Certified Final Objection No. 24 of the
Joint Legislative Committee on Administrative Rules
At its meeting on February 15, 1991, 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 90-351, of the New Hampshire Board of Dental Examiners (Board) containing its complete set of rules. The Board responded by letter dated March 19, 1991, and received by Committee staff on March 21, 1991.
At its regular meeting on April 19, 1991, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 90-351. 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 bases upon which the final objection has been entered:
1. Outstanding Final Objection to Den 102.02(a)(3),
At its meeting on February 16, 1990, the Committee entered a final objection to the text of this rule as it appeared in Final Proposal 89-184. The Board made no changes to text of this rule but included the same text in Final Proposal 90-351. The Committee entered a final objection to this rule in Final Proposal 90-351, using the same bases for objection as it had in its February 16, 1990 objection to Final Proposal 89-184, and published in the February 23, 1990 New Hampshire Rulemaking Register. The Committee objects that the rule is contrary to legislative intent, pursuant to Committee Rule 402.02, by conflicting with RSA 541-A:12, III(c).
2. Outstanding Final Objection to Den 304.02(b)(1), Den 304.02(j)(1)
and Den 304.02(o)
At its meeting on February 16, 1990, the Committee entered a final objection to the text of this rule as it appeared in Final Proposal 89-177. The Board made no changes to text of these rules but included the same text in Final Proposal 90-351. The Committee entered a final objection to these rules in Final Proposal 90-351, using the same bases for objection as it had in its February 16, 1990 objection to Final Proposal 89-177, and published in the February 23, 1990 New Hampshire Rulemaking Register. The Committee objected that the rules are contrary to the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform enforcement and contrary to legislative intent, pursuant to Committee Rule 402.02, by conflicting with RSA 541-A:3.
3. Outstanding Final Objection to Den 304.02(k)
At its meeting on February 16, 1990, the Committee entered a final objection to the text of this rule as it appeared in Final Proposal 89-184. The Board made no changes to text of this rule but included the same text in Final Proposal 90-351. The Committee entered a final objection to this rule in Final Proposal 90-351, using the same bases for objection as it had in its February 16, 1990 objection to Final Proposal 89-177, and published in the February 23, 1990 New Hampshire Rulemaking Register. The Committee objects that the rule is contrary to the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform enforcement, and is contrary to legislative intent, pursuant to Committee Rule 402.02, by conflicting with RSA 541-A:3 and RSA 541-A:12, III(e).
4. Outstanding Final Objection to Den 304.02(m)(3)c.
At its meeting on February 16, 1990, the Committee entered a final objection to the text of this rule as it appeared in Final Proposal 89-184. The Board made no changes to text of this rule but included the same text in Final Proposal 90-351. The Committee entered a final objection to this rule in Final Proposal 90-351, using the same bases for objection as it had in its February 16, 1990 objection to Final Proposal 89-177, and published in the February 23, 1990 New Hampshire Rulemaking Register. The Committee objects that the rule is contrary to the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform enforcement, and is contrary to legislative intent, pursuant to Committee Rule 402.02, by conflicting with RSA 541-A:3 and RSA 541-A:12, III(e).
5. Rules Contrary to Legislative Intent
The Committee objected, pursuant to RSA 541-A:3-e, IV(b) and Committee Rule 402.02, that the rules listed below are contrary to legislative intent by violating specific statutes. The nature of the violations are outlined in the Committee Attorney's April 10, 1991, objection response memorandum to the Committee as well as his annotations to the text of the rules in the objection response. These annotations were incorporated into the memorandum. The rules include:
Den 101.07
Den 101.11
Den 102.01(a)
Den 102.02
Den 201.01(b)
Den 201.02(e)
Den 201.03
Den 201.07(b)
Den 201.08
Den 201.09
Den 201.10
Den 201.11
Den 202.01(a), (b) and (c)
Den 202.02
Den 202.02(a)
Den 202.03
Den 203.01(a) and (c)
Den 203.02
Den 203.03
Den 203.05(a), (d), (e) and (f)
Den 203.06(b) and (c)
Den 203.07
Den 204.02
Den 204.04
Den 204.07(b)
Den 300
Den 301.01(b)
Den 301.02(a) and (b)
Den 301.02(c)(10)
Den 301.03(b)
Den 301.04(b)
Den 301.05(a), (b), (c)(10), (c)(11)f., and (f)
Den 301.06
Den 302.03(a) and (b)
Den 303.01
Den 303.03
Den 303.04(a) and (b)
Den 304
Den 304.01(e)
Den 304.02
Den 304.02(a)(4), (a)(5), (a)(8), (a)(9), (b)(1), (c)(2),
(d) through (i), (m)(4), and (n)(1) through (4)
Den 402.02
Den 500
Den 501.02
Den 501.03
Den 502.01(a) through (i)
Den 600
Den 601.01
Den 601.02(c), (d) and (e)
6. Rules Contrary to the public Interest
Pursuant to RSA 541-A:3-e, IV(c) and Committee Rules 403.01(d) and 403.02(c), the Committee objects that the following rules are contrary to the public interest by not being clear and understandable and capable of being uniformly enforced. The nature of the violations are outlined in the Committee Attorney's April 10, 1991, objection response memorandum to the Committee as well as his annotations to the text of the rules in the objection response. These annotations were incorporated into the memorandum. The rules include:
Den 101.07
Den 101.11
Den 102.01(a)
Den 102.02
Den 201.01(b)
Den 201.02(e)
Den 201.03
Den 201.08
Den 202.01(a), (b) and (c)
Den 202.02
Den 202.03
Den 203.01(a) and (c)
Den 203.03
Den 203.05(a), (d), (e) and (f)
Den 203.06(b)
Den 204.02
Den 204.03(b)
Den 204.04
Den 204.07
Den 301.01(a) and (e)
Den 301.02(a) and (b)
Den 301.04(a)(4)
Den 301.05(a), (b), (c)(10), (c)(11)f., and (f)
Den 301.06
Den 302.03(a) and (b)
Den 303.01
Den 303.03
Den 303.04(a) and (b)
Den 304
Den 304.01(e)
Den 304.02(a)(2), (a)(5), (a)(5), (b)(1), (c)(2), (m)(4), and
(n)(1) through (4)
Den 401.01(a) and (b)(7)
Den 402.01(c)(1)
Den 502.01(a) through (i), except (f)
Den 601.01
Den 601.02(c), (d) and (e)
7. Rules Beyond the Authority of the Board
The Committee objected, pursuant to RSA 541-A:3-e, IV(a) and Committee Rules 401.01(c), that the rules are listed below are beyond the authority of the Board. The nature of the violations are outlined in the Committee Attorney's April 10, 1991, objection response memorandum to the Committee as well as his annotations to the text of the rules in the objection response. These annotations were incorporated into the memorandum. The rules include:
Den 102.01(c)
Den 102.02
Den 203.05(k)
Den 203.07
Den 204.02(a)
Den 301.01(b)
Den 301.02(c)(10)
Den 301.03(b)
Den 301.04(b)
Den 301.05(c)(10)
Den 301.06
Den 303.04(b)
Den 304.02(l)
Den 502.01
Den 502.01(a), (b) and (i)
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DUE TO THE COMPLEXITY AND NUMBER OF BASES FOR OBJECTION, THE RULES TO WHICH A FINAL OBJECTION HAS BEEN FILED HAVE BEEN LISTED ONLY BY RULE NUMBER. COPIES OF THE RULES WITH THE ANNOTATIONS UPON WHICH THE COMMITTEE BASED ITS FINAL OBJECTION ARE AVAILABLE FROM THE OFFICE OF LEGISLATIVE SERVICES AT THE NORMAL RATE OF $0.20 PER PAGE.