dissenting.
I respectfully dissent from the majority opinion holding that respondent was not barred under N.C. Gen. Stat. § 150B-19(4) from promulgating rules for implementation of the twenty-four month limitation of Work First benefits.
After the Rutherford County Department of Social Services upheld the decision to terminate petitioner’s Work First Family Assistance, he exercised his right of review by respondent. After a hearing, the respondent issued a decision, later upheld by the chief hearing officer, which, in part, found facts and conclusions as follows:
REGULATORY HISTORY AND AUTHORITY — 42 U.S.C. § 1315 allows the Secretary of the United States Department of Health and Human Services (HHS) to waive requirements contained in 42 U.S.C. § 602 that pertain to state plans for Aid to Families with Dependent Children (AFDC) in cases of demonstration or pilot projects. On September 14, 1995, Governor Hunt formally submitted a request for authority to operate a statewide welfare demonstration project, entitled Work First, to HHS. In April, 1996 HHS issued waiver authority to North Carolina to operate the Work First program. The waiver gave North Carolina authority to *43deny AFDC benefits to adults who had received AFDC for 24 months. North Carolina implemented the Work First program, including the 24-month time limit for benefits, in August, 1996. This waiver authority had the legal effect of superseding existing federal statutes that contain no such provision for time limiting benefits. G.S. 150B-19(4) prohibits an agency from adopting a rule that repeats the content of a law, rule, or federal regulation. The waiver authority cited above had the force and effect of federal law. Furthermore, it was sufficiently clear as to the provisions of the waiver authority. There was, therefore, no need for state regulation, and any such regulation would have been repetitive in violation of G.S. 150B-19.
The respondent then concluded that petitioner’s benefits were properly terminated effective 31 July 1998. Petitioner was advised that he could seek a review of the decision in superior court.
Petitioner apparently does not contend that Work First benefits could be limited to twenty-four months. He only contends that an APA rule should have been adopted to authorize such. Likewise, petitioner did not petition the respondent to adopt such a rule pursuant to N.C. Gen. Stat. § 150B-20.
The respondent’s position is summed up as follows: When petitioner signed the contract, he knew of the twenty-four month limitation. The purpose of APA rules is to assume that benefits recipients, such as petitioner, are afforded their due process rights. Petitioner was afforded notice and exercised his appeal rights at every level of review. The Work First Program waiver constitutes federal law in that 42 U.S.C. § 602 establishes the program and 42 U.S.C. § 1315 allows federal authorities to modify federal law by approving a state’s waiver request. The waiver then became the federal law with which a state must comply. Thus, any APA rules would only repeat the law that is in the waiver and N.C. Gen. Stat. § 150B-19(4) prohibits an agency from adopting a rule that “repeats the content of a law, a rule or a federal regulation.” The waiver authority includes waiver terms and conditions for the Work First Program and comprises approximately twenty pages in the record.
In the waiver authority granted to this State, the waiver terms and conditions required:
(1) the demonstration provisions (Work First program) be implemented statewide no earlier than March 1, 1996 and no later than March 1, 1997;
*44(2) the State to deny AFDC to a family if the parent refused to sign the Personal Responsibility contract;
(3) the State to limit the amount of time a family participating in Work First employment and training receiving AFDC benefits to twenty-four months.
Thus, respondent could elect a time within this one-year period to begin implementation of the program. Petitioner was required to sign a contract which clearly set forth the beginning time for the twenty-four month period he was to receive benefits.
I do not believe that this Court’s recent decision in Dillingham v. N.C. Dept. of Human Resources, 132 N.C. App. 704, 513 S.E.2d 823 (1999) is controlling authority. There, the manual required the applicant/recipient to present “clear and convincing written evidence” to rebut the presumption while federal law only required a “satisfactory showing.” Dillingham, 132 N.C. App. at 711, 513 S.E.2d at 828. This Court held the applicable standard of proof be “by a preponderance of the evidence.” Id. at 712, 513 S.E.2d at 828.
Thus, I agree that an APA rule was necessary in Dillingham in order to establish the proper burden of proof consistent with the federal law requirement of a “satisfactory showing.” Id. at 711, 513 S.E.2d at 828. I further conclude from Dillingham that any APA rule adopted with the higher standard of proof of “clear and convincing written evidence” would have been invalid since our Court held: “In the absence of a valid statute or regulation establishing the standard of proof, G.S. § 150B-29 requires that ‘the rules of evidence as applied in the trial division of the General Court of Justice shall be followed.’ ” Id. at 711-712, 513 S.E.2d at 828. Our Supreme Court has further stated “the standard of proof in administrative matters is by the greater weight of the evidence, and it is error to require a showing by clear, cogent and convincing evidence.” Id. at 712, 513 S.E.2d at 828, citng In re Thomas, 281 N.C. 598, 189 S.E.2d 245 (1972).
I conclude the waiver, with its terms and conditions, is clear and no APA rule is required. I would affirm the order of the superior court which affirmed the respondent’s decision as being made upon lawful procedure and not affected by error of law.