Revision: Jan. 13, 2009, midnight
HB 297 – AS INTRODUCED
2009 SESSION
10/01
HOUSE BILL 297
AN ACT relative to the adoption of agency forms and other rules under the administrative procedures act.
SPONSORS: Rep. Patten, Carr 4; Rep. Pilotte, Hills 16
COMMITTEE: Executive Departments and Administration
This bill establishes a procedure for the expedited adoption of forms by agencies and the review by the joint legislative committee on administrative rules. The bill also requires the submission of a legislative history of the authority for a proposed rule and clarifies the non-expiration of certain rules.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
09-0325
10/01
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to the adoption of agency forms and other rules under the administrative procedures act.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Administrative Procedure Act; Definition of Rule; Exclusion of Forms Removed. Amend RSA 541-A:1, XV to read as follows:
XV. “Rule” means each regulation, standard, or other statement of general applicability adopted by an agency to (a) implement, interpret, or make specific a statute enforced or administered by such agency or (b) prescribe or interpret an agency policy, procedure or practice requirement binding on persons outside the agency, whether members of the general public or personnel in other agencies. The term does not include (a) internal memoranda which set policy applicable only to its own employees and which do not affect private rights or change the substance of rules binding upon the public, (b) informational pamphlets, letters, or other explanatory material which refer to a statute or rule without affecting its substance or interpretation, (c) personnel records relating to the hiring, dismissal, promotion, or compensation of any public employee, or the disciplining of such employee, or the investigating of any charges against such employee, or (d) declaratory rulings[, or (e) forms]. The term “rule” shall include rules adopted by the director of personnel, department of administrative services, relative to the state employee personnel system. Notwithstanding the requirements of RSA 21-I:14, the term “rule” shall not include the manual described in RSA 21-I:14, I or the standards for the format, content, and style of agency annual and biennial reports described in RSA 21-I:14, IX, which together comprise the manual commonly known as the administrative services manual of procedures. The manual shall be subject to the approval of governor and council.
2 New Section; Expedited Adoption of Forms. Amend RSA 541-A by inserting after section 19-a the following new section:
541-A:19-b Expedited Adoption of Forms. An agency may adopt a form by incorporation by reference or by inclusion of the complete form in its rules adopted according to the procedures in this chapter. Editorial changes to a form shall be submitted to the committee prior to their use by the agency. Alternatively, an agency may adopt a form, where the changes to the form are substantive and not editorial, without meeting the requirements of RSA 541-A:5-7 and RSA 541-A:9-14, provided the form has been approved by the official or group with rulemaking authority, and by providing notice and adopting the form as follows:
I. Notice of an agency’s intent to adopt a form or amendment to a form shall include:
(a) The name and address of the agency.
(b) The statutory authority for the form.
(c) An explanation of the reason for the proposed adoption or amendment of a form.
(d) The name, address, electronic address, and telephone number of an individual in the agency able to answer questions about the proposed form.
II. The notice required by paragraph I shall be:
(a) Published in the rulemaking register and in a newspaper of daily statewide circulation.
(b) Filed with the director of legislative services no later than 7 calendar days before the date of publication in the rulemaking register.
(c) Published in a newspaper of daily statewide circulation no later than the date of publication in the rulemaking register.
III. At the same time that the notice required by paragraph II is filed, the agency shall file the form to be adopted with the director of legislative services.
IV. There shall be a period for the submission to the agency of written or electronic public comment ending on the 7th calendar day after the date of the publication in the rulemaking register.
V. If on the basis of public comment the official or the group of individuals with rulemaking authority determines that the form should not be adopted, the agency shall so notify the director of legislative services and the form shall not be adopted.
VI. The proposed form shall be placed on the agenda of the committee for review at the first regularly scheduled or special meeting at least 5 calendar days after the close of the period for written or electronic comment described in paragraph IV. The committee may approve or object to the form. The committee may object to the adoption if the form is:
(a) Beyond the authority of the agency;
(b) Contrary to the intent of the legislature; or
(c) Deemed by the committee not to meet the requirements of this section.
VII. If the committee objects to the adoption, the form shall not be adopted. The committee’s objection shall not preclude the agency from adopting the form by meeting the requirements of RSA 41-A:3.
VIII. If the committee approves the adoption, the agency may adopt the form and file a statement of the adoption with the director of legislative services. The form shall be effective as of 12:01 a.m. on the day after filing of the statement or as of 12:01 a.m. on the date specified by the agency, or such other date and time as specified, provided that the filing occurs before such effective date and time
IX. No changes to agency forms shall be made by the agency, other than editorial changes not affecting the substance of the form, without following the procedures required in this section
3 New Subparagraph; Notice of Rulemaking Proceedings; Legislative History. Amend RSA 541-A:6, I by inserting after subparagraph (j) the following new subparagraph:
(k) Any proposed legislation introduced within the previous 4 years which would have affected the subject or the rulemaking authority for the proposed rule.
4 Time Limit; Non-Expiration or Certain Rules. Amend RSA 541-A:17, II to read as follows:
II. Notwithstanding the provisions of paragraph I, the rules proposed and adopted pursuant to RSA 541-A:16, I(a), (b)(2), (b)(3), (c), and (d) shall not expire, provided that they have been approved by the committee. In addition, rules on practices and procedures for complaints, investigations, alternative dispute resolution or settlement procedures, explanations of rules after final adoption, waiver procedures for substantive rules, and procedures for determining confidentially of documents, shall not expire, provided that they have been approved by the committee. No changes to such rules may be made by the agency, other than editorial changes not affecting the substance of the rules, without following the rulemaking procedures required in this chapter. However, if the adoption or amendment of a statute governing the agency renders the agency’s rules [under RSA 541-A:16, I(a), (b)(2), (b)(3), (c), or (d)] described in this paragraph no longer accurate, such rules shall expire one year after the effective date of the statute that makes such change, unless such rules are amended, superseded, or repealed before such expiration. The agency shall commence rulemaking to amend its rules no later than 90 days after the effective date of such statute If the agency reorganizes its organization and responsibilities in such a way that the agency’s rules under RSA 541-A:16, I(a) describing its organization are no longer accurate, the agency shall amend its rules as soon as is practicable, but shall commence rulemaking not later than 90 days after such changes occur.
5 Effective Date. This act shall take effect 60 days after its passage.