TITLE LV
PROCEEDINGS IN SPECIAL CASES

CHAPTER 541-A
ADMINISTRATIVE PROCEDURE ACT

Section 541-A:19

    541-A:19 Interim Rules. –
I. An agency may adopt as an interim rule any rule which amends an existing rule, repeals an existing rule, or creates a new rule, and which is designed solely to allow the agency to:
(a) Conform with a new or amended codified state statute or chaptered session law, provided, however, that an agency shall not publish notice of a proposed interim rule more than 180 days after the effective date of the new or amended codified state statute or chaptered session law;
(b) Conform with a controlling judicial decision;
(c) Conform with a federal requirement which must be met sooner than the time periods allowed under RSA 541-A for a rule adopted under the procedures listed in RSA 541-A:3;
(d) Continue its rules which would otherwise expire prior to the completion of the readoption of the rules by the agency; or
(e) Minimize the time between the expiration of rules and their subsequent readoption by the agency.
II. An agency may adopt an interim rule under subparagraphs I(a), (b), or (c) without meeting the requirements of RSA 541-A:6 and RSA 541-A:9 through RSA 541-A:14 and an agency may adopt an interim rule under subparagraph I(d) or (e) without meeting the requirements of RSA 541-A:5 through RSA 541-A:14 provided the agency:
(a) Publishes notice of a proposed interim rule in a newspaper of daily statewide circulation and files the proposed interim rule, with the cover sheet as provided in paragraph IV, with the director of legislative services no later than the date of publication of the notice; or
(b) Files the proposed interim rule with the cover sheet as provided in paragraph IV, and the notice of the proposed interim rule with the director of legislative services, and has published notice in the rulemaking register.
III. Notice of an agency's intent to propose an interim rule shall include:
(a) The name and address of the agency.
(b) Citation to the statutory or other rulemaking authority for the proposed interim rule.
(c) Whether the proposed interim rule is an adoption, readoption, amendment, readoption with amendment, or repeal.
(d) The rule number and title.
(e) A concise summary explaining the effect of the proposed interim rule.
(f) A listing of people, enterprises, and government agencies affected by the proposed interim rule.
(g) A summary of the effect upon the state if the proposed interim rule were not adopted.
(h) The name, address, and telephone number of an individual in the agency able to answer questions on the proposed interim rule.
(i) The date the proposed interim rule will be filed with the director of legislative services.
(j) The expected date of review by the committee.
IV. Proposed interim rules filed under paragraph II shall include a cover sheet stating:
(a) The name and address of the agency.
(b) Citation to the statutory rulemaking authority for the proposed interim rule.
(c) Whether the intended action is an adoption, readoption, amendment, readoption with amendment, or repeal.
(d) The rule number and title.
(e) A signed and dated statement by the adopting authority explaining why an interim rule is necessary, including documentary evidence to prove the agency is acting in accordance with the terms of this section and is not adopting an interim rule solely to avoid the time periods imposed by RSA 541-A, except as provided in paragraph I of this section.
(f) A listing of people, enterprises, and government agencies affected by the proposed interim rule.
(g) The name, address, and telephone number of an individual in the agency able to answer questions on the proposed interim rule.
V. A proposed interim rule filed under paragraph II no less than 21 days before a regularly scheduled committee meeting shall be placed on the committee's agenda for review for that meeting. Publication of notice shall occur no less than 14 days before a regularly scheduled meeting. If the agency has published notice in a newspaper, pursuant to subparagraph II(a), the agency shall file a copy of the notice as it was published no later than 3 days after the date of publication. Proposed interim rules filed less than 21 days before a regularly scheduled committee meeting shall be placed on the agenda for review at the following regularly scheduled committee meeting or at a special meeting, as determined by the committee.
VI. The committee shall vote to approve or conditionally approve the rule or object under paragraph VII. Objections to a proposed interim rule may be made only once.
VII. The committee may object to a proposed interim rule if the rule is:
(a) Beyond the authority of the agency;
(b) Contrary to the intent of the legislature;
(c) Determined not to be in the public interest; or
(d) Deemed by the committee not to meet the requirements of paragraph I.
VIII. The following procedures shall govern committee review of interim rules:
(a) The director of legislative services shall notify the agency of any potential bases for committee objection by forwarding a copy of the proposed interim rule with comments noted thereon to the agency at least 7 days prior to the committee meeting at which the rule will be considered. Following receipt of the comments an agency may file a request for conditional approval of its interim rule with an amendment to address the noted potential bases for objection, or for other reasons in lieu of requesting an objection. Both the request for conditional approval and the amendment shall be in writing and shall be filed at least 3 days prior to the meeting for which the proposed interim rule has been placed on the agenda. An agency may request a waiver pursuant to RSA 541-A:40, IV of the 3-day deadline for good cause as established in the drafting and procedure manual under RSA 541-A:8, but the committee may for compelling reasons under the committee's rules pursuant RSA 541-A:2, II accept a request for a conditional approval in the meeting. The committee may approve the rule as originally proposed or conditionally approve the rule under subparagraph (b).
(b) If the committee objects to the proposed interim rule as filed, it shall so inform the agency. In lieu of an objection, and with or without a written request under subparagraph (a), the committee may vote to conditionally approve the rule with an amendment, provided that the committee specified in its conditional approval the language of the amendment to address the basis for a preliminary objection. The committee shall notify the agency in writing of its conditional approval. Within 14 days of the meeting, the agency shall submit a written explanation to the committee in the form of a letter and an annotated text of the final proposed rule detailing how the rule has been amended in accordance with the conditional approval. The written explanation shall be signed by the individual holding rulemaking authority, or, if a body of individuals holds rulemaking authority, by a voting member of that body, provided that a quorum of the body has approved. Failure to submit a written explanation in accordance with the conditional approval and this paragraph shall cause the conditional approval to be deemed a committee vote to make a preliminary objection on the date of the conditional approval. If the committee legal counsel determines that the agency has amended the rule in accordance with the conditional approval and this paragraph, the committee legal counsel shall promptly send written confirmation of compliance to the agency. The agency may then adopt the rule as amended.
(c) If the committee objects to the proposed interim rule as filed pursuant to subparagraph VIII(a), the committee shall send the agency a written objection stating the basis for the objection. An objection or a conditional approval shall require the assent of a majority of the votes cast, a quorum being present.
(d) If the committee makes an objection to the proposed interim rule pursuant to subparagraph VIII(c), the agency may cure the defect or withdraw the interim rule. The agency shall respond to a committee objection only once, and shall report its response in writing to the committee prior to its next regularly scheduled meeting. Failure to respond to the committee in accordance with this subparagraph shall mean the rulemaking procedure for that proposed interim rule is invalid; however, the agency is not precluded from initiating the process over again for a similar rule, provided the conditions in paragraph I are met.
(e) The committee shall review the response and vote to approve the response or continue the objection.
(f) The committee's objection shall not preclude the agency from adopting the substance of an interim rule by meeting the requirements of RSA 541-A:3.
IX. No proposed interim rule shall be adopted unless within 90 days of publication of the notice the committee votes to approve or conditionally approve the proposed interim rule.
X. No proposed interim rule shall be adopted unless the committee has voted to approve the proposed interim rule or conditionally approve the proposed interim rule, provided that the committee legal counsel has sent written confirmation to the agency pursuant to RSA 541-A:19, VIII(b). An adopted interim rule shall be filed with the director of legislative services no later than 30 days following committee approval or conditional approval. An interim rule shall be effective under RSA 541-A:16, III on the day after filing with the director of legislative services, or at a later date, provided the agency so specifies in a letter to the director of legislative services and the effective date is within 30 days following committee approval or conditional approval. Interim rules shall be effective for a period not to exceed 180 days. During the time an interim rule shall be in effect, the agency may propose a permanent rule to replace the interim rule once it expires, but it shall not adopt another interim rule to replace the expiring interim rule.

Source. 1994, 412:1. 2000, 288:17, 18. 2003, 309:1; 319:165. 2006, 145:8, 9, eff. July 21, 2006. 2011, 252:13, eff. Sept. 11, 2011. 2020, 37:76, 77, eff. Sept. 27, 2020.