Certified Final Objection No. 3 of the
Joint Legislative Committee on Administrative Rules
At its meeting on November 25, 1986, the Joint Legislative Committee on Administrative Rules, pursuant to RSA 541-A:3-e, V(a), voted to make a preliminary objection to Final Proposal 86-182 relative to rule Fis 509.06(a) of the Fish and Game Department. This rule closes the Lamprey River in the towns of Newmarket, Epping, Raymond, Candia, Durham and Lee to all fishing from April I to May 31. Pursuant to RSA 541-A:3-e, V(b) the Executive Director of the Department responded on December 17, 1986 by contesting the basis of the objection. On December 17 he adopted the rule and filed it with the Office of Legislative Services.
At its meeting on January 9, 1987, the Committee voted pursuant to RSA 541-A:3-e, V(c) to file a final objection to the rule Fis 509.06(a). This final objection is hereby filed in certified form with the Director of Legislative Services for publication in the Rulemaking Register. The legal effect of this certified 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 is the text of the Commit6tee's objection:
1. The Committee objects to the rule as being contrary to legislative intent because, pursuant to Committee Rule 402.02, the Committee concludes that a specific statute was violated during the rulemaking process. RSA 541-A:3-a, III(g) requires that a rulemaking notice contain a listing of the people, enterprises, and government agencies affected by the rule. The Committee believes the statute was violated when the notice for Fis 509.06(a) in the Rulemaking Register stated incorrectly that, "This rule will only affect the recreational fisherman." The Committee received testimony on November 25, 1986 and January 9, 1987 that Mr. Gerald Collins, a commercial weir fisherman on the Lamprey River in Newmarket, would be affected by this rule but that he had not given oral or written comments to the Department in reliance upon the statement that only recreational fishermen would be affected. The Committee concludes that Mr. Collins as a result had been deprived of adequate notice.
2. The Committee objects to the rule as being contrary to legislative intent because, pursuant to Committee Rule 402.01(a), the Committee concludes that the rule attempts to implement a measure which the Legislature had defeated by removing it from an existing statute. In 1978 the Legislature amended RSA 211:48-a to delete a provision which had prohibited the taking by weir of "alewives, river herring or other anadromous fish species" between the dates of April 15 and May 15 in several rivers, including the Lamprey River. The Committee concludes that Fis 509.06(a), by closing all fishing in the Lamprey river from April 1 to May 31, with no exception for alewives, river herring,, or other anadromous fish species taken by weir, attempts to implement a measure which the Legislature defeated in 1978.