Certified Final Objection No. 55 of the
Joint Legislative Committee on Administrative Rules
At its meeting on November 20, 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 92-186 containing proposed rules of the Commissioner of Safety (Commissioner) relative to sexual offender registration. The Commissioner responded to the preliminary objection by letter dated December 14, 1992.
At a special meeting on February 1, 1993, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 92-186. 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 for the Committee's final objection:
The Committee objected that Saf-C 1202.01(a)(2) is, pursuant to Committee Rules 402.02(b)(2), 403.01(d), and 403.02(c), respectively, contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3, and contrary to the public interest by not being clear and understandable and capable of uniform enforcement.
This section imposes the general requirement that all persons who have been convicted for violation of the New Hampshire statutes specified must be registered with the Division of State Police. The rule then states that, pursuant to RSA 632-A:11, III(b), the registration requirement applies to all those who have been convicted of a violation of any other jurisdiction's law that is "reasonably equivalent" to the New Hampshire statutes listed. The Committee entered a preliminary objection to the rule, having determined that it is unclear how it would be determined that another jurisdiction's law is or is not "reasonably equivalent."
The Commissioner responded by stating that "when determining if a conviction is 'reasonably equivalent' to RSA 632-A:2, RSA 632-A:3, or RSA 632-A:3, the Department will compare the elements of the New Hampshire sexual offender statutes to the elements of the non-New Hampshire laws." However, the Commissioner did not amend the rule to reflect this.
Although the method of determining reasonable equivalence outlined in the response letter seemed appropriate, the Committee concluded that it could not be enforced as it has not been through the rulemaking process as required by RSA 541-A. Pursuant to RSA 541-A:12, I, "no agency rule is valid or effective against any person or party, nor may it be invoked by the agency for any purpose, until it has been filed as required by this chapter." The general steps for rulemaking are specified in RSA 541-A:3. The Commissioner's explanation did not go through the process mandated by RSA 541-A:3 and, in the Committee's view, RSA 541-A:12, I, forbids its enforcement by the Department.
The Committee analogized this to a legislator having a provision that he wants to become law, but never submitting that provision to the drafting, introduction and consideration process that all legislation is required to receive. The Committee noted that the provision would have no status entitling it to be legally enforced since it would not have gone through the process mandated by law to give it such status. Similarly, the method set forth in the letter by the Commissioner did not go through the process mandated by law to entitle the Department to legally enforce it.