CHAPTER 61
2001-H 5760A
Enacted 7/3/2001


A  N     A   C   T

RELATING TO THE ADMINISTRATIVE PROCEDURES ACT

Introduced By:  Representative Kilmartin Date Introduced:  February 6, 2001

It is enacted by the General Assembly as follows:

SECTION 1. Sections 42-35-3.1, 42-35-4 and 42-35-5 of the General Laws in Chapter 42-35 entitled "Administrative Procedures" are hereby amended to read as follows:

42-35-3.1. Form for filing -- Failure to properly file. -- (a) All administrative rules and regulations are to be filed in duplicate (one copy to be returned to the adopting agency, after proper stamping of date filed), pursuant to a form prepared by the secretary of state; all agencies must adhere to the form when submitting rules and regulations to the secretary of state pursuant to section 42-35-4.

(b) The secretary of state is authorized to determine a standardized format for documents to be filed. Should an agency fail to use the adopted format, the secretary of state shall reject the rule and/or regulation. The secretary of state shall reject the improper rule and/or regulation by returning the improperly drafted rule and/or regulation to the director of the agency which submitted the improper form within ten (10) days of receipt of the form.

(c) The secretary of state may authorize the filing of rules and regulations by or through electronic data or machine readable equipment in such form and manner as may be determined by the secretary of state.

42-35-4. Filing and taking effect of rules. -- (a) No later than thirty (30) days following the adoption of a rule each agency shall file forthwith in the office of the secretary of state a certified copy of each such rule, and shall certify its compliance with the procedural requirements of section 42-35-3. The secretary of state shall keep a permanent register of the rules open to public inspection.

(b) Each rule hereafter adopted is effective twenty (20) days after filing with the secretary of state, except that:

(1) If a later date is required by statute or specified in the rule, the later date is the effective date;

(2) Subject to applicable constitutional or statutory provisions, an emergency rule may become effective immediately upon filing with the secretary of state, or at a stated date less than twenty (20) days thereafter, if the agency finds that this effective date is necessary because of imminent perils to the public health, safety, or welfare. The agency's finding and a brief statement of the reasons therefor shall be filed with the rule in the office of the secretary of state. The agency shall take appropriate measures to make emergency rules known to the persons who may be affected by them.

(3) Any rules, regulations or policy adopted by state departments, agencies or quasi-state departments or agencies which require any new expenditure of money or increased expenditure of money by a city or town shall take effect on July 1 of the calendar year following the year of adoption, provided, however when the rule, regulation or policy does not exceed what may be required by federal statute or regulation or court order, it shall take effect upon its effective date of adoption.

(4) Whenever it shall be determined by the governor that the postponement of the effective date of rules, regulations or policies of state departments, agencies or quasi-state departments or agencies, shall cause an emergency situation which imperils the public's safety or public health, the governor may by executive order suspend the operation of, in whole or in part, section 42-35-4(3) and such order shall remain in effect until it is rescinded by a subsequent executive order.

(c) The secretary of state shall remove from the files of rules, regulations or policies any rules, regulations or policies that are no longer in effect according to the criteria in sections 42-35-4.1(i) and 42-35-4.2 and place them in another file or remove them to the state archives or other document storage facility. The secretary of state may also maintain these files on their original media or convert them to any other media of his or her choice.

42-35-5. Compilation and publication of rules. -- (a) The secretary of state shall be the codifier of the rules of state agencies. The secretary of state may assign numbers to any rule in order to develop and maintain a comprehensive system of codification. The number shall be the official administrative code number of the rule. Any number so assigned shall be published in any publication of the Rhode Island administrative code. Rules of the Rhode Island administrative code shall be cited and referred to by their official numbers.

(b) The secretary of state, on or before July 1, 1994, shall publish the full text of all rules promulgated by agencies pursuant to this chapter. The secretary of state shall publish by reference all orders of state agencies pursuant to this chapter except orders of the human rights commission, including in the publication by reference the address and phone number where the orders may be obtained by the public.

(c) In accordance with the provisions of this chapter, the secretary of state will publish the Rhode Island administrative code which code shall:

(1) Contain a compilation of the full text of each rule and a reference to each order;

(2) Be divided into volumes to permit the sale of separate volumes;

(3) Contain the full text of each rule adopted after its initial publication and a citation by reference to each order adopted after its publication in supplements to the code published not less than monthly and compiled for insertion in the code not less than annually;

(4) Contain an index of the rules and references to rules that are included in the code and each supplement using terms easily understood by the general public;

(5) Be published in loose-leaf form and in any other form the secretary of state deems appropriate following, to the extent possible, the subject matter arrangement of the Rhode Island general laws;

(6) Be renumbered according to the numbering system devised by the secretary of state.

(7) The secretary of state is not obligated to publish any rule or regulation which has become void.

(d) (1) The secretary of state may approve as acceptable a commercial publication of the code which conforms to all of the provisions of this section. If the secretary of state does not approve of a commercial publication of the code, the secretary of state shall prepare and publish the code, or contract with any person under this section to prepare and publish the code. Any code published by the secretary of state or by any person under a contract let under this section shall include all of the requirements of this section. In addition, the secretary of state shall furnish any volume or issue of the code or supplement to any person who requests the material upon payment of a charge established by the secretary of state, not to exceed the cost of publication and handling.

(2) Upon the request of the secretary of state, the director of administration shall advertise and accept competitive bids and let a contract for the compilation and printing of the Rhode Island administrative code and supplements between the secretary of state and the person able to perform the contract at the lowest cost.

SECTION 2. Chapter 42-35 of the General Laws entitled "Administrative Procedures" is hereby amended by adding thereto the following sections:

42-35-2.1. Rules coordinator. - - Each agency shall, by January 2, 2002, designate a rules coordinator, who shall have knowledge of the subjects of rules being proposed, maintain the records of any such action including the rule-making file required by section 42-35-2.2, and respond to public inquiries about proposed rules and the identity of agency personnel working, reviewing, or commenting on them. The office and mailing address of the rules coordinator shall be published in the state register at the time of designation and in the first issue of each calendar year thereafter for the duration of the designation. The rules coordinator may be an employee of another agency. Nothing in this section shall be construed to explicitly or implicitly permit the hiring of any additional personnel to perform the duties and responsibilities of the rules coordinator designated herein.

42-35-2.2. Rule-making file. -- (a) Each agency shall maintain an official rule-making file for each rule proposed or adopted after January 2, 2002. The file and materials incorporated by reference shall be available for public inspection.

(b) The agency rule-making file shall contain all of the following:

(1) Copies of all publications in the state register with respect to the rule or the proceeding upon which the rule is based;

(2) Copies of any portions of the agency's regulatory agenda containing entries relating to the rule or the proceeding on which the rule is based;

(3) All written petitions, requests, submissions, and comments received by the agency and all other written material regarded by the agency as important to adoption of the rule or the proceeding on which the rule is based;

(4) Any official transcript of oral presentations made in the proceeding on which the rule is based or, if not transcribed, any tape recording or stenographic record of them and any memorandum prepared by a presiding official summarizing the contents of those presentations;

(5) The concise explanatory statement required by section 42-35-2.3;

(6) All petitions for exceptions to, amendment of, or repeal or suspension of the rule;

(7) Citations to data, factual information, studies, or reports in which the agency relies in the adoption of the rule, indicating where such data, factual information, studies, or reports are available for review by the public;

(8) Any other material placed in the file by the agency.

(c) Internal agency documents are exempt from inclusion in the rule-making file to the extent they constitute preliminary drafts, notes, recommendations, and intra-agency memoranda in which opinions are expressed or policies formulated or recommended, except that a specific document is not exempt from inclusion when it is publicly cited by an agency in connection with its decision.

(d) Upon judicial review, the file required by this section constitutes the official agency rule-making file with respect to that rule. Unless otherwise required by law, the official agency rule-making file need not be the exclusive basis for agency action on that rule.

42-35-2.3. Concise explanatory statement. -- At the time it files an adopted rule with the secretary of state, or within thirty (30) days thereafter, an agency shall place into the rule-making file maintained under section 42-35-2.2 and shall submit to the secretary of state, a concise explanatory statement about the rule, identifying (1) the agency's reasons for adopting the rule, and (2) a description of any difference between the text of the proposed rule as published in the register and the text of the rule as adopted, other than editing changes, stating the reasons for change.

42-35-3.2. Incorporation by reference. -- (a) An agency may incorporate the following by reference in its rules without publishing the incorporated material in full:

(1) Federal rules, codes, or standards published in full in the federal register or the code of federal regulations;

(2) Federal rules, codes, or standards that have been properly incorporated by reference in the federal register as part of a duly promulgated final rule or in the code of federal regulations pursuant to federal legal requirements;

(3) Published codes, standards or guidelines of any nationally recognized scientific or technical association or organization.

(b) For the purposes of subsection 42-35-3.2(3), "nationally recognized scientific or technical association or organization" means an association or organization that is regularly in the business of developing scientific or technical standards or guidelines, is recognized by those in the relevant professional community as having a high degree of expertise and competence in its field, and whose publications are widely distributed and easily available throughout the nation and the state of Rhode Island.

(c) An agency may incorporate by reference the material set forth in subsection 42-35-3.2(a) only if the issuing agency, organization, or association makes copies of the material available to the public. An agency may not incorporate any material by reference unless the material has been properly identified in the notice of proposed rule-making pursuant to section 42-35-3.

(d) The reference to any incorporated material shall identify the incorporated material by appropriate agency, organization, or association and by date, title, or citation. The reference shall also state that the rule does not include later amendments to or editions of the incorporated material.

(e) If an agency proposes to incorporate any material by reference in a state rule, the agency shall maintain a copy of the material and shall allow public inspection of the material and provide copies of any noncopyrighted material to the public at cost upon request beginning no late than the date of publication of the notice of proposed rule-making. If any material to be incorporated by reference has been copyrighted, the agency shall upon request provide information about the publisher and the citation to the material.

42-35-4.1. Refiling of rules and regulations. -- (a) Each agency shall, on or before January 2, 2002, according to a schedule specified by the secretary of state, file with the secretary of state a certified copy of all its lawfully adopted rules which are in force on the date of such filing.

(b) All such rules shall be submitted in a format specified by the secretary of state as directed by section 42-35-3.1.

(c) Each agency shall give notice thirty (30) days prior to refiling any rule or regulation in order to comply with section 42-35-4.1. Each agency shall also give notice thirty (30) days prior to that agency's due date for refiling of which rules and regulations it shall not be refiling. Such notices shall include a statement of the intended action and a description of the subjects and issues involved. The notice shall be mailed to all persons who have made timely request of the agency for advance notice of its rule-making proceedings, and published in a newspaper or newspapers having aggregate general circulation throughout the state. Copies of rules which are not to be refiled shall be available at the agency and by mail to any member of the public upon request. In addition, notice of such action shall be submitted to the governor.

(d) The rules and regulations listed for non-refiling under subsection (c) shall be repealed pursuant to this section only in accordance with the provisions of section 42-35-3(a).

(e) Agency compliance with this section shall be coordinated in accordance with a schedule established by the secretary of state for agency refiling of rules.

(f) When refiling rules and regulations, agencies may change the format of existing rules without any rule-making action by the agency in order to comply with the format for filing specified by the secretary of state so long as there is no substantive change to the rule.

(g) Any rule lawfully promulgated prior to the effective date of this section shall remain in full force and effect until:

(1) Such rule should expire before the effective date of this section pursuant to its own terms and provisions; or

(2) Such rule is repealed by the lawful act of the agency, in conformity with this chapter; or

(3) Such rule is invalidated by an act of the legislature or the force and effect of another law.

42-35-4.2. Periodic refiling of rules and regulations. -- All rules on files with the secretary of state pursuant to section 42-35-4.1 shall be refiled on the first Tuesday in January 2007 and on the first Tuesday in January of every successive fifth year.

SECTION 3. This act shall take effect upon passage.


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