SUBCHAPTER 6B ‑ RULE‑MAKING: DECLARATORY
RULINGS AND CONTESTED CASES
SECTION .0100 ‑ RULE‑MAKING AND DECLARATORY
RULINGS
04 NCAC 06B .0101 PETITIONS
History Note: Authority G.S. 54‑109.12; 150B‑16;
Eff. February 1, 1976;
Readopted Eff. April 4, 1978;
Repealed Eff. June 1, 1990.
04 NCAC 06B .0102 NOTICE
History Note: Authority G.S. 54‑109.12; 150B‑12;
Eff. February 1, 1976;
Readopted Eff. April 4, 1978;
Repealed Eff. July 16, 1988 in accordance with G.S. 150B‑59(c).
04 NCAC 06B .0103 HEARINGS
History Note: Authority G.S. 54‑109.12; 150B‑11(3);
150B‑12(d),(e);
Eff. February 1, 1976;
Readopted Eff. April 4, 1978;
Repealed Eff. July 16, 1988 in accordance with G.S. 150B‑59(c).
04 NCAC 06B .0104 TEMPORARY RULES
History Note: Authority G.S. 54‑109.12; 150B‑13;
Eff. February 1, 1976;
Readopted Eff. April 4, 1978;
Repealed Eff. July 16, 1988 in accordance with G.S. 150B‑59(c).
04 NCAC 06B .0105 DECLARATORY RULINGS
History Note: Authority G.S. 54‑109.12; 150B‑17;
Eff. February 1, 1976;
Readopted Eff. April 4, 1978;
Repealed Eff. June 1, 1990.
SECTION .0200 ‑ CONTESTED CASES
04 NCAC 06B .0201 REQUEST FOR HEARING
04 NCAC 06B .0202 GRANTING OR DENYING HEARING REQUESTS
04 NCAC 06B .0203 NOTICE OF HEARING
04 NCAC 06B .0204 WHO SHALL HEAR CONTESTED CASES
04 NCAC 06B .0205 PETITION FOR INTERVENTION
04 NCAC 06B .0206 TYPES OF INTERVENTION
History Note: Authority G.S. 1A‑1, Rule 24; 54‑109.12;
150B‑23; 150B‑38; 150B‑40;
Eff. February 1, 1976;
Readopted Eff. April 4, 1978;
Repealed Eff. June 1, 1990.
SECTION .0300 ‑ RULE‑MAKING HEARINGS
04 NCAC 06B .0301 PETITION FOR ADOPTION: AMENDMENT OR
REPEAL OF RULES
(a) Right to Petition. Any interested person may petition
the Administrator to promulgate, amend, or repeal an administrative rule.
(b) Form of Petition. The petition shall be in writing,
signed by the petitioning party or parties and must include the address of the
petitioning party. In addition, the petition shall contain the following
information:
(1) a draft of the proposed rule, amendment or
repeal or a summary thereof;
(2) the reason(s) for the proposal;
(3) the effect on existing rules or orders or
both;
(4) any data showing the probable effect of the
proposal on existing practices in the area involved, including cost; and
(5) the names of those most likely to be
affected by the proposal with addresses if reasonably known.
(c) Address for Petition. Petitions shall be
addressed to the Division at its mailing address.
(d) Disposition of Petition. Upon receipt of a
petition, the Administrator shall make a study of the facts stated in the
petition and any additional information he deems relevant. The Administrator's
disposition of the petition will be made in one of the following forms within
30 days of receipt of the petition:
(1) a written denial of the proposal setting
forth the reasons for the denial, or
(2) a written communication to the petitioner
indicating the Administrator's plan to initiate rulemaking procedures pursuant
to G.S. 150B-21.2.
History Note: Authority G.S. 54‑109.12; 150B-20; 150B-21.2;
Eff. June 1, 1990;
Amended Eff. March 1, 2013.
04 NCAC 06B .0302 NOTICE OF RULE-MAKING HEARINGS
Any person or agency desiring to be placed on the mailing
list for the Administrator's rule-making notices may file such request by furnishing
a name and mailing address in writing to the Division at its mailing address.
The request must state the subject areas within the authority of the
Administrator's office for which the notice is requested. The Administrator may
require actual postage and stationery costs to be paid by persons receiving
such notices if the person receiving the notices requests more than one copy of
the notice.
History Note: Authority G.S. 54-109.12; 150B-21.2;
Eff. June 1, 1990;
Amended Eff. July 1, 2013.
04 NCAC 06B .0303 RULE-MAKING HEARINGS: GENERAL
INFORMATION
The hearing officer shall have control of the proceedings,
including extensions of any time requirements, order of presentations, time
allotments for presentations, direction of the flow of the discussion and the
management of the hearing. Each person participating in the hearing shall be
given an opportunity to present views, data, and comments.
History Note: Authority G.S. 54-109.12; 150B-21.2;
Eff. June 1, 1990;
Amended Eff. July 1, 2013.
SECTION .0400 ‑ DECLARATORY RULINGS
04 NCAC 06B .0401 PETITION FOR DECLARATORY RULING
(a) Petitioner Must Possess Interest. The petitioner must
possess such an interest in the question to be ruled on that the petitioner's
need to have such a ruling in order to comply with statutory requirements,
Division rules, or Division policy shall be apparent from the petition and
shall be fully explained therein.
(b) Form and Content of Petition. The petition shall be
typewritten and shall contain the name and address of the petitioner, the
specific factual situation involved, the question or questions sought to be
answered, and the identification of the rules, statutes, or orders applicable
to the question presented.
(c) Written Brief May Be Submitted. The petitioner may
submit a written brief, but oral argument shall not be allowed unless deemed
necessary by the Administrator.
(d) Mailing Address. All requests for declaratory rulings
shall be mailed to the Division at its mailing address.
History Note: Authority G.S. 54‑109.12; 150B‑17;
Eff. June 1, 1990.
04 NCAC 06B .0402 RESPONSE OF ADMINISTRATOR TO PETITION
(a) Written Response. A written response to the petition
for a declaratory ruling, whether in the form of a declaratory ruling or a
refusal to issue a declaratory ruling, shall be signed by the Administrator or
his designated representative within 60 days following the date on which the
petition was received by the Division.
(b) Refusal of Issue Declaratory Ruling. The Administrator
may refuse to issue a declaratory ruling if one of the following circumstances
exists:
(1) The subject matter is one in which the
Administrator has no authority to issue a binding decision;
(2) The situation is one in which the amount of
work that would be required by the Administrator and staff to issue the
declaratory ruling would be the same as or greater than the work required to
process the request through normal procedures or a contested case proceeding;
(3) The petition does not state with enough
specificity the factual situation involved, or the question is presented in
such a manner that the Administrator cannot determine what the question is, or
that the Administrator cannot respond with a specific ruling that will be
binding on all parties;
(4) The petitioner does not, in the opinion of
the Administrator, possess sufficient interest in the question to be ruled on;
or
(5) For any other reason the Administrator
finds the issuance of a declaratory ruling to be undesirable.
History Note: Authority G.S. 150B‑17;
Eff. June 1, 1990.
SECTION .0500 ‑ ADMINISTRATIVE HEARINGS
04 NCAC 06B .0501 RIGHT TO HEARING
Whenever the Administrator acts in such a way as to affect
the rights, duties or privileges of a specific identified party, the party may
appeal for a final decision by the Administrator in accordance with Article 3A
of G.S. 150B.
History Note: Authority G.S. 150B‑38;
Eff. June 1, 1990.
04 NCAC 06B .0502 INFORMAL SETTLEMENT
(a) Attendance at Settlement Conference. Before a hearing
request can be acted upon, a person must first make an effort to resolve the
matter with the Division informally and must attend and participate in any scheduled
meetings or conferences.
(b) Settlement Statement. A proposed settlement, including
a stipulated statement of facts, shall be set forth in writing by the
Division. If the proposed settlement is agreed to by all parties to the
matter, it shall represent the final disposition of the matter and shall be
signed by all parties to the matter or their legal representatives. If the
proposed settlement is not agreed to and signed by all parties, then the matter
shall proceed as provided in this Section.
History Note: Authority G.S. 54‑109.12;
Eff. June 1, 1990.
04 NCAC 06B .0503 REQUEST FOR HEARING
(a) Form of Request. A request for an administrative
hearing must be in writing and must contain the following information:
(1) name and address of the person requesting
the hearing;
(2) a concise statement of the action by the
Administrator that is being challenged;
(3) a concise statement of the manner in which
the petitioner is aggrieved; and
(4) a clear and specific demand for a public
hearing.
(b) Address for Request. The request for hearing shall be
filed with the Division at its mailing address.
History Note: Authority G.S. 54‑109.12; 150B‑38;
Eff. June 1, 1990.
04 NCAC 06B .0504 NOTICE OF HEARING
Notice of a public hearing shall be given in writing to the
appropriate parties in advance of the hearing date as required by the law
applicable to the hearing being held.
History Note: Authority G.S. 150B‑38;
Eff. June 1, 1990.
04 NCAC 06B .0505 INTERVENTION IN AN ADMINISTRATIVE
HEARING
(a) Petition to Intervene. A petition to intervene may be
permitted if timely and if the petition meets the criteria set forth in G.S. 1A‑1,
Rule 24(b).
(b) Intervention Criteria. In addition, the Administrator,
in his discretion, may allow intervention or limited intervention when:
(1) Similar rights will be affected;
(2) Intervention will not confuse issues;
(3) Issues are the same or similar to the issue
in question;
(4) Intervention is in the public interest; and
(5) Intervention will not prejudice the rights
of parties.
(c) Form of Petition. A petition to intervene shall
contain the name of the petitioner, the title of the hearing, the date and time
of the hearing, if known, and the grounds for intervention. The petition for
intervention shall be addressed to all parties affected thereby and to the
Division at its mailing address.
(d) Notice of Intervention. If the Administrator allows
intervention, notice of that decision shall be issued promptly to all parties
and to the petitioner. Notification will include a statement of any limitation
of time, subject matter, evidence, or other limitations imposed on the
intervenor. If the Administrator's decision is to deny intervention, the
petitioner will be notified promptly.
History Note: Authority G.S. 1A‑1; 150B‑38;
Eff. June 1, 1990.
04 NCAC 06B .0506 DEPOSITIONS
The use of depositions may be allowed only when attendance
at a hearing would work a hardship on a person otherwise available to be
subpoenaed as a witness, and such hardship is so great as to be unreasonable in
light of the testimony that person may be expected to give. In such a case, a
deposition will be taken in accordance with the North Carolina Rules of Civil
Procedure. All necessary rulings as to whether a deposition will be allowed or
as to methods of securing a deposition are within the power and discretion of
the hearing officer.
History Note: Authority G.S. 1A‑1; 150B‑39;
Eff. June 1, 1990.
04 NCAC 06B .0507 SUBPOENAS
(a) Hearing Officer May Issue Subpoena. Any hearing
officer may issue subpoenas in the name of the Administrator.
(b) Request for Subpoena. Subpoenas requiring the
attendance of witnesses, or the production of documents, evidence or things
will be issued promptly by a hearing officer after receipt of a written request
from a party to a contested case for such subpoena.
History Note: Authority G.S. 150B‑38; 150B‑39;
Eff. June 1, 1990.
04 NCAC 06B .0508 SERVICE OF SUBPOENAS
(a) Methods of Service. Subpoenas shall be served as the
officer issuing the subpoena shall direct. Subpoenas may be directed to be
served by any of the following methods:
(1) by an employee of the Division; or
(2) by the sheriff of the county in which the
person subpoenaed resides, when the party requesting such subpoena prepays the
sheriff's service fee.
(b) Form of Subpoena. Subpoenas will be issued in
duplicate with a "Return of Service" form attached to each copy. The
person serving the subpoena shall fill out the "Return of Service"
form for each copy and promptly return one copy of the subpoena, with the
attached "Return of Service" form completed.
History Note: Authority G.S. 150B‑38; 150B‑39;
Eff. June 1, 1990.
04 NCAC 06B .0509 OBJECTION TO A SUBPOENA
(a) Form of Objection. Except as may be otherwise stated
in a particular subpoena, a party or person receiving a subpoena from the
Division may object thereto by filing a written objection to the subpoena with the
Division at its mailing address. An objection to a subpoena must include a
concise but complete statement of reasons why the subpoena should be revoked or
modified. These reasons may include any reason in law for holding the subpoena
invalid.
(b) Service of Objection. The objection shall be served
upon the Administrator and the party who requested the subpoena. Service shall
be in accordance with the North Carolina Rules of Civil Procedure.
(c) Response to Objection. The party requesting the subpoena
may file a written response to the objection. The response shall be served in
like manner as the objection.
(d) Hearing on Subpoena. After receipt of the objection
and response thereto, the hearing officer may issue a notice to the party who
requested the subpoena and the party challenging the subpoena, and may notify
all other parties of a hearing, to be scheduled as soon as practicable, at
which time evidence and testimony regarding the objection and response may be
presented.
History Note: Authority G.S. 150B‑38; 150B‑40;
Eff. June 1, 1990.
