SUBCHAPTER 16N ‑ RULEMAKING AND ADMINISTRATIVE
HEARING PROCEDURES
SECTION .0100 ‑ PETITIONS FOR ADOPTION OF RULES
21 NCAC 16N .0101 PETITION FOR RULEMAKING HEARINGS
Any person wishing to submit a petition requesting the
adoption, amendment or repeal of a rule by the Board shall address the petition
to the Board's office. The envelope containing the petition should clearly
bear the notation: RULEMAKING PETITION RE: and then the subject area, for
example, DENTAL PRACTICE ACT or DENTAL HYGIENE ACT.
History Note: Authority G.S. 150B‑16;
Eff. August 25, 1977;
Amended Eff. May 1, 1989; March 1, 1985.
21 NCAC 16N .0102 CONTENTS OF
PETITION
The petition shall include the following information:
(1) An indication of the subject area to which the
petition is directed; for example, "This is a petition to hold a
rulemaking hearing to amend Rule .0000 of Subchapter X pertaining to delegable
duties to dental auxiliaries";
(2) Either a draft of the proposed rule or a summary of
its contents;
(3) Reasons for the proposal;
(4) The effect on existing rules or orders;
(5) Any data supporting the proposal;
(6) Affect of the proposed rule on existing practices
in the area involved, including cost factors;
(7) Names of those most likely to be affected by the
proposed rule, with addresses if reasonably known; and
(8) Name and address of each petitioner.
History Note: Authority G.S. 150B‑16;
Eff. August 25, 1977;
Amended Eff. May 1, 1989.
21 NCAC 16N .0103 DISPOSITION OF PETITIONS
(a) The Board will determine whether the public interest
would be served by the adoption, amendment or repeal of the requested rule.
Prior to making this determination, the Board may:
(1) Request additional information from the
petitioner;
(2) Contact interested persons or those likely
to be affected by the proposed rule and request comments; and
(3) It may use any other appropriate method for
obtaining information on which to base its determination. It will consider all
the contents of the petition submitted plus any other information obtained by
the means described herein.
(b) The Board shall act on a petition at its next regularly
scheduled meeting or within 120 days after submission of a petition.
History Note: Authority G.S. 150B‑16;
Eff. August 25, 1977;
Amended Eff. May 1, 1989; October 1, 1986; January 1,
1983.
SECTION .0200 ‑ NOTICE OF RULEMAKING HEARINGS
21 NCAC 16N .0201 NOTICE OF PROCEEDINGS
History Note: Authority G.S. 90‑28; 90‑48;
90‑223(b); 150B‑12; 150B‑60;
Eff. August 25, 1977;.
Amended Eff. October 1, 1986;
Repealed Eff. May 1, 1989.
21 NCAC 16N .0202 NOTICE OF MAILING LIST
Any person or agency desiring to be placed on the mailing
list for the Board's rulemaking notices may file a written request in the
Board's office. The letter of request should state those particular subject
areas within the authority of the Board concerning which notice is desired.
The Board may require reasonable postage and stationery costs to be paid by
those requesting such notices.
History Note: Authority G.S. 90‑48; 90‑223(b);
150B‑12(c);
Eff. August 25, 1977;
Amended Eff. May 1, 1989; March 1, 1985.
21 NCAC 16N .0203 ADDITIONAL INFORMATION
Persons desiring information in addition to that provided in
an individual rulemaking notice may contact the Board's office. Any written
communication should clearly indicate the rulemaking proceeding which is the
subject of the inquiry.
History Note: Authority G.S. 90‑48; 90‑223(b);
150B‑12;
Eff. August 25, 1977;
Amended Eff. March 1, 1985.
SECTION .0300 ‑ RULEMAKING HEARINGS
21 NCAC 16N .0301 REQUEST TO PARTICIPATE
History Note: Authority G.S. 90-48; 150B-12(a);
Eff. August 25, 1977;
Amended Eff. May 1, 1989;
Repealed Eff. April 1, 2014.
21 NCAC 16N .0302 CONTENT OF REQUEST: GENERAL TIME
LIMITATIONS
Presentations at Board rule making hearings shall be limited
to 15 minutes unless the Board prescribes some other time limit.
History Note: Authority G.S. 90-48; 90-223(b); 150B-12(a);
Eff. August 25, 1977;
Amended Eff. April 1, 2014; May 1, 1989.
21 NCAC 16N .0303 RECEIPT OF REQUEST: SPECIFIC TIME
LIMITS
History Note: Authority G.S. 90-48; 90-223(b); 150B-12(a);
Eff. August 25, 1977;
Amended Eff. May 1, 1989.
Repealed Eff. April 1, 2014.
21 NCAC 16N .0304 WRITTEN SUBMISSIONS
Any person may file a written submission containing data,
comments or arguments after publication of notice of a rulemaking hearing up to
the date of hearing. The Board may in its discretion grant an additional 30 days
after a hearing for further comment and argument. These written comments
should be sent to the Board's office. They should clearly state the rule or
proposed rule to which such comments are addressed.
History Note: Authority G.S. 90‑48; 90‑223(b);
150B‑12;
Eff. August 25, 1977;
Amended Eff. May 1, 1989; March 1, 1988; October 1, 1986;
March 1, 1985.
21 NCAC 16N .0305 BOARD PRESIDENT TO PRESIDE: POWERS AND
DUTIES
The president of the Board shall preside at a rulemaking
hearing and shall be authorized to do the following:
(1) Grant any extension of time in connection with a
request for the presentation of oral data, views or arguments;
(2) Recognize any prospective speaker;
(3) Extend or shorten the time allotted for any
particular presentation; and
(4) Direct the overall proceedings including management
of any questions directed to any speaker by any Board member.
History Note: Authority G.S. 90‑48; 90‑223(b);
150B‑12(a);
Eff. August 25, 1977;
Amended Eff. May 1, 1989.
21 NCAC 16N .0306 STATEMENT OF REASONS FOR DECISION
History Note: Authority G.S. 90‑28; 150B‑60(4);
90‑48; 90‑223(b); 150B‑12(e);
Eff. August 25, 1977;
Repealed Eff. May 1, 1989.
21 NCAC 16N .0307 RECORD OF PROCEEDINGS
A record of all rulemaking proceedings will be maintained in
the Board's office for as long as the rule is in effect, and for five years
thereafter, following filing. This record will contain: the original petition
if any, the notice, all written memoranda and information submitted, and any
record or summary of oral presentations, if any. A record of the rulemaking
proceedings will be available for public inspection during the regular office
hours of the Board.
History Note: Authority G.S. 90‑48; 90‑223(b);
150B‑12(e);
Eff. August 25, 1977;
Amended Eff. May 1, 1989.
21 NCAC 16N .0308 TEMPORARY RULES
History Note: Authority G.S. 90‑28; 150B‑13;
Eff. August 25, 1977;
Amended Eff. April 1, 1988;
Repealed Eff. May 1, 1989.
SECTION .0400 ‑ DECLARATORY RULINGS
21 NCAC 16N .0401 SUBJECTS OF DECLARATORY RULINGS
History Note: Authority G.S. 90‑28; 90‑48;
90‑223(b); 150B‑17;
Eff. August 25, 1977;
Amended Eff. October 1, 1986;
Repealed Eff. May 1, 1989.
21 NCAC 16N .0402 SUBMISSION OF REQUEST FOR RULING
All requests for declaratory rulings shall be written and
mailed to the Board's office. The envelope containing the request should bear
the notation: REQUEST FOR DECLARATORY RULING. The request must include the
following information:
(1) Name and address of petitioner;
(2) Statute or rule to which petition relates;
(3) Concise statement of the manner in which petitioner
is aggrieved by the rule or statute or its potential application to him; and
(4) A statement of whether an oral hearing is desired
and if so, the reason therefor.
History Note: Authority G.S. 150B‑17;
Eff. August 25, 1977;
Amended Eff. May 1, 1989; October 1, 1986; March 1, 1985.
21 NCAC 16N .0403 DISPOSITION OF REQUESTS
(a) When the Board deems it appropriate to issue a
declaratory ruling it shall issue such declaratory ruling as soon as
practicable but no longer than 60 days after receipt of the petition.
(b) A declaratory ruling proceeding may consist of written
submissions or other procedures as may be appropriate in the circumstances of
the particular request.
(c) Whenever the Board believes for good cause that the
issuance of a declaratory ruling is undesirable, the Board may refuse to issue
such ruling. When good cause is deemed to exist, the Board will notify the
petitioner of its decision in writing, stating the reasons for the denial of
the declaratory ruling.
(d) For purposes of Paragraph (c) of this Rule, the Board
will ordinarily refuse to issue a declaratory ruling:
(1) Unless the petitioner shows that the
circumstances are so changed since the adoption of the rule that such a ruling
would be warranted;
(2) Unless the petitioner shows that the agency
did not give to the factors specified in the request for a declaratory ruling a
full consideration at the time the rule was adopted;
(3) Where there has been a previous
determination of a contested case involving similar factual questions; and
(4) Where the subject matter of the request is
involved in pending litigation in any state or federal court in North Carolina.
History Note: Authority G.S. 150B‑17;
Eff. August 25, 1977;
Amended Eff. May 1, 1989; October 1, 1986.
21 NCAC 16N .0404 RECORD OF DECISION
A record of all declaratory ruling proceedings will be
maintained in the Board's office for as long as the ruling is in effect and for
five years thereafter. This record will contain: the request, all written submissions
filed on the request, whether filed by the petitioner or any other person, and
a record or summary of all the oral presentations, if any. Records of
declaratory ruling proceedings will be available for public inspection during
the Board's regular office hours.
History Note: Authority G.S. 150B‑17;
Eff. August 25, 1977;
Amended Eff. May 1, 1989.
21 NCAC 16N .0405 DEFINITION
History Note: Authority G.S. 90‑28; 150B‑17;
90‑48; 90‑223(b); 150B‑60(4); 150B‑12(e);
Eff. August 25, 1977;
Repealed Eff. May 1, 1989.
SECTION .0500 ‑ ADMINISTRATIVE HEARING PROCEDURES
21 NCAC 16N .0501 RIGHT TO HEARING
When the Board acts, or proposes to act, other than in
rulemaking or declaratory ruling proceedings, in a manner which will affect the
rights, duties, or privileges of a person, such person has a right to an
administrative hearing. When the Board proposes to act in such a manner, it
shall give such person notice of his right to a hearing by mailing by certified
mail to him at his last known address a notice of the proposed action and a
notice of a right to a hearing.
History Note: Authority G.S. 150B‑38(h);
Eff. August 25, 1977;
Amended Eff. May 1, 1989; November 20, 1980.
21 NCAC 16N .0502 REQUEST FOR HEARING
(a) Any individual who believes his or her rights, duties, or
privileges have been affected by the Board's administrative action, but who has
not received a notice of a right to an administrative hearing, may file a
request for hearing.
(b) The individual shall submit a request to the Board's
office, containing the following information:
(1) Name and address of the petitioner;
(2) A concise statement of the action taken by
the Board which is challenged;
(3) A concise statement of the way in which
petitioner has been aggrieved; and
(4) A clear and specific statement of request
for a hearing.
History Note: Authority G.S. 150B-38;
Eff. August 25, 1977;
Amended Eff. April 1, 2015; May 1, 1989; March 1, 1985;
November 20, 1980.
21 NCAC 16N .0503 GRANTING OR DENYING HEARING REQUEST
(a) The Board will decide whether to grant a request for a
hearing.
(b) The denial of request for a hearing will be issued
immediately upon decision, and in no case later than 60 days after the submission
of the request. Such denial shall contain a statement of the reasons leading
the Board to deny the request.
(c) Approval of a request for a hearing will be signified
by issuing a notice as required by G.S. 150B‑38(b) and explained in Rule
.0504 of this Section.
History Note: Authority G.S. 90‑28; 150B‑38;
Eff. August 25, 1977;
Amended Eff. May 1, 1989; April 1, 1988; October 1, 1986;
November 20, 1980.
21 NCAC 16N .0504 NOTICE OF HEARING
(a) The Board shall give the party or parties in a
contested case a notice of hearing not less than 15 days before the hearing.
Said notice shall contain the following information, in addition to the items
specified in G.S. 150B‑38(b):
(1) The name, position, address and telephone
number of a person at the office of the Board to contact for further
information or discussion; and
(2) A statement explaining that the Respondent
may be represented by counsel, testify, offer evidence, and cross examine
adverse witnesses at the hearing.
(b) If the Board determines that the public health, safety,
or welfare requires such action, it may issue an order summarily suspending a
license pursuant to G.S. 150B-3. Upon service of the order, the licensee to
whom the order is directed shall immediately cease practicing in North
Carolina. The Board shall promptly give notice of hearing pursuant to G.S.
150B‑38 following service of the order. The suspension shall remain in
effect pending issuance by the Board of a final agency decision pursuant to
G.S. 150B‑42.
History Note: Authority G.S. 150B-3; 150B-38;
Eff. August 25, 1977;
Amended Eff. April 1, 2015; May 1, 1989; April 1, 1988;
October 1, 1986; November 20, 1980.
21 NCAC 16N .0505 WHO SHALL HEAR CONTESTED CASES
All administrative hearings shall be conducted by a panel
consisting of a majority of Board members eligible to vote on the issue, or an
administrative law judge designated to hear the case pursuant to G.S. 150B‑40(e).
History Note: Authority G.S. 150B-38; 150B-40;
Eff. August 25, 1997;
Amended Eff. April 1, 2015; March 1, 1988; October 1,
1986; November 20, 1980.
21 NCAC 16N .0506 PETITION FOR INTERVENTION
(a) A person desiring to intervene in a contested case
shall file a written petition with the Board's office. The request shall bear
the notation: PETITION TO INTERVENE IN THE CASE OF (NAME OF CASE).
(b) The petition shall include the following information:
(1) the name and address of petitioner;
(2) the business or occupation of petitioner;
(3) the name and citation of the hearing in which
petitioner is seeking to intervene;
(4) the grounds for intervention or a statement
that no grounds exist;
(5) any claim or defense in respect to which
intervention is sought; and
(6) a summary of the arguments or evidence
petitioner seeks to present.
(c) The person desiring to intervene shall serve copies of
the petition on all parties to the case.
(d) If the Board determines to allow intervention, it shall
send written notice to the petitioner and all parties. In cases of
discretionary intervention, such notification shall include a statement of any
limitations of time, subject matter, evidence or whatever else the Board deems
necessary that are imposed on the intervenor.
(e) If the Board decides to deny intervention it shall send
written notice to the petitioner and all parties, stating the reasons for the
denial.
History Note: Authority G.S. 150B-38;
Eff. August 25, 1977;
Amended Eff. April 1, 2015; May 1, 1989; March 1, 1985;
November 20, 1980.
21 NCAC 16N .0507 TYPES OF INTERVENTION
(a) Intervention of Right. A petition to intervene of
right, as provided in the North Carolina Rules of Civil Procedure, Rule 24,
will be granted if the petitioner meets the criteria of that rule and his
petition is timely.
(b) Permissive Intervention. A petition to intervene
permissively, as provided in the North Carolina Rules of Civil Procedure, Rule
24, will be granted if the petitioner meets the criteria of that rule and the
Board determines that:
(1) There is sufficient legal or factual
similarity between the petitioner's claimed rights, privileges, or duties and
those of the parties to the hearings; and
(2) Permitting intervention by the petitioner
as a party would aid the purpose of the hearing.
(c) Discretionary Intervention. The Board may allow
discretionary intervention, with whatever limits and restrictions are deemed
appropriate. Upon the filing of a timely petition, discretionary intervention
will be deemed advisable if:
(1) The information petitioner desires to
present is relevant, not repetitious and cumulative; and
(2) The petitioner would lend added impact to
the arguments of the parties.
History Note: Legislative Objection Lodged Eff.
February 19, 1980;
Legislative Objection Removed Eff. March 19, 1981;
Authority G.S. 150B‑38;
Eff. August 25, 1977;
Amended Eff. May 1, 1989; April 2, 1981; November 20,
1980.
21 NCAC 16N .0508 DISQUALIFICATION OF BOARD MEMBERS
(a) Self Disqualification. If a Board member determines
that personal bias or other factors render that member unable to hear a contested
case and perform all duties in an impartial manner, that Board member shall
voluntarily decline to participate in the hearing or decision.
(b) Petition for Disqualification. If any party in a
contested case believes that a Board member is personally biased or otherwise
unable to hear a contested case and perform all duties in an impartial manner,
the party may file a sworn, notarized affidavit with the Board. The title of
such affidavit shall bear the notation: AFFIDAVIT OF DISQUALIFICATION OF BOARD
MEMBER IN THE CASE OF (NAME OF CASE).
(c) Contents of Affidavit. The affidavit shall state all
facts the party deems to be relevant to the disqualification of the Board
member.
(d) Timeliness and Effect of Affidavit. An affidavit of
disqualification shall be considered timely if filed 10 days before
commencement of the hearing. Any other affidavit shall be considered timely
provided it is filed at the first opportunity after the party becomes aware of
facts which give rise to a reasonable belief that a Board member may be
disqualified under this Rule. When a petition for disqualification is filed
less than 10 days before or during the course of a hearing, the hearing shall
continue with the challenged Board member sitting. The petitioner shall have
the opportunity to present evidence supporting his or her petition, and the
petition and any evidence presented at the hearing shall be made a part of the
record. The Board, before rendering its decision, shall decide whether the
evidence justifies disqualification. In the event of disqualification, the
disqualified member shall not participate in further deliberation or decision
of the case.
(e) Procedure for Determining Disqualification:
(1) The Board shall appoint a Board member to investigate the allegations of the
affidavit.
(2) The investigator shall report to the Board the findings of the investigation.
(3) The Board shall decide whether to
disqualify the challenged individual.
(4) The person whose disqualification is to be
determined shall not participate in
the decision but may be called upon to furnish information to the other members
of the Board.
(5) When a Board member is disqualified, the
hearing shall continue with the
remaining members sitting, provided that the remaining members still constitute
a majority of the Board who are eligible to vote.
(6) If a majority of the members of the Board
who are eligible to vote are disqualified pursuant to this Rule, the Board
shall petition the Office of Administrative Hearings to appoint an administrative
law judge to hear the contested case pursuant to G.S. 150B‑40(e).
History Note: Authority G.S. 150B-38; 150B-40;
Eff. August 25, 1977;
Amended Eff. April 1, 2015; May 1, 1989; October 1, 1986;
November 20, 1980.
SECTION .0600 ‑ ADMINISTRATIVE HEARINGS: DECISIONS: RELATED
RIGHTS AND PROCEDURES
21 NCAC 16N .0601 FAILURE TO APPEAR
History Note: Authority G.S. 90‑28; 90‑48;
90‑223(b); 150B‑25(a); 150B‑60(4);
Eff. August 25, 1977;
Amended Eff. November 20, 1980;
Repealed Eff. April 1, 1988.
21 NCAC 16N .0602 SIMPLIFICATION OF ISSUES
The parties to a contested case, specifically including the
Board, may agree in advance to simplify the hearing by decreasing the number of
the issues to be contested at the hearing, accepting the validity of certain
proposed evidence, accepting the findings in some other case which relates to
the case at hand or agreeing to such other matters as may expedite the hearing.
History Note: Authority G.S. 150B‑38; 150B‑40;
Eff. August 25, 1977;
Amended Eff. May 1, 1989; November 20, 1980.
21 NCAC 16N .0603 SUBPOENAS
(a) A request for 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:
(1) be made
in writing to the Board;
(2) identify
any documents sought with specificity; and
(3) include
the full name and home or business address of all persons to be subpoenaed; and
(4) if
known, the date, time, and place for responding to the subpoena.
(b) The Board shall issue the requested subpoenas within
three days of the receipt of the request.
(c) Subpoenas shall contain:
(1) the
caption of the case;
(2) the
name and address of the person subpoenaed;
(3) the
date, hour and location of the hearing in which the witness is commanded to
appear;
(4) a
particularized description of the books, papers, records, or objects the
witness is directed to bring with him to the hearing, if any;
(5) the
identity of the party on whose application the subpoena was issued; and
(6) a
return of service form.
(d) The "return of service" form, as filled out,
shows the name and capacity of the person serving the subpoena, the date the
subpoena was delivered to the person directed to make service, the date service
was made, the person on whom service was made, the manner in which service was
made, and the signature of the person making service.
(e) Subpoenas shall be served as permitted by Rule 45 of
the North Carolina Rules of Civil Procedure, as set forth in G.S. 1A-1.
(f) Any person receiving a subpoena from the Board may
object thereto by filing a written objection to the subpoena with the Board's
office. Such objection shall include a statement of all reasons why the
subpoena should be revoked or modified. These reasons may include any basis
sufficient in law for holding the subpoena invalid, such as that the evidence
is privileged, that appearance or production would be so disruptive as to be
unreasonable in light of the significance of the evidence sought, or other
undue hardship.
(g) Any objection to a subpoena shall be served on the
party who requested the subpoena simultaneously with the filing of the
objection with the Board.
(h) The party who requested the subpoena, at such time as
may be granted by the Board, may file a written response to the objection. The
written response shall be served by the requesting party on the objecting
witness simultaneously with the filing of the response with the Board.
(i) After receipt of the objection and response thereto, if
any, the Board shall issue a notice to the party who requested the subpoena and
the party challenging the subpoena, and may notify any other party or parties
of a hearing, at which evidence and testimony may be presented, limited to the
narrow questions raised by the objection and response.
(j) The majority of the Board members hearing the contested
case shall rule on the challenge and issue a written decision to all parties
and made a part of the record.
History Note: Authority G.S. 90-28; 90-48; 90-223(b);
150B-39; 150B-40
Eff. August 25, 1977;
Legislative Objection Lodged Eff. November 20, 1980;
Legislative Objection Removed Eff. March 19, 1981;
Amended Eff. April 1, 2015; May 1, 1989; March 1, 1988;
October 1, 1986; March 1, 1985.
21 NCAC 16N .0604 FINAL DECISION
The Board will issue the final decision in all contested
cases. This decision is the prerequisite "final agency decision" for
the right to judicial review.
History Note: Authority G.S. 90‑48; 90‑223(b);
150B‑43;
Eff. August 25, 1977;
Amended Eff. May 1, 1989.
21 NCAC 16N .0605 PROPOSALS FOR DECISIONS
(a) When an administrative law judge conducts a hearing
pursuant to G.S. 150B‑40(e), a "proposal for decision" shall be
rendered. Any party may file written exceptions to this "proposal for
decision" and submit their own proposed findings of fact and conclusions
of law. Exceptions and alternative proposals must be received within ten days
after the party has received the "proposal for decision" as drafted
by the administrative law judge.
(b) Any exceptions to the procedure during the hearing, the
handling of the hearing by the administrative law judge, rulings on evidence,
or any other matter must be written and refer specifically to pages of the
record or otherwise precisely identify the occurrence to which the exception is
taken. Exceptions must be filed with the Board within ten days of the receipt
of the proposal for decision. The written exceptions must bear the notation:
EXCEPTIONS TO THE PROCEEDINGS IN THE CASE (NAME OF CASE).
(c) Any party may present oral argument to the Board upon
request. The request must be included with the written exceptions.
(d) Upon receipt of request for further oral argument,
notice will be issued promptly to all parties designating the time and place
for such oral argument.
(e) Giving due consideration to the proposal for decision
and the exceptions and arguments of the parties, the Board may adopt the
proposal for decision or may modify it as the Board deems necessary. The
decision rendered will be a part of the record and a copy thereof shall be
given to all parties. The Board decision becomes the "final agency
decision" for the right to judicial review. Said decision will be
rendered by the Board within 60 days of the next regularly scheduled meeting
following the oral arguments, if any. If there are no oral arguments
presented, the decision will be rendered within 60 days of the next regularly
scheduled Board meeting following receipt of the written exceptions.
History Note: Authority G.S. 150B‑38; 150B‑40;
Eff. August 25, 1977;
Amended Eff. May 1, 1989; March 1, 1988; October 1, 1986;
November 20, 1980.
21 NCAC 16N .0606 FAILURE TO APPEAR
Should a party fail to appear at a scheduled hearing, the
Board, or the designated administrative law judge, may proceed with the hearing
and make its decision in the absence of the party, provided that the party has been
given proper notice. The Board or the administrative law judge may order a
continuance in order to give the party another opportunity to appear.
History Note: Authority G.S. 90‑28; 90‑48;
90‑223(b); 150B‑25(a); 150B‑60(4);
Eff. May 1, 1989.
