17 AAC 35.080. Appeals

(a) An aggrieved party may appeal a decision by the department to deny, limit, or revoke an industrial use highway permit. The notice of appeal must be submitted to the commissioner, in writing, by certified mail, return receipt requested, within 30 days after the receipt of the written notice of the department's decision. The notice of appeal must contain

(1) the decision being appealed;

(2) the alleged violation of statute or regulation upon which the appeal is based;

(3) the factual arguments supporting the aggrieved party's allegation; and

(4) the specific relief sought.

(b) Within five working days after receipt of the notice of appeal under this section, the commissioner will appoint a person to act as the commissioner's designee to review the factual issues with respect to the appeal.

(c) Within 10 working days after appointment, the commissioner's designee will provide the aggrieved party with his or her decision regarding whether to grant or deny the relief sought. The decision must be based upon

(1) the information provided in the notice of appeal; and

(2) records of the department.

(d) An aggrieved party may request a formal hearing on the denial, limitation, or revocation of an industrial use highway permit if the commissioner's designee does not grant the relief sought.

(e) The request for hearing must be in writing, must be mailed by certified mail, and must be received by the department no later than 15 calendar days after the date the aggrieved party receives the decision under (c) of this section. The request must set out

(1) the list of exhibits the aggrieved party intends to introduce at the hearing;

(2) names of persons to be called as witnesses at the hearing; and

(3) whether the aggrieved party will be represented by counsel.

(f) Within 10 days after receipt of the request for hearing made under (d) of this section, the commissioner may elect to act as the hearing officer or will appoint a hearing officer who is not an employee of the department.

(g) Within five days after appointment, the hearing officer shall establish a date, time, and place for the hearing. In no event may the date of the hearing be more than 30 days after the request made under (d) of this section is received by the department.

(h) The hearing must be recorded and must be conducted according to the following rules of evidence:

(1) oral evidence may be taken only on oath or affirmation;

(2) each party or party's counsel, but not both, may call and examine witnesses, introduce exhibits, cross-examine opposing witnesses on matters relevant to the issues even though those matters were not covered in the direct examination, impeach a witness regardless of which party first called the witness to testify, and rebut the evidence against himself or herself;

(3) the hearing need not be conducted according to technical rules relating to evidence and witnesses; however, relevant evidence may be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of a court rule that makes improper the admission of the evidence over objection in a civil action; hearsay evidence may be used to supplement or explain direct evidence but is not sufficient by itself to support a finding unless it would be admissible over objection in a civil action; the rules of privilege are effective to the same extent that they are recognized in a civil action; irrelevant and unduly repetitious evidence may be excluded;

(4) the burden of proof is on the aggrieved party and the standard of proof is proof by a preponderance of the evidence.

(i) The hearing officer shall submit a report and recommended decision to the commissioner in the form required by AS 44.62.510 within 30 working days after the hearing officer's receipt of the hearing transcript.

(j) The commissioner will notify the aggrieved party by certified mail of the commissioner's decision on the appeal within 30 working days after his or her receipt of the hearing officer's report. The commissioner's decision is the final department decision and is subject to review in the manner provided by AS 44.62.560 .

(k) Expenses incurred by the aggrieved party with respect to the hearing are the sole responsibility of the aggrieved party.

History: Eff. 11/1/87, Register 104

Authority: AS 19.05.010

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