New Hampshire Administrative Law: Administrative Rules

This page describes "regular" administrative rules.  There are also "interim" and "emergency" rules not described here. 

Legislation is enacted that contains delegation and authority for an agency to create rules.

Agency drafts rules (following guidelines set out in New Hampshire Drafting and Procedure Manual for Administrative Rules)

Notice shows up in the New Hampshire Rulemaking Register soliciting public comments on proposed rules. (The Document # is assigned by the OLS before publication in the Rulemaking Register.)

The Joint Legislative Committee on Administrative Rules (JLCAR) reviews final rules.

The agency adopts the final rules and files them with the Office of Legislative Services.  The rules are now in force.

Legislation is enacted that contains delegation and authority for an agency to create rules.

Legislation is proposed in one house of the the legislature which includes authorization for a designated agency to adopt rules. The legislation is sent to committee for a hearing and, later, passes the house which introduced it.  It is then introduced into the other house which repeats the hearing and passage process.  The legislation becomes law (usually) when it is then signed by the governor.

Agency drafts rules (following guidelines set out in the New Hampshire Drafting and Procedure Manual for Administrative Rules)

The designated agency drafts rules to implement the statute.

The agency requests a Fiscal Impact Statement from the Office of the Legislative Budget Assistant.

The Office of Legislative Services assigns a document number to the proposed rules and notice is published in the New Hampshire Rulemaking Register soliciting public comment on proposed rules 

Notice must include: Statutory authority for proposed rule, the date of any public comment hearing, the deadline for submitting a written comment, the name of an agency contact person who can answer questions about the rule, a summary and analysis of the effect of the proposed rule, a summary of the fiscal impact statement, a statement that the proposed rule is consistent with Part 1, Article 28-a of the New Hampshire Constitution (i.e. the state cannot necessitate additional expenditures by political subdivisions unless they are fully funded by the state or approved for funding by a vote of the legislative body of the political subdivision.) Note:  The OLS will give the rules a Document # before publication in the Rulemaking Register.)

The Joint Legislative Committee on Administrative Rules (JLCAR) reviews final rules 

JLCAR is the legislative body that has oversight authority for rules proposed and adopted by agencies. As it is a "joint committee," it is made up of members of both the NH House and Senate. JLCAR does not have the power to veto rules. When it reviews the final rules, the JLCAR has limited options:

• Approval: the committee approves the rules. (Note, if the committee doesn't act within 45 days after the filing of a final proposed rule, the rule automatically takes effect.)
• Petition: the committee (or any interested party) may petition the agency for adoption, amendment, or repeal of the rule.  The agency then must grant or deny the petition within 30 days. If the petition is denied, the agency must notify the petitioner in writing.  If granted, the petitioner starts a new rulemaking proceeding within 120 days.
• Preliminary objection: If, and only if, the JLCAR enters a preliminary objection, the agency can amend a rule with changes.  Agencies will sometimes request the committee enter a preliminary objection so that changes can be made. 
• Revised objection: If the agency has made changes to a rule based on JLCAR's preliminary objection but, the changes create new reasons for objection; or, if the agency stands by a decision to keep a rule as written,  JLCAR enters a revised objection. A revised objection is the last opportunity for an agency to make a change to a rule.
• Final objection: If an agency refuses to change a rule, JLCAR can enter a final objection.  The rule is still adopted. However, in any action for enforcement in court regarding the rule, a final objection shifts the burden of proof to the agency. That is, in a court hearing the agency must "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 its Fiscal Impact Statement." (N.H. RSA 541-A:13 VI) (Interesting note: as of 7/28/2015, only 149 of these have been filed since 1984)
• Voting to support the sponsorship of a joint resolution: If the agency responds to objections, but the basis for the objection is not removed, the committee, on a majority vote, may recommend legislative action through the recommendation of a joint resolution.  If they vote a joint resolution, that resolution must be filed within 20 days when the legislature is in session (or, 20 days upon the start of the next legislative session.)  If the joint resolution is filed, the rule does not go into effect until the final resolution or, until after 90 days.  If the session of the general court adjourns prior the the 60th day after the joint resolution was introduced, the clock restarts and the agency is on hold for 90 days after the start of the next legislative session.

The agency adopts the final rules and files them with the Office of Legislative Services.  The rules are now in force. 

Once an agency adopts its rules, the agency MUST file them with the Office of Legislative Services to make them enforceable.  The rule becomes effective as of 12:01 a.m. on the day after the adoption materials are filed with the OLS (unless the rules specify a specific date and time later than the filing date.)  The rules will expire after the last day of the eighth year following the effective date unless they are amended, readopted or repealed or if they are replaced by newly adopted rules.

Since most rules have a limited effective duration, you may find yourself needing to find an expired rule.  Our friends at the Office of Legislative Services maintain a page of Agency Filing Histories. An agency's filing history is a chronological list of all the adopted rules and declaratory rulings filed by the agency with the Office of Legislative Services.  A 4-digit document number assigned by the OLS to each filing is given with the effective date. Once the document number has been obtained, copies can be obtained from the Office of Legislative Services (25 Capitol Street, Room 219, Concord,) the State Library (20 Park Street, Concord,) or the New Hampshire Law Library (One Charles Doe Drive, Concord.)

The New Hampshire Rulemaking Register is published every Thursday.  It contains:

• Notices of proposed rulemaking proceedings by an agency with the rules under RSA 541-A, including a summary of the rule, rulemaking hearing date and deadline for comment in writing or electronic format, fiscal impact statement, and other information. See RSA 541-A:6, I and RSA 541-A:19, III;

• Notices of adopted rules filed each month with the Office of Legislative Services;

• Executive orders of the Governor;

• Non-confidential opinions of the Attorney General relative to rulemaking under RSA 541-A:28;

• Notices of public meetings and hearings of the Joint Legislative Committee on Administrative Rules (JLCAR), including the list of final proposed rules and proposed interim rules on the agenda;

• Final objections of the JLCAR pursuant to RSA 541-A:13, V;

• Notices of continued or postponed agency rulemaking hearings or extension of public comment deadline under RSA 541-A:11;

• Notice of a hearing or public comment period for a draft final proposed rule under RSA 541-A:11, I(c)

• Notices of agency declaratory rulings as defined in RSA 541-A:1, V, and filed each month with the Office of Legislative Services;

• Notice of request for public comment on possible rulemaking under RSA 541-A:11, VIII.

• Publication of notice of the list of regulated toxic air pollutants and classifications by the Department of Environmental Services under RSA 125-I:4; and

• Any other notices or documents related to rulemaking which are submitted at the request of an agency and approved by the Director of Legislative Services.