Certified Final Objection No. 142 of the
At its meeting on November 15, 2007, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2007-151 containing rules He-P 1900 of the Department of Health and Human Services (Department) relative to indoor smoking. The Department responded pursuant to RSA 541-A:13, V(c) with a cover letter and amended rule from the Commissioner dated November 30, 2007.
At its meeting on December 27, 2007, the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2007-151. 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 of a rule is filed with the director under subparagraph V(f), the burden of proof thereafter 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 basis for the Committee’s final objection:
The Committee objected that He-P 1906.02 is, pursuant to Committee Rule 401.05(a), beyond the authority of the Department because there is no specific statutory authority for the rule as required by RSA 541-A:22, III(a).
He-P 1906.02 addresses imposition of penalties under RSA 155:64-77, the Indoor Smoking Act. RSA 155:76, III states that “[a]ny person in charge who repeatedly fails to comply with any of the provisions of this subdivision and rules adopted pursuant to it and for which the department seeks a penalty under RSA 155:74 shall be guilty of a violation and, not withstanding RSA 651:2, shall be subject to a fine of not less than $100.” He-P 1906.02(a) states that the penalty for the person in charge “shall be $100 for the first violation, and $200 for each subsequent violation.” He-P 1906.02(c)(2) indicates that the penalty is imposed by the Department.
The Committee determined that there was a significant question on the apparent lack of authority for the Department to impose fines administratively, including $200 for each subsequent violation. Pursuant to RSA 541-A:22, III(a), an agency shall not provide for penalties or fines in its rules unless such penalties and fines are specifically authorized by statute. Legislative history indicates that the reference to a “violation” in RSA 155:76, with a penalty “notwithstanding RSA 651:2”, meant an offense under the criminal code pursuant to RSA 625:9, for which penalties are otherwise specified pursuant to RSA 651:2.
Certified Final Objection No. 142 of the
The Department had initially indicated in its response to the preliminary objection that the term “violation” is now used in many of the statutes enforcing its regulatory responsibilities, citing specifically the areas of food protection (RSA 143-A), health facilities (RSA 151), and child care licensing (RSA 170-E). The Department said that in the case of all of these specified areas the statutes use the term “violation”, and the Department enforces the statutes and the rules by imposing fines administratively. However, in the case of all these areas, the Committee noted that these statutes specifically authorize administrative fines for violations of those RSA chapters and the rules adopted pursuant to them. See RSA 143-A:9 and 143:10-a, RSA 151:9, I(l) and 151:16-a,and RSA 170-E:11, VI and 170-E:21-a. By contrast, RSA 155:76 does not designate the fines as administrative, and RSA 155:71 granting rulemaking authority for the Commissioner of the Department does not refer to fines.
On December 27, 2007, the Committee also voted pursuant to RSA 541-A:13, VII(b) to support the introduction of a joint resolution regarding rule He-P 1906.02, which prevents that particular section from being adopted except under the circumstances specified in RSA 541-A:13, VII(c). The Committee voted a sense of the Committee that the remainder of He-P 1900 be deemed effectively approved by the Committee.