CHAPTER Res 200 RULES OF PRACTICE AND PROCEDURE
PART Res 201 DEFINITIONS
Res 201.01 Definitions.
(a) “Appearance”
means a written notification to the department that a party or a party’s
representative intends to actively participate in a hearing.
(b) “Commissioner” means the commissioner of the department
of resources and economic development.
(c) “Contested case”
means “contested case” as defined in RSA 541-A:1, IV, namely “a proceeding in
which the legal rights, duties, or privileges of a party are required by law to
be determined by an agency after notice and an opportunity for hearing.”
(d) “Declaratory
ruling” means “declaratory ruling” as defined in RSA 541-A:1, V, namely “an
agency ruling as to the specific applicability of any statutory provision or of
any rule or order of the agency.”
(e) “Department”
means the
(f) “Evidence” means
all information, other than argument, including, but not limited to, comments,
reports, maps, surveys, charts, sound recordings, pictorial reproductions,
drawings, analyses, graphic representations, computer programs and printouts,
testimony, notes, memoranda and documents, whether finished or unfinished.
(g) “Hearing” means
“adjudicative proceeding” as defined in 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.”
(h) “Motion” means a
request to the presiding officer by a party for an order relating to the
hearing.
(i) “Order” means
“order” as defined in RSA 541-A:1, XI, namely “the whole or part of an agency’s
final disposition of a matter, other than a rule, but does not include an
agency’s decision to initiate, postpone, investigate or process any matter, or
to issue a complaint or citation.”
(j) “Party” means
“party” as defined in 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.”
(k) “Person” means
“person” as defined in 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.”
(l) “Presiding
officer” means “presiding officer” as defined in RSA 541-A:1, XIV, namely “that
individual to whom the agency has delegated the authority to preside over a
proceeding, if any; otherwise it shall mean the head of the agency.”
(m) “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. #2221, eff 12-23-82; ss by #2979, eff
2-21-85; EXPIRED: 2-21-91
New. #5798, eff 3-18-94, EXPIRED: 3-18-00
New. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 202 PETITIONS TO THE DEPARTMENT
Res 202.01 Petitions
for Adoption, Amendment, or Repeal of a Rule.
(a) Any interested
person may petition the department, through the commissioner, requesting the
adoption, amendment or repeal of a rule.
(b) Rulemaking
petitions shall conform to the requirements set out in Res 202.03.
(c) Rulemaking
petitions shall be received and disposed of as follows:
(1) Petitions shall be submitted to the office of
the commissioner;
(2) If the
commissioner decides that any petition is deficient in any respect, the
commissioner shall, within 10 working days of receipt of the deficient
petition, notify the petitioner in writing of the specific deficiencies and
allow the petitioner to amend the petition;
(3) Within 30 days of receipt of a petition that
complies with Res 202.03, the commissioner shall take one of the following
actions:
a. Initiate
the requested procedure in accordance with RSA 541-A:3 if the requested action
is:
1. Within the authority of the department;
2. Consistent with and best implements state
statutes affecting the department; and
3. A policy change the department determines to
be in the best interest of the state to advance its joint goals of promoting
economic development while protecting the natural resources and quality of life
in the state; or
b. Deny the
petition, in writing, stating fully the reasons for denial.
Source. #2221, eff 12-23-82; ss by #2979, eff
2-21-85; EXPIRED: 2-21-91
New. #5798, eff 3-18-94, EXPIRED: 3-18-00
New. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 202.02 Petitions
for Declaratory Rulings.
(a) Any interested
person may petition the department, through the commissioner, requesting a
declaratory ruling on the applicability of any statute or rule administered or
enforced by the department.
(b) Declaratory
ruling petitions shall conform to the requirements set out in Res 202.03.
(c) Declaratory
ruling petitions shall be received and disposed of in the following manner:
(1) Petitions shall be submitted to the office of
the commissioner;
(2) If the commissioner determines that any
petition is deficient in any respect, the commissioner shall, within 10 working
days of receipt of the deficient petition, notify the petitioner in writing of
the specific deficiencies and allow the petitioner to amend the petition; and
(3) When an acceptable petition for a declaratory
ruling has been received by the commissioner, the commissioner 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 attorney general's
reply.
Source. #2221, eff 12-23-82; ss by #2979, eff
2-21-85; EXPIRED: 2-21-91
New. #5798, eff 3-18-94, EXPIRED: 3-18-00
New. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 202.03 Petition
Requirements.
(a) Each petition
for adoption, amendment, or repeal of a rule, or for declaratory ruling shall
provide the following information:
(1) The name
and address of the petitioner, and, if applicable, the name and address of the
organization the petitioner represents;
(2) If an amendment or repeal of a rule is
sought, cite the rule number and title to be amended or repealed and specify
any amendments to be made;
(3) If an adoption of a new rule is sought,
provide the text of the proposed rule;
(4) If a declaratory ruling is sought, cite the
statute or rule and provide all information available or in his or her
possession which is applicable to the declaratory ruling; and
(5) A statement detailing why the department
should make such a ruling.
(b) The petition
shall be addressed to the commissioner.
(c) All information
shall be typewritten.
(d) The party, or
the representative, if the party appears by a representative, shall sign and
date the petition.
(e) The petition
shall be mailed or hand-delivered to:
Office of the Commissioner
Department of Resources and
Economic Development
Source. #2221, eff 12-23-82; ss by #2979, eff
2-21-85; EXPIRED: 2-21-91
New. #5798, eff 3-18-94, EXPIRED: 3-18-00
New. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 203 PRESIDING OFFICER; AUTHORITY, WITHDRAWAL AND
WAIVER OF RULES
Res 203.01 Authority
of Presiding Officer. Subject to the
statutes and rules governing the department, the presiding officer shall:
(a) Schedule and
hold hearings;
(b) Regulate and
control the course of hearings;
(c) Administer oaths
of affirmations;
(d) Receive relevant
evidence;
(e) Take official
notice of facts which are of common knowledge and general notoriety;
(f) Dispose of
procedural requests, including adjournments or postponements, at the request of
parties or on his/her own motion;
(g) Hold prehearing
conferences to aid in the prompt and efficient disposition of the proceedings;
(h) Interview and
examine parties or witnesses;
(i) Consider and
evaluate facts and evidence in order to make findings of fact or law;
(j) Cause a complete
record of any hearing to be made; and
(k) Take any other
action, consistent with applicable statutes and rules, necessary to conduct and
complete the proceeding in a fair and timely manner.
Source. #2221, eff 12-23-82; ss by #2979, eff
2-21-85; EXPIRED: 2-21-91
New. #5798, eff 3-18-94, EXPIRED: 3-18-00
New. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 203.02 Withdrawal
of Presiding Officer.
(a) Upon his or her
own initiative or upon the motion of any party, a presiding officer shall, for
good cause withdraw from any hearing.
(b) Good cause shall
exist if a presiding officer:
(1) Has a
direct interest in the outcome of a hearing, including, but not limited to, a
financial or family relationship with any party; or
(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. #2221, eff 12-23-82; ss by #2979, eff
2-21-85; EXPIRED: 2-21-91
New. #5798, eff 3-18-94, EXPIRED: 3-18-00
New. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 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 agency than would adherence to a particular rule or
procedure.
Source. #2221, eff 12-23-82; ss by #2979, eff
2-21-85; EXPIRED: 2-21-91
New. #5798, eff 3-18-94, EXPIRED: 3-18-00
New. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 204 FILING, FORMAT AND DELIVERY OF DOCUMENTS
Res 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
department, as evidenced by a date stamp placed on the document by the
department in the normal course of business.
Source. #2221, eff 12-23-82; ss by #2979, eff
2-21-85, EXPIRED: 2-21-91
New. #5798, eff 3-18-94, EXPIRED: 3-18-00
New. #7568-A,
eff 10-1-01
Res 204.02 Format
of Documents.
(a) All
correspondence, pleadings, motions or other documents filed under these rules
shall:
(1) Be typewritten;
(2) Be signed by the party or proponent of the
document, or, if the party appears by a representative, by the representative;
and
(3) Include a statement certifying that a copy of
the document has been delivered to all parties to the proceeding in compliance
with Res 204.03.
(b) A party or
representative’s signature on a document filed with the department 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. #2221, eff 12-23-82; ss by #2979, eff 2-21-85;
EXPIRED: 2-21-91
New. #5798, eff 3-18-94, EXPIRED: 3-18-00
New. #7568-A,
eff 10-1-01
Res 204.03 Delivery
of Documents.
(a) Copies of all
petitions, motions, exhibits, memorandum, 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
department 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
(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. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 205 TIME PERIODS
Res 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. #2221, eff 12-23-82; ss by #2979, eff
2-21-85; EXPIRED: 2-21-91
New. #5798, eff 3-18-94, EXPIRED: 3-18-00
New. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 206 MOTIONS
Res 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. #5798, eff 3-18-94, EXPIRED: 3-18-00
New.
#7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 207
NOTICE AND SCHEDULING OF HEARING; POSTPONEMENT; FAILURE TO APPEAR
Res 207.01 Commencement
of Hearing. A hearing shall be
commenced by an order of the department giving notice to the parties as
required by Res 207.02.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 207.02 Notice
of Hearing.
(a) In these rules,
all notice of hearings shall:
(1) Be prepared and forwarded so as to afford all
parties sufficient opportunity to prepare for and develop the issues to be
considered and decided at the hearing;
(2) Be
prepared in writing and forwarded to the parties in a sealed envelope, either
through the United States mail or by personal service; and
(3) Be forwarded to a representative if the
representative has filed an appearance on behalf of a party.
(b) All notice of
hearings shall contain the following:
(1) The time, date and place of the hearing;
(2) The legal authority under which the hearing
is to be held;
(3) A brief description of the reasons which have
caused said hearing to be called, to include identification of any statute or
rule allegedly violated by the party being notified;
(4) Notice of the existence and availability of
rules relative to the conduct of the hearing, and the place said rules may be
obtained;
(5) The necessity, if any, to produce documents
or other articles of evidence at the hearing;
(6) A statement that each
party has the right to have an attorney represent them at their own expense;
and
(7) The consequence of failing to appear at the
hearings as directed.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 207.03 Scheduling
of Hearing. Unless otherwise
provided for by statute or rule, hearings shall be scheduled as soon as
practicable following the events giving rise to the necessity for such hearing. The date set for the hearing shall allow
sufficient and reasonable time for preparation of the case by the department
and all parties.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 207.04 Postponements.
(a) Any party to a
hearing may make an oral or written motion 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. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 207.05 Failure
to Appear.
(a) Except as
provided in (b), if a party to whom notice has been served in accordance with
this chapter fails to appear at a hearing and fails to advise the department of
non-appearance prior to the scheduled time of the hearing, he or she shall have
a decision rendered against him or her which shall result in adverse
administrative action by default.
(b) There shall be
no decision rendered against said party if, within 7 days of the originally
scheduled hearing, the party can show good cause for failing to appear at the
hearing. Good cause shall include
illness, accident, death of a family member, or similar problem beyond the
party's control.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 208 PREHEARINGS AND SETTLEMENTS
Res 208.01 Prehearing
Conferences.
(a) Upon motion of
any party, or upon his or her own motion, the presiding officer shall schedule
one or more prehearing conferences prior to the commencement of the
hearing. All parties shall be provided
prior notice of any prehearing conference from the presiding officer.
(b) Prehearing
conferences shall include, but are not limited to, consideration of the
following:
(1) Offers of settlement;
(2) Simplifications of the issues;
(3) Stipulations or admissions as to issues of
fact or proof by consent of the parties;
(4) Limitations on the number of witnesses;
(5) Changes to standard procedures desired during
the hearing;
(6) Consolidation or examination of witnesses by
the parties; and
(7) Any other matters which will aid in the
disposition of the hearing.
(c) A prehearing
order incorporating the matters determined at all prehearing conferences shall
be issued and served to all parties.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 208.02 Settlements.
(a) Upon agreement
by all parties to an offer of settlement, the presiding officer shall cause a
formal document to be drawn up which specified the terms of such settlement.
(b) No settlement
shall become final unless all parties sign the agreed upon document.
(c) By signing the
settlement document, all parties shall thereby agree to waive their right to a
hearing.
(d) Copies of the
settlement document shall be distributed to all parties, and the original
retained by the department.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 209 APPEARANCE AND REPRESENTATION; CONDUCT OF
REPRESENTATION
Res 209.01 Representation.
(a) A party or
intervenor shall have the right to represent himself or herself, or be
represented by an attorney licensed in New Hampshire, or be represented by any
individual whom they shall so designate.
(b) A party or the
party’s representative shall file an appearance that includes:
(1) A brief identification of the matter;
(2) A statement as to whether or not the
representative is an attorney and if so, whether the attorney is licensed to
practice in
(3) The party or representative’s business
address and telephone number.
(c) The party or
their representative shall be permitted to cross examine witnesses, and present
evidence and witnesses on their own behalf.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 209.02 Conduct
of Representation.
(a) Persons
representing parties or intervenors in adjudicative hearings shall, by
complying with (b) below, treat the process and the following persons with
respect, fairness, and candor:
(1) All other participants including parties,
intervenors, witnesses, and representatives; and
(2) Any person presiding over the hearing.
(b) Representatives
shall:
(1) Not make a claim or assertion unless there is
admissible evidence which supports such claim or assertion;
(2) Not
dispute a claim or assertion made by another unless there is a good faith basis
for doing so;
(3) Not, personally or through another, make a
false or misleading statement of material fact or law during the course of the
hearing;
(4) Not, personally or through another, inhibit
or delay access to, conceal unprivileged evidence from other participants, or
destroy unprivileged evidence before or during the hearing;
(5) Not, personally or through another, knowingly
violate the requirements of any provision of this section, regardless of
whether or not an advantage is gained thereby;
(6) Not, during the hearing:
a. Introduce, or attempt to introduce, evidence
that is not relevant, unless there is a good faith basis for the belief that
such evidence is relevant;
b. Assert personal knowledge of facts in issue;
c. Testify as a witness;
d. Offer his or her opinion as to matters at
issue in the hearing, except in opening statements, closing arguments, and when
requested by any person presiding over the hearing; and
e. Attempt to influence any person presiding
over the hearing on an ex parte basis;
(7) Not
engage in behavior that disrupts the hearing, including, but not limited to:
a. Delaying the hearing only for the sake of
delay;
b. Making frivolous claims or filing frivolous
motions;
c. Using language so as to be deliberately
offensive or verbally abusive to any participant; and
d. Employing tactics that have no purpose other
than to embarrass any participant;
(8) Not,
personally or through another, contact any participant directly if the
representative knows that such other person also has representation;
(9) Not, pursuant to RSA 311:7, act as a
representative for another in more than 3 hearings in any 2 year period; and
(10) Not engage in any other act that is in any
way dishonest or lacking in candor toward any participant or any person
presiding over the hearing.
(c) Violation of any
provision of (b), above, by a representative, shall constitute misconduct under
these rules.
(d) If any person
presiding over the hearing believes that a representative has committed
misconduct during the hearing, the person shall:
(1) Warn the representative on the record,
indicating the nature of the misconduct believed to have occurred, and take no
further action;
(2) Inform the representative that, after the
conclusion of the hearing, the person presiding over the hearing will allege
misconduct by the representative; or
(3) Suspend the hearing and allege misconduct by
the representative.
(e) The person
presiding over the hearing shall implement:
(1) The provisions of (d)(1), above, if the
misconduct alleged to have occurred does not prejudice any other participant;
(2) The provisions of (d)(2), above, if the
misconduct alleged to have occurred prejudices any other participant, but
action can be and is taken to mitigate any such prejudice; or
(3) The provisions of (d)(3), above, if the
misconduct alleged to have occurred prejudices any other participant, but
action cannot be taken to mitigate any such prejudice.
(f) Any person who,
after notice and opportunity for hearing pursuant to Res 208, is found to have
committed misconduct shall be barred from appearing as a representative before
the department:
(1) For the first act of misconduct the bar shall
be for 6 months;
(2) For the second act of misconduct the bar
shall be for one year; and
(3) For the third or subsequent act of misconduct
the bar shall be permanent.
(g) Notwithstanding
(f)(3), above, a representative who has been permanently barred from appearing
before the department may, after 5 years from the date of the permanent bar
order, petition to have the bar lifted.
The petition shall provide the information required by (h), below.
(h) Each petition to
remove a permanent bar from appearing as a representative before the department
shall:
(1) Provide the name, address and telephone
number of the representative;
(2) Be addressed to the commissioner;
(3) State good cause why the department should
lift the bar;
(4) Be typewritten;
(5) Be signed and dated by the representative;
and
(6) Be mailed or hand-delivered to:
Office of the Commissioner
Department of Resources and
Economic Development
(i) Petitions to remove a permanent bar order shall be received and disposed of as follows:
(1) Be submitted to the office of the
commissioner;
(2) If the commissioner decides that any petition
is deficient in any respect, the commissioner shall, within 10 working days of
receipt of the deficient petition, notify the petitioner in writing of the
specific deficiencies and allow the petitioner to amend the petition;
(3) Within 30 days of receipt of a petition that
complies with Res 209.01(h), the commissioner shall take one of the following
actions:
a. Initiate the removal of the permanent bar
order if the commissioner determines,
based on the information provided in the petition, that the misconduct that led
to the permanent bar is unlikely to be repeated; or
b. Deny the petition, in writing, stating fully
the reasons for denial.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 210 RIGHT TO INTERVENTION
Res 210.01 Intervention.
(a) A non-party may
intervene in a matter pending before the department 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 hearing or that
the non-party qualifies as an intervenor 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.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 211 ROLES OF DEPARTMENT STAFF AND COMPLAINANTS
Res 211.01 Role
of Department Staff in Enforcement or Disciplinary Hearings. Unless called as witnesses, department staff
shall have no role in any enforcement or disciplinary hearing.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 211.02 Role
of Complainants in Enforcement or Disciplinary Hearings. Unless called as a witness or granted party
or intervenor status, a person who initiates a hearing by complaining to the
department about the conduct of a person who becomes a party shall have no role
in any enforcement or disciplinary hearing.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 212 RECORD, PROOF, EVIDENCE AND DECISIONS
Res 212.01 Record
of the Hearing.
(a) The presiding
officer shall cause all oral hearings under this chapter to be recorded
verbatim. Said recordings shall become
part of the record for decision and shall be available to all parties for
examination and copying.
(b) The presiding
officer shall make available a copy of the recording or transcription to any
party requesting such within 30 days of such request. The requesting party shall pay all actual
costs for such transcriptions or copies of the recording.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 212.02 Standard
and Burden of Proof. In all hearings
governed by this chapter the party asserting the affirmative of a proposition
shall bear the burden of proving the truth of that proposition by a
preponderance of the evidence.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 212.03 Order
of Proceeding.
(a) Any person
offering testimony, evidence or argument 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. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 212.04 Evidence.
(a) Receipt of
evidence shall be governed by the provisions of RSA 541-A:33.
(b) All relevant,
material evidence shall be admissible.
(c) The presiding
officer, shall exclude evidence which is irrelevant, immaterial, or unduly
repetitious.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 213 CONCLUSION; CLOSING AND REOPENING RECORDS
Res 213.01 Conclusion
of Hearing. No party shall be
required to rest his or her case at a particular time, except when the
presiding officer is reasonably certain that all relevant evidence,
cross-examination and rebuttal have been heard.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 213.02 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 Res 214.03.
(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. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 213.03 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. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 214 DECISIONS AND ORDERS
Res 214.01 Decisions.
(a) All decisions
rendered by the presiding officer shall be:
(1) Made on the basis of the evidence of record
only;
(2) Based upon a presentation of the evidence of
record; and
(3) Issued in writing or stated in the record.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 214.02 Orders.
(a) Within a
reasonable time after conclusion of the hearing, the presiding officer shall
issue an order stating the action to be taken by the department and the reason
therefor. Said order shall be sent to
the affected person through the
(b) Said order shall
constitute a final decision on the part of the department.
(c) The department
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. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 215 MOTION FOR REHEARING
Res 215.01 Filing
and Content of Motion.
(a) A motion for
rehearing shall be filed within 30 days of the date of the department’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 department’s decision to be:
a. Unlawful, unjust or unreasonable;
b. Illegal in respect to jurisdiction, authority
or observance of the law;
c. An abuse of discretion; or
d. Arbitrary 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. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 215.02 Standard
for Granting Motion for Rehearing. A
motion for rehearing in a case subject to appeal by petition for writ of
certiorari shall be granted if it demonstrates that the department’s decision
is illegal in respect to jurisdiction, authority or observance of law, an abuse
of discretion or arbitrary, unreasonable or capricious.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
Res 215.03 Decision
on Motion for Rehearing. The
department shall grant or deny a motion for rehearing, or suspend the decision
or order pending further consideration within 10 days of the filing of the
motion for rehearing.
Source. #7568-A,
eff 10-1-01, EXPIRED: 7-1-18
PART Res 216 REQUEST FOR DEPARTMENT STATEMENT EXPLAINING
RULE
Res 216.01 Requests
for Rule Explanation.
(a) Within 30 days
after the adoption of a rule, any interested person may request that the
department, through the commissioner, issue a statement explaining the
following:
(1) The principle reasons for and against
adoption of the rule in its final form; and
(2) Reasons why the department overruled
arguments and considerations against the rule.
(b) Rule explanation
requests shall be received and disposed of in the following manner:
(1) Requests shall be submitted to the office of
the commissioner;
(2) When a request for rule explanation has been
received by the commissioner, the commissioner shall issue a statement
responsive to the request within 60 days.
The statement shall provide the information required by (a), above.
Source. #7568-B, eff 10-1-01, EXPIRED: 10-1-09
Res 216.02 Requests
for Rule Explanation Requirements.
(a) Each request for
rule explanation shall provide the following information:
(1) The name and address of the interested person;
and
(2) The rule number and title;
(b) The request
shall be addressed to the commissioner.
(c) All information
shall be typewritten.
(d) The interested
person shall sign and date the request.
(e) The request
shall be mailed or hand-delivered to:
Office of the Commissioner
Department of Resources and
Economic Development
Source. #7568-B, eff 10-1-01, EXPIRED: 10-1-09
APPENDIX
Provision of the Proposed Rule |
|
Res 201 |
RSA 541-A:1 and RSA
541-A:30-a, II |
Res 202 |
RSA 541-A:29 |
Res 203.01 |
RSA 541-A:29-39 |
Res 203.02 |
RSA 541-A:30-a, III(k) and
RSA 541-A:36 |
Res 203.03 |
RSA 541-A:22, IV and RSA
541-A:30-a, III(j) |
Res 204 |
RSA 541-A:29-35 and RSA
541-A:30-a, III(a) |
Res 205 |
RSA 541-A:29-35 and RSA
541-A:30-a, III(f) |
Res 206 |
RSA 541-A:29-35 and RSA
541-A:30-a, III(a) |
Res 207.01 |
RSA 541-A:31, I and II |
Res 207.02 |
RSA 541-A:31, III |
Res 207.03 |
RSA 541-A:31, I and II |
Res 207.04 |
RSA 541-A:30-a, III(h) |
Res 207.05 |
RSA 541-A:29-39 |
Res 208.01 |
RSA 541-A:31, V and RSA
541-A:38 |
Res 208.02 |
RSA 541-A:31, V(c) and RSA
541-A:38 |
Res 209 |
RSA 311:1, 311:7 and RSA
541-A:30-a, III(b) |
Res 210 |
RSA 541-A:30-a, III(g) and
RSA 541-A:32 |
Res 211 |
RSA 541-A:30-a, III(g) |
Res 212.01 |
RSA 541-A:31, VI |
Res 212.02 |
RSA 541-A:30-a, III(d) and
(e) |
Res 212.03 and Res 212.04 |
RSA 541-A:33 |
Res 213.01 |
RSA 541-A:31, VI(c) and
RSA 541-A:35 |
Res 213.02 |
RSA 541-A:31 and RSA
541-A:33 |
Res 213.03 |
RSA 541-A:30-a, III(i),
541-A:31 and 33 |
Res 214.01 |
RSA 541-A:30-a, III(e),
541-A:34 and 35 |
Res 214.02 |
RSA 541-A:30-a, III(l) and
RSA 541-A:35 |
Res 215.01 and Res 215.02 |
Chapter 541 |
Res 215.03 |
RSA 541:3 |
Res 215.04 |
RSA 541:4 |
Res 215.05 |
RSA 541:5 |
Res 216 |
RSA 541-A:11, VII |