Bill Text - HB222 (2012)

(New Title) relative to the specificity of certain statutory provisions granting rulemaking authority.


Revision: Jan. 6, 2012, midnight

HB 222-FN – AS AMENDED BY THE HOUSE

4Jan2012… 2809h

2011 SESSION

11-0354

10/03

HOUSE BILL 222-FN

AN ACT relative to the specificity of certain statutory provisions granting rulemaking authority.

SPONSORS: Rep. Lambert, Hills 27; Rep. L. Jones, Straf 1

COMMITTEE: Executive Departments and Administration

AMENDED ANALYSIS

This bill replaces various statutory provisions containing general rulemaking authority with specific requirements, and repeals the law on ginseng production and sale.

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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

4Jan2012… 2809h

11-0354

10/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eleven

AN ACT relative to the specificity of certain statutory provisions granting rulemaking authority.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Applicability; Rulemaking Authority. Any rule adopted pursuant to RSA 541-A under a statutory provision for rulemaking authority that is repealed by this act shall continue in force and be effective until the rule expires or is amended.

2 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.

3 Rulemaking; 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.

4 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].

5 Rulemaking; 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] The issuance of certificates evidencing the satisfaction of educational and training requirements, including transfer credits and reciprocity, the revocation or suspension of a certificate, the procedures for incidents involving cheating or fraud in obtaining a certificate and the release of criminal or motor vehicle records by a student for purposes of determining qualifications to be appointed as a firefighter.

6 Rulemaking; New Hampshire Mental Health Services System. Amend RSA 135-C:61, XII to read as follows:

XII. [Any other matter necessary to the administration of this chapter] Nursing facility preadmission screening and annual resident review for persons with developmental disabilities or intellectual disabilities.

7 Rules; Brain and Spinal Cord Injuries. Amend RSA 137-K:3, IX to read as follows:

IX. [Any other matter necessary for the administration of this chapter] The protection of the rights, dignity, autonomy, and integrity of persons who have sustained brain and spinal cord injuries, including specific procedures to protect such rights.

8 Rulemaking; New Paragraphs Added; Food Service Licensure. Amend RSA 143-A:9, V to read as follows:

V. [Any other matter necessary to the administration of this chapter]. Standards for licensing food service establishments and retail food stores, including, but not limited to sanitation, physical environment, health and safety, operational changes, and compliance with federal requirements.

VI. Variances for licensing requirements.

VII. Suspension of licenses.

VIII. Trade secrets, complaints, and the confidentiality thereof.

IX. Requirements for bed and breakfast facilities.

X. Requirements for food processing plants.

9 Rules; New Paragraphs Added; Cold Storage. Amend RSA 145:15, V to read as follows:

V. [Any other matter necessary for the administration of this chapter] Application procedure.

VI. Standards for licensing cold storage or refrigerating warehouses, including, but not limited to sanitation, physical environment, health and safety, and operational changes.

VII. Inspections.

VIII. Closure of an establishment.

IX. Suspension of an establishment’s license.

10 Rulemaking; New Paragraphs Added; Human Service. Amend RSA 161:4-a, IX to read as follows:

IX. [Any other matters necessary to implement his duties under RSA 161 or any other law delegating the commissioner rulemaking authority] The implementation of the requirements of federal discretionary grants awarded to the department of health and human services and any other awards received through a successful department of health and human services response to federal requests for applications and requests for proposals.

X. Sections 1902 through 1946 of the Social Security Act, 42 USC section 1396, et seq. that reflect how the Title XIX program will be administered in New Hampshire in order to carry out the purposes of the Title XIX program. Such rules shall be adopted, consistent with the provisions of the Title XIX program, as are necessary for the proper and efficient administration of the Title XIX program in New Hampshire and in conformity with the specific requirements of Title XIX, federal regulations, and other official federal Health and Human Services issuances. Such rules shall include, as applicable, but not be limited to:

(a) Recipient eligibility.

(b) Provider participation requirements.

(c) Types and ranges of services covered and non-covered.

(d) Service limits.

(e) Co-payment requirements.

(f) Prior authorization requirements.

(g) Documentation.

(h) Third party liability.

(i) Utilization review and control.

(j) Payment for services.

(k) Rate setting methodologies.

(l) Administrative and operating procedures such as claim submission requirements, forms, payment limits and adjustments, lock-in, provider suspension and exclusion, board composition, board functions and responsibilities, appeals, dispensing limitations, prescription certifications, documentation retention policies, and informing requirements.

(m) Any other item necessary for proper operation of the title XIX program consistent with efficiency, economy, and quality of care.

11 Rulemaking; Nuclear Decommissioning Financing Committee. 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].

12 Rules; New Paragraphs Added; Agency Liquor Stores. Amend RSA 177:10, VII to read as follows:

VII. [Any other matter necessary for the proper administration of this subdivision.] The definition of terms used in rulemaking for agency liquor stores.

VIII. Operation of agency liquor stores.

IX. Discount and compensation.

X. Closure and vacancy of agency liquor stores.

XI. Advertising and promotion.

XII. Pricing of liquor.

XIII. Selection of agency liquor stores.

XIV. Selection of applicant for agency liquor stores.

XV. Renewal of agency liquor stores.

XVI. Industry interest.

XVII. Applicants, stores and employees.

XVIII. Special seasonal agency liquor stores.

13 Motor Vehicle Equipment Rules. Amend RSA 266:18-d, VI to read as follows:

VI. The commissioner or his 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 pertaining to the procedures for such revocation or suspension and [any other matter necessary to properly administer this section] the application, certification, and inspection process for additional truck weights, as well as procedures to become certified as a vehicle inspector for additional weights.

14 Rules; New Subparagraphs Added; Workers Compensation. Amend RSA 281-A:60, I(s) as follows:

(s) [Any other matter necessary to the enforcement or administration of this chapter.] Pre-approval of medical care benefits under RSA281-A:23.

(t) Adjusted total disability benefits under RSA 281-A:29.

(u) Temporary partial disability benefits at a diminished earning capacity under RSA 281-A:31.

(v) Applications to the special fund under RSA 281-A:30 and RSA 281-A:54.

(w) Claims adjusters under RSA 281-A:63.

(x) Employee incarceration under RSA 281-A:3-a.

(y) Medical examinations under RSA 281-A:38.

(z) Vocational rehabilitation under RSA 281-A:25.

(aa) Lump sum and third-party settlements under RSA 281-A:37 and RSA 281-A:13.

15 Definition; Electrolysis. Amend RSA 314:1, IV to read as follows:

IV. “Electrology” or “electrolysis” means the process by which hair is removed from the normal skin by the application of an electronic current to the hair root by means of a needle or needles, whether the process employs direct electric current or shortwave alternating electric current.

16 Rules; Electrologists Amend RSA 314:8 as follows:

314:8 Rulemaking. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to:

I. The license application form and content, and the license application procedures.

II. The qualifications of applicants for licensure under RSA 314:3.

III. The content and conduct of [a] written and practical competency examinations.

IV. The application form, content and procedure for a renewal or reinstatement of a license to practice electrology, in accordance with RSA 314:5.

V. Reciprocity.

VI. A schedule of fees, in accordance with RSA 314:10.

VII. Ethical and professional standards required to be met by licensees.

VIII. Offices, including structures, equipment, and sanitation including required testing.

IX. The conduct of investigations, in accordance with RSA 314:9.

X. A schedule of administrative fines pursuant to RSA 314:13 for the violation of the provisions of this chapter or rules adopted pursuant to this chapter.

XI. Procedures for notice and hearing prior to denial, suspension or revocation of a license, and the imposition of administrative fines.

XII. Procedures for the handling of complaints.

XIII. Procedures for the approval or denial of an application.

XIV. Procedures for suspension or revocation of a license.

XV. Procedures for appeal of decisions of the commissioner made pursuant to the provisions of this subdivision and rules adopted pursuant to this subdivision.

XVI. Approval of schools of electrology, to include curriculum, equipment, and instructor qualifications.

XVII. [Any other matter necessary to the proper administration of this chapter.] The appointment, qualifications, responsibilities, and requirements of the electrology advisory committee.

XVIII. Office inspections for new licensees.

XIX. Waivers of applicable rules.

17 Rulemaking; Ophthalmic Dispensers. RSA 327-A:12 is repealed and reenacted to read as follows:

327-A:12 Rulemaking. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to:

I. The registration application form and content, and the license application procedures.

II. The application form, content, and procedure for a renewal or reinstatement of a registration to practice ophthalmic dispensing, in accordance with RSA 327-A:3.

III. A schedule of fees, in accordance with RSA 327-A:7.

IV. Ethical and professional standards required to be met by registrants.

V. The conduct of investigations, in accordance with RSA 327-A:11.

VI. A schedule of administrative fines pursuant to RSA 327-A:17 for the violation of the provisions of this chapter or rules adopted pursuant to this chapter.

VII. Procedures for notice and hearing prior to denial, suspension or revocation of a registration, and the imposition of administrative fines.

VIII. Procedures for the handling of complaints.

IX. Procedures for the approval or denial of an application.

X. Procedures for suspension or revocation of a registration.

XI. Procedures for appeal of decisions of the commissioner made pursuant to the provisions of this subdivision and rules adopted pursuant to this subdivision.

XII. Waivers of applicable rules.

XIII. Ophthalmic dispensing to young children, as necessary.

18 Fees; Ophthalmic Dispensers, Amend RSA 372-A:7 as follows:

327-A:7 Application and Registration Fees. Every application for a certificate of registration for ophthalmic dispensing shall be accompanied by a non-refundable registration fee [as determined by the commissioner] of $100. Upon approval of the application by the commissioner, the applicant shall be issued a certificate of registration for ophthalmic dispensing to be valid for 2 years. The fee for renewal of any certificate of registration shall be [determined by the commissioner] $100.

19 Rules; Acupuncture Practice. Amend RSA 328-G:7, XIII to read as follows:

XIII. [Other matters necessary for the proper administration of this chapter.] Requirements relative to student observers and office assistants.

20 Rules; Livestock Events. Amend RSA 436:90, II to read as follows:

II. [Any other matter necessary to the administration of this subdivision.] The drugs, stimulants, or appliances that are prohibited in a livestock event.

21 Rules; New Paragraphs Added; Imported Equines. Amend RSA 436:113, IV to read as follows:

IV. [Other matters necessary to the administration of this subdivision.] The application procedure to establish a quarantine facility.

V. Standards and criteria for an equine quarantine facility.

VI. The application procedure to receive equines that require quarantine.

22 Rules Animal Population Control. Amend RSA 437-A:4, I to read as follows:

I. Any veterinarian licensed in this state may participate in the program established under this chapter. A veterinarian shall file with the commissioner an application on which such veterinarian shall supply, in addition to any other information requested by the commissioner, a fee schedule listing the fees charged for animal sterilization, examination, and the presurgical immunizations specified in RSA 437-A:4, II(b) in the normal course of business. The animal sterilization fee may vary with the animal’s weight, sex and species. The commissioner may, however, disqualify from participation in the program any veterinarian whose fees are deemed unreasonable. A fee shall be determined unreasonable if the fee is more than 20 percent greater than the average fee of all those who have applied to participate in the program for the following calendar year. Any application submitted after January 1 will be judged against the existing average for that calendar year.

23 Rules; Prewrapped Sandwiches. Amend RSA 438:26-b to read as follows:

438:26-b Dating Prewrapped Sandwiches; Rulemaking.

I. 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.

II. The commissioner shall adopt rules under RSA 541-A relative to:

(a) The form of the expiration date [and any other matter necessary for the proper administration of this section].

(b) Definitions, purpose, and scope.

(c) Conduct of inspections of stores and other locations where sandwiches are sold.

(d) Issuance of orders, including stop-removal orders.

(e) Fines for non-compliance not to exceed $600.

(f) Clarity and visibility of label date.

(g) Guidelines on manufacturing date and labeling.

(h) Process for handling complaints.

(i) Establishment of expiration dates and sell by dates.

(j) Establishing waiver procedures from rules requirements.

24 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.

25 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].

26 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 126-I:4, relative to rules for the osteoporosis prevention and education program.

III. RSA 131:5-a, III, relative to the laboratory of hygiene.

IV. RSA 141-A:5-a, V, relative to rules on reporting critical health problems.

V. RSA 141-B:8, IV, relative to rules on chronic disease prevention.

VI. RSA 143:6, II(g), relative to rules on sanitary production and distribution of food.

VII. RSA 161-F:63, III, relative to rules on homemaker services.

VIII. RSA 161-F:75, V, relative to rules on adult in-home care.

IX. RSA 165:35, III, relative to rules for support of assisted persons.

X. RSA 167:83, II(p), relative to rules on employment and family assistance programs.

XI. RSA 270-E:12, XII, relative to rules on vessel registration.

XII. RSA 318:52-c, I(d)(2), relative to rules on sales of hypodermic needles.

XIII. RSA 318-B:24, I(f), relative to rules on controlled drugs.

XIV. RSA 328-A:4, VII, relative to rules on physical therapy practice.

XV. RSA 329:9, XVI, relative to rules on the physicians’ examining board.

XVI. RSA 331-A:22-a, IV(f), relative to rules on cooperative real estate broker agreements.

XVII. RSA 361-D:28, III, relative to rules on motor vehicle leasing.

XVIII. RSA 402:30-a, V, relative to rules on insurance company investments.

XIX. RSA 402-F:11, V, relative to rules on reinsurance intermediaries.

XX. RSA 436:115, II(c), relative to rules on testing of domestic animals.

XXI. RSA 437-A:5, III, relative to rules on animal population control.

25 Repeal. RSA 433-B, relative to ginseng production and sale, is repealed.

26 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 the specificity of certain statutory provisions granting 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.