At its meeting on August 21, 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 98-038 of the Board of Accountancy. The Board responded by letter dated October 2, 1998, received by the Office of Legislative Services on that same day.

At its special meeting on November 13, 1998, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 98-038. 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:

The bases for the Committee’s final objection are summarized as follows:

The Committee objected that Ac 301.03(a)(5)-(7) in Final Proposal 98-038 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 309-B:3, VIII(g) and RSA 541-A:22, III(c), as set forth below.

Ac 301.03(a)(5)-(7) impose fees for evaluation of continuing professional education, practice unit registration, and late payment of any fee required by Ac 301.03(a), respectively. The Committee noted that RSA 309-B:3, VIII(g), only permits the Board to establish the fees required by RSA 309-B. 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 RSA 309-B makes no reference to fees for evaluation of continuing professional education, practice unit registration, and late payment of other fees, and therefore provides no authority for such fees.

The Committee objected that Ac 301.05 in Final Proposal 98-038 is, pursuant to Committee Rule 402.02(a), contrary to legislative intent as set forth below.

This section states that "Every practice unit shall register with the board as set forth in Ac 401.04."(sic) The Committee noted that the rule contained a typographical error, and that the Board clearly intended to reference Ac 401.03, not Ac 401.04. At its meeting on November 13, 1998, the Committee objected that Ac 401.03 in Final Proposal 98-039 is contrary to legislative intent by conflicting with RSA 309-B:5, IV and RSA 309-B:10, X (see Final Objection No. 100). The Committee determined that Ac 301.05, by requiring compliance with Ac 401.03, also conflicts with RSA 309-B:5, IV and RSA 309-B:10, X.

The Committee objected that Ac 303.01 in Final Proposal 98-038 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board, and, pursuant to Committee Rule 403.01(d), contrary to the public interest, as set forth below.

This section states that, "The board shall authorize the National Association of State Boards of Accountancy to destroy examination papers after 90 days from the date of the examination." The Committee determined that although RSA 309-B does contain provisions regarding exams, including limited rulemaking authority, the chapter contained no specific requirements or rulemaking authority regarding the destruction of exams.

The Committee also determined that the rule was contrary to the public interest by not being drafted in clear and understandable language because, as written, there is the possibility of authorizing destruction of exams before exam results are released and/or before there is a possibility to contest the exam results.

The Committee objected that Ac 303.03(a) in Final Proposal 98-038 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 309-B:6 and RSA 541-A:22, III(a), as set forth below.

Ac 303.03(a) prohibits a person from sitting for the CPA exam for 5 years after the Board determines that the person cheated during a CPA exam. It is the Committee’s opinion that such a prohibition constitutes a penalty. The Committee noted that RSA 309-B:6 specifies the various penalties and remedies that can be imposed by the Board. The Committee determined that a prohibition from sitting for the CPA exam is not among the penalties and remedies available to the Board under RSA 309-B:6.

The Committee also noted that RSA 541-A:22, III(a), prohibits agencies from creating penalties by rule unless specifically authorized by statute. It was the Committee’s opinion that RSA 309-B contains no rulemaking provisions regarding exam prohibitions. Therefore, the Committee determined that creation of such a rule was without authority, and conflicted with RSA 309-B and RSA 541-A:22, III(a).