A “rule” is defined in RSA 541-A:1, XV as follows: “ ‘Rule’ means each regulation, standard, form as defined in paragraph VII-a, or other statement of general applicability adopted by an agency to (a) implement, interpret, or make specific a statute enforced or administered by such agency or (b) prescribe or interpret an agency policy, procedure or practice requirement binding on persons outside the agency, whether members of the general public or personnel in other agencies.” [emphasis added]

The term “rule” does not include “(a) internal memoranda which set policy applicable only to its own employees and which do not affect private rights or change the substance of rules binding upon the public, (b) informational pamphlets, letters, or other explanatory material which refer to a statute or rule without affecting its substance or interpretation, (c) personnel records relating to the hiring, dismissal, promotion, or compensation of any public employee, or the disciplining of such employee, or the investigating of any charges against such employee, or (d) declaratory rulings.” [emphasis added]

Therefore a recommendation is not a rule because it is not binding. A “declaratory ruling” as defined in RSA 541-A:1, V is also not a rule because it is “an agency ruling as to the specific applicability of any statutory provision or of any rule or order of the agency” [emphasis added], instead of a statement of general applicability.

Note the qualifying words “do not affect private rights or change the substance of rules binding on the public.” An agency policy or procedure is not necessarily “internal” simply by the way it is written, by seeming to place a requirement only on the agency, for example with words like “the department shall…”. The policy or procedure may in fact be a rule if it appears to “affect private rights”, such as, but not limited to, state licenses, certificates, or benefits deemed to be a property right, or if it changes another rule. Agencies should check with their legal counsel.

An agency form is a “rule” as defined above. A “form” in turn is defined in RSA 541-A:1, VII-a as follows:

"‘Form’ means a document that establishes a requirement for persons outside the agency to provide information to an agency and the format in which such information must be submitted. The term does not include any document, regardless of what the document is called, that (a) is provided by an agency to facilitate the submission of information that is required to be submitted to the agency by federal or state statute, regulation, or rule and does not add to or modify such requirement or (b) that is used only by the agency to provide information to persons outside the agency.”

To give a form the force and effect of law, RSA 541-A:19-b requires that the form either be incorporated by reference or have its requirements set forth in a numbered rule.