Revision: Dec. 24, 2019, 9:46 a.m.
SB 544 - AS INTRODUCED
2020 SESSION
20-3011
05/10
SENATE BILL 544
AN ACT relative to the filing of administrative rules by state agencies.
SPONSORS: Sen. Reagan, Dist 17; Rep. Hatch, Coos 6; Rep. McGuire, Merr. 29; Rep. P. Schmidt, Straf. 19
COMMITTEE: Executive Departments and Administration
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ANALYSIS
This bill makes various changes to the filing process for administrative rules under RSA 541-A.
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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
20-3011
05/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty
AN ACT relative to the filing of administrative rules by state agencies.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Administrative Procedure Act; Definition of Electronic Document and File. Amend RSA 541-A:1, V-a and VI to read as follows:
V-a. "Electronic document" means a document which complies with requirements prescribed by the director for filing under paragraph VI and established in the drafting and [procedures] procedure manual under RSA 541-A:8. For electronic documents, a requirement during the rulemaking process for a signature accompanying the filing of an electronic document shall be met if such signature complies with the requirements of RSA 294-E.
VI. "File" means the actual receipt, by the director of legislative services, of a [paper or electronic] document required to be submitted during a rulemaking process established by this chapter, under the terms and in the format prescribed by the director. The term "file" shall also apply to any other response, submission, or written explanation required during a rulemaking process established by this chapter.
2 Administrative Procedure Act; Notice of Rulemaking Proceedings. Amend RSA 541-A:6, II to read as follows:
II. The director of legislative services may refuse to publish a notice if the director determines that [there is significant noncompliance with the requirements of paragraph I. In this paragraph, "significant noncompliance" means one or more errors of such magnitude that a reasonable person would not be able to discern what rules are the subject of the rulemaking proceeding and/or what the agency is proposing to do. The term includes the absence of elements required by paragraph I] the notice does not conform to the requirements of the drafting and procedure manual under RSA 541-A:8.
3 Administrative Procedure Act; Rulemaking Register. Amend RSA 541-A:9, I-a to read as follows:
I-a. Prior to publication [and with prior notice to the agency], the director of legislative services may correct clarity, formatting, typographical, spelling, and punctuation errors, as well as unintentional errors in references and citations in a submission[, provided the corrections do not affect the substance of the notice]. Consistent with RSA 541-A:6, II, the director shall notify the agency prior to publication of the notice of any amendments made to the notice and may set a deadline for agency comment on the amendments.
4 Administrative Procedure Act; Filing of Proposed Rule Tex; Establishing and Revising Text. Amend RSA 541-A:10, I to read as follows:
I. At the same time the notice required by RSA 541-A:6, I is filed, the agency shall file the text of the proposed rule with the director of legislative services. The text of each proposed rule filed shall encompass at least a full rules section. The text of the proposed rules as filed by the agency pursuant to RSA 541-A:3, III shall not be changed prior to the hearing held pursuant to RSA 541-A:11, I(a).
5 Administrative Procedure Act; Filing the Final Proposal. Amend RSA 541-A:12, I and I-a to read as follows:
I. After fully considering public comment and any committee comments or comments by the office of the legislative services received pursuant to RSA 541-A:11, and any other relevant information, a quorum of the members of the agency or the agency official having rulemaking authority shall establish the text of the final proposed rule. After the text of the final proposed rule has been established, the agency shall file the final proposal no earlier than 21 days and no later than [150] 180 days after the date of publication of the notice in the rulemaking register. [If an agency is required to rewrite a rule in accordance with RSA 541-A:8, the agency shall have up to 180 days after the date of publication of the notice in the rulemaking register to file the final proposal.] The agency shall file the final proposal with the director of legislative services. Final proposals filed no later than [14] 21 days before a regularly scheduled committee meeting shall be placed on the agenda for that meeting. Final proposals filed fewer than [14] 21 days before a regularly scheduled committee meeting shall be placed on the agenda of the following regularly scheduled committee meeting.
[I-a. If an agency chooses to receive and respond to comments before the committee meeting as specified in RSA 541-A:13, II(a) and (b), the agency shall file the final proposal with a request that the final proposal be reviewed by the office of legislative services and placed on the agenda for the next regularly scheduled committee meeting or special meeting that is at least 28 days but no more than 60 days after the date that the final proposal is filed. The final proposal and request shall be filed at least 14 days prior to the first regularly scheduled committee meeting at which the request may be considered. The committee shall notify the agency in writing of its approval or denial of the request.]
6 Administrative Procedure Act; Review by the Joint Legislative Committee on Administrative Rules. Amend RSA 541-A:13, I-V(a) to read as follows:
I. The committee shall either approve the rule or enter a conditional approval or objection under paragraph V within [45] 60 days of the filing of a final proposal under RSA 541-A:12, I, unless the deadline is waived for good cause pursuant to RSA 541-A:40. [The committee shall either approve the rule or enter a conditional approval or objection under paragraph V within 60 days of the filing of a final proposal under RSA 541-A:12, I-a, unless the deadline is waived for good cause pursuant to RSA 541-A:40.] Objections to a rule may be made only once. The committee may not add or amend rounds for objection after a preliminary objection is made under paragraph V unless the agency's response to the objection creates the grounds or the agency requests a revised objection which includes them.
II.(a) If an agency has filed a final proposal [and the committee has granted the agency's request, pursuant to RSA 541-A:12, I-a], the director of legislative services shall notify the agency of any potential bases for committee objection identified by the office of legislative services by forwarding a copy of the final proposal with the counsel's comments noted thereon [at least 14 days prior to the committee meeting at which the proposal will be considered].
(b) In response to the comments, or for other reasons in lieu of requesting a preliminary objection, an agency may then file a [proposed amended final proposal] request for conditional approval with the director for review by the committee and request that the committee conditionally approve the rule [as amended] with an amendment. Both the request and the amendment shall be in writing and shall be filed at least 7 days prior to the regularly scheduled meeting or special meeting for which the final proposal has been placed on the agenda. An agency may request a waiver pursuant to RSA 541-A:40, IV of the 7-day deadline for good cause as established in the drafting and procedure manual under RSA 541-A:8, but the committee may for compelling reasons under the committee's rules pursuant to RSA 541-A:2, II accept a request for a conditional approval in the meeting under paragraph V.
(c) The committee may:
(1) Approve the rule as originally filed; or
(2) [Approve the rule with amendment; or
(3)] Act under paragraph V.
(d) If the committee approves the rule as filed pursuant to RSA 541-A:12, [or with amendment,] it shall notify the agency in writing of its approval.
(e) Failure to give notice of either approval, conditional approval, or objection at the end of the [45-day or] 60-day period under paragraph I shall be deemed approval.
III. If the rule is approved under subparagraph II(c) or (e), the agency may adopt the rule.
IV. The committee may 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) Deemed by the committee to have a substantial economic impact not recognized in the fiscal impact statement.
V. The following procedures shall govern committee objections and conditional approvals:
(a) If the committee objects to the final proposal as filed [or as amended pursuant to paragraph II], it shall so inform the agency. In lieu of a preliminary objection, and with or without a written request under subparagraph II(a), the committee may vote to conditionally approve the rule with an amendment, provided that the committee specifies in its conditional approval the language of the amendment to address the basis for a preliminary objection. The committee shall notify the agency in writing of its conditional approval. Within 30 days of the meeting, or in the case of a board or commission, 7 days following its next regularly scheduled meeting, the agency shall submit a written explanation to the committee in the form of a letter and an annotated text of the final proposed rule detailing how the rule has been amended in accordance with the conditional approval. The written explanation shall be signed by the individual holding rulemaking authority, or, if a body of individuals holds rulemaking authority, by a voting member of that body, provided that a quorum of the body has approved. Failure to submit a written explanation in accordance with the conditional approval and this paragraph shall cause the conditional approval to be deemed a committee vote to make a preliminary objection on the date of the conditional approval. If the office of legislative services determines that the agency has amended the rule in accordance with the conditional approval and this paragraph, the office of legislative services shall promptly send written confirmation of compliance to the agency. The agency may then adopt the rule as amended.
7 Administrative Procedure Act; Publication of Rules. Amend RSA 541-A:15, I to read as follows:
I. The director of legislative services shall compile, index, and publish, or require agencies to publish, all effective rules adopted by each agency. The text of an adopted rule as filed with the director and which is effective shall be the official version of the rule, unless or until a version prepared for publication, which may have editorial changes not affecting the substance of the rule, is certified by the agency as the same in substance as originally filed. The certified version shall be the official version. Both the adopted rule as-filed and as-certified may be an electronic document and still be the official version if in compliance with RSA 541-A:1, V-a and VI and the drafting and procedure manual for administrative rules under RSA 541-A:8. The official version of the rule shall be available to the public by the agency and the director pursuant to RSA 541-A:14, IV.
8 Administrative Procedure Act; Interim Rules. Amend RSA 541-A:19, I(a) to read as follows:
(a) Conform with a new or amended codified state statute or chaptered session law, provided, however, that an agency shall not publish notice of a proposed interim rule more than [120] 180 days after the effective date of the new or amended codified state statute or chaptered session law;
9 Administrative Procedure Act; Interim Rules. Amend RSA 541-A:19, V-VIII to read as follows:
V. A proposed interim rule filed under paragraph II no less than [14] 21 days before a regularly scheduled committee meeting shall be placed on the committee's agenda for review for that meeting. Publication of notice shall occur no less than [7] 14 days before a regularly scheduled meeting. If the agency has published notice in a newspaper, pursuant to subparagraph II(a), the agency shall file a copy of the notice as it was published no later than 3 days after the date of publication. Proposed interim rules filed less than [14] 21 days before a regularly scheduled committee meeting shall be placed on the agenda for review at the following regularly scheduled committee meeting or at a special meeting, as determined by the committee.
VI. The committee shall vote to approve or conditionally approve the rule or object under paragraph VII. Objections to a proposed interim rule may be made only once.
VII. The committee may object to a proposed interim 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) Deemed by the committee not to meet the requirements of paragraph I.
VIII. The following procedures shall govern committee review of interim rules:
(a) The director of legislative services shall notify the agency of any potential bases for committee objection by forwarding a copy of the proposed interim rule with comments noted thereon to the agency at least 7 days prior to the committee meeting at which the rule will be considered. Following receipt of the comments an agency may [amend] file a request for conditional approval of its interim rule with an amendment to address the noted potential bases for objection, or for other reasons in lieu of requesting an objection. Both the request for conditional approval and the amendment shall be in writing and shall be filed at least 3 days prior to the meeting for which the proposed interim rule has been placed on the agenda. An agency may request a waiver pursuant to RSA 541-A:40, IV of the 3-day deadline for good cause as established in the drafting and procedure manual under RSA 541-A:8, but the committee may for compelling reasons under the committee's rules pursuant RSA 541-A:2, II accept a request for a conditional approval in the meeting. [The agency may present the amended proposal to the committee for approval at the committee meeting.] The committee may approve the rule as originally proposed or [as amended] conditionally approve the rule under subparagraph (b).
(b) If the committee objects to the proposed interim rule as filed [or as amended], it shall so inform the agency. In lieu of an objection, and with or without a written request under subparagraph (a), the committee may vote to conditionally approve the rule with an amendment, provided that the committee specified in its conditional approval the language of the amendment to address the basis for a preliminary objection. The committee shall notify the agency in writing of its conditional approval. Within 14 days of the meeting, the agency shall submit a written explanation to the committee in the form of a letter and an annotated text of the final proposed rule detailing how the rule has been amended in accordance with the conditional approval. The written explanation shall be signed by the individual holding rulemaking authority, or, if a body of individuals holds rulemaking authority, by a voting member of that body, provided that a quorum of the body has approved. Failure to submit a written explanation in accordance with the conditional approval and this paragraph shall cause the conditional approval to be deemed a committee vote to make a preliminary objection on the date of the conditional approval. If the committee legal counsel determines that the agency has amended the rule in accordance with the conditional approval and this paragraph, the committee legal counsel shall promptly send written confirmation of compliance to the agency. The agency may then adopt the rule as amended.
(c) If the committee objects to the proposed interim rule as filed [or as amended] pursuant to subparagraph VIII(a), the committee shall send the agency a written objection stating the basis for the objection. An objection or a conditional approval shall require the assent of a majority of the votes cast, a quorum being present.
(d) If the committee makes an objection to the proposed interim rule pursuant to subparagraph VIII(c), the agency may cure the defect or withdraw the interim rule. The agency shall respond to a committee objection only once, and shall report its response in writing to the committee prior to its next regularly scheduled meeting. Failure to respond to the committee in accordance with this subparagraph shall mean the rulemaking procedure for that proposed interim rule is invalid; however, the agency is not precluded from initiating the process over again for a similar rule, provided the conditions in paragraph I are met.
(e) The committee shall review the response and vote to approve the response or continue the objection.
(f) The committee's objection shall not preclude the agency from adopting the substance of an interim rule by meeting the requirements of RSA 541-A:3.
10 Repeal. RSA 541-A:2, IV(g), relative to the pilot program for electronic filing, is repealed.
11 Effective Date. This act shall take effect 60 days after its passage.