Science, and transportation united states senate

such negotiations shall be conducted at the discretion of the Board.

10.202 Point scoring system to be used : Bidders for weather modification op-

eration contracts shall be evaluated on the basis of the amount of the bid sub-

mitted and a system of points allotted to each bidder for evaluation criteria estab-

lished by the Board. Sole authority for establishment of point values and scoring

shall rest with the Director. Point scores assigned shall be final and non-nego-

tiable. Previous experience and performance shall be a criteria to be considered

in scoring each bidder. The bidder scoring the lowest cost per point shall be

awarded the contracts in accordance with subsection 10.203.

10.203 Low bid-preference for North Dakota bidders: In awarding any con-

tract, tlx- Board shall award it to the lowest and best bidder, and shall, if all

other factors are equal, give that preference for North Dakota bidders estab-

lisbed by Section 44-0S-01 of the North Dakota Century Code.

10.204 Contractor's bond : Before the Board shall award any contract, it shall

require the Contractor to furnish a surety bond for the faithful performance of the

699

that the contractor and his agents will, in all respects, faithfully perform all

weather modification contracts undertaken with the Board and will comply

with all provisions of the Act, these regulations, and the contract entered into

by the Board and the contractor.

Rules of Practice and Procedure Before the North Dakota Weather

Modification Board

r2s-3 2-01 general provisions

01.100 Scope : The provisions of these regulations shall apply to all hearings

held by the Board for the purposes of adjudicating the rights of parties under

Chapter 2-07 of the North Dakota Century Code. These regulations shall provide

procedures in addition to or in explanation of those procedures provided by such

chapter and Chapter 28-32.

01.200 Liberal Construction : These regulations shall be liberally construed in

order to secure just, speedy, and inexpensive determination of the issues

presented.

01.300 Suspension of Rules : The Board or any hearing officer shall have the

right, upon either its own motion or the motion of any party, to suspend the

operation and effect of these regulations or any portion thereof, whenever the

public interest or the interests of any party to a proceeding shall not be sub-

stantially prejudiced by such suspension.

01.400 Definitions: As used in these regulations, the following words shall

have the meaning given to them below, unless otherwise made inappropriate by

context.

01.401 "Board" shall mean the North Dakota Weather Modification Board.

01.402 "Hearing Officer" or "Officer" shall mean the person appointed by the

Board to call and conduct a hearing.

01.403 "License" means a professional weather modification license issued

under the provisions of Chapter 2-07.

01.404 "Order" shall mean any written command or direction made by the

Board as provided by law.

01.405 "Person" shall mean any real person, county, municipality or other

political subdivision, department, agency or commission, any public or private

corporation, any partnership, asociation or other organization, any receiver,

trustee, assignee, or other legal entity, other than a court of law T , or other legal

representative of the foregoing but does not include the Board.

01.406 "Permit" means a weather modification permit issued under the provi-

sions of Chapter 2-07.

01.500 Case Numbers and Title : Each matter coming formally before the

Board for hearing will be known as a case and shall be given a docket number and

title, descriptive of the subject matter. Such number and title shall be used on all

papers in the case, and as far as possible, any communication to the Board in any

particular case shall bear the number of said case.

01.600 Personal Appearances : Participants may appear in any proceeding in

person or by an attorney or other representative qualified under Section 01.703.

An individual may appear in his own behalf, a member of a partnership may

represent the partnership, a bona fide officer or duly authorized employee of a

corporation, association or group, and an officer or employee of a state agency, of

a department or political subdivision of the state or other governmental authority,

may represent the state agency or the department or the political subdivision of

the state or other governmental authority in any proceeding.

01.700 Practice Before the Board :

01.701 Person in own interest : Any person may appear before the Board in his

own right if he has a bona fide interest in the subject matter of the proceeding.

01.702 Attorneys : Attorneys at law who are admitted to practice before the

courts of the state of North Dakota may represent any party to a proceeding.

Any member of the bar of another state may be permitted by the Board to appear

in and conduct a case or proceeding while retaining his residence in another state.

01.703 Other Persons : Any other person who shall file proof to the satisfaction

of the Board that he is possessed of necessary legal or technical qualifications to

enable him to render valuable service may be permitted to practice before the

Board.

01.704 Rules of Conduct : All persons appearing before the Board must conform

to the standards of ethical conduct required of practitioners before the courts of

the state of North Dakota.

01.800 Parties :

01.801 Parties : Any person whose legal rights, duties, or privileges may be de-

termined in the case for which the hearing may be held shall be a party. When

a hearing is held pursuant to a request for a hearing, the person making the

request shall be a party. The Board shall be a party in any action to enforce any

regulation, statute, permit, condition, or order of the Board. Any person who

has properly intervened in a case shall be a party.

01.802 Petitioner : Any person seeking reconsideration, as provided by law, of

any administrative action taken pursuant to law and these regulations, shall be

styled the petitioner.

01.803 Respondent : Any person against whom any complaint is filed or order

issued under these regulations shall be styled the respondent.

01.804 Intervenor : Persons petitioning to intervene when admitted as a partici-

pant to a proceeding shall be styled intervenors. Admission as an intervenor shall

not be construed as recognition by the Board that such intervenor might be

aggrieved by any order of the Board in such proceeding.

01.805 Complainant : Persons who complain of any act or omission in violation

of any statute, regulation or permit of the Board shall be styled complainants.

01.900 Investigation Upon the Board's Own Motion : The Board may at any

time, upon its own motion, or upon the complaint of any person, institute investi-

gations and order hearings in any thing done by any person which the Board may

believe is in violation of the law or any order, regulation or permit of the Board.

The Board may secure and present such evidence as it may consider necessary

or desirable in any proceeding in addition to the evidence presented by any

other party-

01.1000 Computation of Time :

01.1001 In determining the day upon which an answer must be served pursuant

to Section 28-32-05, the day of the hearing and the last day upon which an answer

may properly be received shall not be included in computing the required three-

day time period. If the day upon which the answer is due falls on a Saturday,

Sunday, or legal holiday, the answer shall be due on the preceding business day.

01.1002 In computing any period of time prescribed or allowed by these rules,

other than that time period set out in subsection 01.1001, the day of the act,

event, or default 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 Sunday or legal holiday, in which event the period runs until the end of

the next day which is neither a Sunday nor a holiday. When the period of time

prescribed or allowed is less than seven days, intermediate Sundays and holidays

shall be excluded in the computation.

01.1100 Service: For the purposes of these Rules, service or filing shall be

deemed to have occurred upon actual receipt of the document served or filed.

01.1200 Record : Unless any party demands otherwise at least ten days prior to

the date of hearing, a written summary record or tape recording of the proceeding

will be made and filed. If demanded, the Board shall cause a verbatim transcript

to any proceedings to be made at the expense of the demanding parties. The time

period required herein shall be computed, as nearly as practicable, by that

method specified in Section 01.1001.

R2 8-3 2-0 2 PLEADINGS

02.100 Informal Complaint : Informal complaints may be made orally or in

writing addressed to the Board. Letters of complaint to the Board will be con-

sidered as informal complaints. Matters thus presented will be handled by corre-

spondence or by other informal communications, or by conference with the party

or parties complained of, or by formal investigation instituted by the Board upon

its own motion, or in such other manner as the Board shall deem to be appropriate

and warranted by the facts and the nature of the complaint in an endeavor to

bring about satisfaction of the complaint without formal hearing.

02.200 Formal Complaints :

02.201 Complaints shall be made by the Board on its own motion by complaint

in writing, setting forth any act or tiling done or omitted to be done in violation

or claimed to be violation of any provision of law or of any order, rule, regula-

tion, or permit of the Board.

701

Board of Weather Modification" and shall contain a heading, "In the Matter of",

showing the name and address of the respondent. The complaint shall be so drawn

as to fully and completely advise the respondent or the Board of the facts con-

stituting the ground of the complaint ; the provisions of the statutes, regulations,

orders, or permit relied upon ; the injury complained of ; and shall contain a

clear, concise statement of the relief sought.

02.203 The Board shall serve a true copy of the complaint and notice for hear-

ing upon the respondent personally, or by registered or certified mail, as the

Board may direct, in such time as provided by law before the time specified for

hearing thereof unless the service of such complaint or notice of hearing is

waived, in writing, by the respondent, or unless the parties agree upon a definite

time and place for hearing thereof with the consent of the Board ; provided, how-

ever, that in case of an emergency, the Board shall notice a proceeding for

hearing upon its merits as provided by law.

02.300 Order to Show Cause :

02.301 The Board may, by order, compel any person who it believes is violating

any law, regulation, or order of the Board subject to enforcement by these regula-

tions, or any person who has been granted a permit, to show cause why such law,

regulation or order should not be enforced against such person or why such permit

should not be suspended, revoked or modified, either in whole or in part.

02.302 An order to show cause shall specifically advise the respondent of the

facts of the violation and law applicable thereto and of the time and place of the

hearing to be conducted on the order.

02.303 If the Board finds that the respondent is committing or is about to com-

mit an alleged violation, it may order the respondent to cease and desist from

the acts constituting the violation. The Board may also, or in lieu thereof, enter

any other just and reasonable order.

02.400 Petition for Hearing : Any petitioner requesting the Board to review by

hearing, as provided by law, any Board action, rule, or regulation, shall file with

the Board a petition, which may be in letter form, advising the Board of the facts

constituting the grounds for the petition, the injury complained of and a clear

and concise statement of the relief sought.

02.500 Answers:

02.501 Each answer filed with the Board shall be designated as an "answer"

shall contain the correct title of the proceeding, and a specific denial of such ma-

terial allegations of the complaint as are controverted by the respondent and also

a statement of any new matter which may constitute a defense. If the answering

party has no information or belief upon the subject sufficient to enable him to an-

swer an allegation of the complaint, he may so state in his answer and place his

denial upon that ground. The filing of an answer will not be deemed an admission

of the sufficiency of the complaint.

02.502 An answer must be signed and verified by the respondent filing the same.

02.503 Two true and correct copies of the answer shall be served upon the Board

personally or by registered mail, at least three days before the time specified in

the complaint for hearing.

02.600 Response to Petition for Hearing :

02.601 Upon receiving a petition for hearing upon any matter, as provided by

law, the Board shall, within thirty (30) days of such receipt, serve upon the

petitioner, a response to the petition. Such response may be in letter form and

shall state the decision of the Board whether or not to hold the requested hearing.

If a hearing is granted, the response shall state the date upon which the petition-

ing party may appear to be heard, and such other conditions of the hearing as the

Board may determine. If the requested hearing is denied, the reasons for such

denial shall be clearly stated. This subsection shall not apply to hearings on

emergency orders.

02.602 Upon receiving a petition for hearing pursuant to an emergency order,

as provided by law, the Board shall set a date for hearing to be held within ten

(10) days of receipt of such petition and shall notify the petitioner of such date

and of such other conditions of the hearing as the Board shall determine.

02.700 Intervention : In any formal proceeding, any person having a substan-

tial interest in the subject matter of such proceeding may petition for leave to

intervene in such proceeding and may become a party thereto upon compliance

with the provisions of this rule. In general, such petitions will not be granted

unless it shall be found that such person has a statutory right to be made a party

to such proceedings or that such person has a property, financial, or other legally-

34-857 O - 79 - 47

702

and such intervention would not unduly broaden the issues or delay the pro-

ceeding.

02.701 A petition for leave to intervene shall be in writing, unless made at the

commencement of a hearing, and must set forth the grounds of the proposed inter-

vention, the position and interest of the petitioner in the proceeding, and whether

the petitioner's position is in support of or in opposition to the relief sought.

02.702 A written petition for leave to intervene in any proceeding may be filed

prior to or at the commencement of the hearing, but not after commencement,

except for good cause shown.

02.703. The petitioner shall furnish a copy of any written petition to each party

to the proceeding, including the Board.

02.704 Admission as an inter venor shall not be construed as recognition by the

Board that such intervenor might be aggrieved by any act of the Board in such

proceeding.

02.800 Amendments : The Board, prior to any hearing, or the hearing officer dur-

ing any hearing, may, after notice to the other parties to a proceeding, allow any

pleading to be amended or corrected or any omission therein to be supplied,

provided that if any such amendment, when allowed, so alters or broadens the

issues that it appears proper, the Board may permit any party affected thereby a

reasonable time to prepare to meet the changed issues.

02.900 Withdrawal of Pleading : A party desiring to withdraw a pleading file

with the Board may file a notice of withdrawal thereof with the Board. Such

notice shall set forth the reason for the withdrawal. A copy of such withdrawal

notice must be served upon all other parties to the proceeding and a certificate

of service to that effect filed with the notice of withdrawal. Withdrawal of any

pleading in any proceeding in which a hearing has been held or convened shall

not be allowed without express permission of the Board.

02.1000 Motions : After a complaint or petition has been served, a request may

be made by motion for any procedural or interlocutory ruling or relief proper and

desired. All motions not made in the course of a hearing shall be in writing and

shall be served on the other parties to the hearing by the moving party.

02.1001 The Board, prior or subsequent to any hearing, or the hearing officer

during any hearing, may set any motion for oral argument.

02.1002 The hearing officer designated to preside at a hearing is authorized to

rule upon any motion not formally acted upon by the Board prior to the commence-

ment of the hearing, wherein the immediate ruling is essential in order to proceed

with the hearing and upon any motion filed and made after the commencement

thereof and prior to the decision in the proceedings ; provided, however, that no

motion made before or during a hearing, a ruling upon which would involve or

constitute a final determination of the proceeding, shall be ruled upon by an

examiner.

02.1003 Motions not ruled upon by the examiner shall be ruled upon by the

Hoard.

provided in 04.600.

R28-3 2-03 PRE-HEARING MATTERS

03.100 Informal Disposition : Informal disposition may be made of any case, or

any issue therein, by stipulation, or consent order at any point therein, subject to

the approval of such informal disposition, or any terms thereof, by the Board.

03.200 Prehearing Conference : A prehearing conference may be held at any time

at the discretion of the Board or hearing officer prior to any hearing. The prehear-

ing conference shall be an informal proceeding conducted fairly and expeditiously

by the hearing officer, for purposes of identifying and simplifying the issues

to be determined, identifying and limiting the number of witnesses, and reaching

an agreement on any or all issues of law or fact without the necessity for further

hearing thereon. In addition to any offer of settlement, the following are appro-

priate for consideration at a prehearing conference :

(1) The simplification of issues ;

(2 ) The necessity or desirability of amendment to the pleadings ;

(3) The exchange and acceptance of service of exhibits proposed to be

offered in evidence;

(4) The obtaining of admission as to. or stipulations of, facts not remaining

in dispute, or the authenticity of documents which may properly shorten the

hearing ;

703

(6) Such other matters as may properly be dealt with to aid in expediting

the orderly conduct of the proceeding.

03.300 Conference Results Stipulated : Upon conclusion of prehearing confer-

ence, the parties shall immediately reduce the results thereof to the form of a

written stipulation which recites the matters agreed upon, which stipulation

shall be filed with the Board. Any such stipulation may be received in evidence

at a hearing and, when so received, shall be binding on the parties with respect

to the matters therein stipulated.

03.400 Consolidation : The Board, upon its own motion, or upon motion by any

party, may order two or more proceedings involving a similar question of law or

facts to be consolidated for hearing where rights of the parties or the public

interest will not be prejudiced by such procedure.

R2 8-3 2-04 HEARINGS

04.100 Hearing Officers:

04.101 Appointment : All hearing officers shall be appointed by the Board. The

Board shall appoint a hearing officer within five (5) days of service of a com-

plaint or petition. Notification of the appointment shall be made to all parties in

such manner as the Board may determine.

04.102 Qualification :

(1) All appointments hereunder shall be consistent with the purpose of

obtaining objectivity and impartiality in making decisions.

(2) The hearing officer may be an employee or a member of the Board.

The Board may appoint as hearing officer a person who is not an employee

or member of the Board. In such event, the hearing officer shall be an attorney

at law licensed to practice in the State of North Dakota, unless some other

person is agreed upon by all parties ; provided that such hearing officer shall

be considered an employee of the Board for the sole purpose of compensation,

if any. and authorization to conduct the hearing and recommend findings

of fact and a decision to the Board. In all other respects, he shall be inde-

pendent of the Board.

(3) In all cases, the Board retains discretion to conduct the hearing itself,

in which case an employee of the Board shall be the hearing officer.

04.103 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 Board. When evidence is to be taken in a pro-

ceeding, one or more of examiners, when duly designated for that purpose, shall

preside at the hearing. An officer duly designated by the Board to preside at a

hearing shall have the authority to take any of the following actions in the name

of the Board.

(1) To regulate the course of hearing ;

(2) To administer oath ;

(3) To issue subpoenas ;