JOINT LEGISLATIVE COMMITTEE ON ADMINISTRATIVE RULES

 

Action Minutes

 

AUGUST 16, 2007

 

 

Members Present:   Representatives Pilotte, Patten, MacKay, Schmidt, Millham*, and Powers*, and Senators Cilley, DeVries, and Downing.  (*)  Indicates alternate member.

 

(**)  Part 1, Article 28-a of the N.H. Constitution was not an issue in the Committee’s discussions or decisions in this meeting.

 

1.  The Committee was convened at 9:00 a.m. by Rep. Pilotte as Chair.

 

     Members present at this time, aside from Rep. Pilotte, were Reps. Patten, MacKay, Schmidt, Millham, and Powers, and Senator Downing.

 

     Rep. Pilotte appointed Rep. Powers and Rep. Millham as alternates, respectively, for Rep. Mitchell and Sen. Letourneau, who were absent.

 

2.  The Committee discussed the minutes of the Committee meeting on July 19, 2007.

 

     Rep. Patten moved that the minutes be approved.

 

     Rep. MacKay seconded.

 

     Adopted.

 

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

 

FP 2007-49

 

BOARD FOR THE LICENSING AND REGULATION OF PLUMBERS

Organizational Rules

 

 

FP 2007-50

 

BOARD FOR THE LICENSING AND REGULATION OF PLUMBERS

Initial Plumbing Licensing and Water Treatment Technician Certification

 

 

FP 2007-65

 

BOARD OF TAX AND LAND APPEALS

Organizational Rules

 

 

FP 2007-86

 

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Human Services

Expiring Rules Related to the Unemployed Parent Program and Deprivation Due to Continued Absence or Incapacity in the Temporary Assistance to Needy Families Program

 

 

FP 2007-88

 

DEPARTMENT OF ENVIRONMENTAL SERVICES

Division of Water

Notice to Municipalities of Rulemaking Affecting Watersheds

 

     Sen. Downing arrived during the discussion of this item.

 

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

 

     Rep. Schmidt seconded.

 

     Adopted.

 

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

 

     Rep. Schmidt moved that the Committee postpone action on the following items to the continued Committee meeting on September 6, 2007:

 

13. DEPARTMENT OF HEALTH AND HUMAN SERVICES

 

 

(b)  FP 2007-21

 

Former Division of Mental Health and Developmental Services

Medical Assistance Services Provided by Education Agencies

(JLCAR Deadline September 7, 2007.  Existing interim rules will expire October 22, 2007).

 

15. BOARD OF TAX AND LAND APPEALS

 

 

 

 

(a)  FP 2007-66

 

Rules Applicable to All Procedures

(JLCAR Deadline September 10, 2007.)

 

 

 

 

(b)  FP 2007-67

 

Procedural Rules for Specific Types of Appeals

(JLCAR Deadline September 10, 2007.)

 

 

 

 

(c)  FP 2007-68

 

Notice of Tax Date; Rules Governing Exemption Applications to Municipalities;
Filing Fees

(JLCAR Deadline September 10, 2007.)

 

     Rep. Patten seconded.

 

     Adopted.

 

5.  The Committee discussed Final Proposal 2007-36 from the Insurance Department (Continuing Care Retirement Communities).  Deborah O’Loughlin testified for the Department.

 

     Sen. Cilley arrived as the discussion began on this item.

 

     Rep. Schmidt moved that the Committee make a preliminary objection to Final Proposal 2007-36 based on the annotations to the final proposal by Committee Attorney Morrell, with the exception of the annotation to Ins 1811.01, and, upon the request of the Department, to broaden the scope of the objection to Ins 1809.01(d) and (e)(2) to include Ins 1809.01 in its entirety.

 

     Sen. Downing seconded.

 

     Adopted.

 

6.  The Committee discussed Final Proposal 2007-89 from the Pari-Mutuel Commission, (Bingo Games and Lucky 7 Tickets).  Sheri Eldridge testified for the Commission. 

 

     Attorney Eldridge had submitted a conditional approval request on behalf of the Commission in a letter and attached rule date August 9, 2007. 

 

     Rep. Schmidt moved that the Committee conditionally approve Final Proposal 2007-89 as requested.

 

     Rep. MacKay seconded.

 

     Adopted.

 

7.  The Committee discussed Final Proposal 2007-87 from the Department of Safety (Pilot Speed Zone on Lake Winnipesaukee).  Marta Modigliani and Lt. Stephen Kace testified for the Department.  David T. Barrett, Director of the Division of Safety Services, also testified for the Department later in the discussion of this item.

 

         Sen. DeVries arrived as the discussion on this item began.

 

         The following persons also testified:

 

            Rep. James Pilliod.

            Debra Durbin, representing N.H. Lakes.

            Warren Clark of Meredith, N.H.

            Rusty McLear of Meredith, N.H.

            Dick Bouley, representing the Winnipesauke Family Alliance for Boating Safety.

 

        The following persons registered their opposition to the final proposal but did not speak:

 

            Donald Lee of Penacook, N.H.

            Elizabeth H. Frago of Mirror Lake, N.H.

            Rita Mayo of Laconia, N.H.

            Patricia Helsinger of Laconia, N.H.

            Mary Hutchins of Laconia, N.H.

            Susan P. Lee of Penacook, N.H.

Jocelyn Winster of Meredith, N.H., representing the Winnipesaukee Family Alliance for
Boating Safety.

            Paula Bertholdt of Gilford, N.H.

            Sandy Helve of Meredith and Nashua, N.H., representing the Winnipesaukee Family Alliance

                    for Boating Safety.

            Ripley Forbes of Gilford, N.H., representing the Winnipesaukee Family Alliance for

                    Boating Safety.

            Richard Waitt of Gilford, N.H.

            Bill Bertholdt of Gilford, NH., representing the Winnipesaukee Family Alliance for

                    Boating Safety.

 

      Sen. Cilley moved that the Committee make a preliminary objection to Finial Proposal 20076-87 based on the following: (1) public testimony, including that the rule was contrary to legislative intent because the subject matter requires specific statutory authority and was contrary to the public interest because the rule is designed to benefit the administrative convenience of the agency to the detriment of the public, (2) the rule is contrary to legislative intent because it attempts to implement a bill (HB 162 in the 2005-2006 session) that the legislature defeated, and (3) the rule is beyond the authority of the agency, which had cited RSA 270:12, but the statute mandates that a rule to limit boat speeds must be required by the public interest as a result of a public petition, and the agency was using the rule to provide information to the House Transportation Committee, for which a rule was not needed.

 

      Rep. MacKay seconded.

 

      Adopted.

 

8.  After a break with Reps. Pilotte, Patten, MacKay, Schmidt, and Powers, and Sens. Cilley and Downing present, the Committee discussed Proposed Interim Rule INT 2007-16 from the Department of Safety (Interim Bungee Jumping Rules).  Marta Modigliani testified for the Department.

 

     Rep. Patten moved that the Committee approve Proposed Interim Rule INT 20076-16 with the understanding that the Department would address in the regular rulemaking proceeding the issues outlined in the annotations to the proposed interim rule by Committee Attorney Morrell.

 

     Rep. Powers seconded.

 

     Adopted.

 

9.  The Committee discussed Final Proposal 2007-95 from the Department of Safety (Dealer Registration Rules).  Sheri Kelloway testified for the Department.

 

     Rep. Millham and Sen. DeVries returned to the meeting during the discussion of this item, and Rep. Patten left.

 

     Brendan Perry, representing the N.H. Auto Dealers Association, also testified.

 

     Sen. Cilley moved that the Committee approve Final Proposal 2007-95 with the recommendation that the Department seek legislation to specifically authorize the 5-year prohibition in Saf-C 2010.03(c) on opening a dealership, and with the recommendation to the Director of the Office of Legislative Services that she accept as an editorial change in the adopted rule the replacement of “change” with “decreased” in Saf-C 2003.10(e).

 

     Rep. Schmidt seconded.

 

     Adopted.

 

10.  The Committee discussed postponing further items to the continued Committee meeting on September 6, 2007. 

 

      Rep. Schmidt moved that the Committee postpone action on the following items to the continued meeting:

 

13.    DEPARTMENT OF HEALTH AND HUMAN SERVICES

 

 

(a)  INT 2007-17

 

Former Division of Mental Health and Developmental Services

Eligibility Determination and Service Planning for Individuals with an
Acquired Brain Disorder

(JLCAR Deadline October 25, 2007.  Existing rules will expire October 20, 2007.)

 

 

(c)  FP 2007-84

 

Former Division of Human Services

Home Health Services

(JLCAR Deadline September 17, 2007.)

(d)  FP 2007-85

 

Former Division of Human Services

New Hampshire Employment Program/Family Assistance Program

(JLCAR Deadline September 14, 2007.)

 

      Sen. DeVries seconded.

 

      Adopted.

 

11.  Lunch break at 12:20 p.m.

 

12.  Reconvening at 1:05 p.m., with Reps. Pilotte, MacKay, Millham, Powers, and Schmidt, and Sens. Cilley and DeVries present, the Committee discussed postponing further items to the continued meeting on September 6, 2007.

 

      Rep. Schmidt moved that the Committee postpone action on the following item to the continued meeting:

 

12. INT 2007-18

DEPARTMENT OF RESOURCES AND ECONOMIC DEVELOPMENT

Rules for the Job Training Grant Program

(JLCAR Deadline November 1, 2007.  Former rules of the Department of Regional-Community Technical Colleges were repealed July 1, 2007 by SB 97
(Chapter 204:4 of the Laws of 2007) which repealed RSA 188-F:49-56.)

 

      Rep. MacKay seconded.

 

      Adopted.

 

13.  The Committee discussed Proposed Interim Rule INT 2007-20 from the Motor Vehicle Industry Board (Interim Motor Vehicle Industry Board Hearing and Procedural Rules).  Marta Modigliani of the Department of Safety testified for the Board.

 

      Rep. Schmidt moved that the Committee conditionally approve Proposed Interim Rule INT 2007-20 on the condition that Mvi 104 be deleted from the proposal and with the recommendation that the Board address in the regular rulemaking process the issues outlined in the annotations to the proposed interim rule by Committee Attorney Morrell.

 

      Rep. MacKay seconded.

 

      Adopted.

 

14.  The Committee discussed Proposed Interim Rule INT 2007-19 from the Department of Environmental Services (Division of Water, Subdivision and Individual Sewage Disposal System Design Rules).  Gretchen Hamel testified for the Department.

 

      Rep. MacKay moved that the Committee approve Proposed Interim Rule INT 2007-19.

 

      Sen. DeVries seconded.

 

      Adopted.

 

15.  The Committee discussed Proposed Interim Rule INT 2007-21 from the Department of Environmental Services (Air Related Programs, NOx Budget Trading Program).  Gretchen Hamel testified for the Department.

 

      Sen. DeVries moved that the Committee approve Proposed Interim Rule INT 2007-21.

 

      Rep. Millham seconded.

 

      Adopted.

 

16.  The Committee discussed Final Proposal 2007-79 from the Water Council (Water Council Organizational Rules).  Gretchen Hamel of the Department of Environmental Services testified for the Council.

 

      Sen. DeVries moved that the Committee approve Final Proposal 2007-79.

 

      Rep. Schmidt seconded.

 

      Adopted. 

 

17.  The Committee discussed Final Proposal 2007-80 from the Water Council (Water Council Procedural Rules).  Gretchen Hamel of the Department of Environmental Services testified for the Council.

 

      Sen. DeVries moved that the Committee approve Final Proposal 2007-80 with the recommendation to the Director of the Office of Legislative Services that she accept as editorial changes in the adopted rules (1) the deletion of the word “improper” in the phrase “the improper communication” in Env-WC 202.10(c), and (2) an amendment to the 2nd sentence of Env-WC 203.09(b) to begin:  “The notice pursuant to RSA 541-A:31, III shall include, but not be limited to, a statement that the hearing is to consider…” etc.

 

      Rep. Powers seconded.

 

      Adopted.  Rep. Pilotte noted for the record that he voted “no”.

 

18.  Sen. DeVries moved that the Committee recess.

 

      Rep. Schmidt seconded.

 

      Adopted.

 

      The Committee recessed at 2:03 p.m.