Current through Register Vol. 49, No. 2, February 2024
RULE A-2: GENERAL HEARING
PROCEDURES
a)
Execution and Filing
1) All applications,
except for applications filed by the Director, shall be in writing and state
the interests of the application and the general nature of the order requested.
Fourteen copies of the application, including exhibits, shall be filed with the
Commission Director's office located in Little Rock, Arkansas ("Director's
Office"). The application shall be deemed filed when it is received by the
Director's Office.
2) All fourteen
(14) copies of the applications, including exhibits, except for those filed by
the Director, must be received in the Directors Office at least twenty (20)
days prior to the first day of regularly scheduled hearing. If the applicant or
his/her representative files an electronic version (a .pdf file labeled by the
assigned docket number) of the application, including exhibits, on an
electronic storage device approved by the Director a minimum of twenty (20)
days prior to the first day of the regularly scheduled hearing, the fourteen
(14) copies of the applications, including exhibits must be received in the
Director's office eighteen (18) days prior to the first day of the regularly
scheduled hearing.
3) Every
application shall be signed by the applicant or his/her representative and
his/her address shall be stated thereon. The signature of the applicant or
his/her representative constitutes a certificate by him/her that he/she has
read the petition and that to the best of his/her knowledge, information and
belief there is good ground to support the same.
4) Unless otherwise provided by General Rule
of the Commission, each application, except for applications filed by the
Director, shall be accompanied by a five hundred dollar ($500.00) filing fee
made payable to the Arkansas Oil and Gas Commission.
5) The applicant shall also submit a check
payable to the Arkansas Oil and Gas Commission in an amount approved by the
Commission, not to exceed two dollars ($2.00) per name of persons named in the
application, whose address are known as well as addresses for other persons
that the applicant seeks to provide a copy of the order. The applicant shall
also provide mailing labels for each person named in the application whose
address is known, as well as any other person that the applicant seeks to
provide a copy of the order. If the address of the person is unknown, the
Applicant shall provide a statement to that affect. All mailing labels shall be
provided within three (3) days after the date of the hearing.
6) If after the application is filed, and
prior to the hearing date, the Director finds the application deficient
relative to the requirements of subsections a) 1) through 4) above, the
Director shall return the application to the applicant with a statement as to
the deficiencies.
7) If after the
application is filed, and prior to the hearing date, the Director determines
that additional facts, data, records, or other information are necessary to
fully evaluate the application, the Director may require the applicant to
submit such necessary facts, data, records or other information.
8) Amendments may be filed at the time of the
hearing. However, any amendments filed prior to the hearing date shall be
submitted at least ten (10) days prior to the hearing date, and contain a
written statement or a clear indication as to what the amendment is being
amended. Any application that is substantially amended, as determined by the
Commission, regardless of the time of the amendment, may be continued until the
next hearing of the Commission.
b) Notice of Hearing
1) The Applicant shall prepare a notice of
hearing which shall be issued in the name of the Arkansas Oil and Gas
Commission. Such notice shall include a statement pertaining to the legal
authority for the hearing; the name of the applicant; the legal description of
the property or unit; a statement of the requested action; a listing of
interested parties; the time, date and location of the hearing; the Commission
assigned docket number; and the contact information of the Commission offices.
The notice shall also state that any interested person may file an entry of
appearance in the hearing by submitting such entry of appearance in writing to
the Hearing Officer or Director, and that thereafter such person shall be
deemed a party of record in the proceeding.
2) Unless otherwise provided by the Brine Act
found in Ark. Code Ann. § 15-76-201
et. seq.or General
Rule of the Commission, the Applicant shall serve such notice in the following
manner:
A) By mailing such notice by U.S.
Postal service, first-class mail, directed to all interested parties at their
last known addresses at least ten (10) days prior to the date of the hearing,
but not more than thirty (30) days prior to the date of the hearing;
and
B) By publication of such
notice for at least one (1) day, with the notice appearing at least ten (10)
days prior to the date of the hearing, but not more than thirty (30) days prior
to the date of the hearing, in the newspaper of general circulation published
in each county containing some portion of the land identified in the
application.
c) Emergency Hearings
In the event an emergency is found to exist by the Commission
which in its judgment requires the making, changing, renewal or extension of an
order, special rule, or regulation, without first having a hearing, such
emergency order shall have the same validity as if a hearing with respect to
the same had been held after due notice. The emergency order permitted by this
section shall remain in force until the date of the next regular Commission
hearing set to be held after the emergency rule, regulation or order was
issued, or sixty days from its effective date in accordance with the Brine Act
found in Ark. Code Ann. § 15-76-307, and, in any event, it shall expire
when any order made after due notice and hearing with respect to the subject
matter of such emergency order becomes effective.
d) Pre-Hearing Conferences
1) Upon his/her own motion, or the motion of
a party of record, the Hearing Officer, as designated by the Commission, may
convene a meeting of the parties or their counsel in order to:
A) Simplify the factual and legal issues
presented by the hearing request;
B) Receive stipulations, admissions of fact
and the contents and authenticity of documents;
C) Exchange lists of witnesses the parties
intend to have testify and copies of all documents the parties intend to
introduce into evidence at the hearing; and
D) Discuss and resolve such other matters as
may tend to expedite the disposition of the hearing request and to assure a
just conclusion thereof.
2) Pre-hearing conferences may be held by
telephone conference if such procedure is acceptable to all parties.
e) Hearings
1) Every hearing shall be held on a date and
at a location established by the Commission, and conducted by a Hearing Officer
designated by the Commission. The Hearing Officer shall take all necessary
actions to avoid delay, to maintain order and to develop a clear and complete
record, and shall have all powers necessary and appropriate to conduct a fair
hearing and to render a decision on the petition, including but not limited to
the following:
A) To administer oaths and
affirmations;
B) To receive
relevant evidence;
C) To regulate
the course of the hearing and the conduct of the parties and their counsel
therein;
D) To consider and rule
upon procedural requests;
E) To
examine witnesses and direct witnesses to testify, limit the number of times
any witness may testify, limit repetitive or cumulative testimony and set
reasonable limits on the amount of time each witness may testify; and
(F) To require the production of documents or
subpoena the appearance of witnesses, either on the Hearing Officer's own
motion or for good cause shown on motion of any party of record. The Hearing
Officer may require that relevant documents be produced to any party of record
on his/her own motion or for good cause shown on motion of any party of
record.
2) Every person
appearing shall enter his/her appearance by stating his/her name and address.
Thereafter, such person shall be deemed a party of record.
3) All participants in the hearing shall have
the right to be represented by an attorney licensed to practice law in the
State of Arkansas. An attorney appearing in a representative capacity in any
proceeding hereunder shall file a written notice of appearance identifying his
or her name, address and telephone number, and identifying the party
represented.
4) The Hearing Officer
shall allow all parties to present statements, testimony, evidence and argument
as may be relevant to the proceeding.
5) The Director, or his/her designee, may
appear at any public hearing and shall have the opportunity to question parties
or otherwise elicit such information as is necessary to reach a decision on the
application.
6) Preliminary
Matters: Where applicable, the following shall be addressed prior to receiving
evidence:
A) The applicant may offer
preliminary exhibits, including documents necessary to present the issues to be
heard, notices, proof of publication and orders previously entered in the
cause.
B) Rulings may be made by
the Hearing Officer on any pending motions.
C) Any other preliminary matters appropriate
for disposition prior to presentation of evidence.
7) Every hearing shall be conducted in
accordance with the Commission's rules and applicable laws of this
State.
f) Evidence
1) Admissibility: A party shall be entitled
to present his/her case by oral or documentary evidence, to submit rebuttal
evidence, and to conduct such cross-examination as may be required for a full
and true disclosure of the facts. Any oral or documentary evidence may be
received, but the presiding Hearing Officer may exclude evidence which is
irrelevant, immaterial or unduly prejudicial or repetitious. However, the
erroneous ruling on the admissibility of evidence shall not of itself
invalidate any rule, regulation or order.
2) Official Notice: Official notice may be
taken of any material fact not appearing in evidence in the record if the
circuit courts of this State could take judicial notice of such fact. In
addition, notice may be taken of generally recognized technical or scientific
facts within the Commission's specialized knowledge.
3) Order of Proof: The applicant shall open
the proof. Other parties of record shall be heard immediately following the
petitioner. The Hearing Officer or Director or his/her designee, as well as any
Commissioner may examine any witnesses. In all cases, the Hearing Officer shall
designate the order of proof and may limit the scope of examination or
cross-examination.
4) Briefs: The
Hearing Officer may require or allow parties to submit written briefs to the
Hearing Officer within 10 days after the close of the hearing or within such
other time as the Hearing Officer shall determine as being consistent with the
Commission's responsibility for an expeditious decision.
g) Recording of Proceedings; Testimony
The Commission shall provide a certified court reporter to take
down the testimony and preserve a record of all proceedings at the hearing. Any
person testifying shall be required to do so under oath. However, relevant
unsworn statements, comments and observations by any interested person may be
heard and considered by the Commission as such and included in the
record.
h) Postponement or
Continuance of Hearing
Any hearing may be postponed or continued for due cause by the
Hearing Officer upon his/her own motion or upon the motion of a party to the
hearing. A motion filed by a party to the hearing shall set forth facts
attesting that the request for continuance is not solely for the purpose of
delay. All parties involved in a hearing shall avoid undue delay caused by
repetitive postponements or continuances so that the subject matter of the
hearing may be resolved expeditiously. The Applicant may postpone or continue
the hearing of an application for three consecutive regularly scheduled
Commission meetings without prior approval of the Hearing Officer. After the
third consecutive postponement, the application shall be dismissed, unless the
Hearing Officer allows an exception for due cause, and the applicant shall be
required to re-file in accordance with applicable General Rules in order for an
application to be scheduled for a hearing.
i) Default - Failure to Appear.
If a party, after proper service of notice, fails to appear at
the pre-hearing conference or at a hearing, and if no continuance is granted,
the Commission may then proceed to make its decision in the absence of such
party. If the failure to appear at such pre-hearing conference or hearing is
due to an emergency situation beyond the parties' control, and the Commission
is notified of such situation on or before the scheduled pre-hearing conference
or hearing, the Hearing Officer may continue or post-pone the pre-hearing
conference or hearing. Emergency situations include sudden unavailability of
counsel, sudden illness of a party or his representative, or similar situations
beyond the parties' control.
j) Administrative Issuance of Default
Integration Order for Certain Unleased Mineral Interests.
1) The Director is authorized to issue an
administrative order integrating unleased mineral interest owners in any unit
where there is not a well capable of production if all of the following
criteria are met:
A) An application is filed
with the Director that includes all of the information required in General Rule
A-3 b) 2) A) though G);
B) Each
mineral interest sought to be integrated is less than one (1) net mineral
acre;
C) The cash bonus and royalty
rate requested by the applicant are equal to or greater than the highest and/or
best cash bonus and royalty terms that the applicant has knowledge of that have
been offered and accepted, or contracted for, for any acreage within the
unit(s) where the well is located (as defined in Section (a)(2) of General Rule
B-3), including any acreage within the unit(s) subject to leases or other
agreements with a fee mineral owner covering lands located in more than one
unit.
D) The applicant specifies
which Model Form Operating Agreement approved by the Commission it seeks to
use, with Paragraph III.1.A.(1) of the COPAS:
i) Not to exceed more than $7,500.00 for a
drilling well rate and $750.00 dollars for a producing well when the proposed
well is a dry natural gas well; or
ii) Not to exceed more than $4,500.00 for a
drilling well rate and $450.00 dollars for a producing well when the proposed
well is a liquid hydrocarbon well.
E) The applicant provides an affidavit or
other documentary evidence to support a reasonable risk factor penalty, and the
requested risk factor does not exceed 400%.
F) No earlier than ten (10) business days
prior to, and no later than three (3) business days prior to, the filing of the
application, the applicant shall send to affected mineral interests owners,
whose mailing addresses may reasonably be ascertained, a notice of the
application's filing and verify such mailing by affidavit, setting out the
names and addresses of all owners and the date(s) of mailing.
G) The applicant shall also submit proof of
publication of such notice of the applications in a newspaper of general
circulation within the county or counties within which the unit is located that
appeared at least one time no earlier than ten (10) days prior to filing the
application, and no later than the date of filing the application.
H) Any owner, so noticed shall have the right
to object to the granting of such application within fifteen (15) days after
the date of receipt of the application by the Commission. Each objection must
be made in writing and filed with the Director. If a timely written objection
is filed, then the applicant shall be promptly furnished a copy and such
application shall be denied, unless the objection is withdrawn within the
original fifteen (15) day time period after receipt of the application. If the
application is denied under this section, the applicant may request to have the
application referred to the Commission for determination in accordance with
General Rules A-2 and A-3, and other applicable hearing requirements, except
that no additional fee is required.
I) If no timely objection is received, or if
one is received and withdrawn within the original fifteen day time period after
receipt of the application, the Director is authorized to approve the
application administratively.
2) An application may be referred to the
Commission for determination when the Director deems it necessary that the
Commission make such determination for the purpose of protecting correlative
rights of all parties, in order to prevent waste, or for any other reason.
Promptly upon such determination, and not later than fifteen (15) days after
receipt of the application, the Director shall give the applicant written
notice, citing the reason(s) for referral to the full Commission for
determination. If the application is referred under this section, the applicant
shall file a request for a hearing, in accordance with General Rules A-2 and
A-3, and other applicable hearing requirements, except that no additional
filing fee is required.
3) If the
Applicant has satisfied all applicable provisions, the Director has not
notified the applicant of the determination to refer the application to the
Commission within the fifteen (15) day period in accordance with the foregoing
provisions, and if no objection is received at the office of the Commission
within the fifteen (15) days as provided for in subsection j)1)H) above, the
application shall be approved and an administrative default order shall be
issued by the Director.
k) Voting
1) In order for the Commission to adopt a
motion approving an application as applied for, or as amended by either the
applicant of a Commissioner, there must be:
A)
A quorum present;
B) A majority of
the votes cast must be in favor of the motion outlining the proposed order;
and
C) At least five (5) votes cast
must be in favor of the motion outlining the proposed order.
2) If a motion approving the
application as applied for, or as modified by either the applicant or a
Commissioner does not receive the votes required in subparagraphs 1) A) through
C) above, and no subsequent or substitute motion receives the votes required in
subparagraphs 1) A) through C) above, then the application shall be deemed to
be denied by the Commission.
3) If
an application is deemed to be denied by the Commission in accordance with
subparagraph i) 2) above, the Commission shall enter an order of denial, which
may be appealed as a final decision under the Arkansas Administrative
Procedures Act found in Ark. Code Ann. § 25-15-201 et.
seq.
4) Nothing in this
subparagraph shall limit the Commission's authority to continue any application
for due cause.
l)
Commission's Order--Final Administrative Decision
Within 30 days of the close of the hearing record, the Commission
shall issue findings of fact, conclusions of law and final administrative
decision of the Commission signed by the Director. The Commission shall have
continuing jurisdiction for the purposes of enforcement, and/or modifications
or amendments to the provisions of all orders. Any appeals shall be governed by
the Administrative Procedures Act found in Ark. Code Ann. § 25-15-201
et. seq.
m) Notice of Order--Recordation
Within 30 days after an order has been issued, a copy of such
order shall be mailed by the Commission to each interested party at his/her
last known address or his/her attorney of record, and filed in accordance with
the Administrative Procedures Act found in Ark. Code Ann. § 25-15-201
et. seq.
n) Official Record
In every case of adjudication, the official record shall be
complied in accordance with the Administrative Procedures Act found in Ark.
Code Ann. § 25-15-201 et. seq.
