R497-100-9. Declaratory Orders

  (1) Who May File. Any person or governmental entity directly affected by a statute, rule or order administered, promulgated or issued by an agency, may file a petition for a declaratory order by addressing and delivering the written petition to the presiding officer of the appropriate agency.

  (2) Content of Petition.

  (a) The petition shall be clearly designated as a request for an agency declaratory order and shall include the following information;

  (i) the statute, rule or order to be reviewed;

  (ii) a detailed description of the situation or circumstances at issue;

  (iii) a description of the reason or need for a declaratory order, including a statement as to why the petition should not be considered frivolous;

  (iv) an address and telephone where the petitioner can be contacted during regular work days;

  (v) a statement about whether the petitioner has participated in a completed or on-going adjudicative proceeding concerning the same issue within the past 12 months; and

  (vi) the signature of the petitioner or an authorized representative.

  (3) Exemptions from Declaratory Order Procedure. A declaratory order shall not be issued by the agency under the following circumstances:

  (a) the subject matter of the petition is not within the jurisdiction and competency of the agency;

  (b) the person requesting the declaratory ruling participated in an adjudicative proceeding concerning the same issue within 12 months of the date of the declaratory order request;

  (c) the declaratory order procedure is likely to substantially prejudice the rights of a person who would be a necessary party, unless that person consents in writing to a determination of the matter by a declaratory proceeding;

  (d) the declaratory order is trivial, irrelevant, or immaterial;

  (e) a declaratory order proceeding is otherwise prohibited by state or federal law;

  (f) a declaratory order is not in the best interest of the agency or the public;

  (g) the subject matter is not ripe for consideration; or

  (h) the issue is currently pending in a judicial proceeding.

  (4) Intervention in Accordance with Sections 63G-4-203(1)(g) and 63G-4-503.

  (a) Intervention is prohibited in informal adjudicative proceedings, except where a federal statute or rule requires that intervention be permitted.

  (b) In the case of an adjudicative proceeding that has been converted to a formal adjudicative proceeding, a person may intervene in a declaratory order proceeding by filing a petition to intervene with the presiding officer of the agency within 30 days after the conversion of the proceeding.

  (c) The agency presiding officer may grant a petition to intervene if the petition meets the following requirements:

  (i) the intervener's legal interests may be substantially affected by the declaratory order proceedings; and

  (ii) the interests of justice and the orderly and prompt conduct of the declaratory order proceeding will not be materially impaired by allowing intervention.

  (5) Review of Petition for Declaratory Order.

  (a) After review and consideration of a petition for a declaratory order, the presiding officer of the agency may issue a written order that conforms to Section 63G-4-503(6)(a);

  (b) If the matter is set for an adjudicative proceeding, written notice shall be mailed to all parties that shall:

  (i) give the name, title, mailing address, and telephone number of the presiding officer;

  (ii) give the agency's file number or other reference number;

  (iii) give the name of the proceeding;

  (iv) state whether the proceeding shall be conducted informally or formally;

  (v) state the time and place of any scheduled hearing, the purpose for which the hearing is to be held, and that a party who fails to attend or participate in the hearing may be held in default; and

  (vi) if the agency's rules do not provide for a hearing, state the parties' right to request a hearing within 10 working days of the agency's response.

  (c) If the agency's presiding officer issues a declaratory order, it shall conform to Section 63G-4-503(6)(b) and shall also contain:

  (i) a notice of any right of administrative or judicial review available to the parties; and

  (ii) the time limits for filing an appeal or requesting review.

  (d) A copy of all declaratory orders shall be mailed in accordance with Section 63G-4-503(6)(c).

  (e) If the agency's presiding officer has not issued a declaratory order within 60 days after receipt of the petition, the petition is deemed denied.