TABLE OF CONTENTS
CHAPTER 100 ORGANIZATIONAL RULES
PART 101 DEFINITIONS
Section 101.01 Committee
Section 101.02 Committee Legal Counsel
Section 101.03 Committee Staff
Section 101.04 Proposed Rule
PART 102 DESCRIPTION OF COMMITTEE
Section 102.01 Membership
Section 102.02 Role of Committee
Section 102.03 Powers and Duties
Section 102.04 Committee Meetings
Section 102.05 Notification of Attendance or Absence
Section 102.06 Designation of Alternates
Section 102.07 Committee Voting
Section 102.08 Committee Rules
Section 102.09 Committee Records
PART 103 DESCRIPTION OF COMMITTEE STAFF
Section 103.01 Committee Staff
Section 103.02 Head of Committee Staff
Section 103.03 Committee Legal Counsel
Section 103.04 Clerical Staff
CHAPTER 200 COMMITTEE STAFF PRACTICE AND PROCEDURES
PART 201 PROPOSED RULES AND EMERGENCY RULES
Section 201.01 Examining an Initial Proposal
Section 201.02 Examining a Final Proposal, , Proposed Interim Rule,
Conditional Approval Request, Proposed Expedited Repeal, Proposed
Expedited Revision to Agency Form, or Proposed Expedited Amendment to
Incorporation by Reference
Section 201.03 Examining Conditionally-Approved Texts
Section 201.04 Examining a Response to Objection or Amended Response to
Objection
Section 201.05 Examining an Emergency Rule
PART 202 COMMITTEE AGENDAS
Section 202.01 Preparation of a Tentative Agenda
Section 202.02 Consent Agenda-Final Proposals, Proposed Interim Rules,
Objection Responses, Conditional Approval Requests, Proposed
Expedited Repeals, Proposed Expedited Revisions to Agency Forms, or
Proposed Expedited Amendments to Incorporation by Reference
Section 202.03 Consent Agenda-Consent Objections
PART 203 COMMITTEE STAFF CONTACT WITH AGENCIES, LEGISLATORS, AND THE
PUBLIC
Section 203.01 Agency Staff
Section 203.02 Legislators and the Public
Section 203.03 Committee Staff Ethics
CHAPTER 300 COMMITTEE REVIEW OF PROPOSED RULES
PART 301 COMMITTEE MEETINGS
Section 301.01 Order of Items
Section 301.02 Testimony on Proposed Rules and Adopted Rules
Section 301.03 Acceptance of Agency Requests for Conditional Approval
of a Final Proposal or Proposed Interim Rule
Section 301.04 Committee Staff
PART 302 APPROVALS AND CONDITIONAL APPROVALS
Section 302.01 Motions
Section 302.02 Vote on Motions
Section 302.03 Reconsideration of Approval or Conditional Approval
Section 302.04 Written Notice to Agency
Section 302.05 Access to Staff Memoranda and Other Documents
PART 303 OBJECTIONS
Section 303.01 Motion for Preliminary Objection
Section 303.02 Motion for Revised Objection
Section 303.03 Vote on Motions for Preliminary, Revised, or Final
Objections
Section 303.04 Reconsideration of Preliminary, Revised, or Final
Objections
Section 303.05 Written Notice to Agency
Section 303.06 Agency Action
Section 303.07 Committee Action on Objection Responses
PART 304 JOINT RESOLUTION
Section 304.01 Motion on Joint Resolution
Section 304.02 Effect of a Vote to Support the Introduction of a Joint
Resolution
Section 304.03 Reconsideration of Vote to Support the Introduction of a
Joint Resolution
Section 304.04 Written Notice to Agency
Section 304.05 Introduction of a Joint Resolution
PART 305 REQUEST FOR WAIVER OF COMMITTEE DEADLINES
Section 305.01 Who May Make Requests
Section 305.02 Good Cause for a Waiver Request
Section 305.03 Vote on Motions
Section 305.04 Agency Notification
CHAPTER 400 CRITERIA FOR REVIEW OF PROPOSED RULES
PART 401 RULES BEYOND AGENCY AUTHORITY
Section 401.01 Specific Delegation
Section 401.02 Broad Delegation
Section 401.03 Incorrect Citation
Section 401.04 No Authority for Constitutional Violations
Section 401.05 Specific Authority Needed
PART 402 RULES CONTRARY TO LEGISLATIVE INTENT
Section 402.01 Violation of Statutory Purpose
Section 402.02 Violation of a Specific Statute or Regulation
Section 402.03 Matters Requiring Statutory Authority
Section 402.04 Violation of a Constitutional Provision
PART 403 RULES CONTRARY TO PUBLIC INTEREST
Section 403.01 Responsiveness
Section 403.02 Uniform Application
Section 403.03 Matter More Properly Addressed by Statute
PART 404 ECONOMIC IMPACT OF RULES
Section 404.01 Economic Impact Not Recognized in Fiscal Impact
Statement
RULES FOR THE JOINT LEGISLATIVE COMMITTEE ON ADMINISTRATIVE RULES
CHAPTER 100 ORGANIZATIONAL RULES
PART 101 DEFINITIONS
101.01 "Committee" means the Joint Legislative Committee on
Administrative Rules established by RSA 541-A:2, I.
Source.
Committee meeting, 11-15-83; 7-15-94; 11-13-98
101.02 "Committee legal counsel" means the Committee attorneys in the
Division of Administrative Rules who have been specially designated by
the Director of Legislative Services pursuant to RSA 541-A:2, II, to
assist the Committee in the review of state agency administrative rules
and other tasks as necessary to carry out the role of the Division of
Administrative Rules in the rulemaking process.
Source.
Committee meeting, 11-13-98; 11-17-00
101.03 "Committee staff" means the Division of Administrative Rules in
the Office of Legislative Services.
Source.
Committee meeting, 11-15-83; 11-13-98
101.04 "Proposed rule" means a rulemaking proposal filed by an agency
pursuant to RSA 541-A:5-13, RSA 541-A:19, RSA 541-A:19-a, RSA
541-A:19-c, or RSA 541-A:19-d, at any step of the rulemaking process
prior to final adoption. The term includes an initial proposal, final
proposal, , proposed interim rule, , conditional approval request,
proposed expedited repeal, proposed expedited revision to agency form,
proposed expedited amendment to incorporation by reference, conditional
approval explanation, and responses to Committee objections.
Source.
Committee meeting, 9-21-01; 11-19-20
PART 102 DESCRIPTION OF COMMITTEE
102.01 Membership. The Committee is composed of 10 members, and
4 alternate members, as appointed under RSA 541-A:2, I. The members are
appointed for 2-year terms ending on the first Wednesday in December of
even-numbered years. The Committee shall elect a Chairperson and Vice
Chairperson at the first organizational meeting, which shall be held as
soon as possible after the new members are appointed.
Source.
Committee meeting, 11-15-83; 3-20-92; 7-15-94;
11-17-00
11-17-00
102.02 Role of Committee. The Committee shall conduct an ongoing
review of administrative rulemaking. The Committee's primary concern
shall be to ensure agency rules are consistent with the specific
criteria in RSA 541-A:13, IV, RSA 541-A:19, IV, RSA 541-A:19-a, VII,
RSA 541-A:19-c. VI, or RSA 541-A:19-d, VII, as appropriate.
Source.
Committee meeting, 11-15-83; 3-20-92; 7-15-94;
11-13-98; 11-19-20
102.03 Powers and Duties.
(a) The Committee's primary statutory duty is to review both the
proposed and the previously adopted rules of state agencies.
(b) Review of proposed rules is carried out as follows:
(1) The Committee may review proposed rules beginning from the date the
notice of the initial proposal is published in the New Hampshire Rulemaking Register (Register) or, in
the case of proposed interim rules, the date the proposed rule is
filed. The Committee staff shall, upon request, distribute copies of
the Register to the Committee and copies of the initial
proposals or proposed interim rules to a Committee member.
(2) Committee members or Committee staff may attend agency hearings on
the proposed rule.
(3) After the agency has considered all public oral, written, and
electronic comment and Committee legal counsel comment submitted
pursuant to RSA 541-A:11 regarding the initial proposal and filed a
final proposal, the Committee has 60 days under RSA 541-A:12, I, to
approve, conditionally approve, or object to the final proposal under
RSA 541-A:13.
(4) The Committee shall review agency requests for conditional
approval, including those received to respond to Committee legal
counsel comments as specified in RSA 541-A:13, II (b) for final
proposals and RSA 541-A:19, VIII(a) for proposed interim rules.
(5) During the 60-day Committee review period for a final proposal,
unless the period is waived, the Committee shall hold at least one
Committee meeting, and the Committee and Committee staff may consult
with representatives of the adopting agency or with any other
interested parties.
(6) The Committee shall review responses to objections to final
proposals, amended responses to objections, and requests for revised
objections pursuant to RSA 541-A:13, V through VII.
(7) The Committee shall review proposed interim rules pursuant to RSA
541-A:19.
(8) The committee shall review proposed expedited repeals, proposed
expedited revisions to forms, and proposed expedited amendments to
incorporation by reference pursuant to RSA 541-A:19-a, RSA 541-A:19-c,
and RSA 541-A:19-d.
(9) Committee staff shall assist the Committee under this paragraph as
described in Part 103, Chapter 200, and rule 301.03 of the Committee's
rules.
(c) Review of previously adopted rules is carried out as follows:
(1) The Committee may vote to hold a public hearing on any previously
adopted rule, but has no authority to object to the rule under RSA
541-A:13, which applies only to a proposed rule.
(2) The Committee may also petition any agency for action on a rule
under RSA 541-A:4, which grants the agency 30 days after receipt of the
petition, or 30 days after the next scheduled meeting of the board,
commission, or group receiving the petition, in which to respond to the
petition in writing. If the agency denies the Committee petition, the
Committee may vote to hold a further public hearing or hearings on the
reasons for the agency's denial.
(3) The Committee shall review emergency rules to determine if a
genuine emergency exists. The Committee shall also examine each
emergency rule to determine if a permanent rule is necessary once the
emergency rule expires.
(4) Committee staff shall assist the Committee under this paragraph as
described in Part 103, Chapter 200, and rule 301.03 of the Committee's
rules.
(d) The Committee shall respond to a written request from any person
concerning any proposed or adopted rule. Such request shall be
addressed to the Chairperson or any member of the Committee.
(e) In addition to reviewing proposed and adopted rules, the Committee
pursuant to RSA 541-A:2, IV may petition an agency to adopt a rule if
the agency has not exercised its rulemaking authority in a specific
area.
(f) The Committee may make recommendations pursuant to RSA 541-A:2, IV
to the full Legislature or to standing committees for legislation to
clarify or repeal any statutory passage delegating rulemaking
authority. It may also recommend legislation to supersede a part or
whole of any rule, including, but not limited to, rules adopted over
the Committee's objection. Pursuant to RSA 541-A:4, II, the Committee
itself may file legislation to repeal or amend an agency's rulemaking
authority.
Source.
Committee meeting, 11-15-83; 6-21-85; 9-3-87; 3-20-92; 7-15-94;
11-13-98; 11-17-00; 9-21-01; 11-19-20
102.04 Committee Meetings.
(a) The Committee is required pursuant to RSA 541-A:2, II to meet at
least once a month, and more often as necessary. The regular monthly
meeting shall be on the third Friday of every month unless the date is
changed by prior approval of the Committee. Other meetings shall be
called by the Chairperson, or in the Chairperson's absence, by the
Vice-Chairperson. A schedule of meetings and agendas shall be available
for public inspection during regular working hours or posted online on
the website of the Office of Legislative Services, Administrative
Rules, at:
Office of Legislative Services
Administrative Rules
State House Annex, Room 219
25 Capitol Street
Concord, NH 03301-6312
www.gencourt.state.nh.us/rules
Administrative Rules
State House Annex, Room 219
25 Capitol Street
Concord, NH 03301-6312
www.gencourt.state.nh.us/rules
(b) Committee meetings shall be held in-person in the Legislative
Office Building, unless otherwise announced. Meetings shall be held
remotely, with opportunity for remote participation by members,
agencies, and the public, at the direction of the Chairperson or, in
the Chairperson's absence, the Vice-Chairperson, if in compliance with
RSA 91-A. Notice of meetings and remote access instructions shall be
given in the Register, the House and Senate Calendars, and on the website of the Office of Legislative
Services, Administrative Rules.
(c) The Committee shall give at least 7 days' notice of any public
hearing in the Register and on the website of the Office of
Legislative Services, Administrative Rules. Under RSA 541-A:2, IV, the
Committee may schedule a hearing on any proposed or adopted rule.
(d) Under RSA 541-A:2, II, 6 members constitute a quorum of the
Committee.
(e) All meetings of the Committee shall be transcribed verbatim by the
staff of the Legislative Budget Assistant's Office or by persons with
whom the Legislative Budget Assistant has contracted to provide
transcription services.
(f) All meetings shall be open to the public, unless the Committee
votes to meet in non-public session under RSA 91-A:3, I.
(g) Committee staff shall prepare an agenda for each meeting in
consultation with the Chairperson or Vice-Chairperson as described in
Committee rule 202.
(h) The agenda for each regularly scheduled monthly meeting shall
include:
(1) All final proposals and proposed interim rules filed at least 21
days prior to the meeting pursuant to RSA 541-A:12, I and RSA 541-A:19,
V, unless the deadline is waived pursuant to RSA 541-A:40, IV
(2) All conditional approval requests filed by agencies for final
proposals or proposed interim rules pursuant to RSA 541-A:13, II(b) and
RSA 541-A:19, VIII(a), respectively;
(3) All responses to preliminary objections, amended responses to
preliminary objections filed in accordance with RSA 541-A:13, V(d),
revised objections, and petitions made in prior meetings and awaiting
Committee action; and
(4) All other correspondence to the Committee.
Source.
Committee meeting, 11-15-83; 2-15-85; 6-21-85;
7-17-87; 3-20-92; 7-15-94; 11-13-98; 11-17-00; 9-21-01;
11-19-20
102.05 Notification of Attendance or Absence. Committee staff
shall send an attendance sheet for an upcoming Committee meeting in
writing or electronically by fax or e-mail to each Committee member.
Committee members shall notify the Committee staff at least 7 days
prior to a Committee meeting of attendance at the meeting or any
absence from all or a portion of the Committee meeting. However, if
such absence is due to illness or other reason beyond the control of
the Committee member, the member shall notify the Committee staff as
soon as is practicable. Such notification of attendance or absence by
Committee members shall be made directly to the Committee staff orally
in person or by telephone, in writing, or electronically by fax or
e-mail. Upon receiving notification of an absence, the Committee staff
shall inform the Chairperson of such absence.
Source.
Committee meeting, 11-15-91; 3-20-92; 11-13-98;
9-21-01
102.06 Designation of Alternates.
(a) Following notification to the Chairperson regarding the Committee
member's absence, the Chairperson shall designate an alternate member
to serve in the place of the absent member, pursuant to RSA 541-A:2, I,
regardless of the number of other senators or representatives who
attend the meeting.
(b) When the Chairperson designates an alternate member pursuant to
(a), above, the designation of the alternate shall be in the order of
priority set forth below:
(1) An alternate from the same chamber and political party as the
absent member shall be designated, if available;
(2) An alternate from the same chamber but from a different political
party as the absent member shall be designated, if available;
(3) An alternate from a different chamber but from the same political
party as the absent member shall be designated, if available; or
(4) If no alternate from the same chamber or from the same party is
available, then any available alternate shall be designated.
(c) Upon the designation of the alternate member to serve in the place
of an absent member, the Chairperson shall notify the alternate member
and Committee staff of such designation.
Source.
Committee meeting, 11-15-91; 7-15-94; 11-13-98
102.07 Committee Voting. Unless otherwise specified, a majority
of the votes cast, a quorum being present, shall be required to decide
the question or to take official action on any matter.
Source.
Committee meeting, 11-15-83; 9-21-01
102.08 Committee Rules. The Committee is required to adopt rules
under RSA 541-A:2, II. The Committee rules may be amended or suspended
by a minimum of 6 affirmative votes.
Source.
Committee meeting, 11-15-83; 7-15-94; 9-21-01
102.09 Committee Records. All Committee records, including
transcripts of meetings, shall be available for public inspection
during regular working hours or online on the website of the Office of
Legislative Services, Administrative Rules, at
Office of Legislative Services
Administrative Rules
State House Annex, Room 219
25 Capitol Street
Concord, NH 03301-6312
www.gencourt.state.nh.us/rules
Administrative Rules
State House Annex, Room 219
25 Capitol Street
Concord, NH 03301-6312
www.gencourt.state.nh.us/rules
Source.
Committee meeting, 11-15-83; 11-13-98; 11-17-00; 11-19-20
PART 103 DESCRIPTION OF COMMITTEE STAFF
103.01 Committee Staff. The Committee staff which the Committee
may use pursuant to RSA 541-A:2, II consists of the Administrative
Rules Director, Committee legal counsel, and clerical support staff in
the Division of Administrative Rules in the Office of Legislative
Services. The Committee staff's functions and responsibilities shall be
as described in this part.
Source.
Committee meeting, 11-13-98; 11-17-00
103.02 Administrative Rules Director.
(a) The Administrative Rules Director of the Office of Legislative
Services functions as the head of Committee staff.
(b) The responsibilities as head of Committee staff include:
(1) Providing legal advice to the Committee on rulemaking issues if the
Administrative Rules Director is an attorney licensed in New Hampshire;
(2) Managing, supervising, and coordinating all Committee staff
functions for the Committee, including clerical staff and the Committee
legal counsel;
(3) Consulting with the Chairperson and Vice-Chairperson on matters
relative to the Division's role as Committee staff;
(4) Providing oral and written information and assistance to
legislators, agencies, and the public on Committee legal counsel review
of proposed rules and other matters within the Committee's
jurisdiction;
(5) Reviewing all proposed written comments, memoranda, and letters
prepared by the Committee legal counsel relative to proposed or adopted
rules;
(6) Receiving and reviewing correspondence from agencies, legislators,
and the public relative to matters within the Committee's jurisdiction;
(7) Submitting notice to the Register of all regular and
special Committee meetings and of all final proposals and proposed
interim rules to be reviewed at those meetings;
(8) Preparing the tentative agenda and summary minutes of Committee
meetings;
(9) Attending Committee meetings to assist the Chairperson and
Committee members as needed;
(10) Assisting the Committee legal counsel as necessary in review of
proposed rules and emergency rules;
(11) Reviewing rulemaking related legislation as requested by the
Committee;
(12) Assisting the Committee in reviewing adopted rules as requested,
including rules for which a special Committee hearing is held pursuant
to RSA 541-A:2, III;
(13) Assisting the Committee in its duties pursuant to RSA 541-A:2, IV,
including, but not limited to, review of rulemaking authority which has
not been used, making improvements to rulemaking statutes and the
rulemaking process, and drafting and review of amendments to the
New Hampshire Drafting and Procedure Manual for Administrative
Rules
(Drafting and Procedure Manual)
; and
(14) Assisting Committee members on any other matters within the
Committee's jurisdiction.
Source.
Committee meeting, 11-13-98; 11-17-00; 9-21-01
103.03 Committee Legal Counsel.
(a) Pursuant to RSA 541-A:2, II, the Committee attorneys in the
Division of Administrative Rules function as the Committee's legal
counsel.
(b) The responsibilities of Committee legal counsel include:
(1) Reviewing proposed rules, conditional approval requests, and
emergency rules on behalf of the Committee to determine if there are
any potential bases for Committee objections, petitions, and other
actions pursuant to RSA 541-A and Chapter 200 of the Committee's rules;
(2) Distributing comments and memoranda to agencies at the Committee's
discretion pursuant to Chapter 200 of the Committee's rules;
(3) Attending Committee meetings to present testimony and legal advice
to the Committee relative to proposed or existing rules;
(4) Preparing letters to agencies on behalf of the Committee relative
to Committee actions, including objections, joint resolutions,
petitions, and recommendations;
(5) Assisting the Committee in reviewing adopted rules as requested,
including rules for which a special Committee hearing is held pursuant
to RSA 541-A:2, III;
(6) Assisting the Committee in its duties pursuant to RSA 541-A:2, IV,
including, but not limited to, review of rulemaking authority which has
not been used, improvements to rulemaking statutes and the rulemaking
process, and amendments to the Drafting and Procedure Manual;
(7) Responding to questions on rulemaking issues and the rulemaking
process from legislators, agencies, and the public; and
(8) Assisting Committee members on any other matters within the
Committee's jurisdiction.
Source.
Committee meeting, 11-13-98; 11-17-00; 9-21-01; 11-19-20
103.04 Clerical Staff.
(a) The support staff in the Division of Administrative Rules functions
as clerical staff to the Committee.
(b) The responsibilities of clerical staff include:
(1) Receiving, copying, and mailing all correspondence to and from the
Committee;
(2) Maintaining files of all Committee correspondence and Committee
legal counsel comments on proposed rules and emergency rules;
(3) Responding to questions from legislators, agencies, and the public
on Committee actions and Committee meetings;
(4) Maintaining an electronic record of all Committee actions on
proposed rules;
(5) Notifying Committee members of regular and special Committee
meetings;
(6) Preparing and mailing electronically copies to agencies of
Committee staff work pursuant to Chapter 200 of the Committee's rules;
(7) Preparing individual packets of materials, including Committee
legal counsel work and all related correspondence to be reviewed by the
Committee, and posting online for Committee members attending a
Committee meeting;
(8) Maintaining Committee meeting files, including material reviewed
and transcripts of Committee meetings made by the Office of Legislative
Budget Assistant; and;
(9) Other clerical duties relative to Committee staff work.
Source.
Committee meeting, 11-13-98; 11-17-00; 9-21-01; 11-19-20
CHAPTER 200 COMMITTEE STAFF PRACTICE AND PROCEDURES
PART 201 PROPOSED RULES, RESPONSES TO OBJECTIONS, AND EMERGENCY RULES
201.01 Examining an Initial Proposal.
(a) As soon as possible after the rulemaking notice is published, the
Committee legal counsel shall examine the initial proposal, including
the rulemaking notice, and notify the agency if there are any potential
problems which might serve as grounds for an objection by the Committee
pursuant to RSA 541-A:13, IV as further explained by Chapter 400
Criteria for Review of Proposed Rules.
(b) As time allows, the Committee legal counsel shall annotate the rule
text, noting potential problems, and shall send a copy to the agency
and to the Department of Justice. The Committee staff shall also notify
the agency if it finds no potential problems.
(c) The Committee legal counsel shall note cases of noncompliance with
the Drafting and Procedure Manual required by RSA 541-A:8 and approved
by the Committee.
(d) The Committee legal counsel shall provide all annotations and other
comment on initial proposals to the Committee upon request.
Source.
Committee meeting, 11-13-98; 11-17-00; 9-21-01
201.02
Examining a Final Proposal, , Proposed Interim Rule, , Conditional
Approval Request, Proposed Expedited Repeal, Proposed Expedited
Revision to Agency Form, or Proposed Expedited Amendment to
Incorporation by Reference
.
(a) "Editorial change" means a change to a proposed or adopted rule
that does not change the meaning of the rule or select one available
interpretation over another. These changes include, but are not limited
to, issues of spelling, grammar, punctuation, and numbering.
(b) After the Director of Legislative Services has accepted a final
proposal for filing as apparently complete, and Committee staff has
placed it on the agenda for a Committee meeting pursuant to RSA
541-A:12, I,), the Committee legal counsel shall examine the final proposal to see if there are any potential problems which might serve as grounds for an objection pursuant to RSA 541-A:13, IV.
541-A:12, I,), the Committee legal counsel shall examine the final proposal to see if there are any potential problems which might serve as grounds for an objection pursuant to RSA 541-A:13, IV.
(c) The Committee legal counsel shall rely on the fixed text of the
final proposal pursuant to RSA 541-A:12, II(b) as the intended text of
the final proposed rule.
(d) If there is any amendment to the date or edition of a document or
Internet content incorporated by reference in the proposed rule in
comparison with the existing rule, the Committee legal counsel shall
request the agency to provide an authorized explanation of the
differences between the existing document or Internet content and the
document or Internet content in the proposed rule. The authorized
explanation may be a narrative or a side-by-side comparison but shall
identify any substantive changes in the document or Internet content
incorporated by reference. The Committee staff shall distribute this
explanation to the Committee upon receipt from the agency.
(e) After the Director of Legislative Services has accepted a proposed
interim rule for filing as apparently complete, and placed it on the
agenda for a Committee meeting pursuant to RSA 541-A:19, V, or RSA
541-A:19, VIII(a), the Committee legal counsel shall examine the
proposed interim rule to see if there are any potential problems which
might serve as grounds for an objection pursuant to RSA 541-A:19, VII.
(f) The Committee legal counsel shall examine a conditional approval
request for a final proposal or proposed interim rule, if submitted by
deadline pursuant to RSA 541-A:13, II(b) or RSA 541-A:19, VIII(a),
respectively, in the same manner as for a final proposal or proposed
interim rule. If the deadline is waived, the request shall be examined
as time allows.
(g) The Committee legal counsel shall prepare an annotated copy of the
final proposal, proposed interim rule, or, as time allows,conditional
approval request, for the Committee outlining any potential problems. A
copy of the fiscal impact statement shall be included for all final
proposals. Committee staff shall send a copy of the annotated final
proposal, proposed interim rule, or, if time allows conditional
approval request, to the agency. The Committee staff shall also notify
the agency if there are no potential problems with the final proposal ,
proposed interim rule, or conditional approval request and shall
present a copy of the final proposal, , proposed interim rule, or
conditional approval request to the Committee.
(h) If all of the issues addressed in the annotated copy of the final
proposal,
proposed interim rule or conditional approval request would involve
only editorial changes and therefore can be made without a Committee
objection to the final proposal or proposed interim rule, or a new
rulemaking proceeding pursuant to RSA 541-A, then the Committee legal
counsel shall not present the potential problems and the related
annotations to the Committee as grounds for objection but shall still
provide the annotated copy to the Committee.
(i) The Committee legal counsel shall examine and annotate a proposed
expedited repeal, a proposed expedited revision to agency form, and a
proposed expedited amendment to incorporation by reference in the same
manner as for a final proposal under paragraphs (b), (g), and (h), to
see if there are any potential problems which might serve as grounds
for an objection pursuant to, respectively, RSA 541-A:19-a, VII, RSA
541-A:19-c, VI, and RSA 541-A:19-d, VII.
(j) Except as provided under paragraph(g), all cases of noncompliance
with the Drafting and Procedure Manual mandated by RSA 541-A:8 shall be
brought to the attention of the Committee as potential bases for
objection.
201.03 Examining Conditionally-Approved Texts.
(a) After an agency has received conditional approval of its final
proposal or proposed expedited revision to agency form pursuant to RSA
541-A:13, V(a) or RSA 541-A:19-d, VII, or conditional approval of a
proposed interim rule pursuant to RSA 541-A:19, VIII(b), the agency
shall file its explanation within the time specified by RSA 541-A:13,
V(a) or RSA 541-A:19, VIII(b).
(b) Once the explanation has been received by Committee staff,
Committee legal counsel shall examine the explanation to determine
whether the agency has amended the rule in accordance with the
Committee's conditional approval.
(c) If the Committee legal counsel determines that the rule has been
amended in accordance with the Committee's conditional approval,
Committee legal counsel shall promptly send written confirmation of
such compliance, and then the agency may adopt the rule as amended.
(d) If the Committee legal counsel determines that the rule has not
been amended in accordance with the Committee's conditional approval or
that the explanation was not filed with the Committee as required by
RSA 541-A:13, V(a) or RSA 541-A:19, VIII(b), Committee legal counsel
shall promptly send written notice to the agency that the conditional
approval has been deemed to be a preliminary objection of the Committee
as of the date the Committee voted for conditional approval.
Source.
Committee meeting, 11-17-00; 11-19-20
201.04
Examining a Response to Objection or Amended Response to Objection
.
(a) After an agency has filed a complete preliminary objection response
pursuant to RSA 541-A:13, V(c), or revised objection response pursuant
to RSA 541-A:13, V(f), the Committee legal counsel shall examine the
rules to see if there are any potential problems which might serve as
grounds for a final objection pursuant to RSA 541-A:13, V(f),
sponsorship of a joint resolution pursuant to RSA 541-A:13, VII, or, if
available, a revised objection response pursuant to RSA 541-A:13,V(e).
(b) After an agency has filed an amended response to preliminary
objection pursuant to RSA
541-A:13, V(d), the Committee legal counsel shall examine the rules to
see if there are any potential problems which might serve as grounds
for further objection. If the Committee determines that there are such
problems with the rules, the Committee shall not accept the amended
response to preliminary objection but shall inquire of the agency as to
whether the agency will request that a revised objection be made or
whether the agency will request that the Committee take some other
action on the response to preliminary objection.
(c) After an agency has filed a complete response to an objection to a
proposed interim rule pursuant to RSA 541-A:19, VIII(b), the Committee
legal counsel shall examine the rules to see if there are any problems
which might serve as grounds to continue the objection pursuant to RSA
541-A:19, VIII(c).
(d) The Committee legal counsel shall prepare an annotated copy of the
rules in the amended proposal or response if necessary and present it
to the Committee in the same manner as for final proposals and proposed
interim rules under rules 201.02(e), (g), and(h). Committee staff shall
send a copy of any annotated response to the agency and to the
Department of Justice. The Committee staff shall also notify the agency
if there are no potential problems remaining, and a copy of the
objection response in that case shall be provided to the Committee only
upon request.
Source.
Committee meeting, 11-13-98; 11-17-00; 11-19-20
201.05 Examining an Emergency Rule.
(a) After an agency has filed a complete emergency rule with the
Director of Legislative Services pursuant to RSA 541-A:18, II, the
Committee legal counsel or Administrative Rules Director shall examine
the rule to see if the statement of emergency included with the rule
pursuant to RSA 541-A:18, III adequately explains the imminent peril to
the public health or safety, or whether there is substantial fiscal
harm to the state or its citizens, that could occur if the rule were
not adopted with less notice than required for regular rulemaking.
(b) If the statement of emergency does not demonstrate that the rule is
necessary to prevent an imminent peril to the public health or safety,
or substantial fiscal harm to the state or its citizens, in the
judgment of the Committee legal counsel or Administrative Rules
Director, then they shall bring the matter to the attention of the
Committee. The agency shall be informed by Committee staff of the
potential problem.
(c) The Committee shall apply its own judgment and may petition the
agency during any regularly scheduled or special meeting to repeal the
emergency rule pursuant to RSA 541-A:18, IV.
Source.
Committee meeting, 11-13-98; 11-17-00; 11-19-20
PART 202 COMMITTEE AGENDAS
202.01 Preparation of a Tentative Agenda.
(a) Committee staff shall prepare in consultation with the Chairperson
or Vice-Chairperson a tentative agenda as described in Committee rule
102.04(h) for each regularly scheduled or special Committee meeting.
The agenda shall assign approximate times for commencement and duration
of Committee review of the items.
(b) The times and order specified for the items listed shall be
tentative and subject to change by the Chairperson or Vice-Chairperson
prior to the Committee meeting or by the Committee during the meeting.
(c) Committee staff shall inform each agency prior to the meeting of
the assigned time on the tentative agenda for the items involving rules
of that agency.
(d) Notwithstanding any provision in these rules to the contrary,
Committee staff shall place as a discussion item on the agenda any
final proposal that would otherwise receive automatic approval pursuant
to RSA 541-A:13, II(e). Following such discussion at the meeting, the
Committee may vote to suspend rule 302.01(a)(2) to approve the final
proposal or rule 303.01(b)(2) to enter a preliminary objection.
Source.
Committee meeting, 11-13-98; 11-17-00; 9-21-01
202.02
Consent Agenda for Final Proposals, Proposed Interim Rules,
Objection Responses, Conditional Approval Requests, Proposed
Expedited Repeals, Proposed Expedited Revisions to Agency Forms, or
Proposed Expedited Amendments to Incorporation by Reference
.
(a) Committee staff shall place final proposals, proposed interim
rules, proposed expedited repeals, proposed expedited revisions to
agency forms, or proposed expedited amendments to incorporation by
reference on a consent agenda for approval by the Committee if the
Committee legal counsel:
(1) Determines that there are no potential bases for objection or other
issues to put before the Committee; and
(2) Has no information that a Committee member, agency, other
legislator, or member of the public wishes to testify about the
proposed rule before the Committee takes any action.
(b) Committee staff shall place responses to preliminary or revised
objections on a consent agenda for acceptance and approval by the
Committee if the Committee legal counsel:
(1) Determines that there are no further potential bases for objection
or petition, or issues to discuss, either remaining from the objection
or newly created by the agency in the response; and
(2) Has no information that a Committee member, the agency, other
legislator, or member of the public wishes to testify about the
objection response before the Committee takes final action.
(c) Committee staff shall place final proposals, proposed interim
rules, or proposed expedited amendments to incorporation by reference,
for which a conditional approval request has been filed, on a consent
agenda for conditional approval by the Committee if the Committee legal
counsel:
(1) Determines that the request affecting a final proposal or proposed
interim rule has been filed by the deadline pursuant to RSA 541-A:13,
V(b) or RSA 541-A:19, VIII(a) or the deadline has been waived pursuant
to RSA 541-A:40, IV;
(2) Determines that the request removes all potential bases for
objection or petition, or issues to discuss, in the proposal; and
(3) Has no information that a Committee member, the agency, other
legislator, or member of the public wishes to testify about the
proposal or request before the Committee takes final action
Source.
Committee meeting, 11-13-98; 11-17-00; 11-19-20
202.03 Consent Agenda for Consent Objections.
(a) The Committee staff shall place a final proposal, proposed interim
rule, proposed expedited revision to agency form, or proposed expedited
amendment to incorporation by reference on a consent list for
preliminary objection by the Committee without further testimony if:
(1) The agency informs Committee staff prior to a Committee meeting
that the agency could address the issues outlined by the Committee
legal counsel to the item if the Committee were to object based solely
on those grounds; and
(2) No Committee member or member of the public has questions or wishes
to testify on the item before the Committee takes any action.
Source.
Committee meeting, 11-13-98; 11-17-00; 11-19-20
PART 203 COMMITTEE STAFF CONTACT WITH AGENCIES, LEGISLATORS, AND THE
PUBLIC
203.01 Agency Staff.
(a) The Committee legal counsel and the Administrative Rules Director
shall be available to discuss with the relevant agency any comments by
them regarding the agency's proposed rules or emergency rules as
necessary to clarify the comments, understand how to resolve a
potential problem, or to point out any misunderstanding of a rule or
statute.
(b) The Committee legal counsel and the Administrative Rules Director
shall be available to discuss issues to which the agency requests an
objection.
(c) The comments by Committee legal counsel shall not be considered by
the agency as Committee objections unless the Committee votes to make
them so during the Committee meeting.
(d) Committee legal counsel, the Administrative Rules Director, or
both, shall be available as time permits to discuss with an agency the
agency's concerns on any matter within the Committee's jurisdiction
under RSA 541-A:2, RSA 541-A:13, RSA 541-A:18, RSA 541-A:19, RSA
541-A:19-a, RSA 541-A:19-c, and RSA 541-A:19-d, and advise the agency
of Committee procedures and agendas of meetings. Committee staff shall
not provide legal advice to the agency.
(e) Committee staff shall not distribute to any non-Committee member
any staff documents except as allowed by Committee rule 302.05.
(f) The Committee legal counsel or Administrative Rules Director shall
not make decisions properly belonging to the Committee, such as whether
to object to a proposed rule. Committee legal counsel shall not
negotiate a Committee objection with the agency but shall bring to the
Committee's attention all potential bases for objection. Only the
Committee shall decide whether it should object after considering the
comments by Committee staff and testimony from the agency and the
public.
(g) The agency shall always have an opportunity to state its views and
explain its position directly to the Committee when the agency's
proposed rule is reviewed.
Source.
Committee meeting, 11-13-98; 11-17-00; 9-21-01; 11-19-20
203.02 Legislators and the Public.
(a) Committee staff shall provide oral or written information and
assistance to the public or other legislators on Committee procedures,
agendas of meetings, and other matters within the Committee's
jurisdiction under RSA 541-A:2, RSA 541-A:13, RSA 541-A:18, RSA
541-A:19, RSA 541-A:19-a, RSA 541-A:19-c, and RSA 541-A:19-d.
(b) Committee legal counsel or the Administrative Rules Director shall
bring to the attention of the Committee Chairperson or Vice-Chairperson
all matters within the Committee's jurisdiction that are referred to
the Committee legal counsel or Administrative Rules Director on behalf
of the Committee from a member of the public or a legislator.
(c) Committee staff shall not provide legal advice to any person who is
not a legislator. A staff member shall not provide legal advice to
legislators unless the member is a licensed attorney in New Hampshire.
(d) Committee staff shall not distribute to any non-Committee member
any staff documents except as allowed by Committee rule 302.05.
Source.
Committee meeting, 11-13-98; 11-17-00; 11-19-20
203.03 Committee Staff Ethical Obligations.
(a) Committee staff shall comply with the latest edition of the "Ethics
Guidelines and Procedural Rules" of the NH General Court's Legislative
Ethics Committee as approved by the General Court in accordance with
RSA 14-B:3.
(b) The Committee shall be the client of the Committee legal counsel,
who shall comply with the latest edition of the "NH Rules of
Professional Conduct" in their capacity as legal counsel to the
Committee.
Source.
Committee meeting, 11-13-98; 11-17-00
CHAPTER 300 COMMITTEE REVIEW OF PROPOSED RULES
PART 301 COMMITTEE MEETINGS
301.01 Order of Items. The Committee meeting shall follow the
order of items to be reviewed as stated in the tentative agenda unless
the Committee changes the order to accommodate Committee members or
testimony from agencies, Committee legal counsel, the Administrative
Rules Director, the public, or other legislators.
Source.
Committee meeting, 11-13-98; 11-17-00
301.02 Testimony on Proposed Rules and Adopted Rules.
(a) Agency representatives, members of the public, or other legislators
who wish to testify about a proposed rule or adopted rule shall, if the
meeting is in-person, complete a testimony card and provide it to the
Chairperson or Acting Chairperson. Persons who wish only to register
their support for, or opposition to, a rule shall note that on the card
and provide it to the Chairperson or Acting Chairperson. If the meeting
is held remotely, testimony may be given pursuant to the instructions
in the Register, the House and Senate Calendars, and
on the website of the Office of Legislative Services, Administrative
Rules, and in accord with any further direction provided by the
Chairperson or Acting Chairperson and the Committee staff person
facilitating the remote meeting.
(b) Since the Committee is not a policy committee, testimony shall not
be considered relevant that does not focus upon issues in the rules and
instead argues only that a statute should be changed.
(c) All persons with relevant testimony shall be heard, but the
Chairperson or Acting Chairperson shall limit the time if necessary in
order to hear all relevant testimony and to accommodate Committee
review of other items in the meeting.
(d) Public testimony and testimony from other legislators shall focus
on the following to the degree relevant to the item being discussed:
(1) Which proposed rules or adopted rules the witness supports and why;
(2) Which proposed rules or adopted rules the witness opposes and the
potential bases that exist for Committee petition pursuant to RSA
541-A:4, or Committee objection or sponsorship of a joint resolution
pursuant to RSA 541-A:13, IV through VII, RSA 541-A:19, VII, and
Chapter 400 of the Committee's rules; or
(3) How the emergency rule does not meet the criteria for an emergency
rule pursuant to RSA 541-A:18, IV.
(e) Witnesses shall identify in their testimony the action that they
want the Committee to take relative to the rules, such as approval,
conditional approval, objection, petition for rulemaking, sponsorship
of a joint resolution, or recommendation to the agency.
(f) An agency requesting a preliminary or revised objection shall
identify the particular rule or rules to which it wants the Committee
to object and the grounds for the objection consistent with RSA 541-A
and the Committee's rules.
Source.
Committee meeting, 11-13-98; 11-17-00; 9-21-01; 11-19-20
301.03
Acceptance of Agency Requests for Conditional Approval of a Final
Proposal or Proposed Interim Rule.
If an agency files a request for conditional approval of a final
proposal or proposed interim rule with a rule amendment pursuant to RSA
541-A:13, II(b) or RSA 541-A:19, VIII(a), the Committee shall accept
the request and consider a conditional approval under Committee rule
302.01 if:
(a) The request is filed before the deadline pursuant to RSA
541-A:13, II(b) or RSA 541-A:19, VIII(a) or the deadline has been
waived pursuant to RSA 541-A:40, IV; or
(b) The request is filed in the meeting, either orally or in writing,
and a motion to accept is made, seconded, and adopted by the Committee
based on one or more compelling reasons as follows:
(1) The Committee determines that the rule amendment will remove all
potential bases for preliminary objection identified by Committee
staff, the agency, or the public;
(2) Although the request does not remove all potential bases for
preliminary objection, the agency agrees to accept further amendments
in the meeting as identified by the Committee in the meeting; or
(3) The agency has worked out with stakeholders or the public during
the meeting an amendment which is submitted as a request to resolve an
issue which would otherwise serve as a potential basis for preliminary
objection.
Source.
Committee meeting, 11-17-00; 11-19-20
301.04 Committee Staff.
(a) The Committee legal counsel and the Administrative Rules Director
shall attend Committee meetings to assist the Committee as needed.
(b) The Committee legal counsel, and the Administrative Rules Director
as necessary and if licensed to practice law in New Hampshire, shall
provide legal advice in their review for the Committee of proposed
rules, objection responses, and emergency rules.
(c) The Committee legal counsel and the Administrative Rules Director
shall bring to the Committee's attention any other issues of fact or
law relevant to an agenda item being discussed before the Committee
takes action. The Committee legal counsel and the Administrative Rules
Director may ask questions of a witness with the permission of the
Chairperson or Acting Chairperson.
Source.
Committee meeting, 11-13-98; 11-17-00
PART 302 APPROVALS AND CONDITIONAL APPROVALS
302.01 Motions.
(a) A motion is in order to approve or conditionally approve a final
proposal, , proposed interim rule, or proposed expedited amendment to
incorporation by reference, or approve a proposed expedited repeal or
proposed expedited revision to agency form, at any meeting, provided:
(1) The Director of Legislative Services has received the proposal
filed by the agency;
(2) Committee staff has placed it on the agenda;
(3) In the case of an applicable conditional approval request from an
agency, the Committee accepted the request pursuant to Committee rule
301.03; and
(4) In the case of a motion to conditionally approve in lieu of an
objection, the motion specifies the conditional approval request if one
was filed, or the language of the amendment to be used by the agency in
its explanation to address each basis for objection identified by the
Committee.
(b) A motion to approve a final proposal, , proposed interim rule, ,
proposed expedited repeal, proposed expedited revision to agency form,
or proposed expedited amendment to incorporation by reference shall not
contain any instructions to an agency to make any substantive change in
the rule, unless such instruction is made in the context of a
conditional approval of a final proposal pursuant to RSA 541-A:13,
V(a), a proposed interim rule pursuant to RSA 541-A:19, VIII(b), or a
proposed expedited amendment to incorporation by reference pursuant to
RSA 541-A:19-d, VII. The Committee may instruct an agency to make a
change in the final proposal only if the procedures under rule 303.01
and 303.02 are followed.
(c) A motion to approve may include a petition under RSA 541-A:4 or a
recommendation for further rulemaking or legislation.
Source.
Committee meeting, 11-15-83; 7-17-87; 7-15-94;
11-13-98; 11-17-00; 9-21-01; 11-19-20
302.02 Vote on Motions.
(a) To pass, a vote on a motion to approve or conditionally approve a
proposal under rule 302.01, including petitions or recommendations,
shall require a majority of the votes cast, a quorum being present, as
specified in rule 102.07.
(b) Once the Committee votes to approve a proposal, the agency may
adopt the rule only as approved. The agency has no authority to amend
the rule further, unless the changes are made in conformance with a
conditional approval pursuant to RSA 541-A:13, V(a), RSA 541-A:19,
VIII(b), or RSA 541-A:19-d, VII.
Source.
Committee meeting, 11-15-83; 7-17-87; 3-20-92;
7-15-94; 11-13-98; 11-17-00; 9-21-01; 11-19-20
302.03 Reconsideration of Approval or Conditional Approval.
(a) A motion to reconsider a vote to approve or conditionally approve a
proposal under rule 302.02 shall be in order if made by any Committee
member during the same meeting and calendar day in which the vote to
approve or conditionally approve was taken. To pass, a vote on a motion
to reconsider a vote to approve or conditionally approve shall require
the affirmative vote of a majority of the votes cast, a quorum being
present.
(b) For the purpose of making subsequent motions only, the effect of
adopting a motion to reconsider a vote to approve or conditionally
approve shall be to cancel the vote to approve or conditionally approve
as if it had never been taken. All motions that were available prior to
the vote to approve or conditionally approve shall be available after
the motion to reconsider has been adopted.
(c) If a preliminary or final objection is made pursuant to Committee
rules 301.01 or 303.02 after reconsideration of an approval or
conditional approval, the written notice to the agency pursuant to
Committee rule 303.05 shall include the fact of reconsideration and an
offer by Committee legal counsel to discuss with agency
representatives, at the agency's request, the grounds for the
objection.
Source.
Committee meeting, 9-21-01; amd 7-17-08; 11-19-20
302.04 Written Notice to Agency.
(a) The Committee staff shall inform the agency in writing of the
Committee vote to approve a final proposal, , proposed interim rule, ,
proposed expedited repeal, proposed expedited revision to agency
form, or proposed expedited amendment to incorporation by reference
or to grant conditional approval of the final proposal, , proposed
interim rule, or proposed expedited amendment to incorporation by
reference.
(b) The letter informing the agency of the Committee's conditional
approval shall specify the conditional approval request or the language
of the amendment to be included by the agency in its explanation to
address each basis for the objection identified by the Committee.
(c) Once the Committee legal counsel has reviewed the agency's
explanation submitted after receiving conditional approval, the
Committee legal counsel shall, pursuant to RSA 541-A:13, V(a), RSA
541-A:19, VIII(a), or RSA 541-A:19-d, VIII send a letter either
confirming that the explanation was made in accordance with the
conditional approval or indicating that the explanation was not in
accordance with the conditional approval. If the Committee legal
counsel determines that the explanation was not in accordance with the
conditional approval, the conditional approval shall, pursuant to RSA
541-A:13, V(a), RSA 541-A:19, VIII(a), or RSA 541-A:19-d, VIII be
deemed to be a preliminary objection as of the date of the conditional
approval.
(d) If the Committee takes no action within 60 days of the filing of
the final proposal pursuant to RSA 541-A:12, I, the Committee staff
shall notify the agency that the rule has been approved under RSA
541-A:13.
Source.
Committee meeting, 11-15-83; 6-21-85; 9-3-87;
7-15-94; 11-17-00; 11-19-20
302.05 Access to Staff Memoranda and Other Documents.
(a) Legal memoranda prepared by the Committee legal counsel or
Administrative Rules Director for the Committee which only outline
potential bases for Committee objection, petition, or other Committee
action relative to proposed or adopted rules shall be available to any
person for inspection and copying after the memoranda are actually
received by the Committee. Notwithstanding the foregoing, these
memoranda shall be available to the Director and Deputy Director of
Legislative Services when the memoranda are prepared, but with the
understanding that they will not be further distributed prior to
receipt by the Committee.
(b) Documents prepared by Committee staff for the Committee or
individual Committee members that are confidential pursuant to RSA 91-A
or are privileged under New Hampshire law shall be available for
inspection and copying only:
(1) Upon permission or disclosure by a majority of the Committee, a
quorum being present, for documents prepared for the entire Committee;
(2) Upon permission or disclosure by the individual Committee member or
members for whom the documents were prepared; or
(3) If disclosure is otherwise required by other Committee rules.
Source.
Committee meeting, 9-3-87; 11-13-98; 2-19-99;
11-17-00; 11-19-20
PART 303 OBJECTIONS
303.01 Motion for Preliminary Objection.
(a) For purposes of Part 303, a "preliminary objection" means the
objection to a proposed expedited repeal or the first written objection
to a final proposal, , proposed interim rule, proposed expedited
revision to agency form, or proposed expedited amendment to
incorporation by reference for which the Committee is awaiting a
response from the adopting agency before taking further action. The
Committee may modify its objection or approve the rule in accordance
with rule 303.07.
(b) A motion to make a preliminary objection to a final proposal, ,
proposed interim rule, proposed expedited repeal, proposed expedited
revision to agency form, or proposed expedited amendment to
incorporation by reference is in order if:
(1) The Committee staff has received the proposal filed by the agency;
(2) The proposed rule has been placed on the agenda by Committee staff,
pursuant to RSA 541-A:12, I, RSA 541-A:19, V, RSA 541-A:19-a, VII, RSA
541-A:19-c, VI, and RSA 541-A:19-d, VII or the Committee's rules; and
(3) The Committee determines that the final proposal falls into any of
the 4 categories listed in RSA 541-A:13, IV, the proposed interim rule
meets any of the criteria in RSA 541-A:19, VII, or the proposed
expedited repeal, the proposed expedited revision to agency form, or
the proposed expedited amendment to incorporation by reference meets
any of the criteria, respectively, under RSA 541-A:19-a, VII, RSA
541-A:19-c, VI, and RSA 541-A:19-d, VII as interpreted by Chapter 400
of these rules;
(c) Pursuant to RSA 541-A:13, IV, the Committee may make a
preliminary objection to a final proposal if the rule is:
(1) Beyond the authority of the agency;
(2) Contrary to the intent of the legislature;
(3) Determined not to be in the public interest; or
(4) Deemed by the Committee to have a substantial economic impact not
recognized in the fiscal impact statement.
(d) Pursuant to RSA 541-A:19, VII, the Committee may object to a
proposed interim rule if the rule is:
(1) Beyond the authority of the agency;
(2) Contrary to the intent of the legislature;
(3) Determined not to be in the public interest; or
(4) Not designed solely to allow the agency to:
a. Conform with a new or amended statute effective no more than 90 days
prior to the publication of the notice of the proposed interim rule;
b. Conform with a controlling judicial decision;
c. Conform with a federal requirement which must be met sooner than the
time periods allowed under the formal procedure in RSA 541-A:3;
d. Continue rules which would otherwise expire prior to the completion
of the rules' readoption; or
e. Minimize the time between the expiration of rules and their
subsequent readoption.
(e) Pursuant to RSA 541-A:19-a, VII, the Committee may make an
objection to a proposed expedited repeal if the repeal is:
(1) Beyond the authority of the agency;
(2) Contrary to the intent of the legislature;
(3) Deemed by the Committee not to meet the requirements of RSA
541-A:19-a, I.
(f) Pursuant to RSA 541-A:19-c, VI, the Committee may make a
preliminary objection to a proposed expedited revision to agency form
if the adoption of the form is:
(1) Beyond the authority of the agency;
(2) Contrary to the intent of the legislature; or
(3) Deemed by the Committee not to meet the requirements of RSA
541-A:19-c.
(g) Pursuant to RSA 541-A:19-d, VII, the Committee may make a
preliminary objection to a proposed expedited amendment to
incorporation by reference the amended rule is:
(1) Beyond the authority of the agency;
(2) Contrary to the intent of the legislature;
(3) Deemed not be to in the public interest; or
(4) Deemed by the Committee not to meet the requirements of RSA
541-A:19-d, I.
(h) Such a motion shall identify the rule or rules that are
objectionable and the grounds for the objection as explained in Chapter
400 of the Committee's rules. If the rules and the grounds are
sufficiently detailed in Committee legal counsel memoranda or
annotations to the proposed rules or in written public testimony, the
motion shall only have to identify the number of the final proposal,
proposed interim rule, , proposed expedited repeal, proposed expedited
revision to agency form, and proposed expedited amendment to
incorporation by reference and state that the motion to object is based
upon Committee legal counsel annotations or memoranda or public
testimony.
(i) A motion to make any objection to a final proposal shall not be in
order if it is made after 60 days from the filing of the final proposal
pursuant to RSA 541-A:12, I with the Director of Legislative Services.
(j) A motion to make any objection to a proposed interim rule shall not
be in order if it is made after 90 days from publication of the notice
for the interim rule.
Source.
Committee meeting, 11-15-83; 9-3-87; 3-20-92;
7-15-94; 11-13-98; 11-17-00; 9-21-01; 11-19-20
303.02 Motion for Revised Objection.
(a) For purposes of Part 303, a "revised objection" shall be a written
objection requested by an agency pursuant to RSA 541-A:13, V(d) to a
final proposal , RSA 541-A:19-c, VII to a expedited revision to agency
form, or RSA 541-A:19-d, VIII to an expedited amendment to
incorporation by reference after the agency has submitted its response
to a preliminary objection and prior to a final committee vote on the
proposed rule or form.
(b) A motion to make a revised objection to a proposed rule is in order
if:
(1) The Committee has issued a preliminary objection;
(2) The agency has responded to the preliminary objection in accordance
with RSA 541-A:13, V(c);
(3) The Committee has not yet taken a final vote on the proposed rule;
(4) The agency requests a revised objection; and
(5) The Committee determines that the proposed rule after the response
to the preliminary objection falls into any of the 4 categories
described in rule 303.01(c) as interpreted by Chapter 400 of these
rules.
(c) Such a motion shall state the reasons for the objection and shall
specify which section or sections of the rule are objectionable under
which category.
Source.
Committee meeting, 7-15-94; 11-13-98; 11-17-00;
9-21-01; 11-19-20
303.03 Vote on Motions for Preliminary, Revised, or Final Objections.
(a) To pass, a vote on a motion to make a preliminary or revised
objection under rule 303.01 or 303.02, as appropriate, shall require a
majority of the votes cast, a quorum being present. A minimum of 4
affirmative votes is needed if only a quorum is present.
(b) To pass, a vote on a motion to make a final objection under rule
303.07(b) shall require a minimum of 6 affirmative votes.
Source.
Committee meeting, 11-15-83; 8-16-85; 7-15-94;
11-13-98
303.04 Reconsideration of Preliminary, Revised, or Final Objections.
(a) A motion to reconsider a vote to make a preliminary or revised
objection made pursuant to Committee rule 303.03(a) shall be in order
if made by any Committee member during the same meeting and calendar
day in which the respective vote to make the preliminary or revised
objection was taken. To pass, a vote on a motion to reconsider a vote
to make a preliminary or revised objection shall require the
affirmative vote of a majority of the votes cast, a quorum being
present. For the purpose of making subsequent motions only, the effect
of adopting a motion to reconsider a vote to make a preliminary or
revised objection shall be to cancel the respective vote to make the
preliminary or revised objection as if it had never been taken. All
motions that were available prior to the respective vote to make a
preliminary or revised objection shall be available after the motion to
reconsider has been adopted.
(b) A motion to reconsider a vote to make a final objection made
pursuant to Committee rule 303.03(b) shall be in order if made by any
Committee member during the same meeting and calendar day in which the
vote to make the final objection was taken. To pass, a vote on a motion
to reconsider a vote to make a final objection shall require a minimum
of 6 affirmative votes. For the purpose of making subsequent motions
only, the effect of adopting a motion to reconsider a vote to make a
final objection shall be to cancel the vote to make a final objection
as if it had never been taken. All motions that were available prior to
the vote to make a final objection shall be available after the motion
to reconsider has been adopted.
(c) If a preliminary or final objection is made pursuant to Committee
rules 301.01 or 303.02 after reconsideration of an objection, the
written notice to the agency pursuant to Committee rule 303.05 shall
include the fact of reconsideration and an offer by Committee legal
counsel to discuss with agency representatives, at the agency's
request, the grounds for the objection.
Source.
Committee meeting, 9-21-01; amd 7-17-08
303.05 Written Notice to Agency.
(a) The Committee legal counsel or Administrative Rules Director shall
prepare a written preliminary objection which shall be sent to the
appropriate agency in accordance with RSA 541-A:13, V(b), Section 2.15
of Chapter 3 of the Drafting and Procedure Manual, RSA 541-A:19,
VIII(b), RSA 541-A:19-c, VII, and RSA 541-A:19-d, VIII.
(b) If the Committee legal counsel has reviewed an agency's explanation
submitted after receiving conditional approval and determines that the
explanation was not in accordance with the conditional approval, the
Committee legal counsel shall so inform the agency, and the conditional
approval shall, pursuant to RSA 541-A:13, V(b), RSA 541-A:19, VIII(b),
or RSA 541-A:19-d, VIII be deemed to be a preliminary objection as of
the date of the conditional approval.
(c) The Committee legal counsel or Administrative Rules Director shall
prepare a written revised objection which shall be sent to the agency
in accordance with Section 2.18 of Chapter 3 of the Drafting and
Procedure Manual.
(d) The Committee legal counsel or Administrative Rules Director shall
prepare a written final objection as it will appear in the Register
pursuant to RSA 541-A:13, V(f) and send a copy to the agency in
accordance with Section 2.18 of Chapter 3 of the Drafting and Procedure
Manual.
Source.
Committee meeting, 11-15-83; 6-21-85; 3-20-92;
7-15-94; 11-13-98; 11-17-00; 9-21-01; 11-19-20
303.06 Agency Action.
(a) The agency shall respond in writing to the preliminary or revised
objection within 45 days of the respective Committee vote in accordance
with RSA 541-A:13, V for a final proposal, RSA 541-A:19-c, VII for a
proposed expedited revision to agency form, or RSA 541-A:19-d for a
proposed expedited amendment to incorporation by reference or by the
next regularly scheduled monthly Committee meeting in accordance with
RSA 541-A:19, VIII(b) for a proposed interim rule
(b) The agency shall respond to the objection by:
(1) Amending the rule;
(2) Withdrawing the rule; or
(3) By making no change.
(c) The agency may adopt the rule after responding to a preliminary or
revised objection only if the Committee thereafter:
(1) Approves the preliminary objection response, amended preliminary
objection response, or revised objection response;
(2) Takes no further action within 50 days of the deadline for
submitting the response to the objection; or
(3) Takes any action other than a joint resolution under rule 304 and
RSA 541-A:13, VII, although the agency may adopt any portion of the
proposal to which a joint resolution does not attach.
(d) The agency shall not, pursuant to RSA 541-A:19, X, adopt a rule as
an interim rule unless it has been approved by the Committee or the
explanation has been confirmed to Committee legal counsel to comply
with the Committee's conditional approval.
Source.
Committee meeting, 11-15-83; 6-21-85; 9-3-87;
3-20-92; 7-15-94; 11-13-98; 11-17-00; 9-21-01; 11-19-20
303.07 Committee Action on Objection Responses.
(a) If the agency responds to a preliminary or revised objection by
removing the basis for objection to the Committee's satisfaction, the
Committee may vote to approve the rule. The Committee may also in the
same motion petition the agency under RSA 541-A:4 or recommend further
rulemaking or legislation to address any remaining issues.
(b) If the agency responds to a preliminary or revised objection to a
final proposal, proposed expedited revision to agency form, or proposed
expedited amendment to incorporation by reference but the basis for the
Committee's preliminary or revised objection, as appropriate, has not
been removed or the preliminary objection response or revised objection
response creates a new basis for objection, the Committee may, with a
minimum of 6 affirmative votes, make a final objection. The Committee
staff shall proceed as specified in RSA 541-A:13, V(f).
(c) The Committee may, in addition or as an alternative to a final
objection, vote to support the introduction of a joint resolution
pursuant to rule 304 and RSA 541-A:13, VII.
(d) The Committee may vote, in addition to a final objection but in a
separate motion by a majority of the votes cast, a quorum being
present, to petition the agency under RSA 541-A:4 or recommend further
rulemaking or legislation to address any remaining issues.
(e) If the agency responds to an objection to a proposed interim rule
but the basis for the objection has not been removed, or the response
creates a new basis for objection, the Committee shall either continue
the objection or approve the rule. The continued objection shall
prevent the agency from adopting the rule. Pursuant to RSA 541-A:19,
IX, no rule shall be adopted as an interim rule unless within 90 days
of publication of the notice the Committee votes to approve the rule.
(f) Reconsideration of a vote to approve the rule in an objection
response under paragraph (a) shall be made pursuant to Committee rule
302.03. Reconsideration of a vote to continue the objection to a
proposed interim rule or amended proposed interim rule under paragraph
(e) shall be made pursuant to Committee rule 303.04(a).
Source.
Committee meeting, 11-15-83; 6-21-85; 9-3-87;
7-15-94; 11-13-98; 11-17-00; 9-21-01; 11-19-20
PART 304 JOINT RESOLUTION
304.01 Motion on Joint Resolution.
(a) A vote to support the introduction of a joint resolution may be
used as an alternative to a final objection or in addition to a final
objection and only on the same grounds as available for a final
objection to a final proposal, proposed expedited revision to agency
form, or proposed expedited amendment to incorporation by reference.
(b) A motion to support the introduction of a joint resolution is in
order if:
(1) The agency has responded to the preliminary objection in accordance
with RSA
541-A:13, V(c), or, if applicable, to a revised objection pursuant to RSA 541-A:13, V(e);
541-A:13, V(c), or, if applicable, to a revised objection pursuant to RSA 541-A:13, V(e);
(2) The Committee determines that the basis for the preliminary or
revised objection has not been removed or the response to the
objections creates a new basis for objection; and
(3) The motion is made no later than 50 days from the date by which the
response was due to the preliminary objection or, if applicable, the
revised objection.
(c) Such a motion shall:
(1) State the reason or reasons for introduction of the joint
resolution in the same terms as for a final objection;
(2) Identify which provisions of the proposed rule are subject to the
vote to support the introduction of the joint resolution; and
(3) Recommend in terms suitable for a resolution specific legislative
and/or agency action concerning the proposed rule and relevant
statutes.
(d) To pass, a vote on a motion to support the introduction of a joint
resolution shall require a majority of the Committee, that is, a
minimum of 6 votes.
(e) The wording of the resolution shall be specified by its sponsors.
Source.
Committee meeting, 7-15-94; 11-13-98; 11-17-00;
9-21-01; 11-19-20
304.02
Effect of a Vote to Support the Introduction of a Joint Resolution.
(a) A vote to support the introduction of a joint resolution shall
prevent the rule or rules identified in the motion from being adopted
and filed by the agency until whichever of the following occurs first:
(1) The joint resolution is not introduced within 20 business days of
such vote when the General Court is in session or 20 business days of
the start of the following legislative session if such vote occurs when
the General Court is not in session;
(2) Final legislative action is taken, that is, the joint resolution is
defeated or the General Court fails to override the Governor's veto;
(3) The passage of 90 consecutive calendar days during which the
General Court shall have been in session, with the 90-day period
commencing on the date such joint resolution is introduced;
(4) The passage of 90 calendar days in the next session of the General
Court if it adjourns prior to the 60th calendar day after the joint
resolution has been introduced; or
(5) The resolution becomes law and the wording allows adoption.
(b) Such a vote shall not prevent the Committee from also voting to
enter a final objection.
(c) The vote to support the introduction of a joint resolution shall
apply to only the portions of the final proposal identified in the
joint resolution. The agency may proceed to adopt and file the
remainder of the rules in the final proposal under RSA 541-A.
Source.
Committee meeting, 7-15-94; 11-19-20
304.03
Reconsideration of Vote to Support the Introduction of a Joint
Resolution
(a) A motion to reconsider a vote to support the introduction of a
joint resolution made pursuant to Committee rule 304.01 shall be in
order if made by any Committee member at any time before the actual
introduction of such joint resolution in either the House or the
Senate. To pass, a vote on a motion to reconsider support for the
introduction of a joint resolution shall require a minimum of 6
affirmative votes.
(b) For the purpose of making subsequent motions only, the effect of
adopting a motion to reconsider a vote to support the introduction of a
joint resolution shall be to cancel the vote to support the
introduction of a joint resolution as if it had never been taken. Only
motions that would have otherwise been in order on the date of the
Committee vote to reconsider support for the introduction of a joint
resolution shall be in order. A motion to vote to support the
introduction of a new or amended joint resolution shall not be in order
if the time pursuant to RSA 541-A:13, VII(c) to introduce a joint
resolution has passed.
Source.
Committee meeting, 9-21-01; 7-17-08
304.04 Written Notice to Agency.
(a) The Committee legal counsel or Administrative Rules Director shall
prepare a letter concerning the vote to sponsor the joint resolution
which shall be sent to the agency in accordance with Section 2.18 of
Chapter 3 of the Drafting and Procedure Manual.
(b) If a vote to support the introduction of a joint resolution is made
pursuant to Committee rule 304.01 after reconsideration of a prior
action, the written notice to the agency shall include the fact of
reconsideration and an offer by Committee legal counsel to discuss with
agency representatives, at the agency's request, the vote to support
the introduction of a joint resolution.
Source.
Committee meeting, 9-21-01
304.05 Introduction of a Joint Resolution.
(a) Pursuant to RSA 541-A:13, VII(e), the joint resolution shall not
prevent the introduction of legislation which addresses any matter
included in the joint resolution.
(b) Pursuant to RSA 541-A:13, VII(f), the joint resolution may be
introduced at any time during the legislative session and be subject to
the same rules as any other bill introduced at the beginning of the
legislative session.
Source.
Committee meeting, 7-15-94; 11-13-98
PART 305 REQUESTS FOR WAIVER OF COMMITTEE DEADLINES
305.01 Who May Make Requests.
(a) When any proposed rule which is placed on the agenda is subject
pursuant to RSA 541-A to a deadline for Committee action, a request to
the Director of the Office of Legislative Services to waive the
deadline pursuant to RSA 541-A:40, IV may be made as follows:
(1) By the Chairperson or Vice-Chairperson for good cause pursuant to
Committee rule 305.02 if the agency has not already adopted and filed
the proposed rule; or
(2) By the Committee by vote on a motion by any Committee member
pursuant to Committee rules 305.02 and 305.03 if the motion is made
before the deadline is exceeded.
Source.
Committee meeting, 7-17-08
305.02 Good Cause for a Waiver Request. Good cause for a waiver
request by the Chairperson, Vice-Chairperson, or the Committee shall
include the following:
(a) The proposed rule is a final proposal which would otherwise be
automatically approved pursuant to RSA 541-A:13, II(e) because of the
placement of the final proposal on the agenda under RSA 541-A:12, I in
a regularly scheduled monthly meeting more than 60 days after filing;
(b) There is, or is expected to be, the absence of a Committee quorum
to address and act on the proposed rule by the deadline;
(c) Agency staff who are knowledgeable in the subject area are, or are
expected to be, unavailable to testify on the agency's proposed rule
until after the deadline;
(d) A request has been filed by the agency for conditional approval of
a proposed rule under RSA 541-A:13, II(b)or RSA 541-A:19, VIII(a) or
for postponement of Committee action on a proposed rule, but the next
scheduled Committee meeting for Committee action is after the deadline;
or
(e) Any other factor exists where postponement of action on the item to
a meeting after the deadline would facilitate greater input and
participation by the public, legislators, or the agency or otherwise
allow provision of necessary information for the Committee to consider
before taking action.
Source.
Committee meeting, 7-17-08; 11-19-20
305.03 Vote on Motions.
(a) A motion is in order for the Committee as a whole to request a
waiver of a Committee deadline under RSA 541-A if the motion is made
before the deadline is exceeded, and the motion states the good cause
from Committee rule 305.02.
(b) To pass, a vote on a motion to request a waiver shall require a
majority of the votes cast, a quorum being present, as specified in
Committee rule 102.07.
(c) A motion to request a waiver may include a recommendation to the
agency that the agency not adopt and file the rule if the request is
still pending with the Director after the deadline has passed.
Source.
Committee meeting, 7-17-08
305.04 Agency Notification. The Committee staff shall notify the
agency orally or in writing of a waiver request by the Chairperson,
Vice-Chairperson, or the Committee.
Source.
Committee meeting, 7-17-08
CHAPTER 400 CRITERIA FOR REVIEW OF PROPOSED RULES
PART 401 RULES BEYOND AGENCY AUTHORITY
401.01 Specific Delegation.
(a) In order to decide whether to object under paragraph (c), the
Committee shall review each statutory passage delegating rulemaking
authority to determine if the agency is authorized to adopt the
proposed rule.
(b) The Committee shall consider the rule to be within an agency's
authority, and shall not object pursuant to paragraph (c) below, if:
(1) The delegation of authority is specifically worded;
(2) The delegation is directly relevant to the subject matter of the
rule; and
(3) The delegation is correctly cited by the agency in the notice.
(c) The Committee may object to a proposed rule as being beyond the
agency's authority if the agency has relied upon a specific statutory
delegation of authority to require those regulated to supply
information or to take an action, but the Committee determines that the
statute does not authorize the agency to set such a requirement.
Source.
Committee meeting, 11-15-83; 9-21-01
401.02 Broad Delegation. If the passage delegating rulemaking
authority is worded broadly and contains phrases such as "the agency
may adopt rules for the proper administration of this chapter," the
Committee may require an agency to clarify the agency's interpretation
of broad phrases such as "proper administration." The Committee may
object to a proposed rule as being beyond an agency's
authority if the Committee determines that the rule goes
beyond the duties of the agency because the rule addresses an agency
duty not specifically identified in the statute.
Source.
Committee meeting, 11-15-83; 9-21-01
401.03 Incorrect Citation. The Committee may object to a
proposed rule as being beyond an agency's authority if the agency has
cited a delegation of rulemaking authority which the Committee
determines is not applicable to the subject matter of the rule.
Source.
Committee meeting, 11-15-83; 9-21-01
401.04 No Authority for Constitutional Violations. The Committee
may object to a proposed rule as being beyond an agency's authority if
the Committee determines that the rule violates a provision of the New
Hampshire Constitution or the Constitution of the United States.
Source.
Committee meeting, 11-15-91; 9-21-01
401.05 Specific Authority Needed.
(a) The Committee may object to a proposed rule as being beyond the
agency's authority if it is prohibited under RSA 541-A:22, III because
there is no specific statutory authority for the rules.
(b) The Committee may also object to a proposed rule under paragraph
(a) if the proposed rule creates categories or levels of a license as
defined in RSA 541-A:1, VIII or a system of fees to engage in
a profession, business, or other activity but the statute does not
specifically authorize categories or levels of a license or a system of
fees. For purposes of this paragraph, statutory authority to set fees
for services provided by the agency may be considered by the Committee
to be adequate to charge different fees for different services.
(c) The Committee may object to a proposed rule as being beyond an
agency's authority if the proposed rule without specific statutory
authority:
(1) Grants subpoena power;
(2) Delegates subpoena power to anyone other than the agency or
individual named in the statute;
(3) Requires continuing education for professional licensees, except
that authority to set license renewal qualifications may be considered
by the Committee as adequate to require continuing education;
(4) Requires liability insurance for licensees; or
(5) Requires providing social security numbers by a regulated community
unless provision is required by state statute or federal statute or
regulation, or the number is necessary to identify an individual to
prevent criminal acts such as fraud or to identify tax or criminal
records.
Source.
Committee meeting, 9-21-01
PART 402 RULES CONTRARY TO LEGISLATIVE INTENT
402.01 Violation of Statutory Purpose. A proposed rule shall be
considered contrary to legislative intent if the Committee determines
that:
(a) The rule attempts to implement a bill which the Legislature
defeated, unless there is evidence that the bill was defeated at least
in part because its content could be implemented with existing
rulemaking authority.
(b) The rule violates a statutory purpose clause.
(c) The rule violates the overall purpose of the statute, provided that
any objection shall be based first on the plain meaning of the statute
as a whole and secondly on the written legislative history if the
meaning cannot be agreed upon. The objection shall not be based on the
statute as interpreted solely by a sponsor, a representative of a
standing committee, or any other single member of the Legislature.
Source.
Committee meeting, 11-15-83; 9-21-01
402.02 Violation of a Specific Statute or Regulation.
(a) The Committee may object to a proposed rule as contrary to
legislative intent if the Committee determines that the rule violates
or otherwise conflicts with a specific state or federal statutory
provision or federal regulation.
(b) The Committee may object to a proposed rule filed pursuant to RSA
541-A:12 or RSA 541-A:13 as contrary to legislative intent if the
Committee determines:
(1) That the agency has violated a provision of RSA 541-A during the
rulemaking process for the final proposal, including failure to
consider fully all public comment received under RSA
541-A:11 when establishing the final proposal pursuant to the criteria in rule 403.01; or
541-A:11 when establishing the final proposal pursuant to the criteria in rule 403.01; or
(2) That the rule as written leads to requirements, limitations, or
prohibitions being set outside the process mandated by RSA 541-A:3.
(c) The Committee may object to a proposed rule filed pursuant to RSA
541-A:19 as contrary to legislative intent if the Committee determines:
(1) That the agency has violated a provision of RSA 541-A:19 during the
rulemaking process for the proposed interim rule, including failure to
meet the requirements for an interim rule under RSA 541-A:19, I; or
(2) That the rule as written leads to requirements, limitations, or
prohibitions being set outside the process mandated by RSA 541-A:19.
Source.
Committee meeting, 11-15-91; 9-21-01
402.03 Matters Requiring Statutory Authority.
(a) The Committee may object to a proposed rule as contrary to
legislative intent if the Committee determines that the subject matter
of the proposed rule is a matter that requires specific statutory
authority.
(b) The Committee may object to a proposed rule as contrary to
legislative intent under paragraph (a) if the Committee determines that
the proposed rule is prohibited under RSA 541-A:22, III because there
is no specific statutory authority for the matter in the proposed rule.
(c) The Committee may also object to a proposed rule as contrary to
legislative intent if the proposed rule creates categories or levels of
a license as defined in RSA 541-A:1, VIII or a system of fees to engage
in a profession, business, or other activity but the statute does not
specifically authorize categories or levels of a license or a system of
fees. For purposes of this paragraph, statutory authority to set fees
for services provided by the agency may be considered by the Committee
to be adequate to charge different fees for different services.
(d) The Committee may object to a proposed rule as contrary to
legislative intent under paragraph (a) if the proposed rule without
specific statutory authority:
(1) Grants subpoena power;
(2) Delegates subpoena power to anyone other than the agency or
individual named in the statute;
(3) Requires continuing education for professional licensees, except
that authority to set license renewal qualifications may be considered
by the Committee as adequate to require continuing education ;
(4) Requires liability insurance for licensees; or
(5) Requires providing social security numbers by a regulated community
unless provision is required by state statute or federal statute or
regulation, or the number is necessary to identify an individual to
prevent criminal acts such as fraud or to identify tax or criminal
records.
Source.
Committee meeting, 1-18-85; 9-21-01
402.04 Violation of a Constitutional Provision. The Committee
may object to a proposed rule as being contrary to legislative intent
if the Committee determines that a statute being implemented by the
rule is consistent with the New Hampshire Constitution and the
Constitution of the United States, but the rule implementing the
statute violates one or both constitutions.
Source.
Committee meeting, 11-15-91; 9-21-01
PART 403 RULES CONTRARY TO PUBLIC INTEREST
403.01 Responsiveness. The Committee may object to a proposed
rule as contrary to the public interest if the Committee determines
that the rule is not responsive to a public need. A proposed rule shall
be considered not responsive to a public need if the Committee
determines that:
(a) The agency has failed to consider fully all public comment pursuant
to RSA 541-A:11 for an initial proposal either at an oral hearing or in
written or electronic form, because:
(1) The agency allotted insufficient time to consider public comment
before the final proposal or amended final proposal was established,
based upon the complexity or extent of the comment or both;
(2) The agency did not provide the Committee with evidence, in response
to a claim to the contrary, that the public comment was overruled on
the merits; or
(3) The Committee received evidence that the agency restricted or
prevented submission of testimony that was otherwise relevant under the
terms of the notice, and the agency failed to refute the evidence.
(b) The agency claims the rule is necessary to respond to a federal
requirement when in fact no federal requirement exists, or the federal
requirement is other than the agency claims.
(c) The agency has used broad language when a more specific requirement
is needed, as may be indicated by such phrases in the proposed rules as
"to be determined by the agency," when the rule itself is the proper
place to make such a determination.
(d) The rule is not drafted in clear and understandable language.
(e) The agency has incorporated rules by reference which are overbroad
or too general, when the delegation calls for the agency to adopt rules
specifically suited to state needs.
(f) The agency has incorporated by reference a document or Internet
content with an amended date or edition but did not provide the
Committee, in response to a request by legal counsel under Committee
rule 201.02(d), with an adequate explanation of the differences between
the existing document or Internet content in the existing rule and the
document or Internet content in the proposed rule.
(g) The rule is designed to benefit the administrative convenience of
the agency to the detriment of the public.
Source.
Committee meeting, 11-15-83; 9-18-84; 11-17-00;
9-21-01; 2-17-12
403.02 Uniform Application.
(a) The Committee may object to a proposed rule as contrary to the
public interest if the Committee determines that the proposed rule
cannot be uniformly applied once it is adopted.
(b) A proposed rule shall be considered incapable of uniform
application if the Committee determines that:
(1) Instead of simply prohibiting an activity directly, the
rule indirectly prohibits an activity by setting requirements that are:
a. Technically infeasible given the present state of the art of
scientific and technical knowledge;
b. Impossible to meet financially by the regulated community as a whole
and not simply by selective members of that community; or
c. In any other way so unlikely to be met as to become effectively a
prohibition;
(2) The rule conflicts with an existing rule;
(3) The rule cannot be uniformly enforced by the agency; or
(4) The rule does not treat like entities in a similar manner.
Source.
Committee meeting, 11-15-83; 9-21-01
PART 404 ECONOMIC IMPACT OF RULES
404.01
Substantial Economic Impact Not Recognized in Fiscal Impact
Statement.
(a) The Committee may object to a proposed rule filed pursuant to RSA
541-A:12 or RSA 541-A:13 as having a substantial economic impact not
recognized in the fiscal impact statement if any of the following are
true:
(1) The fiscal impact statement does not completely and correctly state
the costs and benefits to the citizens of the state and to political
subdivisions of the intended action;
(2) The conclusions in the fiscal impact statement as to the cost or
benefit to the state general fund or any state special fund of taking
the intended action are incomplete or incorrect;
(3) An explanation of, or citation to, any federal mandate for the
proposed rule, or how that mandate affects state funds, is incomplete
or incorrect;
(4) The comparison of the cost of the proposed rule with the cost of
any existing rule is incomplete or incorrect; or
(5) The analysis of the general impact of the proposed rule upon any
independently owned business is incomplete or incorrect.
(b) The Committee may object to a proposed rule filed pursuant to RSA
541-A:12 or RSA 541-A:13 as having a substantial economic impact not
recognized in the fiscal impact statement if the agency did not allow
or take into account criticism of the content of the fiscal impact
statement in oral or written testimony when requesting an amended
fiscal impact statement.
Source.
Committee meeting, 11-15-83; 6-21-85; 11-15-91;
9-21-01