Current through Register Vol. 39, No. 6, September 16, 2024
(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.
Authority
G.S.
113-134;
113-182;
143B-289.52;
150B-4;
Eff. April
1, 1999;
Readopted Eff. June 1,
2022.
