HB 358 - AS INTRODUCED
2023 SESSION
23-0226
05/10
HOUSE BILL 358
AN ACT relative to the filing and adoption of proposed administrative rules.
SPONSORS: Rep. C. McGuire, Merr. 27; Rep. Layon, Rock. 13; Sen. Lang, Dist 2; Sen. Ward, Dist 8
COMMITTEE: Executive Departments and Administration
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ANALYSIS
This bill makes various changes to the procedures for the filing and adoption of proposed administrative rules. The bill is a request of 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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
23-0226
05/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Three
AN ACT relative to the filing and adoption of proposed administrative rules.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Administrative Procedure Act; Definition of Form. Amend RSA 541-A:1, VII-a to read as follows:
VII-a. "Form" means a document, [that establishes a requirement for] whether hardcopy or electronic, with blank spaces for insertion of required or optional information, which must be submitted to the agency by persons outside the agency, [to provide information to an agency and the format in which such information must be submitted. The term does not include any document, regardless of what the document is called, that (a) is provided by an agency to facilitate the submission of information that is required to be submitted to the agency by federal or state statute, regulation, or rule and does not add to or modify such requirement or (b) that is used only by the agency to provide information to persons outside the agency] such as, but not limited to, licensing applications, petitions, or requests. The term does not include a document that is called a form by the agency but which does not have blank spaces for insertion of information by persons outside the agency.
2 Fiscal Impact Statements. Amend RSA 541-A:5, VI to read as follows:
VI. Agencies shall also obtain an amended fiscal impact statement from the legislative budget assistant [only] if as a result of notice and hearing a change has been made which affects the original fiscal impact statement or to correct an error in the original fiscal impact statement. Agencies shall file the amended fiscal impact statement as part of the final proposal pursuant to RSA 541-A:12, II.
3 Filing of Proposed Rule Text; Establishing and Revising Text. Amend RSA 541-A:10, I to read as follows:
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. “Newly-enacted state authority” means a state statute or session law adopted or amended after July 30, 2023. 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. The chair of the standing policy committee receiving proposed rules shall review the proposed rules, in consultation with the members of the standing policy committee, 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 comments specified in the rulemaking notice. The director of legislative services shall provide a form which may be used by the chairs of the standing policy committees to facilitate written notice back to the agency and the director of legislative services on the chair’s determination regarding consistency with legislative intent. If the agency does not receive notice from any standing policy committee by the end of the public comment period, the agency may proceed without conclusion from the standing policy committee on consistency with legislative intent. 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).
4 New Paragraph; Filing of Final Proposal. Amend RSA 541-A:12 by inserting after paragraph II the following new paragraph:
II-a. The agency shall file with the final proposal a copy of any draft, new, or amended form, or screenshot, mock-up, or prototype of an electronic-only form, which has been incorporated by reference in the final proposed rule or whose requirements are set forth in the final proposed rule pursuant to RSA 541-A:19-b.
5 Review by the Joint Legislative Committee on Administrative Rules; Basis for Objection. Amend RSA 541-A:13, IV(c) to read as follows:
(c) Determined not to be in the public interest; including the existence of substantive inconsistencies between a form and the rule where the form is incorporated by reference or which sets forth the requirements of the form, pursuant to RSA 541-A:19-b; or
6 Final Adoption. Amend RSA 541-A:14, III to read as follows:
III. The agency shall file [all adopted rules] with the director of legislative services all adopted rules and any related new or amended form, or screenshot, mock-up, or prototype of an electronic-only form, which the rules incorporate by reference or whose requirements are set forth in the rules pursuant to RSA 541-A:19-b.
7 Publication of Rules. Amend RSA 541-A:15, I and I-a to read as follows:
I. The director of legislative services shall compile, index, and publish[, or require agencies to publish,] all effective rules adopted by each agency. The text of an adopted rule as filed with the director and which is effective shall then be the official version of the rule[,]. The director shall publish the adopted rule text online in a format as determined by the director. The agency shall be notified when the text is published. The agency shall then have 120 days to confirm that the published rule is accurate. If [unless or until a version prepared for publication, which may have] editorial changes not affecting the substance of the rule[, is certified by the agency as the same in substance as originally filed.] are needed, or an error in the publishing process is identified, then the agency shall notify the director, and such changes shall be made by the director and certified by the agency that it is the same in substance as originally filed. If the agency does not notify the director within the 120-day deadline, then it will be presumed that the agency has reviewed the published language and agreed that it is the certified version. The certified version shall then be the official version. Both the adopted rule as-filed and as-certified may be an electronic document and still be the official version if in compliance with RSA 541-A:1, V-a and VI and the drafting and procedure manual for administrative rules under RSA 541-A:8. The official version of the rule shall be available to the public by the agency and the director pursuant to RSA 541-A:14, IV as described in the drafting and procedure manual under RSA 541-A:8.
I-a. [The director shall send the text of a rule to be certified to the agency adopting the rule. The agency shall certify the rule under paragraph I within 120 days of receiving the first edited text.] The 120-day deadline in paragraph I shall not apply to interim rules or emergency rules. A copy of each rule as filed and each as certified shall be sent by the director to the state library and the New Hampshire law library at the supreme court.
8 Rules; Filing Required. 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 later 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 tenth year following its becoming effective, unless sooner amended, readopted, or repealed.
9 New Paragraph; Interim Rules. Amend RSA 541-A:19 by inserting after paragraph IV the following new paragraph:
IV-a. The agency shall file with the proposed interim rule a copy of any related new or amended form, or screen shots, mock-up, or prototype of an electronic-only form, which has been incorporated by reference in the proposed interim rule or whose requirements are set forth in the proposed interim rule pursuant to RSA 541-A:19-b.
10 Interim Rules; Basis for Objection. Amend RSA 541-A:19, VII(c) to read as follows:
(c) Determined not to be in the public interest, including the existence of substantive inconsistencies between a form and the rule where the form is incorporated by reference or which sets forth the requirements of the form, pursuant to RSA 541-A:19-b; or
11 Interim Rules; Response to Conditional Approval. Amend RSA 541-A:19, VIII(b) to read as follows:
(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, or in the case of a board or commission, 7 days following its 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. 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.
12 Interim Rules. Amend RSA 541-A:19, X to read as follows:
X. No proposed interim rule shall be adopted unless the committee has voted to approve the proposed interim rule or conditionally approve the proposed interim rule, provided that the committee legal counsel has sent written confirmation to the agency pursuant to RSA 541-A:19, VIII(b). An adopted interim rule and any new or amended form, or screenshot, mock-up, or prototype of an electronic-only form, which the rule incorporates by reference or the requirements for which are set forth in the rule pursuant to RSA 541-A:19, shall be filed with the director of legislative services no later than 30 days following committee approval or conditional approval or in the case of a board or commission, 7 days following its next regularly scheduled meeting after committee approval or conditional approval. An interim rule shall be effective under RSA 541-A:16, III on the day after filing with the director of legislative services, or at a later date, provided the agency so specifies in a letter to the director of legislative services and the effective date is within 30 days following committee approval or conditional approval. Interim rules shall be effective for a period not to exceed 180 days. During the time an interim rule shall be in effect, the agency may propose a permanent rule to replace the interim rule once it expires, but it shall not adopt another interim rule to replace the expiring interim rule.
13 Adoption of Forms. Amend RSA 541-A:19-b to read as follows:
541-A:19-b Adoption of Forms. An agency may adopt a form as defined in RSA 541-A:1, VII-a, either by incorporating the actual form by reference in a rule, or by setting forth the requirements of the form in rules, adopted according to the procedures in this chapter and in compliance with the drafting and procedure manual pursuant to RSA 541-A:8. No new or amended form shall be effective and enforceable pursuant to RSA 541-A:22, I unless the form has been adopted in accordance with this chapter.
14 Revisions to Forms; Expedited Procedure. Amend RSA 541-A:19-c to read as follows:
541-A:19-c Revisions to Forms; Expedited Procedure.
I. An agency may make editorial changes to a previously adopted form without following the procedures required in RSA 541-A:19-b, in this section, or in RSA 541-A:3, but shall notify the office of legislative services of any proposed editorial changes in accordance with the drafting and procedure manual pursuant to RSA 541-A:8.
II. An agency may revise [a form as defined in RSA 541-A:1, VII-a without meeting the requirements of RSA 541-A:5-7] substantively the requirements on a previously adopted form as defined in RSA 541-A:1, VII-a, and amend the relevant provisions in the rule which set forth the requirements of the form or incorporate the form by reference pursuant to RSA 541-A:19-b, without meeting the requirements of RSA 541-A:5, RSA 541-A:6 and RSA 541-A:9-14 [either in accordance with RSA 541-A:19-b or] by providing notice and adopting the amended form in accordance with paragraphs III through VII.
III. Notice of an agency's intent to [adopt a form or amendment to a form] amend a form and amend the relevant, affected rule shall include:
(a) The name and address of the agency.
(b) The statutory authority for the form.
(c) The rule number and title of the affected rule to be amended, and whether the action is an amendment or readoption with amendment of the rule as described in the drafting and procedure manual pursuant to RSA 541-A:8.
(d) An explanation of the reason for the proposed [adoption or] amendment of a form and a summary of the existing, affected rule and the proposed amendment to the form and the rule.
[(d)] (e) The name, address, electronic address, and telephone number of an individual in the agency able to answer questions about the proposed form.
[(e)] (f) The deadline for receipt by the agency of written or electronic public comment, which shall be no sooner than the 7th calendar day after the date of publication of the notice in the rulemaking register.
III-a. The amended rule to be filed shall include only those relevant provisions of the rule, as described in the drafting and procedure manual, pursuant to paragraph II, and neither the amended form nor the amended rule shall have a fiscal impact which would otherwise require a fiscal impact statement pursuant to RSA 541-A:5.
IV. The agency shall file a copy of the amended form, the amended rule including an appendix pursuant to RSA 541-A:3-a, and the notice required by paragraph III [shall be filed] with the director of legislative services, [for publication] who shall publish the notice in the rulemaking register. [A copy of the form to be adopted shall be filed with the notice.]
V. If on the basis of public comment the official or the group of individuals with rulemaking authority determines that the form should not be [adopted] amended, the agency shall so notify the director of legislative services and the form shall not be [adopted] amended.
VI. The proposed form as amended and amended rule shall be placed on the agenda of the committee for review at the first regularly scheduled or special meeting at least 5 calendar days after the close of the period for written or electronic comment described in subparagraph III(e). The committee may approve or object to the form. The committee may object to the adoption of the form as amended and the affected rule if the form is:
(a) Beyond the authority of the agency;
(b) Contrary to the intent of the legislature; [or]
(c) Deemed not to be in the public interest, including the existence of substantive inconsistencies between the form and the rule where the form is incorporated by reference or which set forth the requirements of the form pursuant to RSA 541-A:19-b; or
(d) Deemed by the committee not to meet the requirements of this section, including existence of a fiscal impact contrary to paragraph III-a.
VII. Subsequent review and adoption of the form as amended and the affected rule shall be as provided in RSA 541-A:13 for final proposed rules.
15 Validity of Rules. Amend RSA 541-A:22, I to read as follows:
I. No agency rule, including a form, is valid or effective against any person or party, nor may it be enforced by the state for any purpose, until it has been filed as required in this chapter and has not expired.
16 Effective Date. This act shall take effect 60 days after its passage.