CHAPTER
Agr 200 PRACTICE AND PROCEDURE
Statutory
Authority: RSA 541-A:16, I(b)(2) &
(3), (c) & (d), RSA 541-A:30-a, III
PART
Agr 201 PURPOSE
Agr 201.01 Purpose. The commissioner of agriculture, markets
& food or designated agent conducts various proceedings for the purpose of
acquiring sufficient information to make fair and reasoned decisions on matters
within the commissioner's statutory jurisdiction, including decisions on
applications for licensure and complaints filed against licensees. These rules are construed to secure the just,
efficient and accurate resolution of all department proceedings.
Source. #2298, eff 2-17-83; ss by #2855, eff 9-24-84,
EXPIRED 9-24-90
New. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
PART
Agr 202 DEFINITIONS
Agr 202.01 Definitions. The following words shall have the meanings
indicated when used in this chapter:
(a)
"Commissioner" means the commissioner of the department of
agriculture, markets & food or designated agent.
(b)
"Complaint" means a written statement or documented telephone
call containing allegations of an offense.
(c)
"Department" means the department of agriculture, markets
& food.
(d)
"Division head" means the head of a division in the department
of agriculture, markets & food.
(e)
"Filing" means submitting a written document to the department
by first class mail or in person.
(f)
"Hearing" means a formal adjudicatory proceeding, which allows
both sides to be heard, conducted by the commissioner or his designated
hearings officer in contested cases. The
term does not include declaratory rulings or rulemaking.
(g)
"Hearings officer" means a person designated by the
commissioner to conduct hearings and issue final decisions.
(h)
"Informal proceeding" means a meeting with the division head,
in person or by telephone, in which the notice of violation and possibility of
settlement is discussed.
(i)
"Motion" means any request by a party to a proceeding for an
order relating to that proceeding.
(j)
"Order" means a document issued by the department:
(1) Requiring a person to do, or to abstain from
doing, something; or
(2) Determining a person's rights to a license or
some other property or privilege established by RSA 425-438 or the rules of
this chapter.
(k)
"Petition" means a request to the department by any person
seeking an order or any other action or relief, but does not include a license
application or a motion.
(l)
"Presiding officer" means the commissioner, hearings officer
or division head when conducting a formal or informal hearing.
(m)
"Rulemaking" means the statutory procedures for the
formulation of a rule set forth in RSA 541-A:3 et seq.
Source. #2298, eff 2-17-83; ss by #2855, eff 9-24-84,
EXPIRED 9-24-90
New. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
PART
Agr 203 COMPLAINTS & VIOLATIONS
Agr 203.01 Failure to Comply with Rules.
(a)
Any document submitted to the department which does not comply with the
requirements in the rules of this chapter shall be subject to:
(1) Refusal for filing; or
(2) Conditional denial of a noncompliant
application, petition or motion.
(b)
Any person who submits documents to the department that do not comply
with the requirements in this chapter shall be notified in writing of the
following:
(1) Any apparent errors or omissions;
(2) A request for any additional information that
the agency is permitted by law to require; and
(3) Notification of the name, official title,
address and telephone number of the agency official to contact regarding the
documents submitted.
(c)
Any person who does not comply with the requirements in the rules of
this chapter shall be subject to issuance of an order adverse to that
noncompliant person.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
203.02 Complaint.
(a) A complaint may be filed with the department
by any person upon suspicion of wrongdoing.
(b) Complaints alleging misconduct by licensees,
under RSA 425-438 or a rule or order issued there under, or violators of said
RSA’s or rules, or order, shall be made as follows:
(1) In writing and filed with the department; or,
(2) Called in to the department by telephone, as
follows:
a. The information required by Agr 203.02(c)
shall be written down; and
b. The investigator of this complaint shall have
it signed by the complainant upon investigation.
(c) A complaint shall contain the following
information:
(1) The name and address of the complainant;
(2) The name and business address of the licensee
or other subject against whom the complaint is directed;
(3) The specific facts and circumstances which
constitute the alleged violation; and
(4) The signature of the complainant.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-B, eff 3-24-05
Agr
203.03 Investigation. Upon receipt of a complaint by the
department, but before issuance of a notice of violation, the department shall
investigate the alleged violation(s) to determine whether there is a violation
of RSA 425-438 or a rule or order issued thereunder.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-B, eff 3-24-05
Agr 203.04 Notice of Violation.
(a)
Prior to the imposition of an administrative fine pursuant to Agr 203.05
or the revocation, suspension or modification of a certificate of registration,
permit or license, the division head shall in person or by certified mail,
return receipt requested, notify the person who has allegedly violated any
provision of RSA 425-438, or a rule or order issued thereunder, of the charges
against them and their right to request an adjudicatory hearing.
(b)
Notice required by Agr 203.04(a) shall include the following:
(1) A statement of the time frame in which to
request a hearing or respond to charges;
(2) A statement of the legal authority under which
the hearing is to be held;
(3) A reference to the particular sections of the
statutes and rules involved;
(4) A plain statement of the issues involved,
including the specific facts or conduct of the person upon which the department
had based a proposed assessment of a fine or actions on the certificate of
registration, permit or license;
(5) The amount of the monetary fine proposed for
the alleged violation or the proposed action relative to the certificate of
registration, permit or license;
(6) The manner of payment; and
(7) The requirements set forth in Agr 204.07 with
which the person shall comply in order to avoid waiving the right to a hearing
before the department.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr 203.05 Basis for Levying Fines. As part of the hearing procedure, evidence
shall be taken into account to determine the amount of a fine.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
PART
Agr 204 ADJUDICATIVE PROCEDURE
Agr 204.01 Applicability. This part shall govern all proceedings
conducted by the commissioner or his designated agent, except rulemaking and
nonadjudicatory investigations.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr 204.02 Commencement.
(a)
The commissioner shall commence an adjudicative proceeding by issuing a
notice to the parties at least 15 days before the first scheduled hearing date
or first prehearing conference.
(b)
The notice commencing an adjudicative proceeding shall:
(1) Identify the parties to the proceeding as of
the date of the notice;
(2) Briefly summarize the subject matter of the
proceeding, and identify the issues to be resolved;
(3) Attach any complaint against the respondent which
forms, in whole or in part, the basis for the issues to be resolved;
(4) Specify the legislative authority for the
proposed action, and identify any applicable division regulations;
(5) Specify the type of procedures to be
followed;
(6) Specify the date by which, and the address
where, appearances or motions by representatives shall be filed;
(7) Specify the date, time and location of the
hearing and/or any prehearing conference;
(8) Identify the presiding officer for the proceeding,
if other than the commissioner;
(9) Identify any confidentiality requirements
applicable to the proceeding;
(10) A statement that each party has the right to
have an attorney present to represent the party at the party’s expense;
(11) Each party has the right to have the agency
provide a certified shorthand court reporter at the party’s expense and that
any such request be submitted in writing at least 10 days prior to the
proceeding; and
(12) Contain such other information as the circumstances
of the case may warrant including, but not limited to:
a. Orders consolidating or severing issues in
the proceeding with other proceedings; and
b. Orders directing the production of documents.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr 204.03 Docketing, Service of Notice, Public
Notice.
(a)
The commissioner shall assign each adjudicatory proceeding a docket
number, and serve the hearing notice upon all parties to the proceeding and the
civil bureau, department of justice. The
hearing notice shall be served upon the respondent and the complainant, if any,
by means of certified mail.
(b)
Service of all subsequent orders, decisions and notices issued by the
commissioner, including any amendments to the hearing notice, shall be served
upon the parties, including any intervenors, by regular mail.
(c)
Orders, notices and decisions of the commissioner, and motions,
memoranda, exhibits and other documents and data submitted to the commissioner
in a docketed case shall be kept in a docket file and made available for public
inspection in the commissioner's office except to the extent that confidentiality
has been provided for by any other provision of law.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr 204.04 Computation of Time. Any time period specified in this chapter
shall begin with the day following the act, event or default, and shall include
the last day of the period, unless it is Saturday, Sunday or a legal state
holiday, in which event the period shall run until the end of the next day which
is not a Saturday, Sunday or legal state holiday. When the period prescribed or allowed is less
than 7 days, intermediate Saturdays, Sundays and state legal holidays shall be
excluded from the computation.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr 204.05 Informal Proceeding.
(a)
At any time before the entry of a final decision, a person who has
received a notice of violation in accordance with Agr 203.04 or a notice
commencing an adjudicatory proceeding in accordance with Agr 204.02, may
request, by telephone, first class mail or in person, an informal meeting with
the issuer of the notice.
(b)
This meeting shall at least consist of a discussion of the charges and
proposed fines.
(c)
If a settlement agreement is reached during this meeting, all parties
shall sign a statement to that effect, stating the terms of the settlement.
(d)
Upon the conclusion of the informal proceeding, if an agreement was
reached, the presiding officer shall issue a final decision to the party,
pursuant to Agr 204.21, summarizing the settlement agreement and stating the
person's right to request a hearing within 30 days of the date of that letter.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr 204.06 Orders.
(a)
An order shall be in writing, effective immediately, on the date of
issuance. However, an order for license
suspension shall only be effective immediately pursuant to (d) below.
(b)
Orders shall be delivered either in person, at which time the party shall
be requested to sign for receipt of the order, or by certified mail.
(c)
Recipients of "Cease and Desist" orders or "Stop Sale,
Use or Removal" orders may make a request for a hearing before the
department in accordance with the provisions of Agr 204.07.
(d)
In the event that the department determines there is an imminent and
substantial endangerment to the public health, safety or welfare, it shall
incorporate a finding to that effect in its order and immediately suspend the
license, permit or registration pursuant to RSA 541-A:30, III and the following
procedure:
(1) The department shall commence an adjudicative
proceeding not later than 10 working days after the date of the department
order suspending the license, permit or registration;
(2)
Unless expressly waived by the licensee,
permittee or registrant, department failure to commence an adjudicative
proceeding within 10 working days shall mean that the suspension order is
automatically vacated; and
(3) The department shall not again suspend the
license, permit or registration without granting prior notice and an
opportunity for an adjudicative proceeding.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr 204.07 Request for a Hearing.
(a)
A request for a hearing may be made by any person who received a notice
of violation, cease and desist order or stop sale, use or removal order.
(b)
A request for a hearing shall be made by petitioning the department as
follows:
(1) In writing;
(2) Including a plain statement describing the
reasons for the hearing;
(3) Be received by the department within 21 days
of the date of the department's notice of violation or order, except in the
case of a cease and desist order, which shall be received within 10 days of
issuance of that order; and
(4) In the case of a stop sale, use or removal
order which shall be received within 4 days of issuance of that order.
(c)
In cases where a registration, license or permit has been suspended
pursuant to RSA 541-A:30, III, no request for a hearing before the department
shall be required.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr 204.08 Waiver of Right to a Hearing.
(a)
A person shall be deemed to have waived the right to a hearing before
the department upon failure to meet the requirements set forth in Agr 204.07.
(b)
The proposed administrative fine or action on a certificate of
registration, permit or license shall be final upon such waiver.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr 204.09 Prehearing Conference.
(a)
Any party to an adjudicative
proceeding may request a prehearing conference with the other parties to the
proceeding, including the commissioner, hearings officer or division head.
(b)
If so requested, the commissioner, hearings officer or division head
shall schedule a prehearing conference prior to beginning formal proceedings.
(c)
The commissioner, hearings officer or division head shall provide notice
to all parties prior to holding any prehearing conference.
(d)
There may be considered at a prehearing conference any one or more of
the following:
(1) Opportunities and procedures for settlement;
(2) Opportunities and procedures for
simplification of the issues;
(3) Possible additions to documentary evidence;
(4) Possible limitations on the number of
witnesses;
(5) Possible admissions of fact and documents to
avoid unnecessary proof, by consent of the parties;
(6) Possible changes to the standard procedures
which would otherwise govern the proceeding, by consent of the parties;
(7) The distribution of written testimony, if
any, and exhibits to the parties;
(8) Possible consolidation of the examination of
witnesses by the parties; and
(9) Any other matters which contribute to the
prompt and orderly conduct or disposition of the proceeding.
(e)
Upon completion of the prehearing conference, the commissioner, hearings
officer or division head shall issue and serve upon all parties a prehearing decision
incorporating the matters determined at the prehearing conference.
(f)
Any matter to which all parties have been notified may, by agreement of
all parties to the matter through stipulation, settlement or consent decree, be
disposed of at the prehearing conference.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr 204.10 Intervention.
(a)
Any person who petitions to intervene at least 3 days prior to the start
of the hearing shall be granted authority to intervene and shall have the full
status of the party.
(b)
If a person petitions less than 3 days before the hearing, the
commissioner or hearings officer shall grant any petition for intervention, if the following are true, in an
adjudicatory proceeding at any time, if the petition is submitted in writing to
the presiding officer and states with particularity:
(1) The petitioner's rights, duties, privileges,
immunities or other interests would be affected by the subject matter of the
hearing;
(2) The petitioner's position with respect to the
subject matter of the hearing; and
(3) The interests of justice and the orderly and
prompt conduct of the proceeding would not be impaired.
(c)
Once granted leave to intervene, an intervenor shall take the proceeding
as it is found and no portion of the proceeding shall be repeated because of
the fact of intervention.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.11 Right to Counsel. Any party to an adjudicative proceeding may
be represented by counsel, but an attorney appearing on behalf of a party shall
first file a letter at the earliest date possible, in accordance with Agr
204.12, announcing the fact of representation.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.12 Notice of Representation. Each representative of a party, whether an
attorney or non-attorney, shall, upon being retained by a client in a matter
pending before the department, file a letter of representation with the
department and shall send copies of that letter to all parties of record.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.13 Hearing.
(a) Following a request in accordance with Agr
204.07, or following suspension of a permit, registration or license pursuant
to RSA 541-A:30, III, the department shall provide written notification of a
hearing pursuant to RSA 541-A:31, III, as outlined in Agr 204.02.
(b) In the case of a cease and desist order, the
hearing shall be held at the earliest possible time within 20 days of receiving
a request.
(c) Within 30 days of the conclusion of the
hearing, the department shall issue its final decision.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.14 Discovery and Disclosure. Upon the written request of a party, the department
shall disclose any information, not privileged, in the possession of the
department, which is the subject matter of the proceeding.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.15 Evidence; Official Notice.
(a) All testimony of parties and witnesses shall
be made under oath or affirmation administered by the hearings officer.
(b) Adjudicative proceedings shall not be
conducted under the rules of evidence, but the evidentiary privileges
recognized by the law of
(c) Any oral or documentary evidence may be received,
but the hearings officer may exclude irrelevant, immaterial or unduly
repetitious evidence. Objections to
evidence offered may be made by the parties and shall be noted by the hearings
officer. Subject to the foregoing
requirements, any part of the evidence may be received in written form if the
interests of the parties will not be prejudiced substantially thereby.
(d) Documentary evidence may be received in the
form of copies or excerpts if the original is not readily available. Upon request, parties shall be given an
opportunity to compare the copy with the original.
(e) A party, or his representative, may conduct
cross-examinations required for a full and true disclosure of the facts.
(f) If the hearings officer officially notices a fact,
he shall so state, and permit any party, upon timely request, the opportunity
to show to the contrary.
(g) The department's experience, technical
competence and specialized knowledge may be utilized in the evaluation of the
evidence.
(h) A tape recording shall be made of all formal
hearings, copies of which shall be available upon written request to the
department.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.16 Burden of Proof.
(a) The party asserting the affirmative of a
proposition shall have the burden of proving the truth of that proposition by a
preponderance of the evidence. The party
asserting the affirmative of a proposition shall present its case first.
(b) Without limiting the generality of Agr
204.15(a), all moving parties and all petitioners shall have the burden of
persuading the hearings officer that their motion or petition should be
granted.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.17 Ex Parte Communications. Once a notice of hearing has been issued in an
adjudicatory proceeding, no party shall communicate with any member of the
department, the commissioner or the hearings officer concerning the merits of
the case except upon notice to all parties and an opportunity for such party or
parties to participate, in accordance with the rules of this chapter. Nor shall any party cause another person to
make such communications or otherwise engage in conduct prohibited by RSA
541-A:36.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.18 Motions and Objections.
(a) Unless presented during a hearing, all
motions and objections thereto shall be in writing.
(b) All motions shall state clearly and
concisely:
(1) The purpose of the motion;
(2) The relief sought by the motion;
(3) The statutes, rules, orders or other
authority authorizing relief sought by the motion; and
(4) The facts claimed to constitute grounds for
the relief requested by the motion.
(c) Objections to motions shall state clearly and
concisely:
(1) The defense of the party filing the
objection;
(2) The action which the party filing the
objection wishes the department to take on the motion;
(3) The statutes, rules, orders or other
authority relied upon in defense of the objection; and
(4) Any facts which are additional to or
different from the facts stated in the motion.
(d) An objection to a motion shall specifically
admit or deny each fact contained in the motion.
(e) Failure to deny a fact contained in a motion
shall constitute the admission of that fact for the purposes of the motion.
(f) In the event a party
filing an objection to a motion lacks sufficient information to either admit or
deny a fact contained in the motion, the party shall so state, specifically
identifying such fact.
(g) Motions shall be decided upon the writings
submitted.
(h) Objections to motions shall be submitted to
the hearings officer within 10 days after the receipt of the motion. Failure to object to a motion within the time
allowed shall constitute a waiver of objection to the motion.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.19 Close of Record. At the end of the hearing, the hearings
officer shall state the time period after which he shall refuse to receive
additional evidence.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.20 Continuances. A party desiring to postpone the hearing to a
later date shall request a continuance by filing a motion with the hearings
officer at least 7 days prior to the date of the hearing.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.21 Final Decision.
(a) A final decision shall be issued by the division
head after an informal proceeding or by the hearings officer after a hearing.
(b) The final decision shall be in writing and
shall include reasons for the decision.
(c) A copy of the final decision shall be sent to
the parties by registered mail within 30 days of the proceeding or hearing.
(d) A final decision shall be subject to appeal
pursuant to Agr 204.23.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.22 Reopening of Cases.
(a) If a default judgment is entered against a
party for his failure to appear, that party may file a motion, within 20 days
after the date of the hearing, to reopen the matter.
(b) The motion to reopen shall include the
following:
(1) An explanation of why the party failed to
appear; and
(2) An explanation of why the party failed to
notify the commissioner or hearings officer of his nonappearance in advance of
the hearing.
(c)
Explanations required by Agr
204.22(b)(2) shall be supported by affidavits or documentary evidence, in
accordance with Agr 204.15.
(d) If the evidence shows that good cause exists
to explain the party's failure to appear, the matter shall be reopened by the
commissioner or hearings officer and testimony and evidence offered by the
party shall be received.
(e) Good cause shall include but not be limited
to accident, illness or death of a family member.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.23 Appeal. A final decision shall be issued before a
matter can be brought on appeal. All
final decisions issued by the department shall be binding, subject only to
appeal to the supreme court, in
accordance with RSA 541:6. However, if a
division within the department has statutorily prescribed procedures regarding
appeal and the issue falls within the jurisdiction of that division, the
division's procedures shall prevail.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
204.24 Ethical Standards.
(a) Hearings officers, in the discharge of their
official duties, and all persons participating in the hearings process of the
department, shall observe and be governed by the ethical standards of conduct
specified in this section.
(b) Hearings officers shall avoid the appearance
of impropriety in all activities and shall conduct themselves in a manner which
promotes public confidence in the integrity and impartiality of the hearings
officer in particular and of the hearings process in general.
(c) Hearings officers shall:
(1) Perform their duties impartially and
diligently;
(2) Know the law and the rules governing the
department;
(3) Maintain order and decorum in proceedings
before the department;
(4) Be patient and courteous to those persons who
participate in the hearings process; and
(5) Dispose promptly of matters heard by the
hearings officer.
(d) Hearings officers shall disqualify themselves
when their impartiality might be reasonably questioned.
(e) Hearings officers shall not participate in a
contested case when:
(1) The hearings officer has a personal bias or
prejudice concerning a party or a party's representative;
(2) The hearings officer has personal knowledge
of disputed evidentiary facts concerning the proceeding; or
(3) A relative of the hearings officer is a party
to the proceeding or is known by the hearings officer to have a substantial
interest in the outcome of the proceeding.
(f) Hearings officers shall avoid ex parte
communications in accordance with Agr 204.17.
(g) Hearings officers shall not directly or
indirectly solicit or accept any gift or gratuity from any person or party
involved in any contested matter pending before the hearings officer. Unsolicited gifts or gratuities shall be
returned to the donor, and their receipt shall be reported to the commissioner
in writing.
(h) Gifts or gratuities shall:
(1) Include but not be limited to meals,
alcoholic beverages, hotel accommodations, travel expenses or flowers; and
(2) Not include plaques or other mementos of
token value received for speaking engagements or meals received at functions in
which the department has a specific part in the program.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
PART
Agr 205 RULEMAKING
Agr
205.01 How Adopted. A department rule, or any amendment or repeal
thereof, shall be adopted by order after notice and opportunity for a legislative-type
hearing as provided by RSA 541-A:3 et seq. Rules shall be proposed by petition or by the
department acting on its own motion.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
205.02 Petition for Rulemaking.
(a) Any person may request the department to
commence a proceeding for the purpose of adopting, amending or repealing a
rule.
(b) This request shall be made by filing a
petition with the department which contains:
(1) The name and address of the individual filing
the petition or if the petition is being filed by an organization or other
entity, the identity of the organization or entity and the name and address of
the representative authorized by the organization or entity to file the
petition;
(2) Reference to the statutory provision that
authorizes or supports the rulemaking petition;
(3) A statement of the purpose of the petition,
whether adoption, amendment or repeal of a rule and the results intended by the
petitioner to flow from the implementation of the proposed adoption, amendment
or repeal of a rule;
(4) If amendment or adoption of a rule is sought,
a copy of the text proposed;
(5) An identification of the particular rule
sought to be amended or repealed, if the petitioner proposes to amend or repeal
an existing rule; and
(6) Any data or argument the petitioner believes
would be useful to the department in deciding whether to commence a rulemaking
proceeding.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
205.03 Disposition of Petition.
(a) The department shall request additional
information or argument from the petitioner for rulemaking or from others if
such additional information or argument is required to reach a decision.
(b) Within 30 days of the submission of a
petition, the department shall either deny the petition by written order,
stating its reasons for the denial, or shall initiate rulemaking proceedings in
response to the petition and in accordance with Agr 205.04.
(c) Any denial shall be based upon a finding by
the department that:
(1) The petition for rule or amendment or repeal
of an existing rule would not be consistent with established standards of the
department relating to agriculture, markets and food;
(2) The petition lacks rulemaking authority; or
(3) The petition is contrary to legislative intent.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
205.04 Commencement of Rulemaking
Proceeding. The department shall commence
a rulemaking proceeding by following the procedures set forth in RSA 541-A:3 et
seq.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
205.05 Public Comment Hearings. The purpose this section is to provide
uniform procedures for the conduct of public comment hearing held pursuant to
RSA 541-a:11.
(a) Public comment hearings shall be attended by
the commissioner or his designee.
(b) Public comment hearings shall be open to the
public, and members of the public shall be entitled to testify, subject to the
limitations of Agr 205.06.
(c) People who wish to testify shall be asked to
write on the speaker’s list:
(1) Their full names and addresses; and
(2) The names and addresses of organizations,
entities or other persons whom they represent, if any.
(d) Written comments, which may be submitted in
lieu of or in addition to oral testimony, shall be accepted for 10 days after
the adjournment of a hearing or after the adjournment of a postponed or
continued hearing.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
205.06 Limitations on Public
Participation. The commissioner or
his designee presiding over a hearing shall:
(a) Refuse to recognize for speaking or revoke
the recognition of any person who:
(1) Speaks or acts in an abusive or disruptive
manner;
(2) Fails to keep comments relevant to the
proposed rules that are the subject matter of the hearing; or
(3) Restates more than once what he or she has
already stated.
(b) Limit presentations on behalf of the same organization
or entity to no more that 3, provided that all representatives of said
organization or entity enter their names and addresses into the record as
supporting the position of the organization or entity.
Source. #8309-A,
eff 3-24-05
Agr 205.07 Media Access.
(a) Public comment hearings shall be open to
print and electronic media, subject to the following limitations when such
limitations are necessary to allow a hearing to go forward:
(1) Limitation of the number of media
representative when their number together with the number of members of the
public present exceeds the capacity of the hearing room;
(2) Limitation on the placement of cameras to
specific locations within the hearing room; or
(3) Prohibition of interviews conducted within
the hearing room before or during the hearing.
Source. #8309-A,
eff 3-24-05
Agr
205.08 Conduct of Public Comment
Hearings.
(a) Public comment hearings shall be presided
over by the commissioner or his designee with knowledge in the subject area of
the proposed rules.
(b) The commissioner or his designee presiding
over a hearing shall:
(1)
Call the hearing to order;
(2) Identify the proposed rules that are the
subject matter of the hearing and provide copies of them upon request;
(3) Cause a recording of the hearing to be made;
(4) Recognize those who wish to be heard;
(5) If necessary, establish limits pursuant to
Agr 205.06 and Agr 205.07;
(6) If necessary to permit the hearing to go
forward in an orderly manner effect the removal of a person who speaks or acts
in a manner that is personally abusive or otherwise disrupts the hearing;
(7) If necessary, postpone or move the hearing;
and
(8) Adjourn or continue the hearing.
(c) A hearing shall be postponed in accordance
with RSA 541-A:11, IV when:
(1) The weather is so inclement that it is
reasonable to conclude that people wishing to attend the hearing will be unable
to do so;
(2) The commissioner of his designee who is
presiding over the hearing is ill or unavoidably absent; or
(3) Postponement will facilitate greater
participation by the public.
(d) A hearing shall be moved to another location
in accordance with RSA 541-A:11, V when the original location is not able to
accommodate the number of people who wish to attend the hearing.
(e) A hearing shall be continued past the
scheduled time or to another date in accordance with RSA 541-A:11, III when:
(1) The time available is not sufficient to give
each person who wishes to speak a reasonable opportunity to do so; or
(2) The capacity of the room in which the hearing
is to be held does not accommodate the number of people who wish to attend and
it is not possible to move the hearing to another location.
Source. #8309-A,
eff 3-24-05
Agr
205.09 Declaratory Judgment. If a rule interferes with an individual's
legal rights or privileges, an action for declaratory judgment in the Merrimack
County Superior Court may be brought, in accordance with RSA 541-A:24.
Source. #8309-B, eff 3-24-05
PART Agr 206
DECLARATORY RULINGS
Agr
206.01 Purpose. The purpose of a declaratory ruling is to
respond to an inquiry by the public, advising them on the appropriate action in
their situation, in accordance with any statutory provision, rule or order of
the department.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
206.02 Petition for Declaratory Ruling.
(a) Any person may request a declaratory ruling
from the department on how a statute, rule or order applies to a specific
situation.
(b) This request shall be made by filing a
petition with the department which contains:
(1) The exact ruling being requested;
(2) The statutory and factual basis for the
ruling, including any supporting affidavits or memoranda of law;
(3) A statement as to how and why the issuance of
a ruling on this subject would benefit the petitioner and the public at large; and
(4) The name and address of the petitioner.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
Agr
206.03 Action on Petition.
(a) The department shall issue a declaratory
ruling, in writing, within 30 days of receipt of a petition.
(b) A copy of each declaratory ruling shall be:
(1) Filed with the director of legislative
services;
(2) Sent to the petitioner by first class mail;
and
(3) Filed with the department.
Source. #6299, eff 7-25-96, EXPIRED: 7-25-04
New. #8309-A,
eff 3-24-05
PART Agr 207
RETENTION SCHEDULE FOR WRITTEN DECISIONS
Agr
207.01 Document Retention. All written decisions or orders pursuant to
RSA 541-A:35, shall be retained by the department for a period of 2 years or as
set by the director of the division of archives and records management, which
ever is greater.
Source. #8309-A,
eff 3-24-05
PART
Agr 208 EXPLANATION OF RULE
Agr 208.01 Explanation of Rule.
(a) If requested by an interested person at any
time before 30 days after final adoption of a rule, the adopting authority
shall issue an explanation of the rule, which includes:
(1) A concise statement of the principal reasons
for and against the adoption of the rule in its final from; and
(2) An explanation of why the adopting authority overruled
the arguments and considerations against the rule.
Source. #8309-B, eff 3-24-05
Appendix
Rule |
|
|
|
Agr
201 - 204 |
RSA
541-A:16, I(b)(2) |
Agr
205.01 |
RSA
541-A:3 |
Agr
205.02 - 205.04 |
RSA
541-A:16, I(c); 541-A:4 |
Agr
205.05 |
RSA
541-A:24 |
Agr
206 |
RSA
541-A:16, I(d) |
Agr
207 |
??? |
Agr
208 |
??? |