15A NCAC 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.

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

Eff. April 1, 1999;

Readopted Eff. June 1, 2022.