Section .0100 ‑ General Provisions

Link to law: http://reports.oah.state.nc.us/ncac/title 01 - administration/chapter 15 - indian affairs/chapter 15 rules.html
Published: 2015

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
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Repealed Eff.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Repealed Eff.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.