Certified Final Objection No. 1 of the
Joint Legislative Committee on Administrative Rules
At its meeting on November 29, 1983, the Joint Legislative Committee on Administrative Rules voted to object to final proposed rule Emp 303.02 (Notice Number 83-180) relative to reimbursable employers, as submitted to the Committee by the Commissioner of Employment Security. The Commissioner of Employment Security responded by informing the Committee that the agency would adopt the rule over the Committee's objection.
At its meeting on December 20, 1983, the Committee voted further to file the objection in certified form with the Director of Legislative Services for publication in the Rulemaking Register, under RSA 541-A:3-e, IV. The following is the text of the Committee’s objection:
The Committee objects to paragraphs (b) and (c) of final proposed rule Emp 303.02 because these paragraphs paraphrase requirements which are already in the law (specifically RSA 282-A:71 and 72).
Paragraphs (b) and (c) meet the criteria for objection under RSA 541-A:3-e, I(b)(3) and Committee rule 403.01(c) because these paragraphs do not make statutory policy specific enough. A rule should not repeat the law but specify the method the agency uses to implement the late. Committee rule 403.01(c) states that the Committee may object to a rule if "the agency has used broad language when a more specific requirement is needed." The actual method used to assign charges to reimbursable employers is not in the rule as proposed, but has been contained in documents known as internal directives (for example, Directive #495-4, dated 6-25-82). However, these directives are not actually internal because they contain more than just instructions to the agency's own employees. The method described in these directives constitutes the actual requirement binding on reimbursable employers and contains the information these employers need to determine how changes are actually assessed. Moreover, testimony has shown that Emp 303.02 as proposed can be interpreted in several different ways. This ambiguity should be eliminated by making the rule more specific. The rule should be amended to exclude the repetition of the requirements set by statute and to include the so-called "internal" policy, which is actually a specific rule binding on the public and which must be adopted as such to be enforced.
"The Committee also finds that the Fiscal Impact Statement does not address the effect of the proposed rule on reimbursable employers, including the state, and therefore meets the criteria for objection under RSA 541-A:3-e, I(b)(4) and Committee rule 404.01(c), which states the Committee can object if the rule has an effect on the state budget or political subdivisions not addressed in the Fiscal Impact Statement."