HB1307: relative to review of final proposed rules under the administrative procedures act.

HB 1307-FN - AS INTRODUCED

2003 SESSION

03-2246

10/09

HOUSE BILL 1307-FN

AN ACT relative to review of final proposed rules under the administrative procedures act.

SPONSORS: Rep. Bruno, Hills 45

COMMITTEE: Legislative Administration

ANALYSIS

This bill adds the recommendation of a legislative policy committee to the reasons for possible objection to proposed administrative rules by the joint legislative committee on administrative rules. The bill also changes the procedure for objections or alternatives to objection used by 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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03-2246

10/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

AN ACT relative to review of final proposed rules under the administrative procedures act.

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

1 Filing of Proposed Rules; Copy to Legislative Committees. Amend RSA 541-A:12, I to read as follows:

I. After fully considering public comment and any committee or designated legal counsel comments 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 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 and shall send a copy to the chair and vice-chair of the policy committee of the legislature as deemed appropriate by the speaker of the house and the senate president. Final proposals filed no later than 14 days before a regularly scheduled committee meeting shall be placed on the agenda for that meeting. Final proposals filed fewer than 14 days before a regularly scheduled committee meeting shall be placed on the agenda of the following regularly scheduled committee meeting

2 Joint Legislative Committee on Administrative Rules; Review of Proposed Rules; References Added. Amend RSA 541-A:13, I to read as follows:

I. Within 45 days of the filing of a final proposal [with the director of legislative services] in accordance with RSA 541-A:12, I, the committee may approve the rule or object under paragraph V, except that if an agency has filed a final proposal under RSA 541-A:12, I-a, the time shall be extended to 60 days. Objections to a rule may be made only once.

3 Objection to Rule; Punctuation Change. Amend RSA 541-A:13, IV(c) and (d) to read as follows:

(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[.]; or

4 New Subparagraph; Objection to Rule; Legislative Policy Committee. Amend RSA 541-A:13, IV by inserting after subparagraph (d) the following new subparagraph:

(e) Recommended for objection by a majority vote of the policy committee originally hearing the legislation granting the rulemaking authority as deemed appropriate by the speaker of the house and the senate president.

5 Objections to Proposed Rules; Majority Vote of Quorum. Amend RSA 541-A:13, V(f) to read as follows:

(f) If the agency responds but the basis for the committee's preliminary or revised objection has not been removed or the response creates a new basis for objection, the committee may, by majority vote [of the entire committee] with a quorum being present, file a final objection. The final objection shall be filed in certified form with the director of legislative services for publication in the next issue of the rulemaking register.

6 Final Objections to Rules; Judicial Review. 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 invalid.] The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.

7 Procedure for Joint Resolution. Amend RSA 541-A:13, VII(b) - (d) to read as follows:

(b) If an agency responds to a preliminary or revised objection but the basis for objection has not been removed or the response creates a new basis for objection, the committee may, within 50 days from the date on which the objection response was due and by majority vote [of the entire committee] with a quorum of the committee being present, recommend legislative action through sponsorship of a joint resolution to implement its recommendation. Such vote shall prevent the rule from being adopted and filed by the agency [for the period of time specified in subparagraph VII(c)] until final legislative action is taken.

(c) If the committee votes to sponsor a joint resolution pursuant to subparagraph VII(b), the agency shall be prevented from adopting and filing such rule until final legislative action is taken on the resolution [or the passage of 90 consecutive calendar days during which the general court shall have been in session, whichever occurs first. The 90 calendar day period shall commence on the date such joint resolution has been introduced]. If the session of the general court adjourns [prior to the sixtieth calendar day] after such joint resolution has been introduced but without final legislative action, then the agency shall be prevented from adopting and filing such rule until [90 calendar days, beginning with] final legislative action is taken in the next session of the general court[, have passed].

(d) The provisions of this paragraph shall apply to only the portion of the agency's rule identified in the joint resolution. The provisions of this paragraph shall not prevent an agency from adopting and filing the remainder of the rules in the final proposal under RSA 541-A while the committee pursues legislative action under this paragraph provided such remainder can be adopted and administered without the portion objected to, nor shall it prevent the committee from also voting to enter a final objection pursuant to paragraph V.

8 Final Adoption; Reference Removed. Amend RSA 541-A:14, I(e) to read as follows:

(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].

9 Validity of Rules. Amend RSA 541-A:22, II to read as follows:

II. Rules shall be valid and binding on persons they affect, and shall have the force of law unless amended or revised, or unless a court of competent jurisdiction determines otherwise. [Except as provided by RSA 541-A:13, VI,] Rules shall be prima facie evidence of the proper interpretation of the matter that they refer to.

10 Effective Date. This act shall take effect 60 days after its passage.

LBAO

03-2246

7/24/03

HB 1307-FN - FISCAL NOTE

AN ACT relative to review of final proposed rules under the administrative procedures act.

FISCAL IMPACT:

The Legislative Budget Assistant has determined that this legislation has a total fiscal impact of less than $10,000 in each of the fiscal years 2004 through 2007.