Certified Final Objection No. 136 of the
At its meeting on January 20, 2006, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2005-140 containing selected rules in Bar 300 and Bar 400 of the Board of Barbering, Cosmetology, and Esthetics (Board) relative to application procedures, licensing requirements, and a renewal form. The Board responded pursuant to RSA 541-A:13, V(c) with an amended proposal and with a cover letter from the Board Chairman dated February 6, 2006.
At its meeting on April 21, 2006 the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2005-140. 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(f), 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 basis for the Committee’s final objection:
Beyond the Authority of the Agency
Pursuant to RSA 541-A:13, IV(a), the Committee objected that Final Proposal 2005-140 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board under RSA 313-A to the extent that rules in the proposal establish apprenticeship programs.
Selected rules in Final Proposal 2005-140, including Bar 301.01, 301.02, 401.01, and 401.02 as discussed by the Committee, address apprenticeships or registration of apprentices by the Board in the areas of barbering, cosmetology, esthetics, and manicuring.
The Committee determined that the Board lacked authority to establish apprenticeship programs because of the authority of the Apprenticeship Council in the Department of Labor under RSA 278 to regulate apprenticeship programs in trade and industry. The Committee’s determination was based on discussion in the Committee meetings of March 10 and April 21, 2006, including, but not limited to, testimony by Board staff in those meetings and testimony of the Commissioner of the Department of Labor on April 21, 2006. Copies of the Committee meeting transcripts and other relevant documents may be obtained from the Office of Legislative Services.