Certified Final Objection No. 64 of the
Joint Legislative Committee on Administrative Rules
At its meeting on March 18, 1994, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 93-154 containing proposed rules of the Board of Auctioneers (Board). The Board responded in writing on April 14, 1994.
At its meeting on April 29, 1994, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 93-154. 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.
1. Changes Not in Response to Committee Objection
The Committee objected that certain rules of the Board of Auctioneers are contrary to legislative intent, pursuant to Committee Rule 402.02(a), by violating RSA 541-A:3-f, II. These rules have been identified below.
Under RSA 541-A:3-f, II, the text of the adopted rule must be the same as the text of the final proposal except for changes made in direct response to preliminary objections by the Committee, or for minor editorial changes. The Committee determined that the Board's objection response contained a number of deletions and insertions to the text of rules in the final proposal that are not editorial and are not in direct response to an objection by the Committee. Therefore, the Committee concluded that the rules listed below violate RSA 541-A:3-f, II:
Auc 101.02 Auc 401.01(a)(5)
Auc 102.01 Auc 403.01
Auc 204.01 Auc 404.10 (deleted from final
Auc 301.01(a)(3) Auc 403.09 proposal)
Auc 301.01(a)(6) Auc 501.01
Auc 301.01(e)(2) Auc 501.02
Auc 303.02(c) Auc 502.02
Auc 303.03 Auc 503.01 (deleted from final
Auc 401.01(a)(3) proposal)
Because of the number of rules, the text of the rules has not been included in this written final objection. The text of the rules to which this objection was entered is identified in the annotations to the rules made by the Committee's staff. Copies of these rules and annotations can be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 114 in the State House, 107 N. Main Street, Concord, New Hampshire 03301-4951, at a charge of $0.20 per page.
2. Auc 102.02(e)
The Committee objected that Auc 102.02(e) is contrary to the public interest, pursuant to Committee Rule 403.01(d), by not being clear and understandable.
This rule requires the Board to hold a disciplinary hearing within 3 months of notice of a complaint, unless the parties agree otherwise. The Committee noted that the elements of this rule, along with additional provisions, are also found in Auc 202.03. Under Ls-A 401.10(a) of the uniform system of numbering and drafting, agencies are required to use part 102 for the description of the agency and to use part 200 for rules of practice and procedure. Therefore, the Committee determined that Auc 102.02(e) was unclear because its content is also contained in Auc 202.03 which, pursuant to Ls-A 401.10(a), is the proper location for this rule.
3. Auc 503.02(a)(3)
The Committee objected that Auc 503.02(a)(3) is contrary to legislative intent, pursuant to Committee Rule 402.02(a), by conflicting with RSA 358-G:2, II.
The rule in question would allow an auctioneer and/or a staff member of the auctioneer, at his own discretion, to bid one or more times on reserve items up to the reserve price of the item. Under RSA 358-G:2, II, "no person shall enter into and participate in collusive bidding practices." "Collusive bidding" is defined by RSA 358-G:1, II as "a practice whereby the auctioneer or his agent and any person causes fictitious bidding during an auction for the purpose of misleading or stimulating other persons who are bidding in good faith." The Committee determined that bidding by an auctioneer or staff member pursuant to Auc 503.02(a)(2) would be fictitious bidding for the purpose of stimulating other persons who are bidding in good faith. The Committee also determined that bidding up of a reserve item by a staff member of the auctioneer would not be a solely discretionary action. The Committee further determined that where bidding up of a reserve item is done pursuant to any agreement between the auctioneer and staff member, or between either of them and any other person, then such conduct would meet the statutory definition of collusive bidding. Therefore, the Committee concluded that Auc 503.02(a)(3) conflicts with RSA 358-G:2, II.
4. Annotation of Amended Rules
The Committee objected that the Board's objection response is contrary to legislative intent, pursuant to Committee Rule 402.02(a), by violating RSA 541-A:3-a, VIII.
The Board filed two versions of the amended proposal as its objection response. There was an annotated version with text bracketed and underlined to indicate where deletions and additions, respectively, were made to the proposed rule. There was also a version without annotations. The annotated version was determined by the Committee to be an invalid response because it contained language not approved by the Board. The text in the remaining version was approved by the Board, and the Committee determined that it was the valid response. This remaining version of the objection response was not bracketed to denote deletions and underlined to indicate added text, as required by Ls-A 402.32(c) of the uniform system of numbering and drafting with which agencies must comply pursuant to RSA 541-A:3-a, VIII.