Joint Legislative Committee on Administrative Rules

 

 

Action Minutes

 

FEBRUARY 18, 2005

 

 

Members Present: Representatives Patten, Allan, Taylor, Wall, Dodge*, Carson*, Millham*, and Pilotte*, and Senators Letourneau and Martel.  (*) Indicates alternate member.

 

(**)  Indicates where Part 1, Article 28-a of the N.H. Constitution was an issue in the Committee’s discussions or decisions in this meeting.  (See Items # 5 and #6.  However, these items were approved.)

 

1.  The meeting was convened at 9:02 a.m. by Rep. Patten as Vice-Chair.

 

     Members present at this time, aside from Rep. Patten, were Reps. Allan, Pilotte, Dodge, and Carson, and Sen. Letourneau.

 

     Rep. Millham arrived shortly after the Committee convened.

 

     Rep. Patten appointed Reps. Pilotte, Carson, Dodge, and Millham as alternates, respectively, for Sen. Estabrook, Sen. Martel, Rep. Bicknell, and Rep. Wall, who were absent.

 

2.  The Committee discussed the minutes of the continued meeting on February 4, 2005.

 

     Rep. Allan moved that the minutes be approved with the following amendments: (1) Deletion of the asterisk (*) on page 1 denoting Sen. Roberge as an alternate, and (2) insertion in Item #5 on page 2 of "Disabilities Rights Center" as the entity represented by Richard Cohen instead of the Institute for Health, Law & Ethics at the Franklin Pierce Law Center, and insertion of the name "Michelle Winchester" as representing the Institute.

 

     Sen. Letourneu seconded.

 

     Adopted.

 

3.  The Committee discussed the following final proposals from the agencies indicated (Consent Agenda - Final Proposals):

 

FP 2004-125

PHARMACY BOARD

Practice and Procedure

 

 

FP 2004-162

PEASE DEVELOPMENT AUTHORITY

Definitions

 

 

FP 2004-168

FISH AND GAME DEPARTMENT

Fish and Game Guides

 

 

FP 2004-187

DEPARTMENT OF ENVIRONMENTAL SERVICES

Division of Air Resources

Solvent Metal Cleaning

 

 

FP 2004-188

DEPARTMENT OF ENVIRONMENTAL SERVICES

Division of Air Resources

Incinerators

 

 

FP 2004-189

FISH AND GAME DEPARTMENT

Marine Rules - 2005

 

 

FP 2004-200

DEPARTMENT OF ENVIRONMENTAL SERVICES

Division of Water

Rules Pertaining to Youth Recreation Camps

 

      Rep. Allan moved that the Committee approve the final proposals.

 

     Rep. Dodge seconded.

 

     Adopted.

 

4.  The Committee discussed whether to postpone action on certain items to another Committee meeting

 

     No postponement was made at this time.

 

**5.  The Committee discussed Proposed Interim Rule INT 2005-2 from the Department of Environmental Services (Division of Water, Dam Program Definitions and Organization).  Gretchen Hamel testified for the agency.

 

     Rep. Wall arrived and departed during the discussion of this item.

 

     Rep. Allan moved that the Committee approve Proposed Interim Rule INT 2005-2.

 

     Rep. Dodge seconded.

 

     Adopted.

 

     Rep. Patten noted for the record that Rep. Dodge objected about inclusion of Nat 303.02(h) in the motion.

 

**6. The Committee discussed Final Proposal 2004-186 from the Department of Environmental Services (Division of Water, Site Specific Rules).  Gretchen Hamel testified for the agency.

 

        Rep. Dodge left during the discussion of this item, and Rep. Wall returned.

 

        Since Rep. Wall was now present, Rep. Patten appointed Rep. Millham as an alternate for Sen. Flanders, who was absent.

 

        Rep. Allan moved that the Committee approve Final Proposal 2004-186.

 

        Rep. Wall seconded.

 

        Adopted.

 

7.  The Committee discussed Final Proposal 2004-171 from the Department of Environmental Services (Division of Air Resources, Asbestos Management and Control).  Gretchen Hamel and Barbara Hoffman testified for the agency.

 

     The Department had requested a conditional approval in a letter dated February 7, 2005 and attached rule.

 

        Sen. Letourneau moved that the Committee conditionally approve Final Proposal 2004-171 as requested by the agency.

 

        Rep. Wall seconded.

 

        Adopted.

 

8.  After a break, with Reps. Patten, Taylor, Carson, Millham, Wall, and Allan, and Sen. Letourneau present, the Committee discussed Final Proposal 2004-126 from the Pharmacy Board (Various Provisions of Expired Rules Governing the Practice of Pharmacy and Pharmacists.).  Paul Boisseau testified for the agency.

 

     Sen. Martel arrived during the discussion of this item.

 

      Since Sen. Martel was now present, Rep. Patten appointed Rep. Carson as an alternate for Sen. Clark, who was absent.

 

      Rep. Wall moved that the Committee approve Final Proposal 2004-126 with the recommendation that the Board seek legislation to address the issues outlined by Committee Attorney Morrell to rules Ph 309.14, Ph 401.06, and Ph 403.12.

 

      Sen. Martel seconded.

 

      Rep. Dodge returned to the meeting at this time.

 

      The motion was adopted.

 

9.  The Committee discussed Final Proposal 2004-176 from the Board of Education (Daily Physical Activity).  Virginia Irwin testified for the agency.

 

     Sen. Martel left during the discussion of this item.

 

        Rep. Carson moved that the Committee make a preliminary objection to Final Proposal 2004-176 on the grounds as outlined in the annotations to the final proposal by Administrative Rules Director Eaton and comments by the Committee relative to Ed 310.04(a)(3), (4), and (6) concerning apparent requirements upon schools instead of recommendations from the local school boards to the schools.

 

        Rep. Taylor seconded.

 

        Adopted.

 

        Sen. Martel returned to the meeting at this time.

 

10.  The Committee discussed the Final Proposal 2004-163 from the Pease Development Authority (Definitions; State Owned Commercial Piers and Associated Facilities).  Robert Cheney and Gino Marconi testified for the agency.

 

        Rep. Taylor left the meeting as the discussion on this item began, and Rep. Blanchard arrived.

 

        Rep. Patten appointed Rep. Blanchard as an alternate for Rep. Taylor, who was absent.

 

        After further discussion, Rep. Taylor returned and Sen. Letourneau left.

 

        Since Rep. Taylor was now present, Rep. Patten then appointed Rep. Blanchard as an alternate for Sen. Letourneau, as he was now absent.

 

        The agency had submitted five proposed amendments dated February 17, 2005 to Final Proposal 2004-163 as editorial changes.

 

        Rep. Allan moved that the Committee conditionally approve Final Proposal 2004-163 on the condition that the agency make the amendment #4 on the agency's proposed amendments dated Febuar6y 17, 2005.

 

        Rep. Blanchard seconded.

 

        After further discussion, Rep. Allan amended his motion to include all five amendments as submitted by the agency as conditions of the conditional approval.

 

        Rep. Blanchard seconded.

 

        The motion as amended was adopted.

 

11.  The Committee discussed Final Proposal 2004-205 from the Current Use Board (Forest Land).  Philip Bryce, Board Vice-Chairman, testified for the Board.

 

      The following persons also testified:

 

            Tom Thomson, representing the Thomas Family Tree Farm, although he is also a Board member.

 

            David Tellman, Board member.

 

            Guy Petell, Board member.

 

      Rep. Blanchard and Sen. Martel left the meeting during the discussion of this item.

 

        Rep. Carson moved that the Committee table this item until the next Committee meeting on March 18, 2005.

 

        Rep. Taylor seconded.

 

        Adopted.

 

12.  The Committee discussed the response of the Department of Health & Human Services to the Committee's preliminary objection to Final Proposal 2004-128 (Former Division of Human Services, Medicaid for Employed Adults with Disabilities).  Lisabritt Solsky testified for the agency.

 

      The Committee had made a final objection to these rules on February 4, 2005.  The option under
RSA 541-A:13, VII of voting to sponsor a joint resolution remains through February 22, 2005.

 

      The Committee took no further action.

 

13.  The Committee discussed adjournment.

 

      Rep. Taylor left the meeting at this time.

 

      The Committee adjourned at 1:30 p.m., effectively postponing consideration of the following items to the next Committee meeting:

 

13.    Orientation for JLCAR members.

         (Formerly Item 4 on 2-4-05 agenda.)

 

 

14.    Discussion on proposed rulemaking petition for the Department of Safety relative to amending Saf-C 5203.04 on maximum rates for hazardous materials incident response.

         (Formerly Item 14 on 12-30-04 agenda, Item 16 on 1-21-05 agenda, and Item 5 on 2-4-05 agenda.)

 

 

15.    Discussion on responses to petitions:

 

(a)  Petition to the Department of Environmental Services relative to Env-Ws 905 concerning standards for management of mercury-containing amalgam.  (Petition made October 28, 2004.  See response dated December 10, 2004).

         (Formerly Item 24(a) on 12-16-04 agenda, Item 15 on 12-30-04 agenda, Item 17(a) on 1-21-05 agenda, and Item 6(a) on 2-4-05 agenda.)

 

(b)  Petition to the Board of Education to undertake a new rulemaking proceeding relative to standards for educational personnel and approval of professional preparation programs in order to conform with federal law regarding the use of Social Security Numbers.  (Petition made November 19, 2004.  See response dated December 16, 2004).

(Formerly Item 15(b) on 12-30-04 agenda, Item 17(b) on 1-21-05 agenda, and Item 6(b) on 2-4-05 agenda.)

 

16.    Remaining Responses to Preliminary Objections Made in January 21, 2005 Meeting But Not Yet Received by Committee Staff.

         (JLCAR Deadline April 26, 2005)

 

(a)  OR 2004-181

DEPARTMENT OF ENVIRONMENTAL SERVICES

Division of Water

Standards for the Pretreatment of Industrial Wastewater

 

 

(b)  OR 2004-118

NATUROPATHIC BOARD OF EXAMINERS

Licensing and Certification Requirements

(These rules were conditionally approved on January 21, 2005, but there is an indication that the rule language approved by the Committee might not be approved by the agency in accordance with the conditional approval.  If this occurs, then, pursuant to RSA 541-A:13, V(a), the conditional approval would convert to a preliminary objection as of January 21, 2005.)

 

 

17.    Remaining Responses to Preliminary Objections Made in February 4, 2005 Meeting But Not Yet Received by Committee Staff.

         (JLCAR Deadline May 10, 2005)

 

(a)  OR 2004-174

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Mental Health and Development Services

Day Services

 

 

OTHER BUSINESS

18.    Other