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.
