Chapter 445

2012 -- H 8024 SUBSTITUTE A

Enacted 06/26/12

 

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- ADMINISTRATIVE

PROCEDURES

 

     Introduced By: Representatives Serpa, Morgan, Trillo, Ferri, and Keable

     Date Introduced: March 29, 2012

 

It is enacted by the General Assembly as follows:

 

     SECTION 1. Sections 42-35.1-3 and 42-35.1-4 of the General Laws in Chapter 42-35.1

entitled "Small Business Regulatory Fairness in Administrative Procedures" are hereby amended

to read as follows:

 

     42-35.1-3. Economic Impact statements. -- (a) Prior to the adoption of any proposed

regulation that may have an adverse impact on small businesses, with the exception of emergency

regulations adopted in accordance with subsection 42-35-3(b) and excluding those businesses

defined in subsection 42-35-3.3(d) (c) of this section, each agency shall prepare, in conjunction

with assistance and oversight from the office of regulatory reform and in congruence with the

analysis required in section 42-35-3.3 subsection (b) of this section, an economic impact

statements statement that includes the following:

      (1) An identification and estimate of the number of the small businesses subject to the

proposed regulation;

      (2) The projected reporting, recordkeeping, and other administrative costs required for

compliance with the proposed regulation, including the type of professional skills necessary for

preparation of the report or record;

      (3) A statement of the effect or probable effect on impacted small businesses;

      (4) A description of any less intrusive or less costly alternative methods of achieving the

purpose of the proposed regulation.

      (b) The economic impact statement required herein shall be published in guide form as

well as posted on the department of administration and the of economic development corporation

office of management and budget websites. The guide should be published and/or posted on or

around the same date as the regulation change and shall include a description of actions need by

the small business to meet the requirement of the regulation. The office of regulatory reform shall

develop criteria for the economic impact statement.

     (c) The following professional and business activities shall not be considered a small

business for purposes of this section:

     (1) Financial institutions including banks, trusts, savings and loan associations, thrift

institutions, consumer and industrial finance companies, credit unions, mortgage and investment

bankers and stock and bond brokers;

     (2) Insurance companies, both stock and mutual;

     (3) Mineral, oil and gas brokers;

     (4) Subdividers and developers;

     (5) Landscape architects, architects and building designers;

     (6) Entities organized as nonprofit institutions;

     (7) Entertainment activities and productions including motion pictures, stage

performances, television and radio stations and production companies;

     (8) All utilities, water companies and power transmission companies, except electrical

power generating transmission companies providing less than four and one-half (4.5) kilowatts;

and

     (9) All petroleum and natural gas producers, refiners and pipelines.

 

     42-35.1-4. Regulatory flexibility -- Flexibility analysis required. -- (a)

Notwithstanding any general or public law to the contrary, prior to the adoption of any proposed

regulation on and after January 1, 2010, each agency shall prepare a regulatory flexibility analysis

in which the agency shall, where consistent with health, safety, environmental, and economic

welfare consider utilizing regulatory methods that will accomplish the objectives of applicable

statutes while minimizing adverse impact on small businesses. The agency shall consider, without

limitation, each of the following methods of reducing the impact of the proposed regulation on

small businesses:

      (1) The establishment of less stringent compliance or reporting requirements for small

businesses;

      (2) The establishment of less stringent schedules or deadlines for compliance or

reporting requirements for small businesses;

      (3) The consolidation or simplification of compliance or reporting requirements for small

businesses;

      (4) The establishment of performance standards for small businesses to replace design or

operational standards required in the proposed regulation; and

      (5) The exemption of small businesses from all or any part of the requirements contained

in the proposed regulation.

     (b) Prior to the adoption of any proposed regulation that may have an adverse impact on

small businesses each agency shall notify the economic development corporation office of

regulatory reform of its intent to adopt the proposed regulation. The economic development

corporation office of regulatory reform shall advise and assist agencies in complying with the

provisions of this section.

 

     SECTION 2. Section 42-35-3.4 of the General Laws in Chapter 42-35 entitled

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

 

     42-35-3.4. Periodic review of rules. -- (a) Within two (2) years after December 31,

2008, each agency shall review all agency rules existing at the time of enactment to determine

whether such rules should be continued without change, or should be amended or rescinded, by

examining whether the rules are consistent with the stated objectives of applicable statutes and

are authorized by, and conform with those statutes. The review must include, but need not be

limited to, minimizing the economic impact of the rules on small businesses in a manner

consistent with the objectives of applicable statutes and ensuring consistency with and

conformance with those statutes. If the head of the agency determines that completion of the

review of existing rules is not feasible by the established date, the agency shall publish a

statement certifying that determination and shall provide a copy of that statement and

determination to the speaker of the house, the senate president, the house fiscal advisor, and the

senate fiscal advisor. The statement shall include the number of rules that have thus far been

reviewed by the agency in accordance with this section, and the number still to be reviewed. The

agency may extend the completion date by one year at a time for a total of not more than five (5)

years.

      (b) In reviewing rules, the agency shall consider the following factors:

      (1) The continued need for the rules;

      (2) The nature of complaints or comments received concerning the rule from the public;

      (3) The complexity of the rule;

      (4) The extent to which the rule overlaps, duplicates, or conflicts with other federal, state

and local government rules;

      (5) The length of time since the rule has been evaluated or the degree to which

technology, economic conditions or other factors have changed in the area affected by the rule.

      (6) Whether the rules are consistent with current agency practices and procedures; and

      (7) Whether the rules are consistent with and authorized by applicable statutes.

      (c) All rules reviewed in accordance with this section, shall be reviewed every five (5)

years thereafter.

     (d) In addition to the review required in this section, within four (4) years of enactment of

this act, each agency shall review all agency rules existing at the time of enactment to determine

whether such rules should be continued without change, or should be amended or rescinded, to

minimize economic impact of the rules on small businesses in a manner consistent with the state

objective of applicable statutes pursuant to this section. Beginning on July 1, 2012, each agency

shall review twenty-five percent (25%) of its regulations each year for four (4) years until all

existing regulations have been evaluated for any adverse impacts on small businesses and

economic impact statements have been prepared, with the exception of emergency regulations

adopted in accordance with subsection 42-35-3 (b);

      The office of regulatory reform shall assist and coordinate with all agencies during the

periodic review of rules.

 

     SECTION 3. Sections 42-64.13-3, 42-64.13-5, 42-64.13-6, 42-64.13-7 and 42-64.13-8 of

the General Laws in Chapter 42-64.13 entitled "Rhode Island Regulatory Reform Act" are hereby

amended to read as follows:

 

     42-64.13-3. Purposes of chapter. -- The purposes of this chapter are to create within the

Rhode Island economic development corporation office of management and budget the office of

regulatory reform that will facilitate the regular review of Rhode Island's regulatory processes and

permitting procedures, report thereon in an effort to improve them and assist and facilitate

economic development opportunities within the regulatory and permitting processes and

procedures that exist within Rhode Island state and municipal government.

 

     42-64.13-5. Creation of the office of regulatory reform. -- The Rhode Island economic

development corporation office of management and budget shall create an office of regulatory

reform that shall be adequately staffed and supervised in order to fulfill its functions as set forth

in this chapter.

 

     42-64.13-6. Director of office of regulatory reform. -- The office of regulatory reform

shall be managed by a director of office of regulatory reform who shall report to the executive

director of the Rhode Island economic development corporation director of the office of

management and budget.

 

     42-64.13-7. Powers of the office of regulatory reform. -- The office of regulatory

reform shall have the following powers:

     (1) The director of the office of regulatory reform is authorized to intervene or otherwise

participate in any regulatory or permitting matter pending before any executive branch agency or

department or before any municipal board, commission, agency or subdivision thereof at which a

regulatory or permitting matter is pending for the expressed net benefit of a business. The director

of the office of regulatory reform may so intervene or otherwise participate in such pending

regulatory and permitting matters by providing written notice to the director of any department or

state agency in the executive branch, or the chairman or presiding officer over any municipal

department or subdivision thereof at which a regulatory or permitting matter is pending, that the

director of the office of regulatory reform is so intervening or otherwise participating in such

regulatory or permitting matter pending before such department, agency, board or commission.

The director of the office of regulatory reform shall be considered a party to the action and shall

be provided reasonable notice of any and all administrative hearings or meetings involving the

parties in such matter and shall be the opportunity to participate in such meetings, hearings or

other administrative procedures of such entity, of which such opportunity may be waived only by

writing from the director of the office of regulatory reform, for the purpose of assuring the

efficient and consistent implementation of rules and regulations in order to foster the creation and

retention of jobs in Rhode Island or otherwise foster economic development in Rhode Island

consistent with the purposes of this act. Any intervention or participation by the director of the

office of regulatory reform, other than in contested cases, shall not be deemed to violate the

provisions of the Rhode Island administrative procedures act at Title 42, Chapter 35 of the

general laws. Provided, however, all contested cases shall be conducted in accordance with the

provisions for hearings of contested cases in the administrative procedures act, Title 42, Chapter

35, of the general laws. As used in this section, the term "contested case" means a proceeding in

which conflicting rights between adverse parties are required by law to be determined in an

adversary proceeding that is judicial or quasi-judicial in nature, and not purely administrative in

character, before and/or by an agency.

     (2) Promptly upon such intervention as set forth in subdivision (1) above, the director of

the office of regulatory reform shall publish its rationale for its intervention in such pending

regulatory or permitting matter. The director of the office of regulatory reform may so intervene

upon findings that:

     (i) That the pending, regulatory or permitting action, in and of itself or as part of a

regulatory process, has significant economic development impact upon the state or any

municipality herein; and

     (ii) The pending regulatory or permitting matter, in and of itself or as part of a regulatory

process, has significant impact on any industry, trade, profession or business that provides

significant jobs or other significant economic development impact, including municipal and state

taxes or other revenues, to the state or its citizens.

     (iii) The office of regulatory reform shall upon the conclusion of each fiscal quarter

promptly provide to the office of the governor and the general assembly through the offices of the

president of the senate and the speaker of the house of representatives a written report identifying:

     (A) All matters in which the director of the office of regulatory reform intervened;

     (B) The rationale for his or her intervention;

     (C) The status of the pending regulatory or permitting matter; and

     (D) Any observations or recommendations from the director of the office of regulatory

reform with respect to such regulatory or permitting policies or procedures relating to the subject

matter of such pending regulatory or permitting matters in which the director so intervened.

     (3) The office of regulatory reform is authorized to appear as an amicus curiae in any

legal proceeding relating to any matter.

     (5) The office of regulatory reform is authorized to coordinate, provide technical

assistance, and oversee state agency regulatory review and accompanying economic impact

statements on small businesses.

 

     42-64.13-8. Regulatory analysis responsibilities. -- The office of regulatory reform

shall have the following regulatory analysis and reporting responsibilities:

      (1) The office of regulatory reform shall, upon the conclusion of each fiscal year, prepare

and publish a report on the regulatory processes of state and municipal agencies and permitting

authorities through a review and an analysis of proposed and existing rules and regulations to: (i)

Encourage agencies to eliminate, consolidate, simplify, expedite or otherwise improve permits,

permitting procedures and paperwork burdens affecting businesses, municipal government

undertakings, industries and other matters of economic development impact in the state; (ii)

Analyze the impact of proposed and existing rules and regulations on matters such as public

health, safety and welfare, including job creation, and make recommendations for simplifying

regulations and regulatory processes of state and municipal agencies and permitting authorities;

(iii) Propose to any state or municipal agency consideration for amendment or repeal of any

existing rules or procedures which may be obsolete, harmful to the economy or job growth in the

state, or excessively burdensome with respect to any state or federal statutes or regulations; and

(iv) Assist and coordinate with all agencies during the periodic review of rules required by

section 42-35-3.4 of the Administrative Procedures Act.

      (2) The ombudsman of the office of regulatory reform shall implement the provisions of

section 42-35.1-1 of the general laws entitled Small Business Regulatory Fairness and

Administrative Procedures, and shall be the small business regulatory enforcement office

pursuant to section 42-35.1-5 of the general laws.

 

     SECTION 4. This act shall take effect upon passage.

     

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LC02179/SUB A/2

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