At its meeting on November 20, 2003, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2003-105 containing rules Bcr 200 of the State Building Code Review Board (Board) relative to practice and procedure. The Board responded pursuant to RSA 541-A:13, V(c) with an amended proposal and with a cover letter from the Board Chairman dated January 5, 2004.

At its meeting on January 30, 2004, the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2003-105 as amended by the Board. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:13, VI:

The following summarizes the bases for the Committee’s final objection:

The Committee objected that Bcr 204.02 is, pursuant to Committee Rule 403.01(d), contrary to the public interest by not being clear and understandable.

Bcr 204.02 states that:

Except where a time period is fixed by statute, the board shall, upon motion or upon its own initiative, change the time provided for the filing of any document, or reschedule the time set for any oral hearing, prehearing conference, or other activity upon a finding that the moving party did not comply with the time period due to accident, mistake, or misfortune, and the probable injury to the moving party outweighs any detriment likely to be suffered by any other party.

The Board Chairman’s cover letter, submitted to the Committee as part of the Board’s response to the preliminary objection, indicated that the "change in time" in Bcr 204.02 applies to both shortening and lengthening the amount of time for filing or the time set for an activity. In

the view of the Committee, the stated criteria for the change in time, such as accident, mistake, or misfortune, logically apply to a lengthening of time, but it was unclear how the criteria could apply to a shortening of time.

Bcr 214 (as numbered in the response to the objection)

The Committee objected that this rule is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by violating a specific state statute.

Bcr 214 is entitled "Rules to Update or Change the State Building Code" and contains procedural rules governing how the Board will amend the State Building Code by rule pursuant to RSA 155-A:10, V. Bcr 214 creates an alternative process for such rulemaking than the steps required by RSA 541-A:3 for regular rulemaking and RSA 541-A:18 for emergency rulemaking. RSA 155-A:10, V states that:

The board may adopt rules to update or change the state building code for the codes described in RSA 155-A:1, IV, to the extent the board deems that such updates or changes are necessary, provided that any such updates or changes are ratified by the adoption of appropriate legislation within 2 years of their adoption. If such updates or changes are not ratified, then the rules shall expire, notwithstanding RSA 541-A:17, I, at the end of the 2-year period. With the approval of the commissioner of safety, the board shall be authorized, pursuant to RSA 541-A, to adopt rules relative to procedures of its operation and appeals to the board.

The Board Chairman’s cover letter, submitted to the Committee as part of the Board’s response to the preliminary objection, states in part that, "The statute does not indicate that the rules must be adopted pursuant to RSA 541-A…If the legislature had intended for these rules to be adopted pursuant to RSA 541-A, it could have easily said so by inserting the appropriate language: ‘pursuant to RSA 541-A’."

The Committee noted that RSA 541-A:41 states that, "This chapter shall govern all agency rulemaking procedures, hearings, and appeals, except as specifically exempted by this chapter" [emphasis added]. In the view of the Committee, therefore, RSA 541-A:41 requires an explicit, not an implicit, exemption from RSA 541-A for the Board to establish its own, separate rulemaking process. The Committee determined that RSA 541-A does not contain an exemption for the Board and that RSA 155-A:10, V does not otherwise authorize a separate rulemaking process for rules to update or change the State Building Code. Moreover, only RSA 541-A:17, I relative to expiration of rules is specifically exempted in RSA 155-A:10, V. In the view of the Committee, the exemption from RSA 541-A:17, I would be unnecessary if RSA 155-A:10, V already authorized an exemption from RSA 541-A in its entirety as believed by the Board. The Committee concluded that Bcr 214 was therefore beyond the agency’s authority and contrary to legislative intent by violating RSA 155-A:10, V, RSA 541-A:3, and RSA 541-A:18.