Revision: Nov. 13, 2017, 12:39 p.m.
HB 1648 - AS INTRODUCED
2018 SESSION
18-2616
10/05
HOUSE BILL 1648
AN ACT relative to review by the joint legislative committee on administrative rules.
SPONSORS: Rep. Danielson, Hills. 7
COMMITTEE: Executive Departments and Administration
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ANALYSIS
This bill requires ratification of a final rule adopted by an agency under the administrative procedures act by passage of legislation within 18 months and by the end of the subsequent legislative session in order to extend the effectiveness of the rule.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
18-2616
10/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
AN ACT relative to review by the joint legislative committee on administrative rules.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Administrative Procedures Act; Legislative Ratification of Rules. Amend RSA 541-A by inserting after section 13 the following new section:
541-A:13-a Legislative Ratification of Rules. An agency shall adopt rules as authorized by law only to the extent it deems such rules are necessary to enforce the laws adopted by the legislature, provided they are approved by the committee under RSA 541-A:13 and ratified as follows:
I. A rule adopted by an agency after review by the committee as provided in RSA 541-A:13, which is subject to the time limits in RSA 541-A:17, I, shall expire at the end of an 18-month period following the date of adoption of the rule, notwithstanding the rule's effective date, unless it is ratified by appropriate legislation. The 18-month period may be extended to the full time limit only if such legislation becomes law during the current or subsequent annual legislative session or 18 months after the date the final rule was adopted by the agency, whichever occurs first.
II. Any rule which is not ratified as provided in paragraph I may be proposed again by the agency but shall not become effective unless approved by the committee and ratified by legislation.
III. No agency shall enforce any rule after the period described in paragraph I unless ratified. Nothing in this section shall prevent the legislature from adopting other legislation affecting the subject of the rule or the agency.
IV. Notwithstanding any house or senate rules to the contrary, legislation to ratify rules may be introduced at any time during the legislative session. Such legislation shall be subject to the same rules as any other bill introduced at the beginning of the legislative session.
2 New Subparagraph; Administrative Procedure Act; Procedure for Adoption. Amend RSA 541-A:3 by inserting after subparagraph VII the following new subparagraph:
VIII. Obtaining approval of the legislature for the extension of the expiration of the rule beyond 18 months as required in RSA 541-A:13-a.
3 Review by the Joint Legislative Committee on Administrative Rules; Final Objection. Amend RSA 541-A:13, VI to read as follows:
VI. After a final objection by the committee to a provision in the rule is filed with the director under subparagraph V(f), the [burden of proof shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or a portion of the] rule objected to shall be invalid and shall not take effect. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.
4 Final Adoption. Amend RSA 541-A:14, I to read as follows:
I. An agency may adopt a properly filed final proposed rule after:
(a) The passage of 45 days from filing of a final proposal under RSA 541-A:12, I, or 60 days from filing under RSA 541-A:12, I-a, without receiving notice of objection from the committee;
(b) Receiving approval from the committee;
(c) Written confirmation is sent to the agency by committee legal counsel relative to agency compliance with the committee's conditional approval pursuant to RSA 541-A:13, V(a); or
(d) Passage of the 50-day period for committee review of the preliminary objection response, or revised objection response, if applicable[, provided that the committee has not voted to sponsor a joint resolution pursuant to RSA 541-A:13, VII; or
(e) Final legislative action, as defined in RSA 541-A:1, VI-a, is taken on the joint resolution sponsored pursuant to RSA 541-A:13, VII(b) or the passage of the 90 consecutive calendar days specified by RSA 541-A:13, VII(c), whichever occurs first].
5 Filing of Rule; Reference to Ratification. Amend RSA 541-A:16, III to read as follows:
III. A rule shall become effective as of 12:01 a.m. on the day after the filing of the adopted rule or as of 12:01 a.m. on the date specified by the agency pursuant to RSA 541-A:14, IV, RSA 541-A:14-a, III, or RSA 541-A:19, X, or such other date and time as specified, provided that filing occurs before such effective date and time. Except as provided in RSA 541-A:14-a, a rule adopted under RSA 541-A:14, IV, which has been ratified by legislation as required in RSA 541-A:13-a, shall expire after the last day of the tenth year following its becoming effective, unless sooner amended, readopted, or repealed.
6 Time Limit; Expiration. Amend RSA 541-A:17, I to read as follows:
I. No rule which has been ratified by legislation as required in RSA 541-A:13-a, shall be effective for a period of longer than 10 years except as extended pursuant to RSA 541-A:14-a, but the agency may adopt an identical rule under RSA 541-A:5 through RSA 541-A:14-a, in conformance with the drafting and procedure manual adopted under RSA 541-A:8.
7 Expedited Amendment; References Deleted. Amend RSA 541-A:19-d, VII and VIII to read as follows:
VII. The amended rule 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 subparagraph II(g). The committee may approve, conditionally approve, or object to the amended rule pursuant to RSA 541-A:13, [V-VII] V-VI. The committee may object to the amended rule if the rule is:
(a) Beyond the authority of the agency;
(b) Contrary to the intent of the legislature;
(c) Deemed not to be in the public interest; or
(d) Deemed by the committee not to meet the requirements of paragraph I.
VIII. Subsequent review and adoption of the amended rule shall be as provided in RSA 541-A:13, [V-VII] V-VI and RSA 541-A:14 as for final proposed rules.
8 Validity of Rules. Amend RSA 541-A:22, I and II to read as follows:
I. No agency rule is valid or effective against any person or party, nor may it be enforced by the state for any purpose, until it has been filed, reviewed and approved by the committee, and ratified by the legislature as required in this chapter and has not expired.
II. Rules shall be valid and binding on persons they affect, and shall have the force of law unless they have expired or have been amended or revised or unless a court of competent jurisdiction determines otherwise. [Except as provided by RSA 541-A:13, VI,] Valid, effective rules shall be prima facie evidence of the proper interpretation of the matter that they refer to.
9 Repeals. The following are repealed:
I. RSA 541-A:1, VI-a, relative to the definition of final legislative action.
II. RSA 541-A:13, VII, relative to the alternative to objection by the committee and sponsorship of a joint resolution.
10 Effective Date. This act shall take effect 60 days after its passage.