Administrative Procedures Act

Chapter 150B.

Administrative Procedure Act.

Article 1.

General Provisions.

§ 150B‑1. Policy and scope.

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

§ 150B‑2. Definitions

(7a) Policy. – Any nonbinding interpretive statement within the delegated

authority of an agency that merely defines, interprets, or explains the meaning

of a statute or rule. The term includes any document issued by an agency thatguidance document.

(8a) Rule.- Any agency regulation, standard, or statement of general applicability

that implements or interprets an enactment of the General Assembly or

Congress or a regulation adopted by a federal agency or that describes the

procedure or practice requirements of an agency. The term includes the

establishment of a fee and the amendment or repeal of a prior rule.  

The term does not include the following:

       c. Nonbinding interpretative statements within the delegated authority of

an agency that merely define, interpret, or explain the meaning of a

 statute or rule. (The definition of a Numbered Memo?)

ALSO NOTE:

      d. A form, the contents or substantive requirements of which are

prescribed by rule or statute.

Forms are not to be included within the Rule, if I understand this Statute correctly.

§ 150B‑18. Scope and effect.

This Article applies to an agency's exercise of its authority to adopt a rule. A rule is not valid unless it is adopted in substantial compliance with this Article. An agency shall not seek to implement or enforce against any person a policy, guideline, or other interpretive statement that meets the definition of a rule contained in G.S. 150B‑2(8a) if the policy, guideline, or other interpretive statement has not been adopted as a rule in accordance with this Article.

§ 150B-19. Restrictions on what can be adopted as a rule.

An agency may not adopt a rule that does one or more of the following:

§ 150B-19.(4) Repetition of the contents of a law, a rule, or federal regulation

§ 150B-19.(1) Implements or interprets a law without the legal authority to do so

§ 150B-19.(6) Allows the agency to waive or modify a requirement set in a rule unless a rule establishes specific guidelines the agency must follow in determining whether to waive or modify the requirement

§ 150B-19.1. Requirements for agencies in the rule-making process.

§ 150B-19.1.(a)(1) Only rules expressly authorized by federal or State law and necessary to serve the public interest

§ 150B-19.1.(a)(2) Rule seeks to reduce the burden on those required to comply with the rule

§ 150B-19.1.(a)(3) Rule to be written in clear and unambiguous manner and reasonably necessary to implement or interpret federal or State law

§ 150B-19.1.(a)(4) Rule to be considered for the cumulative effect of all rules adopted that relate to the purpose of the rule proposed. MAY NOT adopt a rule unnecessary or redundant.

§ 150B-19.1. Requirements for agencies in the rule-making process. Cont’d

§ 150B-19.1.(a)(5) Rule to be based on sound, scientific, technical, economic and relevant information

§ 150B-19.1.(a)(6) Rule designed to achieve purpose in cost-effective and timely manner

§ 150B-21.2.  Procedure for adopting a permanent rule.

§ 150B-21.2 (f) Comments. An agency must consider fully all written and oral comments received.

§ 150B-21.2.(c) Notice of Text. - A notice of the proposed text of a rule must include 

§ 150B-21.2.(c)(1)The text of the proposed rule, unless the rule is a readoption without substantive changes to the existing rule proposed in accordance with G.S. 150B-21.3A.

§ 150B-21.2.(c)(2) A short explanation of the reason for the proposed rule.

§ 150B-21.2.(c)(3) A citation to the law that gives the agency the authority to adopt the rule.

§ 150B-21.3A.  Periodic review and expiration of existing rules.

§ 150B-21.3A.(c) Review Process. (2) Step 2: 

For purposes of this subsection, a public comment has merit if it addresses the specific substance of the rule.