Certified Final Objection No. 79 of the
Joint Legislative Committee on Administrative Rules
At its meeting on August 16, 1996, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, V(a), to enter a preliminary objection to Final Proposal 96-093 containing proposed rules of the Department of Environmental Services (Department) relative to shoreland protection fines. The Department responded by letter dated September 23, 1996, received by the Office of Legislative Services on the same date.
At its meeting on November 14, 1996, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 96-093. 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(d), 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 bases for the Committee’s final objection:
New Hampshire Constitution Part I, Article 28-a
The Committee objected that, to the extent that it violates Part 1, Article 28-a of the New Hampshire Constitution, Final Proposal 96-093 is beyond the authority of the Department, pursuant to Committee Rule 401.04, and contrary to legislative intent, pursuant to Committee Rule 402.04. That constitutional provision states that:
The state shall not mandate or assign any new, modified or expanded programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision.
Final Proposal 96-093, specifically Env-C 611, Env-C 604.02, Env-C 604.03 and Env-C 603.02, imposes fines for violation of the shoreland protection requirements found in Env-Ws 1400 (Final Proposal 96-094). The Committee previously determined that Env-Ws 1400 conflicts with Part 1, Article 28-a. The Committee concluded that political subdivisions will be forced to incur a cost by complying with the substantive requirements of Env-Ws 1400, or by paying a fine, pursuant to this proposal, for failure to comply with such substantive requirements, or by challenging the rules in court. Therefore, the Committee determined that imposing a fine on a political subdivision for failure to comply with a requirement from which the political subdivision is constitutionally exempt also conflicts with Part 1, Article 28-a.
Authority
The Committee objected that to the extent Final Proposal 96-093 imposes fines for actions that violate rules, but not RSA 483-B, the proposal is beyond the authority of the Department, pursuant to Committee Rule 401.01(c), and contrary to legislative intent, pursuant to Committee Rule 402.02.
RSA 483-B:18, III(c) authorizes the Commissioner of the Department to impose fines of up to $5,000 "upon any person who violates this chapter" (RSA 483-B). RSA 483-B:18, I specifies what constitutes a violation of the chapter. The Committee noted that violation of rules adopted pursuant to the chapter was not specified as being a violation of the chapter. However, the Committee also noted that Final Proposal 96-093 includes fines for violation of rules. Therefore, the Committee objected as stated above.