Current through Register Vol. 49, No. 9, September, 2024
SECTION
VII.
RULE-MAKING
1.
AUTHORITY
a) The Arkansas Medical Marijuana Commission
("MMC") has been authorized by §§ 8 and 14 of the Arkansas Medical
Marijuana Amendment of 2016 to promulgate rules.
b) In rule-making, the MMC follows the
procedural requirements of the Arkansas Administrative Procedure Act,
specifically Ark. Code Ann, §§
25-15-203,
25-15-204, and
25-15-218; Ark, Code Ann. §
10-3-309; and any Executive Order
of the Governor applicable at the time that rule-making is initiated. The
purpose of this rule is to inform the public how to initiate rule-making and
how to comment on a proposed rule. This rule does not provide a comprehensive
description of the entire rule-making process.
2.
INITIATING
RULE-MAKING
The process of adopting a new rule or amending or repealing an
existing rule (hereinafter referred to "rule-making") may be initiated:
a) At the request of the governing
body;
b) By agency staff, who may
request permission of the governing board to initiate rule-making; or
c) By third persons outside the agency, who
may petition for the issuance, amendment, or repeal of any rule in accordance
with Ark. Code Ann. §
25-15-204. The petition must
contain:
i. The name, address, telephone
number, and facsimile number of the petitioner and the petitioner's attorney,
if represented by counsel;
ii. The
specific rule or action requested;
iii. The reasons for the rule or action
requested;
iv. Facts showing that
the petitioner is regulated by the agency or has a substantial interest in the
rule or action requested; and
v.
The date of the request.
3.
PUBLIC
COMMENTa) If the agency
proceeds with the rule-making process, it will provide the public with a
reasonable opportunity to comment on a proposed rule.
b) The public comment period will last at
least thirty (30) days,
c) The
agency will begin the public comment period by publishing notice of the
proposed rule-making.
i. The notice will
include the terms or substance of the proposed rule, or a description of the
subjects and issues involved.
ii.
The notice will include a description of the time, location, and manner in
which interested parties may present their views.
iii. The notice will be published in
compliance with Ark. Code Ann. §
25-15-204.
d) If the agency chooses to or is required to
hold a hearing at which the public may appear and comment on the proposed rule,
such hearing will comply with the requirements of Ark. Code Ann. §
25-15-213.
e) The agency shall accept and consider
public comments as required by Ark. Code Ann, §
25-15-204.
f) The agency shall track and respond to
public comments as necessary to comply with Ark. Code Ann. §
25-15-204(a)(2)
and the rules of the Administrative Rules and Regulations Subcommittee of
Legislative Council (or Joint Budget.)
4.
THE DECISION TO ADOPT A
RULEa) The agency will
not finalize language of the rule or decide whether to adopt a rule until the
period for public comment has expired.
b) Prior to adoption, the agency will
consider the factors described in Ark. Code Ann. §
25-15-204.
c) The agency may use its own experience,
specialized knowledge, and judgment in the adoption of a rule.
5.
LEGISLATIVE
APPROVAL, FINAL FILINGS, AND EFFECTIVE DATE
a) After the necessary legislative approvals
are obtained, the agency will file the final rule with the Secretary of
State.
b) The final rule will be
effective ten (10) days after filing with the Secretary of State unless a later
date is specified in the rule itself or by law.
6.
PUBLIC INSPECTION AND
RECORDSa) After the
expiration of the thirty (30) day public comment period and before the
effective date of the rule, the agency shall take appropriate measures to make
the final rule known to the persons who may be affected by the rule, pursuant
to the specifications in Ark, Code Ann, §
25-15-204.
b) The agency's rules shall be available for
public inspection.
c) The agency
shall maintain copies of all filings and documentation associated with
rule-making as necessary to comply with the Arkansas General Record Retention
Schedule.
7.
NEED FOR EMERGENCY RULE
An agency may enact an emergency rule if it finds that an
imminent peril to the public health, safety, or welfare, or that compliance
with a federal law or regulations, requires the adoption of a rule on less than
thirty (30) days' notice. The agency shall state in writing its reasons for
that finding.
a) Filings and effective
date of emergency rule
i) The agency will
follow the process required by Ark, Code Ann. §
25-15-204 and any applicable
Executive Order of the Governor to enact an emergency rule.
ii) After receiving gubernatorial approval
and legislative approval, an emergency rule may become effective immediately
upon filing with the Secretary of State or at a stated time less than ten (10)
days after filing if the agency finds that such effective date is necessary due
to imminent peril to the public health, safety, or welfare,
iii) The agency will take appropriate
measures to notify those who may be affected by the Emergency Rule.
SECTION VIII.
DECLARATORY ORDERS
1.
PURPOSE AND USE OF
DECLARATORY ORDERS
A declaratory order is a means of resolving a controversy or
answering questions or doubts concerning the applicability of statutory
provisions, rules, or orders over which the agency has authority, A petition
for declaratory order may be used only to resolve questions or doubts as to how
the statutes, rules, or orders may apply to the petitioner's particular
circumstances. A declaratory order is not the appropriate means for determining
the conduct of another person or for obtaining a policy statement of general
applicability from an agency, A petition or declaratory order must describe the
potential impact of statutes, rules, or orders upon the petitioner's
interests.
2.
THE PETITION
The process to obtain a declaratory order is begun by filing
with the MMC a petition that provides the following information:
a) The name, address, telephone number, and
facsimile number of the petitioner;
b) The name, address, telephone number, and
facsimile number of the attorney of the petitioner;
c) The statutory provision(s), agency
rule(s), or agency order(s) on which the declaratory order is sought;
d) A description of how the statutes, rules,
or orders may substantially affect the petitioner and the petitioner's
particular set of circumstances, and the question or issue on which petitioner
seeks a declaratory order;
e) The
signature of the petitioner or petitioner's attorney;
f) The date; and
g) Request for a hearing, if
desired.
3.
AGENCY DISPOSITION
a) The agency may hold a hearing to consider
a petition for declaratory order. If a hearing is held, it shall be conducted
in accordance with Ark. Code Ann. §
25-15-208 and §
25-15-213, and the agency's rules
for adjudicatory hearings.
b) The
agency may rely on the statements of fact set out in the petition without
taking any position with regard to the validity of the facts. Within ninety
(90) days of the filing of the petition, the agency will render a final order
denying the petition or issuing a declaratory order.
SECTION IX.
ADJUDICATIVE HEARINGS
1.
SCOPE OF THIS
CHAPTER
This rule applies in all administrative adjudications conducted
by the MMC. This rule describes the process by which the agency formulates
orders.
2.
PRESIDING OFFICER
The MMC shall preside at the hearing or may designate one or
more members of the MMC or one or more examiners, referees, or hearing officers
to preside at a hearing.
3.
APPEARANCES
a) Any party appearing in any agency
proceeding has the right, at his or her own expense, to be represented by
counsel. Alternatively, the respondent may appear on his or her own
behalf.
b) Any attorney
representing a party to an adjudicatory proceeding must file notice of
appearance as soon as possible.
c)
Service on counsel of record is the equivalent of service on the party
represented.
d) On written motion
served on the party represented and all other parties of record, the presiding
officer may grant counsel of record leave to withdraw for good cause
shown.
4.
CONSOLIDATION
If there are separate matters that involve similar issues of
law or fact, or identical parties, the matters may be consolidated if it
appears that consolidation would promote the just, speedy, and inexpensive
resolution of the proceedings, and would not unduly prejudice the rights of a
party.
5.
NOTICE TO INTERESTED PARTIES
If it appears that the determination of the rights of parties
in a proceeding will necessarily involve a determination of the substantial
interests of persons who are not parties, the presiding officer may enter an
order requiring that an absent person be notified of the proceeding and be
given an opportunity to be joined as a party of record.
6.
SERVICE OF
PAPERS
Unless the presiding officer otherwise orders, every pleading
and every other paper filed for the proceeding, except applications for witness
subpoenas and the subpoenas, shall be served on each party or the party's
representative at the last address of record.
7.
INITIATION & NOTICE
OF HEARINGa) An
administrative adjudication is initiated when the agency issues a notice of
hearing.
b) The notice of hearing
will be sent to the respondent by U.S, Mail, return receipt requested, delivery
restricted to the named recipient or his agent. Notice shall be sufficient when
it is so mailed to the respondent's latest address on file with the
agency.
c) Notice will be mailed at
least twenty days before the scheduled hearing unless otherwise agreed by the
parties.
d) The notice will
include:
i. Statement of the time, place, and
nature of the hearing;
ii. A
statement of the legal authority and jurisdiction under which the hearing is to
be held; and
iii. A short and
plain statement of the matters of fact and law asserted.
8.
MOTIONS
All requests for relief will be by motion. Motions must be in
writing or made on the record during a hearing. A motion must fully state the
action requested and the grounds relied upon. The original written motion will
be filed with the agency. When time allows, the other parties may, within seven
(7) days of the service of the written motion, file a response in opposition.
The presiding officer may conduct such proceedings and enter such orders as are
deemed necessary to address issues raised by the motion. However, a presiding
officer, other than the MMC, will not enter a dispositive order unless
expressly authorized in writing to do so.
9.
ANSWER
A respondent may file an answer to the notice of
hearing.
10.
INFORMATION PROVIDED UPON REQUEST
a) Upon written request, the agency will
provide the information designated in Ark, Code Ann. §
25-15-208(a)(3).
b) Such requests should be received by the
agency at least 10 days before the scheduled hearing.
11.
CONTINUANCES
a) The hearing officer may grant a
continuance of hearing for good cause shown. Requests for continuances will be
made in writing. The request must state the grounds to be considered and be
made as soon as practicable and, except in cases of emergencies, no later than
five (5) days prior to the date noticed for the hearing. In determining whether
to grant a continuance, the hearing officer may consider:
i. Prior continuances;
ii. The interests of all parties;
iii. The likelihood of informal
settlements;
iv. The existence of
an emergency;
v. Any
objection;
vi. Any applicable time
requirement;
vii. he existence of a
conflict of the schedules of counsel, parties, or witnesses;
viii. The time limits of the request; and
Other relevant factors.
b) The hearing officer may require
documentation of any grounds for continuance.
12.
HEARING
PROCEDURESa) The
presiding officer presides at the hearing and may rule on motions, require
briefs, and issue such orders as will ensure the orderly conduct of the
proceedings; provided, however, any presiding officer other than the MMC shall
not enter a dispositive order or proposed decision unless expressly authorized
in writing to do so.
b) All
objections must be made in a timely manner and stated on the record.
c) Parties have the right to participate or
to be represented by counsel in all hearings or pre-hearing conferences related
to their case.
d) Subject to terms
and conditions prescribed by the Administrative Procedure Act, parties have the
right to introduce evidence on issues of material fact, cross-examine witnesses
as necessary for a full and true disclosure of the facts, present evidence in
rebuttal, and, upon request by the agency, may submit briefs and engage in oral
argument.
e) The presiding officer
is charged with maintaining the decorum of the hearing and may refuse to admit,
or may expel, anyone whose conduct is disorderly.
13.
ORDER OF
PROCEEDINGS
The presiding officer will conduct the hearing in the following
manner:
a) The presiding officer will
give an opening statement, briefly describing the nature of the
proceedings.
b) The parties will be
given the opportunity to present opening statements.
c) The parties will be allowed to present
their cases in the sequence determined by the presiding officer.
d) Each witness must be sworn or affirmed by
the presiding officer and be subject to examination and cross-examination as
well as questioning by the MMC. The presiding officer may limit questioning in
a manner consistent with the law.
e) When all parties and witnesses have been
heard, parties will be given the opportunity to present final
arguments.
14.
EVIDENCE
a) The presiding officer shall rule on the
admissibility of evidence and may, when appropriate, take official notice of
facts in accordance with all applicable requirements of law.
b) Stipulation of facts is encouraged. The
agency may make a decision based on stipulated facts.
c) Evidence in the proceeding must be
confined to the issues set forth in the hearing notice, unless the parties
waive their right to such notice or the presiding officer determines that good
cause justifies expansion of the issues. If the presiding officer decides to
admit evidence outside the scope of the notice, over the objection of a party
who did not have actual notice of those issues, that party, upon timely
request, may receive a continuance sufficient to prepare for the additional
issue and to permit amendment of pleadings.
d) A party seeking admission of an exhibit
must provide thirteen copies of each exhibit at the hearing. The presiding
officer must provide the opposing parties with an opportunity to examine the
exhibit prior to the ruling on its admissibility. All exhibits admitted into
evidence must be appropriately marked and be made part of the record.
e) Any party may object to specific evidence
or may request limits on the scope of the examination or cross-examination, A
brief statement of the grounds upon which it is based shall accompany such an
objection. The objection, the ruling on the objection, and the reasons for the
ruling will be noted in the record. The presiding officer may rule on the
objection at the time it is made or may reserve the ruling until the written
decision.
f) Whenever evidence is
ruled inadmissible, the party offering that evidence may submit an offer of
proof on the record. The party making the offer of proof for excluded oral
testimony will briefly summarize the testimony or, with permission of the
presiding officer, present the testimony. If the excluded evidence consists of
a document or exhibit, it shall be marked as part of an offer of proof and
inserted in the record.
g)
Irrelevant, immaterial, and unduly repetitive evidence will be excluded. Any
other oral or documentary evidence, not privileged, may be received if it is of
a type commonly relied upon by reasonably prudent men and women in the conduct
of their affairs.
The finder of fact may base its findings of fact upon
reasonable inferences derived from other evidence received.
15.
DEFAULT
If a party fails to appear or participate in an administrative
adjudication after proper service of notice, the agency may proceed with the
hearing and render a decision in the absence of the party.
16.
RECORDING THE
PROCEEDINGS
The agency will record the testimony heard at a hearing. Upon
the filing of a petition for judicial review, the agency will provide a
verbatim transcript of testimony taken before the agency.
17.
FINAL
ORDER
The agency will serve on the respondent a written order that
reflects the action taken by the agency. The order will include a recitation of
facts found based on testimony and other evidence presented and reasonable
inferences derived from the evidence pertinent to the issues of the case. It
will also state conclusions of law and directives or other disposition entered
against or in favor of the respondent.
The order will be served personally or by mail on the
respondent. If counsel represents respondent, service of the order on
respondent's counsel shall be deemed service on the
respondent.
