CHAPTER Tre 200  PROCEDURAL RULES

 

Statutory Authority:  RSA 6:3-a and RSA 541-A:16, I(b)

 

PART Tre 201  PURPOSE AND SCOPE

 

          Tre 201.01  Purpose.  This chapter provides procedural rules for the conduct of hearings before the treasury and establishes procedures for acquiring sufficient information to make fair and reasoned decisions.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 201.02  Scope.  This chapter provides rules for the conduct of adjudicative hearings in contested cases, non-adjudicative hearings in instances where a hearing is required to administer laws or programs within the treasury’s jurisdiction such as public hearings for rulemaking, issuance of declaratory rulings, and action on rulemaking petitions.  These rules shall apply to all persons.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 202  DEFINITIONS

 

          Tre 202.01  Definitions.

 

          (a)  “Agency” means “agency” as defined by RSA 541-A:1, II, namely, “each state board, commission, department, institution, officer, or any other state official or group, other than the legislature or the courts, authorized by law to make rules or determine contested cases.”

 

          (b)  "Appearance" means a written notification to the treasury that a party or a party's representative intends to actively participate in a hearing.

 

          (c)  "Hearing" means "adjudicative proceeding" as defined by RSA 541-A:1, I, namely, "the procedure to be followed in contested cases, as set forth in RSA 541-A:31 through RSA 541-A:36."

 

          (d)  "Motion" means a request to the presiding officer for an order or ruling directing some act to be done in favor of the party making the motion, including a statement of justification or reasons for the request.

 

          (e)  "Natural person" means a human being.

 

          (f)  "Party" means "party" as defined by RSA 541-A:1, XII, namely, "each person or agency named or admitted as a party, or properly seeking and entitled as a right to be admitted as a party."  The term “party” includes all intervenors in a proceeding, subject to any limitations established pursuant to RSA 541-A:32,III.

 

          (g)  "Person" means "person" as defined by RSA 541-A:1, XIII, namely, "any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency."

 

          (h)  "Presiding officer" means presiding officer as defined in RSA 541-A:1, XIV, namely, "that individual to whom the treasury has delegated the authority to preside over a proceeding, if any; otherwise it shall mean the head of the treasury."

 

          (i)  "Proof by a preponderance of the evidence" means a demonstration by admissible evidence that a fact or legal conclusion is more probable than not to be true.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 203  PRESIDING OFFICER; WITHDRAWAL AND WAIVER OF RULES

 

          Tre 203.01  Presiding Officer; Appointment; Authority.

 

          (a)  All hearings shall be conducted for the treasury by a natural person appointed or authorized to serve as a presiding officer.

 

          (b)  A presiding officer shall as necessary:

 

(1)  Regulate and control the course of a hearing;

 

(2)  Facilitate an informal resolution of an appeal;

 

(3)  Administer oaths and affirmations;

 

(4) Receive relevant evidence at hearings and exclude irrelevant, immaterial or unduly repetitious evidence;

 

(5)  Rule on procedural requests, including adjournments or postponements, at the request of a party or on the presiding officer's own motion;

 

(6)  Question any person who testifies;

 

(7)  Cause a complete record of any hearing to be made, as specified in RSA 541-A:31, VI; and

 

(8)  Take any other action consistent with applicable statutes, rules and case law necessary to conduct the hearing and complete the record in a fair and timely manner.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 203.02  Withdrawal of Presiding Officer or Treasury Official.

 

          (a)  Upon his or her own initiative or upon the motion of any party, a presiding officer or treasury official shall, for good cause withdraw from any hearing.

 

          (b)  Good cause shall exist if a presiding officer or treasury official:

 

(1)  Has a direct interest in the outcome of a proceeding, including, but not limited to, a financial or family relationship with any party;

 

(2)  Has made statements or engaged in behavior which objectively demonstrates that he or she has prejudged the facts of a case; or

 

(3)  Personally believes that he or she cannot fairly judge the facts of a case.

 

          (c)  Mere knowledge of the issues, the parties or any witness shall not constitute good cause for withdrawal.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 203.03  Waiver or Suspension of Rules by Presiding Officer.  The presiding officer, upon his or her own initiative or upon the motion of any party, shall suspend or waive any requirement or limitation imposed by this chapter upon reasonable notice to affected persons when the proposed waiver or suspension appears to be lawful, and would be more likely to promote the fair, accurate and efficient resolution of issues pending before the treasury than would adherence to a particular rule or procedure.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 204  FILING, FORMAT AND DELIVERY OF DOCUMENTS

 

          Tre 204.01  Date of Issuance or Filing.  All written documents governed by these rules shall be rebuttably presumed to have been issued on the date noted on the document and to have been filed with the treasury on the actual date of receipt by the treasury, as evidenced by a date stamp placed on the document by the treasury in the normal course of business.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 204.02  Format of Documents.

 

          (a)  All correspondence, pleadings, motions or other documents filed under these rules shall:

 

(1)  Include the title and docket number of the proceeding, if known;

 

(2)  Be typewritten or clearly printed on durable paper 8 1/2 by 11 inches in size;

 

(3)  Be signed by the party or proponent of the document, or, if the party appears by a representative, by the representative; and

 

(4)  Include a statement certifying that a copy of the document has been delivered to all parties to the proceeding in compliance with Tre 204.03.

 

          (b)  A party or representative's signature on a document filed with the treasury shall constitute certification that:

 

(1)  The signer has read the document;

 

(2)  The signer is authorized to file it;

 

(3)  To the best of the signer's knowledge, information and belief there are good and sufficient grounds to support it; and

 

(4)  The document has not been filed for purposes of delay.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 204.03  Delivery of Documents.

 

          (a)  Copies of all petitions, motions, exhibits, memoranda, or other documents filed by any party to a proceeding governed by these rules shall be delivered by that party to all other parties to the proceeding.

 

          (b)  All notices, orders, decisions or other documents issued by the presiding officer or treasury shall be delivered to all parties to the proceeding.

 

          (c)  Delivery of all documents relating to a proceeding shall be made by personal delivery or by depositing a copy of the document, by first class mail, postage prepaid, in the United States mail, addressed to the last address given to the treasury by the party.

 

          (d)  When a party appears by a representative, delivery of a document to the party's representative at the address stated on the appearance filed by the representative shall constitute delivery to the party.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 205  TIME PERIODS

 

          Tre 205.01  Computation of Time.

 

          (a)  Unless otherwise specified, all time periods referenced in this chapter shall be calendar days.

 

          (b)  Computation of any period of time referred to in these rules shall begin with the day after the action which sets the time period in motion, and shall include the last day of the period so computed.

 

          (c)  If the last day of the period so computed falls on a Saturday, Sunday or legal holiday, then the time period shall be extended to include the first business day following the Saturday, Sunday or legal holiday.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 206  MOTIONS

 

          Tre 206.01  Motions; Objections.

 

          (a)  Motions shall be in written form and filed with the presiding officer, unless made in response to a matter asserted for the first time at a hearing or on the basis of information which was not received in time to prepare a written motion.

 

          (b)  Oral motions and any oral objection to such motions shall be recorded in full in the record of the hearing. If the presiding officer finds that the motion requires additional information in order to be fully and fairly considered, the presiding officer shall direct the moving party to submit the motion in writing, with supporting information.

 

          (c)  Objections to written motions shall be filed within 30 days of the date of the motion.

 

          (d)  Failure by an opposing party to object to a motion shall not in and of itself constitute grounds for granting the motion.

 

          (e)  The presiding officer shall rule upon a motion after full consideration of all objections and other factors relevant to the motion.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 207  NOTICE OF HEARING; APPEARANCES; PRE-HEARING CONFERENCES

 

          Tre 207.01  Commencement of Hearing.  A hearing shall be commenced by an order of the treasury giving notice to the parties as required by Tre 207.03.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 207.02  Docket Numbers.  A docket number shall be assigned to each matter to be heard which shall appear on the notice of hearing and all subsequent orders or decisions of the treasury.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 207.03  Notice of Hearing.  A notice of a hearing issued by the treasury shall contain the information required by RSA 541-A:31,III, namely:

 

          (a)  A statement of the time, place and nature of any hearing;

 

          (b)  A statement of the legal authority under which a hearing is to be held;

 

          (c)  A reference to the particular statutes and rules involved including this chapter;

 

          (d)  A short and plain statement of the issues presented; and

 

          (e)  A statement that each party has the right to have an attorney represent them at their own expense.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 207.04  Appearances and Representation.  A party or the party’s representative shall file an appearance that includes the following information:

 

          (a)  A brief identification of the matter;

 

          (b)  A statement as to whether or not the representative is an attorney and if so, whether the attorney is licensed to practice in New Hampshire; and

 

          (c)  The party or representative's daytime address and telephone number.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 207.05  Prehearing Conference.  Any party may request, or the presiding officer shall schedule on his or her own initiative, a prehearing conference in accordance with RSA 541-A:31, V to consider:

 

          (a)  Offers of settlement;

 

          (b)  Simplification of the issues;

 

          (c)  Stipulations or admissions as to issues of fact or proof by consent of the parties;

 

          (d)  Limitations on the number of witnesses;

 

          (e)  Changes to standard procedures desired during the hearing by consent of the parties;

 

          (f)  Consolidation of examination of witnesses; or

 

          (g)  Any other matters which aid in the disposition of the proceeding.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 208  ROLES OF DEPARTMENT STAFF AND COMPLAINANTS

 

          Tre 208.01  Role of Treasury Staff in Enforcement or Disciplinary Hearings.  Unless called as witnesses or acting as presiding officer, treasury staff shall have no role in any enforcement or disciplinary hearing.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 208.02  Role of Complainants in Enforcement or Disciplinary Hearings.  Unless called as a witness or granted party or intervener status, a person who initiates an adjudicative proceeding by complaining to the treasury about the conduct of person who becomes a party shall have no role in any enforcement or disciplinary hearing.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 209  INTERVENTION

 

          Tre 209.01  Intervention.

 

          (a)  A non-party may intervene in a matter pending before the treasury under the provisions of RSA 541-A:32, by filing a motion stating facts demonstrating that the non-party's rights or other substantial interests might be affected by the proceeding or that the non-party qualifies as an intervener under any provision of law.

 

          (b)  If the presiding officer determines that such intervention would be in the interests of justice and would not impair the orderly and prompt conduct of the hearing, he or she shall grant the motion for intervention.

 

          (c)  Except as limited by the presiding officer under RSA 541-A:32, III an intervenor shall be entitled to participate in a hearing as a party.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 210  POSTPONEMENT REQUEST AND FAILURE TO ATTEND HEARING

 

          Tre 210.01  Request for Postponement.

 

          (a)  Any party to a hearing may make a written request that a hearing be postponed to a later date or time.

 

          (b)  If a postponement is requested by a party to the hearing, it shall be granted if the presiding officer determines that good cause has been demonstrated. Good cause shall include the unavailability of parties, witnesses or attorneys necessary to conduct the hearing, the likelihood that a hearing will not be necessary because the parties have reached a settlement or any other circumstances that demonstrate that a postponement would assist in resolving the case fairly.

 

          (c)  If the later date, time and place are known at the time of the hearing that is being postponed, the date, time and place shall be stated on the record.  If the later date, time and place are not known at the time of the hearing that is being postponed, the presiding officer shall issue a written scheduling order stating the date, time and place of the postponed hearing as soon as practicable.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 210.02  Failure to Attend Hearing.  If any party to whom notice has been given in accordance with Tre 207.03 fails to attend a hearing, the presiding officer shall declare that party to be in default and either:

 

          (a)  Dismiss the case, if the party with the burden of proof fails to appear; or

 

          (b)  Hear the testimony and receive the evidence offered by a party, if that party has the burden of proof in the case.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 211  REQUESTS FOR INFORMATION OR DOCUMENTS

 

          Tre 211.01  Voluntary Production of Information.

 

          (a)  Each party shall attempt in good faith to make complete and timely response to requests for the voluntary production of information or documents relevant to the hearing.

 

          (b)  When a dispute between parties arises concerning a request for the voluntary production of information or documents, any party may file a motion to compel the production of the requested information under Tre 211.02.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 211.02  Motions to Compel Production of Information.

 

          (a)  Any party may make a motion requesting that the presiding officer order the parties to comply with information requests. The motion shall be filed at least 30 days before the date scheduled for the hearing, or as soon as possible after receiving the notice of hearing if such notice is issued less than 30 days in advance of the hearing.

 

          (b)  The moving party's motion shall:

 

(1) Set forth in detail those factors which it believes justify its request for information; and

 

(2) List with specificity the information it is seeking to discover.

 

          (c)  When a party has demonstrated that such requests for information are necessary for a full and fair presentation of the evidence at the hearing, the presiding officer shall grant the motion.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 211.03  Mandatory Pre-Hearing Disclosure of Witnesses and Exhibits.  At least 5 days before the hearing the parties shall exchange a list of all witnesses to be called at the hearing with a brief summary of their testimony, a list of all documents or exhibits to be offered as evidence at the hearing, and a copy of each document or exhibit.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 212  RECORD, PROOF, EVIDENCE AND DECISIONS

 

          Tre 212.01  Record of the Hearing.

 

          (a)  The treasury shall record the hearing by tape recording or other method that will provide a verbatim record.

 

          (b)  If any person requests a transcript of the taped record, the treasury shall cause a transcript to be prepared and, upon receipt of payment for the cost of the transcription, shall provide copies of the transcript to the requesting party.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 212.02  Standard and Burden of Proof.  The party asserting a proposition shall bear the burden of proving the truth of the proposition by a preponderance of the evidence.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 212.03  Testimony; Order of Proceeding.

 

          (a)  Any person offering testimony, evidence or arguments shall state for the record his or her name, and role in the proceeding. If the person is representing another person, the person being represented shall also be identified.

 

          (b)  Testimony shall be offered in the following order:

(1)  The party or parties bearing the burden of proof and such witnesses as the party may call; and

 

(2)  The party or parties opposing the party who bears the overall burden of proof and such witnesses as the party may call.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 212.04  Evidence.

 

          (a)  Receipt of evidence shall be governed by the provisions of RSA 541-A:33.

 

          (b)  All documents, materials and objects offered as exhibits shall be admitted into evidence unless excluded by the presiding officer as irrelevant, immaterial, unduly repetitious or legally privileged.

 

          (c)  All objections to the admissibility of evidence shall be stated as early as possible in the hearing, but not later than the time when the evidence is offered.

 

          (d)  Transcripts of testimony and documents or other materials, admitted into evidence shall be public records unless the presiding officer determines that all or part of a transcript or document is exempt from disclosure under RSA 91-A:5 or applicable case law.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 212.05  Proposed Findings of Fact and Conclusions of Law.

 

          (a)  Any party may submit proposed findings of fact and conclusions of law to the presiding officer prior to or at the hearing.

 

          (b)  Upon request of any party, or if the presiding officer determines that proposed findings of fact and conclusions of law would serve to clarify the issues presented at the hearing, the presiding officer shall specify a date after the hearing for the submission of proposed findings of fact and conclusions of law.

 

          (c)  In any case where proposed findings of fact and conclusions of law are submitted, the decision shall include rulings on the proposals.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 212.06  Closing the Record.

 

          (a)  After the conclusion of the hearing, the record shall be closed and no other evidence shall be received into the record, except as allowed by paragraph (b) of this section and Tre 212.07.

 

          (b)  Before the conclusion of the hearing, a party may request that the record be left open to allow the filing of specified evidence not available at the hearing. If the other parties to the hearing have no objection or if the presiding officer determines that such evidence is necessary to a full consideration of the issues raised at the hearing, the presiding officer shall keep the record open for the period of time necessary for the party to file the evidence.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 212.07  Reopening the Record.  At any time prior to the issuance of the decision on the merits, the presiding officer, on the presiding officer's own initiative or on the motion of any party, shall reopen the record to receive relevant, material and non-duplicative testimony, evidence or arguments not previously received, if the presiding officer determines that such testimony, evidence or arguments are necessary to a full and fair consideration of the issues to be decided.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 212.08  Decisions.

 

          (a)  A treasury official shall not participate in making a decision unless he or she personally heard the testimony in the case, unless the matter's disposition does not depend on the credibility of any witness and the record provides a reasonable basis for evaluating the testimony.

 

          (b)  If a presiding officer has been delegated the authority to conduct a hearing in the absence of a majority of the officials of the treasury who are to render a final decision, the presiding officer shall submit to the treasury a written proposal for decision, which shall contain a statement of the reasons for the decision and findings of fact and rulings of law necessary to the proposed decision.

 

          (c)  If a proposal for decision in a matter not personally heard by a treasury official is adverse to a party to the proceeding other than the treasury itself, the treasury shall serve a copy of the proposal for decision on each party to the proceeding and provide an opportunity to file exceptions and present briefs and oral arguments to the treasury.

 

          (d)  A proposal for decision shall become a final decision upon its approval by the treasury.

 

          (e)  The treasury shall keep a decision on file in its records for at least 5 years following the date of the final decision or the date of the decision on any appeal, unless the director of the division of records management and archives of the department of state sets a different retention period pursuant to rules adopted under RSA 5:40.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 213  MOTION FOR REHEARING

 

          Tre 213.01  Purpose.  The rules in this part are intended to supplement any statutory provisions, including RSA 541, that require or allow a person to request a rehearing of a decision of the treasury prior to appealing the decision.

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 213.02  Applicability.  The rules in this part shall apply whenever any person has a right under applicable law to request a rehearing of a decision prior to filing an appeal of the decision with the court having appellate jurisdiction.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 213.03  Filing and Content of Motion.

 

          (a)  A motion for rehearing shall be filed within 30 days of the date of the treasury’s decision or order.

 

          (b)  A motion for rehearing shall:

 

(1)  Identify each error of fact, error of reasoning, or error of law which the moving party wishes to have reconsidered;

 

(2)  Describe how each error causes the treasury’s decision to be illegal in respect to jurisdiction, authority or observance of law, an abuse of discretion or arbitrary, unreasonable or capricious;

 

(3)  State concisely the factual findings, reasoning or legal conclusion proposed by the moving party; and

 

(4)  Include any argument or memorandum of law the moving party wishes to file.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09 (from Tre 213.02)

 

          Tre 213.04  Standard for Granting Motion for Rehearing.

 

          (a)  A motion for rehearing in a case subject to appeal under RSA 541 shall be granted if it demonstrates that the treasury’s decision is unlawful, unjust or unreasonable.

 

          (b)  A motion for rehearing in a case subject to appeal by petition for writ of certiorari shall be granted if it demonstrates that the treasury’s decision is illegal in respect to jurisdiction, authority or observance of law, an abuse of discretion or arbitrary, unreasonable or capricious.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09 (from Tre 213.03)

 

          Tre 213.05  Decision on Motion for Rehearing.  The treasury shall grant or deny a motion for rehearing, or suspend the order or decision pending further consideration within 10 days of the filing of the motion for rehearing.

 

Source.   #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09  (from Tre 213.04)

 

PART Tre 214  RULEMAKING

 

          Tre 214.01  Petitions for Adoption, Amendment, or Repeal of a Rule.

 

          (a)  Any interested person may petition the treasury requesting the adoption, amendment or repeal of a rule.

 

          (b)  Such petitions shall conform to the requirements set forth in Tre 214.02.

 

          (c)  Such petitions shall be received and handled in the following manner:

 

(1)  Petitions shall be submitted to the treasurer;

 

(2)  If the treasurer determines that the petition is deficient, the treasurer shall, within 10 working days of receipt of the petition notify the petitioner to amend the petition;

 

(3)  Within 30 days of the receipt of an acceptable petition, the treasurer shall take one of the following actions:

 

a.  Initiate the requested procedure in accordance with RSA 541-A:3, if the requested action:

 

1.  Is within the treasury’s authority;

 

2.  Is consistent with statutory and case law affecting the treasury;

 

3.  Would best implement the laws affecting the treasury or be desirable in order to fulfill the functions of the treasury in accordance with the law; or

 

b.  Deny the petition, in writing, stating fully the reasons for denial.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09 

 

          Tre 214.02  Petition Information.  Each petition for adoption, amendment, or repeal of a rule shall:

 

          (a)  Be in legible written form and addressed to the:

 

State Treasurer

State House Annex, Room 121

25 Capitol Street

Concord NH 03301;

 

          (b)  Include the petitioner's name and address and, if applicable, the name and address of the organization with which the petitioner is associated;

 

          (c)  State in detail why the treasury should make such a ruling;

 

          (d)  Cite the rule to be amended or repealed and specify any amendments to be made or, in the case where the adoption of a new rule is proposed, the petition shall provide the text of the proposed rule; and

 

          (e)  Be signed and dated.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 215  DECLARATORY RULINGS

 

          Tre 215.01  Petitions.

 

          (a)  Any interested person may petition the treasury requesting a declaratory ruling on the applicability of any statute or rule administered or enforced by the treasury.

 

          (b)  Such petitions shall conform to the requirements set forth in Tre 215.02.

 

          (c)  Such petitions shall be received and handled in the following manner:

 

(1)  Petitions shall be submitted to the treasurer;

 

(2)  If the treasurer determines that a petition is deficient in any respect, the treasurer shall, within 10 working days of receipt of the deficient petition, notify the petitioner in writing of the specific deficiencies and allow the petition to amend the petition; and

 

(3)  When an acceptable petition for declaratory ruling has be received by the treasurer, the treasurer shall take one of the following actions:

 

a.  Issue a declaratory ruling responsive to the petition within 60 days; or 

 

b.  If deemed necessary, request the opinion of the department of justice within 20 working days, and issue a responsive declaratory ruling within 20 working days of receipt of the department of justice's reply.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

          Tre 215.02  Petition Information.  Each petition for declaratory ruling shall:

 

          (a)  Be in legible written form and addressed to the:

 

State Treasurer

State House Annex, Room 121

25 Capitol Street

Concord,NH 03301;

 

          (b)  Include the petitioner's name and address and, if applicable, the name and address of the organization with which the petitioner is associated;

 

          (c)  State in detail why the treasury should make such a declaratory ruling;

 

          (d)  Cite the rule and provide all information in the petitioner’s possession or available to the petitioner, which is material to the declaratory ruling; and 

 

          (e)  Be signed and dated.

 

Source.  #7589-A, eff 11-7-01; ss by #9575-A, eff 10-22-09

 

PART Tre 216  CONDUCT OF RULEMAKING HEARINGS

 

          Tre 216.01  Applicability.  This part shall apply to hearings conducted by treasury when treasury proposes to adopt, amend or repeal a rule.

 

Source.  #9575-A, eff 10-22-09 (formerly 215.01)

 

          Tre 216.02  Notice.  Notice of the date, time and place for hearings shall be by publication in the rulemaking register as required by RSA 541-A.

 

Source.  #9575-A, eff 10-22-09 (formerly 215.03)

 

          Tre 216.03  Record.

 

          (a)  A record of the hearing shall be made by tape recording or some other method that will provide a verbatim record.

 

          (b)  Copies of the recording shall be provided to the public upon request and payment of the costs of the tape and staff time to make the copy.

 

          (c)  If any person requests a transcript of the tape, a transcript shall be prepared at the expense of the person requesting transcription.

 

          (d)  If the transcript is made at the request of someone other than treasury, the person requesting the transcript shall make it available to treasury for copying. If treasury prepares a transcript on its own initiative, treasury shall provided copies at the statutory rate to any person requesting it.

 

Source.  #9575-A, eff 10-22-09 (formerly 215.04)

 

          Tre 216.04  Presiding Officer.  The presiding officer shall be the treasurer or the treasurer’s designee.

 

Source.  #9575-A, eff 10-22-09 (formerly 215.05)

 

          Tre 216.05  Opening the Hearing.  The presiding officer shall open the hearing by describing the purpose of the hearing and the procedures for providing testimony.

 

Source.  #9575-A, eff 10-22-09 (formerly 215.06)

 

          Tre 216.06  Testimony.

 

          (a)  Any person who desires to submit written testimony at a rulemaking hearing shall do so to the presiding officer provided such testimony is signed and dated.

 

          (b)  Any person who desires to testify orally at a hearing shall submit his/her name, address, and person or entity that s/he is representing, if any, to the presiding officer.

 

          (c)  At the conclusion of the testimony, the person shall remain available to answer any questions from the presiding officer relative to the person's testimony.

 

          (d)  The presiding officer shall terminate any comments, questions, or discussion from the public that are not relevant to the subject matter of the hearing.

 

Source.  #9575-A, eff 10-22-09 (formerly 215.07)

 

          Tre 216.07  Concluding the Hearing.  When the presiding officer determines that no other persons wish to speak, s/he shall close the hearing.

 

Source.  #9575-A, eff 10-22-09 (formerly 215.08)

 

          Tre 216.08  Postponement.  Postponement relating to rulemaking hearings shall be governed by RSA 541-A;11, III and IV.

Source.  #9575-A, eff 10-22-09

 

PART Tre 217  CONDUCT OF OTHER NON-ADJUDICATIVE HEARINGS

 

          Tre 217.01  Applicability.  This part shall apply to hearings conducted by treasury to receive public comment in those cases that are not contested cases as defined in RSA 541-A:1 nor are rulemaking hearings.

 

Source.  #9575-B, eff 10-22-09

 

          Tre 217.02  Public Hearings.  A non-adjudicative non-rulemaking public hearing shall be held at any time when a hearing is not required by law where the treasurer determines that a public hearing will benefit the public, the treasury, or both.

 

Source.  #9575-B, eff 10-22-09

 

          Tre 217.03  Notice.  Notice of the date, time and place for hearings shall be given by a method consistent with the requirements of RSA 91-A.

 

Source.  #9575-B, eff 10-22-09

 

          Tre 217.04  Record.

 

          (a)  A record of the hearing shall be made by tape recording or some other method that will provide a verbatim record.

 

          (b)  Copies of the recording shall be provided to the public upon request and payment of the costs of the tape and staff time to make the copy.

 

          (c)  If any person requests a transcript of the tape, a transcript shall be prepared at the expense of the person requesting transcription.

 

          (d)  If the transcript is made at the request of someone other than treasury, the person requesting the transcript shall make it available to treasury for copying. If treasury prepares a transcript on its own initiative, treasury shall provided copies at the statutory rate to any person requesting it.

 

Source.  #9575-B, eff 10-22-09

 

          Tre 217.05  Presiding Officer.  The presiding officer for non-adjudicative non-rulemaking public hearings held by the treasury shall be the treasurer or the treasurer's designee.

 

Source.  #9575-B, eff 10-22-09

 

          Tre 217.06  Opening the Hearing.  The presiding officer shall open the hearing by describing the purpose of the hearing and the procedures for providing testimony.

 

Source.  #9575-B, eff 10-22-09

 

          Tre 217.07  Testimony.

 

          (a)  Any person who desires to submit written testimony shall do so to the presiding officer provided such testimony is signed and dated.

 

          (b)  Any person who desires to testify orally shall submit his/her name, address, and person or entity that s/he is representing, if any, to the presiding officer.

 

          (c)  At the conclusion of the testimony, the person shall remain available to answer any questions from the presiding officer relative to the person's testimony.

 

          (d)  The presiding officer shall terminate any comments, questions, or discussion from the public that are not relevant to the subject matter of the hearing.

 

Source.  #9575-B, eff 10-22-09

 

          Tre 217.08  Concluding the Hearing. When the presiding officer determines that no other persons wish to speak, s/he shall close the hearing.

 

Source.  #9575-B, eff 10-22-09

 

          Tre 217.09  Postponement.

 

          (a)  Postponement in non-adjudicative hearings other than rulemaking hearings shall be granted when the presiding officer determines that a postponement is consistent with the public good, after weighing the prejudice caused to any person by failing to grant the postponement versus the benefit to the public of granting the postponement.

 

          (b)  Notice for the date, time and location for the postponement of any hearing granted under (a) above shall be given in the same manner as the notice for the initial hearing was given.

 

Source.  #9575-B, eff 10-22-09

 

PART Tre 218  EXPLANATION OF AN ADOPTED RULE

 

          Tre 218.01  Requests.

 

          (a)  Any person may request, within 30 days from final adoption, an explanation of a rule.

 

          (b)  The explanation shall include:

 

(1)  The reasons offered by the public for and against the adoption of the rule in question; and

 

(2)  Treasury's reasons for overruling any public comments and testimony against the adoption of the rule.

 

Source.  #9575-B, eff 10-22-09

 

PART Tre 219  WAIVER OR SUSPENSION OF RULES

 

          Tre 219.01  Petitions.

 

          (a)  Any interested person may request the treasurer to waive or suspend any rule. A waiver shall be requested by filing a petition that identifies the rule in question and sets forth the specific facts and arguments that support the waiver.

 

          (b)  Petitions shall address whether:

 

(1)  Adherence to the rule would cause the petitioner hardship;

 

(2)  Waiver or suspension of the rule would be consistent with the statutes and regulatory programs administered by the treasury;

 

(3)  Waiver or suspension of the rule would injure third persons;

 

(4)  Waiver or suspension is necessary due to factors outside the control of the petitioner; or

 

(5)  Other good cause consistent with the above reasons exists.

 

Source.  #9575-B, eff 10-22-09

 

          Tre 219.02  Notice.  If examination of the petition reveals that the proposed relief may substantially affect other persons, the treasurer shall require the petitioner to provide notice to those persons. The treasury shall afford affected persons the opportunity for hearing prior to ruling on the request for waiver.

 

Source.  #9575-B, eff 10-22-09

 

          Tre 219.03 Standard.  Within 30 days of the receipt of a complete petition for waiver, or within 30 days from the conclusion of a hearing regarding a waiver request, the treasurer shall either grant or deny the petition in writing.

 

          (a)  A petition for waiver or suspension of a rule that does not allege material facts, which, if true, would be sufficient to support the requested waiver, shall be denied without further notice or hearing.  A written denial shall state fully the reasons for the denial.

 

          (b)  A request for waiver shall be granted for good cause.  For the purposes of this section, good cause shall be deemed to exist if, at a minimum, the petitioner has demonstrated that:

 

(1)  Adherence to the rule would cause the petitioner hardship;

 

(2)  Waiver or suspension of the rule would be consistent with the statutes and regulatory programs administered by treasury;

 

(3)  Waiver or suspension of the rule would not injure third persons; and

 

(4)  Waiver or suspension is necessary due to factors outside the control of the petitioner.

 

Source.  #9575-B, eff 10-22-09

 

APPENDIX

 

RULE

STATUTE IMPLEMENTED

Tre 201

RSA 541-A:30-a, I

Tre 202

RSA 541-A:30-a, I

Tre 203.01

RSA 541-A:30-a, I and RSA 541-A:31-36

Tre 203.02

RSA 541-A:30-a, III(k)

Tre 203.03

RSA 541-A:30-a, III(j) and RSA 541-A:37 and 38

Tre 204

RSA 541-A:30-a, III(a)

Tre 205

RSA 541-A:30-a, III(f)

Tre 206

RSA541-A:30-a, III(a)

Tre 207.01 - 207.02

RSA 541-A:31, I, II

Tre 207.03

RSA 541-A:31, III

Tre 207.04

RSA 541-A:30-a, III(b)

Tre 207.05

RSA 541-A:30-a, III(c) and RSA 541-A:31, V

Tre 208

RSA 541-A:30-a, III(g)

Tre 209

RSA 541-A:30-a, III(g) and RSA 541-A:32

Tre 210

RSA 541-A:30-a, III(a), (b) and (h)

Tre 211

RSA 541-A:30-a, III(c)

Tre 212.01

RSA 541-A:31, VII

Tre 212.02

RSA 541-A:30-a, III(d) and (e)

Tre 212.03-212.04

RSA 541-A:30-a, III(d) and RSA 541-A:33

Tre 212.05

RSA 541-A:35

Tre 212.06

RSA 541-A:31 and A:33

Tre 212.07

RSA 541-A:30-a, III(i)

Tre 212.08

RSA 541-A:35

Tre 213

RSA 541 and RSA 541-A:30-a, III(a)

Tre 214

RSA 541-A:4; RSA 541-A:16, I(c)

Tre 215

RSA 541-A:16, I(d)

Tre 216

RSA 541-A:3, IV; RSA 541-A:11 and RSA 541-A:16, I (b)(3)

Tre 214.01

RSA 541-A:16, I(c)

Tre 214.02

RSA 541-A:16, I(d)

Tre 214.03

RSA 541-A:16, I(c) and (d)

Tre 214.04

RSA 541-A:16, I(b) and RSA 541-A:22, IV

Tre 215.01

RSA 541-A:3

Tre 215.02

RSA 541-A:3

Tre 215.03

RSA 541-A:3

Tre 215.04

RSA 541-A:3

Tre 215.05

RSA 541-A:3

Tre 215.06

RSA 541-A:3

Tre 215.07

RSA 541-A:3

Tre 215.08

RSA 541-A:3

Tre 215.09

RSA 541-A:3

Tre 215.10

RSA 541-A:11,VII

Tre 217

RSA 541-A:11

Tre 218

RSA 541-A:11, VII

Tre 219

RSA 541-A:22, IV