Bill Text: NH HB274 | 2023 | Regular Session | Introduced
Bill Title: Relative to the administrative rulemaking process.
Spectrum: Slight Partisan Bill (Republican 6-3)
Status: (Introduced - Dead) 2023-09-18 - Executive Session: 11/08/2023 10:00 am Legislative Office Building 306-308 [HB274 Detail]
Download: New_Hampshire-2023-HB274-Introduced.html
HB 274 - AS INTRODUCED
2023 SESSION
23-0138
05/10
HOUSE BILL 274
AN ACT relative to the administrative rulemaking process.
SPONSORS: Rep. Sanborn, Hills. 2; Rep. Packard, Rock. 16; Rep. Steven Smith, Sull. 3; Rep. Shurtleff, Merr. 15; Rep. C. McGuire, Merr. 27; Rep. Goley, Hills. 21; Rep. Merchant, Sull. 6; Sen. Bradley, Dist 3; Sen. Birdsell, Dist 19
COMMITTEE: Executive Departments and Administration
-----------------------------------------------------------------
ANALYSIS
This bill makes various changes to the administrative procedures act, including requiring the agency to verify that the rule complies with the underlying statutory authority and legislative intent; expanding the scope of fiscal impact statements; requiring that proposed rules be submitted to the appropriate legislative policy committee for approval; permitting JLCAR to deny adoption of a rule following final objection, and repealing certain exemptions from rulemaking authority.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
23-0138
05/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Three
AN ACT relative to the administrative rulemaking process.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Legislative Findings and Purpose. The general court makes the following findings:
I. Small businesses are the backbone of the New Hampshire economy and are under duress from the imposition of excessive, unnecessary, costly and time-consuming state regulations.
II. Regulations created by state agencies, also known as administrative rules, have the same effect and impact on small businesses as law.
III. Laws are solely made by the legislature and the rules should meet but never exceed the scope or original intent of the legislation passed.
IV. The standing legislative policy committee that originally passed the underlying statute should be given the opportunity to review any proposed rules to ensure they do not exceed the original intent and scope of the legislation and do not impose excessive operational or financial burdens.
V. An objection by the joint legislative committee on administrative rules on proposed rule changes means the proposed rules should not become enacted and do not move forward.
VI. Members of the public and business owners who provide input and feedback on proposed rules should not suffer any retaliation for sharing their opinions.
2 Purpose Statement. The general court recognizes its responsibility to introduce, debate, and pass into law, policy for the protection and betterment of the people of New Hampshire. The general court also recognizes that rules adopted pursuant to statutes have the full force and effect of law. As such, it is the sole responsibility of the general court to approve or deny any proposed rule, addition to or amendment thereof. The people of New Hampshire have a right to ensure that any and all requirements which have the effect of law put forth are specifically debated and approved or denied by the general court.
3 Joint Legislative Committee on Administrative Rules. Amend RSA 541-A:2, III and IV to read as follows:
III. The committee [may] shall hold public hearings on a proposed or previously adopted rule on its own initiative. The committee shall give public notice of any hearing at least 7 days in advance in the rulemaking register. Any public hearing shall be scheduled at a time and place chosen to afford opportunity for affected persons to present their views. The committee [may] shall consult with the standing legislative committee having jurisdiction in the area of the rule under review and with the legislation's sponsors, whenever possible. Members of the public, including business owners, who provide input and feedback on proposed rules shall not suffer any retaliation for sharing their opinions.
IV. In addition to its ongoing review of proposed and adopted rules, the committee shall:
(a) Petition an agency under RSA 541-A:4 to adopt rules if the agency has clear rulemaking authority which it has not used.
(b) Review statutory passages granting rulemaking authority. On the basis of this review, the committee shall, before each regular legislative session, make written recommendations to the president of the senate and the speaker of the house as to how such passages should be amended to eliminate confusing, inefficient, or unnecessary statutory language.
(c) Make written recommendations, when appropriate, to the president of the senate and the speaker of the house as to how the legislative oversight of rulemaking might be improved. These recommendations may include proposed amendments to RSA 541-A.
(d) Have the authority to amend and provide the final approval of the drafting and procedure manual developed by the director of legislative services and the commissioner of administrative services under RSA 541-A:8.
(e) Notify the chairpersons of appropriate standing committees of the general court in writing when committee recommendations are made to agencies relative to legislation as a result of reviewing proposed and adopted rules.
(f) Make written recommendations, when appropriate, to the president of the senate, the speaker of the house of representatives, and the chairs of standing committees of the general court having jurisdiction over the subject matter of an agency concerning the amendment or repeal of the statutory authority of an agency that has enforced rules which are not effective or not otherwise valid, or that has not commenced rulemaking or adopted rules as required by statute.
(g) [Repealed.]
(h) Notify the chairpersons of the appropriate standing committees of the general court, in writing, when proposed rules are submitted pursuant to legislation that was voted on by the committee.
(i) Review past rules to see if they need to be reconsidered because they exceed the original intent and scope of the legislation.
4 Specificity of Rules; Identification of State or Federal Law. Amend RSA 541-A:3-a to read as possible:
541-A:3-a Specificity of Rules; Identification of State or Federal Law.
I. If an agency proposes a rule pursuant to RSA 541-A:3 or 541-A:19, the agency shall identify the specific section or sections of state or federal statutes or regulations which the rule is intended to implement in the notice required pursuant to RSA 541-A:6 and 541-A:19, II, and either in the rule, or in a separate cross-reference table pursuant to paragraph II. The notice shall be in such form as the director of legislative services shall prescribe until otherwise provided by the drafting and procedure manual adopted pursuant to RSA 541-A:8. The identification in the rule shall be made in the manner specified in the drafting and procedure manual. The agency shall verify that the rule does not exceed either the policy or intent of the state or federal statute or regulation that the rule is intended to implement. The underlying statutory authority for the rule shall be identified with as much specificity as possible.
II. If the specific section or sections of state statute or federal statute or regulation required by paragraph I are not identified in the rule itself, the agency shall file the information in a separate cross-reference table with each filing of the proposed or adopted rule other than an emergency rule. The agency shall post a copy of the proposed ruled on its website and make the table available to the public with a proposed or adopted rule whenever the rule is made available to or requested by the public. Unless otherwise specified by the drafting and procedure manual, the table shall be filed as an appendix to the rule and, when the rule is published pursuant to RSA 541-A:15, shall be published as an appendix to the rule chapter containing the rule. The table shall not be required to be filed on a separate page.
III. General references to the name or title of a state or federal statute or regulation shall not suffice for the purposes of this section. To the extent that specific provisions of the proposed rule are designed to implement different sections or provisions of state or federal statutes or regulations, the agency shall reference the specific state or federal statute or regulation as provided in paragraph I, with the provision of the proposed rule that is intended to implement that statute or regulation.
5 Petition for Adoption of Rules. Amend RSA 541-A:4, II to read as follows:
II. Notwithstanding paragraph I, if the committee petitions an agency to adopt, amend, or repeal a rule, and the agency does not notify the committee that rulemaking has commenced within [one year] 6 months of receiving the petition, or does not file a final proposal under RSA 541-A:12 within [2 years] one year of receiving the petition, the committee may file legislation to repeal the agency's rulemaking authority or otherwise amend the agency authority.
6 Fiscal Impact Statement. Amend RSA 541-A:5, III - IV to read as follows:
III. The legislative budget assistant shall establish a schedule of deadlines for submission of the fiscal impact form, and the agency shall file the completed form with the legislative budget assistant in accordance with such deadlines. No rule shall be proposed to the committee without the accompanying fiscal impact form.
IV. The fiscal impact statement issued by the legislative budget assistant shall not be limited to dollar amounts, but shall include a discussion of the methodology used to reach any stated amounts. In addition, the fiscal impact statement shall consist of:
(a) A narrative stating the costs and benefits to those affected by the rule and the citizens of the state and to the political subdivisions of the intended action. The narrative shall include an estimate of the cost to implement the proposed rule and the cost to those affected of adhering to the rule.
(b) A conclusion as to the cost or benefit to the state general fund or any state special fund of taking the intended action.
(c) An explanation of, and citation to, the federal mandate for the intended action, if there is such a mandate, and how that mandate affects state funds.
(d) A comparison of the cost of the intended action with the cost of the existing rule, if there is an existing rule, and, to the extent that the proposed rule had expired, indicating the cost of the expired rule and, if applicable, the difference in cost of any proposed change from the expired rule.
(e) An analysis of the general impact of the intended action upon any independently owned businesses, including a description of the specific reporting and recordkeeping requirements upon small businesses which employ fewer than [10] 50 employees.
7 Notice of Rulemaking Proceeding; Notice Period. Amend the introductory paragraph of RSA 541-A:6, I to read as follows:
I. The agency shall give at least 20 days' notice of its intent to hold a public hearing and shall also give notice of the cut-off date for the submission of written testimony pursuant to RSA 541-A:11, I, on any proposed adoption, amendment, readoption, readoption with amendment, or repeal of a rule. The notice periods shall begin on the day after the date of publication in the rulemaking register and shall not end before submission of the rule to the committee. The notice shall be in such form as the director of legislative services shall prescribe and shall include:
8 New Subparagraph; Notice of Rulemaking Proceedings; Statutory Authority for Rule; Agency Statement. Amend RSA 541-A:6, I by inserting after subparagraph (j) the following new subparagraph:
(k) A statement, with adequate details and supporting data, that the proposed rule does not exceed or minimize the policy or intent of the underlying statute and does not create or reduce additional policy or requirements for those affected by the rule.
9 Notice of Rulemaking Proceedings; Notice to Licensees. Amend RSA 541-A:6, III to read as follows:
III. The agency shall send notice with a copy of the proposed rule, to the director of legislative services, to all persons regulated by the proposed rules who hold occupational, operational, or other regulatory licenses issued by the agency, and to all persons who have made timely request for advance notice of rulemaking proceedings. Upon request the agency shall send notice to the president of the senate, to the speaker of the house of representatives, and to the chairpersons of the legislative committees having jurisdiction over the subject matter. Notice shall be made not less than 20 days before the first agency public hearing required by RSA 541-A:11, I. Notice to [occupational] all licensees shall be by U.S. Mail, electronically, agency bulletin or newsletter, public notice advertisement in a publication of daily statewide circulation, or in such other manner that is reasonably calculated to inform such licensees of the proposed rulemaking. The committee may identify additional methods of notifying [occupational] licensees that are deemed sufficient.
10 Filing of Proposed Rule Text; Legislative Policy Committee Review. Amend RSA 541-A:10 to read as follows:
541-A:10 Filing of Proposed Rule Text; Establishing and Revising Text.
I. At the same time the notice required by RSA 541-A:6, I is filed, the agency shall file the text of the proposed rule with the director of legislative services. The text of each proposed rule filed shall encompass at least a full rules section. The text of the proposed rules as filed by the agency pursuant to RSA 541-A:3, III shall not be changed prior to the hearing held pursuant to RSA 541-A:11, I(a). The agency shall submit, with the proposed rule, a statement verifying that the rule complies with the policy and intent of the statute as passed by the general court and does not exceed or minimize such.
II. The agency shall not establish the text of the final proposal until after the conclusion of the public comment period established pursuant to RSA 541-A:11, I(b). If the agency [elects to solicit] receives public comment pursuant to RSA 541-A:11, I(c), the agency shall prepare a draft final proposal that is annotated to show how the rules as initially proposed are proposed to be changed. In response to comment received, the agency may revise the draft prior to filing the final proposal in accordance with RSA 541-A:12.
11 Public Hearing and Comment. Amend RSA 541-A:11, I-II to read as follows:
I.(a) Each agency shall hold at least one public hearing on all proposed rules filed pursuant to RSA 541-A:3 and shall afford all interested persons reasonable opportunity to testify and to submit data, views, or arguments in writing or, if practicable for the agency, in electronic format, in accordance with the terms of the notice filed pursuant to RSA 541-A:3, I and the provisions of this section. The office of legislative services shall provide oral or written comments on potential bases for committee objection under RSA 541-A:13, IV, including an opinion as to whether the rule conforms with legislative intent, in a form and manner determined by the director of the office of legislative services. Each agency shall require all materials submitted in writing to be signed by the person who submits them, and the agency shall transfer to hard copy, if practicable for the agency, all materials submitted as diskette, electronic mail, or other electronic format. Copies of the proposed rule shall be available to the public under RSA 91-A and at least 5 days prior to the date of the hearing. Members of the public, including business owners and licensees, who provide input and feedback on proposed rules shall not suffer any retaliation for sharing their opinions.
(b) For rules proposed by a board or commission, a period of at least 5 business days after the hearing shall be provided for the submission of materials in writing or in electronic format[, unless a shorter period is specified in the notice. If a shorter period is specified in the notice, the deadline for the submission of such materials shall not be earlier than the scheduled conclusion of the public hearing]. For rules proposed by an agency official, a period of at least 5 business days after the hearing shall be provided in all instances. If a hearing is continued or postponed as provided in paragraph III or IV of this section, the period for the submission of materials in writing or in electronic format shall be extended [unless the previously-established deadline meets the applicable requirement specified above].
(c) An agency may hold a public hearing or otherwise solicit public comment on a draft final proposed rule prior to filing the final proposed rule pursuant to RSA 541-A:3, V. Notice of such hearing or comment period shall be provided by such means as are deemed appropriate to reach interested persons, which may include publishing a notice in the rulemaking register.
II. For rules proposed by a board or commission, or by an agency overseen by a board or commission, each hearing shall be attended by a quorum of its members. For rules proposed by an agency official, each hearing shall be held by the official having the rulemaking authority, or designee, who shall be knowledgeable in the particular subject area of the proposed rules.
12 Filing Final Proposal. Amend RSA 541-A:12 to read as follows:
541-A:12 Filing Final Proposal.
I. After fully considering public comment and any committee comments or comments by the office of the legislative services received pursuant to RSA 541-A:11, and any other relevant information, a quorum of the members of the agency or the agency official having rulemaking authority shall establish the text of the final proposed rule. After the text of the final proposed rule has been established, the agency shall file the final proposal no earlier than 21 days and no later than 180 days after the date of publication of the notice in the rulemaking register. The agency shall file the final proposal with the director of legislative services. Final proposals filed no later than 21 days before a regularly scheduled committee meeting shall be placed on the agenda for that meeting. Final proposals filed fewer than 21 days before a regularly scheduled committee meeting shall be placed on the agenda of the following regularly scheduled committee meeting.
II. The final proposal shall include:
(a) A cover sheet listing:
(1) The number of the notice and the date the notice appeared in the rulemaking register;
(2) The name and address of the agency;
(3) The title and number of the rule; and
(4) A citation to the statutory authority for the rule, with a statement that verifies the rule does not exceed or minimize the statute's policy or intent.
(b) One copy of the established text of the final proposed rule.
(c) If required pursuant to RSA 541-A:5, VI, an amended fiscal impact statement from the legislative budget assistant stating that as a result of notice and hearing the rule did change and explaining how this change affects the original fiscal impact statement.
(d) A copy of the fixed text of the final proposed rule annotated clearly to show how the final proposed rule differs from the rule as initially [proposed] introduced at the public hearing, if the text has changed.
III. An agency may establish requirements in its rules by citing to a document or to Internet content prepared by an unrelated third party. If state-enforceable requirements are so established, the agency shall file an incorporation by reference statement as specified in paragraph IV with the final proposal. No agency shall incorporate by reference any document or Internet content prepared by or on behalf of the agency, provided that documents prepared by a group or association of which the agency is a member may be incorporated by reference.
IV. Any incorporation by reference statement required by paragraph III shall include a statement signed by the adopting authority:
(a) Certifying that the text of the incorporated document or Internet content has been reviewed by the agency, with the name of the reviewing official;
(b) Explaining how the text of the incorporated document or Internet content can be obtained by the public, and at what cost;
(c) Explaining any modifications to the incorporated document or Internet content;
(d) Discussing the comparative desirability of reproducing the incorporated document or Internet content in full in the text of the rule; and
(e) Certifying that the agency has the capability and the intent to enforce the requirements being incorporated.
V. If an agency establishes requirements by incorporating undated Internet content by reference, the agency shall make a read-only copy of the incorporated Internet content no later than the date of filing the incorporation by reference statement, and make the dated copy available to the public.
VI. Each agency shall, upon request for a copy of any document or Internet content incorporated by reference in the agency's rules, make available for inspection any such document or downloaded Internet content.
VII. Each agency shall include the information required in subparagraph IV(b) and any proposed forms, as an appendix with each filing of the proposed or adopted rule. The agency shall make the information available to the public with a proposed or adopted rule whenever the rule is made available to or requested by the public. When the rule is published pursuant to RSA 541-A:15, the information shall be published as an appendix to the rule chapter containing the rule with a reference in the rule to the appendix. The information shall not be required to be filed on a separate page.
13 Administrative Procedure Act; Review by the Joint Legislative Committee on Administrative Rules; Joint Resolution Required for All Rules. Amend RSA 541-A:13 to read as follows:
541-A:13 Review by the Joint Legislative Committee on Administrative Rules.
I. The committee shall either approve the rule or enter a conditional approval or objection under paragraph V, or deny the rule based upon the proposed rule going beyond the scope or legislative intent within 60 days of the filing of a final proposal under RSA 541-A:12, I, unless the deadline is waived for good cause pursuant to RSA 541-A:40. [Objections to a rule may be made only once. The committee may not add or amend grounds for objection after a preliminary objection is made under paragraph V unless the agency's response to the objection creates the grounds or the agency requests a revised objection which includes them.]
II.(a) If an agency has filed a final proposal, the director of legislative services shall notify the agency of any potential bases for committee objection identified by the office of legislative services by forwarding a copy of the final proposal with the counsel's comments noted thereon, including whether the proposed rule exceeds, minimizes, or creates new policy.
(b) In response to the comments, or for other reasons in lieu of requesting a preliminary objection, an agency may then file a request for conditional approval with the director for review by the committee and request that the committee conditionally approve the rule with an amendment. Both the request and the amendment shall be in writing and shall be filed at least 7 days prior to the regularly scheduled meeting or special meeting for which the final proposal has been placed on the agenda. An agency may request a waiver pursuant to RSA 541-A:40, IV of the 7-day deadline for good cause as established in the drafting and procedure manual under RSA 541-A:8, but the committee may for compelling reasons under the committee's rules pursuant to RSA 541-A:2, II accept a request for a conditional approval in the meeting under paragraph V.
(c) The committee may:
(1) Approve the rule as originally filed; or
(2) Act under paragraph V.
(d) If the committee approves the rule as filed pursuant to RSA 541-A:12, it shall notify the agency in writing of its approval.
[(e) Failure to give notice of either approval, conditional approval, or objection at the end of the 60-day period under paragraph I shall be deemed approval.]
III. If the rule is approved under subparagraph II(c) or (e), the agency may adopt the rule.
IV. The committee [may] shall object to a proposed rule if the rule is:
(a) Beyond the authority of the agency;
(b) Contrary to the intent of the legislature, or exceeds or minimizes the policy or intent of the statutory authority for the rule;
(c) Determined not to be in the public interest; or
(d) Deemed by the committee to have a substantial economic impact not recognized in the fiscal impact statement.
V. The following procedures shall govern committee objections and conditional approvals:
(a) If the committee objects to the final proposal as filed, it shall so inform the agency. In lieu of a preliminary objection, and with or without a written request under subparagraph II(a), the committee may vote to conditionally approve the rule with an amendment, provided that the committee specifies in its conditional approval the language of the amendment to address the basis for a preliminary objection. The committee shall notify the agency in writing of its conditional approval. Within 30 days of the meeting, or in the case of a board or commission, 7 days following its next regularly scheduled meeting, the agency shall submit a written explanation to the committee in the form of a letter and an annotated text of the final proposed rule detailing how the rule has been amended in accordance with the conditional approval. The written explanation shall be signed by the individual holding rulemaking authority, or, if a body of individuals holds rulemaking authority, by a voting member of that body, provided that a quorum of the body has approved, or for any agency overseen by a board or commission, a majority of the board or commission has approved. Failure to submit a written explanation in accordance with the conditional approval and this paragraph shall cause the conditional approval to be deemed a committee vote to make a preliminary objection on the date of the conditional approval. If the office of legislative services determines that the agency has amended the rule in accordance with the conditional approval and this paragraph, the office of legislative services shall promptly send written confirmation of compliance to the agency. The agency may then adopt the rule as amended.
(b) If the committee objects to the final proposal as filed or as amended pursuant to paragraph II, the committee shall send the agency a preliminary written objection stating the basis for the objection. A preliminary objection or conditional approval shall require the assent of a majority of the votes cast, a quorum being present. If a preliminary objection is made, the committee [may] shall send a copy of the preliminary objection to the appropriate house and senate standing policy committees and, if so, shall give notice to the agency. Within 30 days of the date the preliminary objection was entered, the standing policy committees at properly convened executive sessions shall review the proposed rules and the preliminary objection and shall adopt recommendations or comments relative to the basis for the preliminary objection and shall communicate the same to the committee. If the policy committee determines, by majority vote, that the rule does not comply with the scope and intent of its statutory authority, the policy committee's vote shall form the basis for a final objection and denial under subparagraph (f).
(c) The agency shall respond to the preliminary objection by withdrawing the rule[,] or by amending the rule to remove the basis for objection[, or by making no change. The agency shall respond to a committee objection only once,] and shall report its response in writing to the committee within 45 days of the committee's vote to make a preliminary objection. Failure to respond to the committee in accordance with this subparagraph shall mean the rulemaking procedure for that proposed rule is invalid; however, the agency is not precluded from initiating the process over again for a similar rule. After receipt of the agency response, the committee may modify its objections made under paragraph IV or approve the rule.
(d) After submitting its preliminary objection response and prior to the final committee vote on the final proposal, and in all cases, prior to the adoption of the rule by the agency, the agency may request that the committee approve the rule with further amendment or issue a revised objection. The committee may approve the rule with further amendment only if the agency submits the request and proposed amendment, in writing to the committee at least 7 days prior to the committee meeting at which the agency presents the rule. Submission of such a request shall not preclude the agency from requesting a revised objection if the committee does not approve the rule as requested.
(e) A revised objection may be made [only once] by the committee [and may be made only at the request of the agency]. The agency shall respond and the committee may review the response in the same manner as a preliminary objection. No further amendment may be made by the agency after it responds to the committee except as provided in RSA 541-A:14, II.
(f) If the agency responds but the basis for the committee's preliminary or revised objection has not been removed or the response creates a new basis for objection, the committee may, by majority vote of the entire committee, file a final objection and deny the rule. The final objection and denial shall be filed in certified form with the director of legislative services for publication in the next issue of the rulemaking register.
VI. After a final objection by the committee to a provision in the rule is filed with the director under subparagraph V(f), the burden of proof shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic or operational impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or a 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.
VII.(a) The provisions of this paragraph may be used by the committee as an alternative to or in addition to the final objection procedure employed by the committee in paragraph V.
(b) If an agency responds to a preliminary or revised objection but the basis for objection has not been removed or the response creates a new basis for objection, the committee [may] shall, within 50 days from the date on which the objection response was due and by majority vote of the entire committee, recommend legislative action through sponsorship of a joint resolution or other legislation to implement its recommendation. Such vote shall prevent the rule from being adopted and filed by the agency for the period of time specified in subparagraph VII(c).
(c) If the committee votes to sponsor a joint resolution or recommends other legislation to the speaker of the house of representatives or the senate president pursuant to subparagraph VII(b), the joint resolution or legislation shall be introduced in the house of representatives or senate within 20 business days of such vote when the general court is in session and 20 business days of the start of the following legislative session if such vote occurs when the general court is not in session. [If a joint resolution is not introduced within this time frame, the agency may adopt the rule.] If a joint resolution or bill is introduced within this time frame, the agency shall be prevented from adopting and filing such rule until final legislative action is taken on the resolution [or the passage of 90 consecutive calendar days during which the general court shall have been in session, whichever occurs first. The 90 calendar day period shall commence on the date such joint resolution has been introduced. If the session of the general court adjourns prior to the sixtieth calendar day after such joint resolution has been introduced, then the agency shall be prevented from adopting and filing such rule until 90 calendar days, beginning with the next session of the general court, have passed].
(d) The provisions of this paragraph shall apply to only the specific portion of the agency's rule identified in the joint resolution or legislation. The provisions of this paragraph shall not prevent an agency from adopting and filing the remainder of the rules in the final proposal under RSA 541-A while the committee pursues legislative action under this paragraph, nor shall it prevent the committee from also voting to enter a final objection pursuant to paragraph V.
(e) Nothing in this section shall prevent the general court from introducing legislation which addresses any matter included in a joint resolution introduced under the provisions of this section.
(f) Notwithstanding any house or senate rules to the contrary, a joint resolution which the committee votes to sponsor under subparagraph VII(b) may be introduced at any time during the legislative session. It shall be subject to the same rules as any other bill introduced at the beginning of the legislative session.
14 Administrative Procedure Act; Final Adoption; Final Legislative Action Required. Amend RSA 541-A:14 to read as follows:
541-A:14 Final Adoption.
I. An agency may adopt a properly filed final proposed rule after:
(a) [The passage of 45 days from filing of a final proposal under RSA 541-A:12, I, or 60 days from filing under RSA 541-A:12, I-a, without receiving notice of objection from the committee;
(b)] Receiving approval from the committee;
[(c)] (b) Written confirmation is sent to the agency by committee legal counsel relative to agency compliance with the committee's conditional approval pursuant to RSA 541-A:13, V(a); or
[(d) Passage of the 50-day period for committee review of the preliminary objection response, or revised objection response, if applicable, provided that the committee has not voted to sponsor a joint resolution pursuant to RSA 541-A:13, VII; or ]
[(e)] (c) Final legislative action, as defined in RSA 541-A:1, VI-a, is taken on the joint resolution sponsored pursuant to RSA 541-A:13, VI or VII(b) [or the passage of the 90 consecutive calendar days specified by RSA 541-A:13, VII(c), whichever occurs first].
II. The text of the adopted rule shall be the same as the text of the final proposed rule submitted under RSA 541-A:12, unless revised by the agency in direct response to the committee's written objection or as otherwise provided in RSA 541-A:13. The director of legislative services [may] shall refuse to accept for filing any final rule which contains changes, other than minor editorial changes, that are not specifically made in accordance with the procedures provided in RSA 541-A:13, II(b) or RSA 541-A:13, V. The agency shall identify each minor editorial change in writing to the director of legislative services.
III. The agency shall file all adopted rules with the director of legislative services.
IV. Adopted rules shall become effective under RSA 541-A:16, III on the day after filing by the agency, or at a later date, provided that the agency so specifies in a letter to the director of legislative services, and further provided that the agency does not establish different effective dates for different provisions within the same rule. If the agency has specified a later effective date, the agency may modify the date by providing a statement to the director of legislative services which shall indicate the new effective date and all reasons for modifying the date and affirm such change in date does not conflict with statute. The statement shall be published by the director of legislative services in the rulemaking register. No modified effective date shall occur earlier than the date of publication in the rulemaking register. The director shall maintain a file of all currently effective rules, and each agency shall maintain a file of its own currently effective rules, both of which shall be open to the public.
15 Publication of Rules. Amend RSA 541-A:15, III to read as follows:
III. The director of legislative services [may] shall omit from the compilation any rule the publication of which would be unduly cumbersome, expensive, or otherwise inexpedient, if the rule in printed or processed form is made available on application to the adopting agency, and if the compilation contains a notice stating the general subject matter of the omitted rule and stating how a copy thereof may be obtained.
16 Interim Rules. Amend RSA 541-A:19, VI-VIII to read as follows:
VI. The committee shall vote to approve or conditionally approve the rule or object and deny the rule under paragraph VII. [Objections to a proposed interim rule may be made only once.]
VII. The committee [may] shall object to a proposed interim rule if the rule is:
(a) Beyond the authority of the agency;
(b) Contrary to the intent of the legislature;
(c) Exceeds the original intent and scope of the legislation or imposes excessive operational and financial burdens;
(d) Determined not to be in the public interest; or
[(d)] (e) Deemed by the committee not to meet the requirements of paragraph I.
VIII. The following procedures shall govern committee review of interim rules:
(a) The director of legislative services shall notify the agency of any potential bases for committee objection by forwarding a copy of the proposed interim rule with comments noted thereon to the agency at least 7 days prior to the committee meeting at which the rule will be considered. Following receipt of the comments an agency may file a request for conditional approval of its interim rule with an amendment to address the noted potential bases for objection, or for other reasons in lieu of requesting an objection. Both the request for conditional approval and the amendment shall be in writing and shall be filed at least 3 days prior to the meeting for which the proposed interim rule has been placed on the agenda. An agency may request a waiver pursuant to RSA 541-A:40, IV of the 3-day deadline for good cause as established in the drafting and procedure manual under RSA 541-A:8, but the committee may for compelling reasons under the committee's rules pursuant RSA 541-A:2, II accept a request for a conditional approval in the meeting. The committee may approve the rule as originally proposed or conditionally approve the rule under subparagraph (b).
(b) If the committee objects to the proposed interim rule as filed, it shall so inform the agency. In lieu of an objection, and with or without a written request under subparagraph (a), the committee may vote to conditionally approve the rule with an amendment, provided that the committee specified in its conditional approval the language of the amendment to address the basis for a preliminary objection. The committee shall notify the agency in writing of its conditional approval. Within 14 days of the meeting, the agency shall submit a written explanation to the committee in the form of a letter and an annotated text of the final proposed rule detailing how the rule has been amended in accordance with the conditional approval. The written explanation shall be signed by the individual holding rulemaking authority, or, if a body of individuals holds rulemaking authority, by a voting member of that body, provided that a quorum of the body has approved. Failure to submit a written explanation in accordance with the conditional approval and this paragraph shall cause the conditional approval to be deemed a committee vote to make a preliminary objection on the date of the conditional approval. If the committee legal counsel determines that the agency has amended the rule in accordance with the conditional approval and this paragraph, the committee legal counsel shall promptly send written confirmation of compliance to the agency. The agency may then adopt the rule as amended.
(c) If the committee objects to the proposed interim rule as filed pursuant to subparagraph VIII(a), the committee shall send the agency a written objection stating the basis for the objection. An objection or a conditional approval shall require the assent of a majority of the votes cast, a quorum being present.
(d) If the committee makes an objection to the proposed interim rule pursuant to subparagraph VIII(c), the agency may cure the defect or withdraw the interim rule. The agency shall respond to a committee objection [only once,] and shall report its response in writing to the committee prior to its next regularly scheduled meeting. Failure to respond to the committee in accordance with this subparagraph shall mean the rulemaking procedure for that proposed interim rule is invalid; however, the agency is not precluded from initiating the process over again for a similar rule, provided the conditions in paragraph I are met.
(e) The committee shall review the response and vote to approve the response or continue the objection.
[(f) The committee's objection shall not preclude the agency from adopting the substance of an interim rule by meeting the requirements of RSA 541-A:3.]
17 Remedies for Procedural Failures. Amend RSA 541-A:23, I and II to read as follows:
I. The following shall prevent a rule from taking effect:
(a) Failure to file with the director of legislative services;
(b) Failure to file with the committee;
(c) Failure to respond to an objection of the committee as required by RSA 541-A:13, V; [or]
(d) Failure to receive approval of the committee for a proposed interim rule, as required by RSA 541-A:19, X;
(e) A majority vote by the committee to deny the rule; or
(f) A majority vote by the house or senate policy committee to deny the rule.
II. The following shall not affect the validity of a rule:
(a) Inadvertent failure to make required assurances relating to an incorporation by reference;
(b) [Failure to certify that all procedures required by this chapter have been satisfied;
(c)] Failure to meet the style requirements of RSA 541-A:7; or
[(d)] (c) Inadvertent failure to mail notice or copies of any rule.
18 Repeal of Exemptions to Rulemaking. The following are repealed:
I. RSA 541-A:21, I(d), the exemption for RSA 265:62, relative to the establishment of state speed zones.
II. RSA 541-A:21, I(f), the exemption for RSA 236:9, relative to excavation permits.
III. RSA 541-A:21, I(g), the exemption for RSA 236:13, relative to driveway permits.
IV. RSA 541-A:21, I(l), the exemption for RSA 284:12, IV, relative to the sale of pari-mutuel pools as authorized under RSA 284:22 and RSA 284:22-a.
V. RSA 541-A:21, I(m), the exemption for RSA 237:5, II; 237:9; 237:17; 237:24, I; 237:34; and 237:40, relative to the establishment of toll rates for turnpikes.
VI. RSA 541-A:21, I(t), the exemption for RSA 260:65-b, relative to the multi-jurisdictional fuel tax agreement.
VII. RSA 541-A:21, I(u), the exemption for RSA 162-A, relative to the business finance authority.
VIII. RSA 541-A:21, I(v), the exemption for rules adopted under RSA 195-D, relative to the New Hampshire health and education facilities authority.
IX. RSA 541-A:21, I(w), the exemption for RSA 485:16-b, II relative to limits on the concentration of methyl tertiary butyl ether in gasoline.
X. RSA 541-A:21, I(x), the exemption for RSA 204-C:53, relative to the housing finance authority.
XI. RSA 541-A:21, I(y), the exemption for RSA 237:16-d, relative to the E-Z Pass Interagency Agreement for Operations.
XII. RSA 541-A:21, I(cc), the exemption for RSA 106-B:14, I-a, relative to the fee for criminal record checks of department of health and human services employees, service providers, and licensed and license-exempt child day care providers.
XIII. RSA 541-A:21, I(dd), the exemption for RSA 270:12, relative to boat operating restrictions.
XIV. RSA 541-A:21, I(ee), the exemption for RSA 155-A:10, V, relative to the amendments to the state building code and state fire code for the codes described in RSA 155-A:1, IV and IV-a.
XV. RSA 541-A:21, I(ff), the exemption for RSA 153:5, I, relative to the adoption of the state fire code.
XVI. RSA 541-A:21, I(hh), the exemption for rules relative to the state infrastructure bank established in RSA 21-L:19 through RSA 21-L:23 for transportation purposes.
XVII. RSA 541-A:21, I(jj), the exemption for RSA 162-S, relative to the extraterritorial financing powers of the business finance authority.
XVIII. RSA 541-A:21, I(kk), the exemption for RSA 162-L, relative to the community development finance authority.
XIX. RSA 541-A:21, III, the exemption from RSA 541-A:5 through RSA 541-A:14 for rules adopted under RSA 161:4, VI, relative to rates of reimbursement to providers of medical services under the medical assistance program.
XX. RSA 541-A:21, III-a, the exemption from RSA 541-A:5 through RSA 541-A:14 for rules adopted relative to the budget adjustment factor contained within the Medicaid rate of reimbursement methodology for nursing facilities when the budget adjustment factor applied to the reimbursement methodology is equal to or less than 28.76 percent.
XXI. RSA 541-A:21, VIII, the limited exemption for rules relative to the department of health and human services medical assistance program coverage criteria for medical services and items, adopted under either RSA 161:4-a, IX or other rulemaking authority of the commissioner of the department relative to the medical assistance program.
19 Effective Date. This act shall take effect 60 days after its passage.
