# Title 60 — Pesticide Control Board

## Article 60-02 — Rules of Practice and Procedure

## Chapter 60-02-04 — Hearings

### § 60-02-04-01. Hearing officers.

1. Appointment. All hearing officers shall be appointed by the commissioner. The commissioner
shall appoint a hearing officer within five days of service of a complaint or petition. Notification
of the appointment shall be made to all parties in such manner as the commissioner may
determine.
2. Qualifications.
a. All appointments of hearing officers shall be consistent with the purpose of obtaining
objectivity and impartiality in making decisions.
b. The hearing officer may be an employee or a member of the department. The
commissioner may appoint as hearing officer a person who is not an employee or
member of the department. In such event, the hearing officer shall be an attorney at law
licensed to practice in North Dakota, unless some other person is agreed upon by all
parties; provided, that such hearing officer shall be considered an employee of the
commissioner for the sole purpose of compensation, if any, and authorization to conduct
the hearing and recommend findings of fact and a decision to the commissioner. In all
other respects, the hearing officer shall be independent of the department.
c. In all cases, the commissioner retains discretion to conduct the hearing personally, in
which case an employee of the department shall be the hearing officer.
3. Authority. The appointment of the hearing officer shall, to the extent permitted by law,
authorize and direct the hearing officer to conduct the hearing and recommend a decision to
the commissioner. When evidence is to be taken in a proceeding, one or more of examiners,
when duly designated for that purpose, shall preside at the hearing. An officer duly designated
by the commissioner to preside at a hearing shall have the authority to take any of the
following actions in the name of the commissioner:
a. To regulate the course of hearing.
b. To administer oath.
c. To issue subpoenas.
d. To take depositions or cause depositions to be taken.
e. To rule upon offers of proof and to receive evidence.
f. To hold appropriate conferences before or during hearings.

g. To dispose of procedural matters but not to dispose of motions made during hearings to
dismiss proceedings or other motion which involves a final determination of proceedings.
h. To exclude evidence which is cumulative or repetitious.
i. To authorize any party to furnish and serve designated late-filed exhibits with a specified
time after the close of the hearing.
j. To order discovery.
k. Within the hearing officer's discretion, or upon direction of the commissioner, to certify
any question to the commissioner for the commissioner's consideration and disposition.
l. To take any other action necessary or appropriate to discharge the duties vested in the
hearing officer, consistent with statutory or other authorities under which the
commissioner functions and with the rules, regulations, and policies of the commissioner.
4. Limitations. Hearing officers shall perform no duties inconsistent with their responsibilities as
such. No officer shall in any proceeding for an adjudication required by statute to be
determined on the record after opportunity for hearing consult any person or party on any fact
in issue unless upon notice and opportunity for all parties to participate.
5. Disqualification.
a. Any party may file a petition with the commissioner to disqualify any hearing officer. The
commissioner shall determine the petition in accordance with this subsection and enter
the commissioner's decision on the record.
b. The commissioner may, for good cause, revoke the appointment of any hearing officer
upon the filing of a petition of a party or upon the commissioner's own motion. Any such
revocation shall be effective upon notice to the officer.
c. A hearing officer shall withdraw from participation in a hearing at any time prior to the
final determination if the officer deems oneself disqualified for any reason.
d. Whenever a hearing officer withdraws or is disqualified, the commissioner shall appoint
another in the officer's place, without the need for such newly appointed officer hearing
evidence already presented in the case.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-04
### § 60-02-04-02. Discovery.

1. Agency discovery.
a. Information. Upon request of the commissioner or the hearing officer, any party to the
matter shall furnish to the commissioner or the hearing officer any information which the
party may have which is relevant to the matter under consideration.
b. Examination of records. Upon request of the commissioner or the hearing officer, any
party shall allow the commissioner or any member, employee, or agent of the
department, when authorized by the commissioner or the hearing officer, or the officer
personally, to examine and copy any books, papers, records, or memoranda pertaining to
the matter under consideration.
c. Inspection of premises. Upon request of the commissioner or the hearing officer, any
party shall allow the commissioner or any member, employee, or agent of the department

when authorized by the commissioner or the hearing officer, or the hearing officer
personally, to enter upon any of the party's property for the purpose of obtaining
information, examining any physical facility, or examining records or conducting surveys
or investigations.
2. Discovery by parties.
a. Parties other than the commissioner may obtain discovery by examination of those public
records which are in possession of the hearing officer or the department. Any party to a
case may request the commissioner or the hearing officer to exercise its powers in
subsection 1 to obtain public information or to issue a subpoena as provided in section
### § 60-02-05-03. The commissioner or the hearing officer may grant or deny such requests.

A party may request voluntary disclosure of information by any other party.
b. The deposition of any witness or party required in any proceeding before the
commissioner may be taken in the same manner and on the same notice as in an action
pending in the district courts of this state. Any person whose deposition is taken shall
receive the same fees and mileage as a witness in a civil case in the district courts and
such costs shall be paid by the party at whose insistence the deposition is taken.
c. Interrogatories may be issued, in any proceeding before the commissioner, in the same
manner as in an action pending in the district courts of this state.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-04
### § 60-02-04-03. Appearance.

Interested parties shall enter their appearances at the beginning of the hearing by giving their name
and address and briefly stating whether they appear in support of the complaint or in opposition thereto,
or otherwise. All such appearances shall be noted on the record with a notation in whose behalf each
appearance is made. Included in such appearances shall be the names of the employees of the
department participating in the hearing of investigation and the names of any other persons appearing
for the commissioner.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-04
### § 60-02-04-04. Continuance.

Before or after any hearing, continuances may be granted by the commissioner for good and
sufficient cause. A motion for such a continuance shall be made in writing, filed with the commissioner,
and served on opposing counsel or parties. Such motions shall be presented as far in advance of date
fixed for hearing as possible to ensure favorable action. The commissioner may effect a continuance
before or after any hearing upon the commissioner's own motion. The hearing officer may grant oral or
written requests for continuances during any hearing.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-04
### § 60-02-04-05. Order of procedure.

In hearings on formal complaints and petitions, the complainant or petitioner, as the case may be,
shall open and close. In hearings on an order to show cause, the respondent shall open and close.
When proceedings have been consolidated for hearing, the officer shall designate who shall open and
close. Intervenors shall follow the parties in whose behalf the intervention is made. Where the
intervention is not in support of an original party, the presiding officer shall designate at which stage

such intervenor shall be heard. In proceedings where the evidence is materially within the knowledge or
control of another party or participant, the foregoing order or presentation may be varied by the officer.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-04
### § 60-02-04-06. Appeal to commissioner from ruling of hearing officer - Offer of proof.

An appeal may be taken to the commissioner from a ruling of an officer during the course of a
hearing only where extraordinary circumstances necessitate a prompt decision by the commissioner to
prevent detriment to the public interest.
Any offer of proof made in connection with an objection taken to any ruling of the hearing officer
rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the
evidence which counsel contends would be adduced by such testimony; and, if the excluded evidence
in documentary or written form or reference to documents or records, a copy of such evidence shall be
marked for identification and shall constitute the offer of proof.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-04
### § 60-02-04-07. Oral argument.

1. Before officer. When, in the opinion of the hearing officer, time permits and the nature of the
proceedings, the complexity or the importance of the issues of fact or law involved, and the
public interest warrant, such officer may, either on the officer's own motion, or at the request of
any party at or before the close of the taking of testimony, allow and fix a time for the
presentation of oral argument imposing such limits of time on the argument as deemed
appropriate. Such arguments shall be transcribed and bound with the transcript of testimony, if
a transcript is prepared.
2. Before commissioner. Request for authority to represent oral argument before the
commissioner may be made at the time of any appeal taken during the hearing, at the
conclusion of the taking of evidence, or on brief, at such time as the commissioner may allow.
The commissioner will fix the time for oral argument, if allowed, and notify the parties.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-04
### § 60-02-04-08. Briefs and proposed findings of fact and conclusions of law.

1. Each party to any proceeding may file proposed findings of fact and conclusions of law, briefs,
or memoranda of law; provided, however, that the commissioner or hearing officer may direct
any party to file proposed findings of fact and conclusions of law, briefs, or memoranda of law.
2. The commissioner or hearing officer shall fix the time for the filing and service of proposed
findings of fact and conclusions of law, briefs, or memoranda of law, giving due regard to the
nature of the proceeding, the magnitude of the record, and the complexity or importance of the
issues involved, and shall fix the order in which such documents shall be filed.
3. Should a party find that it is unable to meet the date for filing and serving proposed findings of
fact and conclusions of law, briefs, or memoranda of law, such party shall so notify the
commissioner or hearing officer and the other parties in writing, therein setting forth the
reasons for such inability together with a request for an extension of time to a date certain for
filing and service.

4. When it is ordered that proposed findings of fact and conclusions of law, briefs, or memoranda
of law be filed and served by the party initiating the proceeding, and where such party fails to
file and serve by the date specified without complying with subsection 3, the commissioner on
the commissioner's own motion or the motion of any party may, in the commissioner's
discretion, dismiss the proceeding. Such failure in the case of an intervenor, protestant, or
respondent may be deemed a waiver of the right to participate further in the proceeding, and
the commissioner on the commissioner's own motion of the motion of any party may so order.
5. Exhibits should not be reproduced in a brief, but may, if desired, be reproduced in a appendix
to the brief. Every brief of more than twenty pages shall contain a subject index, with page
references, and the pages where the citations appear. All briefs shall be as concise as
possible.
6. All briefs shall be accompanied by a certificate showing service upon all parties or their
attorneys who appeared at the hearing. One copy of each brief shall be furnished for the use
of the commissioner unless otherwise directed by the commissioner or hearing officer.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-04
