CHAPTER Cul-H 200 PROCEDURAL RULES

 

PART Cul-H 201 RULEMAKING HEARINGS - EXPIRED

 

Statutory Authority: RSA 21-K:8, IV

 

††††††††† Cul-H 201.01 Purpose. The purpose of this part is to provide a uniform procedure for the conduct of public hearings at which comment from the general public will be solicited for evaluation and consideration by the commissioner relative to rulemaking.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 201.02 Scope.

 

††††††††† (a)These rules shall apply to all hearings required by state law to be conducted by the commissioner at which public comment shall be solicited, except that they shall not apply to adjudicative hearings.

 

††††††††† (b)If any requirement set by these rules conflicts with an applicable statute such other authority shall control.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 201.03 Notice.

 

††††††††† (a)A public comment hearing concerning rulemaking shall be commenced by placing notice of the hearing in the ďRulemaking RegisterĒ so that it shall appear at least 20 days prior to the hearing date.

 

††††††††† (b)Notice for rulemaking public comment hearings shall comply with RSA 541-A:6, I.

 

††††††††† (c)Nothing in these rules shall prohibit the commissioner from giving greater notice than the minimums set out in this part.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 201.04 Media Access.

 

††††††††† (a)Public comment hearings may be open to the print, broadcast, and electronic media.

 

††††††††† (b)The moderator shall place limits on the activities of the media to avoid disruption in the following ways:

 

(1)Limit the placement of television cameras and microphones to certain locations in the hearing room; and

 

(2)Prohibit interviews from being conducted within the hearing room during the hearing.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 201.05 Moderator.

 

††††††††† (a)The hearing shall be presided over by a moderator who shall be the director or a designee.

 

††††††††† (b)The moderator shall:

 

(1)Call the hearing to order;

 

(2)Cause a recording of the hearing to be made;

 

(3)Place limits on the media to avoid disruption as set out above;

 

(4)Recognize those who wish to be heard and establish the order thereof;

 

(5)Limit the time for each speaker;

 

(6)Remove or have removed any person who disrupts the hearing;

 

(7)Adjourn the hearing; and

 

(8)Provide opportunity for the submission of written comments.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 201.06 Public Participation.

 

††††††††† (a)Any person who wishes to speak on the issue or issues that are the subject of the hearing shall place their name and address on a speakers list before the last speaker on the list has finished speaking. All whose names appear on the speakers list, as provided, shall be afforded reasonable time to speak at the hearing.Reasonable time shall be determined considering the number of people who wish to be heard, the time, and the availability of the facility.

 

††††††††† (b)The moderator shall:

 

(1)Refuse to recognize a person who refuses to give their full name and address;

 

(2)When a group or organization wishes to comment, limit the group to no more than 3 spokespersons, provided that the members who are present shall be allowed to enter their names and addresses into the record as supporting the position by the group or organization;

 

(3)Revoke recognition of a speaker who speaks or acts in an abusive or disruptive manner; or

 

(4)Revoke recognition of a speaker who refuses to keep their comments relevant to the issue or issues that are the subject of the hearing.

 

††††††††† (c)Written comments may be submitted any time from the time notice has been published until the moderator has closed the record, which shall not be less than 10 calendar days after the hearing.

 

††††††††† (d)In the event that the number of speakers who wish to give oral testimony relevant to the issue or issues involved exceed the number that can be heard within a reasonable period of time subject to facility availability and length of the hearing, the hearing shall be reconvened pursuant to applicable provisions of RSA 541-A to afford such persons the opportunity to be heard.Speakers may elect to submit written testimony in lieu of additional oral hearing.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

PART Cul-H 202 RULEMAKING PETITIONS - EXPIRED

 

††††††††† Cul-H 202.01 Petition for Rulemaking.

 

††††††††† (a)Any person may request the commencement of a proceeding for the purpose of adopting, amending, or repealing a rule by filing a written petition that contains:

 

(1)The text of the proposed rule or a statement of the particular results intended by the petitioner to flow from the implementation of the proposed rule;

 

(2)An identification of the particular rule sought to be amended or repealed;

 

(3)Any data or argument the petitioner believes would be useful in deciding whether to commence a rulemaking proceeding; and

 

(4)Name, address, and signature of the petition and the date.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 202.02 Division and Commissionerís Response. Within 30 days of receiving a complete rulemaking petition, the commissioner shall determine whether to grant or deny the petition and the division shall notify the petitioner in writing of the commissionerís decision.If the commissioner denies the petition, the division shall state, in writing, the commissionerís reason(s) for denial.If the commissioner grants the petition, the commissioner shall approve the rule within 120 days of receipt of the petition, draft the rule, and the division shall request a fiscal impact statement under RSA 541-A:5.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 202.03 Division Notification and Decision.

 

††††††††† (a)The commissioner shall consider all petitions for rulemaking and proceed pursuant to RSA 541-A:4. The commissioner shall request additional data or argument from the petitioner or other interested persons to clarify the merits of the petition.

 

††††††††† (b)Within 30 days of receipt, the division shall determine if the petition is complete, notify the applicant of any errors or omissions, request any additional information allowed by law, and supply the name, title, address, and telephone number of the division person who can respond to the applicantís questions.

 

††††††††† (c)Within 120 days after receipt of the original petition, or 120 days after receiving the response to the divisionís request for more information above, the commissioner shall approve or deny the petition, or commence an adjudicative proceeding.

 

††††††††† (d)The commissioner shall grant the petition if the petition is within the authority of the division, consistent with state statute and case law and will assist the commissioner with the regulation and enforcement duties granted to the division.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

PART Cul-H 203 DECLARATORY RULINGS. - EXPIRED

 

Statutory Authority: RSA 541-A:1, V; 541-A:16, II (d)

 

††††††††† Cul-H 203.01 Petition for Declaratory Ruling.

 

††††††††† (a)Any person may request a declaratory ruling from the commissioner on matters within the personís jurisdiction by filing an original and 5 copies of a petition.

 

††††††††† (b)All petitions shall contain:

 

(1)The name and address of the petitioner;

 

(2)The name and address of the petitionerís representative, if any;

 

(3)A concise statement of the facts that caused the petitioner to request the commissioner to act;

 

(4)The action that the petitioner wishes the commissioner to take; and

 

(5)The identification of any statutes, rules, orders, or other authority that entitles the petitioner to request the commissioner to act.

 

††††††††† (c)A petition for declaratory ruling shall set forth the following information:

 

(1)The exact ruling being requested; and

 

(2)The statutory and factual basis for ruling, including any supporting affidavits or memoranda of a law.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 203.02 Disposition of Petitions for Declaratory Rulings.

 

††††††††† (a)The petitioner shall provide such further information or participate in such evidentiary or other proceedings as the commissioner shall direct after reviewing the petition and any replies received.

 

††††††††† (b)Upon review and consideration of the complete petition the commissioner shall issue a written ruling either granting or denying the petition with an explanation of the factual and legal basis for granting or denying such petition within 90 days of its receipt.

 

††††††††† (c)The commissioner shall reject a declaratory ruling petition if it is inadequate or beyond the scope of the commissionerís statutory authority.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 203.03 Issuance and Publication of Declaratory Ruling. In accordance with RSA 541-A:16, II (b), declaratory rulings issued by the commissioner shall be filed on the day of issue with the director of legislative services.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

PART Cul-H 204 ADJUDICATION OF DISPUTES - EXPIRED

 

††††††††† Cul-H 204.01 Purpose and Scope.

 

††††††††† (a)The purpose of this part shall be to provide a process and procedure for the adjudication of disputes relevant to programs, permits, and decisions relating to historic and archaeological preservation. The provisions of these rules are intended to supplement the procedures established by RSA 541-A and any other applicable statute.

 

††††††††† (b)The procedure required by this section is applicable to all division decisions affecting the personal and property rights of individuals, groups, agencies, municipalities, and organizations.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.02 Presiding Officer.

 

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

 

††††††††† (b)A presiding officer shall, as necessary:

 

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

 

(2)Pursuant to RSA 541-A:31, V (a) and RSA 541-A:38, facilitate an informal resolution of an appeal or, in the alternative, designate an individual to act as an intermediary in order to facilitate settlement;

 

(3)Administer oaths and affirmations;

 

(4)Issue subpoenas to compel the attendance of witnesses at hearings or the production of documents, if so authorized by law;

 

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

 

(6)Rule on procedural requests, including adjournments or postponements, at the request of a party or the presiding officerís own motion;

 

(7)Question any person who testifies;

 

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

 

(9)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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.03 Withdrawal of Presiding Officer.

 

††††††††† (a)Upon a presiding officerís own initiative or upon the motion of any party, a presiding officer shall withdraw from any hearing where good cause is shown.

 

††††††††† (b)Good cause shall exist if a presiding officer:

 

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

 

(2)Has made statements or engaged in behavior that objectively demonstrates that he or she has prejudged the fact 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.04 Waiver or Suspension of Rules by Presiding Officer.A 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 part, Cul-H 204, upon reasonable notice to affected persons when the proposed waiver or suspension appears to be lawful and would more likely promote the fair, accurate, and efficient resolution of issues pending before the agency than would adherence to a particular rule or procedure.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.05 Date of Issuance or Filing.

 

††††††††† (a)All written documents governed by this part shall be presumed to have been issued on the date noted on the document.

 

††††††††† (b)All written documents governed by these rules shall be presumed to have been filed with the division on the actual date of receipt by the division, as evidenced by a date stamp placed on the document by the division in the normal course of business.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.06 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 word processed, typewritten, or clearly printed by hand using a pen on durable paper 8 Ĺ 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 the requirements for the delivery of documents.

 

††††††††† (b)A party or representativeís signature on a document filed with the division 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 signerís 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.07 Delivery of Documents.

 

††††††††† (a)Copies of all petitions, motions, exhibits, memoranda, or other documents filed by any party to a proceeding governed by this part 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, division or commissioner 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 State mail, addressed to the last address given to the agency by the party.

 

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

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.08 Time Periods: Computation of Time.

 

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

 

††††††††† (b)Computation of any period of time referred to in this part 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.09 Motions; Objections.

 

††††††††† (a)Motions shall be in written form and filed with the presiding officer at least 30 days prior to a scheduled hearing, unless made in response to a matter asserted for the first time at a hearing or on the basis of information that 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 in writing within 15 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.10 Notice of Hearing.

 

††††††††† (a)All hearings shall be commenced by an order of the agency giving notice to the parties.

 

††††††††† (b)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 agency.

 

††††††††† (c)A notice of hearing issued by an agency shall contain the information required by RSA 541-A:31, III, namely:

 

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

 

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

 

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

 

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

 

(5)A statement that each party has the right to have an attorney represent him or her at his or her personal expense.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.11 Appearances and Representations. A party or the partyís 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 representativeís daytime telephone number and address.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.12 Pre-Hearing Conferences. As necessary, the presiding officer shall schedule on his or her own initiative or at the request of any involved party, 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.13 Role of Agency Staff and Complainants.

 

††††††††† (a)Unless called as witnesses, agency staff shall have no role in any enforcement or disciplinary hearing.

 

††††††††† (b)Unless called as a witness, or granted party or intervenor status, a person who initiates an adjudicative proceeding by complaining to the division about the conduct of a person who becomes a party shall have no role in any enforcement or disciplinary hearing.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.14 Intervention.

 

††††††††† (a)A non-party may intervene in a matter pending before an agency under the provisions of RSA 541-A:32, by filing a motion stating facts demonstrating that the non-partyís rights or other substantial interests might be affected by the proceeding 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.

 

††††††††† (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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.15 Postponement Requests.

 

††††††††† (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 party to the hearing requests a postponement, 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.16 Failure to Attend Hearing. If any party to whom notice has been given in accordance with Cul-H 204.10 fails to attend a hearing, the presiding officer shall declare that party to be in default unless failure to attend is justified by a showing of good cause.

 

††††††††† (a)If any party to whom notice has been given in accordance with Cul-H 204.10 fails to attend a hearing, the presiding officer shall declare that party to be in default unless failure to attend is justified by a showing of good cause.

 

††††††††† (b)Good cause shall include accident, illness or other circumstances beyond the control of the party.

 

††††††††† (c)In the absence of good cause for failure to attend the hearing, the presiding officer shall:

 

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

 

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

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.17 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 Cul-H 204.18.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.18 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.19 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.20 Record of the Hearing.

 

††††††††† (a)The division 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 division 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.21 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.22 Testimony and Order of Proceeding.

 

††††††††† (a)Any person offering testimony, evidence or arguments shall state for the record their 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.23 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.24 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.25 Closing and Reopening 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 otherwise allowed by this section.

 

††††††††† (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.

 

††††††††† (c)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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.26 Decisions.

 

††††††††† (a)If a presiding officer has been delegated the authority to conduct a hearing in the absence of the commissioner who is to render a final decision, the presiding officer shall submit to the commissioner 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.

 

††††††††† (b)If a proposal for decision in a matter not personally heard by the commissioner is adverse to a party to the proceeding other than the division itself, the division 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 agency.

 

††††††††† (c)A proposal for decision shall become a final decision upon its approval by the commissioner.

 

††††††††† (d)The division 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.27 Filing and Content of Motion for Rehearing.

 

††††††††† (a)The rules in this section are intended to supplement any statutory provisions, including RSA 541, that require or allow a person to request a rehearing of a decision of an agency prior to appealing the decision.

 

††††††††† (b)The rules in this section 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.

 

††††††††† (c)A motion for rehearing shall be filed within 30 days of the date of an agency decision or order.

 

††††††††† (d)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 agency's decision to be unlawful, unjust or unreasonable, or illegal in respect to jurisdiction, authority or observance of the 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.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

††††††††† Cul-H 204.28 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 commissionerís 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 commissionerís decision is illegal in respect to jurisdiction, authority or observance of law, an abuse of discretion or arbitrary unreasonable or capricious.

 

Source.#10218, eff 10-30-12, EXPIRED: 7-1-18

 

PART Cul-H 205 EXPLANATION AFTER ADOPTION

 

Statutory Authority: RSA 21-K:8, IV

 

††††††††† Cul-H 205.01 Requests for Explanation of Adopted Rules.Pursuant to RSA 541-A:11, VII, any interested person may, within 30 days of the final adoption of a rule, request a written explanation of that rule by making a written request to the commissioner including:

 

††††††††† (a)The name and address of the person making the request; or

 

††††††††† (b)If the request is that of an organization or other entity, the name and address of such organization or entity, and the name and address of the representative authorized by the organization or entity to make the request.

 

Source.#10219, eff 10-30-12

 

††††††††† Cul-H 205.02 Contents of Explanation.The commissioner shall, within 45 days of receiving a request in accordance with Cul-H 205.01, provide a written response which:

 

††††††††† (a)Concisely states the meaning of the rule adopted;

 

††††††††† (b)Concisely states the principal reasons for and against the adoption of the rule in its final form; and

 

††††††††† (c)States, if applicable, why the commissioner did not accept arguments and considerations presented against the rule.

 

Source.#10219, eff 10-30-12

 

PART Cul-H 206 WAIVER OF RULES

 

Statutory Authority: RSA 541-A:22, IV; RSA 541-A:29

 

††††††††† Cul-H 206.01 Waiver of Rules.

 

††††††††† (a)The commissioner shall waive the provisions of any rule, except where precluded by statute or by Cul-H 204.04, upon request by an interested party if the committee finds that:

 

(1)The waiver serves the public interest; and

 

(2)The waiver will not disrupt the orderly and efficient resolution of matters before the division.

 

††††††††† (b)In determining the public interest, the commissioner shall waive a rule if:

 

(1)Compliance with the rule would be onerous or inapplicable given the circumstances of the affected person; or

 

(2)The purpose of the rule would be satisfied by an alternative method proposed.

 

††††††††† (c)Any interested party seeking a waiver shall make a request in writing, except as provided in (d) below.

 

††††††††† (d)The commissioner shall accept for consideration any waiver request made orally during a hearing or pre-hearing conference.

 

††††††††† (e)A request for a waiver shall specify the basis for the waiver and the proposed alternative, if any.

 

Source.#10219, eff 10-30-12


Appendix

 

Rule

Specific State Statute the Rule Implements

Cul-H 201

RSA 21-K:8, IV

Cul-H 202

RSA 541-A:4, 5; RSA 541-A:12

Cul-H 203

RSA 541-A:1, V; 541-A:16, II (d)

Cul-H 204.01

RSA 227-C:5, XIX; RSA 541-A:31-36; RSA 541-A:30-a, I

Cul-H 204.02

RSA 541-A:1 XIV; RSA 541-A: 30-a, III (k); RSA 541-A:31, V;

RSA 541-A:31, VI;RSA 541-A: 38

Cul-H 204.03

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

Cul-H 204.04

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

Cul-H 204.05

RSA 541-A: 16, I (b); RSA 541-A: 30-a, III (a)

Cul-H 204.06

RSA 541-A: 16, I (b); RSA 541-A: 30-a, III (a)

Cul-H 204.07

RSA 541-A: 16, I (b); RSA 541-A: 30-a, III (a)

Cul-H 204.08

RSA 541-A: 16, IV; RSA 541-A: 30-a, III (f)

Cul-H 204.09

RSA 541-A: 16, I (b); RSA 541-A: 30-a, III (a);
RSA 541-A: 31, IV, VI (b), VII; RSA 541-A: 33, II.

Cul-H 204.10

RSA 541-A: 16, I. (b); RSA 541-A: 29; RSA 541-A: 30-a, I;
RSA 541-A: 31, I, III

Cul-H 204.11

RSA 541-A: 30-a, III (b); RSA 541-A:31, V

Cul-H 204.12

RSA 541-A: 16, I (b); RSA 541-A: 30-a, III (c); RSA 541-A: 31, V (d)

Cul-H 204.13

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

Cul-H 204.14

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

Cul-H 204.15

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

Cul-H 204.16

RSA 541-A: 16, I. (b)

Cul-H 204.17

RSA 541-A: 16, I (b); RSA 541-A: 30-a, III (c)

Cul-H 204.18

RSA 541-A: 16, I (b); RSA 541-A: 30-a, III (c)

Cul-H 204.19

RSA 541-A: 16, I (b); RSA 541-A: 30-a, III (c)

Cul-H 204.20

RSA 541-A: 31, VI. (g), VII

Cul-H 204.21

RSA 541:13; RSA 541-A:30-a, III (d), (e)

Cul-H 204.22

RSA 541-A: 16, I (b) (2); RSA 541-A: 30-a, I; RSA 541-A: 32, III;

RSA 541-A: 33, IV

Cul-H 204.23

RSA 91-A:5; RSA 541-A:33

Cul-H 204.24

RSA 541-A: 16, I. (b); RSA 541-A: 30-a, I; RSA 541-A: 31, VI (e);

RSA 541-A: 35

Cul-H 204.25

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

Cul-H 204.26

RSA 541-A: 30-a, III (a); RSA 541-A: 31, VI; RSA 541-A: 35

Cul-H 204.27

RSA 541-A: 16, I (b); RSA 541-A: 30-a, I, III (a); RSA 541-A: 31, IV

Cul-H 204.28

RSA 541-A: 16, I (b); RSA 541-A: 30-a, I, III (a); RSA 541-A: 31, IV

Cul-H 205

RSA 21-K:8, IV

Cul-H 206

RSA 541-A:22, IV; RSA 541-A:29