Certified Final Objection No. 148 of the

 

Joint Legislative Committee on Administrative Rules

 

            At its meeting on September 20, 2012, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2012-106 containing various amendments to He-P 2300 on homestead food operations from the Department of Health and Human Services (Department).  The Department responded pursuant to RSA 541-A:13, V(c) with a letter and copy of the rules from the Commissioner dated October 1, 2012, indicating that no changes were made to the rules in response to the objection.

 

At its meeting on October 4, 2012, the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2012-106.  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 to a provision of a rule is filed with the director under subparagraph V(f), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision 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:

 

            He-P 2310.01(d) intro. and (d)(7); He-P 2311.04 intro. and (g)

 

            The Committee objected that He-P 2310.01(d) introduction and (d)(7), and He-P 2311.04 introduction and (g), pursuant to Committee Rule 402.02(a), were contrary to legislative intent by conflicting with RSA 143-A:12, IV.  RSA 143-A:5 had been amended, and RSA 143-A:12 had been repealed and re-enacted, by Chapter 163 of the Laws of 2012 (HB 1402), effective June 7, 2012.

 

He-P 2310.01(d) introduction and (d)(7) specify the labeling requirement for homestead food products made in a homestead food operation exempt from licensure pursuant to RSA 143-A:5, VII and RSA 143-A:12, II.  The rules require that the label state:  “This product is exempt from New Hampshire licensing and inspection.”  He-P 2311.04 introduction and (g) specify the labeling requirement for homestead food products made in a homestead food operation that is subject to licensure pursuant to RSA 143-A:12, III.  The rules require that the label state:  “This product is made in a residential kitchen licensed by NH DHHS.”

 

The Committee noted that “homestead food products” are defined in RSA 143-A:12, I(c) and proposed rule He-P 2301.01(w) without regard to exempt versus non-exempt homestead food operations, and that RSA 143-A:12, IV requires a statement on exemption from licensure on labels of “all homestead food products sold in packages from the home kitchen or farm stand of a homestead food operation or at farmer’s markets.”  The label must state that, “This product is exempt from New Hampshire licensing and inspection.”  Without further change in the objection response to the rules to address this inconsistency, the Committee determined that the rules He-P 2310.01(d) introduction and (d)(7), and He-P 2311.04 introduction and (g), were contrary to legislative intent by being in conflict with RSA 143-A:12, IV.