Revision: Dec. 3, 2019, 8:37 a.m.
HB 1407 - AS INTRODUCED
2020 SESSION
20-2182
05/10
HOUSE BILL 1407
AN ACT relative to adopting rules relative to departmental forms.
SPONSORS: Rep. Hatch, Coos 6; Rep. P. Schmidt, Straf. 19; Rep. McGuire, Merr. 29; Sen. Reagan, Dist 17
COMMITTEE: Executive Departments and Administration
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ANALYSIS
This bill revises the rulemaking requirements for forms under the administrative procedure act.
The bill is a request of the joint legislative committee on administrative 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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
20-2182
05/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty
AN ACT relative to adopting rules relative to departmental forms.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Administrative Procedure Act; Definition of Form. Amend RSA 541-A:1, VII-a to read as follows:
VII-a. "Form" means a document, whether in hardcopy, electronic format, or both that [establishes] specifies a requirement for persons outside the agency to provide information to an agency in blank spaces on the document and the format in which such information must be submitted. The term does not include any document, regardless of what the document is called, that (a) is provided by an agency to facilitate the submission of information that is also required to be submitted to the agency by federal or state statute, regulation, or rule and does not add to or modify such requirement or (b) that is used only by the agency to provide information to persons outside the agency. Notwithstanding (a), if the requirements for information on a form have been proposed or adopted pursuant to RSA 541-A:19-b, the form does not become an exception to a form in (a) as a document that facilitates the submission of information, but remains subject to RSA 541-A:8 as a form and the option of the expedited procedure to revise a form in RSA 541-A:19-c.
2 Administrative Procedure Act; Definition of Rule. Amend RSA 541-A:1, XV to read as follows:
XV. "Rule" means each regulation, standard, requirements on a form as defined in paragraph VII-a, 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. 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.
3 Drafting and Procedure Manual. Amend RSA 541-A:8 to read as follows:
541-A:8 Drafting and Procedure Manual. Each agency shall conform to a drafting and procedure manual for rules, including the format of agency forms, and the requirements on the forms, developed by the director of legislative services and the commissioner of administrative services, subject to amendment and final approval by the committee. The director may require any agency to rewrite any rule, including [any agency form] requirements as specified on agency forms, submitted for filing to conform to this manual until that rule is adopted and filed under RSA 541-A:14 or RSA 541-A:19 or the form is adopted pursuant to RSA 541-A:19-b.
4 Public Hearing and Comment. Amend RSA 541-A:11, I(a) to read as follows:
I.(a) Each agency shall hold at least one public hearing on all proposed rules filed pursuant to RSA 541-A:3 and shall afford all interested persons reasonable opportunity to testify and to submit data, views, or arguments in writing or, if practicable for the agency, in electronic format, in accordance with the terms of the notice filed pursuant to RSA 541-A:3, I and the provisions of this section. The office of legislative services shall provide oral or written comments on potential bases for committee objection under RSA 541-A:13, IV in a form and manner determined by the director of the office of legislative services. Each agency shall require all materials submitted in writing to be signed by the person who submits them, and the agency shall transfer to hard copy, if practicable for the agency, all materials submitted as diskette, electronic mail, or other electronic format. Copies of the proposed rule and of any new or amended form, or screen shots of an electronic form, which the rule incorporates by reference or whose requirements are set forth in the rule pursuant to RSA 541-A:19-b, shall be available to the public under RSA 91-A and at least 5 days prior to the date of the hearing.
5 New Paragraph; Filing of Final Proposal. Amend RSA 541-A:12 by inserting after paragraph II the following new paragraph:
II-a. The agency shall file with the final proposal a copy of any related new or amended form, or screen shots of an electronic form, which has been incorporated by reference in the final proposed rule or whose requirements are set forth in the final proposed rule pursuant to RSA 541-A:19-b.
6 Review by the Joint Legislative Committee on Administrative Rules; Basis for Objection. Amend RSA 541-A:13, IV(c) to read as follows:
(c) Determined not to be in the public interest, including the existence of substantive inconsistencies between a form and the rule where the form is incorporated by reference or which sets forth the requirements of the form, pursuant to RSA 541-A:19-b; or
7 Final Adoption. Amend RSA 541-A:14, III to read as follows:
III. The agency shall file [all adopted rules] with the director of legislative services all adopted rules and any new or amended form, or screen shots of an electronic form, which the rules incorporate by reference or the requirements for which are set forth in the rule pursuant to RSA 541-A:19-b.
8 New Paragraph; Interim Rules. Amend RSA 541-A:19 by inserting after paragraph IV the following new paragraph:
IV-a. The agency shall file with the proposed interim rule a copy of any related new or amended form, or screen shots of an electronic form, which has been incorporated by reference in the proposed interim rule or whose requirements are set forth in the proposed interim rule pursuant to RSA 541-A:19-b.
9 Interim Rules; Basis for Objection. Amend RSA 541-A:19, VII(c) to read as follows:
(c) Determined not to be in the public interest, including the existence of substantive inconsistencies between a form and the rule where the form is incorporated by reference or which sets forth the requirements of the form, pursuant to RSA 541-A:19-b; or
10 Interim Rules. Amend RSA 541-A:19, X to read as follows:
X. No proposed interim rule shall be adopted unless the committee has voted to approve the proposed interim rule or conditionally approve the proposed interim rule, provided that the committee legal counsel has sent written confirmation to the agency pursuant to RSA 541-A:19, VIII(b). An adopted interim rule, and any new or amended form, or screen shots of an electronic form, which the rule incorporates by reference or the requirements for which are set forth in the rule pursuant to RSA 541-A:19-b, shall be filed with the director of legislative services no later than 30 days following committee approval or conditional approval. An interim rule shall be effective under RSA 541-A:16, III on the day after filing with the director of legislative services, or at a later date, provided the agency so specifies in a letter to the director of legislative services and the effective date is within 30 days following committee approval or conditional approval. Interim rules shall be effective for a period not to exceed 180 days. During the time an interim rule shall be in effect, the agency may propose a permanent rule to replace the interim rule once it expires, but it shall not adopt another interim rule to replace the expiring interim rule.
11 Adoption of Forms. Amend RSA 541-A:19-b to read as follows:
541-A:19-b Adoption of Forms. An agency may adopt the requirements that meet the definition of a "rule" in RSA 541-A:1, XV, and which are specified on a form as defined in RSA 541-A:1, VII-a, either by incorporating the actual form by reference in a rule, or by setting forth the requirements of the form in rules, adopted according to the procedures in this chapter and in compliance with the drafting and procedure manual pursuant to RSA 541-A:8. No requirement on a form shall be effective and enforceable pursuant to RSA 541-A:22, I unless the requirements have been adopted in accordance with this chapter.
12 Revisions to Forms; Expedited Procedure. Amend RSA 541-A:19-c to read as follows:
541-A:19-c Revisions to Forms; Expedited Procedure.
I. An agency may make editorial changes to a previously adopted form without following the procedures required in RSA 541-A:19-b, in this section, or in RSA 541-A:3, but shall notify the office of legislative services of any proposed editorial changes in accordance with the drafting and procedure manual pursuant to RSA 541-A:8.
II. An agency may revise [a form as defined in RSA 541-A:1, VII-a without meeting the requirements of RSA 541-A:5-7] substantively the requirements on a previously adopted form as defined in RSA 541-A:1, VII-a, and amend the relevant provisions in the rule which set forth the requirements of the form or incorporate the form by reference pursuant to RSA 541-A:19-b, without meeting the requirements of RSA 541-A:5, RSA 541-A:6, and RSA 541-A:9-14 [either in accordance with RSA 541-A:19-b or] by providing notice and adopting the form in accordance with paragraphs III through VII.
III. Notice of an agency's intent to [adopt a form or amendment to a form] amend a form and amend the relevant, affected rule shall include:
(a) The name and address of the agency.
(b) The statutory authority for the form.
(c) The rule number and title of the affected rule to be amended, and whether the action is an amendment or readoption with amendment of the rule as described in the drafting and procedure manual pursuant to RSA 541-A:8.
(d) An explanation of the reason for the proposed [adoption or] amendment of a form and a summary of the existing, affected rule and the proposed amendment to the form and the rule.
[(d)] (e) The name, address, electronic address, and telephone number of an individual in the agency able to answer questions about the proposed form.
[(e)] (f) The deadline for receipt by the agency of written or electronic public comment, which shall be no sooner than the 7th calendar day after the date of publication of the notice in the rulemaking register.
III-a. The amended rule to be filed shall not encompass more than a full rules section, as described in the drafting and procedure manual, and neither the amended form nor the amended rule shall have a fiscal impact which would otherwise require a fiscal impact statement pursuant to RSA 541-A:5.
IV. The agency shall file a copy of the amended form, the amended rule including an appendix pursuant to RSA 541-A:3-a, and the notice required by paragraph III [shall be filed] with the director of legislative services, [for publication] who shall publish the notice in the rulemaking register. [A copy of the form to be adopted shall be filed with the notice.]
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 and 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 III(e). The committee may approve or object to the form. The committee may object to the adoption of the form and the affected rule if the form is:
(a) Beyond the authority of the agency;
(b) Contrary to the intent of the legislature; [or]
(c) Deemed not to be in the public interest, including the existence of substantive inconsistencies between the form and the rule where the form is incorporated by reference or which set forth the requirements of the form pursuant to RSA 541-A:19-b; or
(d) Deemed by the committee not to meet the requirements of this section.
VII. Subsequent review and adoption of the form and the affected rule shall be as provided in RSA 541-A:13 for final proposed rules.
13 Validity of Rules. Amend RSA 541-A:22, I to read as follows:
I. No agency rule, including a requirement on a form, 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 as required in this chapter and has not expired.
14 Effective Date. This act shall take effect 60 days after its passage.