Certified Final Objection No. 40 of the

Joint Legislative Committee on Administrative Rules

At its meeting on January 17, 1992, 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 91-230 containing proposed amendments to the rules of the Board of Trustees of the Land Conservation Investment Program (LCIP) relative to the Board's complete set of rules. The LCIP responded by letter dated February 17, 1992.

At its meeting on May 1, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 91-230. 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:

Land 202.01(c)

The Committee objected that Land 202.01(c) is, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 541-A:16 as discussed below.

This rule did not exist as part of the final proposal, but was added as part of the objection response. This paragraph states that "the board shall prepare minutes or a verbatim transcript of such [prehearing] conferences," and that "the minutes or transcripts shall become part of the record for decision." The Committee determined that the first problem is that RSA 541-A:16, VII, requires that the entirety of all oral proceedings must be recorded verbatim. Agencies do not have the option of substituting minutes for verbatim recordings.

The Committee determined that the second problem is that RSA 541-A:16, V, provides that prehearing conferences are intended to be informal and have as one of the goals the settlement of the dispute. At such conferences parties must be able to discuss the facts and law candidly without fear that something said in the spirit of attempting to settle the dispute will be used as a basis for the decision if settlement prior to hearing cannot be accomplished. If such statements will be used for the purposes of rendering a decision, it will have a chilling effect upon attempts to settle disputes. It is clear to the Committee, however, that such statements are required to be recorded, and that they are part of the record, but are not to be used in rendering the decision, pursuant to RSA 541-A:16, VIII.