Certified Final Objection No. 13 of the

Joint Legislative Committee on Administrative Rules

At its meeting on April 20, 1990, the Joint Legislative Committee on Administrative Rules (Committee) voted to make a preliminary objection to Final Proposal 90-32, containing a complete set of the proposed rules of the Board of Barbering and Cosmetology. The Board responded on May 14, 1990, by amending some of the proposed rules to address some of the Committee's concerns.

At its meeting on June 27, 1990, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to make a final objection to a large number of the rules in Final Proposal 90-32. The final objection has been filed with the Acting 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:3-e, VI:

After a committee objection is filed with the director under paragraph V(c), to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the rule to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, and is in the public interest. 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 outlines the rules to which the Committee objects and the reasons for the final objection:

1. Pursuant to RSA 541-A;3-a, VIII, the agency must conform to the uniform system of numbering and drafting developed by the Director of Legislative Services and contained in the Rulemaking Manual. The Committee objected that many of the rules are contrary to the public interest by not being clear and understandable and capable of uniform application, and contrary to legislative intent by conflicting with the uniform system of numbering and drafting in violation of RSA 541-A:3-a, VIII. These rules are listed below:

Bar 203.04(j)

Bar 301.03(a)(6)

Bar 301.03(b)(3)

Bar 301.05(c)(3)

Bar 301.05(c)(4)k.

Bar 302.01(a)

Bar 303.02(d)

Bar 401.01(b)

Bar 606.01(a)-(c)

 

2. Bar 201.05

The Committee objected, pursuant to Committee Rule 402.02, that the rule is contrary to legislative intent by conflicting with RSA 313-A:21 relative to holding hearings.

The rule requires that in a case that is "based upon a misunderstanding, the investigator shall attempt to bring the parties together to clear up the misunderstanding," and thereafter to "report his actions to the Board together with his reasons for concluding that the case does not involve substantial issues of fact that warrant resolution by the Board after a hearing." The Board appears to be required, pursuant to RSA 313-A:21, to conduct a hearing regarding each complaint it receives, provided that such complaint is made in writing. The Committee concluded that this language implies that the Board, contrary to RSA 313-A:21, can accept the investigator's recommendation that no hearing be held, even when the Board is in receipt of a written complaint.

3. Bar 201.06

The Committee determined that the rule is contrary to the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application, and contrary to legislative intent, pursuant to Committee Rules 402.02, by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3 and by conflicting with RSA 313-A:21 relative to holding hearings.

The rule provides that a complainant shall be directed to "file a complaint" if "no possibility for a settlement under Bar 201.05 exists or if the Board rejects the investigator's recommendation." As with Bar 201.05, above, the Committee concluded that the first problem is that the Board is compelled by RSA 313-A:21 to conduct a hearing if it receives a written complaint. Additionally, the term "complaint" has been defined in the rules so that it must be in writing, charge that a person licensed by the Board has committed an act of misconduct as defined by RSA 313-A:20, II, specify the factual basis for such charge, and be received by the Board. Therefore, to require that a "complainant" be directed to "file a complaint" renders the rule not clear and understandable because a "complainant" must necessarily have already filed a complaint.

4. Bar 301.01(a)

The Committee objected, pursuant to Committee Rule 402.02, that the inclusion of this rule in the objection response and the adopted rule conflicts with RSA 541-A:3-f, II.

This rule has been added as part of the Board's objection response and provides that "apprentice meaning, one being instructed in a licensed barber shop, cosmetology or manicuring salon." Pursuant to RSA 541-A:3-f, II, "the text of the adopted rule shall be the same as the text of the final proposed rule submitted under RSA 541-A:3-d, except that any specific change may be made by the agency in direct response to the committee's written objection." The Committee determined that this paragraph was not added to the rules in direct response to the Committee's objection.

5. Bar 301.03(a)(6)

The Committee objected that the rule is contrary to the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application, and contrary to legislative intent, pursuant to Committee Rule 402.02, by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3.

The rule provides that each salon, shop, or school shall have "proper and effective ventilation" and that "installation done [sic] by a heating firm." The Committee determined that the rule does not define what "proper and effective ventilation" means and lacks criteria for determining what qualifies a contractor as a "ventilation firm."

6. Bar 301.06

The Committee objected, pursuant to Committee Rule 402.02, that the inclusion of this rule in the objection response and adopted rule conflicts with RSA 541-A:3-f, II.

The Board added this section as part of its response to the objection. This new section requires, in part, that "their [sic] will be a $25.00 fee on all returned checks." Pursuant to RSA 541-A:3-f, II, "the text of the adopted rule shall be the same as the text of the final proposed rule submitted under RSA 541-A:3-d, except that any specific change may be made by the agency in direct response to the committee's written objection." As with Bar 301.01(a), the Committee determined that this section was not added to the rules in direct response to the Committee's objection.

7. Bar 302.01(b)

The Committee objected that the rule is contrary to legislative intent, pursuant to Committee Rule 402.02, by conflicting with RSA 313-A:22, II.

The rule requires that applicants to be registered as apprentices provide proof "of completion of the 12th grade or equivalent." RSA 313-A:22, II, requires that applicants need only provide proof of being age 16 or over and pay the appropriate fee to register as an apprentice. To become licensed in their respective area, the apprentices must prove, pursuant to RSA 313-A:9 through 11-a, that they have graduated from high school or its equivalent.

8. Bar 303.02(c)

The Committee determined that the rule is contrary to the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application, and contrary to legislative intent, pursuant to Committee Rule 402.02, by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3.

The rule provides that "a score of 75% shall be required to pass each the [sic] practical and written examination." However, the rules contain no indication of what is actually tested in the practical exam or upon what criteria examinees are-graded. Additionally, the rule contains a description of the mechanics of the grading of the practical examination. The description indicates that the examination is comprised of 10 categories, and that each of the categories will be broken down into 5 subcategories. The rule further provides that each subcategory will have a perfect score value of 10 points, or 50 points per category. Thus, it would appear that a perfect score of 10 points in each of the 50 subcategories would yield a total perfect score of 500 points, and that 375 points is 75% of 500. However, the rule specifies that "a total of 450 points can be accumulated," and that "not less than 338 points to obtain a passing grade of 75" shall be required.

9. PART Bar 305

The Committee objected, pursuant to Committee Rule 402.02, that the inclusion of this rule in the objection response conflicts with RSA 541-A:3-f, II.

The Board has included this part in its objection response. This part was the subject of a different rulemaking proceeding that was recently concluded, and the Board has already adopted the rule. Pursuant to RSA 541-A:3-f, II, "the text of the adopted rule shall be the same as the text of the final proposed rule submitted under RSA 541-A:3-d, except that any specific change may be made by the agency in direct response to the committee's written objection." The Committee determined that this section was not added to the rules in direct response to the Committee’s objection.

10. Bar 404.01(a)

The Committee objected that, pursuant to Committee Rule 401.61(c) and RSA 541-A:3-e, IV(a), this rule is beyond the authority of the Board.

The rule provides that activities not licensed by the Board be separated from activities that are, and that a sign is required to be posted that indicates that such activities are not licensed or regulated by the Board. The Committee determined that the rulemaking passage cited by the Board as authority for these rules does not authorize such a requirement.

11. Bar 610.02(e)

The Committee objected that the rule is contrary to the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application, and contrary to legislative intent, pursuant to Committee Rules 402.02 by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3, and that, pursuant to Committee Rule 401.01(c) and RSA 541-A:3-e, IV(a), the rule is beyond the authority of the Board.

This rule provides that "only one instructor trainee... shall be permitted to train in a school for the instructors [sic] license." The Committee determined that it is unclear whether the language of the rule limited the school to train only one instructor during the life of the school or whether it could only train one at a time. The Committee also determined that the Board lacked authority to impose this requirement.

12. Bar 703.01

The Committee objected that, pursuant to Committee Rule 404.01(a), the rule has a substantial economic impact not recognized in the fiscal impact statement.

This rule provides that "all shops or salons shall only employ one apprentice per salon." The rulemaking notice form did not indicate that this limitation was being imposed and the Fiscal Impact Statement did not address the fiscal consequences of such a limitation. The limitation imposed by this rule could result in a drop in the number of apprentices, and a concurrent increase in the number of persons who attend barbering or cosmetology schools. This could have a fiscal impact on shops and salons and those who would have become apprentices for their training but must attend a school due to the significantly decreased number of apprentice positions available.

13. The Committee objected to the following rules as being contrary to the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application, and contrary to legislative intent, pursuant to Committee Rule 402.02, by allowing requirements to be set outside the process mandated by RSA 541-A:3:

Bar 203.02(a) and (b)

Bar 203.04

Bar 203.11(f)

Bar 203.13

Bar 301.02(b)

Bar 301.03(b)

Bar 301.03(b)(1), (2), (5) and (6)

Bar 301.03(c)

Bar 301.03(c)(4)

Bar 301.03(d)

Bar 301.03(e)

Bar 301.03(e)(1) and (3)

Bar 301.03(g)

Bar 301.03(g)(l)a. and i.

Bar 301.03(h)(9)

Bar 301.05(c)(1), (2), (2)e. and (6)

Bar 302.01(a)

Bar 302.01(d)

Bar 302.01(e)

Bar 302.01(i)

Bar 302.01(l)

Bar 302.01(n)

Bar 302.02(a)(3) and (4)

Bar 303.01(a)

Bar 303.02(a)

Bar 303.02(b)

Bar 503.02(d)

Bar 304.01(b)

Bar 401.01

Bar 401.01(d)(1) and (2)

Bar 401.02

Bar 401.03

Bar 401.03(d)

Bar 401.04

Bar 404.01(a)

Bar 404.01(b)

Bar 404.01(c)

Bar 602.02

Bar 603.01(a)(2)o.

Bar 702.01

Bar 705.01(b)

Bar 705.02

Bar 705.03

Bar 705.06

Bar 706.01

Bar 706.03

Bar 706.08

Bar 706.13(b)

Bar 706.14

Bar 706.17(a)(1)

Bar 706.17(b)(1) and (3)

Bar 707.01

14. The Committee objected to the following rules, pursuant to Committee Rule 401.01(c), as being beyond the authority of the Board:

Bar 302.01

Bar 302.01(d)

Bar 302.01(i)

Bar 302.01(n)

Bar 303.02(d)

Bar 401.01(d)(1)

Bar 401.04

Part Bar 607

Part Bar 608

Bar 703.01

Bar 703.02

Bar 705.01(b)

Bar 706.17(a)(1)

Bar 706.17(b)(2)

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NOTICE

DUE TO THE COMPLEXITY AND NUMBER OF BASES FOR OBJECTION, SOME OF THE RULES TO WHICH A FINAL OBJECTION HAS BEEN FILED HAVE BEEN LISTED ONLY BY RULE NUMBER. COPIES OF THE RULES WITH THE ANNOTATIONS UPON WHICH THE COMMITTEE BASED ITS FINAL OBJECTION ARE AVAILABLE FROM THE OFFICE OF LEGISLATIVE SERVICES AT THE NORMAL RATE OF $0.20 PER PAGE.