Revision: April 23, 2024, 11:32 a.m.
HB 1622-FN - AS AMENDED BY THE HOUSE
28Mar2024... 1226h
2024 SESSION
24-2577
08/10
HOUSE BILL 1622-FN
SPONSORS: Rep. C. McGuire, Merr. 27; Sen. Lang, Dist 2; Sen. Pearl, Dist 17; Sen. Carson, Dist 14; Sen. Murphy, Dist 16
COMMITTEE: Executive Departments and Administration
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AMENDED ANALYSIS
This bill requires rulemaking relative to the recordkeeping of the executive director of the office of professional licensure and certification and expands categories included in license renewal time frames. This bill also updates several provisions regarding public comments, reports and expired 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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
28Mar2024... 1226h 24-2577
08/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Duties of the Executive Director; Office of Professional Licensure and Certification. Amend RSA 310:4, I(e) to read as follows:
(e) Maintenance of the official record of the office and the boards in accordance with the retention policy established by the office in administrative rules adopted in accordance with RSA 541-A.
2 OPLC; License Renewals; Lapse. Amend RSA 310:8, II to read as follows:
II. [Licenses] Notwithstanding any other state law to the contrary, initial licenses, registrations, certifications, and renewals shall be valid for 2 years from the date of issuance, except that timely and complete application for license renewal by eligible applicants shall continue the validity of the licenses being renewed until the office has acted on the renewal application.
3 Director of Legislative Services; Publishing. Amend RSA 541-A:15, I to read as follows:
I. The director of legislative services shall compile, index, and publish all effective rules adopted by each agency. The text of an adopted rule as filed with the director and which is effective shall then be the official version of the rule which the director shall publish online. [The director shall publish the adopted rule text online in a format as determined by the director.] The agency shall be notified when the text is published. The director shall within 180 days send to the agency a draft certified rule in an edited format as determined by the director. The agency shall then have [120] 60 days to certify that the edited rule is the same in substance as originally filed [published rule is accurate]. If editorial changes not affecting the substance of the rule are needed, or an error in the publishing or editing process is identified, then the agency shall notify the director, who shall make [and] such changes[ shall be made by the director] and the rule shall be certified by the agency that it is the same in substance as originally filed. If the agency does not notify the director within the [120] 60-day deadline, then it will be presumed that the agency has reviewed the [published] edited language and agreed that it is the certified version [and shall] which be published online by the director in a format as determined by the director. The certified version shall then 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 as described in the drafting and procedure manual under RSA 541-A:8.
4 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 screenshot, mock-up, or prototype of an electronic-only form, which the rule incorporates by reference or the requirements for which are set forth in the rule pursuant to RSA 541-A:19, shall be filed with the director of legislative services no later than 30 days following committee approval or conditional approval or in the case of a board or commission, 7 days following its next regularly scheduled meeting after committee approval or[ conditional approval] after receipt of the written confirmation pursuant to RSA 541-A:19, VIII(b) for a committee 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 or, in the case of a board or commission, within 7 days following its next regularly scheduled meeting after receipt of the written confirmation pursuant to RSA 541-A:19, VIII(b). 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.
5 New Paragraph; Rulemaking; Public Comments; Requirement for Online Availability. Amend RSA 541-A:11 by inserting after paragraph VIII the following new paragraph:
IX.(a) Every public comment on a proposed rule that the agency receives electronically shall be promptly uploaded to a web page maintained by the agency. Each proposed rule shall have a separate location for all public comments received for that rule.
(b) Public comments received via regular mail shall, to the extent agency resources permit, be scanned and added to the web page as electronic documents.
6 Rulemaking; Filing Final Proposal Public Comments; Report. Amend RSA 541-A:12, II(e) to read as follows:
(e) A report of public comments received on the rule shall be created. [and an explanation of how they were addressed in the final rule.] The report shall indicate how the comment was incorporated into the final rule. If the comment was not incorporated into the final rule, a substantive explanation of the adopting authority overrule relevant arguments and considerations made in the comment shall be included.
7 Final Adoption. Amend RSA 541-A:14, I(a) to read as follows:
(a) The passage of 60 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;
8 Declaratory Judgment on Validity or Applicability of Rules. Amend RSA 541-A:24 to read as follows:
541-A:24 Declaratory Judgment on Validity or Applicability of Rules. The validity or applicability of a rule, including the enforcement of an expired rule by an agency, may be determined in an action for declaratory judgment in the Merrimack county superior court if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff, or if the agency is enforcing an expired rule contrary to RSA 541-A:22, I and II, including the levying of fines or assessment of fees. The agency shall be made a party to the action. The plaintiff shall give notice of the action to the office of legislative services, division of administrative rules, at the time of filing. A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question. The court shall have the authority to levy a financial penalty upon the agency, including the payment of plaintiff's attorney's fees and, if the agency enforced an expired rule, the reimbursement of fines or fees collected by the agency from the plaintiff under that expired rule. Upon receiving a declaratory judgment, the respondent agency or department shall also file a copy of that judgment with the office of legislative services, division of administrative rules.
9 Validity of Rules. Amend RSA 541-A:22, I to read as follows:
I. No agency rule, including 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. If an agency levied fines due to violation of an expired rule or assessed fees only established in an expired rule, then the agency shall refund all fines and fees it collected during the rule’s expiration since the effective date of this paragraph.
10 New Subparagraph; Filing Final Proposal. Amend RSA 541-A:12, II by inserting after subparagraph (e) the following new subparagraph:
(f) If the proposed rule is expired, a report that outlines any agency action or implementation of the statute without any necessary administrative rules, including whether any fines or fees were levied or assessed by the agency and whether the fines or fees have been refunded.
11 Effective Date. This act shall take effect 60 days after its passage.
24-2577
Amended 4/23/24
HB 1622-FN- FISCAL NOTE
AS AMENDED BY THE HOUSE (AMENDMENT #2024-1226h)
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
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Estimated State Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Revenue | $0 | Indeterminable Decrease | Indeterminable Decrease | Indeterminable Decrease | ||
Revenue Fund(s) | None | |||||
Expenditures | $0 | Indeterminable Increase $10,000+ | Indeterminable Increase $10,000+ | Indeterminable Increase $10,000+ | ||
Funding Source(s) | General Fund, Office of Professional Licensure and Certification Fund, and Various Agency Funds | |||||
Appropriations | $0 | $0 | $0 | $0 | ||
Funding Source(s) | None | |||||
• Does this bill provide sufficient funding to cover estimated expenditures? [X] No • Does this bill authorize new positions to implement this bill? [X] N/A | ||||||
METHODOLOGY:
This bill makes changes to licensing and administrative procedures impacting various state agencies. It aims to change how the Office of Professional Licensure and Certification (OPLC) handles retention policies and license terms. This proposal includes adjustments to the Administrative Procedure Act, modifying rule review timings and agency responsibilities. Additionally, it imposes financial penalties on agencies enforcing expired rules as well as requires any state agency to refund any fines or fees collected on expired rules.
This bill will have an indeterminable decrease to revenues to the extent any fines or fees were collected by agencies on an expired rule as those fines or fees would be required to be refunded back to the entity who paid them. Additionally, agencies could see an indeterminable increase in expenditures to the extent an agency is enforcing an expired rule and a court levies a financial penalty upon the agency.
The Office of Professional Licensure and Certification states the fiscal impact is uncertain. The proposed changes could result in expenditures exceeding $10,000. The language allows courts to impose "financial penalties" on agencies for enforcing expired rules, but the specific parameters for these penalties are not defined. These penalties seem to be additional to the payment of attorney's fees and any eligible reimbursements.
The Judicial Branch states it is not possible to estimate how this change in law would impact the number or complexity of filings in the courts.
The Department of Administrative Services states this bill will not have a fiscal impact on the Department.
AGENCIES CONTACTED:
Office of Professional Licensure and Certification, Judicial Branch, and Department of Administrative Services