Current through March 20, 2024
003.01
Generally.
A request for a declaratory order must be made by a petition
that meets the requirements of this Section.
003.02
Who May File.
Any person may petition the Department for the issuance of a
declaratory order as to the applicability of a specific statute, rule, or order
within the primary jurisdiction of the Department to the person's specific
circumstances.
003.03
When Orders Are Appropriate.
A declaratory order may be requested on the applicability of
a statute, rule, or order enforced by the Department. Applicability refers to
the appropriateness of the relation of the law to the person, property, or
state of facts, or its relevance under the circumstances given. It may include
such questions as whether the law applies at all, to whom it applies, when it
applies, how it applies, or which law applies. Considerations as to whether
issuance of a declaratory order is appropriate include:
003.03A A declaratory order may be requested
only on the applicability of existing statutes and rules or an outstanding
order.
003.03B A declaratory order
may be requested to obtain a determination of proposed conduct, not to obtain a
determination of the effect of conduct that has already occurred.
003.03C A declaratory order is not a
mechanism for review or appeal of a decision made by the Department in a
contested case.
003.03D A
declaratory order may not be requested to obtain a declaration by the
Department that a statute or rule is unconstitutional or that a rule of the
Department is invalid.
003.03E A
declaratory order may not be issued by the Department that would substantially
prejudice the rights of a person who would be a necessary party and who does
not consent in writing to the determination of the matter by a declaratory
order proceeding.
003.04
Form of Petition.
A petition for declaratory order shall be in the form of
either a pleading or letter which shall contain each of the following:
003.04A A caption, which shall include:
003.04A1 The venue: BEFORE THE DEPARTMENT OF
BANKING AND FINANCE, STATE OF NEBRASKA;
003.04A2 A heading specifying the subject
matter and the name of the petitioner; and
003.04A3 The name of the pleading: PETITION
FOR DECLARATORY ORDER.
003.04B The statements required in Subsection
003.05 of this Rule.
003.04C The
signature of the petitioner, or when represented by an attorney, the signature
of the attorney.
003.04D The name
and address of the petitioner, and when represented by an attorney, the name,
address, telephone number, e-mail address if applicable, and Nebraska bar
number of the attorney.
003.04E The
petition shall be made on white, letter-sized paper (8 1/2 inches x 11 inches)
of standard weight.
003.04F The
petition must be legible, and may be typewritten, printed, or handwritten, or
on a form photostatically reproduced. If handwritten, the petition must be
written in ink. Only one side of a page shall contain any writing. Petitions
must contain an original manual signature of the person requesting the
declaratory order or an authorized agent of such person.
003.04G Any documents attached to a petition
shall be securely fastened to the pleading and shall meet the requirements of
Sections 003.04E and
003.04F and, when
possible, be reproduced on white, letter-sized paper (8 1/2 inches x 11 inches)
of standard weight or placed in a 9 inches x 12 inches envelope and clearly
marked as an attachment to the petition.
003.05
Contents of
Petition.
To be considered, the petition shall include the
following:
003.05A The name and
address of the petitioner.
003.05B
The name and address of all persons or entities, known to the petitioner, who
may have a specific interest in the applicability of the statute, rule, or
order or who may be adversely affected by the issue sought to be resolved by
the petitioner.
003.05C The
statute, rule, or order upon which the petitioner seeks issuance of a
declaratory order.
003.05D A
detailed statement of all of the material facts and specific circumstances
which apply to petitioner's request for issuance of a declaratory
order.
003.05E All propositions of
law or contentions asserted by the petitioner.
003.05F A demand for an interpretation to
which the petitioner alleges entitlement. The petition shall state the
petitioner's position as to how the Department should rule and why the
Department should rule in the manner requested.
003.05G Any documents pertinent to the
petition that the petitioner wishes to be considered by the
Department.
003.06
Verification.
The petition shall be subscribed and verified by the
petitioner. If the petitioner is a corporation, political subdivision, or other
entity, then the petition shall be subscribed and verified by a duly authorized
agent of the petitioning entity.
003.07
Sample
Petition.
The petitioner may use the sample form of a petition which
is attached as Form 49-5 -1 and incorporated herein by reference. The
petitioner may also prepare a reasonable facsimile of Form 49-5 -1 provided the
requirements of Sections
003.04, 003.05, and 003.06 of this
Rule are satisfied.
003.08
Written Consents.
The petitioner shall attach to the petition any written
consents obtained from any necessary party to the declaratory order
proceeding.
