Sec. 31.02.01.10-1. Exceptions

A. Scope. This regulation applies to a contested case where the Office has been delegated authority to issue proposed findings of fact, proposed conclusions of law, or a proposed order.

B. On receipt of a decision that contains proposed findings of fact, proposed conclusions of law, or a proposed order, the parties affected have:

(1) 20 days after receipt to file exceptions to the proposed findings of fact, proposed conclusions of law, or proposed order with the Commissioner; or

(2) 10 days to:

(a) File a written request for a transcript with the Commissioner in order to file exceptions; or

(b) File with the Commissioner a copy of that party's written request to its private stenographer for the party's preparation of a transcript based on its own record of the testimony in order to file exceptions.

C. Receipt under §B of this regulation is presumed to occur 3 days after the mailing of the proposed findings of fact, proposed conclusions of law, or a proposed order.

D. Filing Exceptions After Receipt of Transcript.

(1) If a party requests a transcript under §B(2) of this regulation, the party shall have 30 days after the filing of the transcript to file exceptions with the Commissioner.

(2) Unless extended by order of the Commissioner, the party requesting the transcript shall file the transcript with the Commissioner within 60 days after the date on which the transcript was requested.

E. Exceptions shall be in writing unless specified otherwise by the final decision maker.

F. If a party elects not to file exceptions, another party may not raise the defense of failure to exhaust this administrative remedy on appeal to circuit court.

G. The record before the Commissioner for the exceptions shall consist of:

(1) The administrative law judge's findings and conclusions, including the findings of fact, conclusions of law, and proposed order;

(2) Any exceptions filed by a party;

(3) Any response to exceptions filed by a party;

(4) Any evidence submitted by a party;

(5) Notice to the parties of the hearing;

(6) Any documentary evidence admitted into evidence by the administrative law judge; and

(7) The transcript of the hearing before the administrative law judge, if requested and filed by one of the parties or the Commissioner.

H. Transcripts.

(1) A party who desires to have the transcript made part of the record shall, at the party's own expense, file three copies of the transcript, or its relevant portions, with the Commissioner on receipt of the transcript.

(2) If a transcript has already been prepared, the Commissioner shall make the transcript part of the record in the contested case.

(3) If a transcript is prepared based on the Office's record of the testimony and a transcript is prepared based on a party's own record of the testimony, the transcript based on the Office's record of the testimony is:

(a) The official transcript; and

(b) Controlling in the event of any conflict between the two transcripts.

(4) If the transcript is not filed or otherwise made part of the record in the contested case, parties may not refer in their exceptions to any testimony before the administrative law judge not incorporated into the administrative law judge's findings and conclusions.

(5) If all parties agree that the questions presented for review to the final decision maker can be determined without an examination of the entire transcript, the parties may file a statement showing how the questions arose and setting forth the facts or allegations that are essential to a determination of those issues.