Section .0100 ‑ Rulemaking Procedures

Link to law: http://reports.oah.state.nc.us/ncac/title 07 - cultural resources/chapter 01 - departmental rules/subchapter b/subchapter b rules.html
Published: 2015

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SUBCHAPTER 1B ‑ PROCEDURAL RULES

 

SECTION .0100 ‑ RULEMAKING PROCEDURES

 

 

07 NCAC 01B .0101          DEFINITIONS

The following definitions apply throughout Title 7, North

Carolina Administrative Code:

(1)           Department ‑‑ the Department of

Cultural Resources, and any agency, division, commission, council, committee,

or board of that department;

(2)           Secretary ‑‑ the Secretary of the

Department of Cultural Resources.

 

History Note:        Authority G.S. 143B‑10;

Eff. February 1, 1976;

Readopted Eff. December 1, 1977;

Amended Eff. June 1, 1989.

 

 

07 NCAC 01B .0102          PETITIONS

(a)  Any person may request a public hearing on the

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

Cultural Resources by addressing a petition to the Office of the Secretary,

Department of Cultural Resources, 109 East Jones Street, Raleigh, N.C.  27611.

(b)  The petition must contain the following information:

(1)           name and address of each petitioner;

(2)           a citation to any rule petitioner desires

to repeal or amend, a draft of the proposed rule or amendment, or a summary of

the major elements of a proposed rule;

(3)           reasons for submitting the petition;

(4)           any supporting data;

(5)           anticipated effect of a proposed rule or

repeal of a rule on the petitioner and on existing practices in the area

involved, including cost factors if possible;

(6)           names and addresses of others likely to be

affected by the proposed rule or repeal of a rule, if known.

(c)  The Secretary will promptly forward petitions over

which he has no rulemaking authority to the Commission or other agency within

the Department which has authority to promulgate rules over the subject matter

of the petition.

(d)  The Department may request further information

regarding the petition from the petitioner or from any other person.

(e)  The petitioner will be notified in writing either that

the petition is denied or approved as provided for in G.S. 150B‑16.

 

History Note:        Authority G.S. 143B‑10; 143B‑14;

150B‑16;

Eff. February 1, 1976;

Readopted Eff. December 1, 1977;

Amended Eff. June 1, 1989.

 

 

 

07 NCAC 01B .0103          NOTICE

Notice of a rulemaking hearing will include any deadlines by

which participants must submit written comments or return requests to make oral

statements at the hearing.

 

History Note:        Authority G.S. 150B‑12; 150B‑14;

Eff. February 1, 1976;

Readopted Eff. December 1, 1977;

Amended Eff. June 1, 1989.

 

 

 

07 NCAC 01B .0104          MAILING LISTS

(a)  Any person or agency may be placed on mailing lists for

department rulemaking notices by filing a request in writing, furnishing name

and mailing address to the Office of the Secretary, Department of Cultural Resources,

Raleigh, North Carolina 27611.

(b)  The request must specify subject areas within the

rulemaking authority of the Department for which notice is requested.

(c)  The Department employee who maintains the lists will

review them from time to time.  He may write to any person on the lists and

inquire whether that person still wishes to receive notices of rulemaking

hearings.  If no response is received, that person may be removed from the

lists.

(d)  The Department may charge reasonable postage fees and

copying costs to persons on its mailing lists.

 

History Note:        Authority G.S. 143B‑10; 150B‑12;

Eff. February 1, 1976;

Readopted Eff. December 1, 1977;

Amended Eff. June 1, 1989.

 

 

 

07 NCAC 01B .0105          WRITTEN SUBMISSIONS

(a)  Following notice of a rulemaking hearing, any person

may submit written data, views, or arguments regarding a proposed rule for

consideration by the Department.  Submissions must include the person's name, address,

and interest in the proposed rule, and must clearly identify the rule with

which the comments are concerned.  Unless otherwise designated in the

particular rulemaking notice, or unless an exemption is granted by the hearing

officer, written submissions:

(1)           must not exceed the number of pages

designated in the notice;

(2)           must be received no later than the day

scheduled for the hearing; and

(3)           must be addressed to the hearing officer

designated in the notice.

(b)  The hearing officer will acknowledge promptly receipt

of all written submissions.

 

History Note:        Authority G.S. 143B‑10; 150B‑12;

Eff. February 1, 1976;

Readopted Eff. December 1, 1977;

Amended Eff. June 1, 1989.

 

 

 

07 NCAC 01B .0106          HEARINGS

(a)  The Secretary, or the agency within the Department with

authority to promulgate rules in a given area, may designate an employee to

serve as the hearing officer for the Department's rulemaking proceedings.

(b)  A notice of rulemaking may state that any person who

wishes to present oral data, views, or arguments at a rulemaking hearing must

submit a request to do so by a designated date.  Failure to return a timely

request to speak will constitute waiver of the right to speak at a hearing. 

This requirement may be waived by the hearing officer in his discretion.

(c)  A request to make an oral presentation, if required,

must contain:

(1)           the name of the person wishing to speak and

the name of any organization or group the person represents;

(2)           a brief summary of the person's views on

the rule; and

(3)           an estimate of the time needed for the

presentation.

(d)  If time permits, the hearing officer will acknowledge

receipt of requests to speak, and will inform such persons of any limitations

on their participation in the hearing.

(e)  The hearing officer will ensure that all differing view‑points

are represented fairly at the hearing.  The hearing officer will have complete

control of the proceedings, including the power to:

(1)           determine a reasonable time limit for

presentations;

(2)           recognize persons wishing to speak;

(3)           require large groups of persons who have

indicated similar views on the proposed rule to choose a representative to

speak for the group;

(4)           choose a representative speaker for such

groups who are unorganized, or who can reach no consensus;

(5)           limit or extend the time allotted to each

speaker;

(6)           question speakers and direct the flow of

the discussion; and

(7)           adjourn or continue the proceedings.

(f)  Persons participating in the hearing are encouraged to

submit a copy of their remarks at the hearing.

 

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

Eff. February 1, 1976;

Readopted Eff. December 1, 1977;

Amended Eff. June 1, 1989.

 

 

 

07 NCAC 01B .0107          STATEMENT OF REASONS FOR DECISION

(a)  A request for a statement of the reasons for a

rulemaking decision by the Department must be submitted to the hearing officer

who conducted the hearing.

(b)  For purposes of this Rule, an "interested

person" is any person who may have an interest in the rule in question.

(c)  The request must be submitted prior to final action on

the rule or within 30 days after final action.  The request must include:

(1)           the person's name and address;

(2)           identification of the rule or relevant

portion of it;

(3)           statement of how the action affects the

petitioner;

(4)           objections to the action, if any; and

(5)           specific arguments urged for or against the

action which petitioner wants discussed.

 

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

Eff. February 1, 1976;

Readopted Eff. December 1, 1977;

Amended Eff. June 1, 1989.

 

 

 

07 NCAC 01B .0108          RECORD OF RULEMAKING

(a)  A record of all rulemaking proceedings, including any

petitions for rulemaking received by the Department, is available for

inspection during regular office hours at the Office of the Secretary,

Department of Cultural Resources, Raleigh, North Carolina 27611.

(b)  This record will contain as much of the following

information as is appropriate:  the original petition, reasons for denying a

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

or summary of oral proceedings, the rule, and a concise justification of the

rulemaking decision.

 

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

Eff. February 1, 1976;

Readopted Eff. December 1, 1977;

Amended Eff. June 1, 1989.

 

 

 

07 NCAC 01B .0109          EMERGENCY RULEMAKING

 

History Note:        Authority G.S. 150A‑13; 143B‑10;

Eff. February 1, 1976;

Readopted Eff. December 1, 1977;

Repealed Eff. March 1, 1989 in accordance with G.S. 150B‑59(c).

 

 

 

07 NCAC 01B .0110          DECLARATORY RULINGS

(a)  Requests for declaratory rulings must be made in

writing to the Office of the Secretary, Department of Cultural Resources,

Raleigh, North Carolina 27611.  Such requests must include:

(1)           the name and address of the petitioner;

(2)           a citation to the rule or statute in

question;

(3)           arguments or data which demonstrate that

the petitioner is aggrieved by the rule or statute or its potential application

to him; and

(4)           consequences of a failure to issue a

declaratory ruling in favor of the petitioner;

(5)           a statement of whether an oral hearing is

desired, and, if so, the reasons for requesting such an oral hearing.

(b)  The Department may refuse to issue a declaratory ruling

if:

(1)           Similar factual circumstances were specifically

considered in the rulemaking proceedings;

(2)           There has been a similar determination in a

previous contested case or declaratory ruling; or

(3)           There exists other good cause to refuse to

issue a ruling.

(c)  Before deciding the merits of the request, the

Department may:

(1)           request written submissions from any

person;

(2)           consult with members of the Department

staff or any other person; or

(3)           hold an informal oral hearing.

(d)  Requests for declaratory rulings will be decided by the

Secretary, by any employee designated by the Secretary, or by the appropriate

agency of the Department.

(e)  Within 60 days of receipt of the petitioner's request,

the petitioner will be sent either:

(1)           written notification that the request for a

declaratory ruling is denied, including reasons for the denial; or

(2)           written notification that the request is

approved and a copy of the ruling.

(f)  A record of the declaratory ruling proceeding will be

maintained for public inspection at the Office of the Secretary of the

Department of Cultural Resources, Raleigh, North Carolina 27611.  The record

will contain all submissions of the petitioner, other information considered, a

transcript or summary of any hearing, and either a statement of the reasons

denying the petition or the ruling.

 

History Note:        Authority G.S. 143B‑14; 150B‑17;

Eff. February 1, 1976;

Readopted Eff. December 1, 1977;

Amended Eff. June 1, 1989.

 

 

 

 

 

SECTION .0200 ‑ CONTESTED CASE PROCEDURES

 

07 NCAC 01B .0201          DEFINITIONS

07 NCAC 01B .0202          REQUEST FOR AN ADMINISTRATIVE HEARING

07 NCAC 01B .0203          NOTICE

07 NCAC 01B .0204          WRITTEN ANSWERS TO NOTICE

07 NCAC 01B .0205          CHANGE OF VENUE

07 NCAC 01B .0206          HEARING OFFICER

07 NCAC 01B .0207          DISQUALIFICATION OR UNAVAILABILITY OF

HEARING OFFICER

07 NCAC 01B .0208          INTERVENTION

07 NCAC 01B .0209          SIMPLIFICATION OF ISSUES

07 NCAC 01B .0210          PREHEARING CONFERENCE

07 NCAC 01B .0211          ISSUANCE OF SUBPOENAS

07 NCAC 01B .0212          OBJECTION TO SUBPOENAS

07 NCAC 01B .0213          CONTINUANCES: ADJOURNMENTS

07 NCAC 01B .0214          PROPOSAL FOR DECISION

07 NCAC 01B .0215          ASSISTANCE OF COUNSEL

07 NCAC 01B .0216          REQUEST FOR TRANSCRIPT OF HEARING

07 NCAC 01B .0217          RECORD OF HEARING

 

History Note:        Authority G.S. 140A‑24; 140A‑32;

143B‑10; 143B‑14; 150A‑2; 150A‑10; 150A‑11;

150A‑23; 150A‑25; 150A‑27; 150A‑31;

150A‑32; 150A‑33; 150A‑34; 150A‑37;

Eff. February 1, 1976;

Readopted Eff. December 1, 1977;

Repealed Eff. March 1, 1989 in accordance with G.S. 150B‑59(c).