Current through Register Vol. 18, September 20, 2024
(1) In cases when a
formal declaratory ruling proceeding is requested by a person through the
filing of a petition as prescribed in ARM
1.3.226, the commissioner adopts
and incorporates by reference the Attorney General's Organizational and
Procedural Rules ARM
1.3.227 through
1.3.229 effective August 15, 2008,
and are available online from the secretary of state at
http://www.mtrules.org/.
(2) In all other cases, the commissioner will
issue "advisory opinions" under the following procedure:
(a) A person desiring an interpretation to
determine the applicability of a rule or statute administered by the
commissioner to the person's activity or proposed activity may request an
advisory opinion. All requests for an advisory opinion shall be in writing and
shall contain:
(i) The identity, address, and
signature of the person requesting the opinion.
(ii) A complete statement of the facts and
circumstances upon which the commissioner is to base an opinion.
(iii) The rule or statute for which the
person seeks an opinion.
(iv) The
specific question presented for decision by the commissioner.
(b) The commissioner may request a
memorandum of authority containing basic research and points of law bearing on
the request. The memorandum should include the requesting party's own
conclusion on the question presented.
(c) Within a reasonable time after the
receipt of a request for an advisory opinion, the commissioner shall consider
the request and, based upon the facts presented in the request, prepare an
opinion in writing, except as provided in (i). The commissioner may seek public
comment prior to issuing an advisory opinion, depending on the particular
question presented for an opinion.
(i) The
commissioner will not issue an advisory opinion, but will notify the inquirer
of the determination, when:
(A) The issue is
the subject of pending litigation.
(B) A prior opinion has been rendered that
addresses the fact and question presented in a subsequent request.
(C) The facts are inadequate for a
determination, or the request requires resolution of a factual
dispute.
(D) The issue involves
wholly abstract or hypothetical factual situations.
(d) An advisory opinion will be
rendered upon the facts submitted in the request and over the signature of the
commissioner. A copy of the opinion will be mailed to the inquirer and
published in a manner which will provide wide public dissemination. The
commissioner will maintain an index of all opinions and will make an opinion
available upon request.
(e) An
advisory opinion rendered in accordance with this rule is binding between the
commissioner and the inquirer on the statement of facts alleged in the written
request. An advisory opinion is not subject to judicial review. A person
desiring judicial review of an advisory opinion shall file a formal petition
for declaratory ruling, pursuant to
2-4-501, MCA, and this
rule.
(f) A later advisory opinion
or declaratory ruling overrules an earlier advisory opinion or declaratory
ruling with which it is necessarily in conflict.
(g) A request for a declaratory ruling or an
advisory opinion shall have no effect on the commissioner's investigation of
and disposition of a formal complaint on the same issue or a related dispute
filed pursuant to ARM 44.11.106.
(3) In cases when the COPP engages in agency
rulemaking, the commissioner adopts and incorporates by reference the Attorney
General's Organizational and Procedural Rules ARM
1.3.201,
1.3.202, and
1.3.304 through
1.3.313 effective August 15, 2008,
and are available online from the secretary of state at
http://www.mtrules.org/.
