NAC: CHAPTER 561 - STATE DEPARTMENT OF AGRICULTURE

[Rev. 9/23/2024 10:29:09 AM]

[NAC-561 Revised Date: 8-24]

CHAPTER 561 - STATE DEPARTMENT OF AGRICULTURE

PLANTING AND HARVESTING SEASONS

561.200 Designation for purposes of exemption from federal regulations regarding driving and on-duty time for drivers used by motor carriers.

HEARINGS FOR ADJUDICATION OF CONTESTED CASES

561.300 Definitions.

561.310 “Complaint” defined.

561.320 “Contested case” defined.

561.330 “Notice of hearing” defined.

561.340 “Parties” defined.

561.350 “Petitioner” defined.

561.360 “Respondent” defined.

561.370 Scope and applicability.

561.380 Construction; conduct of hearing.

561.390 Deviation from provisions.

561.400 Informal disposition of case.

561.410 Suspension of license or certificate of registration before hearing.

561.420 Notice of hearing: Proper service; date deemed received; raising objection to notice received.

561.430 Consolidation of cases; contesting consolidation.

561.440 Right to representation by attorney; qualifications of attorney.

561.450 Conduct of attorneys and persons appearing in hearing; consequences of failure to conform conduct; statement of actions taken by Board or Department.

561.460 Withdrawal of attorney.

561.470 Hearing officer: Appointment; authority; limitations on authority.

561.480 Amendment of complaint; withdrawal of complaint.

561.490 Motions: Types; procedure for making; responses.

561.500 Discovery: Scope; procedure.

561.510 Prehearing conferences.

561.520 Subpoenas.

561.530 Failure to appear.

561.540 Order of proceedings.

561.550 Motion to exclude witness.

561.560 Examination of witnesses.

561.570 Transcription of hearing.

561.580 Petition for reconsidering or rehearing of decision.

DOING BUSINESS WITH THE DEPARTMENT

561.600 Authority of Director to require transactions with or payment to Department to be conducted or made electronically or through Internet website; methods of payment; exemptions.

561.610 Fees for certain services provided by Department or employee of Department; exceptions.

REVISER’S NOTE.

Ch. 286, Stats. 2013, which repealed various provisions of NRS relating to the Agricultural Loan Mediation Program, contains the following provision not included in NRS:

“Sec. 28. 1. Any regulations adopted by the State Department of Agriculture pursuant to NRS 561.247 [NAC 561.010 to 561.170, inclusive] are void. The Legislative Counsel shall remove those regulations from the Nevada Administrative Code as soon as practicable after the effective date of this act [June 1, 2013].

* * *”

PLANTING AND HARVESTING SEASONS

NAC 561.200 Designation for purposes of exemption from federal regulations regarding driving and on-duty time for drivers used by motor carriers. (NRS 561.105)

1. For the purposes of the exemption from federal regulations regarding the maximum driving and on-duty time for drivers used by motor carriers that is set forth in 49 C.F.R. § 395.1(k), pertaining to drivers transporting agricultural commodities or farm supplies for agricultural purposes within a 100 air-mile radius from the source of the commodities or distribution point for the farm supplies during the planting and harvesting seasons, the planting and harvesting seasons within this State shall be deemed to be year-round, from January 1 through December 31.

2. As used in this section:

(a) “Agricultural commodities” means products grown on and harvested from the land.

(b) “Farm supplies for agricultural purposes” means products directly related to the growing or harvesting of agricultural commodities.

(Added to NAC by Bd. of Agriculture by R130-06, eff. 9-18-2006)

HEARINGS FOR ADJUDICATION OF CONTESTED CASES

NAC 561.300 Definitions. (NRS 561.105) As used in NAC 561.300 to 561.580, inclusive, unless the context otherwise requires, the words and terms defined in NAC 561.310 to 561.360, inclusive, have the meanings ascribed to them in those sections.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.310 “Complaint” defined. (NRS 561.105) “Complaint” means a document, signed by the petitioner, which contains the name of the respondent, a short and plain statement of the acts or omissions alleged to have been committed in violation of a statute, rule or regulation and the citation of such statute, rule or regulation.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.320 “Contested case” defined. (NRS 561.105) “Contested case” has the meaning ascribed to it in NRS 233B.032.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.330 “Notice of hearing” defined. (NRS 561.105) “Notice of hearing” has the meaning ascribed to it in NRS 233B.121.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.340 “Parties” defined. (NRS 561.105) “Parties” means the petitioner and the respondent.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.350 “Petitioner” defined. (NRS 561.105) “Petitioner” means the Board or the Department when in the capacity of carrying the burden of proof in a contested case on matters over which it has jurisdiction to resolve.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.360 “Respondent” defined. (NRS 561.105) “Respondent” means the party charged in the complaint with a violation of a statute, rule or regulation.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.370 Scope and applicability. (NRS 561.105) The provisions of NAC 561.300 to 561.580, inclusive, apply to all hearings conducted by the Board and the Department for the adjudication of contested cases pursuant to the provisions of chapter 233B of NRS.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.380 Construction; conduct of hearing. (NRS 561.105)

1. The provisions of NAC 561.300 to 561.580, inclusive, will be liberally construed to simplify and expedite hearings before the Board and Department and to ensure a fair opportunity to all parties to present their case.

2. Hearings conducted pursuant to the provisions of NAC 561.300 to 561.580, inclusive, will be conducted pursuant to the provisions of chapter 233B of NRS.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.390 Deviation from provisions. (NRS 561.105)

1. The Board and Department may permit deviation from the provisions of NAC 561.300 to 561.580, inclusive, if:

(a) The deviation will not adversely affect the substantial interests of a party;

(b) Good cause for the deviation appears; and

2. If a deviation from these provisions is permitted by the Board or Department pursuant to this section, the deviation and the reasons for permitting the deviation will be stated on the record.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.400 Informal disposition of case. (NRS 561.105) Except as otherwise provided by law, the parties may agree through a stipulation, settlement agreement, consent order or other disposition to resolve a contested case by informal disposition. If an informal disposition is made, the respondent waives the right to a statement of findings of fact and conclusions of law from the Board or Department.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.410 Suspension of license or certificate of registration before hearing. (NRS 561.105) Unless otherwise prohibited by law, the Board or Department may suspend the license or certificate of registration of a person before holding a hearing if the Board or Department finds and incorporates such finding into its order, based upon evidence in its possession, that the public health, safety or welfare will be damaged unless the license or certificate is so suspended. If the Board or Department summarily suspends a license or certificate of registration, a hearing that complies with the provisions of NAC 561.300 to 561.580, inclusive, will be held within 60 days after the suspension.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.420 Notice of hearing: Proper service; date deemed received; raising objection to notice received. (NRS 561.105)

1. The Board or Department will commence a contested case by serving a copy of a notice of hearing upon the respondent at least 30 days before the date of the hearing. The notice of hearing, with a proof of service, will be mailed by certified or registered mail to the last known address of the respondent or personally served as provided for in Rule 4 of the Nevada Rules of Civil Procedure. The notice of hearing will include the time and place of the hearing as fixed by the Board or Department. The complaint may be included in the notice of hearing.

2. If a notice of hearing is mailed to the respondent, the notice will be deemed to have been received upon the expiration of 10 days after the notice is mailed.

3. The respondent must familiarize himself or herself with any subsequent dates for hearings.

4. Any contention that proper notice has not been provided pursuant to this section will be deemed waived unless it is raised by the respondent before arguments are presented on any other motion or, if no other motions are presented, before opening arguments at the hearing.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.430 Consolidation of cases; contesting consolidation. (NRS 561.105)

1. The Board or Department may consolidate two or more contested cases whenever it appears that the cases involve common issues of law or fact and the interests of the parties will not be prejudiced by the consolidation, regardless of whether the cases involve more than one license or certificate of registration or different professions.

2. A party may contest a decision to consolidate two or more contested cases by filing a motion to sever the cases which states specifically why the matters would not be consolidated. The Board or Department will decide if the cases will be heard together or separately.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.440 Right to representation by attorney; qualifications of attorney. (NRS 561.105) Any respondent appearing in a hearing before the Board or Department may be represented by an attorney who is licensed to practice in this State or, if not licensed in this State, who has applied and been approved by the Board or Department to appear in this case only.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.450 Conduct of attorneys and persons appearing in hearing; consequences of failure to conform conduct; statement of actions taken by Board or Department. (NRS 561.105)

1. Any attorney appearing in a hearing before the Board or Department shall ensure that his or her conduct complies with the Nevada Rules of Professional Conduct.

2. All persons appearing in a hearing before the Board or Department shall conform to the standards of ethical and courteous conduct required in the courts of this State.

3. If a person fails to conform his or her conduct to the standards required by this section, the Board or Department may:

(a) Limit the evidence presented by that person; and

(b) Exclude the person or the person’s representative from the hearing.

4. Any action taken by the Board or Department pursuant to this section and the specific reasons for taking the action will be stated on the record.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.460 Withdrawal of attorney. (NRS 561.105) Any attorney of record may withdraw from representation upon notification to his or her client and to the Board or Department and upon filing a motion with the Board or Department specifying the reasons for the requested withdrawal. Unless otherwise prohibited by law, the Board or Department may deny the motion if the withdrawal would unreasonably delay the hearing.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.470 Hearing officer: Appointment; authority; limitations on authority. (NRS 561.105)

1. Except as otherwise provided in NRS 233B.124, the Board or Department may designate an attorney who is licensed to practice law in this State to serve as a hearing officer in a contested case.

2. A hearing officer so appointed may:

(a) Question witnesses;

(b) Make rulings on motions and objections;

(d) Provide legal advice as required by the Board or Department during the course of a hearing or during deliberation after a hearing, unless such advice is provided by other means.

Ê In any contested case in which a hearing officer is designated pursuant to the provisions of this section, the Board or Department will make the final decision in the case.

3. In any contested case in which a hearing officer is not designated by the Board or Department, the Board or Department will designate its presiding officer, chair or other member of the Board or employee of the Department to conduct the hearing.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.480 Amendment of complaint; withdrawal of complaint. (NRS 561.105)

1. The petitioner may amend the complaint at any time. Unless amended at the hearing, an amended complaint will be filed and served in the same manner as the original complaint. The Board or Department will grant a continuance whenever an amendment materially alters the complaint in such a way that the respondent will be unable to prepare his or her case in a timely manner.

2. The petitioner may withdraw a complaint at any time before the hearing begins. After the hearing begins, the petitioner will withdraw the complaint only upon written notice to the respondent.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.490 Motions: Types; procedure for making; responses. (NRS 561.105)

1. The respondent may make a motion to request:

(a) The dismissal of the complaint for failure to state facts which, if true, would form a sufficient basis for discipline;

(b) The dismissal of a complaint for failure to comply with any provision of NAC 561.300 to 561.580, inclusive; and

(c) A directed verdict against the petitioner if the petitioner has concluded his or her case and has failed to meet his or her burden of proof.

2. Any party may make a motion to request:

(a) Sanctions for misconduct of any attorney or party to the hearing;

(b) Sanctions for failure to comply with NAC 561.500;

(d) A rehearing of the case;

(e) Reconsideration of the decision;

(f) The exclusion of a member of the Board, Department or a hearing officer, for good cause shown, from participation in the hearing or the deliberations;

(g) Vacation or modification of an order; and

(h) A severing of cases that have been consolidated.

3. A motion made pursuant to this section must be in writing unless permission has been granted by the Board, the Department or a hearing officer to make the motion orally.

4. Except for good cause shown, the moving party must serve the motion upon the other party and the Board or Department not later than 10 days before the time set for the hearing on the motion.

5. Except as otherwise provided in this subsection, a party may file a written response to a motion with the Board, the Department or a hearing officer, and serve the response on the moving party, no later than 7 days after his or her receipt of the motion or 3 days before the time set for the hearing on the motion, whichever is earlier. The Board, the Department or a hearing officer may allow a response to be filed at a later date upon good cause shown.

6. The Board, the Department or a hearing officer may require that the moving party make an oral argument or submit additional evidence in support of the moving party’s written motion.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.500 Discovery: Scope; procedure. (NRS 561.105)

1. A party to a contested case may serve upon any other party a written demand for:

(a) Copies of all documents reasonably available to the other party which are anticipated to be used in support of that party’s position;

(b) A written list of witnesses, including rebuttal witnesses, whom the other party reasonably anticipates will testify at the hearing, which identifies each person by name and address;

(d) Any exculpatory evidence reasonably available to the petitioner which would tend to support the respondent’s position or discredit the petitioner’s witnesses; and

(e) Copies of any investigative reports which appear to summarize or describe an interview with the respondent.

Ê The respondent is entitled to such information whether or not an investigator is called to testify and whether or not an investigator or other witness uses an investigative report to refresh his or her recollection before or during the hearing.

2. The party receiving a demand for documents or other evidence pursuant to this section shall provide the copies, lists and evidence demanded within 10 days after service of the demand.

3. Each party served with a demand for documents or other evidence pursuant to this section shall exchange any new information required to be produced pursuant to this section as it becomes available.

4. Except as otherwise provided in this section, the investigative file of the petitioner is not subject to discovery. If the respondent requests, he or she is entitled to review investigative reports relating to a witness for the petitioner, including summaries or descriptions of interviews, after the direct examination of that witness but before the cross-examination of that witness.

5. This section does not prevent the parties from agreeing to exchange any information not specified in this section. If the parties agree to the use of a deposition, such an agreement will be deemed a waiver of any objection to testimony contained in the deposition, except for an objection based on relevance.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.510 Prehearing conferences. (NRS 561.105)

1. Upon written motion of either party or on its own motion, the Board or Department may hold a prehearing conference to:

(a) Simplify or limit the issues.

(b) Secure and establish for the record any admissions or stipulations.

(d) Exchange exhibits or other documented evidence.

(e) Discuss any other matters which may aid in the efficient disposition of the case.

2. Unless the parties waive their right to a transcript, the Board or Department will make arrangements for transcription of the conference so that it becomes part of the record of the case.

3. Participation by any member of the Board, the Department or a hearing officer in a prehearing conference does not prohibit him or her from participating in a subsequent hearing in the case.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.520 Subpoenas. (NRS 561.105, 561.146)

1. A party may request the Director to issue a subpoena pursuant to NRS 561.146 by submitting a written request that demonstrates the need for the witnesses or documents requested.

2. The requesting party must deposit witness fees and pay expenses in accordance with Rule 45 of the Nevada Rules of Civil Procedure.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.530 Failure to appear. (NRS 561.105)

1. If a party fails to appear at a hearing scheduled by the Board or Department and no continuance has been requested or granted, upon an offer of proof by the other party that the absent party was given proper notice and upon a determination by the Board or Department that proper notice was given, the Board or Department may proceed to hear evidence and consider the matter without the participation of the absent party and dispose of the matter on the basis of the evidence before it.

2. If a party’s failure to appear is justified by reasonable cause, the party may, within 10 days after service of the decision of the Board or Department in the matter, apply to the Board or Department to reopen the proceedings. The application must specify the grounds relied upon for the requested reopening. Upon finding the cause sufficient and reasonable, the Board or Department may withdraw its decision and fix a time and place for rehearing on such terms and conditions as may be just, including the imposition of costs and fees incurred in the presentation of evidence at the earlier hearing.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.540 Order of proceedings. (NRS 561.105)

1. Except as otherwise provided in this section, hearings in contested cases will be conducted in the following order:

(a) The hearing will be called to order by the Chair of the Board, the Director or the appointed hearing officer.

(b) The parties and their respective counsel, if any, and the members of the Board or Department or the hearing officer will be introduced and identified on the record.

(d) Motions to exclude witnesses from the hearing room except during testimony will be entertained.

(e) All other preliminary motions, stipulations, agreed-upon orders and administrative details will be entertained.

(f) The petitioner’s case will be presented, followed by cross-examination, redirect examination, recross-examination, questions by the Board or Department and further questions by the parties if the questions are limited in scope to those areas of questioning addressed by the Board or Department.

(g) The respondent’s case will be presented, followed by cross-examination, redirect examination, recross-examination, questions by the Board or Department and further questions by the parties if the questions are limited in scope to those areas of questioning addressed by the Board or Department.

(h) Any rebuttal evidence will be submitted in the manner provided in paragraphs (f) and (g).

(i) The closing argument of the petitioner will be given.

(j) The closing argument of the respondent will be given.

(k) The petitioner’s reply to the respondent’s closing argument may be given.

(l) The case may be submitted for deliberation or postponed for further consideration by the Board or Department.

2. Presentation of evidence pursuant to paragraphs (f), (g) and (h) of subsection 1 may proceed only as long as necessary to provide relevant evidence that is not redundant.

3. Questioning conducted pursuant to this section may proceed as long as necessary to provide all relevant testimony and evidence that is not redundant.

4. The Board or Department may waive any provision of this section if necessary to expedite or ensure the fairness of the hearing.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.550 Motion to exclude witness. (NRS 561.105) If a motion to exclude a witness is granted:

1. The Chair of the Board, Director or appointed hearing officer shall instruct the witness not to discuss the case during the pendency of the proceeding.

2. Any respondent who may also be a witness may remain in the hearing room.

3. Any corporate respondent or other entity represented by a natural person may have one representative, who may also be a witness, who may remain in the hearing room.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.560 Examination of witnesses. (NRS 561.105)

1. A party may call any other party or witness as an adverse witness. The party may question such a witness as if conducting a cross-examination.

2. Any party who is surprised by the testimony of a witness, called in good faith as a witness on the party’s behalf, may question the witness as if conducting a cross-examination.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.570 Transcription of hearing. (NRS 561.105) If any party requests and pays the costs for transcription, the Board or Department will make arrangements for a transcription of the hearing.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

NAC 561.580 Petition for reconsidering or rehearing of decision. (NRS 561.105)

1. Any petition for reconsidering or rehearing an order or decision of the Board or Department in a contested case must be filed with the Board or Department, and served on the other party, within 10 days after the effective date of the order or decision.

2. A petition for reconsideration or rehearing must include:

(a) A statement of the specific grounds upon which relief is requested; and

(b) If the party seeks to present new evidence, a statement of the cause for failure to introduce the proposed new evidence in the original proceeding and a detailed description of the evidence.

3. A response to the petition must be filed with the Board or Department, and served on the petitioning party, within 5 days after service of the petition.

4. If the hearing is under the jurisdiction of the Board, the Board may designate one of its members or a hearing officer to rule on the petition for reconsideration or rehearing. If the hearing is under the jurisdiction of the Department, the Director will rule on the petition for reconsideration or rehearing. The decision will be made within 15 days after the petition is filed. If a petition for reconsideration or rehearing is granted, the order granting the petition will state the time, date and place of the new hearing and the grounds upon which the petition is granted.

5. The filing of a petition for reconsideration or rehearing:

(a) Does not stay the decision of the Board or Department.

(b) Tolls the period in which an appeal must be filed until a final decision is made on the petition.

(Added to NAC by Bd. of Agriculture, eff. 2-20-96)

DOING BUSINESS WITH THE DEPARTMENT

NAC 561.600 Authority of Director to require transactions with or payment to Department to be conducted or made electronically or through Internet website; methods of payment; exemptions. (NRS 561.153)

1. Except as otherwise provided in subsection 3, the Director may require that a transaction with or payment to the Department which is governed by NRS 561.153 must be conducted or made electronically on or through the Internet website of the Department provided that a means to conduct such a transaction or make such a payment is available on the Internet website of the Department.

2. If a payment to the Department is required to be made electronically pursuant to subsection 1, the Director may specify the method or methods of payment accepted, including, without limitation, credit card or electronic check.

3. A person who seeks to conduct a transaction with or make a payment to the Department which the Director has determined must be conducted or made electronically pursuant to subsection 1 may request from the Director or his or her designee a waiver of the requirement to conduct the transaction or make the payment electronically. Such a waiver may be granted if the Director or his or her designee determines that:

(a) Conducting the transaction or making the payment electronically would cause the person undue hardship or extreme inconvenience; or

(b) The person does not have access to suitable means to conduct the transaction or make the payment electronically.

(Added to NAC by Dep’t of Agriculture by R084-15, eff. 12-21-2015)

NAC 561.610 Fees for certain services provided by Department or employee of Department; exceptions. (NRS 561.153, 561.315)

1. In any 12-month period, the first sample submitted by a person or group of persons to the Department’s laboratory for plant pathology or nematology services will be diagnosed free of charge. For each additional sample submitted for such services during that period, the Department will assess a fee of $30 per sample.

2. Except as otherwise provided in this subsection, in any 12-month period, the first entomological sample submitted by a person or group of persons to the Department for identification will be identified through a standard microscopic examination free of charge. For each additional sample submitted for identification during that period, the Department will assess a fee of $30 per sample. The fee established by this subsection does not include any charge or fee assessed for services rendered by a person who is not an employee of the Department. As used in this subsection, “submitted” includes, without limitation, the transmission of any image of a sample by electronic means.

3. For any on-site inspection and diagnosis of a plant disease by an employee of the Department, the Department will assess a fee of $60 per hour plus a fee for mileage, per mile traveled, in an amount equal to the standard mileage reimbursement rate for which a deduction is allowed for the purposes of federal income tax. The fees prescribed by this subsection are based upon the time and distance of the round trip between the office or other base of operations of the employee and the site of the inspection.

(Added to NAC by Dep’t of Agriculture by R077-21, eff. 12-29-2022)