Certified Objection No. 5 of the

Joint Legislative Committee on Administrative Rules

At its meeting on June 19. 1987 the Joint Legislative Committee on Administrative Rules voted to make a preliminary objection to proposed procedural rules (Notice Number 87-47) of the Board of Trust Company Incorporation. The board responded on July 10, 1987 by amending some of its proposed rules to correct defects identified in the Committee's objection. On August 10, 1987 the board adopted the proposed rules, including several proposals to which the Committee had objected.

At its meeting on September 18, 1987 the Joint Legislative Committee on Administrative Rules voted, under RSA 541-A:3-e, V(c), to make a final objection to certain elements of the proposed rules filed under Notice Number 87-47. The final objection is filed with the Director of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of this 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 the 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 outlines the rules to which the Committee objects and the reasons for its objection.

1. Tru 201.03 The Committee objects to this rule on the grounds that it is not in the public interest because it contains language which is not clear and understandable and not subject to uniform application and enforcement.

The rule includes a statement that an out-of-state attorney shall not be permitted to participate in a proceeding before the board "except on motion which will not ordinarily be granted unless a member of the bar of this state is associated with him." The use of the word "ordinarily" makes the rule unclear whether association with an in-state attorney is being mandated or not or what other criteria have to be met.

2. Tru 201.05 The Committee objects to this rule on the grounds that as written it is not in the public interest because it uses language which is not clear and understandable and not subject to uniform application and enforcement.

The rule states that, "As good cause appears and as justice may require, the board at its own initiative may waive the application of any rule made by the board." The phrase, "as good cause appears and as justice may require" is so general as to provide no indication of when or under what circumstances a waiver of the rules shall take place. Moreover, the Committee believes that the use of the words "may waive" implies that even if good cause exists and justice requires it, the board might not waive a rule.

 

3. Tru 202.05 The Committee objects to this rule as being contrary to the public interest in that it uses language which is not clear and understandable and not subject to uniform application and enforcement.

This rule states that the board "may require" a party intending to use exhibits to file an original and copies prior to the hearing and "may also require" the prior filing of prepared testimony if certain stated circumstances exist. The use of the word "may" in the first instance leaves it unclear under which circumstances the board shall require the filing of an original and copies of an exhibit. The use of the word in the second case implies that the board might not require the prior filing of prepared testimony even if the stated circumstances exist.

4. Tru 203.08 The Committee objects to this rule as being contrary to the public interest in that it uses language which is not clear and understandable and not subject to uniform application and enforcement.

This rule governs continuance of a hearing. Under this rule, if requested within 7 days prior to a hearing, the continuance shall not be granted "except for good cause shown." When all of the parties are not known, continuance shall not be granted "except for unusual causes or compelling circumstances shown", and hearings shall not be continued more than twice except for the same reasons. The Committee believes that the quoted circumstances are so vague as to make it unclear to the petitioner when a continuance shall be granted and leave the rule subject to nonuniform enforcement.

5. Tru 203.10 The Committee objects to this rule as being contrary to the public interest because it u s language which is not clear and understandable and therefore not subject to uniform application and enforcement.

This rule states that brief s on f acts and law "may be required to be submitted in any proceeding." The Committee decided that as written the rule is contrary to the public interest since no criteria are given which govern when briefs shall be required.

6. Tru 204.01 The Committee objects to this rule as being contrary to the public interest because it uses language which- is not clear and understandable and not subject to uniform application and enforcement.

This rule states that, "when no printed application is provided by the board, the form to be followed in the filing of petitions may vary to the extent necessary to provide for the legal rights, duties, or privileges of a party." The Committee believes that this rule is so general that it leaves unclear what format for a petition shall be accepted. Only petitions filed under RSA 392:5 are given specific information requirements in this rule.