15a ncac 02I .0603        DISPOSITION OF REQUEST

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

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

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

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

(3)           allow the petitioner to file a reply to the response submitted in Subparagraph (2) of this Paragraph; or

(4)           request oral arguments from the petitioner(s) and Department staff or their legal counsel.

(c)  The Commission shall make a decision to grant or deny the request according to G.S. 150B-4.

(d)  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.

(e)  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 given state 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.

(f)  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 which is the subject of the declaratory ruling in a manner that is 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 and the party requesting the ruling.

History Note:        Authority G.S. 143B-282; 150B-4;

Eff. August 1, 2004;

Readopted Eff. February 1, 2021.