5-003.03 When Orders Appropriate

A declaratory order may be requested on the applicability of a statute, rule, regulation, or order enforced by the Department. "Applicability" refers to the appropriateness of the relation of the law to the person, property, or state of facts, or its relevance under the circumstances given. It may include such questions as whether the law applies at all, to whom it applies, when it applies, how it applies, or which law applies. Considerations as to whether issuance of a declaratory order is appropriate include -

1. A declaratory order may be requested only on the applicability of existing statutes and rules and regulations.
2. A declaratory order may be requested to obtain a determination of proposed conduct, not to obtain a determination of the effect of conduct that has already occurred.
3. A declaratory order is not a mechanism for review or appeal of a decision made by the Department in a contested case.
4. A declaratory order may not be requested to obtain a declaration by the Department that a statute or regulation is unconstitutional or that a regulation of the Department is invalid.
5. A declaratory order may not be issued by the Department that 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.