Certified Final Objection No. 8 of the
Joint Legislative Committee on Administrative Rules
At its meeting on October 20, 1989, the Joint Legislative Committee on Administrative Rules (Committee) voted to make a Preliminary Objection to Final Proposal 89-132, containing proposed rules of the Commissioner of the Department of Safety relative to the hearing process for ski craft. The Department responded on October 31, 1989, by amending some of the proposed rules to address some of the Committee's concerns.
At its meeting on November 17, 1989, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to make a Final Objection to four of the rules in Final Proposal 89-132: Saf-C 411.02(b); Saf-C 411.04; Saf-C 411.05; and Saf-C 411.06(c). 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 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 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 implied legislative authorization of its substantive or procedural lawfulness.
The following outlines the rules to which the Committee objects and the reasons for the Final Objection:
1. Saf-C 411.02(b) The Committee objects that Rule Saf-C 411.02(b) is not in the public interest, pursuant to Committee Rule 403.01(d) and 403.02(c), by not being clear and understandable and by not being capable of uniform application, respectively, and contrary to legislative intent by leading to oral rulemaking in violation of RSA 541-A:3.
Rule Saf-C 411.02(b) states that "in scheduling hearings under these rules, the commissioner or his agent shall give preference to those lakes, ponds or rivers noted in Section 3 of Chapter 409 of the laws of 1989." Subparagraph (b)(1) requires that if two petitions for ski craft hearings are received at the same time, the Department must determine if either pertains to a body of water on the preference list. Subparagraph (b)(2) then provides that if one of the petitions concerns a body of water on the preference list it shall "be reviewed and scheduled for a public hearing before a petition for a [body of water] not listed." The Committee determined that it is unclear whether (b)(2) requires that no petition for a body of water not listed be heard until after a petition for a listed body of water is heard, or whether this exclusion will only apply to such petitions that are received at the same time.
2. Saf-C 411.04 the Committee objects that Rule Saf-C 411-04 is contrary to legislative intent, pursuant to Committee Rule 402.02, by conflicting, at least in some instances, with: RSA 541-A:9 relative to hearings; the definition of "adjudicative proceeding" in RSA 541-A: 1, I; and the requirements governing adjudicative proceedings in RSA 541-A:16 through 21.
RSA 270:75, I, limits those who can submit petitions to residents and property owners in the town(s) in which the body of water is situated. The Commissioner must, pursuant to RSA 270:75, III, hold a hearing to determine whether to grant such a petition. At that hearing the Commissioner must consider seven factors, two of which necessarily require the determination of the petitioners' rights. Pursuant to RSA 270:75, III(F) and (g), the sixth and seventh factors that must be considered at the hearing include, respectively, the necessity of ensuring access and the right of appropriate use of the body of water in question, and whether a determination is necessary to ensure the safety of persons and property.
RSA 541-A:l, X, defines a party as anyone "named or admitted as a party, or properly seeking and entitled as a right to be admitted as a party." The Saf-C 411-01(a)(2), must be identified; the petitioners, pursuant to Saf Commissioner must, pursuant to RSA 270:75, III, hold the hearing; the petitioners receive personal notice of the hearing, pursuant to Saf-C 411.03(a); and Saf-C 411.01(a) requires that the petitioners specify the relief requested. Therefore, the Committee determined that the petitioners were parties.
Pursuant to RSA 541-A:l, III, a "contested case" is a proceeding in which the legal rights, duties or privileges of a party are required by law to be determined after there has been an opportunity for a hearing. Further, RSA 541-A:I, I, defines "adjudicative proceeding" as the procedure that must be followed in contested cases and specifies that this procedure has been set forth in RSA 541-A:16 through 21. As already indicated above, at least two factors concerning the petitioners' rights must be considered and determined in every hearing. Thus, the hearings were determined by the Committee to satisfy the definition of adjudicative proceeding, and RSA 541-A:16 through 21 apply. Further, RSA .541-A:17, I(b), grants those who demonstrate that their "rights, duties, privileges, immunities or other substantial interests may be affected" right to participate in the hearing. [Emphasis added.] Those who qualify for participation under RSA 541-A:17, I(b), were determined by the Committee to satisfy the second part of the definition of "party;" i.e., "those properly seeking and entitled as a right to be admitted as a party."
The Committee also determined that there were al so other indicia that the nature of the hearings is adjudicative rather than legislative. These include:
1. Pursuant to RSA 270:75, II, the statute is specific as to who can petition the Commissioner.
2. The petitioners, pursuant to Saf-C 411.01(a)(4), must ask for specific relief.
3. Testimony may, if required by the presiding officer pursuant to Saf-C 411.04(d), be made under oath.
4. There is a burden of proof, placed upon the petitioners, and the standard of proof is by a preponderance of the evidence, pursuant to Saf-C 411.04(a). This is the same as in other adjudicative hearings.
5. RSA 270:75, III, requires that an order be issued, and the statutory definition of "order" in RSA 541-A:I, IX refers to a final disposition other than a rule, i.e., statement of general applicability.
The Department, in its response to the Preliminary Objection, indicated that RSA 541-A does not apply and made no changes to implement the procedural provisions of RSA 541-A:16 through 21.
3. Saf-C 411.05 The Committee objects that Rule Saf-C 411.05 is not in the public interest, pursuant to Committee Rule 403.01(d) and 403.02(c), by not being clear and understandable and by not being capable of uniform application, respectively, and contrary to legislative intent by leading to oral rulemaking in violation of RSA 541-A:3.
The proposed rule required that the Department issue a "decision and order" within 30 days of the hearing. The final proposed and adopted rule, however, only requires that the Commissioner "shall issue the decision within 30 days after the hearing," and does not require that an order be issued in the case of a petition being granted in whole or in part. The Department did not address this issue in its response to the Preliminary Objection.
4. Saf-C 411,06(c) The Committee objects that Proposed Rule Saf-C 411.06(c) is not in the public interest, pursuant to Committee Rule 403.01(d) and 403.02(c), by not being clear and understandable and by not being capable of uniform application, respectively, and contrary to legislative intent by leading to oral rulemaking in violation of RSA 541-A:3.
Paragraph (c) states that "the commissioner shall have 10 days to decide if the request [for review of the record for an adverse decision after the hearing] shall be granted." In the Department's response to the Preliminary Objection, the rule was amended to indicate that the decision would be affirmed or overturned based upon the factors stated in RSA 270:75, III(a) through (g). However, the Committee determined that the Commissioner will not, as stated in the rule, take into consideration "the factors stated in RSA 270:75, III (a)-(g)," but, rather, he will take into consideration the evidence offered at the hearing relative to those factors.