March 13, 2008
No. 11C
STATE OF
WEB SITE ADDRESS:
www.gencourt.state.nh.us
Legislative
SENATE
CALENDAR
ADDENDUM
REPORTS,
AMENDMENTS & MEETING
REPORTS
COMMERCE, LABOR AND CONSUMER PROTECTION
SB 391, relative to affordable health insurance for small employers.
Inexpedient to Legislate, Vote 5-0.
Senator Barnes for the committee.
SB 465, relative
to the laws regulating trusts and trust companies in
Ought to Pass with Amendment, Vote 5-0.
Senator Cilley for the committee.
SB 540-FN, relative to a standard wellness plan for small employers.
Ought to Pass with Amendment, Vote 5-0.
Senator Gottesman for the committee.
ENERGY, ENVIRONMENT AND ECONOMIC DEVELOPMENT
SB 383, establishing a commission to develop a plan for the expansion of transmission capacity in the north country.
Ought to Pass with Amendment, Vote 4-0.
Senator Fuller Clark for the committee.
SB 419, relative to the duties of the energy planning and advisory board and restructuring policy principles.
Ought to Pass with Amendment, Vote 3-0.
Senator Odell for the committee.
SB 451, authorizing rate recovery for electric public utilities investments in distributed energy resources.
Ought to Pass with Amendment, Vote 4-1.
Senator Fuller Clark for the committee.
SB 523, relative to requirements for the estuary alliance for sewage treatment to take and hold land.
Ought to Pass, Vote 3-0.
Senator Fuller Clark for the committee.
HB 1151, relative to reporting dates for the instream flow pilot program.
Ought to Pass with Amendment, Vote 6-0.
Senator Fuller Clark for the committee.
FINANCE
SB 304-FN-L, repealing a fee charged by the registry of deeds.
Inexpedient to Legislate, Vote 5-2.
Senator Janeway for the committee.
SB 313, relative to transfers to the revenue stabilization reserve account.
Inexpedient to Legislate, Vote 5-2.
Senator Janeway for the committee.
SB 321, relative to transfers to the revenue stabilization reserve account.
Ought to Pass with Amendment, Vote 7-0.
Senator D'Allesandro for the committee.
SB 343-FN, (New Title) making school building aid grants available to charter schools as reimbursement for annual lease costs.
Inexpedient to Legislate, Vote 4-3.
Senator D'Allesandro for the committee.
SB 516-FN-L, relative to aid for county bridges.
Ought to Pass, Vote 7-0.
Senator Sgambati for the committee.
SB 543, establishing a commission to study court security.
Ought to Pass with Amendment, Vote 5-0.
Senator D'Allesandro for the committee.
HEALTH AND HUMAN SERVICES
SCR 11, supporting
the application of
Ought to Pass, Vote 5-0.
Senator Janeway for the committee.
JUDICIARY
SB 378, establishing a committee to study the creation of a business court at the superior court level.
Ought to Pass with Amendment, Vote 4-0.
Senator Letourneau for the committee.
SB 389, relative to the protection of children's medical records in abuse and neglect and child custody cases.
Ought to Pass with Amendment, Vote 4-0.
Senator Gottesman for the committee.
SB 411, relative to the confidentiality of health care records during the investigation of child abuse and neglect cases.
Ought to Pass, Vote 4-0.
Senator Gottesman for the committee.
SB 433, relative to confidential communications between a physician and a patient.
Ought to Pass with Amendment, Vote 4-0.
Senator Clegg for the committee.
SB 495-FN, prohibiting Internet solicitation and exploitation of children.
Ought to Pass with Amendment, Vote 4-0.
Senator Foster for the committee.
PUBLIC AND MUNICIPAL AFFAIRS
SB 416, relative to subdivision and site plan regulation waivers.
Ought to Pass with Amendment, Vote 5-0.
Senator Burling for the committee.
TRANSPORTATION AND INTERSTATE COOPERATION
SB 396, relative to the establishment of a statewide transportation policy.
Ought to Pass with Amendment, Vote 3-1.
Senator Kelly for the committee.
SB 452, relative to transportation planning.
Ought to Pass with Amendment, Vote 3-2.
Senator Burling for the committee.
AMENDMENTS
Senate Finance
March 17, 2008
2008-1043s
10/04
Amendment to SB 321
Amend the title of the bill by replacing it with the following:
AN ACT relative to construction or renovation of regional vocational centers, transferring certain positions from the pari-mutuel commission to the department of safety, and requiring certain operating budget reductions.
Amend the bill by replacing all after the enacting clause with the following:
1
II. Upon
completion, the constructed or renovated facility shall become the property of
the school district. [Provisions]
Provision
of the site, parking, and other related areas shall be the responsibility of
the local community. Site
work, including but not limited to cut and fill work, compaction, demolition,
relocation of utilities, relocation of roadways and sidewalks, and similar work
within an area extending to one foot beyond the outside edge of the exterior
walls of the building, shall be eligible for grants under paragraph I. Nothing shall prohibit the inclusion of the
site and related facilities which are not funded as part of construction cost
by the state under this chapter from being included in a regular building aid
application of the district as provided in RSA 198:15-b.
2 Operating Budget, Judicial Branch. Notwithstanding 2007, 262:1, the appropriations for the judicial branch for the fiscal year ending June 30, 2008 shall be reduced by $1,789,765. The director of the administrative office of the courts shall submit to the general court and the commissioner of the department of administrative services an itemization of the reductions in expenditure classes made to implement this section on or before June 15, 2008.
3 Operating Budget, Legislative Branch. Notwithstanding 2007, 262:1, the appropriations for the legislative branch for the fiscal year ending June 30, 2008 shall be reduced by $1,000,000. The legislative budget assistant shall submit to the fiscal committee of the general court an itemization of the reductions in expenditure classes made to implement this section on or before June 15, 2008.
4 Positions Transferred
from Pari-Mutuel Commission Racing Laboratory to Department of Safety Urine
Testing Laboratory. Effective April 1,
2008, classified positions number 14543, 14545, and 30541 are transferred from
the pari-mutuel commission racing laboratory,
5
Fiscal Year 2008 Fiscal Year 2009
Strike out: 10 Personal Services – Permanent $280,007 $285,196
Insert: 10 Personal Services – Permanent $247,525 $153,362
Strike out: 60 Benefits $139,292 $141,876
Insert: 60 Benefits $123,603 $78,200
Strike out: Total $639,293 $646,993
Insert: Total $591,122 $451,483
Estimated Source of Funds for
Racing Laboratory
Strike out: General Fund $519,575 $528,684
Insert: General Fund $471,404 $333,174
Strike out: Total $639,293 $646,993
Insert: Total $591,122 $451,483
6
Fiscal Year 2008 Fiscal Year 2009
Strike out: 10 Personal Services – Permanent $140,723 $146,820
Insert: 10 Personal Services – Permanent $173,205 $278,654
Strike out: 60 Benefits $73,294 $76,722
Insert: 60 Benefits $88,983 $140,398
Strike out: Total $406,640 $417,715
Insert: Total $454,811 $613,225
Estimated Source of Funds for
Urine Testing Laboratory
Strike out: General Fund $406,640 $417,715
Insert: General Fund $454,811 $613,225
Strike out: Total $406,640 $417,715
Insert: Total $454,811 $613,225
7 Effective Date. This act shall take effect upon its passage.
2008-1043s
AMENDED ANALYSIS
This bill:
I. Allows certain site work to be eligible for grants available for the construction or renovation of regional vocational centers.
II. Transfers certain positions from the pari-mutuel racing laboratory to the department of safety urine testing laboratory.
III. Directs the judicial branch and legislative branch to reduce budget appropriations by a specified amount for the fiscal year ending June 30, 2008.
Senate Judiciary
March 18, 2008
2008-1064s
03/01
Amendment to SB 378
Amend the title of the bill by replacing it with the following:
AN ACT authorizing the supreme court to establish a business and commercial dispute docket in the superior court.
Amend the bill by replacing all after the enacting clause with the following:
1 New Section; Business and Commercial Dispute Docket. Amend RSA 491 by inserting after section 7 the following new section:
491:7-a Business and Commercial Dispute Docket.
I. Without limiting the jurisdiction vested in any court in the state, and subject to the appointment of a presiding justice by the governor with the consent of the executive council as provided in this section, the supreme court may establish by court order not inconsistent with this section, a business and commercial dispute docket in the superior court which shall have jurisdiction to hear and determine business and commercial disputes, as described in this section, when:
(a) The parties have consented to the jurisdiction of the business and commercial dispute docket by agreement or stipulation;
(b) At least one party is a “business entity” as defined in paragraph II;
(c) No party is a consumer as that term is defined in paragraph II; and
(d) If money damages are sought, the amount in controversy exceeds $50,000 or such other greater amount as the supreme court determines by rule.
II. In this section:
(a) A “business entity” means a corporation, a statutory trust, a business trust or association, a real estate investment trust, a common law trust, any other unincorporated business, including a partnership, whether a general or a limited liability partnership, or limited partnership, including a limited liability limited partnership, a limited liability company, a professional association, or a joint venture.
(b) A “consumer” means an individual who purchases or leases merchandise primarily for personal, family, or household purposes.
III. The governor with the consent of the executive council may appoint the first presiding justice of the business and commercial dispute docket, who shall be qualified by reason of such person’s knowledge and experience in business and commercial law matters. The chief justice of the superior court, following the appointment or designation of the initial presiding justice, may designate such additional justices to preside over business and commercial docket cases, as necessary, based upon caseload, disqualification of the presiding justice, or efficient allocation of judicial resources.
IV. The presiding justice of the business and commercial dispute docket shall be an associate justice of the superior court and shall be entitled to the compensation and benefits provided to all such justices under applicable law, including, but not limited to, RSA 491-A:1 and RSA 100-C.
V. The workload of the presiding justice of the business and commercial dispute docket shall be the matters before that docket. The presiding justice may be assigned to any other matter within the jurisdiction of the superior court or sit by designation on any other court in the same manner as any other associate justice of the superior court, as determined to be necessary by the chief justices of the superior and supreme courts.
VI. Subject to the provisions of this section, all civil actions in which the principal claim or claims arise from or involve the following shall be assigned to the business and commercial dispute docket for all purposes, including motion practice, discovery, injunctive relief, alternative dispute resolution, and hearing on the merits with or without a jury:
(a) Claims arising from breach of contract or fiduciary duties, fraud, misrepresentation, business tort, or statutory violations arising out of business dealings or transactions.
(b) Claims arising from transactions under the Uniform Commercial Code.
(c) Claims arising from the purchase, sale, and lease of commercial real or personal property or security interests therein.
(d) Claims related to surety bonds.
(e) Franchisee/franchisor relationships and liabilities.
(f) Malpractice claims of non-medical professionals in connection with rendering services to a business enterprise.
(g) Real estate title petitions.
(h) Shareholder derivative actions.
(i) Commercial class actions.
(j) Commercial bank transactions.
(k) Actions relating to the internal affairs or governance; dissolution or liquidation rights obligations between and among owners, including shareholders, partners, or members; or liability or indemnity of managers, including officers, directors, managers, trustees, or members or partners functioning as managers, of corporations, partnerships, limited partnerships, limited liability companies or partnerships, professional associations, business trusts, joint ventures, or other business enterprises.
(l) Business insolvencies and receiverships.
(m) Other complex disputes of a business or commercial nature.
2 Effective Date. This act shall take effect upon its passage.
2008-1064s
AMENDED ANALYSIS
This bill authorizes the supreme court to establish a business and commercial dispute docket in the superior court.
Energy, Environment and Economic Development
March 18, 2008
2008-1071s
06/09
Amendment to SB 383
Amend the bill by replacing all after the enacting clause with the following:
1 Findings. The general court finds that:
I. In 2007, 354:1, the general court concluded that “it is in the public interest and to the benefit of New Hampshire to encourage the development of renewable energy” and that instrumental to such a goal the “existing transmission infrastructure, particularly in the northern part of the state, will need to be upgraded or replaced or new transmission facilities will need to be built.”
II. It is in the public interest to avoid further delays caused by uncertainties in the ISO-NE Generator Interconnection Study Queue and cost responsibility for the design and construction of transmission facilities in the north country necessary to integrate new renewable resources into the electric grid.
III. It is in the public interest to take immediate steps to undertake appropriate technical and economic studies necessary to ensure the timely development of renewable energy generating projects in the north country.
IV. It is in the public interest, as well as in the economic interest of the region, and in the best interest of system reliability, for the public utilities commission to support regional efforts to address timely approvals of remote transmission facilities.
V. It may be in the public interest to move forward on a near-term basis with a New Hampshire-only transmission improvements plan in order to ensure the timely development of renewable energy generating projects in the north country.
2 Commission Established. There is established a commission to develop a plan for the expansion of transmission capacity in the north country.
3 Membership and Compensation.
I. The members of the commission shall be as follows:
(a) Two members of the senate, appointed by the president of the senate.
(b) Two members of the house of representatives, appointed by the speaker of the house of representatives.
(c) The director of the office of energy and planning, or designee.
(d) The commissioner of the department of resources and economic development, or designee.
(e) A commissioner of the public utilities commission, or designee.
(f) The governor, or designee.
(g) Three representatives of the north country, appointed by the governor.
II. The commission shall include as non-voting participants the following:
(a) A representative of active applications in the ISO-NE Generator Interconnection Study Queue, appointed by ISO-NE.
(b) A representative of the unregulated energy supply industry, appointed by that industry.
(c) A representative of the (FERC) Federal Energy Regulatory Commissioner or an individual with expertise in the area of federal electricity transmission regulation, appointed by that commission.
(d) A representative of Public Service of New Hampshire, appointed by that organization.
(e) A representative of National Grid Group, appointed by that organization.
(f) A representative from New England Power Generators Association, appointed by the association.
III. The commission shall seek input and participation ISO-NE.
IV. Legislative members of the commission shall receive mileage at the legislative rate when attending to the duties of the commission.
4 Duties. The commission:
I. Shall develop a proposal for the upgrade of the transmission system in the north country no later than December 1, 2008, with the support of the public utilities commission and a consensus of the state’s electric distribution providers, electric transmission companies, the consumer advocate, the commission staff and developers of renewable energy projects who have active applications in the ISO-NE Generator Interconnection Study Queue as of the effective date of this act. Consideration in the development of such a plan shall be given to both a regional solution and, in the event that a regional solution is not recommended for the Coos Loop, a New Hampshire-only solution shall also be explored. As part of the proposal, the commission shall:
(a) Expedite the necessary studies required to achieve transmission expansion.
(b) Determine what the options, process, and timelines would be for pursuing a regional solution.
(c) Direct the public utilities commission, in conjunction with the formulation of the proposal, to seek a petition to FERC for approval for expansion, upgrades, and pooled transmission facility determination for the Coos Loop.
II. Is authorized to utilize the services of the public utilities commission and its staff, and to hire a consultant to facilitate the development of a plan, with the participation of interested parties, to facilitate the transmissions upgrade in the north country.
III. Is authorized to obtain the services of a consultant to complete any necessary engineering or economic studies to contribute to any such studies. The commission may spend up to $200,000 for the purposes of this act. The commission is authorized to obtain grants and contributions for the purposes of this section, in accordance with RSA 4:8, and is authorized to spend up to $100,000 from funds received pursuant to utility assessment under RSA 365:37, RSA 362-F:10, or both, for this purpose. The commission shall be exempt from the provisions of RSA 21-I concerning competitive bidding procedures for the purpose of obtaining a consultant or hiring an entity to complete a study as authorized by this section.
5 Chairperson; Quorum. The members of the commission shall elect a chairperson from among the members. The first meeting of the commission shall be called by the first-named senate member. The first meeting of the commission shall be held within 45 days of the effective date of this act. Seven members of the commission shall constitute a quorum. The commission shall meet monthly to receive updates from the public utilities commission on the progress that is being made and to provide input to the public utilities commission with regard to achieving the necessary transmission capacity expansion in a timely fashion.
6 Report. The commission shall report its findings and any recommendations for proposed legislation to the president of the senate, the speaker of the house of representatives, the senate clerk, the house clerk, the governor, and the state library on or before December 1, 2008.
7 Site Evaluation Committee; Review of Renewable Energy Projects. Amend RSA 162-H:4, V by inserting after subparagraph (b) the following new subparagraph:
(c) The committee shall give expedited public interest consideration to any project which is formally a party to any settlement agreement approved by the commission.
8 Effective Date. This act shall take effect upon its passage.
Sen. Sgambati, Dist. 4
March 10, 2008
2008-0945s
05/04
Amendment to SB 389
Amend the title of the bill by replacing it with the following:
AN ACT relative to privileged communications between health care providers and minor children.
Amend the bill by replacing all after the enacting clause with the following:
1 Physicians and Surgeons; Confidential Communications. Amend RSA 329:26 to read as follows:
329:26 Confidential Communications. The confidential relations and communications between a physician or surgeon licensed under provisions of this chapter and the patient of such physician or surgeon are placed on the same basis as those provided by law between attorney and client, and, except as otherwise provided by law, no such physician or surgeon shall be required to disclose such privileged communications. Confidential relations and communications between a patient and any person working under the supervision of a physician or surgeon that are customary and necessary for diagnosis and treatment are privileged to the same extent as though those relations or communications were with such supervising physician or surgeon. The confidential relations and communications under this section apply to minor children who are patients of a physician or surgeon. This section shall not apply to investigations and hearings conducted by the board of medicine under RSA 329, any other statutorily created health occupational licensing or certifying board conducting licensing, certifying, or disciplinary proceedings or hearings conducted pursuant to RSA 135-C:27-54 or RSA 464-A. This section shall also not apply to the release of blood samples and the results of laboratory tests for blood alcohol content taken from a person who is under investigation for driving a motor vehicle while such person was under the influence of intoxicating liquors or controlled drugs. The use and disclosure of such information shall be limited to the official criminal proceedings.
2 Mental Health Practitioners; Privileged Communications. Amend RSA 326-B:35, I to read as follows:
I. Confidential
communications between licensees and their clients are privileged in the same
manner as those provided by law between physician and patient, and, except as
otherwise provided by law, no licensee shall be required to disclose such
privileged communications. Confidential
communications between a client of a licensee and any person working under the
supervision of such licensee to provide services that are customary and
necessary for diagnosis and treatment are privileged to the same extent as
would be the same communications between the supervising licensee and the
client. The confidential relations and
communications under this section apply to minor children who are patients of a
licensee.
3 Nurses; Privileged Communications. Amend RSA 330-A:32 to read as follows:
330-A:32 Privileged Communications. The confidential relations and communications between any person licensed under provisions of this chapter and such licensee’s client are placed on the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communications to be disclosed, unless such disclosure is required by a court order. Confidential relations and communications between a client and any person working under the supervision of a person licensed under this chapter which are necessary and customary for diagnosis and treatment are privileged to the same extent as though those relations or communications were with the supervising person licensed under this chapter, unless such disclosure is required by a court order. The confidential relations and communications under this section apply to minor children who are clients of a licensee. This section shall not apply to hearings conducted pursuant to RSA 135-C:27-54 or RSA 464-A.
4 Effective Date. This act shall take effect 60 days after its passage.
2008-0945s
AMENDED ANALYSIS
This bill provides that confidential communications between a physician, nurse, or mental health practitioner and a minor child are privileged.
Transportation and Interstate Cooperation
March 18, 2008
2008-1056s
06/09
Amendment to SB 396
Amend the bill by replacing all after the enacting clause with the following:
1 New Chapter; Statewide Transportation Policy. Amend RSA by inserting after chapter 240 the following new chapter:
CHAPTER 241
Statewide Transportation Policy
241:1 Findings and Public Purpose. The general court finds that:
I. It is essential
to the well-being of
II. The cost of
maintaining
241:2 Statewide Transportation Policy. The statewide transportation policy for all future projects shall be as follows:
I. To maximize the
value of its limited transportation funds,
(a) Is integrated with the land use goals and policies of the state;
(b) Is balanced, including multiple means of travel;
(c) Meets the diverse needs of the citizens of the state, including rural, urban and low-income populations, the growing elderly population, and people with disabilities;
(d) Minimizes the effects of unforeseeable natural or economic conditions that could otherwise cripple a predominantly single-mode transportation system.
II. To spend its
limited transportation funds wisely, the state must ensure that its
transportation investments protect
III. Relative to
the planning, funding, and development of
(a) Ensure the repair and maintenance of roads, bridges, rail, and other transportation infrastructure throughout the state to provide a safe, efficient, intermodal transportation network.
(b) Are
integrated with and support an effective and balanced regional transportation
system that strengthens
(c) Support the goal of achieving a balanced transportation system, including multiple transportation options, that serves the diverse needs of rural, urban, low-income, and elderly populations, and that is adaptable and resilient to meet New Hampshire’s future needs.
(d) Consider the full range of reasonable transportation alternatives for all significant highway projects and all projects of substantial public interest, and prioritize the following alternatives before increasing highway capacity:
(1) Transportation system management.
(2) Transportation demand management.
(3) Public transit, including but not limited to buses and trains.
(e) Require corridor studies from which significant highway projects and projects of substantial public interest are developed to encourage integration and coordination of such projects with local and regional land use planning that is consistent with RSA 9-B, and to ensure the coordination of local land use plans that preserve the capacity of the transportation infrastructure at issue and maximize the value of transportation investments.
(f) Increase the energy efficiency of the transportation system.
(g) Reduce the global warming effects of the transportation sector and minimize the impacts of transportation on public health, air and water quality, open spaces, and other natural resources.
(h) Achieve
effective intermodal connections with the state’s major airports to enhance
access for the citizens of the state, and to better integrate the state’s major
airports within the region’s transportation system to enhance access to and
from major population centers in
(i) Promote context-sensitive solutions that are consistent with the unique character of communities.
(j) Coordinate with and advance the comprehensive state development plan, under RSA 9‑A.
(k) Are consistent with and advance the state’s smart growth policy as established in RSA 9‑B.
(l) Incorporate a public participation process in which municipalities, regional planning commissions, metropolitan planning organizations, and the public have timely notice and opportunity to identify and comment on concerns related to transportation planning decisions, capital investment decisions, and project decisions. The department shall take the comments and concerns of local citizens into account and shall be responsive to them.
241:3 Compliance with Statewide Transportation Policy. Capital investment decisions, transportation planning decisions, and project decisions of the department of transportation shall comply with the statewide transportation policy under this chapter. Appeals from such decisions may be taken in accordance with RSA 541:6. The department of transportation shall report on its decision-making processes at least semi-annually by filing a written review thereof with the president of the senate, the speaker of the house of representatives, and the chairpersons of the senate transportation and interstate cooperation and capital budget committees and the house transportation and public works and highways committees.
2 Effective Date. This act shall take effect 60 days after its passage.
Sen. Burling, Dist. 5
March 17, 2008
2008-1042s
03/04
Amendment to SB 416
Amend RSA 674:36, II(n)(2) as inserted by section 1 of the bill by replacing it with the following:
(2) The evidence before the planning board demonstrates that the granting of the waiver would better serve the public interest, and the granting of the waiver would not be contrary to the spirit and intent of the regulations.
Amend RSA 674:44, III(e) as inserted by section 2 of the bill by replacing it with the following:
(2) The evidence before the planning board demonstrates that the granting of the waiver would better serve the public interest, and the granting of the waiver would not be contrary to the spirit and intent of the regulations.
Sen. Downing, Dist. 22
March 18, 2008
2008-1068s
06/09
Amendment to SB 419
Amend the bill by replacing section 1 with the following:
1 New Subparagraphs; Energy Planning and Advisory Board. Amend 2004, 164:2, III by inserting after subparagraph (b) the following new subparagraphs:
(c) The board shall oversee and coordinate with other boards and study committees whose duties include consideration of matters related to energy, including usage, planning, conservation, supply, environmental attributes, sale, distribution, transmission, or storage. If any disparities between such boards and study committees occur, the energy planning advisory board shall resolve such matters.
(d) The board shall review, beginning with the effective date of this section, the cumulative effects on the electric rates of New Hampshire residents and businesses of the passage of energy legislation, including but not limited to, the multiple pollutant reduction program under RSA 125‑O and the renewable portfolio standard, related regional mandates that affect overall electric rates in New Hampshire such as the regional greenhouse gas initiative (RGGI), the forward capacity market and reliability-must-run requirements implemented through ISO New England Inc., and any additional energy or environmental regulatory requirements resulting from state, regional, or federal action that have the potential to affect electric rates.
(e) The board may work with the office of energy and planning and the public utilities commission to establish the qualifications requirements for applicants and to oversee uses of such funds and design the criteria for the use of energy efficiency funds from the multiple pollutant reduction program under RSA 125-O.
(f) The board shall monitor and collect data on the development of any administrative costs associated with the RGGI program, including fund oversight and distribution.
(g) The board shall monitor any federal action concerning renewable energy or controlling greenhouse gas emissions.
(h) The board shall chart and monitor consumer electricity costs on a yearly basis.
(i) The board shall provide a yearly report to the general court.
Amend the bill by deleting section 2 and renumbering the original sections 3 and 4 to read as 2 and 3, respectively.
Senate Judiciary
March 18, 2008
2008-1065s
08/10
Amendment to SB 433
Amend RSA 329:26 as inserted by section 1 of the bill by replacing it with the following:
329:26 Confidential Communications. The confidential relations and communications
between a physician or surgeon licensed under provisions of this chapter and
the patient of such physician or surgeon are placed on the same basis as those
provided by law between attorney and client, and, except as otherwise provided
by law, no such physician or surgeon shall be required to disclose such
privileged communications. Confidential
relations and communications between a patient and any person working under the
supervision of a physician or surgeon that are customary and necessary for
diagnosis and treatment are privileged to the same extent as though those
relations or communications were with such supervising physician or
surgeon. This section shall not apply to
investigations and hearings conducted by the board of medicine under RSA 329,
any other statutorily created health occupational licensing or certifying board
conducting licensing, certifying, or disciplinary proceedings or hearings
conducted pursuant to RSA 135-C:27-54 or RSA 464-A. This section shall also not apply to the
release of blood or urine samples and the results of laboratory tests for drugs
or blood alcohol content taken from a person [who] in
connection with the offense for which the person is under investigation for driving a motor
vehicle while such person was under the influence of intoxicating liquors or
controlled drugs. The use and disclosure
of such information shall be limited to the official criminal proceedings.
Energy, Environment and Economic Development
March 18, 2008
2008-1072s
09/03
Amendment to SB 451
Amend the bill by replacing all after the enacting clause with the following:
1 New Chapter; Electric Utility Investment in Distributed Energy Resources. Amend RSA by inserting after chapter 374-F the following new chapter:
CHAPTER 374-G
ELECTRIC UTILITY INVESTMENT
IN DISTRIBUTED ENERGY RESOURCES
374-G:1 Purpose. Distributed energy resources can increase
overall energy efficiency and provide energy diversity by eliminating,
displacing, or better managing energy deliveries from the centralized bulk power
grid, in keeping with the objectives of RSA 362-F:1. It is therefore in the public interest to
stimulate investment in distributed energy resources in
374-G:2 Definitions. In this chapter:
II. “Distributed energy resources” means electric generation, energy storage, demand response, load reduction or control programs, and technologies or devices located on or inter-connected to the local electric distribution system for purposes including but not limited to reducing line losses, supporting voltage regulation, or peak load shaving, as part of a strategy for minimizing transmission and distribution costs as provided in RSA 374-F:3, III. Distributed energy resources shall exclude generation projects in excess of 5 megawatts and generation projects intended to produce electric energy primarily for retail. In addition, any biomass-fueled generation project shall meet the emission requirements for eligible biomass technology under RSA 362-F:2, VIII and any fossil fueled generation project must meet the following emission standards (in lbs/MW-H): NOx - 0.07; CO - 0.10; VOCs - 0.02. If a fossil fueled generation project produces combined heat and power, a credit to meet the emission standard may be applied at the rate of one MW-H for each 3.4 million BTUs of heat recovered, as long as such units achieve a minimum energy efficiency of 60 percent, measured as usable thermal and electrical output in BTUs divided by fuel input in BTUs, and are installed as integrated combined heat and power applications.
374-G:3 Investments in Distributed Energy Resources. Notwithstanding any other provision of law to the contrary, as provided in RSA 374-G:4, a New Hampshire electric public utility may invest in or own distributed energy resources, located on the premises of a retail customer of the electric public utility. Distributed electric generation owned by or receiving investments from an electric utility under this section shall be limited to a cumulative maximum in megawatts of 12-1/2 percent of the utility’s total distribution peak load in megawatts.
374-G:4 Rate Filing; Authorization.
I. A
II. Prior to authorizing a utility’s recovery of investments made in distributed energy resources, the commission shall determine that the utility’s investment and its recovery in rates, as proposed, are in the public interest. Determination of the public interest under this section shall include but not be limited to consideration and balancing of the following factors:
(a) Whether the expected value of the economic benefits of the investment to the company’s ratepayers over the life of the investment outweigh the economic costs to the company’s ratepayers.
(b) The efficient and cost-effective realization of the purposes of RSA 362-F and the restructuring policy principles of RSA 374-F:3.
(c) The costs and benefits to any participating customer or customers.
(d) The
energy security benefits of the investment to the state of
(e) The
environmental benefits of the investment to the state of
(f) The
economic development benefits and liabilities of the investment to the state of
(g) The effect on the reliability, safety, and efficiency of electric service.
(h) The
potential benefits and liabilities of the program to the state of
(i) The effect on competition within the region’s electricity markets and the state’s energy services market.
III. Authorized and prudently incurred investments shall be recovered under this section in a utility’s base distribution rates as a component of rate base, and cost recovery shall include the recovery of depreciation, a return on investment, taxes, and other operating and maintenance expenses directly associated with the investment, net of any revenues received by the utility directly attributable to the investment.
IV. The rate of return applied to investments authorized under this section shall be based on the utilities’ most recent rate of return established by the commission. The commission shall add an incentive to the return on equity component of 25 to 100 basis points as it deems appropriate to encourage sufficient and timely investments in an approved distributed energy resource program.
V. The commission shall approve, disapprove, or approve with conditions a utility rate filing under this section within 90 days of its filing. The commission may extend this deadline to 6 months at its discretion for any filing involving an investment in excess of $1,000,000. The commission may also extend the deadline at its discretion for failure of the applicant to respond to data requests on an expedited timeline.
374-G:5 Exemption; Rural Electric Cooperatives. The requirements for commission authorization under RSA 374-G:4 shall not apply to rural electric cooperatives for which a certificate of deregulation is on file with the commission.
374-G:6 Exclusion. Any renewable generating project funded in part by a distribution utility pursuant to this chapter shall not be included in the calculation of the total rated generating capacity under RSA 362-A:9, I for purposes of limiting net metered renewable generating projects.
2 Electric Utility Investment in distributed Energy Resources; Report. The public utilities commission shall prepare a report reviewing and evaluating utility distributed energy resources projects proposed and implemented under RSA 374-G, to be filed on November 1, 2013, with the governor, the president of the senate, the speaker of the house of representatives, and the chairmen of the house science technology, and energy committee and the senate energy, environment, and economic development committee. The report shall include any recommended changes to RSA 374-G.
3 Effective Date. This act shall take effect 60 days after its passage.
Transportation and Interstate Cooperation
March 18, 2008
2008-1060s
03/01
Amendment to SB 452
Amend the bill by replacing all after the enacting clause with the following:
1 Comprehensive Plan; Transportation. Amend RSA 9-A:1, III(b)(3) to read as follows:
(3) A
transportation section which considers all pertinent modes of transportation
and provides a framework of policies and actions which will provide for a safe,
[and] adequate, and sustainable transportation system
that
is coordinated with, supports, and is supported by land use planning at the
local, regional, and state levels to serve the needs of the state and
its citizens, and which advances other elements of the comprehensive state
development plan.
2 Comprehensive Plan; Land Use. Amend RSA 9-A:1, III(b)(7) to read as follows:
(7) A natural resources section which identifies trends in land protection, open space, and farm land preservation and protection, and proposes policies and actions necessary at the state level, including but not limited to policies and actions that integrate land use and transportation planning, to protect those resources which are perceived to be of statewide significance.
3 Comprehensive Plan; State Departments. Amend RSA 9-A:1, IV to read as follows:
IV. The comprehensive development plan shall serve as the basis for policy and program development and implementation by the various departments of state government. State agencies shall develop and regional planning commissions and local planning boards are encouraged to develop plans which are consistent with the policies and priorities established in the comprehensive development plan.
4 Office of Energy and Planning; Coordination. Amend RSA 9-A:2, III to read as follows:
III. Coordinate and monitor the planning efforts of various state agencies and departments, including but not limited to agencies involved in the planning and development of transportation infrastructure, to ensure that program plans published by such agencies are consistent with the policies and priorities established in the comprehensive development plan.
5 Comprehensive Regional Development Plan. Amend RSA 36:47, III to read as follows:
III. In preparing
a comprehensive plan for the development of the region within its jurisdiction,
each regional planning commission may use the framework for the state’s
comprehensive development plan in RSA 9-A:1, III as the basis for its
plan. Such plan shall be updated every 5
years,
or sooner if desired by the regional planning commission, and each such plan shall
include a transportation section which addresses the transportation needs of
the region in a manner that is integrated with, supports, and is supported by
the land use planning objectives of the region and the comprehensive state
development plan. Prior to its
adoption, the plan shall be distributed to every library, planning board, and
board of selectmen/aldermen/city council in each of the communities within the
region, and to the office of energy and planning. The regional planning commission shall
address in writing all comments received prior to the publication of a final
draft. A public hearing shall be held by
the regional planning commission with 30 days’ notice published in all newspapers
of general circulation in the region, and shall state where the document can be
viewed[,] and the time and place of the public hearing, and shall allow
for written comments. For each regional
plan, the office of energy and planning shall offer comments as to its
consistency with the state plan. The
first regional development plans affected by this statute shall be adopted
within 5 years of the effective date of this paragraph [and renewed at least
every 5 years thereafter].
6 Relationship to Local Planning Boards. Amend RSA 36:50 to read as follows:
36:50 Relationship To
Local Planning Boards. A regional
planning commission may assist the planning board of any municipality within
the delineated region to carry out any regional plan or plans developed by said
commission. A regional planning
commission may also render assistance on local planning problems. A regional planning commission may make
recommendations on the basis of its plans and studies to any planning board, to
the legislative body of any city and to the selectmen of any town within its
region, to the county commissioners of the county or counties in which said
region is located, and to any state or federal authorities. Upon completion of a comprehensive master
plan for the region or any portion of said comprehensive master plan, a
regional planning commission [may] shall file certified copies of said
comprehensive master plan or portion thereof with the planning board of any
member municipality. Such planning
boards may adopt all or any part of such comprehensive master plan which
pertains to the areas within its jurisdiction as its own master plan, subject
to the requirements of RSA 674:1[-4] through RSA 674:4.
7 Additional Powers and Duties of Regional Planning Commissions. Amend RSA 36:53 to read as follows:
36:53 Additional Powers
and Duties of Regional Planning Commissions.
In order to implement any of the provisions of a regional plan, which
has been adopted or is in preparation, a regional planning commission may, in
addition to its powers and duties under RSA 36:47, undertake studies and
make specific recommendations on economic, industrial, and commercial
development within the region. [and] Such studies and recommendations
shall address the manner in which economic, industrial, and commercial
development within the region affect, may best be served by, and may best
preserve the capacity of transportation systems within the region. A regional planning commission may
carry out, with the cooperation of municipalities and/or counties within the
region, economic development programs for the full development, improvement,
protection, and preservation of the region’s physical and human
resources. Such programs shall be
implemented to further the transportation and land use objectives of the
comprehensive state development plan and the regional planning commission.
8 Statewide Transportation Improvement Program. Amend RSA 228:99 to read as follows:
228:99 Statewide Transportation Improvement Program (STIP). The governor shall develop a statewide transportation improvement program (STIP) as required by 23 U.S.C. sections 134 and 135, as amended. The governor shall revise and update the program every 2 years. Adoption of the STIP and revised STIP shall be as follows:
I. Each
metropolitan planning organization and rural regional planning commission shall
reach agreement with the department of transportation relative to funding
unified planning work programs consistent with 23 U.S.C. sections 134 and 135
no later than December 1 of each even-numbered year. Each metropolitan planning organization and
rural regional planning commission shall provide a regional transportation
improvement program (TIP) to the department of transportation no later than
April 1 of each odd-numbered year. Such
plans shall include a public involvement plan and education initiative to
ensure early and adequate input from residents, municipalities,
and any other interested parties in
II. The department, upon receipt of the TIPs, shall determine whether the TIPs are consistent with the comprehensive state development plan and shall identify in the tentative STIP aspects of any TIPs that are not consistent. The commissioner shall submit the tentative STIP, with the department’s analysis of its consistency with the comprehensive state development plan, in accordance with the state planning process as required in 23 U.S.C. section 135 to the governor’s advisory commission on intermodal transportation no later than July 1 of each odd-numbered year.
III. The governor’s
advisory commission on intermodal transportation shall conduct at least one
public hearing in each executive council district to present the tentative STIP
to the public and to receive the public’s comments and recommendations
regarding the program. The governor’s
advisory commission on intermodal transportation shall submit such program along
with the commission’s recommendations to the governor no later than December 1
of each odd-numbered year. Each
metropolitan planning organization and rural regional planning commission [should]
shall
conduct an informational meeting after the commission submits its
recommendations to receive the public’s final comments and recommendations
regarding the proposed programs before adoption by the governor. Each metropolitan planning organization and
regional planning commission shall, during such informational meeting, discuss
the manner in which the proposed program furthers and is coordinated with the
land use planning objectives of the region and the municipalities located
therein and the comprehensive state development plan.
IV. Before
adopting the STIP, the governor, with the assistance of the department of
transportation and the office of energy and planning, shall issue a report on
the consistency of the STIP with the comprehensive state development plan and
shall amend the STIP as necessary to achieve such consistency. The governor shall submit the report
and the STIP to the general court to be acted on no later than January
15 of each even-numbered year. After an
enactment by the general court of the STIP or by June 1 of each even-numbered
year, whichever is earlier, each metropolitan planning organization and rural
regional planning commission should continue its public involvement program by
conducting at least one informational meeting concerning the STIP. Such meetings shall address how programs
within the STIP will be coordinated with local land use planning within the
region and the municipalities located therein.
9 Project Priority. Amend RSA 240:2 to read as follows:
240:2 Project Priority. To the extent practicable, and subject to the requirements of RSA 228:99 relative to the consistency of the statewide transportation improvement program with the comprehensive state development plan and regional and local land use planning, the projects shall be implemented in the order shown in the report.
10 New Section; Procedural Requirements for the State 10-Year Transportation Improvement Plan. Amend RSA 240 by inserting after section 3 the following new section:
240:4 Procedural Requirements. The department of transportation shall be subject to the following procedures regarding the state 10-year transportation improvement plan:
II. Projects that are fiscally constrained for 4 years and can be readily completed shall be on a separate list titled the statewide transportation improvement plan (STIP). The STIP shall be prioritized by level of readiness.
III. The 10-year plan shall be divided into 3 separate lists: large projects, small projects, and maintenance and repair.
IV. The 10-year plan shall be divided into categories by funding source or function.
V. At least one hearing shall be held by the governor’s advisory commission on intermodal transportation (GACIT) for every regional planning commission. Hearings shall be held beginning in July of the first fiscal year of the biennium.
VI. The general court shall receive the 10-year plan by January 15.
VII. Every 2 years, the department of transportation shall propose to the general court a list of projects to be removed from the 10-year plan because they:
(a) Have significantly changed in scope.
(b) Are no longer feasible.
(c) Lack the necessary permits and are unlikely to receive the necessary permits in the foreseeable future.
(d) Are inconsistent with the comprehensive state development plan or regional and local land use planning.
(e) For other reasons are unnecessary or unlikely to proceed.
VIII. Inflation shall be included in both the costs calculated in the 10-year plan and shall also be included in calculating the necessary revenues.
11 Master Plan; Transportation. Amend RSA 674:2, III(a) to read as follows:
(a) A
transportation section which considers all pertinent modes of transportation
and provides a framework for both adequate local needs and for coordination
with regional and state transportation plans and local land use planning
objectives. Suggested items to
be considered may include but are not limited to public transportation, park
and ride facilities, and bicycle routes, or paths, or both. The transportation section should address
the manner in which transportation and local land use planning may:
(1) Preserve the capacity of local roads and
state highways by reducing and managing traffic demand.
(2) Make transportation and land uses mutually
supportive of one another.
(3) Achieve the principals of smart growth
described in RSA 9-B, sound planning, and wise resource protection.
12 Master Plan Preparation. Amend RSA 674:3, I to read as follows:
I. In preparing, revising, or amending the master plan, the planning board may make surveys and studies, and may review data about the existing conditions, probable growth demands, and best design methods to prevent sprawl growth in the community and the region. The board should consider the goals, policies, and guidelines of the comprehensive state development plan and the comprehensive master plan developed by the pertinent regional planning commission and may also consider the goals, policies, and guidelines of any other regional or state plans, as well as those of abutting communities.
13 Purposes of Zoning Ordinances. Amend RSA 674:17, I(a) to read as follows:
(a) To lessen congestion in the streets and coordinate transportation and land use planning;
14 Purposes of Zoning Ordinances. Amend RSA 674:17, II to read as follows:
II. Every zoning ordinance shall be made with reasonable consideration to, among other things, the character of the area involved and its peculiar suitability for particular uses, as well as with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the municipality, and coordinating transportation and land use planning to preserve the capacity of highways and roads.
15 New Subparagraphs; Innovative Land Use Controls. Amend RSA 674:21, I by inserting after subparagraph (n) the following new subparagraphs:
(o) Transportation demand management.
(p) Transit-oriented development.
16 New Subparagraph; Innovative Land Use Controls. Amend RSA 674:21, IV by inserting after subparagraph (b) the following new subparagraph:
(c) “Transportation demand management” means regulations that require, or provide incentives for, land use activities that generate substantial traffic to include measures that help preserve the traffic capacity of existing road and highway infrastructure.
17 Effective Date. This act shall take effect January 1, 2009.
Sen. D’Allesandro, Dist. 20
March 6, 2008
2008-0892s
08/09
Amendment to SB 465
Amend the bill by replacing all after the enacting clause with the following:
1 Purpose. The general court finds:
I. The market for trusts and fiduciary services across the nation is a rapidly growing sector of the nation’s economy.
II.
III. This act will serve to continue New Hampshire’s firm commitment to be the best and most attractive legal environment in the nation for trusts and fiduciary services, an environment that will continue to attract to our state good-paying jobs for trust and investment management, legal and accounting professionals, and other professionals to provide the support and infrastructure required to service this growing sector of the nation’s economy.
2 Uniform Trust Code; Definitions. Amend RSA 564-B:1-103(22) to read as follows:
(22)
“Ascertainable standard” means a standard related to an individual’s
health, education, support, or maintenance within the meaning of section
2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Code [of 1986, as in
effect on the effective date of this chapter, or as later amended].
3 Uniform Trust Code; Definitions. RSA 564-B:1-103(24) is repealed and reenacted
to read as follows:
(24) “Excluded
fiduciary” means any trustee, trust advisor, or trust protector to the extent
that, under the terms of the trust, an agreement of the qualified beneficiaries,
or court order, (i) the trustee, trust advisor, or trust protector is excluded
from exercising a power, or is relieved of a duty, and (ii) the power or duty
is granted or reserved to another
person.
4 Uniform Trust Code; Definitions. RSA 564-B:1-103(27)-(28) is repealed and
reenacted to read as follows:
(27) “Trust advisor” means any person described in
RSA 564-B:12-1201(a).
(28) “Trust protector” means any person described
in RSA 564-B:12-1201(a).
5 Uniform Trust Code; Definitions. Amend RSA 564-B:1-103 by inserting after
paragraph (28) the following new paragraph:
(29) “Internal Revenue Code” means the Internal
Revenue Code of 1986, as amended and as in effect from time to time.
6 Uniform Trust Code; Nonjudicial Settlement
Agreements. Amend RSA 564-B:1-111(a) to
read as follows:
(a) For purposes of this section, “interested
persons” means persons, other than the
settlor, whose consent would be required in order to achieve a binding
settlement were the settlement to be approved by a court.
7 Uniform Trust Code; Representation by
Fiduciaries and Parents. RSA
564-B:3-303(7) is repealed and reenacted to read as follows:
(7) a parent may represent and bind (i) the parent’s minor or unborn child if neither a guardian of the estate nor guardian of the person for the child has been appointed and (ii) a minor or unborn descendent of such child if neither a guardian of the estate of the descendent nor a guardian of the person of the descendent has been appointed.
8 Uniform Trust Code; Noncharitable Trust Without an Ascertainable Beneficiary. Amend RSA 564-B:4-409 to read as follows:
564-B:4-409 Noncharitable Trust Without Ascertainable Beneficiary. Except as otherwise provided in RSA 564-B:4-408 or by another statute, the following rules apply:
(1) A
trust may be created for a noncharitable purpose without a definite or definitely
ascertainable beneficiary or for a noncharitable but otherwise valid purpose [to
be selected by the trustee].
(2) A
trust authorized by this section may be enforced by a trustee, a trust advisor, a trust protector, a person
appointed [in] under the terms of the trust or, if
no person is so appointed, by a person appointed by the court.
(3) [Property
of a trust authorized by this section may be applied only to its intended use,]
Except to the extent the court determines that the value of the trust property
exceeds the amount required for the intended use, property of a trust authorized by
this section may be applied only to its intended use, including appointing
trust property to or for the benefit of an existing or new trust whose purposes
are limited to one or more purposes of the original trust. Except as otherwise provided [in] by
the terms of the trust, property not required for the intended use must be
distributed to the settlor, if then living, otherwise to the settlor’s
successors in interest.
9 New Section; Uniform Trust Code; Trustee’s Authority to Decant Trust. Amend RSA 564-B by inserting after section 4-417 the following new section:
564-B:4-418 Trustee’s Authority to Decant Trust.
(a) Unless the terms of the trust expressly provide otherwise, a trustee with the discretion to make distributions to or for the benefit of one or more beneficiaries of a trust (the “first trust”) may exercise that discretion by appointing the property subject to that authority in favor of another trust for the benefit of one or more of those beneficiaries (the “second trust”).
(b) Notwithstanding the provisions of paragraph (a), the trustee may not decant property of the first trust in favor of the second trust under any of the following circumstances:
(1) the second trust includes a beneficiary that is not a beneficiary of the first trust. For purposes of this subparagraph, a permissible appointee of a power of appointment held by a beneficiary of the second trust is not considered to be a beneficiary of the second trust;
(2) the exercise of the power to decant will reduce any current fixed income interest, annuity interest, or unitrust interest of a beneficiary of the first trust;
(3) a contribution to the first trust qualified for a marital or charitable deduction for federal or state income, gift, or estate tax purposes or qualified for a gift tax exclusion for federal or state gift tax purposes, while the terms of the second trust include a provision which, if included in the terms of the first trust, would have prevented the first trust from qualifying for the deduction or exclusion;
(4) the property is subject to a presently exercisable power of withdrawal held by a beneficiary of the first trust; or
(5) under the terms of the second trust:
(A) discretionary distributions may be made to a beneficiary or among a group of beneficiaries of the first trust;
(B) the distributions are not limited by an ascertainable standard; and
(C) the beneficiary or group of beneficiaries has the power to remove and replace the trustee of the first trust with the beneficiary or a member of the group of beneficiaries or with a trustee that is related or subordinate to the beneficiary or a member of the group of beneficiaries (as defined in section 672(c) of the Internal Revenue Code).
(c) Notwithstanding the provisions of paragraph (a), a trustee who is a beneficiary of the first trust may not exercise the authority to appoint property of the first trust in favor of the second trust under any of the following circumstances:
(1) under the terms of the first trust or pursuant to the law governing the administration of the first trust:
(A) such trustee of the first trust does not have the discretion to make or participate in making distributions to himself or herself;
(B) such trustee’s discretion to make or participate in making distributions to himself or herself is limited by an ascertainable standard; or
(C) such trustee’s discretion to make or participate in making distributions to himself or herself is exercisable only with the consent of a cotrustee or another person holding an adverse interest; while under the terms of the second trust, such trustee’s discretion to make or participate in making distributions to himself or herself is not limited by an ascertainable standard and is excerciseble without the consent of a cotrustee or another person holding an adverse interest; or
(2) under the terms of the first trust or pursuant to the law governing the administration of the first trust, such trustee of the first trust does not have the discretion to make or participate in making distributions in a manner that will discharge such trustee’s legal support obligations, while under the terms of the second trust, such trustee’s discretion is not so limited.
(d) The trustee of the first trust shall notify in writing the director of charitable trusts of a proposed appointment in favor of a second trust at least 30 days in advance of the proposed appointment if, at the time the appointment is being proposed:
(1) at least one charitable organization has the rights of a qualified beneficiary of the first trust; or
(2) the director of charitable trusts has the rights of a qualified beneficiary of the first trust.
(e) This section does not abrogate the trustee’s duty under RSA 564-B:8-801.
(f) This section does not impose on a trustee a duty to exercise a power to decant in favor of another trust or to consider exercising a power to decant in favor of another trust.
(g) A power to decant is not a power to amend the trust. Accordingly, a trustee is not prohibited from decanting property in favor of another trust solely because the first trust is irrevocable or the terms of the first trust provide that it may not be amended.
(h) A trustee’s authority to decant property to another trust under this section is not limited or prohibited by a spendthrift provision in the first trust.
10 New Paragraph; Uniform Trust Code; Discretionary Trusts; Effect of Standard. Amend RSA 564 B:5-504 by inserting after paragraph (e) the following new paragraph:
(f) Except as otherwise provided in paragraph (c), if a trustee has the discretion to make a distribution to a beneficiary and exercises that discretion by directly paying expenses on behalf of the beneficiary, the trustee is not liable to a creditor of the beneficiary:
(1) whether or not the trust contains a spendthrift provision; and
(2) even if directly paying the beneficiary’s expenses exhausts the income and principal of the trust.
11 Uniform Trust Code; Creditor’s Claim Against Settlor; Additional Exclusion for Certain Irrevocable Trusts. Amend RSA 564-B:5-505(a)(2) to read as follows:
(2)
With respect to an irrevocable trust, a creditor or assignee of the
settlor may reach the maximum amount that can be distributed to or for the
settlor’s benefit. If a trust has more
than one settlor, the amount the creditor or assignee of a particular settlor
may reach may not exceed the settlor’s interest in the portion of the trust
attributable to that settlor’s contribution.
This subparagraph shall not apply to:
(A) an irrevocable “special needs trust”
established for a disabled person as described in 42 U.S.C. 1396p(d)(4) or
similar federal law governing the transfer to such a trust[.};
or
(B) an irrevocable trust solely because of the
existence or exercise of a discretionary power granted to the trustee by the
terms of the trust, court order, agreement of the qualified beneficiaries or
any other provision of law (or the existence or exercise of a discretionary
power granted to a trust advisor or trust protector by the terms of the trust,
court order, agreement of the qualified beneficiaries, or any other provision
of law, to direct the trustee) to pay directly to the taxing authorities or to
reimburse the settlor for any tax on trust income or principal which is payable
by the settlor under the law imposing such tax.
12 Uniform Trust Code; Additional Exclusion for Certain Irrevocable Trusts. Amend RSA 564 B:5-505(b)(2) to read as follows:
(2)
upon the lapse, release, or waiver of the power, the holder is treated
as the settlor of the trust only to the extent the value of the property
affected by the lapse, release, or waiver exceeds the greater of:
(A) the
amount specified in section 2041(b)(2) or 2514(e) of the Internal Revenue Code [of
1986], or
(B) The amount specified in section
2503(b) of the Internal Revenue Code [of 1986, in each case as in effect on
the effective date of this chapter, or as later amended].
13 New Paragraph; Uniform Trust Code; Creditor’s
Claim Against Settlor. Amend
RSA 564‑B:5-505 by inserting after paragraph (b) the following new
paragraph:
(c) Nothing in this section shall limit the
application of the Qualified Dispositions in Trust Act set forth in RSA 564-D.
14 Uniform Trust Code; Directed Trusts. Amend RSA 564-B:7-711 is repealed and reenacted to read as follows:
564-B:7-711 Directed Trusts. If the terms of the trust, an agreement of the qualified beneficiaries, or a court order requires a trustee, trust advisor, or trust protector to follow the direction of a trust advisor or trust protector and the trustee, trust advisor, or trust protector acts in accordance with such direction, then the trustee, trust advisor, or trust protector shall be treated as an excluded fiduciary.
15 Uniform Trust Code; Trustee Duty to Inform. Amend RSA 564-B:8-813(b) to read as follows:
(b) A
trustee shall keep the qualified beneficiaries of an irrevocable trust who have
attained 21 years of age and those having the rights of a qualified beneficiary
reasonably informed about the administration of the trust and of the material
facts necessary for them to protect their interests. A trustee shall be presumed to have
fulfilled this duty if the trustee provides the information described in paragraphs
(c) and (d). Unless unreasonable
under the circumstances, a trustee of an irrevocable trust shall promptly
respond to the request of any qualified beneficiary or one having the rights of
a qualified beneficiary for information related to the administration of the
trust. [A trustee shall be presumed
to have fulfilled the duty under this subsection if the trustee provides the
information described in subsections (c) and (d). The] A trustee may provide any other
information the trustee deems necessary or appropriate to keep beneficiaries
reasonably informed.
16 Uniform Trust Code; Trustee’s Discretionary Power. RSA 564-B:8-814(b)-(d) are repealed and reenacted to read as follows:
(b) Subject to the provisions of paragraph (a), if a distribution to or for the benefit of a beneficiary is subject to the exercise of the trustee’s discretion, whether or not the terms of a trust include a standard to guide the trustee in making distribution decisions, then the beneficiary’s interest is neither a property interest nor an enforceable right, but a mere expectancy.
(c) Subject to the provisions of paragraph (a), unless the terms of the trust manifestly provide otherwise, if the terms of a trust permit distributions among a class of beneficiaries, distributions to or for the benefit of whom is subject to the exercise of the trustee’s discretion without a standard to guide the trustee in making distribution decisions, then the trustee may make distributions unequally among the beneficiaries and may make distributions entirely to one beneficiary to the exclusion of the other beneficiaries.
(d) Subject to paragraph (f), and unless the terms of the trust expressly indicate that a rule in this paragraph does not apply:
(1) a person other than a settlor who is a beneficiary and trustee of a trust that confers on the trustee a power to make discretionary distributions to or for the trustee’s personal benefit may exercise the power only in accordance with an ascertainable standard; and
(2) a trustee may not exercise a power to make discretionary distributions to satisfy a legal obligation of support that the trustee personally owes another person.
(e) A power whose exercise is limited or prohibited by paragraph (d) may be exercised by a majority of the remaining trustees whose exercise of the power is not so limited or prohibited. If the power of all trustees is so limited or prohibited, the court may appoint a special trustee with authority to exercise the power.
(f) Paragraph (d) does not apply to:
(1) a power held by the settlor’s spouse who is the trustee of a trust for which a marital deduction was previously allowed under section 2056(b)(5) or 2523(e) of the Internal Revenue Code;
(2) any trust during any period that the trust may be revoked or amended by its settlor; or
(3) a trust if contributions to the trust qualify for the annual exclusion under section 2503(c) of the Internal Revenue Code.
17 Uniform Trust Code; Powers to Direct Trustee. RSA 564-B:8-808 is repealed and reenacted to read as follows:
564-B:8-808 Powers to Direct.
(a) While a trust is revocable, the trustee may follow a direction of the settlor that is contrary to the terms of the trust.
(b) If the terms of a trust, an agreement of the qualified beneficiaries, or a court order, confer upon a person (other than the settlor of a revocable trust) the power to direct certain actions of the trustee, then the trustee shall act in accordance with an exercise of the power.
(c) The terms of a trust may confer upon a trustee or other person a power to direct the modification or termination of the trust.
(d) A person who holds a power to direct is a trust advisor, except to the extent that the person is a beneficiary of the trust and, under such power, the person may direct the trustee to make distributions.
18 New Section; Uniform Trust Code; Governing Law. Amend article 9 of RSA 564-B by inserting after section 564-B:9-906 the following new section:
564-B:9-907 The provisions of article 9 of this code shall be construed as pertaining to the administration of a trust and as applicable to any trust that is administered in this state or that is governed by the laws of this state.
19 Uniform Trust Code; Trust Advisors and Trust Protectors. Article 12 of RSA 564-B is repealed and reenacted to read as follows:
ARTICLE 12
TRUST PROTECTORS AND TRUST ADVISORS
564-B:12-1201 Powers of Trust Advisors and Trust Protectors.
(a) A trust protector or trust advisor is any person, other than a trustee, who under the terms of the trust, an agreement of the qualified beneficiaries, or a court order has a power or duty with respect to a trust, including, without limitation, one or more of the following powers:
(1) the power to modify or amend the trust instrument to achieve favorable tax status or respond to changes in any applicable federal, state, or other tax law affecting the trust, including (without limitation) any rulings, regulations, or other guidance implementing or interpreting such laws;
(2) the power to amend or modify the trust instrument to take advantage of changes in the rule against perpetuities, laws governing restraints on alienation, or other state laws restricting the terms of the trust, the distribution of trust property, or the administration of the trust;
(3) the power to appoint a successor trust protector;
(4) the power to review and approve a trustee’s trust reports or accountings;
(5) the power to change the governing law or principal place of administration of the trust;
(6) the power to remove and replace any trust advisor or trust protector for the reasons stated in the trust instrument;
(7) the power to remove a trustee, cotrustee, or successor trustee, for the reasons stated in the trust instrument, and appoint a successor;
(8) the power to consent to a trustee’s or cotrustee’s action or inaction in making distributions to beneficiaries;
(9) the power to increase or decrease any interest of the beneficiaries in the trust, to grant a power of appointment to one or more trust beneficiaries, or to terminate or amend any power of appointment granted in the trust; however, a modification, amendment or grant of a power of appointment may not grant a beneficial interest in a charitable trust with only charitable beneficiaries to any non-charitable interest or purpose and may not grant a beneficial interest in any trust to the trust protector or trust advisor, or to the estate or for the benefit of the creditors of such trust protector or such trust advisor;
(10) the power to perform a specific duty or function that would normally be required of a trustee or cotrustee;
(11) the power to advise the trustee or cotrustee concerning any beneficiary;
(12) the power to consent to a trustee’s or cotrustee’s action or inaction relating to investments of trust assets; and
(13) the power to direct the acquisition, disposition, or retention of any trust investment.
(b) The exercise of a power by a trust advisor or a trust protector shall be exercised in the sole and absolute discretion of the trust advisor or trust protector and shall be binding on all other persons.
564-B:12-1202 Trust Advisors and Trust Protectors as Fiduciaries.
(a) A trust advisor or trust protector, other than a beneficiary, is a fiduciary with respect to each power granted to such trust advisor or trust protector. In exercising any power or refraining from exercising any power, a trust advisor or trust protector shall act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.
(b) A trust advisor or trust protector is an excluded fiduciary with respect to each power granted or reserved exclusively to any one or more other trustees, trust advisors, or trust protectors.
564-B:12-1203 Trust Advisor and Trust Protector Subject to Court Jurisdiction. By accepting appointment to serve as a trust advisor or trust protector, the trust advisor or the trust protector submits personally to the jurisdiction of the courts of this state even if investment advisory agreements or other related agreements provide otherwise, and the trust advisor or trust protector may be made a party to any action or proceeding relating to a decision, action, or inaction of the trust advisor or trust protector.
564-B:12-1204 No Duty to Review Actions of Trustee, Trust Advisor, or Trust Protector.
(a) Whenever, pursuant to the terms of a trust, an agreement of the qualified beneficiaries, or a court order, an excluded fiduciary is to follow the direction of a trustee, trust advisor, or trust protector with respect to investment decisions, distribution decisions, or other decisions of the excluded fiduciary, then, except to the extent that the terms of the trust, the agreement of the qualified beneficiaries, or the court order provides otherwise, the excluded fiduciary shall have no duty to:
(1) monitor the conduct of the trustee, trust advisor, or trust protector;
(2) provide advice to the trustee, trust advisor, or trust protector or consult with the trustee, trust advisor, or trust protector; or
(3) communicate with or warn or apprise any beneficiary or third party concerning instances in which the excluded fiduciary would or might have exercised the excluded fiduciary’s own discretion in a manner different from the manner directed by the trustee, trust advisor, or trust protector.
(b) Absent clear and convincing evidence to the contrary, the actions of the excluded fiduciary pertaining to matters within the scope of the trustee, trust advisor, or trust protector’s authority (such as confirming that the trustee, trust advisor, or trust protector’s directions have been carried out and recording and reporting actions taken at the trustee, trust advisor, or trust protector’s direction or other information pursuant to RSA 564-B:8-813), shall be presumed to be administrative actions taken by the excluded fiduciary solely to allow the excluded fiduciary to perform those duties assigned to the excluded fiduciary under the terms of the trust, the agreement of the qualified beneficiaries, or the court order, and such administrative actions shall not be deemed to constitute an undertaking by the excluded fiduciary to monitor the trustee, trust advisor, or trust protector or otherwise participate in actions within the scope of the trustee, trust advisor, or trust protector’s authority.
564-B:12-1205 Fiduciary’s Liability for Action or Inaction of Trustee, Trust Advisor, and Trust Protector. An excluded fiduciary is not liable for (i) any loss resulting from any action or inaction of a trustee, trust advisor, or trust protector or (ii) any loss that results from the failure of a trustee, trust advisor, or trust protector to take any action proposed by the excluded fiduciary where such action requires the authorization of the trustee, trust advisor, or trust protector, provided that an excluded fiduciary who had a duty to propose such action timely sought but failed to obtain the authorization.
20 Uniform Principal and Income Act; Trustee Notice. Amend RSA 564-C:1-104(h)(1) to read as follows:
(1)
The trustee shall mail notice of the proposed action to all qualified
beneficiaries (as defined in RSA 564-B:1-103(12)) [who are adults] of
the trust who have attained 21 years of age and to those persons who
have the rights of a qualified beneficiary with respect to the trust under RSA
564-B:1-110. Notice may be given to any
other beneficiary. Notice of the
proposed action need not be given to any person who consents in writing to the
proposed action. The consent may be
executed at any time before or after the proposed action is taken.
21 Uniform Principal and Income Act; Trustee Notice. Amend RSA 564-C:1-104(h)(4)-(5) to read as follows:
(4) If a trustee does not receive a written objection to the proposed action from the beneficiary or the person who has the rights of a qualified beneficiary within the applicable period, the trustee is not liable for the action to a beneficiary if:
(A)
notice is mailed to [the] such beneficiary[,] (or
a person who may represent and bind the beneficiary under the provisions of
article 3 of RSA 564-B) or [the] such
person [who has the rights of a qualified beneficiary] at the address
determined by the trustee after reasonable diligence;
(B)
[the] such beneficiary (or a person who may
represent and bind the beneficiary under the provisions of article 3 of RSA
564-B)
or [the] to such person [who has the rights of a qualified
beneficiary] receives actual notice; or
(C)
[the] such beneficiary (or a person who may represent and
bind the beneficiary under the provisions of article 3 of RSA 564-B)
or [the] such person [who has the rights of a qualified beneficiary]
consents in writing to the proposed action either before or after the action is
taken.
(5) If
the trustee receives a written objection within the applicable time period,
either the trustee, a beneficiary or a person who has the rights of a qualified
beneficiary may petition the court to have the proposed action performed as
proposed, performed with modifications, or denied. In the proceeding, a beneficiary objecting to
the proposed action or a person who has the rights of a qualified beneficiary
objecting to the proposed action has the burden of proof as to whether the
trustee’s proposed action should not be performed. A beneficiary who has not objected or a
person who has the rights of a qualified beneficiary who has not objected is
not estopped from opposing the proposed action in the proceeding. If the trustee decides not to implement the
proposed action, the trustee shall notify the qualified beneficiaries of the
trust [who are adults] who have attained 21 years of age
and those persons who have the rights of a qualified beneficiary of the
decision not to take the action and the reasons for the decision, and the
trustee’s decision not to implement the proposed action does not itself give
rise to liability to any current or future beneficiary. A beneficiary or a person who has the rights
of a qualified beneficiary may petition the court to have the action performed
and has the burden of proof as to whether it should be performed.
22 Uniform Principal and Income Act; Distributions. Amend RSA 564-C:2-201(3) to read as follows:
(3) A
fiduciary shall distribute to a beneficiary who receives a pecuniary amount
outright the interest or any other amount provided by the will or the terms of
the trust from net income determined under subsection (2) or from principal to
the extent that net income is insufficient.
If a beneficiary is to receive a pecuniary amount outright and no
interest or other amount is provided for by the will or by the terms of the
trust [then,] and if the pecuniary amount is not distributed to the
beneficiary within one year of the date of death of the testator or the date
the income interest ends, then the fiduciary shall distribute
to the beneficiary interest at the rate prescribed in RSA 336:1, II on
any amount that remains undistributed after such one-year anniversary until
such pecuniary amount is distributed in full.
23 Uniform Principal and Income Act; Trustee Notice. Amend RSA 564-C:5-501(a) to read as follows:
(a) Except as otherwise ordered by a court, so much of the compensation of the trustee and of any person providing investment advisory or custodial services to the trustee, and so much of the expenses for accounting, judicial proceedings, or other matters that involve the income and remainder interests as shall be determined by the trustee.
24 Uniform Principal and Income Act; Trustee Notice. Amend RSA 564-C:5-502(a)(1) to read as follows:
(1) [the
remaining 1/2 of the disbursements described in RSA 564-C:5-501(1) and (2)
except as otherwise ordered by court] Such of the disbursements described in
paragraph (a) of RSA 564-C:5-501 as are not charged to income;
25 Uniform Principal and Income Act; Trustee Notice. Amend RSA 564-C:6-602(b) to read as follows:
(b) Except as otherwise provided in this chapter, on the effective date of this chapter, the chapter shall apply:
(1) to every inter vivos trust created on or after the effective date of this chapter except as otherwise expressly provided in the terms of the trust or in this chapter;
(2) to any inter vivos trust created before the effective date of this chapter upon the election of the trustee to apply this chapter made in writing and delivered to the beneficiaries then entitled to receive income and principal from the trust;
(3) to
any estate [existing] or testamentary trust of a decedent who dies on or
after the effective date of this chapter; and
(4) to any other estate or testamentary trust upon the approval by a court of competent jurisdiction, upon either (A) a petition filed by an interested person or (B) the court on its own motion.
26 Repeal. RSA 564-A:3-c, relative to the power to convert to unitrusts, is repealed.
27 New Section; Uniform Principal and Income Act; Trustee’s Power to Convert to Unitrust. Amend RSA 564-C by inserting after section 1-105 the following new section:
564-C:1-106 Trustee’s Power to Convert to Unitrust.
(a) Unless expressly prohibited by the terms of the trust, a trustee may convert a trust into a unitrust as described in this section if all of the following apply:
(1) The trustee determines that the conversion will enable the trustee to better carry out the intent of the settlor or testator and the purposes of the trust.
(2) The trustee gives written notice of the trustee’s intention to convert the trust into a unitrust and of how the unitrust will operate, including what initial decisions the trustee will make under this section, to all the sui juris beneficiaries who:
(A) are currently eligible to receive income from the trust;
(B) would be eligible, if a power of appointment were not exercised, to receive income from the trust if the interest of all the beneficiaries eligible to receive income under subparagraph (a)(2)(A) were to terminate immediately before the giving of notice; and
(C) would receive, if no powers of appointment were exercised, a distribution of principal if the trust were to terminate immediately prior to the giving of notice.
(3) There is at least one sui juris beneficiary under subparagraph (a)(2)(A) and at least one sui juris beneficiary under subparagraph (a)(2)(B).
(4) No sui juris beneficiary objects to the conversion to a unitrust in a writing delivered to the trustee within 60 days of the mailing of the notice under subparagraph (a)(2).
(b)(1) The trustee may petition the court to approve the conversion to a unitrust if any of the following apply:
(A) A beneficiary timely objects to the conversion to a unitrust.
(B) There are no sui juris beneficiaries under subparagraph (a)(2)(A).
(C) There are no sui juris beneficiaries under subparagraph (a)(2)(C).
(2) A beneficiary may request a trustee to convert to a unitrust. If the trustee does not convert, the beneficiary may petition the court to order the conversion.
(3) The court shall approve the conversion or direct the requested conversion if the court concludes that the conversion will enable the trustee to better carry out the intent of the settlor or testator and the purposes of the trust.
(c) In deciding whether to exercise the power conferred by paragraph (a), a trustee may consider, among other things, all of the following:
(1) the size of the trust;
(2) the nature and estimated duration of the trust;
(3) the liquidity and distribution requirements of the trust;
(4) the needs for regular distributions and preservation and appreciation of capital;
(5) the expected tax consequences of the conversion;
(6) the assets held in the trust; the extent to which they consist of financial assets; interests in closely held enterprises, tangible and intangible personal property or real property; and the extent to which an asset is used by a beneficiary.
(7) to the extent reasonably known to the trustee, the needs of the beneficiaries for present and future distributions authorized or required by the terms of the trust;
(8) whether and to what extent the terms of the trust gives the trustee the power to invade principal or accumulate income or prohibits the trustee from invading principal or accumulating income and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income; and
(9) the actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation.
(d) After a trust is converted to a unitrust, all of the following apply:
(1) The trustee shall follow an investment policy seeking a total return for the investments held by the trust, whether the return is to be derived:
(A) from appreciation of capital;
(B) from earnings and distributions from capital; or
(C) from both.
(2) The trustee shall make regular distributions in accordance with the governing instrument construed in accordance with the provisions of this section.
(3) Under the terms of the trust, the term “income” shall mean an annual distribution (the unitrust distribution) equal to not less than 3 percent nor more than 5 percent (the payout percentage) of the net fair market value of the trust’s assets as determined at the end of the calendar year, whether such assets would be considered income or principal under other provisions of this chapter, averaged over the lesser of:
(A) The 3 preceding years; or
(B) The period during which the trust has been in existence.
(e) The trustee may in the trustee’s discretion from time to time determine all of the following:
(1) The effective date of a conversion to a unitrust.
(2) The provisions for prorating a unitrust distribution for a short year in which a beneficiary’s right to payments commences or ceases.
(3) The frequency of unitrust distributions during the year.
(4) The effect of other payments from or contributions to the trust on the trust’s valuation.
(5) How frequently to value nonliquid assets and whether to estimate their value.
(6) Whether to omit from the calculations trust property occupied or possessed by a beneficiary.
(7) Any other matters necessary for the proper functioning of the unitrust.
(f)(1) Expenses which would be deducted from income if the trust were not a unitrust may not be deducted from the unitrust distribution.
(2) Unless otherwise provided by the governing instrument, the unitrust distribution shall be paid from net income, as such term would be determined if the trust were not a unitrust. To the extent net income is insufficient, the unitrust distribution shall be paid from net realized short-term capital gains. To the extent income and net realized short-term capital gains are insufficient, the unitrust distribution shall be paid from net realized long-term capital gains. To the extent income and net realized short-term and long-term capital gains are insufficient, the unitrust distribution shall be paid from the principal of the trust.
(g) The trustee or, if the trustee declines to do so, a beneficiary may petition the court to:
(1) select a payout percentage different than 3 to 5 percent;
(2) provide for a distribution of net income, as would be determined if the trust were not a unitrust, in excess of the unitrust distribution if such distribution is necessary to preserve a tax benefit;
(3) average the valuation of the trust’s net assets over a period other than 3 years; or
(4) Reconvert from a unitrust.
(h) A conversion to a unitrust does not affect a term of the trust directing or authorizing the trustee to distribute principal or authorizing a beneficiary to withdraw a portion or all of the principal.
(i) A trustee may not convert a trust into a unitrust in any of the following circumstances:
(1) If payment of the unitrust distribution would change the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets.
(2) If the unitrust distribution would be made from any amount which is permanently set aside for charitable purposes under the terms of the trust and for which a federal estate or gift tax deduction has been taken, unless both income and principal are so set aside.
(3) If:
(A) Possessing or exercising the power to convert would cause an individual to be treated as the owner of all or part of the trust for federal income tax purposes; and
(B) The individual would not be treated as the owner if the trustee did not possess the power to convert.
(4) If:
(A) possessing or exercising the power to convert would cause all or part of the trust assets to be subject to federal estate or gift tax with respect to an individual; and
(B) the assets would not be subject to federal estate or gift tax with respect to the individual if the trustee did not possess the power to convert.
(5) If the conversion would result in the disallowance of a federal estate tax or gift tax marital deduction which would be allowed if the trustee did not have the power to convert.
(6) If the trustee is a beneficiary of the trust.
(j)(1) If subparagraph (i)(3), (i)(4), or (i)(5) applies to a trustee and there is more than one trustee, a cotrustee to whom the provision does not apply may convert the trust, unless the exercise of the power by the remaining trustee or trustees is prohibited by the terms of the trust.
(2) If subparagraph (i)(3), (i)(4), or (i)(5) applies to all the trustees, the trustees may petition the court to direct a conversion.
(k) A trustee may permanently release the power conferred by paragraph (a) or may release the power conferred by paragraph (a) for a specified period including a period measured by the life of an individual to convert to a unitrust if any of the following apply:
(1) The trustee is uncertain about whether possessing or exercising the power will cause a result described in subparagraph (i)(3), (i)(4), or (i)(5).
(2) The trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in paragraph (i).
(l) The provisions of RSA 564-B:3-304 shall apply with respect to beneficiaries other than sui juris beneficiaries.
(m) Any
trustee or disinterested person who in good faith takes or fails to take any
action under this section shall not be liable to any person affected by such
action or inaction, regardless of whether such person received written notice
as provided in this section and regardless of whether such person was under a
legal disability at the time of the delivery of such notice. Such person’s exclusive remedy shall be to
obtain an order of the court directing the trustee to convert an income trust
to a unitrust, to reconvert from a unitrust to an income trust, or to change
the percentage used to calculate the unitrust amount.
(n) This
section shall be construed as pertaining to the administration of a trust and
shall be available to any trust that is administered in
(1) the terms of the trust reflect an intention that the current beneficiary or beneficiaries are to receive an amount other than a reasonable current return from the trust;
(2) the trust is a trust having a guaranteed annuity interest or fixed percentage interest as described in section 170(f)(2)(B) of the Internal Revenue Code, a pooled income fund (within the meaning of section 642(c)(5) of the Internal Revenue Code), a charitable remainder trust (within the meaning of section 664(d) of the Internal Revenue Code), a qualified subchapter S trust (within the meaning of section 1361(c) of the Internal Revenue Code), a personal residence trust (within the meaning of section 2702(a)(3)(A) of the Internal Revenue Code), or a trust in which one or more settlors retained a qualified interest (within the meaning of section 2702(b) of the Internal Revenue Code);
(3) one or more persons to whom the trustee could distribute income have a power of withdrawal over the trust that is not subject to an ascertainable standard or that can be exercised to discharge a duty of support he or she possesses; or
(4) the terms of the trust expressly prohibit the use of this section by specific reference to the chapter or expressly states the settlor’s intent that net income not be calculated as a unitrust amount.
28 New Chapter; Qualified Dispositions in Trust Act. Amend RSA by inserting after chapter 564-C the following new chapter:
CHAPTER 564-D
QUALIFIED DISPOSITIONS IN TRUST ACT
564-D:1 Definitions.
II. “Creditor” means, with respect to a transferor, a person who has a claim.
III. “Debt” means liability on a claim.
IV. “Disposition,” means a conveyance, assignment or any other transfer of property, including a change in the legal ownership of property occurring upon the substitution of one trustee for another or the addition of one or more new trustees, or the exercise of a power so as to cause a transfer of property to a trustee or trustees. The term “disposition” shall not include the release or relinquishment of an interest in property that theretofore was the subject of a qualified disposition.
V. “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended and as in effect from time to time.
VI. “Property” means real property, personal property, and interests in real or personal property.
VII. “Qualified disposition” means a disposition by or from a transferor to a qualified trustee or qualified trustees, with or without consideration, by means of a trust instrument.
VIII. “Spouse” and “former spouse” means only persons to whom the transferor was married at, or before, the time the qualified disposition is made.
IX. “Transferor” means any person as an owner of property; as a holder of a power of appointment which authorizes the holder to appoint in favor of the holder, the holder’s creditors, the holder’s estate, or the creditors of the holder’s estate; or as a trustee, directly or indirectly, who makes a disposition or causes a disposition to be made.
564-D:2 Trust Instrument Defined.
I. For the purposes of this chapter, a trust instrument is a trust instrument (within the meaning of RSA 564-B:1-103(20)) that appoints a qualified trustee for the property that is the subject of a disposition and meets the following requirements:
(a) The trust instrument expressly incorporates the law of this state to govern the validity, construction, and administration of the trust;
(b) The trust instrument is irrevocable; and
(c) The trust instrument provides that the interest of the transferor or other beneficiary in the trust property or the income therefrom may not be transferred, assigned, pledged, or mortgaged, whether voluntarily or involuntarily, before the qualified trustee or qualified trustees actually distribute the property or income therefrom to the beneficiary, and such provision of the trust instrument shall be deemed to be a restriction on the transfer, assignment, pledge, or mortgage of the transferor’s beneficial interest in the trust that is enforceable under applicable nonbankruptcy law within the meaning of section 541(c)(2) of the Bankruptcy Code (11 U.S.C. section 541(c)(2)) as it exists as of the time such restriction is established.
II. For purposes subparagraph I(b), a trust instrument shall not be deemed revocable on account of the inclusion of any one or more of the following rights, powers and interests:
(a) A transferor’s power to veto a distribution from the trust;
(b) A power of appointment, other than a power to appoint to the transferor, the transferor’s creditors, the transferor’s estate, or the creditors of the transferor’s estate, exercisable by will or other written instrument of the transferor effective only upon the transferor’s death;
(c) The transferor’s potential or actual receipt of income, including rights to such income retained in the trust instrument;
(d) The transferor’s potential or actual receipt of income or principal from a charitable remainder unitrust or charitable remainder annuity trust (each within the meaning of section 664(d) of the Internal Revenue Code) and the transferor’s right, at any time, and from time to time, to release, in writing delivered to the qualified trustee, all or any part of the transferor’s retained interest in such trust, in favor of one or more charitable organizations that have a remainder interest in such trust at the time of such release;
(e) The transferor’s receipt each year of a percentage, not to exceed 5 percent, specified in the trust instrument of the initial value of the trust assets or their value determined from time to time pursuant to the trust instrument;
(f) The transferor’s potential or actual receipt or use of principal if such potential or actual receipt or use of principal would be the result of a qualified trustee or qualified trustees, including a qualified trustee or qualified trustees acting at the direction of a trust advisor described in RSA 564-D:4, acting either in such qualified trustee’s or qualified trustees’ sole discretion or pursuant to an ascertainable standard contained in the trust instrument;
(g) The transferor’s right to remove a trustee or trust advisor and to appoint a new trustee or trust advisor, other than a person who is a related or subordinate party with respect to the transferor (within the meaning of section 672(c) of the Internal Revenue Code);
(h) The transferor’s potential or actual use of real property held under a personal residence trust (within the meaning of such term as described in section 2702(c) of the Internal Revenue Code);
(i) The transferor’s potential or actual receipt or use of a qualified annuity interest (within the meaning of such term described in section 2702 of the Internal Revenue Code); and
(j) The ability, whether pursuant to discretion or direction, of a qualified trustee to pay, after the transferor’s death, all or any part of the transferor’s debts outstanding at the time of the transferor’s death, the expenses of administering the transferor’s estate, or any estate inheritance tax imposed on or with respect to the transferor’s estate.
III. For purposes of subparagraph I(b), a trust instrument shall not be deemed revocable on account of the transferor’s potential or actual receipt of income or principal to pay, in whole or in part, income taxes due on trust income if such receipt of income or principal is pursuant to a provision in the trust instrument that expressly provides for the payment of such taxes and such receipt of income or principal results from (i) the qualified trustee’s acting in such qualified trustee’s discretion or (ii) the qualified trustee acting at the direction of a trust advisor who is acting in such trust advisor’s discretion. Any distribution to pay income taxes made under discretion included in a trust instrument pursuant to subparagraphs II(c), (f), and (i) may be made by direct payment to the taxing authorities.
IV. A disposition by a trustee that is not a qualified trustee to a trustee that is a qualified trustee may not be treated as other than a qualified disposition solely because the trust instrument fails to meet the requirements of paragraph I.
564-D:3 Qualified Trustee Defined. For the purposes of this chapter, a qualified trustee is any person, other than the transferor, who in the case of a natural person, is a resident of this state or who, in all other cases, is a state or federally chartered bank or trust company having a place of business in New Hampshire, is authorized to engage in a trust business in this state, and maintains or arranges for custody in this state of some or all of the property that is the subject of the qualified disposition, maintains records in this state for the trust on an exclusive or nonexclusive basis, prepares or arranges for the preparation in this state of fiduciary income tax returns for the trust, or otherwise materially participates in this state in the administration of the trust.
564-D:4 Persons Not Eligible to be Considered a Qualified Trustee; Appointment of Trust Advisors. Neither the transferor nor any other natural person who is a nonresident of this state nor an entity that is not authorized by the law of this state to act as a trustee or whose activities are not subject to supervision as provided in RSA 564-D:3 may be considered a qualified trustee. However, nothing in this chapter precludes a transferor from appointing one or more trust advisors (whether or not such trust advisors would meet the requirements imposed by RSA 564-D:3), including, but not limited to:
I. Trust advisors who have authority under the terms of the trust instrument to remove and appoint qualified trustees or trust advisors; and
II. Trust advisors who have authority under the terms of the trust instrument to direct, consent to, or disapprove distribution from the trust. For purposes of this section, the term trust advisor includes a trust advisor as described in RSA 564-B:1-103(26), a trust protector as described in RSA 564-B:1-103(27), or any other person who, in addition to a qualified trustee, holds one or more trust powers.
564-D:5 Transferor May Serve as Trust Advisor. Any individual, including the transferor of the qualified disposition, may serve as a trust advisor as described in RSA 564-D:4. However, if such transferor serves as the trust advisor, his or her rights and powers as a trust advisor shall be limited to the right to disapprove distributions from the trust and the right to consent to a trustee’s action or inaction relating to the investment of trust assets.
564-D:6 Successor Qualified Trustee. If a qualified trustee of a trust ceases to meet the requirements of RSA 564-D:3, and there remains no trustee that meets such requirements, such formerly qualified trustee shall be deemed to have resigned as of the time of such cessation, and thereupon the successor qualified trustee provided for in the trust instrument shall become a qualified trustee of the trust, effective upon such successor qualified trustee’s acceptance of the office of trustee, or, if such named successor qualified trustee is unable or unwilling to accept such office, or if the trust instrument does not provide for any successor qualified trustee, the probate court shall, upon application of any interested party, appoint a successor qualified trustee.
564-D:7 Disposition to More Than One Trustee. In the case of a disposition to more than one trustee, a disposition that is otherwise a qualified disposition may not be treated as other than a qualified disposition solely because not all of the trustees are qualified trustees.
564-D:8 Transferor’s Powers and Rights. A qualified disposition is subject to RSA 564-D:9 to RSA 564-D:14, inclusive, notwithstanding a transferor’s retention of any or all of the powers and rights described in RSA 564-D:2, II or the transferor’s service as trust advisor pursuant to RSA 564-D:5. The transferor has only such powers and rights as are conferred by the trust instrument. Except as permitted by RSA 564-D:2 and RSA 564-D:5, a transferor has no rights or authority with respect to the property that is the subject of a qualified disposition or the income therefrom, and any agreement or understanding purporting to grant or permit the retention of any greater rights or authority is void.
564-D:9 Restrictions on Attachment or Other Provisional Remedy Against Property. Notwithstanding any other provision of law, no action of any kind, including an action to enforce a judgment entered by a court or other body having adjudicative authority, may be brought at law or in equity for an attachment or other provisional remedy against property that is the subject of a qualified disposition or for avoidance of a qualified disposition unless such action is brought pursuant to the provisions of RSA 545-A, the Uniform Fraudulent Transfer Act, or RSA 564-D:15.
564-D:10 Extinguishment of Creditor’s Claim. A creditor’s claim under RSA 564-D:9 is extinguished unless:
(a) The creditor’s claim arose before the qualified disposition was made and the action is brought within the limitations of RSA 545-A, the Uniform Fraudulent Transfer Act, in effect on the date of the qualified disposition; or
(b) Notwithstanding the provisions of RSA 545-A, the Uniform Fraudulent Transfer Act, the creditor’s claim arose on or after the date of the qualified disposition, and the action is brought within 4 years after such date.
564-D:11 Qualified Disposition Made by Transferor Who is Trustee. A qualified disposition that is made by means of a disposition by a transferor who is a trustee is deemed to have been made as of the time, whether before, on, or after the effective date of this chapter, the property that is the subject of the qualified disposition was originally transferred to the transferor (or any predecessor trustee), in a form that meets the requirements of RSA 564-D:2, II, III, and IV.
564-D:12 Creditor’s Rights With Respect to a Qualified Disposition. Notwithstanding any law to the contrary, a creditor, including a creditor whose claim arose before, at the time of or after a qualified disposition, or any other person has only such rights with respect to a qualified disposition as are provided in RSA 564-D:9 to RSA 564-D:16, inclusive, and no such creditor nor any other person has any claim or cause of action against the trustee, or an advisor described in RSA 564-D:4, of a trust that is the subject of a qualified disposition, or against any person involved in the counseling, drafting, preparation, execution, or funding of a trust that is the subject of a qualified disposition.
564-D:13 Actions Against Trustee of Trust That is the Subject of a Qualified Disposition Barred. Notwithstanding any other provision of law, no action of any kind, including an action to enforce a judgment entered by a court or other body having adjudicative authority, may be brought at law or in equity against the trustee, or advisor described in RSA 564-D:4, of a trust that is the subject of a qualified disposition, or against any person involved in the counseling, drafting, preparation, execution, or funding of a trust that is the subject of a qualified disposition, if, as of the date such action is brought, an action by a creditor with respect to such qualified disposition would be barred under RSA 564-D:9 to RSA 564-D:12, inclusive.
564-D:14 More Than One Qualified Disposition is Made by Means of Same Trust Instrument. If more than one qualified disposition is made by means of the same trust instrument:
I. The making of a subsequent qualified disposition shall be disregarded in determining whether a creditor’s claim with respect to a prior qualified disposition is extinguished as provided in RSA 564-D:10;
II. With respect to each subsequent qualified disposition, the limitations period with respect to actions brought under RSA 545-A, the Uniform Fraudulent Transfer Act, shall commence on the date such qualified disposition is made; and
III. Any distribution to a beneficiary is deemed to have been made from the latest such qualified disposition.
564-D:15 Persons Exempt From Application of Qualified Disposition Provisions.
I. Notwithstanding the provisions of RSA 564-D:9 to RSA 564-D:14, inclusive, this chapter does not apply in any respect:
(a) To any person to whom the transferor is indebted on account of an antenuptial agreement or an agreement or order of court for the payment of support or alimony in favor of such transferor’s spouse, former spouse, or children, or for a division or distribution of property in favor of such transferor’s spouse or former spouse, but only to the extent of such debt; or
(b) To any person who suffers death, personal injury, or property damage on or before the date of a qualified disposition by a transferor, which death, personal injury, or property damage is at any time determined to have been caused in whole or in part by the act or omission of either such transferor or by another person for whom such transferor is or was vicariously liable.
II. Paragraph I shall not apply to any claim for forced heirship or legitime or the elective share of the transferor’s surviving spouse, unless the transferor make the qualified disposition for the purpose of defeating the surviving spouse’s elective share rights.
564-D:16 Avoidance of Qualified Disposition. A qualified disposition is avoided only to the extent necessary to satisfy the transferor’s debt to the creditor at whose instance the disposition had been avoided, together with such costs, including attorney’s fees, as the court may allow. If any qualified disposition is avoided as provided in this section, then:
I. If the court is satisfied that a qualified trustee has not acted in bad faith in accepting or administering the property that is the subject of the qualified disposition:
(a) Such qualified trustee has a first and paramount lien against the property that is the subject of the qualified disposition in an amount equal to the entire cost, including attorney’s fees, properly incurred by such qualified trustee in the defense of the action or proceedings to avoid the qualified disposition. It is presumed that such qualified trustee did not act in bad faith merely by accepting such property; and
(b) The qualified disposition is avoided subject to the proper fees, costs, preexisting rights, claims, and interests of such qualified trustee, and of any predecessor qualified trustee that has not acted in bad faith; and
II. If the court is satisfied that a beneficiary of a trust has not acted in bad faith, the avoidance of the qualified disposition is subject to the right of such beneficiary to retain any distribution made upon the exercise of a trust power or discretion vested in the qualified trustee or qualified trustees of such trust, which power or discretion was properly exercised prior to the creditor’s commencement of an action to avoid the qualified disposition. It is presumed that the beneficiary, including a beneficiary who is also a transferor of the trust, did not act in bad faith merely by creating the trust or by accepting a distribution made in accordance with the terms of the trust.
564-D:17 Applicability. This chapter shall apply to qualified dispositions and dispositions by transferors who are trustees made after January 1, 2009.
564-D:18 Short Title.
This chapter shall be known and may be referred to as the “Qualified
Dispositions in Trust Act.”
29 Uniform Trust Code; Representation; Reference Change. Amend RSA 564-B:3-304 to read as follows:
564-B:3-304
Representation by Person Having Substantially Identical Interest. Unless otherwise represented, a minor,
incapacitated, or unborn individual, or a person whose identity or location is
unknown and not reasonably ascertainable, may be represented by and bound by
another having a substantially identical interest with respect to the
particular question or dispute, but only to the extent there is no conflict of
interest between the representative and the person represented. Nothing in this section shall expand or limit
the virtual representation of sui juris beneficiaries for purposes of RSA [564-A:3-c]
564-C:1-106.
30 Uniform Trust Code; Duties and Powers of Trustee; Reference Change. Amend RSA 564-B:8-816(a)(29) to read as follows:
(29)
convert a trust into a unitrust as provided in RSA [564-A:3-c] 564-C:1-106.
31 Uniform Principal and Income Act; Definitions; Reference Change. Amend RSA 564-C:1-102(8) to read as follows:
(8) “Net income” means the total receipts
allocated to income during an accounting period minus the disbursements made
from income during the period, plus or minus transfers under this chapter to or
from income during the period. During
any period in which the trust is being administered as a unitrust, either
pursuant to the powers conferred by RSA [564-A:3-c] 564-C:1-106 or pursuant
to the terms of the will or the trust, “net income” means the unitrust amount,
if the unitrust amount is no less than 2 percent and no more than 8 percent of
the fair market value of the trust assets whether determined annually or
averaged on a multiple year basis.
32 Uniform Principal and Income Act; Fiduciary Duties; Reference Change. Amend RSA 564-C:1-103(b) to read as follows:
(b) In
exercising the power to adjust under RSA 564-C:1-104(a), the power to convert
into a unitrust or reconvert or change the unitrust payout percentage pursuant
to RSA [564-A:3-c] 564-C:1-106 or a discretionary
power of administration regarding a matter within the scope of this chapter,
whether granted by the terms of a trust, a will, this chapter or other
applicable law, a fiduciary shall administer a trust or estate impartially,
based on what is fair and reasonable to all of the beneficiaries, except to the
extent that the terms of the trust or the will express an intention that the
fiduciary shall or may favor one or more of the beneficiaries. The exercise of discretion by a fiduciary in
accordance with this chapter is presumed to be fair and reasonable to all of
the beneficiaries.
33 Uniform Principal and Income Act; Trustee’s Power to Adjust; Reference Change. Amend RSA 564-C:1-104(c)(8) to read as follows:
(8) if the trust is being administered as a
unitrust pursuant to the trustee’s exercise of the power to convert to a
unitrust provided in RSA [564-A:3-c] 564-C:1-106 or pursuant to the
terms of the will or the terms of the trust.
34 Effective Date. This act shall take effect 60 days after its passage.
Senate Judiciary
March 18, 2008
2008-1066s
04/10
Amendment to SB 495-FN
Amend the bill by replacing all after the enacting clause with the following:
1 Child Pornography; Definitions. RSA 649-A:2 and RSA 649-A:3 are repealed and reenacted to read as follows:
649-A:2 Definitions. In this chapter:
I. “Child” means any person under the age of 16 years.
II. “Disseminate” means to import, publish, produce, print, manufacture, distribute, sell, lease, exhibit, or display.
III. “Sexually explicit conduct” means human masturbation, the touching of the actor’s or other person’s sexual organs in the context of a sexual relationship, sexual intercourse actual or simulated, normal or perverted, whether alone or between members of the same or opposite sex or between humans and animals, or any lewd exhibitions of the buttocks, genitals, flagellation, bondage, or torture. Sexual intercourse is simulated when it depicts explicit sexual intercourse that gives the appearance of the consummation of sexual intercourse, normal or perverted.
IV. “Visual representation” means any visual depiction, including any photograph, film, video, digital image, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where:
(a) The production of such visual depiction involves the use of a child engaging in or being engaged in sexually explicit conduct; or
(b) Such visual depiction is a digital image, computer image, or computer-generated image of a child engaging in or being engaged in sexually explicit conduct; or
(c) Such visual depiction has been created, adapted, or modified to appear that an identifiable child is engaging in or being engaged in sexually explicit conduct.
V.(a) “Identifiable child” means a person:
(1) Who was a child at the time the visual depiction was created, adapted, or modified; or
(2) Whose image as a child was used in creating, adapting, or modifying the visual depiction; and
(3) Who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature.
(b) The term “identifiable child” shall not be construed to require proof of the actual identity of the identifiable child.
VI. “Previous conviction” or “previously convicted” means having been convicted by a jury or a judge, or having plead guilty prior to the commission of the current offense. For purposes of this paragraph, a previous conviction need not have been affirmed on appeal.
VII. The term “computer” means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.
649-A:3 Possession of Child Sexual Abuse Images.
I. No person shall knowingly:
(a) Buy, procure, possess, or control any visual representation of a child engaging in sexually explicit conduct; or
(b) Bring or cause to be brought into this state any visual representation of a child engaging in sexually explicit conduct.
II. An offense under this section shall be a class A felony if such person has had no previous convictions in this state or another jurisdiction for the conduct prohibited by paragraph I. Upon conviction of an offense under this section based on an indictment alleging that the person has been previously convicted of an offense under this section or a reasonably equivalent offense in another jurisdiction, the defendant may be sentenced to a maximum sentence not to exceed 20 years and a minimum sentence not to exceed 1/2 of the maximum sentence.
III. It shall be an affirmative defense to a charge of violating paragraph I of this section that the defendant:
(a) Possessed less than 3 images of any visual depiction proscribed by that paragraph; and
(b) Promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof –
(1) Took reasonable steps to destroy each such visual depiction; or
(2) Reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.
2 New Sections; Child Pornography; Distribution and Manufacture of Child Sexual Abuse Images. Amend RSA 649-A by inserting after section 3 the following new sections:
649-A:3-a Distribution of Child Sexual Abuse Images.
I. No person shall:
(a) Knowingly sell, exchange, or otherwise transfer, or possess with intent to sell, exchange, or otherwise transfer any visual representation of a child engaging in or being engaged in sexually explicit conduct;
(b) Knowingly publish, exhibit, or otherwise make available any visual representation of a child engaging in or being engaged in sexually explicit conduct.
II.(a) If such person has had no previous convictions in this state or another state for the conduct prohibited by paragraph I, the defendant may be sentenced to a maximum sentence not to exceed 20 years and a minimum sentence not to exceed 1/2 of the maximum. Upon conviction of an offense under this section based on an indictment alleging that the person has been previously convicted of an offense under this section or a reasonably equivalent offense in an out-of-state jurisdiction, the defendant may be sentenced to a maximum sentence not to exceed 30 years and a minimum sentence not to exceed 1/2 of the minimum.
(b) If such person has no previous convictions in this state or another state for the conduct prohibited in paragraph I, and is convicted under section I(b) with having less than three images or visual representations, the defendant will be guilty of a class B felony.
III. Nothing in this chapter shall be construed to limit any law enforcement agency from possessing or displaying or otherwise make available any images as may be necessary to the performance of a valid law enforcement function.
649-A:3-b Manufacture Of Child Sexual Abuse Images.
I. No person shall knowingly create, produce, manufacture, or direct a visual representation of a child engaging in or being engaged in sexually explicit conduct, or participate in that portion of such visual representation that consists of a child engaging in or being engaged in sexually explicit conduct.
II. If such person has had no previous convictions in this state or another state for the conduct prohibited in this section, the defendant may be sentenced to a maximum sentence not to exceed 30 years and a minimum sentence not to exceed 1/2 of the maximum. Upon conviction of an offense under this section based on an indictment alleging that the person has been previously convicted of an offense under this section or a reasonably equivalent offense in an out-of-state jurisdiction, a person may be sentenced to life imprisonment or for such term as the court may order.
3 New Sections; Child Pornography; Proving Age of Child; Discovery. Amend RSA 649-A by inserting after section 5 the following new sections:
649-A:6 Proving Age of Child. Whether a child depicted in a visual representation is a minor for the purposes of this section is a question of fact for the jury and may be found by expert or lay testimony, or by viewing the images.
649-A:7 Discovery.
I. In any criminal proceeding, any material that constitutes a visual representation of a child engaging in or being engaged in sexually explicit conduct shall remain in the care, custody, and control of the state or the court.
II. The state shall provide ample opportunity for the defendant, his or her attorney, or any individual the defendant may seek to qualify to furnish expert testimony at trial to inspect, view, and examine the property or material at a state facility.
III. Upon a defense motion establishing that it is necessary to copy, photograph, duplicate, or otherwise reproduce such material or property in order to prepare a defense, the court may authorize such action, provided that the court’s order include a protective order prohibiting disclosure of the material or property to any one other than the defendant, his or her attorney, or any individual the defendant may seek to qualify to furnish expert testimony at trial, and requiring that all such materials and property provided to the defense be returned to the state at the end of the case.
3 Computer Pornography and Child Exploitation Prevention; Certain Uses of Computer Services Prohibited. RSA 649-B:4 is repealed and reenacted to read as follows:
649-B:4 Certain Uses of Computer Services Prohibited.
I. No person shall knowingly utilize a computer on-line service, internet service, or local bulletin board service to seduce, solicit, lure, or entice a child or another person believed by the person to be a child, to commit any of the following:
(a) Any offense under RSA 632-A, relative to sexual assault and related offenses.
(b) Indecent exposure and lewdness under RSA 645:1.
(c) Endangering a child as defined in RSA 639:3, III.
II.(a) A person who violates the provisions of paragraph I shall be guilty of a class A felony if such person believed the child was under the age of 13, otherwise such person shall be guilty of a class B felony.
(b) A person convicted under paragraph I based on an indictment alleging that the person has been previously convicted of an offense under this section or a reasonably equivalent offense in an out-of-state jurisdiction shall be charged as a class A felony. If the indictment also alleges that the person believed that the child was under the age of 13, the person may be sentenced to a maximum sentence not to exceed 20 years and a minimum sentence not to exceed 10 years.
(c) If the person has been previously convicted 2 or more times for an offense under this section or a reasonably equivalent statute in another state, the person may be sentenced to a maximum term not to exceed 30 years.
III. It shall not be a defense to a prosecution under this section that the victim was not actually a child so long as the person reasonably believed that the victim was a child.
4 Indecent Exposure and Lewdness. RSA 645:1 is repealed and reenacted to read as follows:
645:1 Indecent Exposure and Lewdness.
I. A person is guilty of a misdemeanor if such person fornicates, exposes his or her genitals, or performs any other act of gross lewdness under circumstances which he or she should know will likely cause affront or alarm.
II. A person is guilty of a class B felony if:
(a) Such person purposely performs any act of sexual penetration or sexual contact on himself or herself or another in the presence of a child who is less than 16 years of age.
(b) Such person purposely transmits to a child who is less than 16 years of age, or an individual whom the actor reasonably believes is a child who is less than 16 years of age, an image of himself or herself fornicating, exposing his or her genitals, or performing any other act of gross lewdness.
(c) Having previously been convicted of an offense under paragraph I, or of an offense that includes the same conduct under any other jurisdiction, the person subsequently commits an offense under paragraph I.
III. A person shall be guilty of a class A felony if having previously been convicted of 2 or more offenses under paragraph II, or a reasonably equivalent statute in another state, the person subsequently commits an offense under this section.
5 New Section; Registration of Criminal Offenders; Online Identifiers Amend RSA 651-B by inserting after section 4 the following new section:
651-B:4-a Registration of Online Identifiers. In addition to any other information a person who is required to register is required to provide pursuant to RSA 651-B:4, such person shall report any online identifier such person uses or intends to use. For purposes of this section, “online identifier” includes all of the following: electronic mail address, instant message screen name, user identification, user profile information, and chat or other Internet communication name or identity information. Such person shall report any changes to an existing online identifier, or the creation of any new online identifier to law enforcement before using the online identifier.
6 New Subparagraph; Registration of Criminal Offenders; Availability of Information to the Public. Amend RSA 651-B:7, II by inserting after subparagraph (b)(1)(E) the following new subparagraph:
(F) Any online identifiers, as defined in RSA 651-B:4-a, used by the individual.
7 School Employee and Volunteer Background Investigations. Amend RSA 189:13-a, V to read as follows:
V. Any person who
has been convicted of any violation or attempted violation of RSA 630:1;
630:1-a; 630:1-b; 630:2; 632-A:2; 632-A:3; 632-A:4; 633:1; 639:2; 639:3; 645:1,
[I(b),] II[,] or III; 645:2; 649-A:3; 649-A:3-a; 649-A:3-b;
649-B:3; or 649-B:4; or any violation or any attempted violation of
RSA 650:2 where the act involves a child in material deemed obscene; in
this state, or under any statute prohibiting the same conduct in another state,
territory, or possession of the United States, shall not be hired by a school
administrative unit, school district, or charter school. By decision of the appropriate governing
body, a school administrative unit, school district, or charter school may deny
a selected applicant a final offer of employment if such person has been
convicted of any felony in addition to those listed above. The governing body may adopt a policy stating
that any person who has been convicted of any felony, or any of a list of
felonies, shall not be hired.
8 Registration of Criminal Offenders; Definitions. Amend RSA 651-B:1, V(b) to read as follows:
(b) RSA 169-B:41, II, 639:3, III, 649-A:3, 649-A:3-a, 649-A:3-b, 649-B:3, 649-B:4, or 650:2, II; or
9 Registration of Criminal Offenders; Duration of Registration. Amend RSA 651-B:6, I to read as follows:
I. Any sexual offender required to register as a result of a violation or attempted violation of RSA 632-A:2, 632-A:3, or 645:1, III, and any offender against children required to register as a result of a violation or attempted violation of RSA 169-B:41, II, 632-A:2, 633:1, 633:2, 639:2, 639:3, III, 645:2, II, 649-A:3, I, 649-A:3-a, 649-A:3-b, 649-B:3, 649-B:4, or 650:2, II, or of an equivalent offense in an out-of-state jurisdiction, shall be registered for life.
10 New Paragraph; Registration of Criminal Offenders; Release of Certain Sexual Offenders Into the Community. Amend RSA 651-B:3 by inserting after paragraph III the following new paragraph:
IV. In the discretion of the local law enforcement agency or the department, such agency or the department may affirmatively verify the address of any offender within that agency’s jurisdiction through in-person contact at the home or residence of the offender.
11 Effective Date. This act shall take effect January 1, 2009.
2008-1066s
AMENDED ANALYSIS
This bill:
I. Increases the penalties for possession of images of a child engaging in sexually explicit conduct.
II. Establishes penalties for manufacture and distribution of images of a child engaging in sexually explicit conduct.
III. Redefines “visual representation” of sexually explicit images.
IV. Increases the penalties for use of the Internet or other computer service to seduce, solicit, lure, or entice a child or a person believed to be a child to commit a sexual assault.
V. Requires sexual offenders and offenders against children to report any online identifiers used.
VI. Permits the department of safety or a local law enforcement agency to verify the address of a sex offender through in-person contact at the offender’s home or residence.
Commerce, Labor and Consumer Protection
March 18, 2008
2008-1055s
01/09
Amendment to SB 540-FN
Amend the title of the bill by replacing it with the following:
AN ACT relative to New Hampshire HealthFirst, an affordable, wellness-based health insurance plan for small employers.
Amend the bill by replacing section 1 with the following:
1 New Section; New Hampshire HealthFirst; Standard Wellness Plan for Small Employers. Amend RSA 420-G by inserting after section 4-a the following new section:
420-G:4-b New Hampshire HealthFirst; Standard Wellness Plan for Small Employers.
I. The purpose of this section is to:
(a) Promote the availability of more affordable health coverage in the small employer market by engaging consumers, health care providers, insurers, and small employers to address the underlying costs of health care through better care management and more efficient utilization of health care services without increasing overall cost sharing requirements or reducing coverage for services essential to health and wellness.
(b) Enhance competition among health carriers in the small employer market by facilitating comparison of a standard plan.
II. If a health carrier offers coverage in the small employer market in this state and had at least 1,000 covered lives in this market at the end of the prior calendar year, such carrier shall be required to offer the standard wellness plan to small employers. The standard wellness plan shall be offered on a guaranteed issue basis to all small employers in the state. If a health carrier is part of an insurance holding company system, as defined in RSA 401-B:1, IV, in which 2 or more affiliates, as defined in RSA 401-B:1, I, are licensed health carriers in the state with a combined New Hampshire small group membership of at least 1,000 covered lives at the end of the prior calendar year, the requirement in this paragraph to offer the standard wellness plan to all small employers shall apply. However, only one such health carrier affiliate in the holding company group shall be subject to the requirement.
III. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the requirements for the standard wellness plan. Before adopting rules, the commissioner shall convene a standing advisory committee to include representatives of small employers, business groups and associations of small employers, consumers who obtain their coverage through the small employer market, one representative, appointed by the speaker of the house of representatives and one member of the senate, appointed by the president of the senate. The advisory committee shall, at least once every 3 years, make recommendations to the insurance commissioner on the requirements for the standard wellness plan. Prior to making these recommendations, the advisory committee shall consult with interested health carriers, health insurance producers, health care providers, and, as necessary and appropriate, other available experts. The plan shall include benefit structure, cost sharing requirements, and provider payment initiatives to promote the delivery of quality care. The committee shall recommend an out-of-pocket maximum for the standard wellness plan.
IV. The commissioner shall ensure that the standard wellness plan creates incentives for consumers, health care providers, employers, and/or health carriers to:
(a) Promote wellness.
(b) Promote primary care, preventive care, and a medical home model.
(c) Manage and coordinate care for persons with chronic health conditions or acute illness.
(d) Promote the use of cost effective care.
(e) Promote quality of care by the use of evidence-based, best practice standards and patient-centered care.
V. To the extent practicable, health carriers shall be permitted to utilize existing programs to meet the requirements for the standard wellness plan.
VI. The plan shall be made available in accordance with this section on or before October 1, 2009 and shall be reviewed and revised as necessary, but no less frequently than once every 3 years thereafter.
VII.(a) The standard wellness plan requirements shall be established so that small employer health insurance carriers would be reasonably expected to set the plan’s health coverage plan rate, as defined in RSA 420-G:4, I(c), at or below 10 percent of the prior year’s median statewide wage as reported by the United States Department of Labor. Small employer carriers shall be required to file their standard wellness plan rates 60 days prior to the date on which the plan is to be made available. If no small employer carrier files a health coverage plan rate at or below the stated target, then the commissioner shall engage actuarial experts at the expense of the small employer carriers who are subject to the requirements of this section and hold a hearing to determine whether small employer carriers shall be compelled to offer the standard wellness plan at a health coverage plan rate equal to the target or whether changes should be made to the standard wellness plan requirements to adjust benefits or cost sharing requirements.
(b) Between plan revisions, carriers may request rate adjustments with appropriate supporting documentation. However, the commissioner shall not grant any rate adjustment in excess of the carrier’s overall small group trend.
VIII. In establishing the requirements for the standard wellness plan, the commissioner:
(a) May require the use of qualified wellness or disease management programs and the use of rating factors for such programs as provided in RSA 420-G:4-a.
(b) Shall prohibit small employer carriers from offering nonconforming products with similar benefit designs with the intent or likely effect of undermining the purposes of this section.
(c) Shall require small employer carriers to illustrate or quote the standard wellness plan together with any proposal or quote provided to any small employer.
IX. Except as specifically provided in this section, all statutory and regulatory requirements applicable to small employer health benefit plans shall apply to the standard wellness plan.
2008-1055s
AMENDED ANALYSIS
This bill establishes New Hampshire HealthFirst, a standard wellness plan for small employers.
Senate Finance
March 17, 2008
2008-1040s
09/10
Amendment to SB 543
Amend subparagraph I(g) of section 2 of the bill by replacing it with the following:
(g) The commissioner of the department of administrative services, or designee.
(h) One public member with knowledge of court security issues, appointed by the governor
Amend the bill by replacing section 3 with the following:
3 Duties. The commission shall study issues related to
security in
Amend the bill by replacing section 5 with the following:
5 Report. The commission shall report its findings and any recommendations for proposed legislation to the president of the senate, the speaker of the house of representatives, the senate clerk, the house clerk, the governor, the chief justice of the supreme court, and the state library on or before November 1, 2008.
Sen. Fuller Clark, Dist. 24
March 18, 2008
2008-1057s
06/09
Amendment to HB 1151
Amend the bill by replacing all after section 3 with the following:
4 Change in Effective Date. Amend RSA 2007, 267:15, IV to read as follows:
IV. The remainder
of this act shall take effect [April] July 1, 2008.
5 Repeal. The following are repealed:
II. 2007, 267:15, II and III, relative to effective dates.
6 Effective Date.
I. Sections 4 and 5 of this act shall take effect upon its passage.
II. The remainder of this act shall take effect 60 days after its passage.
MEETING
FRIDAY, MARCH 21, 2008
IMPLEMENTING A RECOMMENDATION OF THE NH ESTUARIES PROJECT MANAGEMENT PLAN (SB 70, Chapter 236:1, Laws of 2003)
Cancelled Urban