Certified Final Objection No. 126 of the

Joint Legislative Committee on Administrative Rules

At its meeting on October 16, 2003, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2003-112 containing rules Pes 200 of the Pesticide Control Board (Board) relative to procedures.

At its meeting on December 4, 2003 the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2003-112. 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:

Pes 205

The Committee objected that Pes 205 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board.

Pes 205 contains procedures for the Division of Pesticide Control (Division) in the Department of Agriculture relative to cease and desist orders issued by the Division pursuant to RSA 430:42, II for violations of RSA 430:28-50 or rules of the Board. In the view of the Committee, the rulemaking authority of the Board pursuant to RSA 430:31, IV does not include authority relative to procedures for the Division’s cease and desist orders. The Committee determined that the Board in this matter is an appellate board with rulemaking authority under RSA 430:31, IV(m) for procedures for the appeals to the Board pursuant to RSA 430:44 from orders or decisions of the Division. Therefore, the Committee concluded that, absent legislative change, the Commissioner of the Department of Agriculture and not the Board has rulemaking authority for rules on cease and desist orders of the Division.