Certified Final Objection No

Certified Final Objection No. 121 of the

Joint Legislative Committee on Administrative Rules

At its meeting on November 16, 2001, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2001-108 containing rules of the Department of Health and Human Services relative to shellfish sanitation. The objection was based upon the issues outlined in the annotations made to the rules by Committee staff. The Department responded by letter dated November 28, 2001.

At its meeting on January 18, 2002, the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2001-108. 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 a final objection is stated in RSA 541-A:13, VI:

After a final objection by the committee to a provision in the rule is filed with the director under subparagraph V(f), the burden of proof shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. 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 an implied legislative authorization of its substantive or procedural lawfulness.

The following summarizes the bases for the Committee’s final objection:

He-P 2150.02(v)(2)

The Committee objected that He-P 2150.02(v)(2) is, pursuant to Committee Rules 401.02 and 402.02(a), beyond the authority of the Department and contrary to legislative intent by conflicting with RSA 143:20 and RSA 541-A:8.

As proposed by the Department, He-P 2150.02(v)(2) would include "scallops" within the definition of "shellfish." The statutory definition of "shellfish," found in RSA 143:20, only includes "oysters, clams or mussels." Under RSA 143:20-28, the Department is required to ensure the safety of shellfish being sold for food. Since the definition of "shellfish" in RSA 143:20, does not include "scallops," the Committee determined that RSA 143:20-28 does not provide authority for the Department to regulate scallops, and that He-P 2150.02(v)(2) conflicts with RSA 143:20.

Pursuant to Chapter 4, § 3.7 of the New Hampshire Drafting and Procedure Manual for Administrative Rules (Manual), if a term is already defined by statute, it is not to be defined differently by rule. Because the statutory and rule definitions are not consistent, the Committee determined that He-P 2150.02(v)(2) violates Chapter 4, § 3.7 of the Manual. As compliance with the Manual is required by RSA 541-A:8, the Committee determined that the violation of Chapter 4, § 3.7 of the Manual conflicts with RSA 541-A:8.