# Title 28 — Judicial Procedure, Civil

## Chapter 28-32 — Administrative Agencies Practice Act

### § 28-32-01. Definitions.

In this chapter, unless the context or subject matter otherwise provides:
1. "Adjudicative proceeding" means an administrative matter resulting in an agency
issuing an order after an opportunity for hearing is provided or required. An
adjudicative proceeding includes administrative matters involving a hearing on a
complaint against a specific-named respondent; a hearing on an application seeking a
right, privilege, or an authorization from an agency, such as a ratemaking or licensing
hearing; or a hearing on an appeal to an agency. An adjudicative proceeding includes
reconsideration, rehearing, or reopening. Once an adjudicative proceeding has begun,
the adjudicative proceeding includes any informal disposition of the administrative
matter under section 28-32-22 or another specific statute or rule, unless the matter has
been specifically converted to another type of proceeding under section 28-32-22. An
adjudicative proceeding does not include a decision or order to file or not to file a
complaint, or to initiate an investigation, an adjudicative proceeding, or any other
proceeding before the agency, or another agency, or a court. An adjudicative
proceeding does not include a decision or order to issue, reconsider, or reopen an
order that precedes an opportunity for hearing or that under another section of this
code is not subject to review in an adjudicative proceeding. An adjudicative proceeding
does not include rulemaking under this chapter.
2. "Administrative agency" or "agency" means each board, bureau, commission,
department, or other administrative unit of the executive branch of state government,
including one or more officers, employees, or other persons directly or indirectly
purporting to act on behalf or under authority of the agency. An administrative unit
located within or subordinate to an administrative agency must be treated as part of
that agency to the extent it purports to exercise authority subject to this chapter. The
term administrative agency does not include:
a. The office of management and budget except with respect to rules relating to
conduct on the capitol grounds and in buildings located on the capitol grounds
under section 54-21-18, rules relating to the classified service as authorized
under section 54-44.3-07, and rules relating to state purchasing practices as
required under section 54-44.4-04.
b. The adjutant general with respect to the department of emergency services.
c. The council on the arts.
d. The state auditor.
e. The department of commerce with respect to the division of economic
development and finance.
f. The dairy promotion commission.
g. The education factfinding commission.
h. The kindergarten through grade twelve education coordination council.
i. The board of equalization.
j. The board of higher education.
k. The Indian affairs commission.
l. The industrial commission with respect to the activities of the Bank of North
Dakota, North Dakota housing finance agency, public finance authority, North
Dakota mill and elevator association, North Dakota farm finance agency, the
North Dakota transmission authority, and the North Dakota pipeline authority.
m. The department of corrections and rehabilitation except with respect to the
activities of the division of adult services under chapter 54-23.4.
n. The pardon advisory board.
o. The parks and recreation department.
p. The parole board.
q. The state fair association.

r. The attorney general with respect to activities of the state toxicologist and the
state crime laboratory.
s. The administrative committee on veterans' affairs except with respect to rules
relating to the supervision and government of the veterans' home and the
implementation of programs or services provided by the veterans' home.
t. The industrial commission with respect to the lignite research fund except as
required under section 57-61-01.5.
u. The attorney general with respect to guidelines adopted under section 12.1-32-15
for the risk assessment of sexual offenders, the risk level review process, and
public disclosure of information under section 12.1-32-15.
v. The commission on legal counsel for indigents.
w. The attorney general with respect to twenty-four seven sobriety program
guidelines and program fees.
x. The industrial commission with respect to approving or setting water rates under
chapter 61-40.
y. The board of university and school lands with respect to the adjudicative
proceeding requirements and procedures under sections 28-32-21 through
28-32-51.
3. "Agency head" means an individual or body of individuals in whom the ultimate legal
authority of the agency is vested by law.
4. "Commission" means the North Dakota ethics commission established by article XIV of
the Constitution of North Dakota.
5. "Complainant" means any person who files a complaint before an administrative
agency pursuant to section 28-32-21 and any administrative agency that, when
authorized by law, files such a complaint before such agency or any other agency.
6. "Hearing officer" means any agency head or one or more members of the agency
head when presiding in an administrative proceeding, or, unless prohibited by law, one
or more other persons designated by the agency head to preside in an administrative
proceeding, an administrative law judge from the office of administrative hearings, or
any other person duly assigned, appointed, or designated to preside in an
administrative proceeding pursuant to statute or rule.
7. "License" means a franchise, permit, certification, approval, registration, charter, or
similar form of authorization required by law.
8. "Order" means any agency action of particular applicability which determines the legal
rights, duties, privileges, immunities, or other legal interests of one or more specific
persons. The term does not include an executive order issued by the governor.
9. "Party" means each person named or admitted as a party or properly seeking and
entitled as of right to be admitted as a party. An administrative agency may be a party.
In a hearing for the suspension, revocation, or disqualification of an operator's license
under title 39, the term may include each city and each county in which the alleged
conduct occurred, but the city or county may not appeal the decision of the hearing
officer.
10. "Person" includes an individual, association, partnership, corporation, limited liability
company, the commission, a state governmental agency or governmental subdivision,
or an agency of such governmental subdivision.
11. "Relevant evidence" means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the administrative action more
probable or less probable than it would be without the evidence.
12. "Rule" means the whole or a part of an agency or commission statement of general
applicability which implements or prescribes law or policy or the organization,
procedure, or practice requirements of the agency or commission. The term includes
the adoption of new rules and the amendment, repeal, or suspension of an existing
rule. The term does not include:
a. A rule concerning only the internal management of an agency or the commission
which does not directly or substantially affect the substantive or procedural rights
or duties of any segment of the public.

b. A rule that sets forth criteria or guidelines to be used by the staff of an agency or
the commission in the performance of audits, investigations, inspections, and
settling commercial disputes or negotiating commercial arrangements, or in the
defense, prosecution, or settlement of cases, if the disclosure of the rule would:
(1) Enable law violators to avoid detection;
(2) Facilitate disregard of requirements imposed by law; or
(3) Give a clearly improper advantage to persons who are in an adverse
position to the state.
c. A rule establishing specific prices to be charged for particular goods or services
sold by an agency.
d. A rule concerning only the physical servicing, maintenance, or care of
agency-owned, agency-operated, commission-owned, or commission-operated
facilities or property.
e. A rule relating only to the use of a particular facility or property owned, operated,
or maintained by the state or any of its subdivisions, if the substance of the rule is
adequately indicated by means of signs or signals to persons who use the facility
or property.
f. A rule concerning only inmates of a correctional or detention facility, students
enrolled in an educational institution, or patients admitted to a hospital, if adopted
by that facility, institution, or hospital.
g. A form whose contents or substantive requirements are prescribed by rule or
statute or are instructions for the execution or use of the form.
h. An agency or commission budget.
i. An opinion of the attorney general.
j. A rule adopted by an agency selection committee under section 54-44.7-03.
k. Any material, including a guideline, interpretive statement, statement of general
policy, manual, brochure, or pamphlet, which is explanatory and not intended to
have the force and effect of law.
### § 28-32-02. Rulemaking power of agency - Organizational rule.

1. The authority of an administrative agency to adopt administrative rules is authority
delegated by the legislative assembly. As part of that delegation, the legislative
assembly reserves to itself the authority to determine when and if rules of
administrative agencies are effective. Every administrative agency may adopt, amend,
or repeal reasonable rules in conformity with this chapter and any statute administered
or enforced by the agency. An administrative agency may not adopt a rule that
prescribes a criminal penalty unless authorized by another chapter.
2. In addition to other rulemaking requirements imposed by law, each agency may
include in its rules a description of that portion of its organization and functions subject
to this chapter and may include a statement of the general course and method of its
operations and how the public may obtain information or make submissions or
requests.
### § 28-32-03. Emergency rules.

1. If the agency, with the approval of the governor, or the commission finds that
emergency rulemaking is necessary, the commission or agency may declare the
proposed rule to be an interim final rule effective on a date no earlier than the date of
filing with the legislative council of the notice required by section 28-32-10.
2. A proposed rule may be given effect on an emergency basis under this section if any
of the following grounds exists regarding that rule:
a. Imminent peril threatens public health, safety, or welfare, which would be abated
by emergency effectiveness;
b. A delay in the effective date of the rule is likely to cause a loss of funds
appropriated to support a duty imposed by law upon the commission or agency;
c. Emergency effectiveness is reasonably necessary to avoid a delay in
implementing an appropriations measure; or

d. Emergency effectiveness is necessary to meet a mandate of federal law.
3. A final rule adopted after consideration of all written and oral submissions respecting
the interim final rule, which is substantially similar to the interim final rule, is effective
as of the declared effective date of the interim final rule.
4. The commission's or agency's finding, and a brief statement of the commission's or
agency's reasons for the finding, must be filed with the legislative council with the final
adopted emergency rule.
5. The commission or agency shall attempt to make interim final rules known to persons
who the commission or agency can reasonably be expected to believe may have a
substantial interest in them. As used in this subsection, "substantial interest" means an
interest in the effect of the rules which surpasses the common interest of all citizens.
The commission or an agency adopting emergency rules shall comply with the notice
requirements of section 28-32-10 which relate to emergency rules and shall provide
notice to the chairman of the administrative rules committee of the emergency status,
declared effective date, and grounds for emergency status of the rules under
subsection 2. When notice of emergency rule adoption is received, the legislative
council shall publish the notice and emergency rules on its website.
6. An interim final rule is ineffective one hundred eighty days after its declared effective
date unless first adopted as a final rule.
### § 28-32-04. Repeal or waiver of rules from federal guidelines.

1. An agency shall repeal or amend any existing rule that was adopted from federal
guidelines and which is not relevant to state regulatory programs.
2. An agency may not adopt rules from federal guidelines which are not relevant to state
regulatory programs when developing or modifying programs.
3. An agency shall seek a waiver from the appropriate United States agency when the
United States agency is evaluating current programs or delegating or modifying
programs to relieve the agency from complying with or adopting rules that are not
relevant to state regulatory programs.
### § 28-32-05. Adoption by reference of certain rules.

1. When adopting rules, an agency shall adopt by reference any applicable existing
permit or procedural rules that may be adapted for use in a new or existing program.
2. An agency shall seek authorization from the appropriate United States agency to
adopt by reference applicable existing permit or procedural rules that may be adapted
for use in a new or existing program when the United States agency is delegating or
modifying a program.
### § 28-32-06. Force and effect of rules.

Upon becoming effective, rules have the force and effect of law until amended or repealed
by the agency or commission, declared invalid by a final court decision, suspended or found to
be void by the administrative rules committee, or determined repealed by the legislative council
because the authority for adoption of the rules is repealed or transferred to another agency.
### § 28-32-07. Deadline for rules to implement statutory change.

Any rule change, including a creation, amendment, or repeal, made to implement a
statutory change must be adopted and filed with the legislative council within nine months of the
effective date of the statutory change. If an agency or the commission needs additional time for
the rule change, a request for additional time must be made to the legislative council. The
legislative council may extend the time within which the agency or commission must adopt the
rule change if the request by the agency or commission is supported by evidence that the
agency or commission needs more time through no deliberate fault of its own.
### § 28-32-08. Regulatory analysis.

1. An agency or the commission shall issue a regulatory analysis of a proposed rule if:

a. Within twenty days after the last published notice date of a proposed rule hearing,
a written request for the analysis is filed by the governor or a member of the
legislative assembly; or
b. The proposed rule is expected to have an impact on the regulated community in
excess of fifty thousand dollars. The analysis under this subdivision must be
available on or before the first date of public notice as provided for in section
28-32-10.
2. The regulatory analysis must contain:
a. A description of the classes of persons who probably will be affected by the
proposed rule, including classes that will bear the costs of the proposed rule and
classes that will benefit from the proposed rule;
b. A description of the probable impact, including economic impact, of the proposed
rule;
c. The probable costs to the agency or commission of the implementation and
enforcement of the proposed rule and any anticipated effect on state revenues;
and
d. A description of any alternative methods for achieving the purpose of the
proposed rule that were seriously considered by the agency or commission and
the reasons why the methods were rejected in favor of the proposed rule.
3. Each regulatory analysis must include quantification of the data to the extent
practicable.
4. The agency or commission shall mail or deliver a copy of the regulatory analysis to
any person who requests a copy of the regulatory analysis. The agency or commission
may charge a fee for a copy of the regulatory analysis as allowed under section
44-04-18.
5. If required under subsection 1, the preparation and issuance of a regulatory analysis is
a mandatory duty of the agency or commission proposing a rule. Errors in a regulatory
analysis, including erroneous determinations concerning the impact of the proposed
rule on the regulated community, are not a ground upon which the invalidity of a rule
may be asserted or declared.
### § 28-32-08.1. Rules affecting small entities - Analysis - Economic impact statements -

Judicial review.
1. As used in this section:
a. "Small business" means a business entity, including its affiliates, which:
(1) Is independently owned and operated; and
(2) Employs fewer than twenty-five full-time employees or has gross annual
sales of less than two million five hundred thousand dollars;
b. "Small entity" includes small business, small organization, and small political
subdivision;
c. "Small organization" means any not-for-profit enterprise that is independently
owned and operated and is not dominant in its field; and
d. "Small political subdivision" means a political subdivision with a population of less
than five thousand.
2. Before adoption of any proposed rule, the adopting agency shall prepare a regulatory
analysis in which, consistent with public health, safety, and welfare, the agency
considers utilizing regulatory methods that will accomplish the objectives of applicable
statutes while minimizing adverse impact on small entities. The agency shall consider
each of the following methods of reducing impact of the proposed rule on small
entities:
a. Establishment of less stringent compliance or reporting requirements for small
entities;
b. Establishment of less stringent schedules or deadlines for compliance or
reporting requirements for small entities;
c. Consolidation or simplification of compliance or reporting requirements for small
entities;

d. Establishment of performance standards for small entities to replace design or
operational standards required in the proposed rule; and
e. Exemption of small entities from all or any part of the requirements contained in
the proposed rule.
3. Before adoption of any proposed rule that may have an adverse impact on small
entities, the adopting agency shall prepare an economic impact statement that
includes consideration of:
a. The small entities subject to the proposed rule;
b. The administrative and other costs required for compliance with the proposed
rule;
c. The probable cost and benefit to private persons and consumers who are
affected by the proposed rule;
d. The probable effect of the proposed rule on state revenues; and
e. Any less intrusive or less costly alternative methods of achieving the purpose of
the proposed rule.
4. For any rule subject to this section, a small entity that is adversely affected or
aggrieved by final agency action is entitled to judicial review of agency compliance
with the requirements of this section. A small entity seeking judicial review under this
section must file a petition for judicial review within one year from the date of final
agency action.
5. This section does not apply to the ethics commission, any agency that is an
occupational or professional licensing authority, and the following agencies or divisions
of agencies:
a. Council on the arts.
b. Beef commission.
c. Dairy promotion commission.
d. Dry bean council.
e. Highway patrol troopers' retirement board.
f. Indian affairs commission.
g. Board for Indian scholarships.
h. State personnel board.
i. Potato council.
j. Board of public school education.
k. Real estate trust account committee.
l. Seed commission.
m. Soil conservation committee.
n. Oilseed council.
o. Wheat commission.
p. State seed arbitration board.
q. North Dakota lottery.
6. This section does not apply to rules mandated by federal law.
7. The adopting agency shall provide the administrative rules committee copies of any
regulatory analysis or economic impact statement, or both, prepared under this section
when the committee is considering the associated rules.
### § 28-32-08.2. Fiscal notes for rules.

When an agency or the commission presents rules for administrative rules committee
consideration, the agency or commission shall provide a fiscal note or a statement in its
testimony that the rules have no fiscal effect. A fiscal note must reflect the effect of the rules
changes on state revenues and expenditures, including any effect on funds controlled by the
agency or commission.
### § 28-32-09. Takings assessment.

1. An agency or the commission shall prepare a written assessment of the constitutional
takings implications of a proposed rule that may limit the use of private real property.
The assessment must:

a. Assess the likelihood that the proposed rule may result in a taking or regulatory
taking.
b. Clearly and specifically identify the purpose of the proposed rule.
c. Explain why the proposed rule is necessary to substantially advance that purpose
and why no alternative action is available that would achieve the agency's or
commission's goals while reducing the impact on private property owners.
d. Estimate the potential cost to the government if a court determines that the
proposed rule constitutes a taking or regulatory taking.
e. Identify the source of payment within the agency's or commission's budget for
any compensation that may be ordered.
f. Certify that the benefits of the proposed rule exceed the estimated compensation
costs.
2. Any private landowner who is or may be affected by a rule that limits the use of the
landowner's private real property may request in writing that the agency or commission
reconsider the application or need for the rule. Within thirty days of receiving the
request, the agency or commission shall consider the request and shall in writing
inform the landowner whether the agency or commission intends to keep the rule in
place, modify application of the rule, or repeal the rule.
3. In an analysis of the takings implications of a proposed rule, "taking" means the taking
of private real property, as defined in section 47-01-03, by government action which
requires compensation to the owner of that property by the fifth or fourteenth
amendment to the Constitution of the United States or section 16 of article I of the
Constitution of North Dakota. "Regulatory taking" means a taking of real property
through the exercise of the police and regulatory powers of the state which reduces
the value of the real property by more than fifty percent. However, the exercise of a
police or regulatory power does not effect a taking if it substantially advances
legitimate state interests, does not deny an owner economically viable use of the
owner's land, or is in accordance with applicable state or federal law.
### § 28-32-10. Notice of rulemaking - Hearing date.

1. An agency or the commission shall prepare a full notice and an abbreviated notice of
rulemaking.
a. The full notice of the proposed adoption, amendment, or repeal of a rule must
include a short, specific explanation of the proposed rule and the purpose of the
proposed rule, identify the emergency status and declared effective date of any
emergency rules, include a determination of whether the proposed rulemaking is
expected to have an impact on the regulated community in excess of fifty
thousand dollars, identify at least one location where interested persons may
review the text of the proposed rule, provide the address to which written
comments concerning the proposed rule may be sent, provide the deadline for
submission of written comments, provide a telephone number and post-office or
electronic mail address at which a copy of the rules and regulatory analysis may
be requested, and, in the case of a substantive rule, provide the time and place
set for each oral hearing. An agency's full notice must include a statement of the
bill number and general subject matter of any legislation, enacted during the most
recent session of the legislative assembly, which is being implemented by the
proposed rule. The commission's full notice must include a statement of the
provision of the Constitution of North Dakota or the bill number and general
subject matter of any legislation that is being implemented by the proposed rule.
The full notice must be filed with the legislative council, accompanied by a copy of
the proposed rules.
b. The agency or commission shall request publication of an abbreviated newspaper
publication notice at least once in each official county newspaper published in this
state, which must:
(1) Be in a display-type format with a minimum width of one column of
approximately two inches [5.08 centimeters] and a minimum depth of

approximately three inches [7.62 centimeters] and with a headline
describing the general topic of the proposed rules.
(2) Include the telephone number or address to use to obtain a copy of the
proposed rules, identification of the emergency status and declared effective
date of any emergency rules, the address to use and the deadline to submit
written comments, the location, date, and time of the public hearing on the
rules, and a short description of the general subject matter of the proposed
rules submission. The notice also may include a quick response code
providing access to the full notice or additional information related to the
proposed rules at the discretion of the agency or commission.
2. The agency or commission shall mail or deliver by electronic mail a copy of the full
notice and proposed rule to each member of the legislative assembly whose name
appeared as a sponsor or cosponsor of legislation, enacted during the most recent
session of the legislative assembly, which is being implemented by the proposed rule
and to each person who has made a timely request to the agency or commission for a
copy of the notice and proposed rule. The agency or commission may mail or
otherwise provide a copy of the full notice to any person who is likely to be an
interested person. The agency or commission may charge persons who are not
members of the legislative assembly fees for copies of the proposed rule as allowed
under section 44-04-18.
3. In addition to the other notice requirements of this subsection, the superintendent of
public instruction shall provide notice of any proposed rulemaking by the
superintendent of public instruction to each association with statewide membership
whose primary focus is elementary and secondary education issues which has
requested to receive notice from the superintendent under this subsection and to the
superintendent of each public school district in this state, or the president of the school
board for school districts that have no superintendent, at least twenty days before the
date of the hearing described in the notice. Notice provided by the superintendent of
public instruction under this section must be by first-class mail. However, upon request
of a group or person entitled to notice under this section, the superintendent of public
instruction shall provide the group or person notice by electronic mail.
4. The legislative council shall establish standard procedures for the commission and all
agencies to follow in complying with the provisions of this section and a procedure to
allow any person to request and receive mailed copies of all filings made by agencies
and the commission pursuant to this section. The legislative council may charge an
annual fee as established by the administrative rules committee for providing copies of
the filings.
5. At least twenty days must elapse between the date of the publication of the notice and
the date of the hearing. Within fifteen business days after receipt of a notice under this
section, a copy of the notice must be mailed by the legislative council to any person
who has paid the annual fee established under subsection 4.
### § 28-32-11. Conduct of hearings - Notice of administrative rules committee

consideration - Consideration and written record of comments.
The agency or commission shall adopt a procedure whereby all interested persons are
afforded reasonable opportunity to submit data, views, or arguments, orally or in writing,
concerning the proposed rule, including data respecting the impact of the proposed rule. The
agency or commission shall adopt a procedure to allow interested parties to request and receive
notice from the agency or commission of the date and place the rule will be reviewed by the
administrative rules committee. In case of substantive rules, the agency or commission shall
conduct an oral hearing. The agency or commission shall consider fully all written and oral
submissions respecting a proposed rule prior to the adoption, amendment, or repeal of any rule
not of an emergency nature. The agency or commission shall make a written record of its
consideration of all written and oral submissions contained in the rulemaking record respecting
a proposed rule.

### § 28-32-12. Comment period.

The agency or commission shall allow, after the conclusion of any rulemaking hearing, a
comment period of at least ten days during which data, views, or arguments concerning the
proposed rulemaking will be received by the agency or commission and made a part of the
rulemaking record to be considered by the agency or commission.
### § 28-32-13. Substantial compliance with rulemaking procedure.

A rule is invalid unless adopted in substantial compliance with this chapter. However,
inadvertent failure to supply any person with a notice required by section 28-32-10 does not
invalidate a rule. Notwithstanding subsection 2 of section 28-32-42, an action to contest the
validity of a rule on the grounds of noncompliance with this chapter may not be commenced
more than two years after the effective date of the rule.
### § 28-32-14. Attorney general review of rules.

Every rule proposed by any administrative agency must be submitted to the attorney
general for an opinion as to its legality before final adoption, and the attorney general promptly
shall furnish each such opinion. The attorney general may not approve any rule as to legality
when the rule exceeds the statutory authority of the agency or is written in a manner that is not
concise or easily understandable or when the procedural requirements for adoption of the rule in
this chapter are not substantially met. The attorney general shall advise an agency of any
revision or rewording of a rule necessary to correct objections as to legality.
### § 28-32-15. Filing of rules for publication - Effective date of rules.

1. A copy of each rule adopted by an administrative agency or the commission, a copy of
each written comment and a written summary of each oral comment on the rule, and
the attorney general's opinion on the rule, if any, must be filed by the adopting agency
or commission with the legislative council for publication of the rule in the North Dakota
Administrative Code.
2. a. Nonemergency rules approved by the attorney general as to legality, adopted by
an administrative agency or the commission, filed with the legislative council, and
not voided or held for consideration by the administrative rules committee
become effective according to the following schedule:
(1) Rules filed with the legislative council from August second through
November first become effective on the immediately succeeding January
first.
(2) Rules filed with the legislative council from November second through
February first become effective on the immediately succeeding April first.
(3) Rules filed with the legislative council from February second through May
first become effective on the immediately succeeding July first.
(4) Rules filed with the legislative council from May second through August first
become effective on the immediately succeeding October first.
b. If publication is delayed for any reason other than action of the administrative
rules committee, nonemergency rules, unless otherwise provided, become
effective when publication would have occurred but for the delay.
c. A rule held for consideration by the administrative rules committee becomes
effective on the first effective date of rules under the schedule in subdivision a
following the meeting at which that rule is reconsidered by the committee.
### § 28-32-16. Petition for reconsideration of rule - Hearing.

Any person substantially interested in the effect of a rule adopted by an administrative
agency or the commission may petition the agency or commission for a reconsideration of the
rule or for an amendment or repeal of the rule. The petition must state clearly and concisely the
petitioners' alleged grounds for reconsideration or the proposed repeal or amendment of the
rule. The agency or commission may grant the petitioner a public hearing on the terms and
conditions the agency prescribes.

### § 28-32-17. Administrative rules committee objection.

If the legislative management's administrative rules committee objects to all or any portion
of a rule because the committee deems it to be unreasonable, arbitrary, capricious, or beyond
the authority delegated to the adopting agency, the committee may file that objection in certified
form with the legislative council. The filed objection must contain a concise statement of the
committee's reasons for its action.
1. The legislative council shall attach to each objection a certification of the time and date
of its filing and, as soon as possible, shall transmit a copy of the objection and the
certification to the agency adopting the rule in question. The legislative council also
shall maintain a permanent register of all committee objections.
2. The legislative council shall publish an objection filed pursuant to this section in the
next issue of the code supplement. In case of a filed committee objection to a rule
subject to the exceptions of the definition of rule in section 28-32-01, the agency shall
indicate the existence of that objection adjacent to the rule in any compilation
containing that rule.
3. Within fourteen days after the filing of a committee objection to a rule, the adopting
agency shall respond in writing to the committee. After receipt of the response, the
committee may withdraw or modify its objection.
4. After the filing of a committee objection, the burden of persuasion is upon the agency
in any action for judicial review or for enforcement of the rule to establish that the
whole or portion thereof objected to is within the procedural and substantive authority
delegated to the agency. If the agency fails to meet its burden of persuasion, the court
shall declare the whole or portion of the rule objected to invalid and judgment must be
rendered against the agency for court costs. These court costs must include a
reasonable attorney's fee and must be payable from the appropriation of the agency
which adopted the rule in question.
### § 28-32-18. Administrative rules committee may void rule - Grounds - Amendment by

agreement of agency and committee.
1. The legislative management's administrative rules committee may find that all or any
portion of a rule is void if that rule is initially considered by the committee not later than
the fifteenth day of the month before the date of the administrative code supplement in
which the rule change is scheduled to appear. The administrative rules committee may
find a rule or portion of a rule void if the committee makes the specific finding that, with
regard to that rule or portion of a rule, there is:
a. An absence of statutory authority.
b. An emergency relating to public health, safety, or welfare.
c. A failure to comply with express legislative intent or to substantially meet the
procedural requirements of this chapter for adoption of the rule.
d. A conflict with state law.
e. Arbitrariness and capriciousness.
f. A failure to make a written record of its consideration of written and oral
submissions respecting the rule under section 28-32-11.
2. The administrative rules committee may find a rule void at the meeting at which the
rule is initially considered by the committee or may hold consideration of that rule for
one subsequent meeting. If no representative of the agency appears before the
administrative rules committee when rules are scheduled for committee consideration,
those rules are held over for consideration at the next subsequent committee meeting.
Rules are not considered initially considered by the committee under this subsection
until a representative of the agency appears before the administrative rules committee
when the rules are scheduled for committee consideration. If no representative of the
agency appears before the administrative rules committee meeting to which rules are
held over for consideration, the rules are void if the rules were adopted as emergency
rules and for rules not adopted as emergency rules the administrative rules committee
may void the rules, allow the rules to become effective, or hold over consideration of
the rules to the next subsequent committee meeting. Within three business days after

the administrative rules committee finds that a rule is void, the legislative council shall
provide written notice of that finding and the committee's specific finding under
subdivisions a through f of subsection 1 to the adopting agency and to the chairman of
the legislative management. Within fourteen days after receipt of the notice, the
adopting agency may file a petition with the chairman of the legislative management
for review by the legislative management of the decision of the administrative rules
committee. If the adopting agency does not file a petition for review, the rule becomes
void on the fifteenth day after the notice from the legislative council to the adopting
agency. If within sixty days after receipt of the petition from the adopting agency the
legislative management has not disapproved by motion the finding of the
administrative rules committee, the rule is void.
3. An agency may amend or repeal a rule or create a related rule if, after consideration of
rules by the administrative rules committee, the agency and committee agree that the
rule amendment, repeal, or creation is necessary to address any of the considerations
under subsection 1. A rule amended, repealed, or created under this subsection is not
subject to the other requirements of this chapter relating to adoption of administrative
rules and may be published by the legislative council as amended, repealed, or
created. If requested by the agency or any interested party, a rule amended, repealed,
or created under this subsection must be reconsidered by the administrative rules
committee at a subsequent meeting at which public comment on the agreed rule
change must be allowed.
### § 28-32-18.1. Administrative rules committee review of existing rules.

1. Upon request by the administrative rules committee, an administrative agency or the
commission shall brief the committee on its existing rules and point out any provisions
that appear to be obsolete and any areas in which statutory or constitutional authority
has changed or been repealed since the rules were adopted or amended.
2. An agency or the commission may amend or repeal a rule without complying with the
other requirements of this chapter relating to adoption of rules and may resubmit the
change to the legislative council for publication provided:
a. The agency or commission initiates the request to the administrative rules
committee for consideration of the amendment or repeal;
b. The agency or commission provides notice to the regulated community, in a
manner reasonably calculated to provide notice to those persons interested in the
rule, of the time and place the administrative rules committee will consider the
request for amendment or repeal of the rule; and
c. The agency or commission and the administrative rules committee agree the rule
amendment or repeal eliminates a provision that is obsolete or no longer in
compliance with law and that no detriment would result to the substantive rights
of the regulated community from the amendment or repeal.
### § 28-32-19. Publication of administrative code and code supplement.

1. The legislative council shall compile, index, and publish all rules filed pursuant to this
chapter in a publication which must be known as the North Dakota Administrative
Code, in this chapter referred to as the code. The code also must contain all objections
filed with the legislative council by the administrative rules committee pursuant to
section 28-32-17. The legislative council shall revise all or part of the code as often as
the legislative council determines necessary.
2. The legislative council may prescribe the format, style, and arrangement for rules to be
published in the code and may refuse to accept the filing of any rule that is not in
substantial compliance with the format, style, and arrangement. In arranging rules for
publication, the legislative council may make corrections in spelling, grammatical
construction, format, and punctuation of the rules as the legislative council determines
are proper. The legislative council shall keep and maintain a permanent code of all
rules filed, including superseded and repealed rules, which must be open to public
inspection during office hours.

3. The legislative council shall compile and publish the North Dakota Administrative Code
supplement according to the schedule of effective dates of rules in section 28-32-15.
a. The code supplement must contain all rules that have been filed with the
legislative council or which have become effective since the compilation and
publication of the preceding issue of the code supplement.
b. The code supplement must contain all objections filed with the legislative council
by the administrative rules committee pursuant to section 28-32-17.
4. The legislative council, with the consent of the adopting agency or commission, may
omit from the code or code supplement any rule the publication of which would be
unduly cumbersome, expensive, or otherwise inexpedient, if the rule in printed or
duplicated form is made available on application to the agency or commission, and if
the code or code supplement contains a notice stating the general subject matter of
the omitted rule and how a copy may be obtained.
5. The code must be arranged, indexed, and printed or duplicated in a manner to permit
separate publication of portions thereof relating to individual agencies. An agency may
print as many copies of such separate portions of the code as it may require. If the
legislative council does not publish the code supplement due to technological
problems or lack of funds, the agency whose rules would have been published in the
code supplement shall provide a copy of the rules to any person upon request. The
agency may charge a fee for a copy of the rules as allowed under section 44-04-18.
### § 28-32-20. Notification of code and code supplement.

1. The legislative council shall publish the code and code supplement on the legislative
branch website.
2. The secretary of state shall send electronic notification of quarterly updates to the
code without charge to the following:
a. Governor.
b. Attorney general.
c. Each supreme court justice.
d. Each district court judge.
e. Each county auditor of this state.
f. Supreme court library.
g. State library.
h. Law library of the university of North Dakota.
i. Each of the five depository libraries in this state.
j. Upon request, to any person requesting electronic notification of quarterly
updates to the code.
2. If applicable, the administrative code, revisions to the administrative code, and the
code supplement must be considered sixth-class printing under sections 46-02-04 and
46-02-09.
### § 28-32-20.1. Agency enforcement of rules - Disclosure of authority.

When enforcing a rule adopted under this chapter, including through an official notice,
determination, order, or similar action, an agency shall specifically reference the statute or rule
providing the authority upon which the agency's action is based within ten days of receiving a
request for the information from the person against which the rule is being enforced.
### § 28-32-21. Adjudicative proceedings - Procedures.

Administrative agencies shall comply with the following procedures in all adjudicative
proceedings:
1. a. For adjudicative proceedings involving a hearing on a complaint against a
specific-named respondent, a complainant shall prepare and file a clear and
concise complaint with the agency having subject matter jurisdiction of the
proceeding. The complaint shall contain a concise statement of the claims or

charges upon which the complainant relies, including reference to the statute or
rule alleged to be violated, and the relief sought.
b. After a complaint is filed, the appropriate administrative agency shall serve a copy
of the complaint upon the respondent in the manner allowed for the service of
process under the North Dakota Rules of Civil Procedure at least forty-five days
before the hearing on the complaint.
c. The administrative agency shall designate the time and place for the hearing and
shall serve a copy of the notice of hearing upon the respondent in the manner
allowed for service under the North Dakota Rules of Civil Procedure, at least
twenty days before the hearing on the complaint. Service of the notice of hearing
may be waived in writing by the respondent, or the parties may agree on a
definite time and place for hearing with the consent of the agency having
jurisdiction.
d. A complaint may be served less than forty-five days before the time specified for
a hearing on the complaint and a notice of hearing on a complaint may be served
less than twenty days before the time specified for hearing if otherwise authorized
by statute. However, an administrative hearing regarding the renewal,
suspension, or revocation of a license may not be held fewer than ten days after
the licensee has been served, personally or by certified mail, with a copy of a
notice for hearing with an affidavit, complaint, specification of issues, or other
document alleging violations upon which the license hearing is based.
e. A complaint may inform the respondent that an answer to the complaint must be
served upon the complainant and the agency with which the complaint is filed
within twenty days after service of the complaint, or the agency may deem the
complaint to be admitted. If the respondent fails to answer as required within
twenty days after service of the complaint, the agency may enter an order in
default as the facts and law may warrant. Answers must be served in the manner
allowed for service under the North Dakota Rules of Civil Procedure.
f. Service is complete upon compliance with the provisions of the North Dakota
Rules of Civil Procedure. Proof of service may be made as provided in the North
Dakota Rules of Civil Procedure.
g. A respondent may be given less than twenty days to answer the complaint,
pursuant to another statute, but no respondent may be required to answer a
complaint in less than five days and an answer must be served on the
complainant and the agency with which the complaint is filed at least two days
before the hearing on the complaint.
h. Amended and supplemental pleadings may be served and filed with the agency
in the manner allowed for amended and supplemental pleadings under the North
Dakota Rules of Civil Procedure.
2. At any hearing in an adjudicative proceeding, the parties shall be afforded opportunity
to present evidence and to examine and cross-examine witnesses as is permitted
under sections 28-32-24 and 28-32-35.
3. a. If the adjudicative proceeding does not involve a hearing on a complaint against a
specific-named respondent, the provisions of subsection 1 do not apply. Unless
otherwise provided by law, the provisions of subdivisions b through d apply.
b. The administrative agency shall designate the time and place for the hearing and
shall serve a copy of the notice of hearing upon all the parties in the manner
allowed for service under the North Dakota Rules of Civil Procedure at least
twenty days before the hearing. Service of the notice of hearing may be waived in
writing by the parties, or the parties may agree on a definite time and place for
the hearing with the consent of the agency having jurisdiction.
c. A hearing under this subsection may not be held unless the parties have been
properly served with a copy of the notice of hearing as well as a written
specification of issues for hearing or other document indicating the issues to be
considered and determined at the hearing. In lieu of, or in addition to, a
specification of issues or other document, an explanation about the nature of the

hearing and the issues to be considered and determined at the hearing may be
contained in the notice.
d. Service is complete upon compliance with the provisions of the North Dakota
Rules of Civil Procedure. Proof of service may be made as provided in the North
Dakota Rules of Civil Procedure.
### § 28-32-22. Informal disposition.

Unless otherwise prohibited by specific statute or rule, informal disposition may be made of
any adjudicative proceeding, or any part or issue thereof, by stipulation, settlement, waiver of
hearing, consent order, default, alternative dispute resolution, or other informal disposition,
subject to agency approval. Any administrative agency may adopt rules of practice or procedure
for informal disposition if such rules do not substantially prejudice the rights of any party. Such
rules may establish procedures for converting an administrative matter from one type of
proceeding to another type of proceeding.
### § 28-32-23. Adjudicative proceedings - Exceptions - Rules of procedure.

Notwithstanding the requirements for standardization of procedures in adjudicative
proceedings under this chapter, an administrative agency may adopt specific agency rules of
procedure not inconsistent with this chapter. An administrative agency may also adopt specific
agency rules of procedure when necessary to comply with requirements found elsewhere in this
code or when necessary to comply with the requirements of federal statutes, rules, or
standards.
### § 28-32-24. Evidence to be considered by agency - Official notice.

1. The admissibility of evidence in any adjudicative proceeding before an administrative
agency shall be determined in accordance with the North Dakota Rules of Evidence.
An administrative agency, or any person conducting proceedings for it, may waive
application of the North Dakota Rules of Evidence if a waiver is necessary to ascertain
the substantial rights of a party to the proceeding, but only relevant evidence shall be
admitted. The waiver must be specifically stated, orally or in writing, either prior to or at
a hearing or other proceeding.
2. All objections offered to evidence shall be noted in the record of the proceeding. No
information or evidence except that which has been offered, admitted, and made a
part of the official record of the proceeding shall be considered by the administrative
agency, except as otherwise provided in this chapter.
3. Upon proper objection, evidence that is irrelevant, immaterial, unduly repetitious, or
excludable on constitutional or statutory grounds, or on the basis of evidentiary
privilege recognized in the courts of this state, may be excluded. In the absence of
proper objection, the agency, or any person conducting a proceeding for it, may
exclude objectionable evidence.
4. The North Dakota Rules of Evidence in regard to privileges apply at all stages of an
administrative proceeding under this chapter.
5. All testimony must be made under oath or affirmation. Relevant statements presented
by nonparties may be received as evidence if all parties are given an opportunity to
cross-examine the nonparty witness or to otherwise challenge or rebut the statements.
Nonparties may not examine or cross-examine witnesses except pursuant to a grant of
intervention.
6. Evidence may be received in written form if doing so will expedite the proceeding
without substantial prejudice to the interests of any party.
7. Official notice may be taken of any facts that could be judicially noticed in the courts of
this state. Additionally, official notice may be taken of any facts as authorized in agency
rules.

### § 28-32-25. Adjudicative proceedings - Consideration of information not presented at a

hearing.
In any adjudicative proceeding, an administrative agency may avail itself of competent and
relevant information or evidence in its possession or furnished by members of its staff, or
secured from any person in the course of an independent investigation conducted by the
agency, in addition to the evidence presented at the hearing. It may do so after first transmitting
a copy of the information or evidence or an abstract thereof to each party of record in the
proceeding. The agency must afford each party, upon written request, an opportunity to examine
the information or evidence and to present its own information or evidence and to
cross-examine the person furnishing the information or evidence. Any further testimony that is
necessary shall be taken at a hearing to be called and held, giving at least ten days' notice.
Notice must be served upon the parties in the manner allowed for service under the North
Dakota Rules of Civil Procedure. This section also applies to information officially noticed after
the hearing when the issuance of any initial or final order is based in whole or in part on the
facts or material noticed.
### § 28-32-26. Costs of investigation.

An agency may assess the costs of an investigation to a person found to be in violation of a
statute or rule as a result of an adjudicative proceeding or informal disposition. The total costs
assessed and any civil penalty that may be imposed as a result of violation may not exceed the
statutorily authorized civil penalty for the violation. For the purposes of this section, costs mean
reasonable out-of-pocket agency costs, not including any attorney's fees, actually incurred in
conducting the investigation for which they may be assessed. Any such costs paid must be paid
into the general fund and are appropriated as a refund to the agency for the purposes of
defraying the costs of undertaking the investigation.
### § 28-32-27. Hearing officer - Disqualification - Substitution.

1. Any person or persons presiding for the agency in an administrative proceeding must
be referred to individually or collectively as hearing officer. Any person from the office
of administrative hearings presiding for the agency as a hearing officer in an
administrative proceeding must be referred to as an administrative law judge.
2. Any hearing officer is subject to disqualification for good cause shown.
3. Any party may petition for the disqualification of any person presiding as a hearing
officer upon discovering facts establishing grounds for disqualification.
4. A person whose disqualification is requested shall determine whether to grant the
petition, stating facts and reasons for the determination.
5. If a substitute is required for a person who is disqualified or becomes unavailable for
any other reason, the substitute may be appointed by:
a. The attorney general, if the disqualified or unavailable person is an assistant
attorney general;
b. The agency head, if the disqualified or unavailable person is one or more
members of the agency head or one or more other persons designated by the
agency head;
c. A supervising hearing officer, if the disqualified or unavailable person is a hearing
officer designated from an office, pool, panel, or division of hearing officers; or
d. The governor, in all other cases.
6. Any action taken by a duly appointed substitute for a disqualified or unavailable person
is as effective as if taken by the disqualified or unavailable person.
7. Any hearing officer in an administrative proceeding, from the time of appointment or
designation, may exercise any authority granted by law or rule. A hearing officer may
be designated to preside over the entire administrative proceeding and may issue
orders accordingly. A procedural hearing officer may only issue orders in regard to the
course and conduct of the hearing under statute or rule and to otherwise effect an
orderly hearing. If a procedural hearing officer is designated, the agency head must be
present at the hearing and the agency head shall issue findings of fact and
conclusions of law, as well as any order resulting from the hearing.

### § 28-32-28. Intervention.

An administrative agency may grant intervention in an adjudicative proceeding to promote
the interests of justice if intervention will not impair the orderly and prompt conduct of the
proceeding and if the petitioning intervenor demonstrates that the petitioner's legal rights,
duties, privileges, immunities, or other legal interests may be substantially affected by the
proceeding or that the petitioner qualifies as an intervenor under any provision of statute or rule.
The agency may impose conditions and limitations upon intervention. The agency shall give
reasonable notice of the intervention to all parties. An administrative agency may adopt rules
relating to intervention in an adjudicative proceeding.
### § 28-32-29. Prehearing conference.

Before a hearing, an administrative agency may conduct a prehearing conference after
giving reasonable notice to all parties and other interested persons. A prehearing conference
may be conducted in total or in part by making use of telephone, facsimile services, television,
or other electronic means, as long as such use does not substantially prejudice or infringe on
the rights and interests of any party. An administrative agency may adopt rules regarding the
availability of, notice of, and procedures for prehearing conferences.
### § 28-32-30. Default.

1. If a party fails to attend or participate in a prehearing conference, hearing, or other
stage of an adjudicative proceeding, the agency may enter and serve upon all parties
written notice of default and a default order, including a statement of the grounds for
default.
2. Within seven days after service of the default notice, order, and grounds, the party
against whom default was ordered may file a written motion requesting that the default
order be vacated and stating the grounds relied upon. During the time within which a
party may file a written motion under this section, or at the time of issuing notice and
the default order, the agency may adjourn the proceedings or conduct them without
the participation of the party against whom a default order was issued, having due
regard for the interests of justice and the orderly and prompt conduct of the
proceedings. If an agency conducts further proceedings necessary to complete the
administrative action without the participation of a party in default, it shall determine all
the issues involved, including those affecting the defaulting party.
### § 28-32-31. Duties of hearing officers.

All hearing officers shall:
1. Assure that proper notice has been given as required by law.
2. Conduct only hearings and related proceedings for which proper notice has been
given.
3. Assure that all hearings and related proceedings are conducted in a fair and impartial
manner.
4. Make recommended findings of fact and conclusions of law and issue a recommended
order, when appropriate.
5. Conduct the hearing only and perform such other functions of the proceeding as
requested, when an agency requests a hearing officer to preside only as a procedural
hearing officer. If the hearing officer is presiding only as a procedural hearing officer,
the agency head must be present at the hearing and the agency head shall make
findings of fact and conclusions of law and issue a final order. The agency shall give
proper notice as required by law. The procedural hearing officer may issue orders in
regard to the conduct of the hearing pursuant to statute or rule and to otherwise effect
an orderly and prompt disposition of the proceedings.
6. Make findings of fact and conclusions of law and issue a final order, if required by
statute or requested by an agency.

7. Function only as a procedural hearing officer, when an agency requests a hearing
officer to preside for a rulemaking hearing. The agency head need not be present. The
agency shall give proper notice as required by law.
8. Perform any and all other functions required by law, assigned by the director of
administrative hearings, or delegated to the hearing officer by the agency.
### § 28-32-32. Emergency adjudicative proceedings.

An administrative agency may use an emergency adjudicative proceeding, in its discretion,
in an emergency situation involving imminent peril to the public health, safety, or welfare.
1. In an emergency, the administrative agency may take action pursuant to a specific
statute as is necessary to prevent or avoid imminent peril to the public health, safety,
or welfare.
2. In an emergency, in the absence of a specific statute, an administrative agency may
serve a complaint fewer than forty-five days before the hearing and give notice of a
hearing on the complaint by giving less than twenty days' notice as is necessary to
prevent or avoid imminent peril to the public health, safety, or welfare. But, every party
to the emergency adjudicative proceeding must be given a reasonable time within
which to serve an answer and to prepare for the hearing, which may be extended by
the agency upon good cause being shown.
3. In an emergency, in the absence of a specific statute, in an adjudicative proceeding
that does not involve a complaint against a specific-named respondent, an
administrative agency may give notice of a hearing by giving less than twenty days'
notice as is necessary to prevent or avoid imminent peril to the public health, safety, or
welfare. But, every party to the emergency adjudicative proceeding shall be given a
reasonable time to prepare for the hearing, which may be extended by the agency
upon good cause being shown.
4. As a result of the emergency adjudicative proceeding, in the absence of a specific
statute requiring other administrative action, the administrative agency shall issue an
order. The order must include a brief statement of the reasons justifying the
determination of imminent peril to the public health, safety, or welfare and requiring an
emergency adjudicative proceeding to prevent or avoid the imminent peril.
5. After issuing an order pursuant to this section, the administrative agency shall proceed
as soon as possible to complete any other proceedings related to the emergency
adjudicative proceeding that do not involve imminent peril to the public health, safety,
or welfare.
### § 28-32-33. Adjudicative proceedings - Subpoenas - Discovery - Protective orders.

1. In an adjudicative proceeding, discovery may be obtained in accordance with the
North Dakota Rules of Civil Procedure.
2. In any adjudicative proceeding, upon the request or motion of any party to the
proceeding or upon the hearing officer's own motion on behalf of the agency, a hearing
officer may issue subpoenas, discovery orders, and protective orders in accordance
with the North Dakota Rules of Civil Procedure. A motion to quash or modify, or any
other motion relating to subpoenas, discovery, or protective orders must be made to
the hearing officer. The hearing officer's rulings on these motions may be appealed
under section 28-32-42 after issuance of the final order by the agency. The cost of
issuing and serving a subpoena in any adjudicative proceeding must be paid by the
person or agency requesting it.
3. Any witness who is subpoenaed under the provisions of this section and who appears
at a hearing or other part of an adjudicative proceeding, or whose deposition is taken,
shall receive the same fees and mileage as a witness in a civil case in the district
court. Witness fees and mileage shall be paid by the party or agency at whose
instance the witness appears. Any hearing officer may order the payment of witness
fees or mileage by the appropriate party or agency.
4. Subpoenas, discovery orders, protective orders, and other orders issued under this
section may be enforced by applying to any judge of the district court for an order

requiring the attendance of a witness, the production of all documents and objects
described in the subpoena, or otherwise enforcing an order. Failure of a witness or
other person to comply with the order of the district court is contempt of court which is
punishable by the district court, upon application. The judge may award attorney's fees
to the prevailing party in an application under this subsection.
### § 28-32-34. Administration of oaths - Parties to be advised of perjury provisions.

Any hearing officer in an administrative proceeding has the power to examine witnesses
and records and to administer oaths to witnesses. At the time the person presiding administers
the oath to a witness, the person shall advise the witness of the provisions of subsection 1 of
section 12.1-11-01 and of the maximum penalty for perjury.
### § 28-32-35. Procedure at hearing.

The person presiding at a hearing shall regulate the course of the hearing in conformity with
this chapter and any rules adopted under this chapter by an administrative agency, any other
applicable laws, and any prehearing order. To the extent necessary for full disclosure of all
relevant facts and issues, the person presiding at the hearing shall afford to all parties and other
persons allowed to participate the opportunity to respond, present evidence and argument,
conduct cross-examination, and submit rebuttal evidence, except as restricted or conditioned by
a grant of intervention or by a prehearing order. A hearing may be conducted in total or in part
by making use of telephone, television, facsimile services, or other electronic means if each
participant in the hearing has an opportunity to participate in, to hear, and, if practicable, to see
the entire proceeding while it is taking place, and if such use does not substantially prejudice or
infringe on the rights and interests of any party.
### § 28-32-36. Agency to make record.

An administrative agency shall make a record of all testimony, written statements,
documents, exhibits, and other evidence presented at any adjudicative proceeding or other
administrative proceeding heard by it. Oral testimony may be taken by a court reporter, by a
stenographer, or by use of an electronic recording device. All evidence presented at any
proceeding before the administrative agency shall be filed with the agency. A copy of the record
of any proceeding before an administrative agency, or a part thereof, must be furnished to any
party to the proceeding and to any other person allowed to participate in the proceeding, upon
written request submitted to the agency and upon payment of a uniform charge to be set by the
agency. Any fee paid to an administrative agency for the record, or a part thereof, shall be paid
into the general fund and is appropriated as a refund to the agency for the purposes of defraying
the costs of preparing the record. An agency may contract with any person or another agency to
prepare a record, or a part thereof, of any proceeding before the agency.
### § 28-32-37. Ex parte communications.

1. Except as provided in subsections 2 and 4 or unless required for the disposition of
ex parte matters specifically authorized by another statute, an agency head or hearing
officer in an adjudicative proceeding may not communicate, directly or indirectly,
regarding any issue in the proceeding, while the proceeding is pending, with any party,
with any person who has a direct or indirect interest in the outcome of the proceeding,
with any other person allowed to participate in the proceeding, or with any person who
presided at a previous stage of the proceeding, without notice and opportunity for all
parties to participate in the communication.
2. When more than one person is the hearing officer in an adjudicative proceeding, those
persons may communicate with each other regarding a matter pending before the
panel. An agency head or hearing officer may communicate with or receive aid from
staff assistants if the assistants do not furnish, augment, diminish, or modify the
evidence in the record.
3. Except as provided in subsection 4 or unless required for the disposition of ex parte
matters specifically authorized by statute, no party to an adjudicative proceeding, no

person who has a direct or indirect interest in the outcome of the proceeding, no
person allowed to participate in the proceeding, and no person who presided at a
previous stage in the proceeding may communicate directly or indirectly in connection
with any issue in that proceeding, while the proceeding is pending, with any agency
head or hearing officer in the proceeding without notice and opportunity for all parties
to participate in the communication.
4. In an adjudicative proceeding conducted by a hearing officer other than the agency
head, counsel for the administrative agency and the agency head, without notice and
opportunity for all parties to participate, may communicate and consult regarding the
status of the adjudicative proceeding, discovery, settlement, litigation decisions, and
other matters commonly communicated between attorney and client, to permit the
agency head to make informed decisions. This subsection does not apply after
recommended findings of fact, conclusions of law, and orders have been issued,
except counsel for the administrative agency and the agency head may communicate
regarding settlement and negotiation after recommended findings of fact, conclusions
of law, and orders have been issued.
5. If, before being assigned, designated, or appointed to preside in an adjudicative
proceeding, a person receives an ex parte communication of a type that could not
properly be received while presiding, the person, promptly after being assigned,
designated, or appointed, shall disclose the communication in the manner prescribed
in subsection 6.
6. An agency head or hearing officer in an adjudicative proceeding who receives an
ex parte communication in violation of this section shall place on the record of the
pending matter all written communications received, all written responses to the
communications, or a memorandum stating the substance of all oral communications
received, all responses made, and the identity of each person from whom the person
received an ex parte oral communication, and shall advise all parties, interested
persons, and other persons allowed to participate that these matters have been placed
on the record. Any person desiring to rebut the ex parte communication must be
allowed to do so, upon requesting the opportunity for rebuttal. A request for rebuttal
must be made within ten days after notice of the communication.
7. If necessary to eliminate the effect of an ex parte communication received in violation
of this section, an agency head or hearing officer in an adjudicative proceeding who
receives the communication may be disqualified, upon good cause being shown in
writing to the hearing officer or to the agency. The portions of the record pertaining to
the communication may be sealed by protective order issued by the agency.
8. The agency shall, and any party may, report any willful violation of this section to the
appropriate authorities for any disciplinary proceedings provided by law. In addition, an
administrative agency may, by rule, provide for appropriate sanctions, including
default, for any violations of this section.
9. Nothing in this section prohibits a member of the general public, not acting on behalf or
at the request of any party, from communicating with an agency in cases of general
interest. The agency shall disclose such written communications in adjudicative
proceedings.
### § 28-32-38. Separation of functions.

1. No person who has served as investigator, prosecutor, or advocate in the investigatory
or prehearing stage of an adjudicative proceeding may serve as hearing officer.
2. No person who is subject to the direct authority of one who has served as an
investigator, prosecutor, or advocate in the investigatory or prehearing stage of an
adjudicative proceeding may serve as hearing officer.
3. Any other person may serve as hearing officer in an adjudicative proceeding, unless a
party demonstrates grounds for disqualification.
4. Any person may serve as hearing officer at successive stages of the same
adjudicative proceeding, unless a party demonstrates grounds for disqualification.

### § 28-32-39. Adjudicative proceedings - Findings of fact, conclusions of law, and order

of agency - Notice.
1. In an adjudicative proceeding an administrative agency shall make and state concisely
and explicitly its findings of fact and its separate conclusions of law and the order of
the agency based upon its findings and conclusions.
2. If the agency head, or another person authorized by the agency head or by law to
issue a final order, is presiding, the order issued is the final order. The agency shall
serve a copy of the final order and the findings of fact and conclusions of law on which
it is based upon all the parties to the proceeding within thirty days after the evidence
has been received, briefs filed, and arguments closed, or as soon thereafter as
possible, in the manner allowed for service under the North Dakota Rules of Civil
Procedure.
3. If the agency head, or another person authorized by the agency head or by law to
issue a final order, is not presiding, then the person presiding shall issue
recommended findings of fact and conclusions of law and a recommended order within
thirty days after the evidence has been received, briefs filed, and arguments closed, or
as soon thereafter as possible. The recommended findings of fact and conclusions of
law and the recommended order become final unless specifically amended or rejected
by the agency head. The agency head may adopt the recommended findings of fact
and conclusions of law and the recommended order as final. The agency may allow
petitions for review of a recommended order and may allow oral argument pending
issuance of a final order. An administrative agency may adopt rules regarding the
review of recommended orders and other procedures for issuance of a final order by
the agency. If a recommended order is issued, the agency must serve a copy of any
final order issued and the findings of fact and conclusions of law on which it is based
upon all the parties to the proceeding within sixty days after the evidence has been
received, briefs filed, and arguments closed, or as soon thereafter as possible, in the
manner allowed for service under the North Dakota Rules of Civil Procedure.
### § 28-32-40. Petition for reconsideration.

1. Any party before an administrative agency who is aggrieved by the final order of the
agency, including the administrative agency when the hearing officer is not the agency
head or one or more members of the agency head, within fifteen days after notice has
been given as required by section 28-32-39, may file a petition for reconsideration with
the agency. Filing of the petition is not a prerequisite for seeking judicial review. If the
agency's hearing officer issues the agency's final order, the petition for reconsideration
must be addressed to the hearing officer, who may grant or deny the petition under
subsection 4.
2. Any party, including workforce safety and insurance, that appears before workforce
safety and insurance may file a petition for reconsideration within thirty days after
notice has been given as required by section 28-32-39.
3. The party must submit with the petition for reconsideration a statement of the specific
grounds upon which relief is requested or a statement of any further showing to be
made in the proceeding. The petition must also state whether a rehearing is requested.
The petition and any statement shall be considered a part of the record in the
proceeding.
4. The administrative agency may deny the petition for reconsideration or may grant the
petition on such terms as it may prescribe. If a rehearing is granted, the agency may
allow a new hearing or limit the hearing as appropriate. The agency may dissolve or
amend the final order and set the matter for further hearing. The petition is deemed to
have been denied if the agency does not dispose of it within thirty days after the filing
of the petition. Any rehearing must be presided over by the same person or persons
presiding previously at the hearing, if available. Any amended findings, conclusions,
and orders must be issued by the same person or persons who issued the previous
recommended or final orders, if available. Within thirty days after the close of
proceedings upon reconsideration, or as soon thereafter as possible, the agency shall

issue and give notice of its order upon reconsideration as required in subsection 3 of
section 28-32-39.
5. This section does not limit the right of any agency to reopen any proceeding or rehear
any matter under any continuing jurisdiction which is granted to the agency by statute.
### § 28-32-41. Effectiveness of orders.

Unless a later date is stated in the order, a final order of an administrative agency is
effective immediately, but a party may not be required to comply with a final order unless it has
been served upon the party and notice is deemed given pursuant to section 28-32-39 or the
party has actual knowledge of the final order. A nonparty may not be required to comply with a
final order unless the agency has made the final order available for public inspection and
copying or the nonparty has actual knowledge of the final order. This section does not preclude
an agency from taking emergency action to protect the public health, safety, or welfare as
authorized by statute.
### § 28-32-42. Appeal from determination of agency - Time to appeal - How appeal taken.

1. Any party to any proceeding heard by an administrative agency, except when the order
of the administrative agency is declared final by any other statute, may appeal from
the order within thirty days after notice of the order has been given as required by
section 28-32-39. If a reconsideration has been requested as provided in section
28-32-40, the party may appeal within thirty days after notice of the final determination
upon reconsideration has been given as required by sections 28-32-39 and 28-32-40.
If an agency does not dispose of a petition for reconsideration within thirty days after
the filing of the petition, the agency is deemed to have made a final determination
upon which an appeal may be taken.
2. Any interested person who has participated in the rulemaking process of an
administrative agency may appeal the agency's rulemaking action if the appeal is
taken within ninety days after the date of publication in the North Dakota Administrative
Code of the rule resulting from the agency rulemaking action.
3. a. The appeal of an order may be taken to the district court designated by law, and if
none is designated, then to the district court of the county in which the hearing or
a part thereof was held. If the administrative proceeding was disposed of
informally, or for some other reason no hearing was held, an appeal may be
taken to the district court of Burleigh County. Only final orders are appealable. A
procedural order made by an administrative agency while a proceeding is
pending before it is not a final order.
b. The appeal of an agency's rulemaking action may be taken to the district court of
Burleigh County.
4. An appeal shall be taken by serving a notice of appeal and specifications of error
specifying the grounds on which the appeal is taken, upon the administrative agency
concerned, upon the attorney general or an assistant attorney general, and upon all
the parties to the proceeding before the administrative agency, and by filing the notice
of appeal and specifications of error together with proof of service of the notice of
appeal, and the undertaking required by this section, with the clerk of the district court
to which the appeal is taken. In an appeal of an agency's rulemaking action, only the
administrative agency concerned, the attorney general, or an assistant attorney
general, as well as the legislative council, need to be notified.
5. The notice of appeal must specify the parties taking the appeal as appellants. The
agency and all other parties of record who are not designated as appellants must be
named as appellees. A notice of appeal of agency rulemaking actions need not name
all persons participating in the rulemaking proceeding as appellees. The agency and
all parties of record have the right to participate in the appeal. In the appeal of agency
rulemaking action, any person who has participated in the rulemaking process has the
right to participate in the appeal.
6. A bond or other undertaking for costs on appeal must be filed by the appellant as is
required by appellants for costs on appeal in civil cases under the rules of appellate

procedure. The bond or other undertaking must be filed with the clerk of the district
court with the notice of appeal, must be made to the state of North Dakota, and may
be enforced by the agency concerned for and on behalf of the state as obligee. A bond
or other undertaking is not required when filing fees have been waived by a district
court pursuant to section 27-01-07 or when the costs of preparation and filing of the
record of administrative agency proceedings have been waived by a district court
pursuant to subsection 3 of section 28-32-44.
### § 28-32-43. Docketing of appeals.

Appeals taken in accordance with this chapter must be docketed as other cases pending in
the district court are docketed and must be heard and determined by the court without a jury at
such time as the court shall determine.
### § 28-32-44. Agency to maintain and certify record on appeal.

1. An administrative agency shall maintain an official record of each adjudicative
proceeding or other administrative proceeding heard by it.
2. Within thirty days, or a longer time as the court by order may direct, after an appeal
has been taken to the district court as provided in this chapter, and after payment by
the appellant of the estimated cost of preparation and filing of the entire record of the
proceedings before the agency, the administrative agency concerned shall prepare
and file in the office of the clerk of the district court in which the appeal is pending the
original or a certified copy of the entire record of proceedings before the agency, or an
abstract of the record as may be agreed upon and stipulated by the parties. Upon
receiving a copy of the notice of appeal and specifications of error pursuant to
subsection 4 of section 28-32-42 and unless the agency is appealing, the
administrative agency shall notify the party appealing of the estimated costs of
preparation and filing of the record. Thereafter, unless the agency is appealing, the
party appealing shall pay the administrative agency the estimated costs required by
this subsection. If the actual costs of preparation and filing of the entire record of the
proceedings is greater than the estimated costs, the party appealing shall pay to the
agency the difference. If the actual costs are less than the estimated costs, the agency
shall pay to the party appealing the difference. Any payment for the costs of
preparation and filing of the record must be paid into the insurance recovery fund and
is appropriated as a refund to the agency for the purposes of defraying the costs of
preparing and filing the record. An agency may contract with any person or another
agency to prepare and file the record of any proceeding before the agency.
3. The cost of preparation and filing of the record may be waived by the district court
upon application by an appellant, showing that the appellant is a low-income person
unable to afford these costs. When a waiver is granted, the costs of preparation and
filing of the record must be paid by the administrative agency.
4. The agency record of the proceedings, as applicable, may consist of only the
following:
a. The complaint, answer, and other initial pleadings or documents.
b. Notices of all proceedings.
c. Any prehearing notices, transcripts, documents, or orders.
d. Any motions, pleadings, briefs, petitions, requests, and intermediate rulings.
e. A statement of matters officially noticed.
f. Offers of proof and objections and rulings thereon.
g. Proposed findings, requested orders, and exceptions.
h. The transcript of the hearing prepared for the person presiding at the hearing,
including all testimony taken, and any written statements, exhibits, reports,
memoranda, documents, or other information or evidence considered before final
disposition of proceedings.
i. Any recommended or proposed order, recommended or proposed findings of fact
and conclusions of law, final order, final findings of fact and conclusions of law, or
findings of fact and conclusions of law or orders on reconsideration.

j. Any information considered pursuant to section 28-32-25.
k. Matters placed on the record after an ex parte communication.
5. Except to the extent that this chapter or another statute provides otherwise, the
agency record constitutes the exclusive basis for administrative agency action and
judicial review of an administrative agency action.
6. The record on review of agency rulemaking action, as applicable, may consist of only
the following:
a. All agency notices concerning proposed rulemaking.
b. A copy of the proposed rule upon which written and oral submissions were made.
c. A copy of the rule as submitted for publication.
d. Any opinion letters by the attorney general as to a rule's legality or the legality of
the agency's rulemaking action.
e. A copy of any interim rule and the agency's findings and statement of the reasons
for an interim rule.
f. The regulatory analysis of a proposed rule.
g. The transcript of any oral hearing on a proposed rule.
h. All written submissions made to the agency on a proposed rule.
i. Any staff memoranda or data prepared for agency consideration in regard to the
proposed rule.
j. Any other document that the agency believes is relevant to the appeal.
k. Any other document that is not privileged and which is a public record that the
appellant requests the agency to include in the record, if relevant to the appeal.
7. If the notice of appeal specifies that no exception or objection is made to the agency's
findings of fact, and that the appeal is concerned only with the agency's conclusions of
law based on the facts found by it, the agency may submit an abstract of the record
along with such portions of the record as the agency deems necessary, to be
supplemented by those portions of the record requested to be submitted by the
appellant or by the other party when the agency is appealing.
8. The court may permit amendments or additions to the record filed by the
administrative agency in order to complete the record.
### § 28-32-45. Consideration of additional or excluded evidence.

If an application for leave to offer additional testimony, written statements, documents,
exhibits, or other evidence is made to the court in which an appeal from a determination of an
administrative agency is pending, and it is shown to the satisfaction of the court that the
additional evidence is relevant and material and that there were reasonable grounds for the
failure to offer the evidence in the hearing or proceeding, or that the evidence is relevant and
material to the issues involved and was rejected or excluded by the agency, the court may order
that the additional evidence be taken, heard, and considered by the agency on terms and
conditions as the court may deem proper. After considering the additional evidence, the
administrative agency may amend or reject its findings of fact, conclusions of law, and order and
shall file with the court a transcript of the additional evidence with its new or amended findings
of fact, conclusions of law, and order, if any, which constitute a part of the record with the court.
### § 28-32-46. Scope of and procedure on appeal from determination of administrative

agency.
A judge of the district court must review an appeal from the determination of an
administrative agency based only on the record filed with the court. After a hearing, the filing of
briefs, or other disposition of the matter as the judge may reasonably require, the court must
affirm the order of the agency unless it finds that any of the following are present:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before
the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the
evidence.
6. The conclusions of law and order of the agency are not supported by its findings of
fact.
7. The findings of fact made by the agency do not sufficiently address the evidence
presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency's
rationale for not adopting any contrary recommendations by a hearing officer or an
administrative law judge.
If the order of the agency is not affirmed by the court, it must be modified or reversed, and the
case shall be remanded to the agency for disposition in accordance with the order of the court.
### § 28-32-47. Scope of and procedure on appeal from agency rulemaking.

1. A judge of the district court shall review an appeal from an administrative agency's or
ethics commission's rulemaking action based only on the record filed with the court. If
an appellant requests documents to be included in the record but the agency or
commission does not include them, the court, upon application by the appellant, may
compel their inclusion. After a hearing, the filing of briefs, or other disposition of the
matter as the judge may reasonably require, the court shall affirm the rulemaking
action unless it finds that any of the following are present:
a. The provisions of this chapter have not been substantially complied with in the
rulemaking actions.
b. A rule published as a result of the rulemaking action appealed is unconstitutional
on the face of the language adopted.
c. A rule published as a result of the rulemaking action appealed is beyond the
scope of the agency's or commission's authority to adopt.
d. A rule published as a result of the rulemaking action appealed is on the face of
the language adopted an arbitrary or capricious application of authority granted
by statute.
2. If the rulemaking action of the agency or commission is not affirmed by the court, the
rulemaking action must be remanded to the agency or commission for disposition in
accordance with the order of the court, or the rule or a portion of the rule resulting from
the rulemaking action of the agency or commission must be declared invalid for
reasons stated by the court.
### § 28-32-48. Appeal - Stay of proceedings.

An appeal from an order or the rulemaking action of an administrative agency or the
commission does not stay the enforcement of the order or the effect of a published rule unless
the court to which the appeal is taken, upon application and after a hearing or the submission of
briefs, orders a stay. The court may impose terms and conditions for a stay of the enforcement
of the order or for a stay in the effect of a published rule. This section does not prohibit the
operation of an automatic stay upon the enforcement of an administrative order or commission
order as may be required by another statute.
### § 28-32-49. Review in supreme court.

The judgment of the district court in an appeal from an order or rulemaking action of an
administrative agency or the commission may be reviewed in the supreme court on appeal in
the same manner as provided in section 28-32-46 or 28-32-47, except that the appeal to the
supreme court must be taken within sixty days after the service of the notice of entry of
judgment in the district court. Any party of record, including the agency or commission, may take
an appeal from the final judgment of the district court to the supreme court. If an appeal from the
judgment of the district court is taken by an agency or the commission, the agency or
commission may not be required to pay a docket fee or file a bond for costs or equivalent
security.

### § 28-32-50. Actions against administrative agencies - Attorney's fees and costs.

1. In any civil judicial proceeding involving as adverse parties an administrative agency
and a party not an administrative agency or an agent of an administrative agency, the
court must award the party not an administrative agency reasonable attorney's fees
and costs if the court finds in favor of that party and, in the case of a final agency
order, determines that the administrative agency acted without substantial justification.
2. This section applies to an administrative or civil judicial proceeding brought by a party
not an administrative agency against an administrative agency for judicial review of a
final agency order, or for judicial review pursuant to this chapter of the legality of
agency rulemaking action or a rule adopted by an agency as a result of the rulemaking
action being appealed.
3. Any attorney's fees and costs awarded pursuant to this section must be paid from
funds available to the administrative agency the final order, rulemaking action, or rule
of which was reviewed by the court. The court may withhold all or part of the attorney's
fees from any award if the court finds the administrative agency's action, in the case of
a final agency order, was substantially justified or that special circumstances exist
which make the award of all or a portion of the attorney's fees unjust.
4. This section does not alter the rights of a party to collect any fees under other
applicable law.
5. In any civil judicial proceeding involving adverse parties to an appeal or enforcement
action involving an environmental permit issued under chapter 23.1-04, 23.1-06,
23.1-08, or 61-28 in which two or more of the adverse parties are not an administrative
agency or an agent of an administrative agency, the court may award the prevailing
nonagency party reasonable attorney's fees and costs if the court finds in favor of that
party and determines that the nonprevailing nonagency party acted without substantial
justification, or on the basis of claims or allegations that are factually unsupported. The
court shall award reasonable attorney's fees and costs if the court determines that the
nonprevailing nonagency party's claims or allegations are frivolous as provided in
section 28-26-01. If the appeal or civil judicial proceeding covered by this subsection
involves multiple claims or allegations, the court may apportion attorney's fees and
costs in proportion to the time reasonably spent by a prevailing party relating to claims
pursued by the nonprevailing party that were frivolous, factually unsupported, or
without substantial justification.
### § 28-32-51. Witnesses - Immunity.

If any person objects to testifying or producing evidence, documentary or otherwise, at any
proceeding before an administrative agency, claiming a privilege against self-incrimination, but
is directed to testify or produce evidence pursuant to the written approval of the attorney
general, that person must comply with the direction but no testimony or evidence compelled
from that person, after a valid claim of privilege against self-incrimination has been made, may
be used against that person in any criminal proceeding subjecting that person to a penalty or
forfeiture. No person testifying at any proceeding before an administrative agency may be
exempted from prosecution and punishment for perjury or giving a false statement, or for
contempt committed in answering, or failing to answer, or in producing, or in failing to produce,
evidence pursuant to direction given under this section.
### § 28-32-52. Elected official authority.

This chapter does not prohibit an elected official from presiding at that agency's cases, nor
from deciding cases within that agency's jurisdiction.
