Current through March 20, 2024
005.01
Process Generally.
Upon the filing of a petition, the Director may consider the
petition for him/herself, refer a petition to an appropriate licensing or
governing board, or delegate the matter to a designated hearing officer, board,
or %e a Department employee to consider the petition and recommend a decision
to the Director.
005.01A In reviewing
a petition, the Department may, in its discretion do one or more of the
following:
005.01A1 Require that additional
information be submitted before the petition will be considered.
005.01A2 Require petitioner to provide notice
to persons who may be necessary parties and other persons of the pendency of
the proceeding;
005.01A3 Schedule a
date, time and location at which the petitioner and any other parties may make
an oral presentation on the petition.
005.01A4 Consider the petition and any
attachments without oral presentation.
005.01B Within thirty (30) days after receipt
of a petition, the Department shall in writing:
005.01B1 Set the matter for specified
proceedings as described in
005.01A
005.01B2 Decline to issue a declaratory order
on the merits of the petition; or
005.01B3 Issue a declaratory order.
005.01B4 Agree to issue a declaratory order
by a specified time.
Notwithstanding this section, the Department may determine at
any time that it will not issue a declaratory order if issuance of anorder
under the circumstances would be contrary to any provisions of section 005.11
of these regulations. The Department shall notify the petitioner and, if
applicable, any intervenor or necessary party in writing when the Department
determines not to issue a declaratory order.
005.01C If the Department has not issued a
declaratory order within sixty (60) days after receipt of a petition therefor,
the petition shall be deemed to have been denied.
005.01D
Decisions; By Whom
Made. Decisions on petitions may be made:
005.01D1 Only by the Director, when the
decision is to issue an order on the merits on behalf of the Department;
005.01D2 By a designee of the
Director, when the decision is not to issue an order on the merits on behalf of
the Department;
005.01D3 By a
requisite number of members of a board, when a petition seeks a declaratory
order about statutes or regulations that are within the sole authority of a
board of the Department to implement by regulations or otherwise; or
005.01D4 By both the Director and a board,
when they have joint authority to adopt regulations to implement or interpret
the law for which an order is sought.
Either the Director or the designated representative may call
upon other staff of the Department to provide technical or legal advice as
needed to make or to recommend a
determination.
005.02
Additional
Information.
If, upon review of the petition, additional information is
determined by the Department to be needed to consider the petition, the
Department shall notify the petitioner of the nature of the information to be
submitted. The request may be made in writing or verbally, but if made
verbally, must be confirmed to writing and signed by the person making the
request. Department review shall be made within fifteen (15) days of the filing
of the petition. The petitioner shall have five (5) days from the receipt of
the verbal or written request in which to submit the requested information. The
information must be given in writing and be signed by the petitioner. The
request and response will be made part of the official record of the
proceeding.
005.03
Intervention.
005.03A
When. The
Department shall grant a petition for intervention if all of the following are
satisfied.
005.03A1 The petition is submitted
in writing to the Director or designee, with copies mailed to all parties named
in the Director's notice of the hearing, no later than twenty-five (25) days
after the filing date of the petition to permit consideration prior to
disposition as provided by
005.01B. After the
period specified in
005.01B
intervention may be allowable:
005.03A1a upon
motions made not less than five (5) days prior to any proceedings scheduled;
or
005.03A1b upon motions made not
more than forty-five (45) days after filing of the petition when the matter is
still under consideration;
whichever is earlier.
005.03A2 The petition states facts
demonstrating that the petitioner's legal rights, duties, privileges,
immunities, or other legal interests may be substantially affected by the
proceeding or that the petitioner qualifies as an intervenor under any
provision of law.
005.03A3 The
Department determines that the interests of justice and the orderly and prompt
conduct of the proceedings will not be impaired by allowing the intervention.
The Department may grant a petition for intervention at any time upon
determining that the intervention sought is in the interests of justice and
will not impair the orderly and prompt conduct of the proceedings.
005.03B
Conditions. If a petitioner qualifies for intervention, the
Department may impose conditions upon the intervener's participation in the
proceedings, either at the time that intervention is granted or at any
subsequent time. Conditions may include:
005.03B1 Limiting the intervener's
participation to designated issues in which the intervenor has a particular
interest demonstrated by the petition;
005.03B2 Limiting the intervenor's
participation to briefing or other procedures so as to promote the orderly and
prompt conduct of the proceedings; and
005.03B3 Requiring two or more intervenors to
combine their presentation(s) and other participation in the
proceedings.
005.03C
Order on Intervention. The Department shall issue an
order granting or denying each pending petition for intervention, specifying
any conditions and briefly stating the reasons for the order:
005.03C1 On or before the thirtieth day
following the filing of the petition for declaratory order when intervention is
sought under
005.03A1.
005.03C2 Within twenty-four hours after a
petition for intervention is sought under
005.03A1a or
005.03A1b, as
applicable.
The Director or designee may modify the order at any time,
stating the reasons for the modification. The Director or designee shall
promptly give notice of an order granting, denying, or modifying intervention
to the petitioner for intervention and to all parties.
005.04
Oral
Presentation (Argument), When.
Oral argument shall be had only on specific order of the
Department on its own motion or upon motion by petitioner or other party.
Request may be made in the petition. If opportunity for oral argument is
granted, argument shall be scheduled to be held not more than forty-five (45)
days after filing of the petition. Petitioner and all other parties or, when
represented, their attorneys, shall be served with a notice of the date, time
and place for oral argument not less than five (5) days in advance of the
scheduled date. Service shall be made by certified mail, return receipt
requested. Oral argument may be conducted either in person or by telephone
conference or with the approval of the Department, by other electronic means
that may be technically feasible, subject to agreement considering cost and
responsibility for payment.
005.05
Oral Presentation,
Procedure.
Oral presentation will be made before the representative of
the Department authorized to render or to recommend a decision or before a
hearing officer.
005.05A The
Department representative or hearing officer shall:
005.05A1 Identify the proceeding and
introduce himself or herself;
005.05A2 Ask the petitioner and any other
parties or their representatives to identify themselves for the
record;
005.05A3 Hear the oral
presentation of the petitioner and any other parties; and
005.05A4 Close the proceedings.
005.05B At the declaratory order
proceeding, agency staff shall have the right to present oral
argument.
005.05C The Department
representative or hearing officer conducting the proceeding may ask questions
during or after the presentation(s).
005.05D Oral presentation shall not exceed
forty-five (45) minutes per party in duration unless additional time is granted
by the Department representative or hearing officer.
005.05E Parties may make oral presentation on
their own behalf or be represented by an attorney.
005.05F A court reporter shall be present to
record the presentation(s).
005.06
Brief.
A petitioner may submit a written argument, or brief, in
support of the petition at time of filing without leave of the Department. The
Department may require a brief or may grant opportunity to submit a brief after
filing upon application by any party. If required or granted, the parties shall
submit the brief according to the date set by the Department. A brief must meet
the requirements of 004.02 in form.
005.07
Decision,
When.
The Department shall act on a petition within sixty (60) days
of the date of the filing of a petition.
005.08
Decision,
Form.
The decision may be made in the form of a pleading or
letter.
005.09
Decision, Content.
The decision may consist of a declaratory order on the merits
of the petition or a refusal to rule on the merits. When the decision is a
refusal to rule, the decision shall contain the reasons for its action.
Decisions consisting of a declaratory order shall contain:
005.09A The names of all parties to the
proceeding on which it is based;
005.09B The particular facts on which it is
based; and
005.09C The statute,
regulations, rule or order at issue in the matter;
005.09D The Department's conclusion as to the
applicability of the statute, regulations, rule, or order to the
facts;
005.09E The Department's
conclusion as to the legal effect or result of applying the statute,
regulations, rule, or order to the facts; and
005.09F The reasons for the conclusions
reached.
005.10
Decision, Service.
The petitioner, and any other party, or if represented, their
attorneys, shall be served with a copy of the decision by certified mail,
return receipt requested.
005.11
Refusal to Rule,
Grounds.
005.11A Grounds upon
which the Department shall refuse to issue a declaratory order include, but are
not limited to, the following:
005.11A1 The
petitioner fails to submit any additional information requested or submits such
information after the due date;
005.11A2 The petition requests a declaratory
order on a matter that is outside the scope of authority of the
Department;
005.11A3 The petition
requests review or appeal of a decision made by the Department in a contested
case;
005.11A4 The petition
requests a declaratory order on the effect of past conduct or current
conduct;
005.11A5 An investigation
for purposes of formal adjudication, contested case, or a petition to issue,
amend, or repeal regulations is pending before the Department involving the
petitioner or substantially the same or similar facts or issues raised in the
petition;
005.11A6 The petition
seeks a declaration that a statute or rule and regulation is unconstitutional
or invalid;
005.11A7 The issue
raised has been definitely settled by a change in circumstances or other means
so that the need for a ruling has terminated.
005.11A8 An order would substantially
prejudice the rights of a person who would be a necessary party and who does
not consent in writing to the determination of the matter by a declaratory
order proceeding.
005.11A9 An order
may affect the rights or duties of a class or classes of persons so that a
declaratory process is unmanageable or the issues should be addressed through
rulemaking or adjudication.
005.11B The types of grounds upon which the
Department may determine to refuse to issue a declaratory order, may include,
but are not limited to, the following:
005.11B1 Refusal is necessary to assure
adequate allocation of Department resources available for issuing rulings on
petitions raising questions of greater urgency or significance;
005.11B2 Less than one hundred twenty (120)
calendar days has elapsed since a declaratory ruling was issued or declined on
any petition covering substantially the same subject matter.
005.11B3 The question presented is of such
complexity that the Department has had insufficient opportunity or resources to
develop a fully matured opinion;
005.11B4 The issue raised requires analysis
of so many complex factors that it is unmanageable outside of a full-scale
adjudication;
005.11B5 A ruling
would not resolve the controversy or uncertainty;
005.11B6 The question posed or facts
presented are insufficiently specific, overbroad, or are otherwise
inappropriate as a basis on which to decide;
005.11B7 The issue raised turns on peculiar
facts which cannot be predicted or adequately described in advance.
