CHAPTER 15 ‑ COMMISSION OF INDIAN AFFAIRS
SECTION .0100 ‑ GENERAL PROVISIONS
01 NCAC 15 .0101 PURPOSE
History Note: Authority G.S. 143A‑6(b),(c); 143B‑404;
143B‑405;
Eff. November 1, 1976;
Amended Eff. February 27, 1979;
Repealed Eff. June 1, 1986.
01 NCAC 15 .0102 EXECUTIVE
COMMITTEE
(a) The executive committee consists of one member from
each of the tribes or groups represented on the commission. The senior member
from each delegation is officially appointed by the chairman. The chairman
serves as chairman of the executive committee and represents his area.
(b) The executive committee is called into session by the
chairman or three members either by mail or by telephone.
(c) The executive committee makes recommendations to the
full board for such items as petitions for recognition, policy recommendations
for new programs or commission operational direction. The executive committee
can take emergency action and act in the place of the board subject to review
by the full board.
History Note: Authority G.S. 143B‑10; 143B‑407;
143B‑408;
Eff. November 1, 1976;
Amended Eff. February 27, 1979.
01 NCAC 15 .0103 EXECUTIVE DIRECTOR
01 NCAC 15 .0104 STAFF
History Note: Authority G.S. 143B‑411; Chapter
126;
Eff. November 1, 1976;
Amended Eff. February 27, 1979;
Repealed Eff. June 1, 1986.
01 NCAC 15 .0105 MEETINGS
(a) It is a legislative requirement that notice of regular
and special board meetings be given 10 days in advance. The agenda is to be
included in the notice of meeting.
(b) Agenda items are to reach the chairman of the board either
in writing or orally in sufficient time to be put on agenda to meet the 10‑day
advance notice requirement.
(c) Agenda items may also be carried over from the previous
meeting, and members and others may request agenda items at regular and special
board meetings.
(d) The chairman is responsible for placing items on the
agenda.
(e) Upon a majority vote of the board, items not on the
agenda may be presented and considered at any board meeting.
History Note: Authority G.S. 143B‑408;
Eff. November 1, 1976;
Amended Eff. February 27, 1979.
01 NCAC 15 .0106 HOURS OF OPERATION
History Note: Authority G.S. 143B‑405;
Eff. November 1, 1976;
Repealed Eff. June 1, 1986.
01 NCAC 15 .0107 LOCATION
History Note: Authority G.S. 143B‑404;
Eff. February 27, 1979;
Repealed Eff. June 1, 1986.
section .0200 – LEGAL RECOGNITION OF AMERICAN INDIAN GROUPS
01 NCAC 15 .0201 AUTHORIZATION
The rules in this Section, establish procedures to provide
for the legal recognition by the State of presently unrecognized American
Indian groups.
History Note: Authority G.S. 143B-406;
Eff. November 1, 1976;
Amended Eff. February 1, 2006.
01 NCAC 15 .0202 DEFINITIONS
When used in this Section the following definitions apply:
(1) "AMERICAN INDIAN TRIBE" means a
population of Indian people all related to one another by blood or kinship,
tracing their heritage to indigenous Indian tribes, and recognized by the State
or federal government.
(2) "COMMISSION" means the North Carolina
Commission of Indian Affairs.
(3) "GROUP" means the members of a community,
inter-related by blood, and listed on submitted membership rolls as defined in
Item (5) of this Rule, and petitioning the state for official recognition as an
American Indian tribe.
(4) "INDIGENOUS" means native to North Carolina.
(5) "MEMBERSHIP ROLL" means a list of those
individuals who have been determined by a group to meet the group's membership
requirements. The membership roll shall list the names, addresses, date of
birth, names of both parents (including mothers' maiden names), and telephone
numbers of the people and relate each one to their kinship ties. These kinship
ties shall be consistent with information documented in genealogy charts
submitted in accordance with Rule .0212(2) of this Section.
(6) "NOTICE OF INTENT TO PETITION" means a
letter without supporting petition-related documents from a group requesting
official recognition by the State of North Carolina.
(7) "PETITION" means the presented documents
and arguments made by a group to substantiate its claims that it satisfies the
criteria identified in Rules .0203 and .0212 of this Section.
(8) "PETITIONER" means any group that has
submitted a Notice of Intent to Petition to the Commission requesting State
recognition as an American Indian tribe.
(9) "SPLINTER GROUP" means a political
faction, community, or group of any character that separates or has separated
from the main body of a state or federally recognized American Indian tribe,
and has not functioned throughout history as an autonomous American Indian
tribe.
(10) "STATE" means the State of North Carolina.
History Note: Authority G.S. 143B-406;
Eff. November 1, 1976;
Amended Eff. February 1, 2006; April 1, 1999.
01 NCAC 15 .0203 GROUPS ELIGIBLE FOR PETITIONING
PROCESS
(a) Only American Indian groups located in North Carolina who can trace their historic origins to indigenous American Indian tribes
prior to 1790 are eligible to petition or to be considered for State
recognition as an American Indian tribe.
(b) Each group seeking recognition shall document their
organizational status and structure. The formal status and type of
organizational structure of the petitioning group shall not be a factor in the
recognition process.
History Note: Authority G.S. 143B-406;
Eff. November 1, 1976;
Amended Eff. February 1, 2006; April 1, 1999.
01 NCAC 15 .0204 GROUPS INELIGIBLE FOR RECOGNITION
The following groups and entities are ineligible to petition
for official State recognition as American Indian tribes:
(1) Splinter Groups – as defined in Rule .0202 of this
Section.
(2) Previously denied petition groups or entities -
Groups, or successors in interest of groups, that have petitioned for and been
denied or refused recognition as an American Indian tribe under the State's
administrative rules for State recognition as an American Indian tribe, unless
the group has new evidence to justify the petition.
(3) Parties to certain actions – Any group that:
(a) in any action in State or federal court of
competent jurisdiction to which the group was a party attempted to establish
its status as an American Indian tribe or successor in interest to an American
Indian tribe; and
(b) was determined by that court:
(i) not to be an American Indian tribe; or
(ii) not to be a successor in interest to an
American Indian tribe; or
(iii) to be incapable of establishing one or more
of the criteria set forth in Rules .0203 or .0212 of this Section.
History Note: Authority G.S. 143B-406;
Eff. November 1, 1976;
Amended Eff. February 1, 2006; April 1, 1999.
01 NCAC 15 .0205 COMMISSION ASSISTANCE TO PETITIONER
(a) When a group has identified itself as an American
Indian group, it shall request technical assistance from the Commission. The
Commission shall explain the administrative processes for the legal recognition
of an American Indian group.
(b) The Commission of Indian Affairs assistance to the
Petitioner shall be limited to an explanation of the procedure and technical
advice.
History Note: Authority G.S. 143B-406;
Eff. November 1, 1976;
Amended Eff. February 1, 2006.
01 NCAC 15 .0206 SEATS ON THE COMMISSION
History Note: Authority G.S. 71‑16;
Eff. November 1, 1976;
Repealed Eff. February 27, 1979.
01 NCAC 15 .0207 NOTICE OF INTENT TO PETITION FOR
RECOGNITION
(a) A petitioning American Indian group shall file a Notice
of Intent to Petition (hereinafter referred to as the "Notice of Intent")
with the Commission's Recognition Committee. The Commission shall acknowledge
receipt of the Petitioner's Notice of Intent.
(b) The Notice of Intent shall be produced, dated and shall
be signed by each member of the governing body of the petitioning American
Indian group, and shall include the group's name, address, number of members,
geographic location of the petitioning group's members, historic origin and
existing recognition.
History Note: Authority G.S. 143B-406;
Eff. February 11, 1980;
Amended Eff. February 1, 2006; April 1, 1999; August 1,
1988.
01 NCAC 15 .0208 RECOGNITION COMMITTEE
(a) The Recognition Committee shall be appointed by the
chairperson of the Commission of Indian Affairs from the Commission members who
are representing the recognized American Indian tribes and organizations in North Carolina.
(b) Once a Petitioner has completed the recognition
process, the Recognition Committee shall make a recommendation to the
Commission regarding the group's State recognition as an American Indian
tribe. Thereafter, the Commission shall render its decision as under Rule
.0209 of this Section.
History Note: Authority G.S. 143B-406;
Eff. February 11, 1980;
Amended Eff. February 1, 2006; April 1, 1999; February 1,
1982.
01 NCAC 15 .0209 PROCEDURE FOR RECOGNITION
The procedure to be followed for recognition shall be:
(1) Petitioner shall submit a Notice of Intent to
Petition, as set out in Rule .0207 of this Section, to the Commission of Indian
Affairs.
(2) The Commission shall acknowledge receipt of the
Petitioner's Notice of Intent to Petition and shall explain procedure to
Petitioner;
(3) Upon receipt of the Notice of Intent, the
Commission shall notify, in writing, the following interested parties:
(a) State recognized Indian tribes and
organizations; and
(b) local and county governments within a 25
mile radius of the Petitioner's geographic area;
(4) All petitions and responses to petitions must be
received at least 10 days prior to the meeting at which they are to be considered.
(5) The Petitioner shall provide an original and at
least five copies when submitting petitions, responses to petitions, or other
supplementary information to the Commission during the petition process.
(6) The Petitioner shall complete and submit a fully
documented petition to the Recognition Committee, including current membership
rolls as defined in Rule .0202 of this Section and all past membership lists of
the group. The failure to submit these membership rolls is sufficient grounds
to deny the petition.
(7) The Petitioner may submit additional petition
documentation and materials throughout the petition process until such time as
a recognition decision is made by the full Commission, as described in this
Rule.
(8) The Recognition Committee shall conduct initial
review of petition and shall notify Petitioner of preliminary findings and
deficiencies.
(9) Upon receipt of the Recognition Committee's
preliminary findings, Petitioner shall have 180 days in which to respond, in
writing, to any deficiencies in the petition noted by the Recognition
Committee. Not less than 30 days prior to the expiration of the initial
response period, Petitioner may request and be granted an additional 180 days
to respond. If requested, the additional response period shall commence on the
181st day after the receipt of the Recognition Committee's preliminary
findings. No further requests for additional time shall be granted.
(10) The Recognition Committee shall conduct a hearing to
consider the petition, including Petitioner's responses to all deficiencies
initially noted.
(11) The Recognition Committee shall introduce its
recommendation at the next Commission meeting. Further Commission action shall
not take place until the second Commission meeting after the Recognition
Committee's decision.
(12) If the Recognition Committee's recommendation is
against recognizing the Petitioner, within 30 days following the receipt of
that recommendation the Petitioner may request and be granted a hearing before
the full Commission. If a request for a hearing is made, the hearing shall not
take place prior to the next regularly scheduled quarterly Commission of Indian
Affairs meeting. In the event that a Petitioner does not request a hearing
within 30 days, the petition is deemed withdrawn.
(13) At a subsequent meeting after the Recognition
Committee’s recommendation is introduced, the Commission may, as permitted by
these rules, request additional information, conduct additional hearings,
approve or deny the petition, or return the petition to the Recognition
Committee if it has received additional information.
(14) A decision by the full Commission regarding State
recognition shall be rendered by a majority of members present and voting
(abstentions not counted) at a duly constituted meeting.
(15) If the Commission's decision is for recognition, the
group is recognized as an American Indian tribe by the State. Thereafter, the
Commission shall explain all services available to the tribe through the
Commission.
(16) If the decision is against recognition, the
Petitioner may appeal to the Office of Administrative Hearings for a hearing
pursuant to G.S. 150B-23.
(17) A Petitioner may withdraw from the petition process
at any time prior to the decision of the full Commission. After a petition is
withdrawn, the Petitioner may not initiate a new petition until one year from
the date of the withdrawal.
(18) During the petition process, any such other material
or documents the Recognition Committee or Commission may request are relevant to
the Commission's decision. Any additional materials or documents shall be:
(a) relevant to the recognition decision; or
(b) shall be directly related to recognition
requirement deficiencies as outlined by the Recognition Committee or the full
Commission.
(19) The Commission shall issue a public notification to
the news media in the Petitioner's area, giving notification of the group's
status as a State recognized American Indian tribe.
History Note: Authority G.S. 143B-406; 150B-23
Eff. February 11, 1980;
Amended Eff. February 1, 2006; April 1, 1999.
01 NCAC 15 .0210 CRITERIA FOR RECOGNITION AS A GROUP
OR ORGANIZATION
History Note: Authority G.S. 143B‑406;
Eff. February 11, 1980;
Repealed Eff. April 1, 1999.
01 NCAC 15 .0211 RECOGNITION REQUIREMENT
History Note: Authority G.S. 143B-407
Eff. February 11, 1980;
Amended Eff. April 1, 1999;
Repealed Eff. February 1, 2006.
01 NCAC 15 .0212 CRITERIA FOR RECOGNITION AS AN
AMERICAN INDIAN TRIBE
In deciding whether to grant recognition to petitioner, the
Commission shall proceed as follows:
(1) The Petitioner shall demonstrate continuous
American Indian identity on a historic basis in satisfying each of these
criteria. Documents that shall be used to demonstrate the group's American
Indian identity shall include, family bible accounts, baptismal records, and
any other material that can substantiate the petitioning group's historic and
continuous identification as an American Indian entity. For periods of time
where this identification cannot be documented, the Petitioner shall submit a
narrative to explain the lack of continuous American Indian identification.
(2) The criteria to be used in the decision whether to
extend State recognition as an American Indian tribe are listed below in
Subitems (a) through (h).
(a) Traditional North Carolina American Indian
names, as they relate to the petitioning group. Surnames among the petitioning
group that have been commonly identified as being American Indian since 1790 in
the Petitioner's local geographic area shall be considered to be traditional
North Carolina American Indian names;
(b) Kinship relationships with other recognized
American Indian tribes. Relationships with other recognized American Indian
tribes shall be based on the petitioner's identification as an American Indian
group or community, and shall be evidenced by historic blood and marriage
kinship ties and communal interaction of spiritual, educational, and social
institutions; or other cultural relationships between known (recognized) tribal
communities and the petitioner's community;
(c) Official records, which may include, birth,
church, school, military, medical, local or county government records, or other
official records identifying the group as American Indian. Vital records shall
also be used in assisting the group's documentation of American Indian
identity.
(d) State or federal documents identifying the
group as American Indian. Any instance of historic government-to-government
relationships between the Petitioner and federal or state governments shall be
evidenced;
(e) Anthropological, historical, or genealogical
documents identifying the group as American Indian and demonstrating the group's
American Indian ancestry;
(f) Identification from State or federally
recognized American Indian tribes attesting to the petitioning group's
identification as American Indian, based on both the historic and current
relationships existing between the tribe and the petitioning group.
(g) Any other documented traditions, customs,
legends, etc., that are uniquely American Indian and signify the petitioning
group's American Indian heritage;
(h) Participation in grants from sources or
programs designated as for American Indian only.
(3) Five of the recognition criteria listed in Item (2)
of this Rule must be satisfactorily met to achieve state recognition.
History Note: Authority G.S. 143B-406
Eff. February 11, 1980;
Amended Eff. February 1, 2006.
01 NCAC 15 .0213 SPECIAL COMMITTEE ON RECOGNITION
01 NCAC 15 .0214 TRIBAL
ROLL
History Note: Authority G.S. 143B-406;
Eff. February 11, 1980;
Amended Eff. April 1, 1999; August 1, 1988;
Repealed Eff. February 1, 2006.
SECTION .0300 ‑ PETITIONS FOR RULES
01 NCAC 15 .0301 PETITION FOR RULEMAKING HEARINGS
Any person wishing to submit a petition requesting the
adoption, amendment, or repeal of a rule by the Commission of Indian Affairs
shall address a petition to: Commission of Indian Affairs, Raleigh, North
Carolina 27611. The container of the petition should clearly bear the
notation: RULEMAKING PETITION RE and then the subject area.
History Note: Authority G.S. 143B‑406; 150B‑16;
Eff. November 1, 1976;
Amended Eff. February 27, 1979.
01 NCAC 15 .0302 CONTENTS OF PETITION
The petition should include the following information:
(1) an indication of the subject area to which the
petition is directed; for example, "This is a petition to hold a
rulemaking hearing to amend rule .0000 pertaining to Administrative Procedure
Act filing requirements";
(2) either a draft of the proposed rule or a summary of
its contents;
(3) reasons for the proposal;
(4) the effect on existing rules or orders;
(5) any data supporting the proposal;
(6) effect of the proposed rule on existing practices
in the area involved including cost factors;
(7) names of those most likely to be affected by the
proposed rule with addresses if reasonably known;
(8) name(s) and address(es) of petitioner(s).
History Note: Authority G.S. 143B‑406; 150B‑16;
Eff. November 1, 1976.
01 NCAC 15 .0303 DISPOSITION OF PETITIONS
(a) The Commission of Indian Affairs' designee will
determine whether the public interest will be served by granting the request.
Prior to making this determination, the commission's designee may request additional
information from the petitioner(s); he may contact interested persons or
persons likely to be affected by the proposed rule and request comments; he may
use any other appropriate method for obtaining information on which to base his
determination. He will consider all of the contents of the petition submitted
plus any other information obtained by the means described herein.
(b) The designated officer will make a recommendation to
the commission for the institution of rulemaking proceedings or for the denial
of the petition as the case may be.
(c) Within 30 days of submission of the petition, a final
decision will be rendered by the Commission of Indian Affairs. If the decision
is to deny the petition, the commission will notify the petitioner in writing,
stating the reasons therefor. If the decision is to grant the petition, the
commission, within 30 days of submission, will initiate a rulemaking proceeding
by issuing a rulemaking notice as provided in these rules.
History Note: Authority G.S. 143B‑406; 150B‑16;
Eff. November 1, 1976;
Amended Eff. February 27, 1979.
01 NCAC 15 .0304 TIMING OF NOTICE
Upon a determination to hold a rulemaking proceeding, either
in response to a petition or otherwise, the commission will give at least 30
days notice to all interested persons of a public hearing on the proposed rule.
History Note: Authority G.S. 143B‑406; 150B‑12(a)(2);
Eff. November 1, 1976.
01 NCAC 15 .0305 NOTICE MAILING LIST
History Note: Authority G.S. 143B‑406; 150B‑12(b);
Eff. November 1, 1976;
Amended Eff. February 27, 1979;
Repealed Eff. July 1, 1988.
01 NCAC 15 .0306 ADDITIONAL INFORMATION
Persons desiring information in addition to that provided in
an individual rulemaking notice may contact: Commission of Indian Affairs,
P.O. Box 27228, Raleigh, North Carolina 27611. Any written communication should
clearly indicate the rulemaking proceeding which is the subject of the inquiry.
History Note: Authority G.S. 143B‑406; 150B‑12;
Eff. November 1, 1976;
Amended Eff. February 27, 1979.
SECTION .0400 ‑ RULEMAKING HEARINGS
01 NCAC 15 .0401 REQUEST TO PARTICIPATE
Any person desiring to present oral data, views, or
arguments on the proposed rule must, at least five days prior to the hearing,
file a notice with the Commission of Indian Affairs. Notice of desire to
appear may be waived, or failure to give notice may be excused by the presiding
officer in his discretion. Any person permitted to make an oral presentation
is encouraged to submit a written copy of the presentation to the Commission of
Indian Affairs or its designee prior to or at the hearing.
History Note: Authority G.S. 143B‑10; 143B‑406;
150B‑12;
Eff. November 1, 1976;
Amended Eff. February 27, 1979.
01 NCAC 15 .0402 CONTENTS OF REQUEST: GENERAL TIME
LIMITATIONS
A request to make an oral presentation should contain a
clear reference to the proposed rule, a brief summary of the individual's views
in respect thereto and how long the individual desires to speak. Presentations
shall be limited to 15 minutes unless the commission prescribes some other time
limit.
History Note: Authority G.S. 143B‑406; 150B‑12(e);
Eff. November 1, 1976.
01 NCAC 15 .0403 RECEIPT OF REQUEST: SPECIFIC TIME
LIMITS
Upon receipt of notice of a person's desire to present his
views orally, the Commission of Indian Affairs will acknowledge receipt of the
request and inform the person of the imposition of any limitations deemed
necessary to the end of a full and effective public hearing on the proposed
rule.
History Note: Authority G.S. 143B‑406; 150B‑12;
Eff. November 1, 1976.
01 NCAC 15 .0404 WRITTEN SUBMISSIONS
(a) Any person may file a written submission containing
data, comments, or arguments after publication of a rulemaking notice and
within 10 days after the hearing unless a different period has been prescribed
in the notice or granted upon request. These written comments should be sent to
the Commission of Indian Affairs, P.O. Box 27228, Raleigh, North Carolina
27611. They should clearly state the rule(s) or proposed rule(s) the comments
are addressed to.
(b) Upon receipt of written comments, acknowledgement will
be made with an assurance that the comments therein will be considered fully by
the Commission of Indian Affairs.
History Note: Authority G.S. 143B‑406; 150B‑12(e);
Eff. November 1, 1976;
Amended Eff. February 27, 1979.
01 NCAC 15 .0405 PRESIDING OFFICER: POWERS AND DUTIES
The presiding officer at the hearing shall have complete
control of the proceedings including: extensions of any time requirements,
recognition of speakers, time allotments for presentations, the right to
question speakers, direction of the discussion and management of the hearing.
The presiding officer, at all times, will take care that each person
participating in the hearing is given a fair opportunity to present views, data
and comments.
History Note: Authority G.S. 143B‑406; 150B‑12(a);
Eff. November 1, 1976.
01 NCAC 15 .0406 STATEMENT OF REASONS FOR DECISION
(a) Any interested person desiring a concise statement of
the principal reasons for and against the adoption of a rule by the Commission
of Indian Affairs and the factors that led to overruling the considerations
urged against its adoption may submit a request to the Commission of Indian
Affairs, P.O. Box 27228, Raleigh, North Carolina 27611.
(b) For purposes of Subsection (a) of this Rule, an
"interested person" shall be any person(s) whose rights, duties, or
privileges might be affected by the adoption of the rule in question or any
group or organization of persons whose rights, duties, or privileges might be
affected by the rule.
(c) The request must be made in writing and submitted prior
to adoption of the rule or within 30 days thereafter.
History Note: Authority G.S. 143B‑406; 150B‑12(e);
Eff. November 1, 1976;
Amended Eff. February 27, 1979.
01 NCAC 15 .0407 RECORD OF PROCEEDINGS
A record of all rulemaking proceedings will be maintained in
the office of the Commission of Indian Affairs for as long as the rule is in
effect and for five years thereafter following filing with the Administrative Procedures
Section of the Office of the Attorney General. This record will contain: the
original petition, the notice, all written memoranda and information submitted
and a record or summary of oral presentations, if any. Record of rulemaking
proceedings will be available for public inspection during the regular office
hours of the Commission of Indian Affairs.
History Note: Authority G.S. 143B‑406; 150B‑12(e);
Eff. November 1, 1976.
01 NCAC 15 .0408 TEMPORARY RULES
History Note: Authority G.S. 143B‑406; 150B‑13;
Eff. November 1, 1976;
Repealed Eff. August 1, 1988.
SECTION .0500 ‑ DECLARATORY RULINGS
01 NCAC 15 .0501 SUBJECTS OF DECLARATORY RULINGS
Any person substantially affected by a statute administered
or rule promulgated by the Commission of Indian Affairs may request a
declaratory ruling as to either the manner in which a statute or rule applies
to a given factual situation, if at all, or whether a particular agency rule is
valid.
History Note: Authority G.S. 143B‑406; 150B‑17;
Eff. November 1, 1976.
01 NCAC 15 .0502 SUBMISSION OF REQUEST FOR RULING
All requests for declaratory rulings shall be written and
mailed to the Commission of Indian Affairs, P.O. Box 27228, Raleigh, North
Carolina 27611. The container of the request should bear the notation: REQUEST
FOR DECLARATORY RULING. The request must include the following information:
(1) name and address of petitioner;
(2) statute or rule to which petition relates;
(3) concise statement of the manner in which petitioner
is aggrieved by the rule or statute or its potential application to him;
(4) a statement of whether an oral hearing is desired,
and if so, the reason therefor.
History Note: Authority G.S. 143B‑406; 150B‑17;
Eff. November 1, 1976;
Amended Eff. February 27, 1979.
01 NCAC 15 .0503 DISPOSITION OF REQUESTS
(a) When the Commission of Indian Affairs deems it
appropriate to issue a declaratory ruling, it shall issue such declaratory
ruling within 60 days of receipt of the petition.
(b) A declaratory ruling proceeding may consist of written
submissions, an oral hearing or other procedure as may be appropriate in the
circumstances of the particular request.
(c) Whenever the Commission of Indian Affairs believes
"for good cause" that the issuance of a declaratory ruling is
undesirable, it may refuse to issue such ruling. When good cause is deemed to
exist, it will notify the petitioner of its decision in writing, stating the
reasons for the denial of the declaratory ruling.
(d) For purposes of Subpart (c) of this Rule, the
Commission of Indian Affairs will ordinarily refuse to issue a declaratory
ruling:
(1) unless the petitioner shows that the
circumstances are so changed since the adoption of the rule that such a ruling
would be warranted;
(2) unless the petitioner shows that the agency
did not give to the factors specified in the request for a declaratory ruling a
full consideration at the time the rule was issued;
(3) where there has been a similar controlling
factual determination in a contested case, or where the factual context being
raised for a declaratory ruling was specifically considered upon the adoption
of the rule or directive being questioned, as evidenced by the rulemaking
record;
(4) where the subject matter of the request is
involved in pending litigation in any state or federal court in North Carolina.
History Note: Authority G.S. 143B‑406; 150B‑17;
Eff. November 1, 1976.
01 NCAC 15 .0504 RECORD OF DECISION
A record of all declaratory rulemaking proceedings will be
maintained in the office of the Commission of Indian Affairs for as long as the
ruling is in effect and for five years thereafter. This record will contain: the
petition, the notice, all written submissions filed in the request, whether
filed by the petitioner or any other person, and a record or summary of oral
presentations, if any. Records of rulemaking proceedings will be available for
public inspection during the regular office hours of the Commission of Indian
Affairs.
History Note: Authority G.S. 143B‑406; 150B‑12(e);
Eff. November 1, 1976.
01 NCAC 15 .0505 DEFINITION
For purposes of Rule .0504 of this Section, a declaratory
ruling shall be deemed to be "in effect": until the statute or rule
interpreted by the declaratory ruling is amended, altered, or repealed; until
the Commission of Indian Affairs changes the declaratory ruling prospectively
for good reasons; or until any court sets aside the ruling in litigation
between the Commission of Indian Affairs and the party requesting the rule; or
until any court of the Appellate Division of the General Court of Justice shall
construe the statute or rule which is the subject of the declaratory ruling in
a manner plainly irreconcilable with the declaratory ruling.
History Note: Authority G.S. 143B‑406; 150B‑17;
150B‑12(e);
Eff. November 1, 1976;
Amended Eff. February 27, 1979.
SECTION .0600 ‑ ADMINISTRATIVE HEARING PROCEDURES
01 NCAC 15 .0601 RIGHT TO HEARING
01 NCAC 15 .0602 REQUEST FOR HEARING
01 NCAC 15 .0603 GRANTING OR DENYING HEARING REQUESTS
01 NCAC 15 .0604 NOTICE OF HEARING
01 NCAC 15 .0605 WHO SHALL HEAR CONTESTED CASES
01 NCAC 15 .0606 PETITION FOR INTERVENTION
01 NCAC 15 .0607 TYPES OF INTERVENTION
History Note: Authority G.S. 1A‑1, Rule 24; 143B‑406;
150B‑2(2); 150B‑23; 150B‑23(a); 150B‑32;
Eff. November 1, 1976;
Amended Eff. February 27, 1979;
Repealed Eff. August 1, 1988.
SECTION .0700 ‑ ADMINISTRATIVE HEARINGS: DECISIONS:
RELATED RIGHTS AND PROCEDURES
01 NCAC 15 .0701 FAILURE TO APPEAR
01 NCAC 15 .0702 SIMPLIFICATION OF ISSUES
01 NCAC 15 .0703 SUBPOENAS
01 NCAC 15 .0704 FINAL DECISIONS IN ADMINISTRATIVE
HEARINGS
History Note: Authority G.S. 143B‑406; 146B‑406;
150B‑25(a); 150B‑27; 150B‑33(5); 150B‑43;
Eff. November 1, 1976;
Amended Eff. February 27, 1979;
Repealed Eff. August 1, 1988.