Certified Final Objection No. 103 of the

Joint Legislative Committee on Administrative Rules

At its meeting on October 16, 1998, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 98-082 containing rules of the Board of Engineers (Board) relative to hearing procedures, licensure, renewals and professional conduct. The Board responded by letter dated October 30, 1998, and the letter was received by the Office of Legislative Services on November 2, 1998.

At its meeting on November 20, 1998, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 98-082. 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.

Due to the number of bases for objection, most of the rules to which a final objection has been filed have not been identified in this text. Such unidentified rules, and the bases for final objection, are specified in the annotations to the rules made by the Committee's staff. Copies of the rules can be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 219 in the State House Annex, 25 Capitol Street, Concord, New Hampshire 03301.

The following summarizes a few of the more significant issues and the bases upon which the Committee objected:

1. Eng 204.03(b) - Petitions for Declaratory Rulings

The Committee objected that Eng 204.03(b) is, pursuant to Committee Rules 402.02(a), contrary to legislative intent by conflicting with RSA 541-A:1, V, and RSA 541-A:3, I and II, and is, pursuant to Committee Rule 403.01(f), contrary to the public interest by being designed to benefit the administrative convenience of the agency to the detriment of the public.

This section governs the service of documents in proceedings before the Board. Paragraph (b) refers to service of rulemaking and declaratory rulings petitions. In pertinent part it provides that "when the relief sought by a petition for rulemaking or a petition for declaratory ruling would clearly and directly affect the interests of a person or group of persons, the board shall, by order, require service upon the affected person or persons."

The Committee noted that the process by which rules are proposed and adopted is specified by RSA 541-A:3. Paragraph I of that statute indicates that if an agency decides to go forward with a rulemaking proceeding, the agency itself bears the burden of providing notice to the public at large. Moreover, if the agency regulates occupational licensees, paragraph II requires that the agency must provide notice to such occupational licensees over and above what is otherwise required under paragraph I. The Committee determined that by requiring the petitioner to provide notice conflicted with the agency notice requirements of RSA 541-A:3, I and II.

The term "declaratory ruling" is defined by RSA 541-A:1, V, which states that the term means "an agency ruling as to the specific applicability of any statutory provision or an any rule or order of the agency." In the Committee’s view, that such rulings are "specifically applicable" means that the ruling binds only those who are parties to the proceeding, which are the petitioner and the agency. Therefore, in the Committee’s view, such proceedings cannot affect clearly and directly anyone else.

  1. Eng 206.08(a) - Subpoenas

The Committee objected that Eng 206.08(a) is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board, and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 310-A:23, II(b), as set forth below.

Eng 206.08(a) allows the Board to empower its staff, or a committee, to issues subpoenas. The Committee has frequently stated its opinion that the power to issue subpoenas exists only to the extent that it is specifically authorized by the General Court. The Committee noted that RSA 310-A:23 authorizes the Board to issue subpoenas. However, the Committee also noted that RSA 310-A:23 contains no reference to delegation of such authority, and that in subparagraph II(b), as enacted by 1998, 204:2, the General Court has further limited the Board’s power to issue subpoenas by requiring the Board to obtain approval of the Attorney General. Therefore, the Committee determined that RSA 310-A:23 provides no authority for the Board to delegate its power of subpoena, and that the rule conflicts with RSA 310-A:23.

  1. Eng 206.11(b) and (c) - Cross Examination

The Committee objected that Eng 206.11(b) and (c) are, pursuant to Committee Rule 401.01(c), beyond the authority of the Board, and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 310-A:23, III(c), as set forth below.

The Committee noted that Eng 206.11 contains limitations on the conduct of adjudicative proceedings. Specifically, the Committee noted that paragraph (b) specifies conditions under which adjudicative proceedings shall be limited to the submission of affidavits and memoranda, and paragraph (c) specifies conditions under which adjudicative proceedings shall be limited to the submission of memoranda. The Committee noted that RSA 310-A:23, III(c) states that "At any hearing, the named person or licensee shall have the right to cross-examine witnesses." [Emphasis added.] Therefore, it was the Committee’s determination that Eng 206.11(b) and (c) conflict with RSA 310-A:23, III(c) by limiting the right to cross-examination. The Committee also determined that no other statute authorized such a limitation of cross-examination.

  1. Eng 302.02(f) - Fee Authority

The Committee objected that Eng 302.02(f) in Final Proposal 98-082 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board, and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 541-A:22, III(c), as set forth below.

Eng 302.02(f) imposes a license fee of $25 for retired status. The Committee noted that RSA 310-A:6, I(r), authorizes the Board to establish "the requirements for retired status." The Committee also noted that RSA 541-A:22, III(c), prohibits agencies from adopting fees by rule unless the agency has specific authority for such fee. It was the Committee’s determination that since RSA 310-A makes no reference to fees for retired status, there is no authority for the fee, and the rule conflicts with RSA 541-A:22, III(c).

  1. Eng 307.01(d) - Temporary Permits

The Committee objected that Eng 307.01(d) in Final Proposal 98-082 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board, and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 310-A:19, III, as set forth below.

In the Committee’s view, Eng 307.01(d) requires that non-residents seeking a temporary permit to practice engineering in New Hampshire, also apply to be fully licensed by the Board. It was the Committee’s opinion that this would require applicants for a temporary permit to pay 2 fees, one being the temporary permit fee and the other being the license fee.

The Committee determined that RSA 310-A: 19, III does not require such out-of-state applicants for temporary permits to seek full licensure in New Hampshire, but does require that they be licensed in a state where the requirements for licensure are substantially equivalent or higher than those of this state. It was the Committee’s view that meeting this requirement does not require 2 applications and 2 fees. The Committee further determined that RSA 310-A:19, III would be rendered meaningless by the rule, since being required to apply for full licensure would eliminate the need for obtaining a temporary permit. Therefore, the Committee determined that there is no authority for the rule, and that the rule conflicts with RSA 310-A:19, III.

  1. Eng 402.04 and .05 - Beyond Scope of Proposal

The Committee determined that Eng 402.04 and Eng 402.05 in Final Proposal 98-082 are, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 541-A:6, I(f) and RSA 541-A:11, I, as set forth below.

The General Court, through 1998, 204, amended RSA 310-A to give the Board the authority to impose civil penalties as disciplinary action against its licensees. These amendments were approved on 6/18/98 and became effective on 7/1/98.

The Committee noted that RSA 541-A:6, I requires agencies to give notice of rulemaking hearings, and that subparagraph (f) requires that the notice contain a concise summary of the effect of the rule. The Committee also noted that RSA 541-A:11, I requires agencies to hold at least one public hearing on all proposed rules.

The Committee noted further that the notice for 98-082 first appeared in the Rulemaking Register on 5/22/98, and the public hearing on the proposal was held on 6/25/98. Because the bill authorizing civil penalties was not approved until after the Initial Proposal was filed, Eng 402.04 and Eng 402.05 were not included in the proposed rules until the Final Proposal was filed. Therefore, the Committee determined that the public did not have adequate notice and opportunity to comment regarding Eng 402.04 and Eng 402.05, thus creating a conflict with RSA 541-A:6, I(f) and RSA 541-A:11, I.