Certified Final Objection No. 27 of the

Joint Legislative Committee on Administrative Rules

At its meeting on July 19, 1991, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, IV, to enter a preliminary objection to Final Proposal 91-111 of the Board for the Licensing and Regulation of Plumbers (Board) containing all its rules. The Department responded by memorandum dated August 15, 1991.

At its regular meeting on October 18, 1991, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 91-111. 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: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 summarizes the basis upon which the final objection has been entered:

Plu 102.01(c)

The Committee objected that Plu 102.01(c) violates Committee Rules 403.01(d), 403.02(c), and 402.02 as it is contrary to the public interest by not being clear and understandable and capable of uniform enforcement, contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3, and conflicts with RSA 91-A:2, II.

This section governs meetings of the Board, and states that "Special meetings shall be requested by any member of the board or called by the chairman when such a session is, in his judgment, necessary and desirable. A notice by the telephone shall be provided to all members at least 3 days in advance of a special meeting as required by RSA 91-A:2."

The rule does not provide for notice to the public, and the statute cited does not require that the Board members receive three days' notice of the meeting, by telephone or otherwise. Pursuant to RSA 91-A:2, II, bodies governed by the Right-to-Know Law must give at least 24 hours' public notice for meetings either by publishing notice in a newspaper of statewide circulation, or by posting the notice in two "appropriate places." The rule only requires that members receive 72 hours' notice, and do not require that notice be provided to the public at all, despite the fact that it would be possible in every instance for the Board to provide the statutorily required 24 hours' notice to the public if its own rule is followed.

Plu 202.02

The Committee objected that Plu 202.02 violates Committee Rules 403.01(d), 403.02(c), and 402.02, as it is contrary to the public interest by not being clear and understandable and capable of uniform enforcement, contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3.

This rule specifies the actions that are available to the Board after the Board has received the investigator's report relative to a complaint made to the Board against a licensee. The rule states that "based upon the investigator's report and the Board's review, one of the following shall occur," and then lists the three options available to the Board. The Committee concluded that the rule did not contain any criteria by which the Board would decide which action was the most appropriate in any given case, such as whether to dismiss a complaint, take corrective action without a formal hearing, or conduct a formal hearing, thereby making it possible for the Board to take two different courses of action in otherwise similar or identical circumstances.

Plu 203.01(a)

The Committee objected that Plu 203.01(a) violates Committee Rules 403.01(d), 403.02(c), and 402.02, as it is contrary to the public interest by not being clear and understandable and capable of uniform enforcement, contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3.

This section, Plu 203.01, governs the conduct of hearings held by the Board. Paragraph (a) requires such hearings be conducted "pursuant to RSA 541-A:16 et seq." The Committee determined that since there are many aspects of hearings that have not been specified by these statutes, the rule requires the Board to impose requirements that have not been specified by statute or rule.

Plu 203.02(d)

The Committee objected that Plu 203.02(d) violates Committee Rules 403.01(d), 403.02(c), and 402.02, as it is contrary to the public interest by not being clear and understandable and capable of uniform enforcement, contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3 and by conflicting with RSA 541-A:20.

This rule states that "all findings shall be contained within the written notification" of the decision. The Committee had determined that it was unclear whether "all findings" included "findings of fact and conclusions of law, separately stated" as required by RSA 541-A:20, and that if such were not included, that the rule would be in conflict with RSA 541-A:20. The Board's memorandum to the Committee in response to the preliminary objection stated that "all findings" specifically does not refer to findings of fact and conclusions of law, from which the Committee concluded that the rule conflicts with RSA 541-A:20.

Plu 303.02

The Committee objected that Plu 303.02 violates Committee Rules 403.01(d), 403.02(c), and 402.02, as it is contrary to the public interest by not being clear and understandable and capable of uniform enforcement, contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3.

This rule governs who will be eligible to apply for licensure as a journeyman plumber after completion of an apprenticeship. The rule provides that "a person shall present to the Board a certificate of completion of an apprentice program or the equivalency thereof which shall meet the requirements as stated in [Plu] 303.03(c), or shall have equivalent training or experience acceptable to the Board as per Plu 303.03 and complete application form PB1."

The Committee determined that there were two problems with the rules. The first is one that was not corrected in the objection response; and the second was created in the objection response. The issue that was not corrected is the continuing lack of criteria and procedure, in the rules, by which the Board decides whether training and experience are "acceptable." Without such, the Board would be engaging in rulemaking outside the process mandated by RSA 541-A:3 by setting the criteria and procedure orally. The issue that was created in the response relates to how "equivalency" of an apprentice program will be determined. The rule refers to meeting the requirements of Plu 303.03(c), but this provision only specifies what is required for each year of an apprenticeship. Plu 303.03(c) does not set the requirements for completion of an apprenticeship, i.e., how many hours of instruction and on the job training (OJT) an apprentice must have to be eligible for licensure as a journeyman. As Plu 303.02 is written, with its reference only to the annual requirements, the Committee determined that one could conclude that an apprentice only needs to have 144 hours of instruction and 2000 hours of OJT to be eligible for licensure as a journeyman.

Plu 303.03(c)

The Committee objected that Plu 303.02 violates Committee Rules 403.01(d), 403.02(c), and 402.02, as it is contrary to the public interest by not being clear and understandable and capable of uniform enforcement, contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3.

This rule governs the annual requirements for apprenticeships. One of the requirements is that each apprentice complete 144 hours of instruction in a program "acceptable to the Board." The rules lack criteria and procedure for determining what is "acceptable." Without such, the Board would be engaging in rulemaking outside the process mandated by RSA 541-A:3 by setting the criteria and procedure orally.

Plu 306.01(j)

The Committee objected that Plu 303.02 violates Committee Rule 402.02, as it is contrary to legislative intent by conflicting with RSA 91-A:4, relative to charging only the actual cost of providing copies of agency documents.

This rule specifies that the fee of a list of plumbers licensed in New Hampshire is $75. Pursuant to RSA 91-A:4, agencies may only charge the actual cost of producing a copy of a document. The Committee determined that the cost of producing such a list is substantially less than $75, and therefore concluded that the rule conflicts with RSA 91-A:4.

Plu 402.01(g) and (q)

The Committee objected that Plu 402.01(g) and (q) violate Committee Rule 401.01(c), as they are beyond the authority of the Board.

These two paragraphs impose requirements for advertising upon those who conduct seminars. The first paragraph requires that specific information about each seminar must be included in advertising for that seminar, and the second paragraph requires that the certification number assigned by the Board must also appear in any advertising of seminars. The Committee concluded that the Board has no authority to regulate the advertising of persons or entities who are not licensed by the Board.