Opinion No. (1979) ( 1979 )

REQUESTED BY: Dear Senator Duis:

You have asked for clarification of our opinion dated February 6, 1979, on the above subject.

Notwithstanding our reservations about your committee acting to determine the validity of any administrative rule, we answered your question about whether the Board of Examiners in Embalming had the authority to adopt Rule 1(3)(a). We said it did not have express authority to do so. We also pointed out that an agency which did have such authority had adopted the same rule. Since you are still concerned about whether the board had authority to adopt Rule 1(3)(a), we assume you want to know if it had any authority other than express authority to adopt such a rule. We have concluded that it did not.

Section 71-1333(2)(1), R.R.S. 1943, makes violation of `any regulation of the department or other body having regulatory powers, relating to the handling, custody, care or transportation of dead human bodies' grounds for denying, revoking or suspending the license of a funeral director or funeral establishment. However, that section is not a grant of rule-making power. It can be carried into effect without the board itself making such rules and regulations. So can the remaining provisions of secs. 71-1325 to 71-1328. Thus the board has no implied power under section 71-1326, R.R.S. 1943, to make such rules and regulations in order to carry into effect those sections.

This lack of statutory authority was not raised as an objection by our office either when Rule 1 was approved office either when Rule 1 was approved for re-filing without any changes in August 1975. Any reluctance by the board to withdraw Rule 1(3)(a) is no doubt in reliance on our approval of it.