Sununu’s veto of rulemaking bill, and his reasoning, a surprise for Republican sponsor

By CLAIRE SULLIVAN

New Hampshire Bulletin

Published: 08-12-2024 6:00 PM

Gov. Chris Sununu vetoed a Republican-led bill this month that would have brought greater transparency to use of public comments in rulemaking and, according to one of its sponsors, formalized existing processes into law. 

Sununu wrote in his veto message Aug. 2 that “multiple agencies have expressed operational and financial concerns with this bill.” He said the bill would “substantially increase the burden on executive agencies” without offering additional funding.

House Bill 1622 dealt with an assortment of administrative issues. It would have required agencies to return fees collected under an expired rule. They could have also been required to pay the attorney fees of a party fined under an expired rule. 

The bill’s fiscal note said agencies could see an “indeterminable increase in expenditures” due to financial penalties levied by a court and an “indeterminable decrease” in revenues from refunding fines collected under an expired rule. 

Agencies would also have had to explain how they incorporate public comments into their rules – and if they don’t use a piece of input, they would have had to justify that decision with “facts, data, interpretations, and policy choices.” This goes beyond the report on public comments that is already required. It also would have required that electronic public comments – written and recorded – be uploaded to an agency’s website. 

“These mandates will dramatically increase the amount of staff time required to simply draft a rule, which could increase the number of staff needed, or pull staff away from other essential functions within our agencies,” Sununu said. “Public input is essential to good public policy, however the burdens created by this legislation are overly taxing for a minimal amount of public benefit.”

Bill co-sponsor Sen. Tim Lang, a Sanbornton Republican, disagrees – and said he didn’t hear those concerns from agencies as the measure was moving through the Legislature.

“I am surprised that the governor vetoed it,” Lang said in an interview. “I don’t think that it adds any additional increased burden based on actual pragmatic procedures that currently occur.”

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On the governor’s comment on multiple agencies raising concerns, Lang said: “I didn’t hear that conversation occur. I don’t recall it happening in the committee, and I definitely know nobody came to me to object to those issues, based on those issues.”

The bill’s prime sponsor, Rep. Carol McGuire, an Epsom Republican, could not be reached for comment on the veto. She serves as chair of the Joint Legislative Committee on Administrative Rules (JLCAR), a body that provides legislative oversight to the regulatory process; Lang is vice chair. The bill’s six sponsors were all Republicans. 

The bill could still be revived if lawmakers choose to override Sununu’s veto in the fall. 

The governor’s office did not respond to multiple requests for comment on which agencies had raised concerns about the measure. The Bulletin reached out to several departments to gauge their thoughts. 

Scott Mason, executive director of Fish and Game, said he didn’t believe the commission took a position on the bill. The Department of Labor didn’t testify or raise concerns, either, said John W. Garrigan, the department’s general counsel.

Some said they had concerns, but it’s not clear how those concerns reached the governor.

The Department of Transportation worried “it could subject the department to penalties and attorney’s fees,” said Richard Arcand, the public information officer. But he said DOT didn’t raise these concerns in hearings or with the governor. “Other agencies spoke against it,” he said.

Andrew Demers, director of communications of the Insurance Department, wrote, “While the NHID took no direction on this piece of legislation, we shared the concerns of other state agencies with regard to some provisions of the bill.” He did not respond to questions about what those concerns were or if they were communicated to the governor.

Shawn Jasper, commissioner of the Department of Agriculture, Markets, and Food, said in an email he had “expressed strong concerns about the bill, to the House Committee, as it was originally introduced.” He said he didn’t read the final version and “had not commented on this bill to the governor.”

The bill as originally introduced did not contain the public comment portion. That was merged over from a different bill by Rep. Kelley Potenza, a Rochester Republican. “It’s really long overdue,” she told a Senate committee in April. She recalled feeling like public comments went into “a black hole.” 

Other parts of the bill simply put into law what’s already happening through JLCAR. 

“It formalizes already what we do into law,” Lang said of agencies refunding fees taken under expired rules. “So, again, it’s already the existing process.”

In terms of the public comments, he doesn’t feel it’s a large departure from existing law.

 “I think it’s important to show for transparency: ‘This is what the rule was. This is what we heard from citizens. This is what we implemented,’” he said, “so people understand that and see it.”

Adam Finkel, a Dalton resident who spent years as the chief rule writer at the Occupational Safety and Health Administration, said putting public comments online is “a trivial cost, which actually is more than offset by the cost savings” of not having to fulfill right-to-know requests asking for the comments. 

The bill would’ve required agencies to write response documents that are, Finkel said, “meaningful rather than insulting to the public.”

“I guess it does take a little more time to do it well than to do it poorly,” Finkel said. “But at the federal level we were doing it the right way, you know, 30 years ago.”

Agencies already have to read the comments and form an opinion on them, he said. 

“If you’re not doing that, you’re not doing your job at all,” Finkel said. “But if you’ve done that, then all we’re asking is that you, if you write down maybe one sentence per comment instead of just saying, ‘we disagree,’ saying why we disagree.

“If we can’t afford to do that, something’s wrong, because that’s not only a small amount of time, but I would say it’s time very well spent.”