This subsection sets forth the Commission's rules governing the form, content, and filing of requests for declaratory opinions, the procedural rights of persons in relation to the written requests, and the Commission's procedures regarding the disposition of requests as required by Mississippi Code ยง 25-43-2.103.
A. Persons Who May Request Declaratory Opinions
Any person with a substantial interest in the subject matter may make a request to the Commission for a declaratory opinion by following the specified procedures.
B. Subjects Which May be Addressed in Declaratory Opinions
The Commission will issue declaratory opinions regarding the applicability to specified facts of:
a. A statute administered or enforceable by the Commission,
b. A rule promulgated by the Commission, or an order issued by the Commission.
C. Circumstances in Which Declaratory Opinions Will Not Be Issued
The Commission may, for good cause, refuse to issue a declaratory opinion. Without limiting the generality of the foregoing, the circumstances in which declaratory opinions will not be issued include, but are not necessarily limited to:
a. The matter is outside the primary jurisdiction of the Commission;
b. Lack of clarity concerning the question presented;
c. There is pending or anticipated litigation or, administrative action, or other adjudication which may either answer the question presented by the request or otherwise make an answer unnecessary;
d. The statute, rule, or order on which a declaratory opinion is sought is clear and not in need of interpretation to answer the question presented by the request;
e. The facts presented in the request are not sufficient to answer the question presented;
f. The request fails to contain information required by these rules or the requestor failed to follow the procedure set forth in these rules;
g. The request seeks to resolve issues which have become moot or are abstract or hypothetical such that the requestor is not substantially affected by the rule, statute, or order on which a declaratory opinion is sought;
h. No controversy exists concerning the issue as the requestor is not faced with existing facts or those certain to arise which raises a question concerning the application of the statute, rule, or order;
i. The question presented by the request concerns the legal validity of a statute, rule, or order;
j. The request is not based upon facts calculated to aid in the planning of future conduct, but is, instead, based on past conduct in an effort to establish the effect of that conduct;
k. No clear answer is determinable;
l. The question presented by the request involves the application of a criminal statute or sets forth facts which may constitute a crime;
m. The answer to the question presented would require the disclosure of information which is privileged or otherwise protected by law from disclosure;
n. The question is currently the subject of an Attorney General's opinion request; or
o. The question has been answered by an Attorney General's opinion.
i. A declaratory opinion will not be issued where a similar request is pending before the Commission, or any other agency, or a proceeding is pending on the same subject matter before any agency, administrative or judicial tribunal, or where such an opinion would constitute the unauthorized practice of law.
ii. A declaratory opinion will not be issued if it may adversely affect the interests of the State, the Commission, or any of their officers or employees in any litigation which is pending or may reasonably be expected to arise.
iii. Where a request for a declaratory opinion involves a question of law, the Commission may refer the matter to the State Attorney General.
iv. A declaratory opinion will not be issued where the question involves eligibility for a license, permit, certificate or other approval by the Commission or some other agency and there is a statutory or regulatory application process by which eligibility for said license, permit, or certificate or other approval may be determined.
D. Form of the Request for a Declaratory Opinion
a. Written Requests Required
Each request must be typed or legibly handwritten.
Each request must be submitted on standard business letter-size paper (8-1/2" x 11"). The request may be in the form of a letter addressed to the Commission or in the form of a pleading as might be addressed to a court.
b. Where to Send Requests
All requests must be mailed or delivered to the Commission at 3825 Ridgewood Road, Jackson, Mississippi 39211. The request and its envelope shall clearly state that it is a request for a declaratory opinion. Oral and telephone requests are unacceptable.
c. Name, Address, and Signature of Requester
Each request must include the full name, telephone numbers, and mailing address of the requestor(s). All requests shall be signed by the person filing the request, unless represented by an attorney, in which case the attorney may sign the request. Any party who signs the request shall attest that the request complies with the requirements set forth in these rules, including but not limited to a full, complete, and accurate statement of relevant facts and that there are no related proceedings pending before any agency, administrative, or judicial tribunal.
d. Single Transaction
A request must be limited to a single transaction or occurrence.
e. Question Presented
Each request must contain the following:
i. A clear identification of the statute, rule, or order at issue;
ii. The question for the declaratory opinion;
iii. A clear and concise statement of all facts relevant to the question presented;
iv. The identity of all other known persons involved in or impacted by the facts giving rise to the request including their relationship to the facts, and their name, mailing address, and telephone number; and
v. A statement sufficient to show that the requestor has a substantial interest in the subject matter of the request.
E. Agency Response
a. Within forty-five (45) days after the receipt of a request for a declaratory opinion which complies with the requirements of these rules, the Commission will, in writing:
i. Issue an opinion declaring the applicability of the specified statute, rule, or order to the specified circumstances; or
ii. Decline to issue a declaratory opinion, stating the reasons for its action; or
iii. Agree to issue a declaratory opinion, or a written statement declining to issue a declaratory opinion, by a specified time but no later than ninety (90) days after receipt of the written request.
b. When Period Begins
The forty-five (45) day period shall begin on the first business day after which the request is received by the Commission.
c. Opinion Not Final for Sixty Days
A declaratory opinion shall not become final until the expiration of sixty (60) days after the issuance of the opinion. Prior to the expiration of sixty (60) days, the Commission may, in its discretion, withdraw or amend the declaratory opinion for any reason which is not arbitrary or capricious. Reasons for withdrawing or amending an opinion include, but are not limited to, a determination that the request failed to meet the requirements of these rules or that the opinion issued contains a legal or factual error.
F. Procedure after Request for Declaratory Opinion Received
a. Notice by Requestor
The requestor, or his attorney, shall append to the request for a declaratory opinion a listing of all persons, with addresses known to the requestor, who may have an interest in the declaratory opinion sought to be issued, and shall mail a copy of the request to all such persons. The requestor or his attorney shall certify that a copy of the request was mailed to all such persons together with this statement: "Should you wish to participate in the proceedings of this request or receive notice of such proceedings or the declaratory opinion issued as a result of this request, you should contact the Commission within twenty days of the date of this request."
G. Hearings at the Discretion of the Agency
a. Provision for Hearing
If the Commission in its sole discretion deems a hearing necessary or helpful in determining any issue concerning a request for a declaratory opinion, the Commission may schedule such a hearing. Notice of the hearing shall be given to all interested parties unless waived. Notice mailed by first class mail seven calendar days prior to the hearing shall be deemed appropriate.
b. Proceedings at the Hearing
The procedure for conducting a hearing, including but not limited to the manner of presentation, the time for presentation, and whether and how evidence may be taken, shall be within the discretion of the Commission.
c. Persons Appearing at the Hearing
The Commission shall allow the requestor to participate in any hearing.
The Commission may allow any other persons or entities to participate in the hearing.
H. Public Availability of Requests and Declaratory Opinions
Declaratory opinions and requests for declaratory opinions shall be available for public inspection and copying at the expense of the viewer during normal business hours. All declaratory opinions and requests shall be indexed by name, subject, and date of issue. Declaratory opinions and requests that contain information that is confidential or exempt from disclosure under the Mississippi Public Records Act or other laws shall be exempt from this requirement and shall remain confidential.
