Certified Final Objection No. 71 of the

Joint Legislative Committee on Administrative Rules

At its meeting on March 17, 1995, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, to enter a preliminary objection to Final Proposal 94-168 containing proposed rules of the Fish and Game Department relative to aquaculture. The Department responded in writing on April 6, 1995.

At its meeting on April 21, 1995, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 94-168. 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:13, VI:

After a final objection by the committee is filed with the director under subparagraph V(d), 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, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. 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:

Fis 807.11(d)(1) and (3); Fis 807.11(h)

The Committee objected that Fis 807.11(d)(1), Fis 807.11(d)(3) and Fis 807.11(h) violate Committee rule 401.01 by being beyond the authority of the Executive Director of the Fish and Game Department, and violate Committee rule 402.02 by being contrary to legislative intent by conflicting with RSA 211:62-e, II-a and RSA 541-A:22, III(c), as discussed below.

Pursuant to RSA 541-A:22, III(c), agencies are prohibited from imposing fee requirements "unless specifically authorized by a statute enforced or administered by" the agency. The statutory authority cited by the Department in its final proposal and its objection response, RSA 211:62-e, II-a, provides authority for "permit fee schedules." The Committee construed this to mean that the Director has the authority to adopt rules containing permit fees (i.e., license fees). The Director has adopted annual license fees for the various types of aquaculture operations. These fees are found in Fis 807.11(a),(b),(c), and(d)(2).

However, the Committee determined that Fis 807.11(d)(1), (d)(3), and (h) contain fees for aquaculture operations situated in marine or estuarine waters that are not license fees. They include fees for license application and renewal that are in addition to the annual license fee, and a fee for harvesting/processing. Because the Committee determined that these fees are not license fees, the Committee concluded that RSA 211:62-e, II-a does not provide the specific authority required by RSA 541-A:22, II(c), to adopt such fees as rules. The Committee also determined that no other statute provides such specific authority.