Certified Final Objection No. 2 of the

Joint Legislative Committee on Administrative Rules

At its meeting on September 20, 1985, the Joint Legislative Committee on Administrative Rules, pursuant to RSA 541-A:3-e, V(a) voted to make a preliminary objection to the proposed rules in Final Proposal, Notice Number 85-143 of the Department of Revenue Administration relative to taxation of prepackaged food items. Pursuant to RSA 541-A:3-e, V(b) the Commissioner of the department responded with a different proposal on October 4, 1985. It submitted a second response on October 11, 1985.

At its meeting on October 18, 1985, the Committee voted to request the Commissioner of the Department of Revenue Administration to withdraw the proposal, now rewritten as rule Rev 702.01(f) and an amendment to Rev 701.07, and begin the rulemaking process again without the 90-day delayed implementation clause which was inserted in Rev 702.01(f)(3) subsequent to the Committee's preliminary objection on September 20, 1985. The Department. filed the proposal anyway pursuant to RSA 541-A:3-f, III, after changing it by dropping the amendment to Rev 701.07.

At its meeting on November 15, 1985, the Committee voted pursuant to RSA 541-A:3-e, V(c) to file a final objection to the proposed rule Rev 702.01(f). This final objection is hereby filed in certified form with the Director of Legislative Services for publication in the Rulemaking Register. The legal effect of this certified 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 an implied legislative authorization of its substantive or procedural lawfulness.

The following is the text of the Committee's objections:

1. The rule is contrary to the public interest because it is not clear and understandable and cannot be uniformly enforced. The rule also imposes an economic hardship on the citizens of the state not recognized in the fiscal impact statement. Moreover, since the rule has been completely rewritten and is now entirely different from the final proposal, the public at large has had no opportunity to review this rule in the normal rulemaking process. Only certain officials, legislators, and interest groups have seen it. The Committee, without a new rulemaking proceeding, cannot therefore say the rule is uniformly enforceable, clear and understandable, and does not impose an economic hardship not recognized in the fiscal impact statement.

2. Since the chapter Rev 700 rules appear to have expired on October 12, 1985, the Committee objects on the basis that the rule Rev 702.01(f) as filed is contrary to legislative intent. It cannot be uniformly applied because it cannot be uniformly enforced without the remainder of the chapter Rev 700 rules to which, in fact, Rev 702.01(f)(1)(b) makes reference. It is also therefore not clear and understandable.

3. The Committee objects to the rule as filed as being contrary to legislative intent because, pursuant to Committee Rule 402.02, specific statutes were violated during the rulemaking process. First, the process violated RSA 541-A:3-f, II. When the proposed amendment to Rev 701.07 was dropped from the proposal before Rev 702.01(f) was filed, a change was made to the final proposal other than in response to an objection or expressed concern of the Committee. RSA 541-A:3-e., V(b) was also violated, for any responses to the Committee preliminary objections must be made within 14 days of receiving the written objection. Both the response on October 11, 1985, to the Committee's objection and the dropping of the proposed amendment to Rev 701.07 were made after the 14-day period. RSA 541-A:3-f, III and II were violated by Rev 702.01(f)(3) because the rule, by delaying its application or implementation in its entirety, has created its own effective date instead of being effective upon filing, and this delay was not a change germane to the Committee's preliminary objection or expressed concern.

4. The Committee objects to the rule as a whole as being contrary to legislative intent since the rule as filed, by being entirely rewritten from the proposal before the Committee on September 20, 1985, is more than a "germane change" to a Committee objection permitted under RSA 541-A:3-f, II. The rule as filed is in a form that has not been seen in the normal public notice and hearing process, and the fiscal impact is different.