Certified Final Objection No. 11 of the
Joint Legislative Committee on Administrative Rules
At its meeting on February 16, 1990, the Joint Legislative Committee on Administrative Rules (Committee) voted to make a Preliminary Objection to Final Proposal 89-197, containing proposed rules of the Commissioner of the Department of Safety relative to hazardous materials grants. The Department responded on March 15, 1990, by amending some of the proposed rules to address some of the Committee's concerns.
At its meeting on April 20, 1990, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to make a Final Objection to three of the rules in Final Proposal 89-197: Saf-C 607.03(f)(7); Saf-C 607.05(b); and Saf-C 607.08(d). The Final Objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of this objection is stated in RSA 541-A:3-e, VI:
After a committee objection is filed with the director under paragraph V(c), to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the rule to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, and is in the public interest. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be implied legislative authorization of its substantive or procedural lawfulness.
The following outlines the rules to which the Committee objects and the reasons for the Final Objection:
1. Saf-C 607.03(f)(7)
The Committee objected that the rule is not in the public interest, pursuant to Committee Rule 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application, and contrary to legislative intent, pursuant to Committee Rule 402.02, by leading to oral rulemaking in violation of RSA 541-A:3.
This rule requires that, when applying for a hazardous materials grant, applicants must provide information relative to "whether any hazardous materials incidents have occurred in the region in the past." The rules do not define "incident" and it is unclear what information is actually being required.
2. Saf-C 607.05(b)(2) through (10)
The Committee objected that the rule is not in the public interest, pursuant to Committee Rule 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application, and contrary to legislative intent, pursuant to Committee Rule 402.02, by leading to oral rulemaking in violation of RSA 541-A:3.
Paragraph (a) of this section states that "meeting a requirement shall result in a 'pass' designation being assigned to the requirement." Paragraph (b) then sets forth the criteria for determining whether the requirements are met, but subparagraphs (b)(2) to (b)(10) begin with the language "an applicant shall be assessed a pass designation..." The use of two different terms, "assigned" and "assessed," is confusing and it is unclear whether they are intended to be used interchangeably or to convey different concepts.
3. Saf-C 607.08(d)
The Committee objects that the rule is contrary to the public interest, pursuant to Committee Rule 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application, and contrary to legislative intent, pursuant to Committee Rule 402.02, by leading to oral rulemaking in violation of RSA 541-A:3 and by conflicting with RSA 541-A:3-a, VIII, relative to agencies complying with the uniform system of numbering and drafting.
The rule provides that the review committee created under these rules "shall reserve the right to verify" any information provided in support of the application by the applicant. The term "reserves the right" is synonymous with "may." The word "may" is only to be used for instances in which the rulemaker gives members of the regulated community an option to exercise. The use of the word "may" to denote agency discretion is prohibited by Ls-A 402.08(c) of the uniform system of numbering and drafting contained in the Rulemaking Manual. Pursuant to RSA 541-A:3-a, VIII, agencies are required to comply with the uniform system of numbering and drafting developed by the Director of the Office of Legislative Services.