R590-160-9. Agency Review

  (1) Agency review of an adjudicative proceeding, except an informal proceeding that becomes final without a request for a hearing pursuant to R590-160-7(1), shall be available to any party to the proceeding by filing a petition for review with the commissioner within 30 days of the date of the order. Failure to seek agency review shall be considered a failure to exhaust administrative remedies.

  (2) A request for agency review shall be filed in accordance with Section 63G-4-301.

  (3) The review shall be conducted by the commissioner or the commissioner's designee. The designee shall not be the presiding officer who issued the decision under review. If the review is conducted by a designee, the designee shall recommend a disposition to the commissioner who shall make the final decision and shall sign the order.

  (4) Content of a Request for Agency Review.

  (a) The content of a request for agency review shall be in accordance with Subsection 63G-4-301(1)(b) and include a copy of the order, which is the subject of the request.

  (b) A party requesting agency review shall set forth any factual or legal basis in support of that request.

  (c) The request for agency review may include:

  (i) supporting argument;

  (ii) citation to appropriate legal authority

  (iii) any reference to the relevant portion of the record developed during the formal adjudicative proceeding under review; or

  (iv) reference to the relevant portion of the Department's files, and other evidence or proffers of evidence received during the informal adjudicative proceeding under review.

  (d) If a party challenges a finding of fact in the order subject to review, the party shall demonstrate:

  (i) based on the entire record, that the finding is not supported by substantial evidence in the formal adjudicative proceeding under review; or

  (ii) based on the Department's files and declarant's testimony, that the finding is not supported by substantial evidence in the informal adjudicative proceeding under review.

  (e) If a party challenges a legal conclusion in the order subject to review, the party shall support its argument with citation to any relevant authority and also:

  (i) cite the portion of the record which is relevant to that issue in the formal adjudicative proceeding under review; or

  (ii) cite the portion of the record which is relevant to that issue based upon the evidence in the Department's files, facts appearing in the Department's files and verified by a declarant testimony, and facts presented in evidence or proffers of evidence received in the informal adjudicative proceeding under review.

  (f)(i) If the grounds for agency review include any challenge to a determination of fact or conclusion of law as unsupported by or contrary to the evidence, the party seeking agency review shall:

  (A) order and cause a transcript of the recording relevant to such finding or conclusion to be prepared in the formal adjudicative proceeding under review, in accordance with R590-160-6(5)(a) and (b); or

  (B) provide a statement in its request for agency review that no transcript or recording is available in the informal adjudicative proceeding under review.

  (ii) In a request for agency review under R590-160-8(4)(e)(i)(A), the party seeking review shall certify that a transcript has been ordered and shall notify the presiding officer when the transcript is available for filing.

  (iii) The party seeking agency review shall bear the cost of the transcript.

  (iv) The presiding officer may waive the requirement of preparation of a written transcript and permit citation to the recording of such adjudicative proceeding upon motion and a reasonable showing that such citation would not be extensive and the costs and period of time in preparation of a written transcript would be unduly burdensome in relation thereto.

  (5) Request for Stay.

  (a) Upon the timely filing of a request for agency review, the party seeking review may request that the effective date of the order subject to review be stayed pending the completion of review.

  (b) The Department may oppose the request for a stay in writing within 10 days from the date the stay is requested.

  (c) In determining whether to grant a request for a stay, the presiding officer shall review the request, any opposing memorandum, the findings of fact, conclusions of law, and order and determine whether a stay is in the best interest of the public. If it is determined to be in the best interest of the public to issue a stay, the presiding officer may:

  (i) issue a stay, staying all or any part of the order pending agency review, or

  (ii) issue a conditional stay by imposing terms, conditions or restrictions on a party pending agency review.

  (d) The presiding officer may also enter an interim order granting a stay pending a final decision on the request for a stay.

  (6) Memoranda.

  (a) The presiding officer may order or permit the parties to file memoranda to assist in conducting agency review. Any memoranda shall be filed consistent with these rules or as otherwise governed by any scheduling order.

  (b)(i) If a transcript is necessary to conduct agency review, a supporting memorandum shall be filed no later than 15 days after the filing of the transcript with the Department.

  (ii) If a transcript is unavailable or waived by the presiding officer pursuant to R590-160-8(4)(f)(iv), any supporting memoranda to the request for agency review shall be filed with the request.

  (c) Any opposing memorandum shall be filed no later than 15 days after the filing of the supporting memorandum.

  (d) After the filing of an opposing memorandum, a reply memorandum shall be filed no later than five days after the filing of the opposing memorandum.

  (7) Oral Argument.

  The request for agency review or the response thereto shall state whether oral argument is sought in conjunction with agency review. The presiding officer may order or permit oral argument if determined to be warranted to assist in conducting agency review.

  (8) Standard of Review.

  The standards for agency review correspond to the standards for judicial review of formal adjudicative proceedings, as set forth in Subsection 63G-4-403(4).

  (9) Order on Review.

  (a) The order on review shall comply with the requirements of Subsection 63G-4-301(6).

  (b) An Order on Review may affirm, reverse, or amend, in whole or in part, the previous order, or remand for further adjudicative proceeding or hearing.

  (10) Failure to comply with R590-160-8 may result in dismissal of the request for agency review.