Certified Final Objection No. 45 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 92-033 containing proposed rules of the Sweepstakes Commission (Commission). The Commission responded to the preliminary objection by letter dated May 27, 1992.
At a special Committee meeting on October 9, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 92-033. 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.
1. Rulemaking Notice Form
The Committee objected that the Rulemaking Notice Form submitted by the Commission violated Committee Rule 401.01(c) as it was contrary to legislative intent by conflicting with the requirements of RSA 541-A:3-a, III(f) through (g).
Pursuant to RSA 541-A:3-a, III(f) through (h), each agency is required to provide, in the rulemaking notice, a summary and analysis of the rulemaking proceeding proposed by the agency. The agency is required to provide a concise summary explaining the effect of the rule, a listing of those affected, and a summary of the consequences that would follow if the rule(s) were not adopted. The summary and analysis provided by the Commission for these rules does not appear to include the required information. The summary and analysis stated, in its entirety, the following:
The rules apply to Instant Game players and prize claimants [sic].
The rules allow the Sweepstakes Commission to set the ticket price,
establish the prize claiming procedures, ticket validation, voided
ticket and termination of each Instant Game.
As the notice did not, in the Committee's view, comply with the notice requirements, the Committee objected that the rules are contrary to legislative intent by conflicting with RSA 541-A:3-a, III(f) through (g).
2. Missing Page
The Committee objected that Final Proposal 92-033 violates Committee Rules 401.01(c), 403.01(d), and 403.02(c) 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.
When the final proposal was filed by the Commission with the Office of Legislative Services, Page 3 of the rules was not included in the filing. Unless the Committee objected to its absence, the Commission could not, at a later date, include this page. This is because agencies are prohibited from adopting a text that is different from the text of the final proposal except to the extent that the text has been amended in direct response to a preliminary objection by the Committee, or to the extent that minor editorial changes have been made. Therefore, to allow the Commission the opportunity to insert the missing text, the Committee entered a preliminary objection. The Commission, however, failed to avail itself of this opportunity to insert the missing page. The Committee concluded that the rules are contrary to the public interest and contrary to legislative intent because of the absence of the page of rule text.