Certified Final Objection No. 25 of the

Joint Legislative Committee on Administrative Rules

At its meeting on May 24, 1991, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, IV, to enter a preliminary objection to Final Proposal 91-071, of the Division of Public Health Services of the New Hampshire Department of Health and Human Services (Division) containing rules relative to fresh produce additives. The Division responded by letter dated June 11, 1991.

At its regular meeting on August 22, 1991, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 91-071. 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: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 summarizes the basis upon which the final objection has been entered:

He-P 2602.02(b)

The Committee objected that He-P 2602.02(b) violates Committee Rules 403.01(d), 403.02(c) and 402.02 as it is contrary to the public interest by not being clear and understandable and capable of uniform enforcement, and contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3.

The rule governs retail display of fresh produce. Retail grocers are required to display either the produce with the labeling of the bulk container or the produce with a "counter card" bearing the information required on the bulk container. However, the rule does not specify the physical requirements, such as overall size, lettering size, and colors of lettering and backgrounds, for such counter cards.