SUBCHAPTER 04E ‑ RULEMAKING PROCEDURES

 

SECTION .0100 ‑ GENERAL PROVISIONS

 

15A NCAC 04E .0101       GENERAL PURPOSE

Rules at 15A NCAC 1B .0100 are adopted by reference and with the rules of this Subchapter shall govern rule‑making hearings conducted under the purview of the commission.

 

History Note:        Authority G.S. 113A‑54; 113A‑55; 150B;

Eff. March 14, 1980;

Amended Eff. November 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. February 2, 2016.

15A NCAC 04E .0102       DEFINITIONS

As used in this Subchapter:

(1)           "Commission" means the North Carolina Sedimentation Control Commission.

(2)           "Director" means the Director of the Division of Energy, Mineral, and Land Resources of the Department of Environment, Health, and Natural Resources.

 

History Note:        Authority G.S. 113A‑54; 113A‑55;

Eff. March 14, 1980;

Amended Eff. August 1, 2012 (see S.L. 2012-143, s.1.(f)); May 1, 1990;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. February 2, 2016.

 

15A NCAC 04E .0103       ADDRESS

 

History Note:        Authority G.S. 113A‑54;

Eff. March 14, 1980;

Repealed Eff. November 1, 1984.

 

 

 

15A NCAC 04E .0104       COPIES OF RULES: INSPECTION

(a)  Anyone desiring to obtain a copy of any or all of the rules of the commission may do so by requesting such from the director at the address of the commission as set forth at Rule .0001 of Subchapter A of this Chapter.  The request must specify the rules requested, for example, 15A NCAC 4, Sedimentation Control, or 15A NCAC 4E, Rulemaking Procedures.  The director may charge reasonable fees to recover mailing and duplication costs for requests of more than one copy of the same rule(s).

(b)  The rules of the commission (15A NCAC 4) and other documents specified in G.S. 150B‑11 are available for public inspection at the Office of the Director (P.O. Box 27687, 512 N. Salisbury Street, Raleigh, N.C.  27611) during regular office hours.

 

History Note:        Authority G.S. 113A‑54; 113A‑55; 150B‑11;

Eff. March 14, 1980;

Amended Eff. August 1, 1988; November 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. February 2, 2016.

 

15A NCAC 04E .0105       DELEGATIONS OF AUTHORITY TO THE DIRECTOR

 

History Note:        Authority G.S. 113A‑54; 113A‑55; 150B;

Eff. March 14, 1980;

Amended Eff. November 1, 1984; June 5, 1981;

Repealed Eff. August 1, 1988.

 

 

 

SECTION .0200 ‑ PETITIONS FOR RULEMAKING

 

15A NCAC 04E .0201       PETITION FOR RULEMAKING HEARINGS

Any person wishing to submit a petition requesting the adoption, amendment, or repeal of a rule by the commission shall forward the petition to the director at the address of the commission in Rule .0001 of Subchapter A of this Chapter.  The first page of the petition should clearly bear the notation:  RULEMAKING PETITION RE and then the subject area (for example, RE PLAN REQUIREMENTS, RE PENALTIES, RE INSPECTIONS) or an indication of any other area over which the commission may have rulemaking authority.

 

History Note:        Authority G.S. 113A‑54; 150B‑16;

Eff. March 14, 1980;

Amended Eff. November 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. February 2, 2016.

 

15A NCAC 04E .0202       CONTENTS OF PETITION

 

History Note:        Authority G.S. 113A‑54; 150B‑16;

Eff. March 14, 1980;

Repealed Eff. November 1, 1984.

 

 

 

15A NCAC 04E .0203       DISPOSITION OF PETITIONS

(a)  The director will determine whether the petition contains sufficient information for the commission to determine whether the public interest will be served by granting the request.  The director 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, and he may use any other appropriate method for obtaining additional information.

(b)  The commission will render a decision within 30 days after the petition is submitted.  If the decision is to grant the petition, the director, within 30 days of submission, will initiate a rulemaking proceeding.  If the decision is to deny the petition, the director will notify the petitioner(s) in writing, stating the reasons therefor.

(c)  If the commission is not scheduled to meet within 30 days of submission of a petition the director may either:

(1)           accept the petition and initiate a rulemaking proceeding; or

(2)           Ask the chairman of the commission to call a special meeting of the commission so that a decision can be made by the commission within the 30 day time period required by 150B‑16 and in accordance with the procedures set out in (b) of this Rule.

 

History Note:        Authority G.S. 113A‑54; 113A‑55; 150B‑16;

Eff. March 14, 1980;

Amended Eff. August 1, 1988; November 1, 1984; June 5, 1981;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. February 2, 2016.

 

SECTION .0300 ‑ NOTICE OF RULEMAKING HEARINGS

 

15A NCAC 04E .0301       TIMING OF NOTICE

 

History Note:        Authority G.S. 113A‑54; 150B‑12;

Eff. March 14, 1980;

Repealed Eff. November 1, 1984.

 

 

 

15A NCAC 04E .0302       NOTICE MAILING LIST

 

History Note:        Authority G.S. 113A‑54; 150B‑12(b);

Eff. March 14, 1980;

Amended Eff. November 1, 1984;

Repealed Eff. August 1, 1988.

 

 

 

15A NCAC 04E .0303       ADDITIONAL INFORMATION

 

History Note:        Authority G.S. 113A‑54; 150B‑12;

Eff. March 14, 1980;

Repealed Eff. November 1, 1984.

 

 

 

SECTION .0400 ‑ RULEMAKING HEARINGS

 

15A NCAC 04E .0401       REQUEST TO PARTICIPATE

15A NCAC 04E .0402       CONTENTS OF REQUEST: GENERAL TIME LIMITATIONS

 

History Note:        Authority G.S. 113A‑54; 150B‑12(d),(e);

Eff. March 14, 1980;

Repealed Eff. November 1, 1984.

 

 

 

15A NCAC 04E .0403       WRITTEN SUBMISSIONS

(a)  Any person may file a written submission containing data, comments, or arguments after distribution or publication of a rulemaking notice until the day of the hearing, unless a longer period has been prescribed in the notice or granted upon request.  These written comments should be sent to the director at the address of the commission.

(b)  The first page of any written submission shall clearly identify the rulemaking proceeding or proposed rule to which the comments are addressed and include a statement of the position of the person making the submission (for example, "In support of adopting proposed Rule .0000," "In opposition to adopting proposed Rule .0000").

(c)  Upon receipt of written comments, acknowledgment will be made with an assurance that the comments therein will be considered fully by the commission.

 

History Note:        Authority G.S. 113A‑54; 150B‑12(e);

Eff. March 14, 1980;

Amended Eff. June 5, 1981;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. February 2, 2016.

 

15A NCAC 04E .0404       PRESIDING OFFICER: POWERS AND DUTIES

 

History Note:        Authority G.S. 113A‑54; 150B‑12;

Eff. March 14, 1980;

Repealed Eff. November 1, 1984.

 

 

 

15A NCAC 04E .0405       STATEMENT OF REASONS FOR DECISION

(a)  Any interested person desiring a concise statement of the principal reasons for and against the adoption of a rule by the commission and the factors that led to overruling the considerations urged for or against its adoption may submit a request to the director of the address of the commission.

(b)  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. 113A‑54; 150B‑12(e);

Eff. March 14, 1980;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. February 2, 2016.

 

15A NCAC 04E .0406       RECORD OF PROCEEDINGS

A record of all rulemaking proceedings will be maintained by the director for as long as the rule is in effect, and for five years thereafter, following filing with the Office of Administrative Hearings.  Record of rulemaking proceedings will be available for public inspection during the hours of 8:30 AM to 5:30 PM on workdays.

 

History Note:        Authority G.S. 113A‑54; 150B‑11(2);

Eff. March 14, 1980;

Amended Eff. August 1, 1988; November 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. February 2, 2016.

 

SECTION .0500 ‑ DECLARATORY RULINGS

 

15A NCAC 04E .0501       SUBJECTS OF DECLARATORY RULINGS

Any person aggrieved by a statute administered or rule promulgated by the commission 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.  For purposes of this Section, an aggrieved person means a person substantially affected by a statute administered by the commission or a rule promulgated by the commission.

 

History Note:        Authority G.S. 113A‑54; 150B‑17;

Eff. March 14, 1980;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. February 2, 2016.

 

15A NCAC 04E .0502       SUBMISSION OF REQUEST FOR RULING

All requests for declaratory rulings shall be written and mailed to the director at the address of the commission.  The first page 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 therefor.

 

History Note:        Authority G.S. 113A‑54; 150B‑17;

Eff. March 14, 1980;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. February 2, 2016.

 

15A NCAC 04E .0503       DISPOSITION OF REQUESTS

(a)  Upon receiving a request, the director is authorized to initiate a declaratory ruling proceeding to receive information concerning the request.  A declaratory ruling proceeding may consist of written submissions, an oral hearing, or other procedures as may be appropriate in the circumstances of the particular request.  If the proceeding takes the form of an oral hearing the director may direct that the proceeding take place before the commission.

(b)  The director will compile the information collected in the proceeding, along with other relevant information, in a recommendation to the commission on whether to issue the ruling and what the ruling should be.

(c)  A decision whether to issue the ruling will be made by the commission at the next regularly scheduled meeting of the commission within the 60 day period required by 150B‑17 and after the director's recommendation is presented.  If no meeting is scheduled within that time period, the director will ask the chairman of the commission to call a special meeting so that the commission can comply with the requirements of G.S. 150B‑17.

(d)  If the decision of the commission is to issue the ruling, the ruling will be issued by the commission with the 60 day period required by G.S. 150B‑17.  If necessary, the chairman of the commission will call a special meeting so that the commission can comply with this requirement.

(e)  If the decision of the commission is to deny the request, the director will notify the petitioner(s) in writing stating the reasons therefor.

(f)  For purposes of this Rule, the commission will ordinarily refuse to issue a declaratory ruling:

(1)           unless the rule is unclear on its face;

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

(3)           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;

(4)           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; or

(5)           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. 113A‑54; 113A‑55; 150B‑17;

Eff. March 14, 1980;

Amended Eff. August 1, 1988; June 5, 1981;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. February 2, 2016.

 

15A NCAC 04E .0504       RECORD OF DECISION

A record of all declaratory rulemaking proceedings will be maintained in the director's office 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 director.

 

History Note:        Authority G.S. 113A‑54; 150B‑11;

Eff. March 14, 1980;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. February 2, 2016.