Certified Final Objection No. 93 of the
Joint Legislative Committee on Administrative Rules
At its meeting on January 17, 1997, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 96-144 containing rules of the Board of Licensure for Professional Engineers (Board) relative to continuing professional development. The Board responded by letter dated February 24, 1997, and the letter was received by the Office of Legislative Services on that same date.
At its special meeting on September 5, 1997, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to the objection response for Final Proposal 96-144. 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:
The Committee objected that Eng 402.08(c) is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board.
This section governs exemptions from the continuing professional education requirements. Paragraph (c) provides that "licensees who list their occupation as ‘retired’ on the board approved renewal form and who further certify that they are no longer receiving remuneration from providing professional engineering services shall be exempt from the professional development hours required." The Committee noted that various provisions of RSA 310-A identify the different types of licenses that can be issued by the Board. The Committee noted, too, that RSA 310-A does not specifically authorize retired status, and concluded that without such specific statutory authorization, the Board had no authority to create such status.