CHAPTER Tra 200  RULES OF PRACTICE AND PROCEDURE

 

Statutory Authority:  RSA 21-L:4 (V); RSA 21-L:12; RSA 21-L:12-a; RSA 422:40, RSA 373:2

 

PART Tra 201  PURPOSE AND APPLICABILITY

 

          Tra 201.01  Purpose.  The purpose of this chapter is to provide rules of practice and procedure for proceedings involving members of the public.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 201.02  Scope.

 

          (a)  This chapter shall provide rules of practice and procedure for:

 

(1)  The conduct of adjudicative hearings in contested cases;

 

(2)  The conduct of nonadjudicative hearings for:

 

a.  Rulemaking, or

 

b.  Administration of programs within the department's jurisdiction;

 

(3)  The issuance of declaratory rulings; and

 

(4)  Determining whether to grant or deny petitions for rulemaking.

 

          (b)  The model rules specified in RSA 541-A:30-a shall apply to adjudicative hearings conducted by the department only to the extent that these rules do not address a practice or procedure addressed in the model rules.  A rule adopted by this chapter that addresses a specific procedure shall control that procedure, and the model rule shall not apply even if the rule adopted in this chapter conflicts with, is narrower than, or is broader than the model rules.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 201.03  Definitions.

 

          (a)  "Commissioner" means the commissioner of the New Hampshire department of transportation.

 

          (b)  "Department" means the New Hampshire department of transportation.

 

          (c)  "Ex parte communication" means the transmittal of data or argument, by a party or at the request of a party, to or from an officer or employee of the department assigned to render a decision or make findings of fact and conclusions of law concerning the merits of the subject matter in an adjudicative proceeding without prior notice to all parties.

 

          (d)  "File" means to place a document in the actual possession of the department.

 

          (e)  "Hearing" means the process by which the parties present evidence, data, and/or argument by methods appropriate to the circumstances and includes, but is not limited to, conducting trial-type evidentiary procedures, directing the filing of exhibits, affidavits, memoranda, or briefs, directing the delivery of oral argument, or any combination of the above or similar procedures.

 

          (f)  "Nonadjudicative proceeding" means a formal or informal search for data by the department concerning matters within its jurisdiction, including rulemaking, the result of which is other than a determination of a person's legal rights, duties or privileges.

 

          (g)  "Order" means a document issued by the department requiring a person to do or abstain from doing something, or determining a person's rights to a license or some other property or privilege.

 

          (h)  "Presiding officer" means an individual to whom the commissioner has delegated the authority to act as presiding officer over a departmental proceeding.

 

          (i)  “Rulemaking" means the process by which the department proposes and adopts an administrative rule.

 

Source.  #7927-A, eff 7-26-03

 

PART Tra 202  ADJUDICATIVE PROCEEDINGS

 

          Tra 202.01  Presiding Officer.

 

          (a)  The commissioner shall appoint from among the employees of the department a person to act as presiding officer at adjudicative proceedings. 

 

          (b)  The presiding officer shall:

 

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

 

(2)  Seek to facilitate an informal resolution of an appeal;

 

(3)  Administer oaths and affirmations;

 

(4)  Personally receive all evidence offered at all hearings conducted in a contested case;

 

(5)  Rule on requests to exclude irrelevant, immaterial or unduly repetitious evidence;

 

(6)  Rule on procedural requests, including adjournments or postponements;

 

(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 law to conduct the hearing and complete the record in a fair and timely manner; and

 

(9)  Draft a written decision as a recommendation to the commissioner for disposition of the matter.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.02  Withdrawal of Presiding Officer.

 

          (a)  The presiding officer shall withdraw from a hearing if good cause is shown to exist.

 

          (b)  Good cause shall exist if the presiding officer:

 

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

 

(2)  Has made statements or engaged in behavior which objectively demonstrates:

 

a.  Bias against a party; or

 

b.  That he or she has prejudged the facts of a case; or

 

(3)  Personally believes for any other reason that:

 

a.  He or she cannot fairly judge the facts of a case; or

 

b.  Continuing to serve as presiding officer would create the appearance of an impropriety or a conflict of interest.

 

          (c)  The presiding officer shall not be required to withdraw from a case based upon:

 

(1)  General knowledge of the issues presented in a case that is available to the public; or

 

(2)  Previous acquaintance or contact that is not related to the adjudicative proceeding with a party, a witness, or counsel for a party. 

 

          (d)  In the event that the presiding officer is absent, or must be excused from a particular proceeding, the commissioner shall appoint an acting presiding officer to preside in such proceedings.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.03  Waiver or Suspension of Rules by Presiding Officer.

 

          (a)  Upon the motion of any party, or upon his or her own initiative, and following notice and an opportunity for hearing to all affected persons, the presiding officer may suspend or waive any requirement or limitation imposed by this chapter when:

 

(1)  The proposed waiver or suspension appears to be lawful; and

 

(2)  The proposed waiver or suspension would be more likely to promote the fair, accurate and efficient resolution of issues pending before the department than would adherence to the rule or procedure.

 

Source.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.04  Standards of Conduct for the Presiding Officer.

 

          (a)  The presiding officer shall perform all assigned duties impartially.

 

          (b)  The presiding officer shall perform all duties diligently, to the end that departmental hearings are conducted with reasonable dispatch and promptness.

 

          (c)  The presiding officer shall know the law and the rules governing the department in general and the proceeding in particular.

 

          (d)  The presiding officer shall maintain order and decorum in proceedings before the department.

 

          (e)  The presiding officer shall be patient and courteous to all persons who participate in the hearings process.

 

          (f)  The presiding officer shall not engage in ex parte communications with participants in a hearing, other than the following:

 

(1)  Communication regarding scheduling of hearings;

 

(2)  Requests for copies of rules, or other documents; or

 

(3)  Other procedural matters not dealing with the substantive issues presented by the proceeding.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.05  Documents.

 

          (a)  Any document that is submitted for filing that is not in compliance with these rules shall be returned to the person seeking to file the document.

 

          (b)  A document shall be considered filed with the department when it is actually received by the office of the commissioner in original paper format, computer readable format, or facsimile format in conformance with the requirements of this part.

 

          (c)  Copies of all documents issued by the presiding officer or filed by any party to a proceeding governed by these rules shall be delivered to all other parties to the proceeding.

 

          (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.

 

          (e)  These rules shall not limit the ability of parties to share documents between themselves via any mutually agreeable format.

 

          (f)  All documents filed under this part as original paper format shall:

 

(1)  Be printed or typewritten on durable white paper, sized 8- 1/2" by 11";

 

(2)  Be double-spaced, with the exception of quotations, which shall be single-spaced and indented;

 

(3)  Be printed on only one side of the page;

 

(4)  Contain the title of the proceeding, and docket number once assigned;

 

(5)  Be dated and signed in ink;

 

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

 

(7)  Include a statement certifying that a copy of the document has been delivered to all parties to the proceeding by:

 

a.  Personal delivery;

 

b.  Depositing a copy of the document, postage prepaid, in the United States mail, addressed to the last address given to the agency by the party;

 

c.  Facsimile; or

 

d.  A computer format readable by the recipient.

 

          (g)  All documents meeting the format requirements of original paper format may be filed via facsimile machine to the office of the commissioner, at the telephone number of 603-271-3914.

 

          (h)  All documents filed upon computer readable media or via electronic mail shall meet the following standards:

 

(1)  The media and the information stored on the media shall be readable using machines and software readily available in the department;

 

(2)  A copy of the media and the information contained thereon shall be simultaneously made available to all other parties in the proceeding; and

 

(3)  The party filing the media shall simultaneously file a paper format or facsimile format certification with the office of the commissioner listing:

 

a.  The information contained on the media, and

 

b.  The hardware type and software type required to access the information.

 

          (i)  If a member of the public or another party in the proceeding requests that paper based copies of the information be filed or produced for inspection, the party filing the computer readable format information shall, at its sole expense,  make paper based copies of the information available within a reasonable time.

 

          (j)  If a document in computer readable format is not made available in paper based format as provided above, the presiding officer shall, after notice and an opportunity to be heard, provide relief to the person who did not receive the document including, but not limited to:

 

(1)  An enlargement of time to respond to the document;

 

(2)  Denial of the relief requested in the document; or

 

(3)  Exclusion of the document from the record.

 

          (k)  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.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.06  Computation of Time.

 

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

 

          (b)  Computation of any period of time referred to in these rules shall begin with the first day following the day on which the act which initiates such period of time occurs, 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 state legal holiday, then the time period shall be extended to include the first business day following the Saturday, Sunday or state legal holiday.

 

          (d)  All orders, decisions, notices, or other written correspondence or documents issued by or at the direction of the department shall be deemed to have been issued on the date noted on the document.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.07  Pleadings.

 

          (a)  The initial request for a hearing in an adjudicative proceeding shall be termed a petition, received from a petitioner.

 

          (b)  A petition shall contain the following information:

 

(1)  The name and address of the petitioner, which can be the department;

 

(2)  The name and address of the petitioner's representative, if any;

 

(3)  A concise statement of the fact, event, or provision of law which causes the petitioner to request the department to act; and

 

(4)  The action that the petitioner wishes the department to take.

 

          (c)  All parties with an interest adverse to the petitioner shall be termed respondents, and shall be deemed to generally deny the allegations of the petitioner.

 

          (d)  If a respondent elects to respond to the petition, or request alternative relief, the pleading shall be termed an answer and contain the following information:

 

(1)  The name and address of the respondent;

 

(2)  The name and address of the respondent's representative, if any;

 

(3)  A statement admitting, denying, or claiming to have insufficient information to respond to each and every allegation set forth in the petition;

 

(4)  A concise statement of each and every fact or provision of law which causes the respondent to request the department not to act, or to act differently from the manner requested by the petitioner;

 

(5)  The identification of any statutes, rules, orders, or other authority, not identified in the petition, bearing upon the subject matter of the petition; and

 

(6)  The action that the respondent wishes the department to take.

 

          (e)  Unless otherwise provided by orders of the presiding officer, an answer shall be filed within 30 days after delivery of the initial notice to the parties.

 

          (f)  The petitioner shall be presumed to deny all allegations in the answer and no responsive pleading is required.

 

          (g)  Any further request for relief filed by any party shall be termed a motion.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.08  Order of Notice.

 

          (a)  Upon receipt of a petition, the presiding officer shall assign the proceeding a unique docket number.

 

          (b)  The presiding officer shall issue an order of notice for a hearing, containing the following information:

 

(1)  Identification of the parties to the proceeding as of the date of the order;

 

(2)  A short statement of the subject matter identified in the request for hearing;

 

(3)  The statutory authority for the proceeding, and any applicable department rules;

 

(4)  Whether the hearing will be a prehearing conference, hearing on motions, or a final hearing; 

 

(5)  The name of the presiding officer for the proceeding;

 

(6)  The date, time, and place set for the hearing; and

 

(7)  A statement that each party has a right to have an attorney represent them at their own expense;

 

          (c)  The order of notice shall be delivered to:

 

(1)  All known parties to the proceeding by certified mail;

 

(2)  Any affected municipality by ordinary mail; and

 

(3)  The office of the attorney general by ordinary mail or by electronic mail. 

 

          (d)  Unless otherwise provided by statute, the date and time for the initial hearing in a proceeding shall be set at least 10 days from the date of the notice, unless the parties agree to a longer or shorter period.

 

          (e)  All hearings shall be held at the John O. Morton Building, 7 Hazen Drive, Concord, NH unless the presiding officer shall for good cause, after motion, notice and opportunity to heard, set a different location for the conduct of some or all of the proceeding.

 

          (f)  Good cause shall include:

 

(1)  The need to conduct a view of a specific location relevant to a hearing;

 

(2)  The convenience of the parties, attorneys, public officials, or witnesses to a proceeding; or

 

(3)  Any other factor that would suggest that time or resources would be conserved if the hearing were held at an alternate location.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.09  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.

 

          (c)  Good cause shall include:

 

(1)  The unavailability of parties, witnesses or attorneys necessary to conduct the hearing;

 

(2)  The likelihood that a hearing will not be necessary because the parties have reached a settlement; or

 

(3)  Any other circumstance where the presiding officer finds that a postponement would assist in resolving the case fairly.

 

          (d)  The presiding officer shall, as soon as practicable, send a written order of notice to all parties stating the rescheduled date, time and place of the postponed hearing.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.10  Failure to Attend Hearing.

 

          (a)  If any party to whom notice has been given in accordance with these rules fails to attend a hearing, the presiding officer shall note that fact upon the record, and take action as required herein.

 

          (b)  If the party with the burden of proof fails to appear, the presiding officer shall dismiss the case.

 

          (c)  If the party with the burden of proof in the case appears, but the other party fails to appear, the presiding officer shall:

 

(1)  Hear the testimony and receive the evidence offered by the party, and:

 

(2)  Either:

 

a.  Enter an order for the relief requested if the party meets the burden of proof; or

 

b.  Deny the relief requested if the party fails to meet the burden of proof.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.11  Prehearing Conference.

 

          (a)  The presiding officer shall schedule one or more prehearing conferences upon the request of any party, or whenever it appears warranted by the complexity of issues presented or the need for information sharing between the parties.

 

          (b)  Witnesses or other persons not directly involved in the management of the proceeding  shall not be required to, but may at their option attend the prehearing conference. 

 

          (c)  The parties shall, either in person or through a representative, attend the prehearing conference prepared and authorized to discuss and take action to resolve the following issues:

 

(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;

 

(6)  Consolidation of examination of witnesses;

 

(7)  The exchange of relevant information;

 

(8)  A proposed date for the final hearing;

 

(9)  Whether all necessary parties have been joined;

 

(10)  Whether notice has been provided to all interested parties; and

 

(11)  Any other matters that aid in the disposition of the proceeding.

 

          (d)  Following the prehearing conference, the presiding officer shall issue a written order of decision on the issues discussed in the conference.

 

          (e)  Unless later changed by an additional order, the prehearing conference order shall bind the parties on the matters contained therein during the conduct of the final hearing.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.12  Joinder and Severance.

 

          (a)  Upon the motion of a party, or whenever it appears to the presiding officer that 2 or more proceedings involve substantially similar or related parties or issues, the proceedings shall be joined for hearing, decision, or both.

 

          (b)  Upon motion of a party, or whenever it appears to the presiding officer that prejudice to a party or undue delay can be thereby avoided, the presiding officer shall sever one or more issues or parties, and dispose of those issues or the rights of those parties in another proceeding.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.13  Intervention.

 

          (a)  A person may seek to intervene in a matter pending before the department by filing a motion stating facts demonstrating that the person qualifies as an intervenor pursuant to RSA 541-A:32, or any other provision of law.

 

          (b)  The presiding officer shall grant the motion for intervention if:

 

(1)  The motion states facts demonstrating that the movant’s rights, duties, or other substantial interests might be affected by the proceeding; or

 

(2)The movant qualifies as an intervenor under any provision of law.

 

          (c)  The presiding officer shall grant the motion for intervention if addition of the party:

 

(1)  Is in the interests of justice; and

 

(2)  Will not impair the orderly and prompt conduct of the hearing. 

 

          (d)  An intervenor shall be entitled to participate in a hearing as a full party unless:

 

(1)  The presiding officer finds that the legally recognized interests of the intervenor are limited to less than all of the issues presented in the proceeding;

 

(2)  The intervenor requests to be heard on less than all of the issues presented in the proceeding; or

 

(3)  The presentation of information, or the cross examination of witnesses by the intervenor can be combined with the presentation or cross examination of another intervenor to promote the prompt and orderly conduct of the proceeding.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.14  Appearances.

 

          (a)  Any person named as a petitioner, respondent, or intervenor in an adjudicative proceeding may appear before the department by personal attendance or through the attendance of a representative appointed by the person.

 

          (b)  Any party to an adjudicative proceeding and any person who has filed a pleading in an adjudicative proceeding shall maintain a current address and telephone number on file with the presiding officer until completion of the matter.

 

          (c)  For purposes of (b) above, "completion of the matter" means the date of the final decision on the last appeal taken.

 

          (d)  Notices mailed by first class mail, postage prepaid, to the address on file with the presiding officer shall be presumed to have been received by the party.

 

          (e)  A person may appoint any other adult person to represent him or her in the proceeding.

 

          (f)  Persons other than natural persons shall only be represented by:

 

(1)  An attorney-at-law licensed to practice in New Hampshire; or

 

(2)  Any of the following, if applicable:

 

a.  If a corporation, an officer, director, or shareholder.

 

b.  If a partnership or limited partnership, by a general partner.

 

c.  If a limited liability company by a manager or member.

 

d.  If a trust, by a trustee or person representing a majority of the beneficial interests of the trust.

 

          (g)  The department of transportation shall appear in a proceeding through:

 

(1)  Staff responsible for the substantive area under consideration;

 

(2)  A representative of the department of justice, or;

 

(3)  By both agency staff and the department of justice acting together.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.15  Disqualification of a Representative.

 

          (a)  An individual shall be prohibited from acting as a representative before the department in the pending proceeding if, after notice and an opportunity for hearing, the presiding officer finds that the individual has engaged in misconduct concerning the hearing. 

 

          (b)  A finding of misconduct shall be based on acts or failures to act which result in one or more of the following consequences in a pending proceeding:

 

(1)  Disruption of the orderly conduct of procedure; or

 

(2)  Prejudice to the substantive rights of other parties.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.16  Motions.

 

          (a)  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 relied upon in support of the motion; and

 

(4)  The facts claimed to constitute the grounds permitting the relief requested by the motion.

 

          (b)  Objections to motions shall state clearly and concisely:

 

(1)  Whether the party filing the objection admits, denies, or has insufficient information to admit or deny each and every allegation of fact asserted in the motion;

 

(2)  Any defense relied upon by the party filing the objection;

 

(3)  The action which the party filing the objection wishes the presiding officer to take on the motion; and

 

(4)  The statute, rule, order, or other authority relied upon in making the objection.

 

          (c)  Unless otherwise provided by an order of the presiding officer, objections to motions shall be filed within 10 days after the party receives a copy of the motion.

 

          (d)  Failure to object to a motion within the time allowed shall be deemed an admission of the facts alleged in the motion, and a waiver of objection to the relief sought.

 

          (e)  All motions shall be decided upon the documents submitted, unless oral argument on the motion or the objection thereto is requested by the presiding officer, or by a party within the text of the pleading.

 

          (f)  The presiding officer shall not rule upon any motion prior to providing the other parties a full opportunity to object and provide any additional information which may be relevant to a fair and just consideration of the issue.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 202.17  Prehearing Exchange of Information.

 

          (a)  Unless a different time is set forth in a prehearing conference order, one week prior to the commencement of a hearing the parties shall exchange the following:

 

(1)  A list identifying each witness expected to be called at the hearing with a brief description of that witness's testimony;

 

(2)  A list of all exhibits expected to be presented at the hearing; and

 

(3)  Any requests for changes to the procedures specified in these rules or other matters concerning the conduct of the hearing.

 

          (b)  If a party wishes to obtain information directly related to the matter from another party, the requesting party shall request the information in writing.

 

          (c)  A party receiving a request for information pursuant to (b), above, shall respond to the request within 10 days by:

 

(1)  Providing the information requested;

 

(2)  Explaining in writing that the information will not be provided because the party believes it to be:

 

a.  Confidential;

 

b.  Privileged;

 

c.  Not directly related to the matter at hand; or

 

d.  Excessively burdensome to produce; or

 

(3)  Identifying a date and time when the information can be made available for inspection, which date and time shall be sufficiently in advance of the hearing on the matter that the information can be reasonably reviewed prior to the hearing.

 

          (d)  A party who has requested information that is not provided may, by motion, request the presiding officer to compel the party of whom the information was requested to provide the information.

 

          (e)  No motion to compel an exchange of information shall be accepted within 5 days before a scheduled hearing unless the presiding officer determines that the party requesting the information could not by the exercise of reasonable diligence have discovered the existence of the information within the time ordinarily allowed to request the information.

 

          (f)  Any party who objects to the disclosure of information which is sought to be exchanged may request by motion, or objection to a motion to compel, an order which

 

(1)  Protects the information from disclosure or redisclosure;

 

(2)  Limits the scope of the information to be exchanged; or

 

(3)  Otherwise restricts the use of information by the party to who disclosed.

 

          (g)  If, after notice and an opportunity to be heard, the presiding officer finds that a party has failed to exchange information in accordance with orders issued in the proceeding, appropriate sanctions shall be imposed against the party in violation of the order, including:

 

(1)  Delaying or adjourning the hearing until the information is provided;

 

(2)  Ruling that such information shall not be admissible at the hearing on the matter or in any subsequent proceeding on the matter, unless the information is already a matter of public record; or

 

(3)  Noting the facts upon the record, and entering a decision on the merits finding in favor of the requesting party, and adverse to the party in violation.

 

Source.  #7927-A, eff 7-26-03

 

          Tra 202.18  Conduct Of Hearings.

 

          (a)  Each witness called to provide testimony shall first be administered an oath or affirmation by the presiding officer that the testimony provided in the hearing shall be the truth.

 

          (b)  The formal rules of evidence shall not apply in adjudicative proceedings.

 

          (c)  Each party shall have the opportunity to present information by means of any or all of the following techniques:

 

(1)  Testimony of live witnesses;

 

(2)  Testimony of expert witnesses;

 

(3)  Demonstrative or documentary evidence; 

 

(4)  Cross examination of adverse witnesses;

 

(5)  An opening or closing statement upon the record; and

 

(6)  A view of property by the presiding officer.

 

          (c)  Exhibits shall be sequentially identified and numbered in a single series without being designated as for the petitioner or respondent. 

 

          (d)  At the time the exhibit is marked for identification, the party offering the exhibit shall provide an original to the presiding officer, and a copy for each party.

 

          (e)  No reference shall be made to an exhibit, other than to mark it for identification, before the presiding officer has accepted it into evidence.

 

          (f)  The presiding officer shall exclude information that is irrelevant, immaterial, or unduly repetitious.

 

          (g)  The presiding officer shall observe matters of privilege recognized by law.

 

          (h)  If there is a factual dispute in which the credibility of testimony might determine the outcome of the hearing, the presiding officer shall sequester witnesses until they are called to testify, provided that each party shall have the right to have one person present at all times during the hearing process.

 

          (i)  Official notice of facts may be taken pursuant to RSA 541-A:33,V.

 

Source.  #7927-A, eff 7-26-03

 

          Tra 202.19  Standard and Burden of Proof.

 

          (a)  A party requesting relief from the department shall bear the burden of producing evidence to show, as a matter of law, an entitlement to such relief.

 

          (b)  A party asserting a fact shall bear the burden of proving the truth of the fact by a preponderance of the evidence, meaning proof that the proposition is more likely true than not true.

 

Source.  #7927-A, eff 7-26-03

 

          Tra 202.20  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 final hearing.

 

          (b)  Upon motion, or by agreement of the parties, 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 written decision of the presiding officer shall include rulings on the proposals.

 

Source.  #7927-A, eff 7-26-03

 

          Tra 202.21  Closing the Record.

 

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

 

          (b)  The presiding officer shall keep the record open for the filing of specified evidence not available at a hearing if:

 

(1)  The other parties to the hearing have no objection, or

 

(2)  The presiding officer determines that such evidence is necessary to a full consideration of the issues raised at the hearing.

 

Source.  #7927-A, eff 7-26-03

 

          Tra 202.22  Reopening the Record.

 

          (a)  Upon the motion of any party or upon his or her own initiative, the presiding officer shall reopen the record if:

 

(1)  The action is taken prior to the issuance of the decision on the merits;

 

(2)  The presiding officer determines that additional testimony, evidence or arguments are necessary to a full and fair consideration of the issues to be decided; and

 

(3)  The information received is relevant, material and non-duplicative of the testimony, evidence or arguments already part of the record.

 

Source.  #7927-A, eff 7-26-03

 

          Tra 202.23  Settlements.

 

          (a)  At any time prior to the entry of a decision on the merits, all parties may agree to the terms and conditions of a settlement.

 

          (b)  No settlement agreement shall become final and binding until a document containing the terms of the agreement is:

 

(1)  Signed by each party;

 

(2)  Each party receives a copy of the fully executed document; 

 

(3)  The executed document is filed with the presiding officer;

 

(4)  The presiding officer finds that the terms of the proposed settlement are consistent with applicable law; and

 

(5)  The presiding officer incorporates the settlement agreement into an order.

 

          (c)  A settlement agreement that is incorporated into a final order shall conclude the proceeding, and constitute a waiver of the rights of any party to further hearing or appeal in the matter.

 

          (d)  If the presiding officer finds that the terms of the proposed settlement are not consistent with applicable law, and refuses to incorporate the proposed settlement agreement into a final order, the proceeding shall continue until a final order is rendered, subject to the right of any party to file a further appeal as provided by statute.

 

Source.  #7927-A, eff 7-26-03

 

          Tra 202.24  Decisions.

 

          (a)  A decision shall be made on the matter only after full consideration of the record, the credibility of the witnesses, and any reasonable inferences that may be drawn therefrom.

 

          (b)  As the presiding officer is a designee of the commissioner, the presiding officer shall submit the record to the commissioner, which contains the following:

 

(1)  The subject of the hearing, including identification of the relevant statute(s) and rule(s);

 

(2)  The names and addresses of all parties to the matter;

 

(3)  All pleadings, evidence and exhibits presented;

 

(4)  The verbatim record of each hearing in the proceeding;

 

(5)  Proposed rulings on any requests for findings of fact and rulings of law submitted by the parties; and

 

(6)  A recommended decision.

 

          (c)  After reviewing the record of the proceedings, the commissioner shall cause a written decision to be prepared, which shall:

 

(1)  Summarize the nature of the proceedings;

 

(2)  State the decision rendered;

 

(3)  State the findings of fact and conclusions of law; and

 

(4)  Advise the parties of such further rights of appeal as may be available under the statute.

 

          (d)  A copy of the decision and order shall be delivered personally or sent to all parties through the United States mails.

 

Source.  #7927-A, eff 7-26-03

 

          Tra 202.25  Clarification.

 

          (a)  Any party may seek, by written motion served upon all parties, clarification of a written decision or order.

 

          (b)  The presiding officer shall, after opportunity for objection, rule on the motion and clarify the decision and order as required to resolve the points raised by the moving party.

 

          (c)  The filing of a timely motion for clarification shall suspend the running of the period for appeal in accordance with RSA 21-L or RSA 541, but shall not suspend the application of the decision and order unless:

 

(1)  R requested by the moving party; and

 

(2)  The presiding officer determines that a suspension of the decision and order will not cause irreparable harm to the interests of the remaining parties.

 

Source.  #7927-A, eff 7-26-03

 

          Tra 202.26  Reconsideration and Rehearing.

 

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

 

          (b)  A motion for reconsideration and rehearing shall:

 

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

 

(2)  Describe how each error causes the department’s decision to be:

 

a. Unjust or unreasonable;

 

b.  Unlawful in respect to jurisdiction, authority or observance of the law; or

 

c.  An unsustainable exercise of discretion.

 

(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.

 

          (c)  A motion for reconsideration and rehearing shall be granted if it demonstrates that the department’s decision is unlawful, unjust or an unsustainable exercise of discretion.

 

          (d)  The filing of a timely motion for reconsideration shall suspend the running of the period for appeal in accordance with RSA 21-L or RSA 541, but shall not suspend the application of the decision and order unless:

 

(1)  Requested by the moving party; and

 

(2)  The presiding officer determines that a suspension of the decision and order will not cause irreparable harm to the interests of the remaining parties.

 

          (e)  If reconsideration is granted, the presiding officer shall enter a written order, which shall stay implementation of the decision, and reopen the proceeding for the consideration of such additional evidence as the parties elect to present.

 

Source.  #7927-A, eff 7-26-03

 

          Tra 202.27  Appeals.

 

          (a)  All appeals from the decision and order issued by the presiding officer shall be directed to:

 

(1)  The transportation appeals board, for cases described in RSA 21-L:15;

 

(2)  The railroad appeals board, for cases described in RSA 21-L:16;

 

(3)  The aviation users advisory board for cases described in RSA 21-L:8, or

 

(4)  A court of competent jurisdiction, for all other cases.

 

          (b)  All appeal documents shall be filed within 30 days of:

 

(1)  Receipt of the original decision and order;

 

(2)  Receipt of a ruling upon a timely filed motion for clarification; or

 

(3)  Receipt of a ruling upon a timely filed motion for reconsideration.

 

Source.  #7927-A, eff 7-26-03

 

          Tra 202.28  Record.

 

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

 

          (b)  Copies of the recording shall be provided to any person upon request and payment of the costs of the tape(s) and staff time to make the copy, or of staff time only if enough blank tapes to copy the hearing tape(s) are submitted with the request.

 

          (c)  If any person desires a transcript of the hearing tape(s), the department shall prepare or cause to be prepared a transcript provided the cost of the transcription is paid in advance by the person(s) requesting the transcript.

 

          (d)  The record shall be retained in accordance with RSA 541-A:30-a,VII.

 

Source.  #7927-A, eff 7-26-03

 

PART Tra 203  RULEMAKING PROCEEDINGS

 

          Tra 203.01  Scope.

 

          (a)  These rules apply to all hearings conducted by the department during rulemaking proceedings pursuant to RSA 541-A.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 203.02  Notice.

 

          (a)  Notice of a public hearing for a rulemaking proceeding shall be provided in accordance with RSA 541-A:6. 

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 203.03  Moderator. 

 

          (a)  The hearing shall be presided over by a moderator, who shall be the commissioner or a designee knowledgeable in the particular subject matter of the proposed rules. 

 

          (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;

 

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

 

(5)  Limit the time for each speaker;

 

(6)  Revoke recognition of a speaker who:

 

a.  Seeks to speak beyond the time limit set by the moderator;

 

b.  Undertakes to make derogatory, or otherwise offensive remarks; or

 

c.  Speaks primarily to issues that are not the subject of the hearing;

 

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

 

(8)  Adjourn the hearing; and

 

Source.  #7927-A, eff 7-26-03

 

          Tra 203.04  Postponements and Continuation.

 

          (a)  The moderator shall postpone a hearing to a later date, time, or place in the event of:

 

(1)  Inclement weather;

 

(2)  Illness or unavoidable absence of the moderator, or other designee of the commissioner; or

 

(3)  A determination by the commissioner that a postponement would serve to increase public participation in the hearing.

 

          (b)  Notice of the new date, time, and place of the hearing shall be provided pursuant to RSA 541-A:11 IV,(d).

 

          (c)  The moderator shall continue a public hearing past its scheduled time for termination if necessary to receive comment from the public.

 

          (d)  Upon request from members of the public, the moderator may extend the time specified for the receipt of written comments, if such extension will serve to improve the quality or quantity of public participation in the hearing.

 

          (e)  Notice of a continuation of a public hearing or written comment period shall be provided pursuant to RSA 541-A:11,III.

 

Source.  #7927-A, eff 7-26-03

 

          Tra 203.05  Media Access.

 

          (a)  Public comment hearings shall be open to all representatives of the media. 

 

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

 

(1)  Assure that the number of media representatives does not cause other citizens to be excluded from the hearing room;

 

(2)  Limit the placement of cameras, lights, equipment and microphones to certain locations in the hearing room; and

 

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

 

Source.  #7927-A, eff 7-26-03

 

          Tra 203.06  Public Participation.

 

          (a)  Any person who desires to submit written testimony at a hearing shall sign and date the document, and provide a copy to the presiding officer.

 

          (b)  Any person who wishes to speak on the issue or issues which are the subject of the hearing shall place his or her name on a speakers' list before the last speaker on the list has finished speaking.

 

          (c)  Except as limited below, all whose names appear on the speakers' list shall be afforded an opportunity to speak at the hearing.

 

(d)  The moderator shall:

 

(1)  Refuse to recognize a person who refuses to give his full name.

 

(2)  Limit the amount of time each speaker may speak to a reasonable time, which shall be determined by considering:

 

a.  The number of people who wish to be heard

 

b.  The time available; and

 

c.  Any limits imposed on the hearing by the facility where the hearing occurs.

 

(3)  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;

 

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

 

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

 

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

 

          (f)  When the moderator determines that no other persons wish to speak, he or she shall close the hearing.

 

          (g)  In the event that the number of speakers who wish to give oral testimony relevant to the issue or issues involved exceed that number which may be heard within a reasonable period of time, the moderator shall continue the proceeding as set forth in Tra 206.04 above.

 

Source.  #7927-A, eff 7-26-03

 

          Tra 203.07  Record.

 

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

 

          (b)  Copies of the recording shall be provided to any person upon request and payment of the costs of the tape(s) and staff time to make the copy, or of staff time only if enough blank tapes to copy the hearing tape(s) are submitted with the request.

 

          (c)  If any person desires a transcript of the hearing tape(s), the department shall prepare or cause to be prepared a transcript, provided the cost of the transcription is paid by the person(s) requesting the transcript.

 

          (d)  The record shall be retained in accordance with RSA 541-A:30-a,VII.

 

Source.  #7927-A, eff 7-26-03

 

PART Tra 204  DECLARATORY RULINGS

 

          Tra 204.01  Scope.  This part shall apply to receipt of petitions for declaratory rulings, disposition of the same, and providing notice of the ruling to the public and the regulated community.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 204.02  Petition. 

 

          (a)  All requests to specify the applicability of a statutory provision, rule, or order of the department to a defined factual situation, a person, or a group of named individuals identified as having a common interest in the outcome shall be deemed a petition for a declaratory ruling.

 

          (b)  The petition shall:

 

(1)  Identify the statute, rule or order involved;

 

(2)  Describe with particularity the question of law which arises in the factual situation applicable to the petitioner; and

 

(3)  Contain all applicable argument, memoranda of law or other materials which the petitioner believes supports the issuance of the proposed ruling;

 

(4)  Contain a specific request for a finding of fact or ruling of law regarding the identified state, rule, or order;

 

(5)  Be signed and dated by the person submitting the same; and

 

(6)  Include an address or other means of communicating the decision on the petition to the person who filed the document.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 204.03  Filing.  A person wishing to file a petition for a declaratory ruling shall file the original and one copy of the petition with the commissioner at:

 

“Office of the Commissioner

NH Department of Transportation

7 Hazen Drive

Concord, NH 03301”

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 204.04  Action on Petition. 

 

          (a)  The commissioner, or a designee, shall provide a copy of the petition as filed to the department of justice for review and comment.

 

          (b)  The commissioner shall provide notice to the public and hold a public comment hearing pursuant to Tra 203, above.

 

          (c)  The commissioner shall issue a written ruling on the petition that clearly and concisely sets forth the determination on the matter, the scope of the ruling, and its applicability to the petitioner or petitioners. 

 

          (d)  When issued, the commissioner shall cause a copy of the declaratory ruling to be published in the rulemaking register pursuant to RSA 541-A, and otherwise be distributed to the public and the regulated community by such method as is most likely to advise those affected by the ruling. 

 

Source.  #7927-A, eff 7-26-03

 

PART Tra 205  RULEMAKING PETITIONS

 

          Tra 205.01  Scope.  This part shall apply to any petition submitted to the commissioner pursuant to RSA 541-A seeking the adoption, amendment, or repeal of a rule.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 205.02  Filing.  A person wishing to file a petition for rulemaking shall file the original and one copy of the petition with the commissioner at:

 

“Office of the Commissioner

NH Department of Transportation

7 Hazen Drive

Concord, NH 03301”

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 205.03  Content of the Petition.

 

          (a)  A person filing a petition for rulemaking shall provide the following information:

 

(1)  The text of the rule or rules which the person seeks to have adopted, amended, or repealed by the commissioner;

 

(2)  A concise statement of the reason why the commissioner should take the requested action upon the proposed text;

 

(3)  The chapter, part, and section of the department’s rules affected by the petition; 

 

(4)  The name and address of the petitioner; and

 

(5)  The place where notices should be mailed, if different from the address provided.

 

          (b)  A petition for rulemaking which does not contain the required information shall be returned to the petitioner without action by the commissioner, without prejudice to the filing of a corrected or updated petition at any time.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-A, eff 7-26-03

 

          Tra 205.04  Processing of the Petition.

 

          (a)  Upon receipt of a petition for rulemaking, the commissioner shall proceed in accordance with RSA 541-A:4.

 

          (b)  The petition shall be granted, and a rulemaking proceeding shall be initiated pursuant to RSA 541-A, if the commissioner finds that the requested action is consistent with state and federal law and policy.

 

Source.  #7927-A, eff 7-26-03

 

PART Tra 206  NONADJUDICATIVE PROCEEDINGS

 

          Tra 206.01  Scope.

 

          (a)  These rules shall apply to all hearings conducted by the department at which public comment is solicited, except adjudicative hearings or layout hearings for roads or bridges.

 

          (b)  If any requirement set by these rules conflicts with an applicable state or federal statute or federal regulation, the requirement of the statute or federal regulation shall control.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-B, eff 7-26-03, EXPIRED: 7-26-11

 

          Tra 206.02  Notice.

 

          (a)  Public comment hearings shall be commenced by advertising the hearing prior to the hearing date in a manner consistent with RSA 91-A, including:

 

(1)  A minimum of one local newspaper, if a local issue;

 

(2)  A newspaper of state-wide circulation if an issue affecting the state in general, or more than one municipality;

 

(3)  The department’s internet website; or

 

(4)  The calendars published by the New Hampshire house of representatives and the New Hampshire senate.

 

          (b)  Pursuant to RSA 236:94, notice of a public hearing for a state junkyard license application shall be published in a newspaper having a circulation within the municipality not less than 7 days before the date of the hearing.

 

          (c)  Notice for public comment hearings shall include:

 

(1)  The date, time and place of the hearing;

 

(2)  A brief description of the issue or issues to be covered;

 

(3)  The name of the person to contact for more information;

 

(4)  The place where a copy of documents or plans to be presented at the hearing may be obtained;

 

(5)  A statement that the record shall be held open for 10 calendar days after the hearing has been concluded for the submission of written materials; and

 

(6)  A statement as to whether continuation of a public comment hearing will be published, as required by statute.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-B, eff 7-26-03, EXPIRED: 7-26-11

 

          Tra 206.03  Moderator.

 

          (a)  The hearing shall be presided over by a moderator, who shall be the commissioner 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;

 

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

 

(5)  Limit the time for each speaker;

 

(6)  Revoke recognition of a speaker who:

 

a.  Seeks to speak beyond the time limit set by the moderator;

 

b.  Undertakes to make derogatory, or otherwise offensive remarks; or

 

c.  Speaks primarily to issues that are not the subject of the hearing;

 

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

 

(8)  Adjourn the hearing; and

 

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

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-B, eff 7-26-03, EXPIRED: 7-26-11

 

          Tra 206.04  Postponements.

 

          (a)  If any person requests a postponement, the moderator shall order the hearing continued to a later date, time, or place if he or she determines:

 

(1)  That the public will be best served by postponing the hearing; and

 

(2)  That any prejudice caused to any person as a result of the postponement is outweighed by the benefit to the public of granting the postponement.

 

          (b)  If such later date, time, and place are known at the time of the hearing that is being postponed, the moderator shall state the date, time, and place on the record. 

 

          (c)  If such later date, time, and place are not known at the time of the hearing that is being postponed, the moderator shall state how notice will be given of the date, time, and place of the continued hearing.

 

Source.  #7927-B, eff 7-26-03, EXPIRED: 7-26-11

 

          Tra 206.05  Media Access.

 

          (a)  Public comment hearings shall be open to all representatives of the media.

 

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

 

(1)  Assure that the number of media representatives does not cause other citizens to be excluded from the hearing room;

 

(2)  Limit the placement of cameras, lights, equipment and microphones to certain locations in the hearing room; and

 

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

 

Source.  #7927-B, eff 7-26-03, EXPIRED: 7-26-11

 

          Tra 206.06  Public Participation.

 

          (a)  Any person who desires to submit written testimony at a hearing shall sign and date the document, and provide a copy to the presiding officer.

 

          (b)  Any person who wishes to speak on the issue or issues which are the subject of the hearing shall place his or her name on a speakers' list before the last speaker on the list has finished speaking.

 

          (c)  Except as limited below, all whose names appear on the speakers' list shall be afforded an opportunity to speak at the hearing.

 

          (d)  The  moderator shall:

 

(1)  Refuse to recognize a person who refuses to give his full name;

 

(2)  Limit the amount of time each speaker may speak to a reasonable time, which shall be determined by considering:

 

a.  The number of people who wish to be heard;

 

b.  The time available; and

 

c.  Any limits imposed on the hearing by the facility where the hearing occurs.

 

(3)  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;

 

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

 

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

 

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

 

          (f)  When the moderator determines that no other persons wish to speak, he or she shall close the hearing.

 

          (g)  In the event that the number of speakers who wish to give oral testimony relevant to the issue or issues involved exceed that number which may be heard within a reasonable period of time, the moderator shall:

 

(1)  Accept testimony for the time available;

 

(2)  Arrange to continue the hearing to a later date, time, and place; and

 

(3)  Provide notice of the new hearing pursuant to Tra 203.02.

 

Source.  #7927-B, eff 7-26-03, EXPIRED: 7-26-11

 

          Tra 206.07  Record.

 

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

 

          (b)  Copies of the recording shall be provided to any person upon request and payment of the costs of the tape(s) and staff time to make the copy, or of staff time only if enough blank tapes to copy the hearing tape(s) are submitted with the request.

 

          (c)  If any person desires a transcript of the hearing tape(s), the department shall prepare or cause to be prepared a transcript provided the cost of the transcription is paid by the person(s) requesting the transcript.

 

          (d)  The record shall be retained in accordance with RSA 541-A:30-a VII.

 

Source.  #7927-B, eff 7-26-03, EXPIRED: 7-26-11

 

PART Tra 207  EXPLANATION OF ADOPTED RULES

          Tra 207.01  Requests for Explanation of Adopted Rules.

 

          (a)  Any interested person may, before 30 days after final adoption of a rule, request a written explanation of that rule by making a written request to the commissioner.

 

          (b)  The request shall include:

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

 

(2)  If the request is that of an entity, the name and address of the entity and the name and address of the representative authorized by the entity to make the request.

 

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-B, eff 7-26-03, EXPIRED: 7-26-11

 

          Tra 207.02  Contents of Explanation.  The commissioner shall, within 90 days of receiving a request for explanation of a rule, 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 why, if the commissioner did so, the commissioner overruled any arguments and considerations presented against the rule.

Source.  #4174, eff 12-1-86; EXPIRED 12-1-90

 

New.  #5563, eff 1-28-93, EXPIRED: 1-28-99

 

New.  #7927-B, eff 7-26-03, EXPIRED: 7-26-11

 

APPENDIX

 

Rule

Title

Statutes Implemented

Tra 201.01

Purpose

RSA 541-A:16, 541-A:30-a

Tra 201.02

Scope

RSA 541-A:16, 541-A:30-a

Tra 201.03

Definitions

RSA 541-A:1

Tra 202.01

Presiding Officer

RSA 541-A:31

Tra 202.02

Withdrawal of Presiding Officer

RSA 541-A:31

Tra 202.03

Waiver or Suspension of Rules by Presiding Officer

RSA 541-A:31

Tra 202.04

Standards of Conduct for Presiding Officer

RSA 541-A:31, 541-A:36

Tra 202.05

Documents

RSA 541-A:33

Tra 202.06

Computation of Time

RSA 541-A:31

Tra 202.07

Pleadings

RSA 541-A:31

Tra 202.08

Order of Notice

RSA 541-A:31 III, 541-A:39

Tra 202.09

Postponements

RSA 541-A:31

Tra 202.10

Failure to Attend Hearing

RSA 541-A:31

Tra 202.11

Prehearing Conference

RSA 541-A:31 V(b)

Tra 202.12

Joinder and Severance

RSA 541-A:31

Tra 202.13

Intervention

RSA 541-A:32

Tra 202.14

Appearances

RSA 541-A:31

Tra 202.15

Disqualification of a Representative

RSA 541-A:31

Tra 202.16

Motions

RSA 541-A:31

Tra 202.17

Prehearing Exchange of Information

RSA 541-A:31 V

Tra 202.18

Conduct of Hearings

RSA 541-A:31, 541-A:33

Tra 202.19

Standard and Burden of Proof

RSA 541-A:31 V

Tra 202.20

Proposed Findings of Fact and Conclusions of Law

RSA 541-A:35

Tra 202.21

Closing the Record

RSA 541-A:31 VI

Tra 202.22

Reopening the Record

RSA 541-A:31 VI

Tra 202.23

Settlements

RSA 541-A:31 V(a), 541-A:38

Tra 202.24

Decisions

RSA 541-A:35

Tra 202.25

Clarification

RSA 541-A:35

Tra 202.26

Reconsideration and Rehearing

RSA 541-A:35

Tra 202.27

Appeals

RSA 21-L:8, 21-L:15, 21-L:16

Tra 202.28

Record

RSA 541-A:30-a VII, 541-A:31

Tra 203.01

Scope

RSA 541-A:3

Tra 203.02

Notice

RSA 541-A:6

Tra 203.03

Moderator

RSA 541-A:11 II

Tra 203.04

Postponements & Continuation

RSA 541-A III -IV

Tra 203.05

Media Access

RSA 91-A:2, 541-A:11

Tra 203.06

Public Participation

RSA 541-A:11

Tra 203.07

Record

RSA 541-A:30-a

Tra 204.01

Scope

RSA 541-A:16 I(d)

Tra 204.02

Petition

RSA 541-A:29

Tra 204.03

Filing

RSA 541-A:29

Tra 204.04

Action on Petition

RSA 541-A:29

Tra 205.01

Scope

RSA 541-A:16 I(c)

Tra 205.02

Filing

RSA 541-A:4

Tra 205.03

Content of the Petition

RSA 541-A:4

Tra 205.04

Processing of the Petition

RSA 541-A:4

Tra 206.01

Scope

RSA 541-A:16

Tra 206.02

Notice

RSA 228:99

Tra 206.03

Moderator

RSA 91-A:2

Tra 206.04

Postponements

RSA 91-A:2

Tra 206.05

Media Access

RSA 91-A:2

Tra 206.06

Public Participation

RSA 91-A:2

Tra 206.07

Record

RSA 91-A:2

Tra 207.01

Requests for Explanation of Adopted Rules.

RSA 541-A:11 VII

Tra 207.02

Contents of Explanation

RSA 541-A:11 VII