CHAPTER
Fis 200 RULES OF PRACTICE AND PROCEDURE
Statutory
Authority: RSA 541-A:16, I and
541-A:30-a, II, III
PART
Fis 201 PURPOSE AND APPLICABILITY -
RESERVED
Source. #1670, eff l1-20-80; ss by #2079, eff 7-5-82;
ss by #2839, eff 8-31-84; ss by #4856, eff 7-3-90; ss by #6276, INTERIM, eff
6-26-96, EXPIRED: 10-24-96
PART
Fis 202 DEFINITIONS
Fis 202.01 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)
“Department” means the fish and game department.
(c)
“Hearing” means “adjudicative proceeding” as defined by RSA 541-A:1, I,
namely, “the procedure to be followed in contested cases, as set forth in RSA
541-A:31 through RSA 541-A:36.”
(d)
“License” means “the whole or part of any agency permit, certificate,
approval, registration, charter or similar form of permission required by Title
XVIII.
(e)
“Motion” means a request to the presiding officer for an order or ruling
directing some act to be done in favor of the party making the motion,
including a statement of justification or reasons for the request.
(f)
“Natural person” means a human being.
(g)
“Order” means “order” as defined by 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”.
(h)
“Party” means “party” as defined by RSA 541-A:1, XII, namely, “each
person or agency named or admitted as a party, or properly seeking and entitled
as a right to be admitted as a party.”
The term “party” includes all intervenors in a proceeding, subject to
any limitations established pursuant to RSA 541-A:33, III.
(i)
“Person” means “person” as defined by RSA 541-A:1, XIII, namely, “any
individual, partnership, corporation, association, governmental subdivision, or
public or private organization of any character other than an agency.”
(j)
“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.”
(k)
“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.
(l)
“Revocation” means “revocation” as defined in RSA 207:1, XXIII-a,
namely, “the recession, cancellation, nullification or invalidation of a
license, the ability to acquire a license, or the ability to participate in any
of the activities specified in the revocation.
(m)
“Suspension” means “suspension” as defined in RSA 207:1, XXVI-a, namely,
“the temporary discontinuance or cessation for a period of time of a license,
the ability to acquire a license or the ability to participate in any of the
activities specified in the suspension.
(n) “Working days” means calendar days exclusive of Saturdays, Sundays, and state or federal holidays.
Source. #1670, eff l1-20-80; ss by #2079, eff 7-5-82;
ss by #2839, eff 8-31-84; ss by #4856, eff 7-3-90; ss by #6276, INTERIM, eff
6-26-96, EXPIRED: 10-24-96
New. #7382, eff 10-25-00, EXPIRED: 10-25-08
New. #9332, INTERIM, eff 11-27-08, EXPIRED:
5-26-09
New. #9636-A,
eff 1-12-10
PART
Fis 203 PRESIDING OFFICER; WITHDRAWAL
AND WAIVER OF RULES
Fis 203.01 Presiding Officer; Appointment; Authority.
(a)
All hearings shall be conducted for the department by a natural person
appointed or authorized to serve as a presiding officer.
(b)
A presiding officer shall as necessary:
(1) Regulate and control the course of a hearing;
(2) Facilitate an informal resolution of an
appeal;
(3) Administer oaths and affirmations;
(4) Receive relevant evidence at hearings and
exclude irrelevant, immaterial or unduly repetitious evidence;
(5) Rule on procedural requests, including
adjournments or postponements, at the request of a party or on the presiding
officer's own motion;
(6) Question any person who testifies;
(7) Cause a complete record of any hearing to be
made, as specified in RSA 541-A:31, VI; and
(8) Take any other action consistent with
applicable statutes, rules and case law necessary to conduct the hearing and
complete the record in a fair and timely manner.
Source. #1670, eff l1-20-80; ss by #2079, eff 7-5-82;
ss by #2839, eff 8-31-84; ss by #4856, eff 7-3-90; ss by #6276, INTERIM, eff
6-26-96, EXPIRED: 10-24-96
New. #7382, eff 10-25-00, EXPIRED: 10-25-08
New. #9332, INTERIM, eff 11-27-08, EXPIRED:
5-26-09
New. #9636-A,
eff 1-12-10
Fis 203.02 Withdrawal of Presiding Officer or
Department Official.
(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
proceeding, including, but not limited to, a financial or family relationship,
within the third degree of 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. #1670, eff l1-20-80; ss by #2079, eff 7-5-82;
ss by #2839, eff 8-31-84; ss by #4856, eff 7-3-90; ss by #6276, INTERIM, eff
6-26-96, EXPIRED: 10-24-96
New. #7382, eff 10-25-00, EXPIRED: 10-25-08
New. #9332, INTERIM, eff 11-27-08, EXPIRED:
5-26-09
New. #9636-A,
eff 1-12-10
Fis 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 department than would adherence to a
particular rule or procedure.
Source. #1670, eff l1-20-80; ss by #2079, eff 7-5-82;
ss by #2839, eff 8-31-84; ss by #4856, eff 7-3-90; ss by #6276, INTERIM, eff 6-26-96,
EXPIRED: 10-24-96
New. #7382, eff 10-25-00, EXPIRED: 10-25-08
New. #9332, INTERIM, eff 11-27-08, EXPIRED:
5-26-09
New. #9636-A, eff 1-12-10
PART
Fis 204 FILING, FORMAT AND DELIVERY OF
DOCUMENTS
Fis 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 on the actual date of
receipt by the department, as evidenced by a date stamp placed on the document
by the department in the normal course of business.
Source. #1670, eff l1-20-80; ss by #2079, eff 7-5-82;
ss by #2839, eff 8-31-84; ss by #4856, eff 7-3-90; ss by #6276, INTERIM, eff
6-26-96, EXPIRED: 10-24-96
New. #7382, eff 10-25-00, EXPIRED: 10-25-08
New. #9332, INTERIM, eff 11-27-08, EXPIRED:
5-26-09
New. #9636-A, eff 1-12-10
Fis 204.02 Format of Documents.
(a)
All correspondence, pleadings, motions or other documents filed under
these rules shall:
(1) Include the title and docket number of the
proceeding, if known;
(2) Be typewritten or clearly printed on durable
paper 8 1/2 by 11 inches in size;
(3) Be signed by the party or proponent of the
document, or, if the party appears by a representative, by the representative;
and
(4) Include a statement certifying that a copy of
the document has been delivered to all parties to the proceeding in compliance
with Fis 203.03.
(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. #1670, eff l1-20-80; ss by #2079, eff 7-5-82;
ss by #2839, eff 8-31-84; ss by #4856, eff 7-3-90; ss by #6276, INTERIM, eff
6-26-96, EXPIRED: 10-24-96
New. #7382, eff 10-25-00, EXPIRED: 10-25-08
New. #9332, INTERIM, eff 11-27-08, EXPIRED:
5-26-09
New. #9636-A,
eff 1-12-10
Fis 204.03 Delivery of Documents.
(a)
Copies of all petitions, motions, exhibits, memoranda, or other
documents filed by any party to a proceeding governed by these rules shall be
delivered by that party to all other parties to the proceeding.
(b)
All notices, orders, decisions or other documents issued by the
presiding officer or 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. #7382, eff
10-25-00, EXPIRED: 10-25-08
New. #9332, INTERIM, eff 11-27-08, EXPIRED:
5-26-09
New.
#9636-A, eff 1-12-10
PART
Fis 205 TIME PERIODS
Fis 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. #7382, eff
10-25-00, EXPIRED: 10-25-08
New. #9332, INTERIM, eff 11-27-08, EXPIRED:
5-26-09
New.
#9636-A, eff 1-12-10
PART
Fis 206 MOTIONS
Fis 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. #7382, eff
10-25-00, EXPIRED: 10-25-08
New. #9332, INTERIM, eff 11-27-08, EXPIRED:
5-26-09
New.
#9636-A, eff 1-12-10
PART
Fis 207 NOTICE OF HEARING; APPEARANCES;
PRE-HEARING CONFERENCES
Fis 207.01 Commencement of Hearing. A hearing shall be commenced by an order of the
department giving notice to the parties as required by Fis 207.03.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New. #9332, INTERIM, eff 11-27-08, EXPIRED:
5-26-09
New.
#9636-A, eff 1-12-10
Fis 207.02 Docket Numbers. A docket number shall be assigned to each
matter to be heard which shall appear on the notice of hearing and all
subsequent orders or decisions of the agency.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 207.03 Notice of Hearing.
(a)
A notice of a hearing issued by the department 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 them at their own expense.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 207.04 Appearances and Representation.
(a)
A party or the party’s representative shall file an appearance that
includes the following information:
(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 daytime address
and telephone number.
Source. #7382, eff 10-25-00,
EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 207.05 Prehearing Conference.
(a)
Any party may request, or the presiding officer shall schedule on his or
her own initiative, a prehearing conference in accordance with RSA 541-A:31, V
to consider:
(1) Offers of settlement;
(2) Simplification 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 by consent of the parties;
(6) Consolidation of examination of witnesses; or
(7) Any other matters which aid in the
disposition of the proceeding.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 207.06 Order of Revocation or Suspension.
(a)
Upon conviction of an offense in Title XVIII for which there is a
license revocation or suspension issued pursuant to RSA 214:19 and excluding
motor vehicle licenses as they relate to RSA 215-A, a notification of the
revocation or suspension shall be mailed by the department to the party as a
confirmation of the revocation or suspension.
(b)
The letter shall contain the following information:
(1) The date the notice was issued;
(2) The person’s name;
(3) The person’s address;
(4) The license suspended;
(5) The date the suspension becomes effective;
and,
(6) A statement regarding the person’s
opportunity for an administrative hearing.
(c)
A person whose license has been revoked or suspended pursuant to RSA
214:19 may request an administrative hearing.
Such request shall not delay, postpone or otherwise interrupt the
effective date of the suspension.
(d)
Those grounds, upon which the person seeks to have the suspension
rescinded, that are not raised in the request for an administrative hearing
shall be deemed to have been waived.
(e)
If the request is for a hearing, the person shall indicate whether he or
she desires to have the arresting law enforcement officer present at the
hearing. Failure to so indicate shall
mean that the person does not desire to have the law enforcement officer
present.
(f)
Upon receipt of the copy of the request for an administrative hearing,
the law enforcement officer may submit to the department any statements,
reports or other evidence which he or she wants a hearings examiner to consider
during the hearing.
(g)
Requests that do not meet the conditions of Fis 204 or this part shall
be deemed to be incomplete and shall be returned to the person with an
explanation. Persons may resubmit the
request as long as it is received by the department within the original 30 days
from the date of service of the notice of suspension. The department shall deny in writing any
untimely requests.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
PART
Fis 208 ROLES OF DEPARTMENT STAFF AND COMPLAINANTS
Fis 208.01 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. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 208.02 Role of Complainants in Enforcement or
Disciplinary Hearings. Unless called
as a witness or granted party or intervenor status, a person who initiates an
adjudicative proceeding by complaining to the department about the conduct of
person who becomes a party shall have no role in any enforcement or
disciplinary hearing.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
PART
Fis 209 INTERVENTION
Fis 209.01 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 proceeding or that the non-party qualifies as an intervener
under any provision of law.
(b)
If the presiding officer determines that such intervention would be in
the interests of justice and would not impair the orderly and prompt conduct of
the hearing, he or she shall grant the motion for intervention.
(c)
Except as limited by the presiding officer under RSA 541-A:32, III, an
intervener shall be entitled to participate in a hearing as a party.
Source. #7382, eff 10-25-00,
EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
PART
Fis 210 POSTPONEMENT REQUESTS AND
FAILURE TO ATTEND HEARING
Fis 210.01 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. #7382, eff 10-25-00,
EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 210.02 Failure to Attend Hearing.
(a)
If any party to whom notice has been given in accordance with Fis 207.03
fails to attend a hearing, the presiding officer shall declare that party to be
in default.
(b)
The presiding officer shall either:
(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. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
PART
Fis 211 REQUESTS FOR INFORMATION OR
DOCUMENTS
Fis 211.01 Voluntary Production of
(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 Fis 211.02.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 211.02 Motions to Compel Production of
(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. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 211.03 Mandatory Pre-Hearing Disclosure of
Witnesses and Exhibits. At least 5
working 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. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
PART
Fis 212 RECORD, PROOF, EVIDENCE AND
DECISIONS
Fis 212.01 Record of the Hearing.
(a)
The department 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 department
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. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 212.02 Standard and Burden of Proof. The party asserting a proposition shall bear
the burden of proving the truth of the proposition by a preponderance of the
evidence.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 212.03 Testimony; Order of Proceeding.
(a)
Any person offering testimony, evidence or arguments shall state for the
record his or her name, and role in the proceeding. If the person is representing another person,
the person being represented shall also be identified.
(b)
Testimony shall be offered in the following order:
(1) The party or parties bearing the burden of
proof and such witnesses as the party may call; and
(2) The party or parties opposing the party who
bears the overall burden of proof and such witnesses as the party may call.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 212.04 Evidence.
(a)
Receipt of evidence shall be governed by the provisions of RSA 541-A:33.
(b)
All documents, materials and objects offered as exhibits shall be
admitted into evidence unless excluded by the presiding officer as irrelevant,
immaterial, unduly repetitious or legally privileged.
(c)
All objections to the admissibility of evidence shall be stated as early
as possible in the hearing, but not later than the time when the evidence is
offered.
(d)
Transcripts of testimony and documents or other materials, admitted into
evidence shall be public records except to the extent 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. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 212.05 Proposed Findings of Fact and Conclusions
of Law.
(a)
Any party may submit proposed findings of fact and conclusions of law to
the presiding officer prior to or at the hearing.
(b)
Upon request of any party, or if the presiding officer determines that
proposed findings of fact and conclusions of law would serve to clarify the
issues presented at the hearing, the presiding officer shall specify a date
after the hearing for the submission of proposed findings of fact and
conclusions of law.
(c)
In any case where proposed findings of fact and conclusions of law are
submitted, the decision shall include rulings on the proposals.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 212.06 Closing the Record.
(a)
After the conclusion of the hearing, the record shall be closed and no
other evidence shall be received into the record, except as allowed by (b)
below and Fis 212.08.
(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. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 212.07 Reopening the Record. At any time prior to the issuance of the
decision on the merits, the presiding officer, on the presiding officer’s own
initiative or on the motion of any party, shall reopen the record to receive
relevant, material and non-duplicative testimony, evidence or arguments not
previously received, if the presiding officer determines that such testimony,
evidence or arguments are necessary to a full and fair consideration of the
issues to be decided.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 212.08 Decisions.
(a)
The executive director shall not participate in making a decision unless
he or she personally heard the testimony in the case, unless the matter’s
disposition does not depend on the credibility of any witness and the record
provides a reasonable basis for evaluating the testimony.
(b)
If a presiding officer has been delegated the authority to conduct a
hearing in the absence of executive director who is to render a final decision,
the presiding officer shall submit to the department a written proposal for
decision, which shall contain a statement of the reasons for the decision and
findings of fact and rulings of law necessary to the proposed decision.
(c)
If a proposal for decision in a matter not personally heard by the
executive director is adverse to a party to the proceeding other than the
department itself, the department 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 executive director.
(d)
A proposal for decision shall become a final decision upon its approval
by the executive director .
(e)
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. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
PART
Fis 213 MOTION FOR REHEARING
Fis 213.01 Purpose. The rules in this part are intended to supplement any statutory provisions, including RSA 541, that require or allow a person to request a rehearing of a decision of the department prior to appealing the decision.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 213.02 Applicability. The rules in this part shall apply whenever
any person has a right under applicable law to request a rehearing of a
decision prior to filing an appeal of the decision with the court having
appellate jurisdiction.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New. #9332, INTERIM, eff 11-27-08, EXPIRED:
5-26-09
New. #9636-A,
eff 1-12-10
Fis 213.03 Filing and Content of Motion.
(a)
A motion for rehearing shall be filed within 30 days of the date of the
department 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. Or illegal in respect to jurisdiction,
authority or observance of the law;
c. An abuse of discretion;
d. Or 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. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 213.04 Standard for Granting Motion for Rehearing.
(a)
A motion for rehearing in a case subject to appeal under RSA 541 shall
be granted if it demonstrates that the department’s decision is unlawful,
unjust or unreasonable.
(b)
A motion for rehearing in a case subject to appeal by petition for writ
of certiorari shall be granted if it demonstrates that the department’s
decision is illegal in respect to jurisdiction, authority or observance of law,
an abuse of discretion or arbitrary, unreasonable or capricious.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
Fis 213.05 Decision on Motion for Rehearing. The department shall grant or deny a motion
for rehearing, or suspend the order or decision pending further consideration
within 10 days of the filing of the motion for rehearing.
Source. #7382, eff
10-25-00, EXPIRED: 10-25-08
New.
#9332, INTERIM, eff 11-27-08, EXPIRED: 5-26-09
New.
#9636-A, eff 1-12-10
PART
Fis 214 RULEMAKING PETITIONS
Fis 214.01 Petitions to Department.
(a)
Petitions from any persons requesting adoption, amendment or repeal of a
rule shall be received and disposed of in the following manner:
(1)
Petitions shall be submitted to the executive director by letter typed
or printed legibly and include the following information:
a.
The date of the petitioning, the petitioner's name, address and
telephone number;
b.
The name and address of any organization petitioner represents;
c.
A citation to the rule and its provisions with a specification of any
changes desired, if repeal or amendment is sought; or the text of the proposed
rule if adoption is sought;
d.
A complete statement of the petitioner's reasons in support of the
requested action; and
e.
Petitioner shall sign the petition.
(2)
If the executive director determines that any petition is deficient in
any respect she or he shall, within 10 working days of receipt of said
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, or amended petition, for
rulemaking, the executive director shall take one of the following actions:
a.
Initiate the requested rulemaking procedures, in accordance with RSA
541-A:3; or
b.
Deny the petition, in writing, stating the reasons for denial.
Source. #9541, INTERIM, eff 9-10-09, EXPIRES: 3-9-10;
ss by #9636-A, eff 1-12-10
PART
Fis 215 RULEMAKING HEARINGS
Fis
215.01 Rulemaking Hearing.
(a) The executive director or designee, acting as
the presiding officer, shall open an oral public hearing by describing in
general terms the purpose of the hearing and procedures governing its conduct.
(b) If the purpose of the hearing is to provide
information to the public, the presiding officer or such other person as the
presiding officer designates shall then present such information.
(c) After the opening statement and presentation
of information, if any, the presiding officer shall open the hearing to receive
(d) Any individual wishing to submit exhibits or
written testimony at an oral public hearing shall do so to the presiding
officer, provided the individual signs and dates such testimony or exhibit(s).
(e) The presiding officer shall recognize each
individual to present his or her testimony.
Any individual testifying at an oral public hearing shall state his or
her name, city or town of residence and whom he or she represents, if anyone,
to the presiding officer.
(f) Individuals testifying shall direct his or her testimony to the presiding officer.
(g) The presiding officer shall:
(1)
Refuse to recognize for speaking or revoke the recognition of any person
who:
a.
Speaks or acts in an abusive or disruptive manner;
b.
Fails to keep
c.
Restates more than once what he or she has already stated; and
(2)
Set time limits on testimony, if necessary, to allow all the opportunity
to speak a first time.
(h) The presiding officer shall close the oral
public hearing when he or she determines that no one has further questions or
(i) For rulemaking hearings, the record shall
remain open for written
Source. #9636-A,
eff 1-12-10
PART
Fis 216 DECLARATORY RULING PETITIONS
Fis 216.01 Declaratory Ruling Petitions.
(a)
Petitions from persons requesting a declaratory ruling as to the
applicability of any statutory provisions or rules administered by the
department, shall be received and disposed of in the following manner:
(1)
Petitions shall be submitted in the form specified in Fis 215.01(a)(1);
(2)
Petitions shall specifically identify the statutory provision or rule
for which the declaratory ruling is sought;
(3)
Petitions shall state the specific question or claim, with reasons in
support thereof, as to the applicability of said statute or rule; and
(4)
If the executive director determines that any petition is deficient in
any respect, he or she shall, within 10 working days of receipt of said
petition, notify the petitioner, in writing, of the specific deficiencies and
allow the petitioner to amend the petition.
(5)
The executive director shall respond to a petition or amended petition
for a declaratory ruling in one of the following ways:
a.
Issue a declaratory ruling responsive to the petition within 20 working
days of receipt; or
b.
Request the opinion of the attorney general within 10 working days of
receipt, and issue a responsive declaratory ruling within 10 working days of
receipt of the attorney general's reply.
Source. #9636-A,
eff 1-12-10
PART
Fis 217 EXPLANATION OF A RULE
Fis 217.01 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 form; and
(2) An explanation of why the adopting authority
overruled the arguments and considerations against the rule.
Source. #9636-B, eff 1-12-10
APPENDIX
|
Rule(s) |
State Statute (RSA) |
Federal Statute
|
Federal Regulation |
|
Fis 202.01 |
RSA 541-A:29-39 |
|
|
|
Fis 203.01 |
RSA 541-A:29-32 |
|
|
|
Fis 203.02 |
RSA541-A:30-a, III (k); RSA 541-A:36 |
|
|
|
Fis 203.03 |
RSA 541-A:22, IV; RSA 541-A:30-a, III (j) |
|
|
|
Fis 204.01 |
RSA 541-A:29-35; RSA 541-A:30-a, III (a) |
|
|
|
Fis 204.02 |
RSA 541-A:29-35; RSA 541-A:30-a, III (a) |
|
|
|
Fis 204.03 |
RSA 541-A:29-35; RSA 541-A:30-a, III (a) |
|
|
|
Fis 205.01 |
RSA 541-A:29-35; RSA 541-A:30-a, III (f) |
|
|
|
Fis 206.01 |
RSA 541-A:29-35; RSA 541-A:30-a, III (a) |
|
|
|
Fis 207.01 |
RSA 541-A:31 |
|
|
|
Fis 207.02 |
RSA 541-A:31, I, II |
|
|
|
Fis 207.03 |
RSA 541-A:31, III |
|
|
|
Fis 207.04 |
RSA 541-A:30-a, III (b) |
|
|
|
Fis 207.05 |
RSA 541-A:31, V |
|
|
|
Fis 207.06 |
RSA 214:19-a |
|
|
|
Fis 208.01 |
RSA 541-A:30-a, III (g) |
|
|
|
Fis 208.02 |
RSA 541-A:30-a, III (g) |
|
|
|
Fis 209.01 |
RSA 541-A:30-a, III (g); RSA 541-A:32 |
|
|
|
Fis 210.01 |
RSA 541-A:30-a, III (h) |
|
|
|
Fis 210.02 |
RSA 541-A:29-39 |
|
|
|
Fis 211.01 |
RSA 541-A:30-a, III (c) |
|
|
|
Fis 211.02 |
RSA 541-A:30-a, III (c) |
|
|
|
Fis 211.03 |
RSA 541-A:30-a, III (c) |
|
|
|
Fis 212.01 |
RSA 541-A:31, VI |
|
|
|
Fis 212.02 |
RSA 541-A:30-a, III (e) |
|
|
|
Fis 212.03 |
RSA 541-A:33 |
|
|
|
Fis 212.04 |
RSA 541-A:33 |
|
|
|
Fis 212.05 |
RSA 541-A:31, VI (e); RSA 541-A:35 |
|
|
|
Fis 212.06 |
RSA 541-A:31; RSA 541-A:33 |
|
|
|
Fis 212.07 |
RSA 541-A:31; RSA 541-A:33; RSA 541-A:30-a, III (i) |
|
|
|
Fis 212.08 |
RSA 541-A:31; 541-A:33; 541-A:30-a, III (e) |
|
|
|
Fis 213.01 |
RSA 541 |
|
|
|
Fis 213.02 |
RSA 541 |
|
|
|
Fis 213.03 |
RSA 541:3 |
|
|
|
Fis 213.04 |
RSA 541:4 |
|
|
|
Fis 214.01 |
RSA 541:4 |
|
|
|
Fis 215.01 |
RSA 541-A:16 |
|
|
|
Fis 216.01 |
RSA 541-A:16 |
|
|
|
Fis 217.01 |
RSA 541-A:16 |
|
|