CHAPTER 252
SB 161-FN – FINAL VERSION
03/16/11 0706s
03/23/11 1001s
27Apr2011… 1442h
06/22/11 2374CofC
2011 SESSION
10/03
SENATE BILL 161-FN
AN ACT relative to procedures for adoption of agency rules under the administrative procedures act.
SPONSORS: Sen. Merrill, Dist 21; Sen. Stiles, Dist 24; Sen. Carson, Dist 14; Rep. P. Schmidt, Straf 4; Rep. Norelli, Rock 16; Rep. Pilotte, Hills 16; Rep. B. Patten, Carr 4; Rep. C. McGuire, Merr 8
COMMITTEE: Executive Departments and Administration
This bill:
I. Shortens the public comment period after a public hearing.
II. Gives the director of legislative services limited discretion in the publication of rulemaking notices.
III. Provides for electronic copies of the rulemaking register.
IV. Allows agencies to hold a second public hearing on proposed rules.
V. Extends the expiration date of rules to 10 years and allows for extending rules by filing readoption of currently effective rules.
VI. Allows for incorporation by reference of Internet content.
VII. Modifies procedures for interim and emergency rulemaking.
VIII. Requires the director of legislative services to develop a process for expedited readoption of rules.
IX. Extends the date for introduction of a joint resolution by the joint legislative committee on administrative rules.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
03/16/11 0706s
03/23/11 1001s
27Apr2011… 1442h
06/22/11 2374CofC
11-0995
10/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT relative to procedures for adoption of agency rules under the administrative procedures act.
Be it Enacted by the Senate and House of Representatives in General Court convened:
252:1 Notice of Rulemaking Proceedings; Concise Summary. Amend RSA 541-A:6, I(f) to read as follows:
(f) If existing rules are being amended, readopted, or readopted with amendment, a concise summary [explaining the effect] of the [rule] existing rules and any proposed amendments, and if the proposed rules are being adopted, a concise summary of the proposed rules.
252:2 Notice of Rulemaking Proceedings; Substantial Noncompliance. Amend RSA 541-A:6, II and III to read as follows:
II. The director of legislative services may refuse to publish a notice if the director determines that there is significant noncompliance with the requirements of paragraph I. In this paragraph, “significant noncompliance” means one or more errors of such magnitude that a reasonable person would not be able to discern what rules are the subject of the rulemaking proceeding and/or what the agency is proposing to do. The term includes the absence of elements required by paragraph I.
III. The agency shall send notice to the director of legislative services, to all persons regulated by the proposed rules who hold occupational 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, to the chairperson of the fiscal committee, 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 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 [by the committee].
252:3 New Paragraphs; Rulemaking Register; Authority of Director; Date of Publication. Amend RSA 541-A:9 by inserting after paragraph I the following new paragraphs:
I-a. Prior to publication and with prior notice to the agency, the director of legislative services may correct typographical, spelling, and punctuation errors, as well as unintentional errors in references and citations in a submission, provided the corrections do not affect the substance of the notice.
I-b. The date of publication of the rulemaking register shall be the date on which the register is available to the public on the general court information services web site.
252:4 Rulemaking Register; Electronic Copies. Amend RSA 541-A:9, II and III to read as follows:
II. The rulemaking register shall be made available upon request to agencies and officials of this state free of charge. The director of legislative services shall send a paper or electronic copy of the rulemaking register upon request to the clerk of each municipality in the state and upon request to any member of the general court free of charge. Municipalities and members of the general court shall be deemed to have requested an electronic copy unless a paper copy is specifically requested. Paper copies of the register which are sent to municipalities and to members of the general court shall be sent by first-class mail.
III. Paper copies of the register shall also be made available upon request to other persons at prices fixed by the director of legislative services to cover mailing and publication costs.
252:5 Filing Proposed Rule Text; Establishing and Revising Text of Rules. RSA 541-A:10 is repealed and reenacted 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 first time a rule is proposed under RSA 541-A:3 to implement newly-enacted state authority, the agency shall send an electronic copy of the notice and proposed rule to the chair of each house and senate standing policy committee, as defined in RSA 541-A:1, XVI, for distribution to the members of such standing policy committees. If the newly-enacted state authority was not referred originally to a standing policy committee, the agency shall send an electronic copy of the notice and proposed rule to the speaker of the house and senate president for appropriate distribution. If the agency does not have the technology necessary to send an electronic copy, the agency shall send a paper copy. The members of the standing policy committees receiving proposed rules may review the proposed rules to determine whether the proposed rule is consistent with the intent of the authorizing legislation. If a standing policy committee concludes that the proposed rule is not consistent with the intent of the authorizing legislation, the standing policy committee shall send written notice to the agency, with a copy to the director of legislative services, identifying the provision or provisions the committee believes to be inconsistent with legislative intent. Such written notice may be sent to the agency via e-mail and shall be delivered so as to be received by the agency no later than the deadline for public comment specified in the rulemaking notice. If the agency does not receive notice from any standing policy committee by the end of the public comment period, the agency may proceed on the basis that the rule is consistent with the intent of the authorizing legislation. 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).
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 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.
252:6 Public Hearing; Public Comment Period. Amend RSA 541-A:11, I 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 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.
(b) For rules proposed by a board or commission, a period of at least [10] 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 [10] 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.
252:7 Filing Final Proposal; Incorporation by Reference; Internet Content. Amend RSA 541-A:12, II-IV to read as follows:
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.
(b) [Two copies] One copy of the established text of the final proposed rule.
(c) [A copy of the full text of the statutory authority for the rule.
(d)] 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.
[(e)] (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, if the text has changed.
III. [With the final proposal, the agency shall also file the incorporation by reference statement described by paragraph IV of this section, if the] An agency [incorporates into] may establish requirements in its rules [any] by citing to a document or to Internet content prepared by [any entity outside the agency] 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. [However, the] No agency shall [not] incorporate by reference any document or Internet content prepared by or on behalf of the agency.
IV. Any [required] incorporation by reference statement required by paragraph III shall include a [separately signed] statement signed by the adopting authority:
(a) Certifying that the text of the [matter] 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 [matter] incorporated document or Internet content can be obtained by the public, and at what cost;
(c) Explaining any modifications to the [matter] incorporated document or Internet content;
(d) Discussing the comparative desirability of reproducing the incorporated [matter] 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 [rule] 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.
252:8 New Section; Extension of Currently Effective Rules Pending Readoption. Amend RSA 541-A by inserting after section 14 the following new section:
541-A:14-a Extension of Currently Effective Rules Pending Readoption.
I. If an agency files a notice pursuant to RSA 541-A:6 to readopt existing rules, with or without amendments, the currently effective rules in the filing which would otherwise expire prior to the completion of the readoption of the rules by the agency shall continue in effect until the proposed rules are adopted and effective.
II. If, after filing a notice pursuant to paragraph I, an agency fails to file a final proposal by the deadline specified in RSA 541-A:12, fails to file a response to objection as specified in RSA 541-A:13, or fails to adopt and file the proposed rule as specified in paragraph III, the existing rules which would otherwise expire prior to the completion of the readoption of the rules by the agency shall expire 30 days after such deadline unless the agency has obtained a waiver of the deadline pursuant to RSA 541-A:40, IV(a). If the agency has obtained a waiver to a deadline, such existing rules shall expire 30 days after the deadline established pursuant to RSA 541-A:40, IV(b) if the required action is not taken.
III. If rules are extended pursuant to this section, the agency shall:
(a) Adopt the proposed rules no later than 30 days after the date on which the agency is allowed to adopt the rules under RSA 541-A:14, I; and
(b) File the rules as required by RSA 541-A:14, III with an effective date that is not more than 60 days from the date of filing, except that an agency may specify an effective date that is more than 60 days from the date of filing if a waiver is obtained pursuant to RSA 541-A:40.
252:9 Filing Rules; Effective Date. Amend RSA 541-A:16, III to read as follows:
III. A rule shall become effective as of 12:01 a.m. on the day after the filing of the adopted rule or as of 12:01 a.m. on the date specified by the agency pursuant to RSA 541-A:14, IV, RSA 541-A:14-a, III, or RSA 541-A:19, X, or such other date and time as specified, provided that filing occurs before such effective date and time. Except as provided in RSA 541-A:14-a, a rule adopted under RSA 541-A:14, IV shall expire after the last day of the [eighth] tenth year following its becoming effective, unless sooner amended, readopted, or repealed.
252:10 Time Limit; Effective Period. Amend RSA 541-A:17, I to read as follows:
I. No rule shall be effective for a period of longer than [8]10 years except as extended pursuant to RSA 541-A:14-a, but the agency may adopt an identical rule under RSA 541-A:5 through RSA [541-A:14] 541-A:14-a, in conformance with the drafting and procedure manual adopted under RSA 541-A:8.
252:11 Emergency Rules. Amend RSA 541-A:18, I to read as follows:
I. [If an] An agency may proceed to adopt an emergency rule if it finds either that an imminent peril to the public health or safety requires adoption of a rule with less notice than is required under RSA 541-A:6 or that substantial fiscal harm to the state or its citizens could occur if rules are not adopted with less notice than is required under RSA 541-A:6. [and states in writing its reasons for that finding, it may proceed to adopt an emergency rule.] The rule may be adopted without having been filed in proposed or final proposed form and may be adopted after whatever notice and hearing the agency finds to be practicable under the circumstances. The agency shall make reasonable efforts to ensure that emergency rules are made known to persons who may be affected by them.
252:12 Emergency Rules; Adoption. Amend RSA 541-A:18, III(e) to read as follows:
(e) A signed and dated statement by the adopting authority explaining the nature of the [imminent peril to the public health or safety] basis for the emergency rule, including [a summary] an explanation of the effect upon the state if the emergency rule were not adopted.
252:13 Interim Rules; New or Amended Statute. Amend RSA 541-A:19, I(a) to read as follows:
(a) Conform with a new or amended codified state statute or chaptered session law, provided, however, that an agency shall not publish notice of a proposed interim rule more than [90] 120 days after the effective date of the new or amended codified state statute or chaptered session law;
252:14 Expedited Process for Readoption of Rules. The director of legislative services shall develop an expedited process for readopting rules which contain no changes or contain only minor changes. Minor changes shall include renumbering, updating internal references, references to documents incorporated by reference, date and year changes, typographical or grammatical errors, and other editorial changes. The director shall consult with agency staff as necessary. The director shall provide a report on an expedited process and any proposals for legislation to the chairperson of the joint legislative committee on administrative rules not later than November 1, 2012.
252:15 Suspension of Provisions; Waiver. Amend RSA 541-A:40, IV as follows:
IV.(a) Notwithstanding any other provision of this chapter, the director of legislative services may, after consultation with the chair and vice-chair of the joint legislative committee on administrative rules, [may,] and for good cause shown, waive any deadline or otherwise extend any time period contained in any provision of this chapter which relates to the rulemaking process.
(b) If a deadline is waived or a time period is extended, the director shall, after consultation with the chair and the vice-chair of the committee and the agency whose rules are affected, establish a new deadline by which the required action shall be taken.
252:16 Review by the Joint Legislative Committee on Administrative Rules; Introduction of Joint Resolution. Amend RSA 541-A:13, VII(c) to read as follows:
(c) If the committee votes to sponsor a joint resolution pursuant to subparagraph VII(b), the joint resolution shall be introduced in the house of representatives or senate within [10] 20 business days of such vote when the general court is in session and [10] 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 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.252:
252:17 Transition; Application. The provisions of this act shall govern the following on or after the effective date of this act:
I. All rulemaking initiated by filing a notice of rulemaking under RSA 541-A:6 or RSA 541-A:19-c.
II. All emergency rules adopted under RSA 541-A:18.
III. All interim rules initiated by filing a proposed interim rule under RSA 541-A:19, II.
IV. All expedited repeal of rules under RSA 541-A:19-a.
V. All notices submitted to the director of legislative services for publication in the rulemaking register.
252:18 Effective Date. This act shall take effect 60 days after its passage.
Approved: July 13, 2011
Effective Date: September 11, 2011