Revision: Jan. 5, 2012, midnight
HB 222-FN – AS INTRODUCED
2011 SESSION
10/03
HOUSE BILL 222-FN
AN ACT relative to administrative rules which contain a fee increase, allowing political subdivisions to object to a proposed rule, and eliminating certain statutory provisions granting general rulemaking authority.
SPONSORS: Rep. Lambert, Hills 27; Rep. L. Jones, Straf 1
COMMITTEE: Executive Departments and Administration
This bill requires that administrative rules proposed by agencies which increase fees have specific notice of the fee increase in the notice of public hearing and comment, and that the rules containing a fee increase be approved in legislation adopted by the general court before the agency can adopt the final proposed rule. The bill allows political subdivisions to object to a proposed rule if it has substantial economic impact not recognized in the fiscal impact statement or contains an unfunded state mandate. The bill also eliminates provisions in rulemaking statutes which grant general rulemaking authority.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
11-0354
10/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT relative to administrative rules which contain a fee increase, allowing political subdivisions to object to a proposed rule, and eliminating certain statutory provisions granting general rulemaking authority.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Legislative Proceedings; Bills Approving Administrative Rules Containing Fee Increases. Amend RSA 14 by inserting after section 39-a the following new section:
14:39-b Bills Approving Administrative Rules Containing Fee Increases. A bill introduced pursuant to RSA 541-A:14-a for the approval of an administrative rule containing a fee increase may be introduced at any time during the legislative session. Such a bill shall not be placed on the consent calendar of the house of representatives.
2 New Paragraph; Public Hearing and Comment; Administrative Procedures Act. Amend RSA 541-A:11 by inserting after paragraph I the following new paragraph:
I-a. For proposed rules which incorporate a fee determined by the agency pursuant to statutory authority to set a fee by rule, and the proposed rules increase the face amount of the fee, the notice for public hearing and comment under this section shall specifically state that the proposed rule will increase fees.
3 New Paragraph; Administrative Procedures Act; Identification of State Statute. Amend RSA 541-A:3-a by inserting after paragraph III the following new paragraph:
IV. General authority in a rulemaking provision, such as reference to any matter necessary to implement a provision, or like wording, shall not be sufficient authority for the proposed rule, unless the statute granting rulemaking authority includes specific content on the scope of such rules.
4 Review by the Joint Legislative Committee on Administrative Rules; Objection. Amend RSA 541-A:13, IV to read as follows:
IV. The committee [may]shall object to a proposed rule if the rule is:
(a) Beyond the authority of the agency;
(b) Contrary to the intent of the legislature;
(c) Determined not to be in the public interest; or
(d) Objected to by a political subdivision under RSA 541-A:25, IV or deemed by the committee to have a substantial economic impact not recognized in the fiscal impact statement or contain an unfunded state mandate.
5 Final Adoption of Rules; Exception Added. Amend the introductory paragraph of RSA 541-A:14, I to read as follows:
I. Except for rules requiring legislative approval under RSA 541-A:14-a, an agency may adopt a properly filed final proposed rule after:
6 New Section; Rulemaking; Legislative Approval of Rules Increasing Fees. Amend RSA 541-A by inserting after section 14 the following new section:
541-A:14-a Legislative Approval of Rules Increasing Fees. Notwithstanding any provision of law to the contrary, any final proposed administrative rule which incorporates an increase in the face amount of a fee determined by the agency pursuant to statutory authority to set a fee by rule, shall not be subject to final adoption by the agency until the fee increase is approved in legislation adopted by the general court. The agency may adopt the rule upon passage of the legislation.
7 New Paragraph; Rulemaking; Unfunded State Mandates; Objection to Rule. Amend RSA 541-A:25 by inserting after paragraph III the following new paragraph:
IV. A political subdivision of the state, by or through its governing body or the designated agent of its governing body, which determines that a proposed agency rule violates the provisions of this section may file an objection to such rule with the committee.
8 General Rulemaking; Mining and Reclamation. Amend RSA 12-E:2, VIII(g) and VIII-a to read as follows:
[(g) Matters deemed necessary pursuant to paragraph VIII-a. ]
VIII-a. Confer with the commissioner of the department of environmental services relative to the requirements needed to protect the environment from the effects of prospecting, mining, and reclamation activities, and, to the extent the [rulemaking authority of the department of environmental services] law is considered inadequate to address environmental or public health concerns [that], the commissioner and the commissioner of the department of environmental services [agree are necessary to protect the environment or public health, adopt such rules] shall propose legislation addressing the concerns.
9 Rules; Wireless Service Facilities. Amend RSA 12-K:9 to read as follows:
12-K:9 Rulemaking. The director of the office of energy and planning, after holding a public hearing, shall adopt rules under RSA 541-A [as necessary to implement this act and] to provide sufficient information to municipalities, other state agencies, wireless companies doing business or seeking to do business in this state, and the public.
10 Rules; Equalization Standards Board. Amend RSA 21-J:14-d, V to read as follows:
V. The board shall adopt rules pursuant to RSA 541-A, with specific attention to RSA 541-A:25 prohibiting unfunded state mandates, relative to the organization of and the practices and procedures of the board[, and other rules necessary to fulfill the duties of the board].
11 Rules; Fire Standards and Training. Amend RSA 21-P:27, I(e) to read as follows:
(e) [Matters necessary for the proper administration of the commission, including] The issuance of certificates evidencing the satisfaction of educational and training requirements.
12 Rules; Nuclear Decommissioning. Amend RSA 162-F:15-a to read as follows:
162-F:15-a Rulemaking. The committee shall adopt rules under RSA 541-A relative to the conduct of hearings under RSA 162-F:21 [and such other matters necessary to provide assurance of adequate funding for decommissioning as provided under this chapter].
13 Motor Vehicle Equipment Rules. Amend RSA 266:18-d, VI to read as follows:
VI. The commissioner or his or her designee may revoke or suspend any additional registration granted pursuant to paragraph V of any vehicle or vehicles which are being driven in violation of the limits established by RSA 266:18-b or any other provision of law as evidenced by a record of such violations. The commissioner shall adopt rules pursuant to RSA 541-A relative to the procedures for such revocation or suspension [and any other matter necessary to properly administer this section].
14 Rules; Prewrapped Sandwiches. Amend RSA 438:26-b to read as follows:
438:26-b Dating Prewrapped Sandwiches. It shall be unlawful for any person, otherwise subject to inspection under this chapter, to make for sale, sell, offer to sell, or procure to be sold any type of prewrapped sandwich, unless each such sandwich is enclosed in a wrapper bearing an expiration date beyond which the sandwich shall not be sold. This section shall not apply to sandwiches intended or expected to be consumed within 36 hours after wrapping. The commissioner shall adopt rules under RSA 541-A relative to the form of the expiration date [and any other matter necessary for the proper administration of this section].
15 Medical Utilization Review. RSA 420-E:7, XII is repealed and reenacted to read as follows:
XII. Additional standards for licensure of medical utilization review entities under RSA 420-E:3, II.
16 Rules; Wolf Hybrids. Amend RSA 466-A:5-a to read as follows:
466-A:5-a Rulemaking Authority. The commissioner of agriculture, markets, and food shall adopt rules, under RSA 541-A, relative to standards for confinement and control under RSA 466-A:5 [and any other matter necessary for the administration of this chapter].
17 Repeal. The following rulemaking provisions granting general rulemaking authority are repealed:
I. RSA 10-B:3, I(c) and III(d), relative to rules on clean indoor air in state buildings.
II. RSA 131:5-a, III, relative to rules on laboratory of hygiene.
III. RSA 135-C:61, XII, relative to rules on mental health services.
IV. RSA 137-K:3, IX, relative to rules on brain and spinal cord injury.
V. RSA 141-A:5-a, V, relative to rules on reporting critical health problems.
VI. RSA 141-B:8, IV, relative to rules on chronic disease prevention.
VII. RSA 143:6, II(g), relative to rules on sanitary production and distribution of food.
VIII. RSA 143-A:9, V, relative to rules on food service licensure.
IX. RSA 145:15, V, relative to rules on cold storage.
X. RSA 160-B:8, VI, relative to rules on fireworks.
XI. RSA 161:4-a, IX, relative to rules on human services.
XII. RSA 161-F:63, III, relative to rules on homemaker services.
XIII. RSA 161-F:75, V, relative to rules on adult in-home care.
XIV. RSA 165:35, III, relative to rules for support of assisted persons.
XV. RSA 167:83, II(p), relative to rules on employment and family assistance programs.
XVI. RSA 177:10, VII, relative to rules for agency liquor stores.
XVII. RSA 270-E:12, XI, relative to rules on vessel registration.
XVIII. RSA 281-A:60, I(s), relative to rules on workers’ compensation.
XIX. RSA 314:8, XVII, relative to rules on electrologists.
XX. RSA 318:52-c, I(d)(2), relative to rules on sales of hypodermic needles.
XXI. RSA 318-B:24, I(f), relative to rules on controlled drugs.
XXII. RSA 327-A:12, IV, relative to rules on ophthalmic dispensing.
XXIII. RSA 328-A:4, VII, relative to rules on physical therapy practice.
XXIV. RSA 328-G:7, XIII, relative to rules on acupuncture practice.
XXV. RSA 329:9, XVI, relative to rules on the physicians’ examining board.
XXVI. RSA 331-A:22-a, IV(f), relative to rules on cooperative real estate broker agreements.
XXVII. RSA 361-D:28, III, relative to rules on motor vehicle leasing.
XXVIII. RSA 402:30-a, V, relative to rules on insurance company investments.
XXIX. RSA 402-F:11, V, relative to rules on reinsurance intermediaries.
XXX. RSA 433-B:5, IV, relative to rules ginseng production.
XXXI. RSA 436:90, II, relative to rules on livestock events.
XXXII. RSA 436:113, IV, relative to rules on imported equines.
XXXIII. RSA 436:115, II(c), relative to rules on testing of domestic animals.
XXXIV. RSA 437-A:5, III, relative to rules on animal population control.
18 Effective Date. This act shall take effect 60 days after its passage.
LBAO
11-0354
Revised 01/27/11
HB 222 FISCAL NOTE
AN ACT relative to administrative rules which contain a fee increase, allowing political subdivisions to object to a proposed rule, and eliminating certain statutory provisions granting general rulemaking authority.
FISCAL IMPACT:
The Legislative Branch states this bill will have an indeterminable fiscal impact on state, county, and local revenues and expenditures in FY 2011 and each fiscal year thereafter.
METHODOLOGY:
The Legislative Branch states this bill requires that agencies’ proposed administrative rules which increase fees note the increase in the notice of public hearing and requires rules containing a fee increase be approved in legislation. This bill also allows political subdivisions to object to proposed rules if there is a substantial fiscal impact not noted in the fiscal impact statement or contains an unfunded mandate, and eliminates provisions in rulemaking statutes which grant general rulemaking authority.
The Legislative Branch states historically rulemaking has taken place year-round, regardless of the legislative calendar. However, the requirement to have rules containing a fee increase be approved in legislation may result in a delay depending on the time of year in which the agency commences the rule-making process, whether the legislature is in session at that time, and when or whether the bill is introduced. The Branch states this bill will delay adoption of the proposed rule containing a fee increase, not just the fee increase. Any delay could impact the state’s ability to meet compliance with federal law which may, in turn, impact state federal revenues and expenditures. Additionally, some agencies are required by statute to generate 125 percent of their operating expenses by fee increases and whether fees must be increased depends on the expenses of each agency from year to year. The Branch states revenue from fees establishes in rules generally go to the general fund; however, the fiscal impact cannot be estimated because there is no typical year for regular rules containing state agency fee increases. Finally, the Branch states to the extent fee increases or other sections in rules affect county and local revenues or expenditures, this bill may have an indeterminable fiscal impact on county and local revenues or expenditures. However, the exact fiscal impact cannot be determined at this time.