1. (a) Purpose and scope.

   1. (1) This section establishes the procedure for the filing of an administrative appeal of state set-aside orders issued by the Arkansas Energy Office.
   2. (2) A person has not exhausted the administrative remedies until an appeal has been filed and an order granting or denying the appeal has been issued.
   3. (3) If the Director of the Arkansas Energy Office is unable to conduct an administrative appeal, the authority for conducting said administrative appeal shall revert to the Director of the Division of Environmental Quality or his or her designee.

2. (b) Who may file.

   1. (1) A wholesale purchaser-consumer, dealer, or end user seeking an assignment from the state set-aside system to meet a qualifying hardship or emergency requirement, and a wholesale purchaser-reseller seeking an assignment to enable him or her to supply dealers, wholesale purchaser-consumers, and end users to meet qualifying hardship or emergency requirements who is wholly denied or partially denied an assignment of the requested amount may file an administrative appeal.

   2. (2)

      1. (A) Any person, company, organization, or agent of said company or organization acting with authority of said company or organization who has been aggrieved by a decision from the office who is filing an appeal under this section shall submit a signed, written document entitled "Appeal of Order" which shall be clearly labeled as such.
      2. (B) An appeal can be granted on the grounds that the assignment was wholly denied or partially denied.
      3. (C)

3. (i) If the appellant wishes to claim confidential treatment for any information contained in the appeal, the appellant shall file together with the appeal a second copy of the document from which has been deleted the information for which such appellant wishes to claim confidential treatment.

   1. (ii) The appellant shall indicate in the original document that it is confidential or contains confidential information and shall file a statement specifying the justification for nondisclosure of such information.

      1. (c) Where to file. Appeals from state set-aside orders shall be filed with: Director Arkansas Energy Office 5301 Northshore Drive North Little Rock, Arkansas 72118

         1. (d) Notice.

   2. (1)

      1. (A) The appellant shall send, in such manner that it shall be received within five (5) business days after the filing of an appeal, a copy of the appeal and any subsequent amendments or other documents relating to the appeal, or a copy from which confidential information has been deleted in accordance with this section and 10 C.F.R. § 205.9(f), to each person who is reasonably ascertained by the appellant as a person who will be aggrieved by the action sought, including those who participated in the prior proceedings.
      2. (B) The copy of the appeal shall be accompanied by a statement that the person may submit comments regarding the appeal to the director within five (5) business days from the time of receipt.

   3. (2) The appeal shall include:

      1. (A) Certification that the appellant has complied with the requirements of this section; and
      2. (B) The names and addresses of each person to whom a copy of the appeal was sent.

   4. (3) Notwithstanding the provision of subdivisions (d)(1) and (2) of this section, if an appellant determines that compliance with subdivisions (d)(1) and (2) of this section would be impracticable:

      1. (A) The appellant shall:

         1. (i) Comply with subdivisions (d)(1) and (2) of this section with regard to those persons whom it is reasonable and possible to notify; and
         2. (ii) Include with the appeal a description of the persons or classes of persons to whom notice was not sent; and
      2. (B) The appellant may be required to provide additional or alternative notice if it is determined that the notice required by subdivisions (d)(1) and (2) of this section is not practicable.

4. (e) Contents.

   1. (1) The appeal shall contain a concise statement of the grounds upon which it is brought and a description of the relief sought.
   2. (2) A copy of the order that is the subject of the appeal shall be submitted with the appeal.

5. (f) Evaluation of appeal.

   1. (1)

      1. (A) Before the appeal is reviewed, the director shall give notice to the appealing party the issues upon review.
      2. (B) These will be the only issues that the director will grant a decision on.
      3. (C) The director may give this notice by United States Postal Service or electronic transmission.

   2. (2) Processing.

      1. (A)

         1. (i) The director may initiate an investigation of any statement in an appeal and utilize in its evaluation any relevant facts obtained by such investigation.
         2. (ii) The director may solicit and accept submissions relevant to any appeal provided that the appellant is afforded an opportunity to respond to all submissions.
         3. (iii) In evaluating an appeal, the director may consider any other source of information.

      2. (B)

         1. (i) If the director determines that there is insufficient information upon which to base a decision, and if, upon request, the necessary additional information is not submitted, the director may dismiss the appeal with leave to amend within a specified time.
         2. (ii) If the failure to supply additional information is repeated or willful, the director may dismiss the appeal with prejudice.
         3. (iii) If the appellant fails to provide the notice required under this section without showing it was for good cause, the director may dismiss the appeal with prejudice.

      3. (C)

         1. (i) A hearing will take place within five (5) business days of granting the appeal if the appealing party so requests.
         2. (ii) There, the appealing party can state their argument orally and produce additional evidence.
         3. (iii) All other parties in interest will have a chance to be present and give an oral argument.
         4. (iv) Notice shall be given by the director to all persons originally notified under subsection (d) of this section.
         5. (v) The director may give notice by United States Postal Service or electronic transmission.

   3. (3) Criteria.

      1. (A) An appeal may be summarily denied if it is:

         1. (i) Not filed within ten (10) business days from receiving notice of a judgment from the Arkansas Energy Office, unless good cause is shown; or
         2. (ii) Defective on its face for failure to state, and to present facts and legal arguments in support thereof, that the office’s action was erroneous in fact or in law, or that it was arbitrary or capricious.

      2. (B) The director may deny an appeal if the applicant does not establish that the:

         1. (i) Appeal was filed by a person aggrieved by the office’s action;
         2. (ii) Office's action was erroneous in fact or in law; or
         3. (iii) Office's action was arbitrary or capricious.
      3. (C) The denial of an appeal shall be a final order of the office of which judicial review may be sought by the appellant.

6. (g) Decision and order.

   1. (1) The possible outcomes of an appeal are:

      1. (A) Reverse the prior office decision and grant requested fuel assignment;
      2. (B) Modify the prior office decision; or
      3. (C) Affirm the prior office decision.
   2. (2) Upon consideration of the appeal and other relevant information received or obtained during the proceeding, the director shall enter an appropriate order, which may include the modification of the order that is the subject of the appeal.

   3. (3)

      1. (A) The order shall include a written statement setting forth the relevant facts and the legal basis of the order.
      2. (B) The order shall state that it is a final order of the office from which the appellant may seek judicial review.

7. (h) Timeliness. When the director has received all substantive information deemed necessary to process any appeal filed under this section, the director shall:

   1. (1) Serve notice of that fact upon the appellant; and
   2. (2) Take action on the appeal within five (5) business days of serving such notice.

Codification Notes: The Executive Director of the Arkansas Economic Development Commission referenced in this section is now the Director of the Arkansas Economic Development Commission pursuant to Acts 2019, No. 910.