10A NCAC 45B .0104       DECLARATORY RULINGS

(a)  The Department shall in accordance with G.S. 150B-4 issue declaratory rulings concerning rules found in 15A NCAC 13, 15A NCAC 18, and 10A NCAC 39 through 47.

(b)  All requests for declaratory rulings shall be by written petition and shall be submitted to: Division of Public Health, 1915 Mail Service Center, Raleigh, North Carolina 27699-1915.

(c)  Every request for a declaratory ruling must include the following information:

(1)           the name and address of the petitioner,

(2)           the statute or rule to which the petition relates,

(3)           a concise statement of the manner in which the petitioner is aggrieved by the rule or statute or its potential application to him, and

(4)           the consequences of a failure to issue a declaratory ruling.

(d)  The Department shall refuse to issue a declaratory ruling whenever the Department believes for good cause that the issuance of a declaratory ruling is undesirable.  When good cause is deemed to exist, the Department shall notify the petitioner of the decision in writing, stating the reasons for the denial of a declaratory ruling.  The Department shall issue a declaratory ruling under the following circumstances:

(1)           the petitioner shows that the circumstances are so changed since adoption of the rule that such a ruling would be warranted;

(2)           the rule making record evidences a failure by the agency to consider specified relevant factors.

(e)  The Department shall not issue a declaratory ruling under the following circumstances:

(1)           if there has been a similar controlling factual determination in a contested case, or if the factual context being raised for a declaratory ruling was specifically considered upon adoption of the rule being questioned as evidenced by the rule making record; or

(2)           if circumstances stated in the request or otherwise known to the agency show that a contested case hearing would presently be appropriate.

(f)  A declaratory ruling procedure may consist of written submissions, oral hearings, or such other procedure as may be deemed appropriate, in the discretion of the Department, in the particular case.

(g)  The Department may issue notice to persons who might be affected by the ruling that written comments may be submitted or oral presentations received at a scheduled hearing.

History Note:        Authority G.S. 150B-4;

Eff. February 1, 1976;

Amended Eff. March 1, 1987; December 22, 1980;

Transferred and Recodified from 10 NCAC 4B .0108 Eff. April 4, 1990;

Amended Eff. November 1, 2005; December 1, 1990;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. January 13, 2015.