comments in relation to the RRC scope of review; and

(8) the amount of notice given to the agency.

(d) The agency adopting the rule shall be allowed an opportunity to address the Commission when a person addresses the Commission in opposition to a rule, unless the agency fails to appear after notice of written comments opposing approval of the rule. When a comment in opposition to a rule first occurs by an oral comment at the Commission meeting, the agency shall be allowed an opportunity to address the Commission at the next meeting of the Commission or Commission's designee where the rule is under review.

History

Authority G.S. 143B-30.1
Eff. August 1, 2008
Amended Eff. June 1, 2023; April 1, 2014.

26 NCAC 05 .0107 Withdrawal or Amendment of Rules After Filing with Rrc {#sec-26-ncac-05-.0107 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0107}

(a) An agency shall not withdraw a rule after filing with the RRC and before review by the RRC when:

(1) the rule is a readoption; or

(2) the staff recommendation to object to the rule applies to existing language.

(b) An agency shall make no changes to any rule after filing with the RRC and before review by the RRC except:

(1) in response to a request for technical changes from the RRC or from the RRC staff; or

(2) after notifying RRC staff of the changes in writing, identifying each change, and providing an explanation for each change.

(c) Following the posting of a staff recommendation to object to a rule on the OAH website, the agency shall submit no further changes to the rule before review by the RRC, except where:

(1) staff has not recommended objection pursuant to G.S. 150B-21.9(a)(1) or G.S. 150B-21.9(a)(4);

(2) the agency's rulemaking coordinator makes a written representation to RRC staff that any changes made are intended to remedy identified ambiguities or eliminate language that repeats the content of a law, another rule, or a federal regulation; and

(3) the agency submits the changes no later than 5:00 p.m. Eastern Time on the fifth business day immediately preceding the RRC meeting at which the rules subject to the staff recommendation are to be reviewed.

History

Authority G.S. 143B-30.1
Eff. August 1, 2008
Amended Eff. October 1, 2024; June 1, 2023.

26 NCAC 05 .0108 Submission of Rewritten Rules or Rules with Technical Changes {#sec-26-ncac-05-.0108 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0108}

(a) The RRC shall not review rules rewritten in response to an objection until the next regular meeting following the objection.

(b) All rules containing technical changes made in response to a request by the RRC staff shall be submitted to the RRC staff by the earlier of:

(1) 5:00 p.m. Eastern Time 10 business days after the Requests for Technical Change are submitted to the agency rulemaking coordinator; or

(2) 5:00 p.m. Eastern Time of the second Friday before the RRC meeting. If that Friday is a holiday, then the rules shall be submitted on the last business day before the holiday.

(c) All rewritten rules shall be submitted to the RRC staff by 5:00 p.m. Eastern Time of the second Friday before the RRC meeting. If that Friday is a holiday, then the rewritten rules shall be submitted on the last business day before the holiday.

(d) These deadlines may be waived by the RRC staff when an agency that is a board or commission does not meet until the day of the deadline or later or when the original submission is deficient and requires further changes.

History

Authority G.S. 143B-30.1; 150B-21.10
Eff. August 1, 2008
Amended Eff. October 1, 2024; June 1, 2023; February 1, 2012.

26 NCAC 05 .0109 Communications with Rrc Staff {#sec-26-ncac-05-.0109 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0109}

History

Status: repealed
Authority G.S. 143B-30.1
Eff. August 1, 2008
Repealed Eff. June 1, 2023.

26 NCAC 05 .0110 Filing Objection Letters {#sec-26-ncac-05-.0110 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0110}

(a) The RRC shall not consider any objection letter which is dated prior to the time the agency adopts the rule.

(b) All objection letters shall be delivered via U.S. Mail, private courier service, or hand delivery to 1711 New Hope Church Road, Raleigh, North Carolina, 27609, or via email to oah.rules@oah.nc.gov.

History

Authority G.S. 143B-30.1
Eff. August 1, 2008
Amended Eff. June 1, 2023.

26 NCAC 05 .0111 Response to Objection Letters {#sec-26-ncac-05-.0111 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0111}

(a) The RRC staff shall respond to any objection letter for which it has a return address and that is not eligible for consideration.

(b) The RRC staff's response shall inform the letter writer that the objection letter is not eligible for consideration as it was untimely and inform the letter writer how to file a timely objection letter.

(c) The RRC staff may respond to letters that were filed by a single individual on behalf of multiple individuals to the individual filing the letters.

History

Authority G.S. 143B-30.1
Eff. August 1, 2008.

26 NCAC 05 .0112 Waiver {#sec-26-ncac-05-.0112 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0112}

(a) The Commission in open session may waive any rule for which no specific waiver provision is set out.

(b) Any person or agency requesting a waiver shall do so in writing and shall set out the specific rule for which a waiver is requested and the reasons justifying such a waiver.

(c) Any person desiring a waiver of the Commission's rules shall submit a copy of the request to the rulemaking coordinator for the agency proposing a rule at the same time and in the same manner as the submission to the RRC.

(d) The factors to be used in deciding whether to waive a rule are:

(1) the necessity for a waiver;

(2) the amount of notice given to the Commission and its staff, the agency proposing the rule, and interested parties;

(3) the applicant's responsibility for the conditions creating the need for a waiver;

(4) the applicant's previous requests for a waiver;

(5) the applicant's knowledge of or experience with the rulemaking process;

(6) the precedential value of such a waiver;

(7) the harm to the applicant if a waiver is not granted;

(8) the harm to the agency if a waiver is granted when the agency is not the applicant.

History

Authority G.S. 143B-30.1
Eff. August 1, 2008.

26 NCAC 05 .0113 Withdrawal of Objection Letters {#sec-26-ncac-05-.0113 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0113}

(a) A person may request that the Commission allow withdrawal of his or her previously filed objection letter to a rule prior to the meeting at which that rule is approved as set out below.

(b) A request to withdraw an objection letter after a rule has been approved is untimely and shall be returned to the requesting party with a denial by the Commission staff.

(c) The original request to withdraw a previously filed objection letter must be signed by the person who wrote the objection letter, notarized and delivered to the Commission by the close of business on the last day prior to the meeting at which the rule that is the subject of the objection letter is approved.

(d) The Commission shall act on the request to withdraw the previously filed objection letter at the meeting. The staff attorney offering comments on the rule shall also announce how the request to withdraw the previously filed objection letter would affect the rule's effective date and whether the rule would be subject to legislative review.

(e) The Commission shall base its decision on:

(1) the factual circumstances concerning the objection letter and the request to withdraw any letter;

(2) any defects in either the objection letter or the request to withdraw the objection letter;

(3) the history of the particular rulemaking;

(4) the notice provided to all parties and the Commission;

(5) the good faith of the person making the withdrawal request; and

(6) any factors the Commission may use in deciding whether to grant a waiver from its rules.

History

Authority G.S. 143B-30.1
Eff. December 1, 2010.

26 NCAC 05 .0114 Rrc Rule Approval Contingent on Technical Change {#sec-26-ncac-05-.0114 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0114}

(a) When the Commission approves a rule contingent on an agency's making requested technical changes, the agency shall make all changes requested by the Commission prior to 5:00 p.m. Eastern Time on the next business day after the rule is approved, or such other date or time as may be set by the Commission.

(b) If the changes are made as set out in Paragraph (a) of this Rule, the rule shall become effective pursuant to G.S. 150B-21.3. If the changes have not been made as set out in Paragraph (a) of this Rule, the rule shall not become effective and shall be calendared on the Commission's agenda for the following month.

History

Authority G.S. 143B-30.1; 150B-21.10
Eff. February 1, 2012
Amended Eff. June 1, 2023.

26 NCAC 05 .0115 Extensions of the Period for Review {#sec-26-ncac-05-.0115 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0115}

(a) An agency may submit a request for an extension pursuant to G.S. 150B-21.10(3) to respond to Requests for Technical Changes and make rule revisions in response thereto or to rebut RRC staff opinions, at or before the RRC meeting at which the agency's rules are reviewed.

(b) In exercising its discretion to grant the extension and the length of the extension, the RRC shall consider the complexity of Request for Technical Changes or staff recommendations for objection, the complexity of the rules, the RRC's current and projected agenda, the circumstances proffered by the agency as to the necessity for an extension, RRC staff availability and counsel, and public comment in its determination whether to grant the request.

(c) For rules subject to an extension, the agency shall submit to RRC staff all written responses to Requests for Technical Changes and RRC staff opinions, or revised rules no later than the second Friday prior to the RRC meeting to which the review is extended.

History

Authority G.S. 143B-30.1
Eff. June 1, 2023
Amended Eff. October 1, 2024.

26 NCAC 05 .0116 Attestation of Compliance with Rulemaking Requirements {#sec-26-ncac-05-.0116 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0116}

(a) An agency shall attest that the requirements listed in G.S. 150B-19.1(c)(1)-(5) were posted on the agency Web site no later than the publication date of the notice of text for a proposed rule in the North Carolina Register.

(b) Failure to comply with this Rule shall be grounds for objection to the proposed rule pursuant to G.S. 150B-21.9(a)(4).

History

Authority G.S. 143B-30.1
Eff. October 1, 2024.

26 NCAC 05 .0201 Scope {#sec-26-ncac-05-.0201 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0201}

History

Status: repealed
Authority G.S. 150B-21.3A
Eff. April 1, 2014
Repealed Eff. June 1, 2023.

26 NCAC 05 .0202 Definitions {#sec-26-ncac-05-.0202 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0202}

In addition to the definitions in G.S. 150B-21.3A and in Rule .0101 of this Chapter, for the purposes of this Section the following definitions apply:

(1) "Determination" means a classification of a rule as necessary or unnecessary.

(2) "Existing rules" means rules currently in the Code as of January 1, 2024 and every 10 years thereafter.

(3) "Report" means the report established pursuant to Rule .0206 of this Section, used to implement steps one through three in G.S. 150B-21.3A(c).

History

Authority G.S. 150B-21.3A
Eff. April 1, 2014
Amended Eff. June 1, 2023.

26 NCAC 05 .0203 Deadlines {#sec-26-ncac-05-.0203 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0203}

(a) The Commission shall submit by email to the rulemaking coordinator of an agency subject to the review a report containing its existing rules. Agencies shall have 10 business days after the report is sent to review it for accuracy and completeness. An agency shall notify the Commission staff by email at oah.rules@oah.nc.gov of any errors or missing rules within the 10 business days following the date the RRC sent the report.

(b) An agency shall complete the report as set out in Rule .0206(b) of this Section. The agency shall then submit its initial report to the Office of Administrative Hearings at the above email address and OAH shall post the report on its website within five business days of receipt.

(c) All reports shall be filed on or before the 20th day of the month for Commission review of the report at its meeting the following month, using the schedule set forth in Rule .0211 of this Section. Commission counsel shall notify an agency if he or she intends to recommend reviewing this report at a later meeting. The Commission may delay reviewing a report until a later meeting if the workload of the Commission and its staff makes the review impracticable. If the Commission delays reviewing a report, it shall notify the agency. In rescheduling any review, the Commission shall consider the date on which the report was filed with the Commission.

(d) All deadlines that require filing or notification as set forth in this Rule shall be by 5:00 p.m. Eastern Time on the business day of the deadline or the next business day following the deadline if the deadline falls on a non-business day.

History

Authority G.S. 150B-21.3A
Eff. April 1, 2014
Amended Eff. June 1, 2023.

26 NCAC 05 .0204 Extension of Time {#sec-26-ncac-05-.0204 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0204}

(a) If the agency cannot meet the filing deadline set forth in Rules .0203(c) and .0211 of this Section, the agency head may submit a written request for an extension of time from the Commission. The Commission shall consider the request at its next regularly scheduled meeting. The Commission's decision shall be made on a case by case basis, considering the justification offered by the agency requesting the extension, which may include:

(1) the efforts of the agency to comply with the review;

(2) any illness or incapacity of the staff member assigned responsibility for submitting the report;

(3) changes of composition to the agency or its staff that resulted in a delay of the review;

(4) whether the agency received a volume of comments that requires additional time to respond; and

(5) arguments for or against the delay by members of the public.

(b) A request solely citing time constraints to complete the report is insufficient for an extension of time.

(c) If an agency head submits a request for an extension, the agency shall post notice on its website and notify its interested persons mailing list maintained pursuant to G.S. 150B-21.2(d) that the RRC will review the request at its next regularly scheduled meeting. The notice shall also inform the public that individuals may contact the Commission to object to the delay.

(d) Any person desiring to submit written arguments against the delay proposed by an agency shall submit the comments by email to the individual commissioners, RRC staff, and the agency rulemaking coordinator by 5:00 p.m. Eastern Time on the Tuesday prior to the meeting.

History

Authority G.S. 150B-21.3A
Eff. April 1, 2014
Amended Eff. June 1, 2023.

26 NCAC 05 .0205 AGENCY REQUEST TO RESCHEDULE REPORTS for earlier review AND ADD UNNECESSARY RULES TO THE SCHEDULE {#sec-26-ncac-05-.0205 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0205}

(a) If an agency wishes to reschedule a report for review before the date set forth in Rule .0211 of this Section, the agency shall send a written request to the Commission. The request shall contain:

(1) the Title and Chapter of the Report;

(2) the reason for the request;

(3) if the report was already posted, a copy of the report and any public comments received;

(4) the date the report was originally scheduled for review; and

(5) the date that the agency seeks for Commission review.

(b) An agency seeking earlier review shall, on the date of submission of the request to the Commission, post notice on its website and notify its interested persons mailing list maintained pursuant to G.S. 150B-21.2(d) of the meeting date on which the Commission will review its request as set forth in Paragraph (e) of this Rule. The notice shall also inform the public that the individuals may contact the Commission to object to the rescheduling.

(c) The Commission's decision to grant the request for earlier review shall be made on a case-by-case basis, considering the following:

(1) the reason offered by the agency;

(2) the workload of the Commission; and

(3) arguments for or against the rescheduling by members of the public.

(d) If an agency designates a rule as unnecessary and places it on the current year schedule as set forth in G.S. 150B-21.3A(e), it shall file written notice of this designation with the Commission. The Commission shall consider the notice at its next regularly scheduled meeting.

(e) For any requests made pursuant to this Rule, the Commission shall consider a request filed on or before the 20th day of the month at its meeting the next month and shall then place the rule or rules on the schedule. Following the Commission's decision, the Commission shall notify the agency of the date the agency is required to submit the report.

History

Authority G.S. 150B-21.3A
Eff. April 1, 2014
Amended Eff. June 1, 2023; December 1, 2016.

26 NCAC 05 .0206 Report {#sec-26-ncac-05-.0206 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0206}

(a) All agencies participating in the review shall use the report prepared by the Commission.

(b) The agency shall complete the following fields of the report prior to posting:

(1) the initial agency determination;

(2) whether a rule is necessary to implement or conform to federal law. If it is, the agency must include a citation to that law in the report; and

(3) the public comment period, which shall be no less than 60 days and begin upon posting on the agency's and the Office of Administrative Hearings' websites. If the posting does not occur on the same day for both sites, the comment period shall begin upon posting on the second website.

(c) The agency shall post the report on its website continuously throughout the public comment period and accept comments on the initial determinations made by the agency in the report.

(d) Prior to submitting the report to the Commission, the agency shall state in the report whether comments were received and the final determination for each rule. The agency shall attach to the report a copy of every comment received. The full text of all comments shall be included with or attached to the report. The agency shall also attach a brief response addressing the merits of each comment.

(e) The agency shall submit a report with all fields completed along with all required attachments set forth in Paragraph (d) of this Rule. Reports that are not complete shall be considered not filed and shall be returned to the agency to complete.

(f) The agency shall submit the report to the Commission with one original of the report and the comments received. The agency shall also submit an electronic version of the report that shall be compatible with or convertible to the most recent version of Microsoft Excel. The electronic report shall be submitted by email at oah.rules@oah.nc.gov.

History

Authority G.S. 150B-21.3A
Eff. April 1, 2014.

26 NCAC 05 .0207 Public Comment {#sec-26-ncac-05-.0207 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0207}

(a) For purposes of this Section, an agency shall accept public comments submitted to the agency by US Postal Service or other delivery service and electronic communication.

(b) The agency shall send notice of the posting and public comment period to its interested persons mailing list maintained pursuant to G.S. 150B-21.2(d).

(1) instructions on how a person may comment on the determination;

(2) to whom the comment should be directed;

(3) the definition of "public comment" in G.S. 150B-21.3A(a)(5); and

(4) that a comment must address the content of the rule to be considered by the Commission.

History

Authority G.S. 150B-21.2(d); 150B-21.3A
Eff. April 1, 2014.

26 NCAC 05 .0208 Agency Response to Public Comment {#sec-26-ncac-05-.0208 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0208}

(a) The agency shall address the substance of a public comment as defined in G.S. 150B-21.3A(a)(5).

(b) Agencies are not required to respond to the individual but shall include a brief response to the merits of the public comment in the report submitted to the Commission.

(c) The Commission shall consider a report incomplete if the agency does not respond to the merits of the public comments and shall return the report to the agency.

History

Authority G.S. 150B-21.3A
Eff. April 1, 2014.

26 NCAC 05 .0209 Exemption from the Periodic Review of Existing Rules {#sec-26-ncac-05-.0209 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0209}

(a) An agency requesting an exemption from the review pursuant to G.S. 150B-21.3A(d) may make an exemption request for an entire Section, Subchapter, Chapter, or Title of rules if the entire Section, Subchapter, Chapter, or Title of rules were adopted or amended within the previous 10 years prior to the review.

(b) The Commission shall not grant an exemption for individual rules.

(d) If an agency head submits a request for exemption, the agency shall post notice on its website and notify its interested persons mailing list maintained pursuant to G.S. 150B-21.2(d).

(e) The Commission shall post notice of the agency's request on its website and provide notice of a public hearing.

(f) The Commission shall conduct a public hearing to determine whether it should grant the waiver. The Commission shall consider the following:

(1) the arguments of the agency;

(2) public input;

(3) impact on the regulated public affected by the rule; and

(4) whether granting the waiver is within the public interest.

(g) If the Commission grants the waiver request, the Section, Subchapter, Chapter, or Title shall be removed from the current schedule and shall not be reviewed under this Section until the new review schedule is set.

History

Authority G.S. 150B-21.3A
Eff. April 1, 2014.

26 NCAC 05 .0210 Agency Presentation to the Commission {#sec-26-ncac-05-.0210 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0210}

If a representative from the agency does not appear at the meeting when the agency's report is being reviewed and a question regarding the report is raised, then the Commission shall defer the review to a subsequent meeting.

History

Authority G.S. 150B-21.3A
Eff. April 1, 2014.

26 NCAC 05 .0211 Schedule {#sec-26-ncac-05-.0211 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0211}

(a) The Commission shall review the report prepared for the identified portion of the Administrative Code pursuant to the schedule found on the OAH website at: https://www.oah.nc.gov/rules-division/periodic-review-and-expiration-existing-rules.

(b) All requests to amend the schedule referenced here shall be made pursuant to Rules .0204 or .0205 of this Section.

(c) All requests to amend the schedule shall be posted on the OAH website within two business days of receipt by the Commission.

(d) The Commission shall post notice of any amendment granted on the OAH website within two business days of the meeting where the amendment is granted.

History

Authority G.S. 150B-21.3A
Eff. April 1, 2014
Amended Eff. July 1, 2023; June 1, 2023; September 1, 2022; August 1, 2021; May 1, 2019; February 1, 2019; May 1, 2018; March 1, 2018; February 1, 2018; January 1, 2018; December 1, 2017; November 1, 2017; September 1, 2017; July 1, 2017; June 1, 2017; May 1, 2017; April 1, 2017; March 1, 2017; January 1, 2017; December 1, 2016; November 1, 2016; October 1, 2016; August 1, 2016; June 1, 2016; May 1, 2016; April 1, 2016; March 1, 2016; February 1, 2016; December 1, 2015.

26 NCAC 05 .0212 Readoptions {#sec-26-ncac-05-.0212 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0212}

(a) When setting a readoption deadline pursuant to G.S. 150B-21.3A(d)(2), an agency that is not a board or commission shall, within 60 days of receipt of the Commission's consultation request, submit to the Commission:

(1) written documentation of the agency's planned timeline for readoption, providing planned dates for all steps required by G.S. 150B-21.2; and

(2) written documentation of any of the agency's rulemaking priorities that the agency determines to be relevant to the timeline for readoption.

(b) A board or commission shall take the actions specified in Subparagraphs (a)(1) and (a)(2) of this Rule within 60 days of receipt of the Commission's consultation request, or within 10 days after the board or commission's next regularly scheduled meeting after receipt of the Commission's consultation request, whichever comes later.

(c) To meet the readoption deadline established pursuant to G.S. 150B-21.3A(d)(2) and Paragraphs (a) or (b) of this Rule, an agency, board, or commission shall:

(1) adopt the rule, as defined in G.S. 150B-2(1a), by the date established pursuant to G.S. 150B-21.3A(d)(2) and Paragraph (a) or (b) of this Rule; and

(2) file the rule with the Commission within 30 days of adoption.

History

Authority G.S. 143B-30.1; 150B-21.2(g); 150B-21.3A
Eff. June 1, 2023.

26 NCAC 05 .0301 formatting requirements {#sec-26-ncac-05-.0301 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0301}

An agency submitting temporary rules to be reviewed by the Commission shall comply with the requirements in 26 NCAC 02C .0100, .0200, and .0400, which are hereby incorporated by reference, including subsequent amendments and editions.

History

Authority G.S. 143B-30.1; 150B-21.1
Eff. May 1, 2016.

26 NCAC 05 .0302 TEMPORARY RULEmaking findings of need FORM {#sec-26-ncac-05-.0302 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0302}

(a) An agency shall submit a completed typed original Temporary Rulemaking Findings of Need form for each rule when filing a temporary rule for Commission review. The form may be accessed at no cost at www.ncoah.com/rules.

(b) The form sets forth the requirements of G.S. 150B-21.1 to allow the Commission to determine whether the temporary rule meets the statutory requirements.

(c) The agency head shall sign the original form pursuant to G.S. 150B-21.1(a4). If the agency head has delegated this authority to another person pursuant to statute, then the agency shall submit a copy of the delegation and cite the statutory authority that authorizes the delegation.

History

Authority G.S. 143B-30.1; 150B-21.1(a4)
Eff. May 1, 2016.

26 NCAC 05 .0303 Filing A TEMPORARY RULE {#sec-26-ncac-05-.0303 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0303}

For each temporary rule, the agency shall file the following:

(1) an original and two copies of the Temporary Rulemaking Findings of Need form. The original form shall be signed by the agency head or designee, as set forth in Rule .0302 of this Section;

(2) if designation authority is invoked, a letter delegating the authority for the signature on the form, as set forth in Rule .0302 of this Section;

(3) a copy of the relevant portion of the authority cited that authorizes the promulgation of the temporary rule;

(4) an original and two copies of the temporary rule prepared in accordance with 26 NCAC 02C .0108, containing:

(a) an introductory statement that states the rule was adopted under temporary rulemaking procedures;

(b) the text of the rule, showing any changes made after publication as set forth in 26 NCAC 02C .0405; and

(5) an electronic version of the Rule, as set forth in 26 NCAC 02C .0105.

History

Authority G.S. 143B-30.1; 150B-21.1; 150B-21.19
Eff. May 1, 2016.

26 NCAC 05 .0304 WAIVER PURSUANT TO G.S. 150B-21.1(a2) {#sec-26-ncac-05-.0304 omnilex-key=us-nc-regs-official--title-26--26 NCAC 05 .0304}

(a) Agencies seeking a waiver of the 210-day requirement pursuant to G.S. 150B-21.1(a2) shall submit their request concurrently with the filing of the temporary rule for which the waiver is sought by emailing the request to Commission staff counsel.

(b) In the written waiver request, the agencies shall address all factors which the Commission is required to consider pursuant to G.S. 150B-21.1(a2).

History

Authority G.S. 143B-30.1
Eff. January 1, 2025.