01-001 DEPARTMENT OF AGRICULTURE, CONSERVATION AND FORESTRY

1. (Joint Rule with Board of Pesticides Control - 01-026)

Chapter 1: RULES OF PROCEDURE GOVERNING PESTICIDES HEARING

1. Scope

1. These rules of procedure shall be applicable to public hearings before the Commissioner of Agriculture and the Board of Pesticides Control on the following subjects:
   1. A. Determination by the Commissioner of Agriculture, pursuant to the Maine Pesticide Control Act of 1975, as amended, 7 M.R.S.A., §601, et seq. and approval of such determinations by the Board of Pesticides Control, pursuant to 22 M.R.S.A. §1471, et seq., relating to the refusal to register or renew registration, the cancellation, suspension, or limitation of registration of any pesticide registered or proposed to be registered for use in the State of Maine; and
   2. B. The terms and conditions that the Board of Pesticides Control, pursuant to 22 M.R.S.A., §1471-A, et seq., considers necessary to place on licenses to apply pesticides which the Commissioner proposes to regulate pursuant to section I (A).

   These rules of procedure shall not be applicable to emergency rule-making procedures on any of the foregoing subjects.

2. Definitions

1. A. The term "Commissioner" shall mean the Commissioner of the Maine Department of Agriculture, Conservation and Forestry or a designee of the Commissioner.
   1. B. The term "Board" shall mean the Maine Board of Pesticides Control.
   2. C. The term "Department" shall mean the Maine Department of Agriculture, Conservation and Forestry.
   3. D. Other terms used in these rules of procedure shall have the same meanings as defined by the Maine Pesticide Control Act of 1975, as amended 7 M.R.S.A. §601, et seq. and 22 M.R.S.A. §1471-A, et seq. unless more specially defined herein or the context of these rules of procedure requires a different meaning.

3. Procedures for Initiating Rule-Making

1. A. By the Commissioner: The procedure for proposing determinations by the Commissioner which are the subject of Section 1 (A) of these rules of procedure shall be for the Commissioner to publish notice of a proposed determination and a public hearing thereon pursuant to Section 4 hereof.
   1. B. By the Board
      1. 1. The procedure, for action by the Board on proposed determinations by the Commissioner which are within the scope of Section 1 (A) of these rules of procedure shall be for the Board to publish notice of a public hearing on any proposed determination by the Commissioner pursuant to Section 4 of these rules.
         1. 2. The procedure for proposed rules by the Board which are within the scope of Section I (B) of these rules of procedure shall be for the Board to publish notice of a public hearing on any proposed license terms and conditions, pursuant to Section 4 of these rules.
   2. C. By Petition: Any person may petition the Commissioner or the Board for the adoption or modification of a rule which is within the scope of these rules of procedure in accordance with the rules of the Department entitled "Petition for Agency Rule-Making".
   3. D. Upon receipt of a petition to initiate rule-making proceedings, the Commissioner or Board shall forward a copy of the petition to the registrants of the product which is the subject of the petition.

4. Notice

1. A. Notice of a public hearing within the scope of these rules shall be given at least twenty (20) days prior to the date of the hearing to:
   1. 1. The registrant or proposed registrant of the pesticide which is the subject of the hearing;
      1. 2. Any person who has filed with the Department or Board a written request for notice of rule-making on this subject within the past year;
         1. 3. Any trade, industry, professional, environmental, interest group or regional publication that the Department or the Board deems effective in reaching the persons affected; and
         2. 4. The Secretary of State for publication in accordance with 5 M.R.S.A. §8053.5.
   2. B. In the case only of a proposed determination by the Commissioner to refuse registration, or to cancel or suspend registration of a pesticide, pursuant to 7 M.R.S.A. §609, notice shall be delivered to the registrant or proposed registrant by registered mail, return receipt requested. In all other cases, notice shall be delivered by first class mail to the last known address of the person or group to be notified.
   3. C. The notice shall specify:
      1. 1. The statutory authority pursuant to which hearings will be held;
         1. 2. The time and place of the public hearing;
         2. 3. The manner and time within which data, views or arguments may be submitted for consideration by the Commissioner and the Board, including the requirements and time limits for filing pre-filed testimony;
         3. 4. The express terms of any Proposed rule of the Commissioner or the Board, or a summary thereof, stating the subjects and issues involved and indicating where a copy of the complete text of the proposal can be obtained;
         4. 5. The time period during which applications for intervenor status must be filed; and
         5. 6. The time of the prehearing conference.

5. Presiding Officer

1. A. The Commissioner and the Board may jointly authorize, subject to Subsection B hereof, any one of the following to act as presiding officer of a hearing which is the subject of these rules of procedure;
   1. 1. the Commissioner,
      1. 2. the Chairperson of the Board,
         1. 3. a member of the Board,
         2. 4. an employee of the Department or the Board, or
         3. 5. a representative of the Commissioner or the Board.
   2. B. If the presiding officer is the Commissioner or an employee of the Department or representative of the Commissioner, all acts of the presiding officer must receive the concurrence of the Chairperson of the Board, or a member, employee or representative of the Board designated by the Board for such purposes. Likewise, if the presiding officer is the Chairperson of the Board, or a member, employee, or representative of the Board, all acts of the presiding officer must receive the concurrence of the Commissioner, or a representative of the Commissioner or employee of the Department designated by the Commissioner for such purposes. In the absence of concurrence, disagreement shall be noted on the record and the evidence which is excluded or admitted over the objection of the non-concurring party shall be separately taken into account by the Commissioner and the Board in their separate determinations as provided by these rules.
   3. C. Whenever a presiding officer is disqualified or unable to continue the hearing, another presiding officer may be assigned as a substitute to continue with the hearing.
   4. D. Subject to the provisions of subsection B hereof, and any limitation set by the authorization of the presiding officer to act as such, the presiding officer shall have the authority to:
      1. 1. administer oaths and affirmations;
         1. 2. rule on the admissibility of evidence;
         2. 3. regulate the course of the hearings, set the time and place for continued hearings and fix the time for filing of evidence, briefs and other written submissions;
         3. 4. rule on applications for intervenor status, subject to the provisions of Section 8 hereof;
         4. 5. permit deviations from these procedural rules as provided for in Section 7 hereof; and
         5. 6. take such other action authorized or contemplated by these rules of procedure or as may be ordered by the Commissioner or the Board that is necessary for the efficient and orderly conduct of the hearing.

6. Bias of Presiding Officer or Board Member

1. A. Hearings shall be conducted in an impartial manner. Upon the filing in good faith by a party of a timely charge of bias or of personal or financial interest, direct or indirect, of a presiding officer or a member of the Board in the proceeding requesting that such person disqualify himself, that person shall determine the matter as a part of the record.
   1. B. The person involved may consult with private counsel or the Attorney General's Office concerning any such charge.

7. Deviation from Rules

1. The Commissioner and the Board, together or through the presiding officer, may permit deviation from these procedural rules when necessary or helpful to the achievement of the objectives of the hearings which are the subject of these rules of procedure.

8. Intervention; Pre Filed Testimony

1. A. Upon application in accordance with the time limits specified in the notice of the hearing, the presiding officer may designate intervenors in any hearing which is the subject of these rules of procedure.
   1. B. Intervenors may include organizations and agencies of federal, state or local government and shall, upon proper application, include registrants.
   2. C. The presiding officer shall allow to intervene any person who shows that he/she is or may be, or is a member of a class which is or may be, substantially and directly affected by the proceeding and possesses an ability to participate actively and fully in the proceedings in accordance with subsection F hereof.
   3. D. The presiding officer may also allow any other interested person to intervene or participate as a full or limited party to the proceeding. This subsection shall not be construed to limit public participation in the proceeding in any other capacity.
   4. E. Where appropriate, the presiding officer may require consolidation of presentations of evidence, cross-examination and argument by members of the class entitled to Intervene under subsection B & C, or by persons allowed to intervene under subsection D hereof. In determining that any party shall be required to consolidate its presentation, cross-examination and argument, the presiding officer shall consider the number of parties, the interests of each party, whether they propose to offer testimony or participate only by cross-examination, and the nature and extent of their proposed testimony. No party shall be required to consolidate where it is clear that the party will, as a consequence of the consolidation, be unable to make an adequate presentation of that person's position.
   5. F. All persons designated as intervenors shall be required to:
      1. 1. Prepare or present any and all direct testimony and evidence in writing in advance of the time when the testimony is to be given, at the time specified in the notice of the hearing.
         1. 2. File with the Commissioner and the Board, ten copies of each written document presented to the Board and Commission and serve one copy of any written document presented to the Commission and the Board on all other designated intervenors.

9. Participation by Staff

1. Staff of the Commissioner and the Board may appear and participate in the hearings. Evidence which the Commissioner or members of the Board wish to place in the record may be presented by staff. Staff shall not be subject to the pre-filed testimony requirements of Section 8 (F) hereof, but shall make any documentary evidence to be presented available for inspection and copying to interested persons, including intervenors, in advance of the hearing if possible.

10. Public Testimony

1. A. At an appropriate time during each session of the hearing, members of the public wishing to make statements shall be given the opportunity to do so.
   1. B. The procedure for the testimony from the public shall be as follows:
      1. 1. At the beginning of each session, the presiding officer may announce the concerns which are expected to be covered by that session. The concerns may include, but are not limited to:
         1. a. potential health risks posed by the pesticide;
         2. b. agricultural uses of the pesticide;
         3. c. silvicultural uses of the pesticide;
         4. d. the utility of the pesticide in integrated pest management; and
         5. e. viable alternatives to use of the pesticide.
         6. 2. The presiding officer will make available a sign-up sheet for those members of the public wishing to present their views on these concerns.
         7. 3. At an appropriate time during the session, the presiding officer will announce the time of day when the public testimony may be given and the period of time to be allowed for each person so testifying.

11. Pre-Hearing Conference

1. The presiding officer may, at such time as specified in the notice of the hearing, hold a pre-hearing conference for the following purposes:
   1. A. Ruling on applications for intervenor status which have not yet been determined;
   2. B. Ruling on other motions;
   3. C. Formulating or simplifying issues;
   4. D. Marking exhibits;
   5. E. Limiting the number of witnesses and consolidating the presentation of evidence, cross-examination of witnesses, and arguments of parties, and
   6. F. Providing for procedures to be followed at the hearing and for any other purpose that may expedite the orderly conduct and disposition of the proceeding.

12. General Conduct of Rearing

1. A. Opening Statement: The presiding officer shall open the hearing by describing in general terms the purpose of the hearing and the general procedure governing the conduct.
   1. B. Transcription of Testimony: All testimony at a hearing shall be recorded and, if necessary, transcribed.
   2. C. Witnesses: Witnesses shall be sworn. Witnesses will be required to state for the record their name, residence and who they represent, if anyone, for the purpose of the hearing.
   3. D. Testimony: All persons offering testimony in written form may offer a brief oral summary of the writing.

      All persons offering testimony in written form may be subject to questioning. This sub-section D shall not be construed to prevent oral testimony at a scheduled hearing by any member of the public who requests and is granted time to testify.

13. General Evidence

1. A. Admissibility: Evidence which is relevant and material to the subject matter of the hearing and is of the type which reasonable persons are accustomed to rely upon in the conduct of serious affairs shall be admissible. Evidence which is irrelevant or unduly repetitious shall be excluded.
   1. B. Official Notice
      1. 1. The Commissioner and the Board may, at any time, take official notice of any facts of which judicial notice could be taken, and of general, technical or scientific matters within their specialized knowledge and the statutes, regulations and non-confidential agency records.
         1. 2. Notwithstanding subsection 1 hereof, both the Commissioner and the Board may rely upon their experience, technical competence and specialized knowledge in the evaluation of evidence presented to them.
   2. C. Documentary and real evidence
      1. 1. All documents, materials and objects offered in evidence as exhibits shall be numbered or otherwise identified. The presiding officer may require that any person offering any documentary or photographic evidence shall provide the Commissioner and the Board with a specified number of copies of such documents or photographs in advance of the hearing, unless they are determined to be of such form, size of character as not to be reasonably susceptible of reproduction.

2. All written testimony and documents, materials and objects admitted into evidence shall be made available during the course of the hearing for public examination and also available for public examination at the offices of either the Commissioner or the Board in Augusta during normal business hours.

1. 3. Documentary evidence may be received in the form of excerpts if the entire document from which a portion is excerpted is available for inspection by the Commission, the Board and parties at the hearing.
   1. D. No sworn written testimony may be admitted unless the author is available for cross-examination, except for good cause shown. Documentary evidence, in the form of scientific or technical reports, articles books and other publications and reports, may be admitted into evidence, even though the author is unavailable for questioning subject to exclusion by the presiding officer on the basis of the nature of the material submitted or the availability of the author.
   2. E. All objections to rulings of the presiding officer regarding evidence, procedure and the grounds therefore shall be timely stated during the course of the hearing. If, during the course of or after the close of the hearing and during its deliberations, the Commissioner or the Board determines that a ruling of the presiding officer was in error, it may reopen the hearing or take such other action as it deems appropriate to correct such error.

14. Testimony

1. In the absence of an indicated procedure to the contrary, direct testimony shall be offered in the following order:
   1. A. Staff and consultants of the Commissioner and the Board;
   2. B. Where the hearing is conducted in response to a petition, the person who filed the petition;
   3. C. Registrants;
   4. D. Other intervenors; and
   5. E. Members of the public.

15. Questions

1. A. The Commissioner, members of the Board, staff, consultants and counsel for the Commissioner and the Board may ask questions at any time.
   1. B. Persons generally will be permitted to present questions in the same order as specified for direct testimony, subject to the provisions of subsections C and D hereof.
   2. C. Cross-examination by registrants and other intervenors shall be limited to:
      1. 1. Areas relevant to the subject matter of the proceeding which are not repetitious of written or oral questions asked by others, and
         1. 2. Questions which will not unduly extend the proceedings.
   3. D. A person who is not an intervenor may ask questions only after he/she has received the presiding officer's permission to do so. The presiding officer may place conditions upon such questioning, including the provision that such questions be submitted in writing to and asked by the presiding officer.

16. Continuance

1. All hearings conducted pursuant to these rules of procedure may be continued for reasonable cause and reconvene from time to time and from place to place by the presiding officer as circumstances require. All orders for continuance shall specify the time and place at which such hearings shall be reconvened.

17. Subpoenas

1. A. Any person may request the issuance of a subpoena by the Commissioner or the Board to compel the attendance of witnesses and the production of books, documents and records anywhere in the State in any hearing which is the subject of these rules of procedure, provided that only the Board may issue a subpoena when it relates to the subjects described in Section 1 (B) of these rules of procedure.
   1. B. Subpoenas will be issued only when the testimony or documents sought by subpoena are relevant to any issue of fact in the proceeding.
   2. C. Subpoenas will be issued in accordance with the following procedure;
      1. 1. Subpoenas requested may only be issued when request therefore is made to the Commissioner of the Board at least ten (10) days prior to the date for the hearing, unless good cause is shown why such request could not have been made at such time.
         1. 2. The form of the subpoena shall be similar to that used in civil cases before the courts. Witnesses subpoenaed shall be paid the same fee for attendance and travel as in civil cases before the court and such fees shall be paid by the person requesting the subpoena.

18. Conclusion of the Hearing

1. A. At the conclusion of the hearing, no other evidence or testimony will be allowed into the record, except as provided by subsection B or section 19 of these rules.
   1. B. Written statements and briefs concerning the proposed rule, as well as proposed findings of fact and conclusions of law, may be filed with the Commissioner or Board within 10 days after the close of the public hearing, or within such longer time as the agency may direct.

19. Reopening of Record

1. At any time prior to a final decision, the Commissioner or the Board may reopen the record for further proceedings, consistent with these rules and procedures provided that the Commissioner and the Board shall provide timely notice of such further proceedings prior to such proceedings.

20. Record

1. A. The record shall consist of:
   1. 1. all applications, pleadings, notions and preliminary rulings and orders;
      1. 2. evidence received or considered;
         1. 3. all staff memoranda submitted to the Commissioner or members of the Board, by Board staff or the Commissioner's staff in connection with their consideration of the case, except memorandum of counsel of the Commissioner or the Board;
         2. 4. the determination of the Commissioner; and
         3. 5. the decision of the Board.
   2. B. The Commissioner and the Board shall make a copy of the record, including a recording of the testimony in a form susceptible to transcription, available at the office of the Board in Augusta, for inspection by any person during normal business hours, and shall make copies of the record, including copies of recordings or transcriptions of recordings, available to any person at actual cost, which shall be deemed to be 10¢ a page in cases of photocopying. Notwithstanding the provisions of this sub-section, the Board or the Commissioner may withhold, obliterate or otherwise prevent the dissemination of any portions of the record which are made confidential by State or Federal statute.
   3. C. The decision by the Commissioner and the Board shall be limited to a consideration of the record.

21. Decisions

1. A. The Commissioner shall render his determination on proposals which are the subject of section I (A) of these rules of procedure prior to any, determination by the Board.
   1. B. Within seven (7) days of the date when the Commissioner's determination has been mailed to each party to the proceedings, any such party may file a supplemental brief to the Chairman of the Board setting forth such party's views as to why the Board should or should not approve the Commissioner's determination. Such briefs may also include arguments in support of any motion to re-open the record in view of the determination of the Commissioner.
   2. C. Decisions of the Commissioner and the Board made at the conclusion of these procedures shall be in writing and shall include the factual and policy basis for the determination. The Board shall maintain a record of the vote of each member of the Board with respect to the Board's decision. A copy of the decisions shall be delivered or promptly mailed to each party to the proceeding or his representative of record.

22. Time Calculations

1. In computing any period of time prescribed by these rules of procedure or otherwise specified in the course of the hearing by the presiding officer or otherwise, the day of the act or event after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, or a holiday. When the period of time prescribed or specified is less than 7 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation.

For the purpose of this section, legal holidays shall include days on which the Chief Justice of the Supreme Judicial Court specifically orders the Clerk's office closed.

1. STATUTORY AUTHORITY: 5 M.R.S.A. §8051 et seq.; 7 M.R.S.A. §§ 601 - 610; 22 M.R.S.A. §§ 1471-A, 1471-B, 1471-C, 1471-D, 1471-M.
   1. EFFECTIVE DATE:

October 27, 1978

EFFECTIVE DATE (ELECTRONIC CONVERSION):

May 4, 1996

CONVERTED TO MS WORD:

August 8, 2005

CORRECTIONS:

February, 2014 – agency names, formatting

CONVERTED DOCUMENT TO AN UPDATED VERSION OF WORD:

April 17, 2026

APAO ACCESSIBILITY CHECK (Word):

April 17, 2026