Bill could bring greater transparency to use of public comments in NH rulemaking process



New Hampshire Bulletin

Published: 06-19-2024 11:21 AM

When a person submits a comment on a proposed regulation in New Hampshire, it’s usually not clear what influence – if any – that feedback has on the final rule. That may change under a bill heading to the governor’s desk. 

Agencies already must create reports on public comments, but House Bill 1622 would require agencies to be more transparent in explaining how they’re used.

Those reports would have to describe how a comment was incorporated into the final rule – and, if it wasn’t, the agency would have to justify that choice with “facts, data, interpretations, and policy choices,” the bill reads.

The measure would also require that electronic public comments – written and video – are uploaded to an agency’s website. Agencies would not be required to transcribe and upload comments made during public hearings.

“Basically, we want to make sure that any easily publishable comment gets published,” said bill sponsor Rep. Carol McGuire, an Epsom Republican.

Also under the bill, agencies could be ordered by the courts to reimburse fees collected through the enforcement of an expired rule. They could also be required to pay the attorney fees of a party fined under an expired rule.

The House and Senate on Thursday approved changes to HB 1622 made during a committee of conference. It heads to the governor’s desk amid concerns over landfill rules proposed by the Department of Environmental Services.

Critics say those rules have been disproportionately shaped by companies that operate landfills. Wayne Morrison, president of the North Country Alliance for Balanced Change, said concerned residents like him “feel that our voice … doesn’t carry the same weight as industry or the executive office.”

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Michael Wimsatt, the department’s waste management division director, said the department solicited far more public feedback on the proposed rules than required by law. 

He said the final landfill rules would likely not go into effect until sometime in the fall, meaning the public comment changes could be enacted while the regulatory process is ongoing.

The bill, if approved by the governor, would go into effect 60 days after its passage. Even if the bill went into effect while an agency was in the middle of the administrative rulemaking process, that agency would still have to comply with the changes made to the law, said Michael Morrell, the administrative rules director in the Office of Legislative Services.

Though the state would move toward greater transparency if the bill is passed, New Hampshire’s regulatory process remains “an outlier” from the federal government and many other states, said Adam Finkel, a former federal regulator, in a presentation to a House Environment and Agriculture subcommittee in the last week of the legislative session.

Even as a supporter of aggressive regulation, Finkel – a Dalton resident who spent years as the chief rule writer at the Occupational Safety and Health Administration – believes it should be “very hard” to complete regulation. By his assessment, it is far easier for New Hampshire agencies to regulate – or not regulate – as they please compared to the rest of the nation and world. 

One reason for that is that in the federal government and 36 other states, regulations can be challenged in court on the basis that they are arbitrary (“doing things without explanation”) or capricious (having “a thumb on the scale that’s too heavy”), Finkel said. 

That language doesn’t exist in New Hampshire’s law. Neither does the requirement – created on the federal level in 1981 and followed by many other states, Finkel said – that regulators and the courts weigh whether the benefits of a rule outweigh the costs. 

Whether a regulation is wise is not a question that must be asked under the state’s law, Finkel said.

New Hampshire’s public hearing process, too, is much different than what Finkel observed in the federal government. There, hearings on regulations happened before a judge, could last days or months, and involved a serious, back-and-forth conversation between the government officials and the public. 

Meanwhile, at a May hearing in Concord on the landfill rules, there was “zero interchange of any kind,” Finkel said.

If people understood how the regulatory process is done elsewhere, Finkel said, “they wouldn’t be satisfied with this perfunctory process now.”