Certified Final Objection No. 43 of the

Joint Legislative Committee on Administrative Rules

At its meeting on May 15, 1992, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 92-029 containing proposed procedural rules of the Water Resources Council (Council). The Council responded to the preliminary objection by letter dated June 18, 1992.

At its meeting on July 24, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 92-029. 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.

Env-WRC 203.25(b)

The Committee objected that Env-WRC 203.25(b) violates Committee Rules 403.01(d), 403.02(c), 402.02(b)(2), and 402.02(a) as it is contrary to the public interest by not being clear and understandable and by not being capable of uniform enforcement, and contrary to legislative intent by conflicting with RSA 541-A:3 and RSA 541-A:18, IV.

This rule allows parties to request that the record of a case be left open for the purpose of filing additional evidence. The rule specifies the process and the criteria to be used to submit a request and in a decision to grant or deny such a request. The rule specifically allows the other party or parties to present rebuttal evidence for evidence other than testimony, but is silent as to what opportunity the other party or parties will have to crossexamine witnesses about the additional evidence. Pursuant to RSA 541-A:18, IV, parties are entitled to conduct such cross-examinations as required for a full and true disclosure of the facts. A rule which does not permit crossexamination violates, in the Committee's view, this requirement.