Certified Final Objection No. 37 of the

Joint Legislative Committee on Administrative Rules

At its meeting on December 20, 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 91-210 containing proposed rules of the Commissioner of the Department of Safety (Commissioner) relative to the uniform recommended fine schedule for boating violations. The Commissioner responded by letter dated January 14, 1992.

At its meeting on January 31, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 91-210. 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:

Saf-C 410.02

The Committee objected that rule Saf-C 410.02, pursuant to RSA 541-A:3-e, IV(b) and (c), and Committee rules 402.02(a) and (b)(2), 403.01(d), and 403.02(c), is contrary to legislative intent and contrary to the public interest as discussed below.

In the final proposal this rule stated "the fines for the following violations shall be determined by the court when a person has violated" any of the statutes in the list that follows. Pursuant to RSA 270:11, the Commissioner is required to adopt rules relative to "a recommended uniform fine schedule for any boating violations, which shall be submitted to the supreme court for their use under RSA 502-A:19-b, V." The Committee determined that proposing rules which did not include recommended fines violated RSA 270:11. Therefore, the Committee objected that the rules are 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 and conflicting with RSA 270:11.

The Commissioner's response did not include the recommended fines for the list of violations in that rule. The response stated that "the Department will not establish fines for the violations listed in Saf-C 410.02. Violations of this nature are very serious and must be weighed individually by the courts. It may be unfair if the fine is predetermined." The Commissioner also stated that "by including [in these rules] violations for which the court will establish fines, boaters are placed on notice that if charged with one of the seven violations listed in Saf-C 410.02(a)-(g), a fine will be charged, but the amount will be established by a judge."

The Committee determined that the argument advanced by the Commissioner is inconsistent with the grant of rulemaking authority in RSA 270:11 and the very purpose for such a recommended fine schedule. The rulemaking passage makes it clear that the schedule is to be used as a recommendation to the Supreme Court. It will be the Supreme Court, pursuant to RSA 502-A:19-b, V, and subject to approval from the Fiscal Committee, that will devise the actual schedule of fines to be used by the trial courts. Thus, the concern relative to the fairness of having a "predetermined fine" for certain violation is misplaced, as the Commissioner is not determining the amount of the fine imposed by the trial court for such violations, but is only making a recommendation to the Supreme Court. Additionally, the Committee determined that the Commissioner's reasoning has not been applied consistently, because it would be equally "unfair" to "predetermine" the fine for the 29 violations listed in Saf-C 410.01, and not just the 7 listed in Saf-C 410.02. Yet, in his response the Commissioner expressed no concern relative to the fairness of recommending fines for the 29 other violations. As recommendations for fines for violations of the statutes listed in this rule had not been included, the Committee entered a final objection on the same bases as the preliminary objection.