15A NCAC 03P .0202       PROCEDURE FOR REQUESTING DECLARATORY RULINGS

(a)  All requests for a declaratory ruling shall be filed in writing with the Director of the Division of Marine Fisheries, Department of Environment and Natural Resources (DENR), P.O. Box 769, Morehead City, North Carolina 28557.  All requests shall include the following: the aggrieved person's name and address; the rule, statute or order upon which a ruling is desired; a concise statement as to whether the request is for a ruling on the validity of a rule or on the applicability of a rule, order or statute to a given factual situation; arguments or data which demonstrate that the petitioner is aggrieved by the rule or statute or its potential application to him; a statement of the consequences of a failure to issue a declaratory ruling in favor of the petitioner; and a statement of whether an oral argument is desired, and, if so, the reasons for requesting such an oral argument.

(b)  A request for a ruling on the applicability of a rule, order, or statute must include a description of the factual situation on which the ruling is to be based.  A request for a ruling on the validity of a Commission rule must state the aggrieved person=s reasons for questioning the validity of the rule.  A person may ask for both types of rulings in a single request.  A request for a ruling must include or be accompanied by:

(1)           a statement of the facts proposed for adoption by the Commission; and

(2)           a draft of the proposed ruling.

(c)  Before deciding the merits of the request, the Commission may:

(1)           request additional written submissions from petitioner(s);

(2)           request a written response from the Division staff or any other person; or

(3)           hear oral argument from the petitioner(s) and Division staff.

(d)  Unless the Division waives the opportunity to be heard, it shall be a party to any request for declaratory ruling.  Upon written request, the requesting party and the Division may each be allowed to present oral arguments to the Commission at a regularly scheduled meeting.  Neither party may offer testimony or conduct cross-examination before the Commission.  The declaratory ruling shall be determined on the basis of the statement of facts submitted by the parties.

(e)  Whenever the Commission believes "for good cause" that the issuance of a declaratory ruling is undesirable, the Commission may refuse to issue such ruling.  The Commission shall notify in writing the person requesting the ruling, stating the reasons for the refusal to issue a ruling on the request.

(f)  For purposes of Paragraph (e) of this Rule, the Commission shall ordinarily refuse to issue a ruling on a request for declaratory ruling on finding that:

(1)           the petitioner(s) and the Division cannot agree on a set of facts sufficient to support a meaningful ruling;

(2)           there has been a similar determination in a previous contested case or declaratory ruling;

(3)           the matter is the subject of a pending contested case hearing or litigation in any North Carolina or federal court; or

(4)           no genuine controversy exists as to the application of a statute or rule to the factual situation presented.

(g)  The Commission shall keep a record of each declaratory ruling, which shall include at a minimum the following items:

(1)           the request for a ruling;

(2)           any written submissions by the parties;

(3)           the statement of facts on which the ruling was based;

(4)           any transcripts of oral proceedings, or, in the absence of a transcript, a summary of all arguments;

(5)           any other matter considered by the Commission in making the decision; and

(6)           the declaratory ruling, or the decision to refuse to issue a declaratory ruling, together with the reasons therefore.

(h)  A declaratory ruling is binding on the Commission and the person requesting it unless it is altered or set aside by the court.  The Commission may not retroactively change a declaratory ruling, but nothing in this Section prevents the Commission from prospectively changing a ruling.

(i)  Unless the requesting party consents to the delay, failure of the Commission to issue a ruling on the merits or deny the request within 60 days of receipt of the request for such ruling shall constitute a denial of the request as well as a denial of the merits of the request and shall be subject to judicial review.

 

History Note:        Authority G.S. 113‑134; 113-182; 143B‑289.52; 150B-4;

Eff. April 1, 1999.