subchapter 03p - HEARING PROCEDURES

 

SECTION .0100 - HEARING PROCEDURES

 

15A NCAC 03P .0101       LICENSE, PERMIT, OR CERTIFICATE DENIAL: REQUEST FOR REVIEW

(a)  For the purpose of this Rule and in accordance with G.S. 150B-2, "license" includes "permit" as well as "certification" and "certificate of compliance."

(b)  Except in cases where G.S. 113‑171 is applicable, before the Division may commence proceedings for suspension, revocation, annulment, withdrawal, recall, cancellation, or amendment of a license, notice shall be given to the license holder that:

(1)           the license holder has a right, through filing a request for a contested case hearing in the Office of Administrative Hearings, to a hearing before an administrative law judge and a final agency decision by the Marine Fisheries Commission; and

(2)           the license holder may request an opportunity to show compliance with all requirements for retention of the license by submitting a statement in writing to the personnel designated in the notice to commence proceedings.

(c) Any statements submitted by the license holder to show compliance with all requirements for retention of the license shall be postmarked within 15 days of receipt of the notice to commence proceedings. Statements and any supporting documentation shall be addressed to the personnel designated in the notice and mailed to the Division of Marine Fisheries, 3441 Arendell Street, P.O. Box 769, Morehead City, NC 28557.

(d)  Upon receipt of a statement and any supporting documentation from the license holder, the Division shall review the statement and, within 15 days, shall notify the license holder in writing with the Division's determination whether the license holder demonstrated compliance with all requirements for retention of the license. In making this determination, the Division may consider criteria including material changes made enabling the license holder to conduct the operations for which the license is held in accord with all applicable laws and rules and processing errors made by the Division.

(e)  The Division shall order summary suspension of a license if it finds that the public health, safety, or welfare requires emergency action. Upon such determination, the Fisheries Director shall issue an order giving the reasons for the emergency action. The effective date of the order shall be the date specified on the order or the date of service of a certified copy of the order at the last known address of the license holder, whichever is later.

 

History Note:        Authority G.S. 113‑134; 113‑171; 113-221.2; 150B-3; 150B‑23;

Eff. January 1, 1991;

Amended Eff. May 1, 2017; August 1, 1999.

 

15A NCAC 03P .0102       CONTESTED CASE HEARING PROCEDURES

Administrative hearings shall be held in accordance with G.S. 150B, and the administrative hearing procedures codified at 15A NCAC 1B .0200.

 

History Note:        Authority G.S. 113‑134; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. August 1, 1999.

 

15A NCAC 03P .0103       PETITIONS FOR REGULATORY ACTIVITY

 

History Note:        Authority G.S. 113‑134; 143B‑289.4; 150B‑20;

Eff. September 1, 1991;

Amended Eff. May 1, 1992;

Repealed Eff. April 1, 1999.

 

SECTION .0200 - DECLARATORY RULINGS

 

15A NCAC 03P .0201       DECLARATORY RULINGS: GENERALLY

At the request of any person aggrieved, as defined in G.S. 150B-2(6), the Marine Fisheries Commission may issue a declaratory ruling as provided in G.S. 150B-4.

 

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

Eff. April 1, 1999.

 

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.

 

15A NCAC 03P .0203       DEFINITION

For purposes of Rule .0202 of this Section, a declaratory ruling shall be deemed to be "in effect" until the statute or rule interpreted by the declaratory ruling is amended, altered or repealed; until the Commission changes the declaratory ruling prospectively for good reasons; until any court sets aside the ruling in litigation between the Commission or Department of Environment and Natural Resources and the party requesting the rule; or until any court of the Appellate Division of the General Court of Justice shall construe the statute or rule which is the subject of the declaratory ruling in a manner plainly irreconcilable with the declaratory ruling.

 

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

Eff. April 1, 1999.

 

SECTION .0300 - PETITIONS FOR RULEMAKING

 

15A NCAC 03P .0301       FORM AND CONTENTS OF PETITION

(a)  Any person wishing to request the adoption, amendment, or repeal of a rule of the Marine Fisheries Commission (hereinafter referred to as the Commission) shall make his request in a written petition addressed to the Chairman of the Marine Fisheries Commission and submitted to the Commission staff at:

Marine Fisheries Commission

Division of Marine Fisheries

PO Box 769

Morehead City, North Carolina 28557.

(b)           The petition shall contain the following information:

(1)           the text of the proposed rule(s);

(2)           the statutory authority for the agency to promulgate the rule(s);

(3)           a statement of the reasons for adoption of the proposed rule(s);

(4)           a statement of the effect on existing rules;

(5)           copies of any documents and data supporting the proposed rule(s);

(6)           a statement of the effect of the proposed rule(s) on existing practices in the area involved, including an estimate of cost factors for persons affected by the proposed rule(s);

(7)           a description of those most likely to be affected by the proposed rule(s); and

(8)           the name(s) and address(es) of the petitioner(s).

(c)  When petitions and supporting documents and data exceed 10 pages in length, 15 copies of the entire petition and any attachments shall be submitted.

(d)  Petitions failing to contain the required information shall be returned by the Marine Fisheries Commission Chairman.

 

History Note:        Authority G.S. 113‑134; 113-182; 113-182.1; 113-201; 143B‑289.51; 143B-289.52; 150B-20;

Eff. April 1, 1999.

 

15A NCAC 03P .0302       REVIEW BY A COMMITTEE OF THE COMMISSION

(a)  The Marine Fisheries Commission Chairman may refer duly submitted petitions to the appropriate standing advisory committee(s) or other advisory committee(s) of the Commission for review and recommended action.  Copies of petitions for rulemaking shall be distributed to the Commission members when referred to a committee of the Commission.

(b)  The Chairman of the Committee assigned to review a submitted petition for rulemaking shall announce the date of a meeting to consider the petition within 10 days of the assignment of the petition.

(c)  At least 15 days before the Committee meeting, the Committee Chairman shall send notice of the Committee meeting to the petitioner, members of the Commission, and persons who have requested notice of petitions for rulemaking.

(d)  The petitioner shall be afforded the opportunity to present the petition for rulemaking to the Committee.  The Director, through staff, may make a presentation to the Committee.

(e)  Interested persons must request the opportunity to make a presentation to the Committee(s) through the Committee(s) chair(s).  The request shall:

(1)           state the interest of the person,

(2)           the person=s position on the petition for rulemaking, and

(3)           be accompanied by supporting materials.

The Chairman of the Committee will determine whether additional interested persons make oral presentations before the Committee.

(f)  The Chairman of the Committee will determine whether a public meeting should be conducted by the Committee before it makes a recommendation on the petition for rulemaking.

(g)  During the Committee=s review, members of the Commission, other than Committee members, who are present may participate as a member of the Committee in discussions of the petition but may not vote on the recommended action on the petition.

 

History Note:        Authority G.S. 113‑134; 113-182; 143B‑289.52; 150B-20;

Eff. April 1, 1999.

 

15A NCAC 03P .0303       PRESENTATION TO THE COMMISSION

(a)  Petitions for rulemaking, when deemed complete by the Marine Fisheries Commission Chairman, shall be presented to the Marine Fisheries Commission for its consideration and determination at the next regularly scheduled meeting of the Commission.

(b)  Within 120 days following submission of the petition requesting rulemaking, the Marine Fisheries Commission shall:

(1)           initiate rulemaking proceedings in accordance with G.S. 150B-20 and notify the person(s) who submitted the petition of the decision in writing; or

(2)           deny the petition in writing, stating the reason or reasons for the denial, and send the written denial to the person(s) who submitted the petition.

 

History Note:        Authority G.S. 113‑134; 113-182; 143B‑289.51; 150B-20;

Eff. April 1, 1999.

 

15A NCAC 03P .0304       RECOURSE TO DENIAL OF THE PETITION

If the Marine Fisheries Commission denies the petition for rulemaking, the petitioner(s) may seek judicial review of the denial under G.S. 150B, Article 4 of Chapter 150B of the General Statutes.

 

History Note:        Authority G.S. 113‑134; 113-182; 143B‑289.51; 150B-20;

Eff. April 1, 1999.