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.

(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.

(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.

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 New Hampshire shall apply to proceedings under this chapter.

(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.

(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.

(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.

(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.

(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.

(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	Specific State Statute the Rule Implements

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	???