Certified Final Objection No. 48 of the

Joint Legislative Committee on Administrative Rules

At its meeting on June 23, 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 92-067 containing proposed rules of the Commissioner of the Department of Resources and Economic Development (Commissioner) relative to the operation of wood processing mills. The Commissioner responded to the preliminary objection by letter dated July 16, 1992.

At its 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 92-067. 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 bases upon which the final objection has been entered:

Res-F 402.01

The Committee objected that Res-F 402.01, pursuant to Committee Rule 401.01(c), is beyond the authority of the Commissioner as discussed below.

Res-F 402.01 states that "if a mill is found operating in violation of any law or rule, the director or his authorized agent may cause such mill to cease operation until applicable laws and rules have been complied with." Pursuant to RSA 541-A:15, II, an agency may not revoke or suspend a license without an opportunity for a hearing, unless, pursuant to RSA 541-A:15, III, the agency finds that public health, safety or welfare requires emergency action, whereupon an adjudicative proceeding shall commence not later than 10 working days after the agency action. Pursuant to RSA 224-A:3, wood processing mills require registration with the Director of the Division of Forest and Lands to operate, and the Committee determined that this meets the definition of a "license" in RSA 541-A:l, VI. Since Res-F 402.01 did not provide for an opportunity-for a hearing, the Committee determined that RSA .541-A:15, II is violated by the rule and therefore the agency has no authority to order the mill to cease operation without such an opportunity given.