At its meeting on September 20, 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 96-082 containing rules of the Naturopathic Board of Examiners (Board). The Board responded by letter dated October 25, 1996, received by the Office of Legislative Services on October 26, 1996.

At its special meeting on November 14, 1996, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 96-082. 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:

The following summarizes the bases for the Committee’s final objection:

1. Nat 206.09(c)

The Committee determined that Nat 206.09(c) is contrary to legislative intent, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), by conflicting with Laws of 1994, 412:52, RSA 541-A:3, RSA 541-A:22, I, and RSA 541-A:33, II, as discussed below.

In the final proposal, paragraph (c) stated that "evidence shall be permitted in written form, but oral testimony shall be allowed when necessary to avoid material prejudice or to permit full and fair disclosure of disputed material facts." The Committee had entered a preliminary objection to this language. The Committee noted the language of RSA 541-A:33, II, which states that "subject to the foregoing requirements, any part of the evidence may be received in written form if the interests of the parties will not thereby be prejudiced substantially." The Committee concluded that this language expresses a clear preference for oral testimony, and that written testimony be the exception rather than the default.

The Board amended the paragraph and it now states that "the board may direct that some or all of the evidence be submitted in written form. Oral testimony shall be allowed when necessary to avoid material prejudice to permit full and fair disclosure of disputed material facts." The Committee determined that there were two bases for objection to this new language. The first is that an agency cannot, by using the word "may", reserve discretion for itself. Pursuant to Laws 1994, 412:52, agencies are required to comply with the requirements of the Uniform System of Numbering and Drafting (USN&D) contained in the New Hampshire Rulemaking Manual. This point is addressed directly and specifically by Ls-A 402.10(e) of the USN&D, which states that,

As the Board has not followed the requirements of the Ls-A 402.10(e), the Committee concluded that the rule cited violated 1994, 412:52. Similarly, as the Board has not specified either the conditions or the criteria which must exist for the Board to take the action contemplated by the rule, such conditions or criteria will be set outside the rulemaking process mandated by RSA 541-A:3 and enforced in violation of RSA 541-A:22, I.

The second basis for objection is the same basis upon which the Committee entered a preliminary objection, namely that the Committee believes that RSA 541-A:33, II, expresses a clear preference for oral testimony over written testimony. As the language of the rule provides that written testimony is the default and oral testimony the exception, the Committee concluded that the rule still violates RSA 541-A:33, II.

2. Nat 211.02 and Nat 211.03

The Committee determined that Nat 211.02 and Nat 211.03 are contrary to legislative intent, pursuant to Committee Rule 402.02(b)(2), by conflicting with Laws of 1994, 412:52, RSA 541-A:3, and RSA 541-A:22, I, as discussed below.

In pertinent part, these rules set forth the requirements relative the submission and consideration of petitions to the Board to undertake rulemaking. The rules identify the process to be used by those who petition the Board, but do not indicate the criteria to be used by the Board to determine whether it will grant or deny such petitions. Pursuant to Ls-A 402.10(e) of the USN&D, the Board is required to use "shall" when setting a requirement. Similarly, Ls-A 402.19(a) requires that agencies list the criteria to be applied in agency discretionary decision-making, and Ls-A 402.19(b) requires that the criteria be written in such a way that the reader can know how the criteria will be applied in practice. For those situations in which an agency could not reasonably be expected to identify all applicable criteria, Ls-A 402.19(c) requires that the agency list those criteria known and identifiable by the agency, and then either: 1) state, as the last criterion, the theme or limitation common to the preceding criteria; or 2) state a qualitative criterion or goal to be achieved. As the rules do not contain any such criteria, the Committee concluded that they violate the USN&D provisions cited above, thereby conflicting with Laws 1996, 412:52.

As discussed relative to Nat 206.09(c), in the Committee’s view if the criteria for discretionary decision-making are not included with the rule, the Board will set requirements outside the process mandated by RSA 541-A:3, and enforce them in violation of RSA 541-A:22, I.

3. Nat 214.01(a)

The Committee determined that Nat 214.01(a) is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board as discussed below.

Pursuant to Nat 214.01(a), any interested person can request the Board to waive any rule of the Board, whether procedural or substantive in nature. In voting to enter a preliminary objection, the Committee determined that, as drafted, the Board lacked authority to waive rules that implement statutory provisions absent the agreement of those would benefit from adherence to the rule. The Board did not make any changes to this paragraph in its objection response.

When the Committee reviewed the objection response text, the Committee again objected that the Board lacked authority to waive such requirements. The Committee noted that that Ls-A 402.22(c) of the USN&D prohibits an agency from, by rule, granting "waivers to requirements contained in a statute, unless there is specific statutory authority to do so." The Committee is not aware of such specific statutory authority, and the Board did not offer any indication of the existence of such authority.

4. Nat 214.01 (b)(1)-(5) and (f)

The Committee determined that Nat 214.01 (b)(1)-(5) and (f) are, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), contrary to legislative intent by conflicting with Laws 1994, 412:52, RSA 541-A:3, and RSA 541-A:22, I, and are, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement as described below.

The provisions of Nat 214.01(b) specify what issues one must address in a petition for the waiver of a substantive rule of the Board. The Committee concluded, however, that the rules do not indicate how it is that the Board will apply the criteria listed in (b)(1)-(5) to determine whether the petitioner’s assertions justify the granting of he waiver as requested. Paragraph (f) merely states that the Board will issue an order "which finds that the waiver would be consistent with the criteria of (b), above." Pursuant to Ls-A 402.19(b) of the USN&D, agencies are required to draft the criteria in such a way that one reading the criteria would know how they will be applied in practice. The Committee concluded that it is unclear how the provisions of (b)(1)-(5) will be applied pursuant to (f), and that the lack of specificity will result in requirements being set outside the process mandated by RSA 541-A:3, and their enforcement in violation of RSA 541-A:22, I.

5. Nat 304.01(c)

The Committee determined that Nat 304.01(c) is, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 541-A:29, II, as discussed below.

In the final proposal, Nat 304.01(c) stated that "applications for licensure by reciprocity shall be completed within 6 months of the date of the applications." In the Committee’s view, it was unclear as to whom this provision was intended to apply. The Board addressed this issue by inserting the words "by the board" after the word "completed." The Committee noted that RSA 541-A:29, II, states, in pertinent part, that "within a reasonable time, not to exceed 120 days, after receipt of the application, petition or request" the agency must either approve or deny, or it must commence an adjudicative hearing to determine whether to grant or deny. As the rule allows the Board 6 months, rather than 120 days, to make such determinations, the Committee concluded that it conflicts with RSA 541-A:29, II.

6. Nat 304.03(a)(3)

The Committee determined that Nat 304.03(a)(3) is, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), contrary to legislative intent by conflicting with RSA 541-A:3, RSA 541-A:14, II, and RSA 541-A:22, I, as discussed below.

This provision in the final proposal stated that applicants for licensure by reciprocity must, among meeting other requirements, ‘verify that he or she has successfully passed the NPLEX examination in another state or jurisdiction." The Committee did not object to this provision. In the Board’s objection response, this provision was amended to require that such applicants "verify that he or she has successfully passed the NPLEX examination or other such standardized examination as approved by the board, in another state or jurisdiction."

Pursuant to RSA 541-A:14, II, unless such changes are made in direct response to either a preliminary or revised objection entered by the Committee, an agency cannot make changes to the text of a rule proposal once it has been filed as a final proposal pursuant to RSA 541-A:12. As stated above, the Committee did not object to this rule, and the Committee concluded that amendment made to it conflicts with RSA 541-A:14, II.

The language added in the objection response creates another issue: the Board has not included the criteria to be used in the determination of whether to approve standardized examinations other than the NPLEX. Without such criteria in the Board’s rules, the Committee concluded that the Board will be setting requirements outside the process mandated by RSA 541-A:3, and enforcing them in violation of RSA 541-A:22, I.