Chapter 293

2007 -- H 5326

Enacted 07/06/07


A N  A C T




     Introduced By: Representatives Walsh, Ajello, Rice, and Handy

     Date Introduced: February 06, 2007


It is enacted by the General Assembly as follows:


     SECTION 1. Section 42-35-3 of the General Laws in Chapter 42-35 entitled

"Administrative Procedures" is hereby amended to read as follows:


     42-35-3. Procedures for adoption of rules. -- (a) Prior to the adoption, amendment, or

repeal of any rule the agency shall:

      (1) Give at least thirty (30) days notice of its intended action. The notice shall include a

statement of either the terms or substance of the intended action or a description of the subjects

and issues involved, and of the time when, the place where, and the manner in which interested

persons may present their views thereon. 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, provided,

however, that if the action is limited in its applicability to a particular area, then the publication

may be in a newspaper having general circulation in the area. Notwithstanding the above

requirements, in lieu of newspaper publication, advance notice of proposed rulemaking by the

Department of Health may be provided via electronic media on a website maintained by the

office of the secretary of state. Authorization for such electronic notice shall commence on July

1, 2005 and shall expire on June 30, 2010. Copies of proposed rules shall be available at the

agency at the time of the notice required by this subsection, and by mail to any member of the

public upon request. The agency shall also prepare a concise summary of all non-technical

amendments being proposed that shall be made available with copies of the proposed rules


      (2) Afford all interested persons reasonable opportunity to submit data, views, or

arguments, orally or in writing. In the case of rules, opportunity for oral hearing must be granted

if requested by twenty-five (25) persons, or by a governmental subdivision or agency, or by an

association having not less than twenty-five (25) members. The agency shall consider fully all

written and oral submissions respecting the proposed rule. Upon adoption of a rule, the agency, if

requested to do so by an interested person, either prior to adoption or within thirty (30) days

thereafter, shall issue a concise statement of the principal reasons for and against its adoption,

incorporating therein its reasons for overruling the considerations urged against its adoption.

      (3) Demonstrate the need for the adoption, amendment, or repeal of any rule in the

record of the rulemaking proceeding. The agency shall demonstrate that there is no alternative

approach among the alternatives considered during the rulemaking proceeding which would be as

effective and less burdensome to affected private persons as another regulation. This standard

requires that an agency proposing to adopt any new regulation must identify any other state

regulation which is overlapped or duplicated by the proposed regulation and justify any overlap

or duplication.

      (4) Comply with section 42-35-3.3.

      (5) Ensure that any proposed additions, deletions or other amendments to the rules and

regulations be clearly marked. If an agency proposes adoption of a new rule to supersede an

existing rule, the agency shall make available a summary of all non-technical differences between

the existing and proposed rules. An agency's lawful promulgation of amendments to an existing

rule shall be deemed to supersede and repeal the previous enactments of that rule, provided that

the public notice required under subsection (a)(1) of this section indicated such an intent.

      (b) If an agency finds that an imminent peril to the public health, safety, or welfare

requires adoption of a rule upon less than thirty (30) days' notice, and states in writing its reasons

for that finding, it may proceed without prior notice or hearing or upon any abbreviated notice

and hearing that it finds practicable, to adopt an emergency rule. The rule so adopted may be

effective for a period of not longer than one hundred twenty (120) days renewable once for a

period not exceeding ninety (90) days, but the adoption of an identical rule under subsections

(a)(1) and (a)(2) is not precluded.

      (c) No rule hereafter adopted is valid unless adopted in substantial compliance with this

section, but no contest of any rule on its face on the ground of noncompliance with the procedural

requirements of this section may be commenced after two (2) years from its effective date, but a

contest of any rule as applied to the complainant may proceed if the complainant can demonstrate

prejudice as a result of the agency's noncompliance with this section.


     SECTION 2. This act shall take effect upon passage.