15A N.C. Admin. Code 3P.0203

Current through Register Vol. 39, No. 9, November 1, 2024

Section 03P .0203 - DISPOSITION OF REQUESTS FOR DECLARATORY RULING

(a) The Marine Fisheries Commission Chair shall make a determination on the completeness of a request for declaratory ruling based on the requirements of this Section.

(b) Before the Commission decides the merits of the request, the Commission Chair may:

(1) request additional written submissions from the petitioner;

(2) allow the petitioner to file a reply to the response submitted in accordance with Subparagraph (1) of this Paragraph; and

(3) request oral arguments from the petitioner or the petitioner's legal counsel.

(c) Unless the Division of Marine Fisheries waives the opportunity to be heard, it shall be a party to any request for declaratory ruling. The Division shall be allowed to present a written response and oral arguments to the Commission at a regularly scheduled meeting.

(d) The Commission shall make a decision to grant or deny the request in accordance with G.S. 150B-4.

(e) The Commission shall deny the request upon making any of the following findings:

(1) the request is not complete;

(2) the petitioner is not a person aggrieved;

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

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

(5) no genuine controversy exists as to the application of a statute, order, or rule to the factual situation presented;

(6) the factual context put forward as the subject of the declaratory ruling was considered upon the adoption of the rule being questioned, as evidenced by the rulemaking record;

(7) the information provided by the petitioner, the Department, or any interveners does not support a determination that a rule is invalid; or

(8) there is no material conflict or inconsistency within the Commission or Department regarding the law or rule identified by the petitioner.

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

(1) the request for a ruling;

(2) any written submission by a party;

(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.

(g) For purposes of this Section, a declaratory ruling shall be deemed to be in effect until:

(1) the statute or rule interpreted by the declaratory ruling is repealed or the relevant provisions of the statute or rule are amended or altered;

(2) any court of the Appellate Division of the General Court of Justice construes the statute or rule that is the subject of the declaratory ruling in a manner plainly irreconcilable with the declaratory ruling;

(3) the Commission changes the declaratory ruling prospectively; or

(4) any court sets aside the declaratory ruling in litigation between the Commission or Department of Environmental Quality and the party requesting the ruling.

15A N.C. Admin. Code 03P .0203

Authority G.S. 113-134; 113-182; 143B-289.52; 150B-4;
Eff. April 1, 1999;
Readopted Eff. June 1, 2022.

Authority G.S. 113-134; 113-182; 143B-289.52; 150B-4;
Eff. 4/1/1999.

Readopted by North Carolina Register Volume 36, Issue 23, June 1, 2022 effective 6/1/2022.