Section .0100 - Petitions And Rules

Link to law: http://reports.oah.state.nc.us/ncac/title 14b - public safety/chapter 01 - department rules/subchapter b/subchapter b rules.html
Published: 2015

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SUBCHAPTER 01B - RULEMAKING AND ADMINISTRATIVE HEARINGS

 

SECTION .0100 - PETITIONS and RULES

 

14B NCAC 01B .0101       PETITION FOR RULEMAKING HEARINGS

Any person wishing to submit a petition requesting the

adoption, amendment or repeal of a rule by the Secretary of the Department of

Crime Control and Public Safety shall address a petition to:  Secretary,

Department of Crime Control and Public Safety, P.O. Box 27687, Raleigh, N.C.

27611.  The container of the petition should clearly bear the notation:

RULEMAKING PETITION RE, followed by the subject area or an indication of any

other area over which the secretary may have rulemaking authority.

 

History Note:        Authority G.S. 150B-16;

Eff. February 1, 1976;

Amended Eff. December 1, 1979;

Transferred from 14A NCAC 01B .0101 Eff. June 1, 2013.

14B NCAC 01B .0102       CONTENTS OF

PETITION

The petition should include the following information:

(1)           an indication of the subject areas to which the

petition is directed;

(2)           either a draft of the proposed rule or a summary of

its contents;

(3)           reasons for the proposal;

(4)           the effect on existing rules or orders;

(5)           any data supporting the proposal;

(6)           effect of the proposed rule on existing practices

in the area involved, including cost factors;

(7)           names of those most likely to be affected by the

proposed rule, with addresses if reasonably known;

(8)           name(s) and address(es) of petitioner(s).

 

History Note:        Authority G.S. 150B-16;

Eff. February 1, 1976;

Transferred from 14A NCAC 01B .0102 Eff. June 1, 2013.

 

14b NCAC 01B .0103       DISPOSITION OF PETITIONS

(a)  The secretary shall designate a member of his

department to determine whether the public interest will be served by granting

the request.  Prior to making this determination, the secretary's designee may

request additional information from the petitioner(s); he may contact

interested persons or persons likely to be affected by the proposed rule and

request comments; he may use any other appropriate method for obtaining

information on which to base his determination.  He will consider all of the

contents of the petition submitted plus any other information obtained by the

means described herein.

(b)  The designated officer will make a recommendation to

the secretary for the institution of rulemaking proceedings or for the denial

of the petition, as the case may be.

(c)  Within 30 days of submission of the petition, a final

decision will be rendered by the Secretary of the Department of Crime Control

and Public Safety.  If the decision is to deny the petition, the secretary will

notify the petitioner in writing, stating the reasons therefore.  If the

decision is to grant the petition, the secretary, within 30 days of submission,

will initiate a rulemaking proceeding by issuing a rulemaking notice, as

provided in Rule .0201 of this Subchapter.

 

History Note:        Authority G.S. 150B-16;

Eff. February 1, 1976;

Amended Eff. December 1, 1979;

Transferred from 14A NCAC 01B .0103 Eff. June 1, 2013.

 

section .0200 – notice of rulemaking hearings

 

14B NCAC 01B .0201       NOTICE MAILING LIST

Any person or agency desiring to be placed on the mailing

list for Department of Crime Control and Public Safety rulemaking notices, may

file such request in writing, furnishing his name and mailing address to: 

Secretary, Department of Crime Control and Public Safety, P.O. Box 27687,

Raleigh, N.C. 27611.  The letter of request should state those subject areas

within the authority of the secretary for which he wants notice. The secretary

may require reasonable postage and stationery costs to be paid by persons

receiving such notices.

 

History Note         Authority G.S. 150B-12;

Eff. February 1, 1976;

Amended Eff. December 1, 1979;

Transferred from 14A NCAC 01B .0202 Eff. June 1, 2013.

 

14B NCAC 01B .0202       ADDITIONAL INFORMATION

Persons desiring information in addition to that provided in

an individual rulemaking notice may contact: Secretary, Department of Crime Control

and Public Safety, P.O. Box 27687, Raleigh, N.C. 27611.  Any written

communication should clearly indicate the rulemaking proceeding which is the

subject of the inquiry.

 

History Note:        Authority G.S. 150B-12;

Eff. February 1, 1976;

Amended Eff. December 1, 1979;

Transferred from 14A NCAC 01B .0203 Eff. June 1, 2013.

 

SECTION .0300 - RULEMAKING HEARINGS

 

14B NCAC 01B .0301       REQUEST TO PARTICIPATE

Any person desiring to present oral data, views, or

arguments on the proposed rule must, at least five days prior to the hearing,

file a notice with the Office of the Secretary of the Department of Crime

Control and Public Safety. Notice of desire to appear may be waived, or failure

to give notice may be excused, by the presiding officer, in his discretion. Any

person permitted to make an oral presentation is encouraged to submit a written

copy of the presentation to the secretary or his designee prior to or at the

hearing.

 

History Note:        Authority G.S. 150B-12;

Eff. February 1, 1976;

Amended Eff. December 1, 1979;

Transferred from 14A NCAC 01B .0301 Eff. June 1, 2013.

 

14B NCAC 01B .0302       CONTENTS OF REQUEST

A request to make an oral presentation should contain a

clear reference to the proposed rule, a brief summary of the individual's views

in respect thereto, and how long the individual desires to speak. 

Presentations shall be limited to 15 minutes unless the secretary prescribes

some other time limit.

 

History Note:        Authority G.S. 150B-12(e);

Eff. February 1, 1976;

Transferred from 14A NCAC 01B .0302 Eff. June 1, 2013.

 

14B NCAC 01B .0303       RECEIPT OF REQUEST: SPECIFIC TIME LIMITS

Upon receipt of notice of a person's desire to present his

views orally, the secretary will acknowledge receipt of the request and inform

the person of the imposition of any limitations deemed necessary to the end of

a full and effective public hearing on the proposed rule.

 

History Note:        Authority G.S. 150B-12;

Eff. February 1, 1976;

Transferred from 14A NCAC 01B .0303 Eff. June 1, 2013.

 

14b NCAC 01B .0304       WRITTEN SUBMISSIONS

(a)  Any person may file a written submission containing

data, comments or arguments, after publication of a rulemaking notice and

within 10 days after the hearing, unless a different period has been prescribed

in the notice or granted upon request. These written comments should be sent to

the Secretary of the Department of Crime Control and Public Safety, P.O. Box

27687, Raleigh, N.C. 27611. They should clearly state the rule(s) or proposed

rule(s) to which the comments are addressed.

(b)  Upon receipt of written comments, acknowledgement will

be made with an assurance that the comments therein will be considered fully by

the secretary.

 

History Note:        Authority G.S. 150B-12(e);

Eff. February 1, 1976;

Amended Eff. December 1, 1979;

Transferred from 14A NCAC 01B .0304 Eff. June 1, 2013.

 

14B NCAC 01B .0305       HEARING OFFICE: POWERS AND DUTIES

(a)  The secretary may designate a hearing officer to

conduct the public hearing.

(b)  The hearing officer shall have complete control of the

proceedings, including: extensions of any time requirements, recognition of

speakers, time allotments for presentations, the right to question speakers,

direction of the discussion, and management of the hearing.  The hearing

officer, at all times, will take care that each person participating in the

hearing is given a fair opportunity to present views, data, and comments.

 

History Note:        Authority G.S. 150B-12;

Eff. February 1, 1976;

Amended Eff. December 1, 1979;

Transferred from 14A NCAC 01B .0305 Eff. June 1, 2013.

 

14B NCAC 01B .0306       STATEMENT OF REASONS FOR DECISION

(a)  Any person desiring a concise statement of the

principal reasons for or against the adoption of a rule by the Secretary of the

Department of Crime Control and Public Safety may submit a request to the

Secretary, Department of Crime Control and Public Safety, P.O. Box 27687,

Raleigh, N.C. 27611.

(b)  For purposes of Subsection (a) of this Rule, an

"interested person" shall be any person(s) whose rights, duties, or

privileges might be affected by the adoption of the rule in question, or any

group or organization of persons whose rights, duties or privileges might be

affected by the rule.

(c)  The request must be made in writing and submitted prior

to adoption of the rule or within 30 days thereafter.

 

History Note:        Authority G.S. 150B-12;

Eff. February 1, 1976;

Amended Eff. December 1, 1979;

Transferred from 14A NCAC 01B .0306 Eff. June 1, 2013.

 

14b NCAC 01B .0307       RECORD OF PROCEEDINGS

A record of all rulemaking proceedings will be maintained in

the Office of the Secretary of the Department of Crime Control and Public

Safety for as long as the rule is in effect, and then be disposed of in

accordance with state law. This record will contain:  the original petition,

the notice, all written memoranda and information submitted, and a record of

summary or oral presentations, if any.  Record of rulemaking proceedings will

be available for public inspection during the regular office hours of the

secretary.

 

History Note:        Authority G.S. 150B-12;

Eff. February 1, 1976;

Amended Eff. December 1, 1979;

Transferred from 14A NCAC 01B .0307 Eff. June 1, 2013.

 

14A NCAC 01B .0308       TEMPORARY RULES

Whenever the adoption of a temporary rule is determined to

be necessary and is allowed by law, the Secretary of Crime Control and Public

Safety will issue such notice, written, telegraphic, telephonic, or other, and

allow such comments, oral or written as time permits.

 

History Note:        Authority G.S. 150B-13;

Eff. February 1, 1976;

Amended Eff. July 1, 1988; December 1, 1979

Transferred from 14A NCAC 01B .0308 Eff. June 1, 2013.

 

SECTION .0400 - DECLARATORY RULINGS

 

14B NCAC 01B .0401       SUBJECTS OF DECLARATORY RULINGS

Any person substantially affected by a statute administered

or rule promulgated by the Secretary of the Department of Crime Control and

Public Safety may request a declaratory ruling as to either the manner in which

a statute or rule applies to a given factual situation, if at all, or whether a

particular agency rule is valid.

 

History Note:        Authority G.S. 150B-17;

Eff. February 1, 1976;

Amended Eff. December 1, 1979;

Transferred from 14A NCAC 01B .0401 Eff. June 1, 2013.

 

14B NCAC 01B .0402       SUBMISSION OF REQUEST FOR RULING

All requests for declaratory rulings shall be written and

mailed to the Secretary, Department of Crime Control and Public Safety, P.O.

Box 27687, Raleigh, N.C. 27611.  The container of the request should bear the

notation: REQUEST FOR DECLARATORY RULING.  The request must include the

following information:

(1)           name and address of petitioner;

(2)           statute or rule to which petition relates;

(3)           concise statement of the manner in which petitioner

is aggrieved by the rule or statute or its potential application to him;

(4)           a statement of whether an oral hearing is desired,

and if so, the reason therefore.

 

History Note:        Authority G.S. 150B-17;

Eff. February 1, 1976;

Amended Eff. December 1, 1979;

Transferred from 14A NCAC 01B .0402 Eff. June 1, 2013.

 

14B NCAC 01B .0403       DISPOSITION OF REQUESTS

(a)  When the Secretary of the Department of Crime Control

and Public Safety deems it appropriate to issue a declaratory ruling, he shall issue

such declaratory ruling within sixty days of receipt of the petition.

(b)  A declaratory ruling proceeding may consist of written

submissions, an oral hearing, or other procedure as may be appropriate in the

circumstances of the particular request as determined by the secretary.

(c)  Whenever the secretary believes "for good

cause" that the issuance of a declaratory ruling is undesirable, he may

refuse to issue such ruling.  When good cause is deemed to exist, he will

notify the petitioner of his decision in writing, stating the reasons for the

denial of the declaratory ruling.

(d)  For purposes of Subpart (c) of this Rule, the Secretary

of the Department of Crime Control and Public Safety will ordinarily refuse to

issue a declaratory ruling:

(1)           unless the petitioner shows that the

circumstances are so changed since the adoption of the rule that such a ruling

would be warranted;

(2)           unless the petitioner shows that the agency

did not give to the factors specified in the request for a declaratory ruling a

full consideration at the time the rule was issued;

(3)           where there has been a similar controlling

factual determination in a contested case, or where the factual context being

raised for a declaratory ruling was specifically considered upon the adoption

of the rule or directive being questioned, as evidenced by the rulemaking

record;

(4)           where the subject matter of the request is

involved in pending litigation in any state or federal court in North Carolina.

 

History Note:        Authority G.S. 150B-17;

Eff. February 1, 1976;

Amended Eff. December 1, 1979;

Transferred from 14A NCAC 01B .0403 Eff. June 1, 2013.

 

14B NCAC 01B .0404       RECORD OF DECISION

A record of all declaratory rulemaking proceedings will be

maintained in the Office of the Secretary of Crime Control and Public Safety

for as long as the ruling is in effect and for five years thereafter.  This

record will contain: the petition, the notice, all written submissions filed in

the request, whether filed by the petitioner or any other person, and a record

or summary of oral presentations, if any.  Records of declaratory rulemaking

proceedings will be available for public inspection during the regular office

hours of the Department of Crime Control and Public Safety.

 

History Note:        Authority G.S. 150B-17;

Eff. February 1, 1976;

Amended July 1, 1988; December 1, 1979

Transferred from 14A NCAC 01B .0404 Eff. June 1, 2013.

 

14b NCAC 01B .0405       DEFINITION

For purposes of Rule .0404 of this Section, a declaratory

ruling shall be deemed to be "in effect": until the statute or rule

interpreted by the declaratory ruling is amended, altered or repealed; until

the Department of Crime Control and Public Safety changes the declaratory

ruling prospectively for good reasons; or until any court sets aside the ruling

in litigation between the Department of Crime Control and Public Safety and the

party requesting the rule; or until any court of the Appellate Division of the

General Court of Justice shall construe the statute or rule which is the

subject of the declaratory ruling in a manner plainly irreconcilable with the

declaratory ruling.

 

History Note:        Authority G.S. 150B-12; 150B-17;

Eff. February 1, 1976;

Amended Eff. December 1, 1979;

Transferred from 14A NCAC 01B .0405 Eff. June 1, 2013.

 

 

section .0500 - contested case

 

14B NCAC 01B .0501       REQUEST FOR HEARING

(a)  Informal proceedings through the department grievance

procedure or other adversary proceeding should be used prior to seeking a

contested case hearing.

(b)  An individual who is dissatisfied with the informal

proceeding, may file a request for a petition for a contested case hearing with

the Office of Administrative Hearings, Post Office Drawer 11666, Raleigh, North

Carolina 27604.

(c)  A copy of the petition should be sent to the Secretary

of Crime Control and Public Safety at the address listed in these Rules.

(d)  Contested case hearings shall be conducted in

accordance with Chapter 150B of the General Statutes and the rules of the

Office of Administrative Hearings.

 

History Note:        Authority G.S. 150A-23;

Eff. February 1, 1976;

Amended Eff. July 1, 1988; December 1, 1979;

Transferred from 14A NCAC 01B .0502 Eff. June 1, 2013.