DAR File No. 32214

Transportation, Administration

R907-1

Appeal of Departmental Actions

NOTICE OF PROPOSED RULE

DAR File No.: 32214
Filed: 12/15/2008, 03:24
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

In response to H.B. 63 from the 2008 General Session, the agency is required to change the code citations to match the recodification of Title 63. The rule also updates and clarifies the procedural process. (DAR NOTE: H.B. 63 (2008) is found at Chapter 382, Laws of Utah 2008, and was effective 05/05/2008.)

Summary of the rule or change:

The statutes referenced in the rule have been updated to reflect the recent code renumbering. The procedural process was clarified.

State statutory or constitutional authorization for this rule:

Sections 63G-4-101 through 63G-4-502 and 72-2-102

Anticipated cost or savings to:

the state budget:

No cost or savings are anticipated with this rule change. No new requirements were created with this rule change which will impact the state budget.

local governments:

No cost or savings are anticipated for local governments with this rule change. No new requirements were created with this rule change that impact local governments.

small businesses and persons other than businesses:

No cost or savings are anticipated for small businesses with this rule change. No new requirements were created with this rule change that impact small businesses.

Compliance costs for affected persons:

No cost or savings are anticipated for compliance of affected persons. No new requirements were created with this rule change that impact affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule should have no fiscal impact on businesses. John Njord, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Transportation
Administration
CALVIN L RAMPTON COMPLEX
4501 S 2700 W
SALT LAKE CITY UT 84119-5998

Direct questions regarding this rule to:

Maureen Short at the above address, by phone at 801-965-4026, by FAX at 801-965-4338, or by Internet E-mail at maureenshort@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

02/02/2009

This rule may become effective on:

02/09/2009

Authorized by:

John R. Njord, Executive Director

R907. Transportation, Administration.

R907-1. Appeal of Departmental Actions.

R907-1-1. General Administrative Procedures.

All applications, Requests for Agency Action, and appeals from Notices of Agency Action shall be processed as informal adjudicative proceedings pursuant to Title [63,]63G, Chapter [46b,]4, Utah Administrative Procedures Act (UAPA), unless another rule specifically designates a proceeding as formal or either party requests conversion to a formal proceeding and the presiding officer decides that conversion is in the public interest and does not prejudice the rights of any party. An evidentiary hearing will be held only for formal adjudicative proceedings. However, nothing in this rule is intended to prohibit the presiding officer from holding a meeting of all parties for purposes of settlement, fleshing out of the issues, oral argument, or presentation of evidence. Adjudicative proceedings are subject to agency review or appeal pursuant to Utah Code Ann. Section [63-46b-12]63G-4-3-301, only when statute or a rule specifically provides for review. This rule does not apply to employee grievances, personnel actions, or requests for records under the Governmental Records Access and Management Act (GRAMA). When used in these rules, "director" means Presiding Officer except when used as Executive Director.

 

R907-1-3. Commencement by a member of the public -- Complete or Partial Denials of Applications or Requests for Agency Action -- Default.

(1) If the Department denies, either completely or in part, an application or Request for Agency Action and that action is subject to agency appeal, the division or office issuing the denial shall send to the applicant a written reply as promptly as possible. The reply should include a brief summary of the reasons for the decision along with a listing of any statutes or rules that were interpreted or relied upon for it, along with UDOT's file or reference number. It shall advise the applicant of his or her right to request agency review by filing a written request with the initiating division or office within 30 days after issuance of the notice. In addition, the reply shall inform the applicant that his written request for appeal must include any supporting documentation, including legal memoranda, that he or she wishes to be considered. The reply shall constitute the proposed order of the division or office making the decision and shall so indicate on the reply. If there is no appeal within 30 days, it shall become the final order of the department.

(2) Upon receiving a Request for Agency Appeal, the division or office shall first evaluate it to determine whether it meets the requirements of Utah Code Ann. Section [63-46b-12(1)(b),]63G-4-301(1)(6), i.e., whether it is signed, states the grounds upon which review is requested, the relief sought, and stating the date upon which it was mailed. If the request does not meet the statutory requirements, or was received at the division or office after the 30-day appeals period, it shall be returned to the sender with explanation as to the reason for the return. If the request meets the statutory requirements, the division or office shall promptly forward the material and a copy of any relevant material in its files to:

(a) the State Operations Engineer, if the action involves Title 72, Chapter 7, Part 5, Utah Outdoor Advertising Act;

(b) the deputy Director, if the action involves Title 72, Chapter 9, Motor Carrier Safety Act;

(c) the Project Development Director or designee, if the matter relates to:

(i) construction contract disputes; or

(ii) construction bids or the Disadvantaged Business Enterprise (DBE) program, in which case, the agency review also constitutes "administrative reconsideration" under federal regulation;

(d) the Region Director, if the action involves something other than the items listed in Subsections (a), (b), or (c), and a specific appellate procedure is not otherwise specified in these rules or in statute;

(e) the Executive Director or designee, if the action involves something other than the items listed in subsections (a), (b), (c), or (d) and was initiated by Department personnel located at Department headquarters at the Calvin Rampton Complex.

(3) The positions listed above shall be the respective presiding officers. However, either the Executive Director or deputy Director may designate another to act as a substitute. Additionally, when called to preside over adjudicative proceeding that involves access management or has potential "takings" or inverse condemnation implications, the Region Director may designate a group of individuals either to advise on the issue or to take over presiding officer duties. If the Region Director designates a group to take over presiding officer duties, he or she shall appoint:

(a) an odd-numbered group so that any decision will not result in a tie; and

(b) a chairperson.

(4) The person who issued the appealed order may not be included in either of the groups established in paragraph (3). However, the person who issued the decision may be consulted, asked for the reasons underlying his decision, and called as a witness if the proceeding is converted to a formal one.

(4) Absent filing of a timely Request for Agency Appeal, the department will issue an order that the respondent is in default. If the defaulting party is the sole respondent, the Request for Agency Action will be dismissed. The department shall either mail a copy of the default order and the dismissal order to the person who requested the action.

(5) If the defaulting party is not the sole requester, the initiating division, office, or the appropriate hearing officer shall mail the Order of Default to all parties. The adjudicative proceeding may continue and the department may determine all issues in the proceeding, including those affecting the defaulting party.

(6) A defaulting party may seek agency appeal of an Order of Default by appealing to the presiding. If the Order of Default was issued by that officer, then the defaulting party must seek reconsideration of the Order of Default pursuant to R907-1-5. The sole issue is whether entering default was appropriate.

 

R907-1-4. Administrative Appeals -- Procedures.

(1) (1)Discovery is prohibited, but subpoenas may be issued for the production of necessary evidence. Upon request, the applicant shall have access to information contained in the agency's files and to all materials and information gathered in any investigation, except as otherwise provided by law.

(2)Within 20 days after receipt of a request for agency review, any party, including the division or office that issued the original decision, may submit additional documentation, which may include legal briefs, to the person required to decide on review. The person deciding on review may grant either party an extension of time. The decision should be made on the record appearing after the responses have been submitted, but the person required to decide on review may meet with the parties, if he or she considers it necessary. This meeting is not a hearing as contemplated under Title [63,]63G, Chapter [46b,]4 Utah Administrative Procedures Act.

(3)The person deciding the review shall issue a final agency order as promptly as possible. The order shall contain:

(a) a designation of the statute or rule permitting or requiring review;

(b) a statement of the issues reviewed;

(c) findings as fact as to each of the issues;

(d) conclusions of law as to each of the issues;

(e) the reasons for the disposition;

(f) whether the decision of the division or office initiating the decision is affirmed, reversed, modified, or remanded;

(g) the right to judicial review pursuant to Utah Code Ann. Section [63-46b-15]63G-4-402 by filing a complaint in district court within 30 days.

 

R907-1-6. Administrative Procedures for Motor Carrier Actions.

(1) When a motor carrier appeals the imposition of a penalty under Title 72, Chapter 9, Motor Carrier Safety Act, he or she shall follow the procedures established in R907-1. This proceeding is an informal adjudicative proceeding under [Title]Section [63, Chapter 46b,]63G-4-402, Utah Administrative Procedures Act; therefore, discovery is prohibited, but the administrative hearing officer may issue subpoenas or other orders to compel production of necessary evidence. The Department shall provide the applicant, upon request, information in the agency's files, including records that are part of any investigation unless those records are otherwise made confidential or protected from disclosure.

(2) If the proceeding is converted to a formal adjudicative proceeding and an evidentiary hearing held, the Department's deputy Director may act as the administrative hearing officer. He may also designate another in his stead. At the hearing, the motor carrier shall go first and is burdened to show why the Department's civil penalties should not be assessed. The division shall respond, with the motor carrier being given an opportunity to rebut the division's evidence. If the administrative hearing officer decides doing so will be beneficial to his understanding of the issues, he may allow closing statement or arguments and he may tape the proceedings. The rules of evidence do not apply.

(3) The person deciding the review shall issue a final agency order as promptly as possible. The order shall contain:

(a) a designation of the statute or rule permitting or requiring review;

(b) a statement of the issues reviewed;

(c) findings as fact as to each of the issues;

(d) conclusions of law as to each of the issues;

(e) the reasons for the disposition;

(f) whether the decision of the division or office initiating the decision is affirmed, reversed, modified, or remanded;

(g) the right to judicial review pursuant to Utah Code Ann. Section [63-46b-15]63G-4-402 by filing a complaint in district court within 30 days.

 

R907-1-7. Formal Process and Hearing: Initiation.

(1) If, notwithstanding R907-1-1, the department wishes to initiate an adjudicative proceeding as a formal proceeding, the formal hearing process shall be conducted as follows:

(2) A Notice of Agency Action shall include the following information:

(a) the names and mailing addresses of all respondents and any other persons to whom notice is being given;

(b) the department's file number or other reference number;

(c) a name or caption of the adjudicative proceeding, i.e., Utah Department of Transportation, Motor Carrier Safety Division v. XXXX Trucking Company;

(d) the date on which the Notice was placed in U.S. Mail, or personally served upon the respondents;

(e) a statement of the legal authority and jurisdiction under which the adjudicative proceeding is to be maintained;

(f) the name, title, mailing address, and telephone number of the office initiating the Notice of Agency Action and the appropriate hearing officer;

(g) a general statement of the purpose of the adjudicative proceeding and, to the extent known, the questions to be decided;

(h) if the department is proposing to assess a fine or penalty, the amount of the fine or penalty and a summary of the evidence supporting the proposed amount;

(i) A statement that the adjudicative proceeding is to be conducted formally according to the provisions of these Rules and Sections [63-46b-6 to 63-46b-11;]63G-4-204 to 63G-4-209;

(j) A statement that a written response must be filed within 30 days of the mailing date of the Notice of Agency Action;

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

(3) Absent filing of a timely request, the department will issue an order that the respondent is in default. If the defaulting party is the sole respondent, the Notice of Agency Action will then become the department's final order. The initiating division, office, or appropriate hearing officer shall revise the Notice of Agency Action to effect this change, captioning the Notice as the Final Order, affixing the appropriate signature the new date. The department may not change the contents in any substantive manner. However, the final order shall include a provision that notifies the respondent of his right to judicial. The department shall then either mail or personally serve the respondent with a copy of the default order and the final order.

(4) If the defaulting party is not the sole respondent, the initiating division, office, or the appropriate hearing officer shall mail the Order of Default to all parties. The adjudicative proceeding may continue and the department may determine all issues in the proceeding, including those affecting the defaulting party.

(5) A defaulting party may seek agency review of an Order of Default by appealing to the appropriate hearing officer identified in R907-1-3(2). If the Order of Default was issued by that hearing officer, then the defaulting party must seek reconsideration of the Order of Default pursuant to R907-3-1. The sole issue is whether entering default was appropriate.

 

R907-1-15. Exhaustion of Administrative Remedies.

(1) Persons must exhaust their administrative remedies in accordance with Section [63-46b-14,]63G-4-401, prior to seeking judicial review.

(2) In any adjudicative proceeding before the Director, there is an opportunity for affected parties to respond and participate. Only those aggrieved parties that so exhausted these available and adequate remedies before the Director may be allowed to seek judicial review of the final Director action.

 

R907-1-16. Deadline for Judicial Review.

A party shall file a petition for judicial review of final agency action within 30 days after the date that the order constituting the final agency action is issued. The petition shall name the agency and all other appropriate parties as respondents and shall meet the form requirements specified in Title [63,]63G, Chapter [46b.]4.

 

R907-1-17. Judicial Review of Formal Adjudicative Proceedings.

Judicial review of formal adjudicative proceedings shall be conducted in conformance with Sections [63-46b-16 through 63-46b-18.]63G-4-405.

 

R907-1-20. Construction.

The Utah Administrative Procedures Act described in Title [63]63G, Chapter [46b]4 or any other federal, state statute, or federal regulation shall supersede any conflicting provision of these Rules. It is the Department's intent that, where possible, the provisions of these rules be construed to be in compliance with those superseding provisions.

 

KEY: administrative procedures, enforcement (administrative)

Date of Enactment or Last Substantive Amendment: [April 23, 2003]2009

Notice of Continuation: November 29, 2006

Authorizing, and Implemented or Interpreted Law: [63-46b-1]63G-4-101 through [20;]502 72-1-102