Certified Final Objection No. 56 of the

Joint Legislative Committee on Administrative Rules

At its meeting on September 18, 1992, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, IV, to enter a preliminary objection to Final Proposal 92-139 containing the proposed rules Pari 500 of the Pari-mutuel Commission (Commission) relative to greyhound racing. The Commission responded by letter dated October 14, 1992.

At its 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 92-139. 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.

Due to the number of bases for objection, some of the rules to which a final objection has been filed have not been identified in this text. Such unidentified rules, and the bases for final objection, are specified in the annotations to the rules made by the Committee's staff. Copies of the Commission's rules Pari 500 relative to greyhound racing with the annotations made by the Committee's staff can be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 114 in the State House, at the normal copying rate of $0.20 per page.

The following summarizes the bases upon which the final objection has been entered:

1. Uniform System of Drafting and-Numbering

The Committee objected that rules Pari 500 are, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by violating RSA 541-A:3-a, VIII as discussed below.

Pursuant to RSA 541-A:3-a, VIII, the agency must conform to the uniform system of numbering and drafting developed by the Director of Legislative Services and contained in the Rulemaking Manual. The Committee had made a preliminary objection that the rules were contrary to legislative intent by the violation of RSA 541-A:3-a, VIII and contrary to the public interest by not being clear and understandable and capable of uniform enforcement. The Committee recommended that the rules be amended generally so that, for example, the rules use "shall" where appropriate, use paragraphs and subparagraphs that form complete sentences with appropriate numbering, and use appropriate language with criteria for discretionary decisions pursuant to Ls-A 402.08(c) of the Rulemaking Manual.

The Commission did not amend these rules in response to the objection. Therefore the Committee made a final objection, on the same bases as f or the preliminary objection, to the rules as noted in the annotations which do not conform to the uniform system of numbering and drafting.

2. Clarity and Delegation of Rulemaking

The Committee objected that some of the rules in Pari 500 as noted in the annotations are, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement, and, pursuant to Committee Rule 402.02(a) and 402.02(b)(2), contrary to legislative intent by violating RSA 541-A:12, III(e) and RSA 541-A:2, I(b), and by allowing requirements to be set orally instead of through the rulemaking process mandated by RSA 541-A:3 as discussed below.

In the Committee's view, there are rules, as noted in the annotations, which set requirements which were vague or general, use terms that haven't been defined, govern discretionary decisions of the Commission or the judges without criteria or procedure or both, or appear by their vague or general nature to delegate rulemaking authority to the judges as Commission agents in violation of RSA 541-A:12, III(e). The Committee had made a preliminary objection that these rules were therefore contrary to the public interest by not being clear and understandable and capable of uniform enforcement and contrary to legislative intent by violating RSA 541-A:12, III(e), by allowing requirements to be set orally instead of through the rulemaking process mandated by RSA 541-A:3, and by violating RSA 541-A:2, I(b), requiring rules for all formal and informal procedures available.

The Commission did not amend these rules in response to the Committee's objection. Therefore the Committee made a final objection, on the same bases as for the preliminary objection, to the rules as noted in the annotations.

3. Authority and Legislative Intent

The Committee objected that some of the rules in Pari 500 as noted in the annotations are, pursuant to Committee Rule 401.01(c), beyond the authority of the Commission and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by violating the statutes cited in the annotations.

The Committee had made a preliminary objection that there are some rules, as noted in the annotations, which appeared to the Committee to be beyond the agency's authority or contrary to legislative intent by violating the statutes cited. For example, this was true relative to rules governing fines such as Pari 510.02 and 510.06, where the Committee could not locate specific statutory authority. RSA 541-A:12, III(a) forbids the imposition of fines by rules without specific :statutory authority. The rulemaking authority cited by the Commission with the final proposal, RSA 284:12, II and IV, does not mention fine authority by rule. Pari 514.05 appeared to set a fee without specific statutory authority as required by RSA 541-A:12, III(c), and Pari 509.31(c) appeared to set a monetary penalty without authority as required by RSA 541-A:12, III(a).

The Commission did not amend these rules in response to the Committee's objection, and the response did not address the issue of where authority could be located or why the statutes cited were not violated. Under these circumstances the Committee therefore made a final objection, on the same bases as for the preliminary objection, to the rules as noted in the annotations.

4. Forms

The Committee objected that some of the rules in Pari 500 as noted in the annotations are, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement, and, pursuant to Committee rule 402.02(a) and 402.02(b)(2), contrary to legislative intent by violating RSA 541-A:2, I(b) and by allowing requirements to 'be set other than through the rulemaking process mandated by RSA 541-A:3, as discussed below.

There are some places in the rules where forms are mentioned but where the requirements in the forms have not been specified in the rules themselves as required by RSA 541-A:2, I(b), mandating a description of all forms. The rules also mention a hearing process, but the rules do not contain complete rules on hearings, thereby violating RSA 541-A:2, I(b), requiring that all formal and informal procedures available be specified by rule. The Committee made a preliminary objection that these rules were contrary to the public interest by not being clear and understandable and capable of uniform enforcement and contrary to legislative intent by violating RSA 541-A:2, I(b) and by allowing requirements to be set other than through the rulemaking process mandated by RSA 541-A:3.

The Commission did not amend these rules in response to the Committee's objection. Therefore the Committee made a final objection, on the same bases as for the preliminary one, to the rules as noted in the annotations.