Recent Changes to the Administrative Procedures Act, 0417 RIBJ, RIBJ, 65 RI Bar J., No. 5, Pg. 5
March, 2017
Introduction
Rhode Island’s Administrative Procedures Act (APA) is codified at Title 42, Chapter 35 of the Rhode Island General Laws. The APA was originally adopted in 1962. In the 2016 legislative session, the General Assembly enacted a comprehensive overhaul of the APA.
Public Access and Transparency
Several aspects of the amendments focus on public access and transparency. Section 42-35-2 imposes various publication and record keeping requirements on agencies. Notably, agencies are now required to “publish and make available for public inspection a description of the process for application for a license, available benefits, or other matters for which an application is appropriate on its agency website, unless the process is prescribed by [other law].”
In addition to improving the process by which citizens can access regulatory information from state agencies, the APA encourages state agencies to solicit input from members of the public, even before a formal rulemaking process begins. Section 42-35-2.5 allows agencies to “gather information relevant to the subject matter of a potential rulemaking processing and… solicit comments and recommendations from the public.” An agency may do so by “publishing an advance notice of proposed rulemaking in the state register and on its agency website, and indicating where, when, and how persons may comment before the rulemaking process begins.”
New Code of State Regulations
The previous version of the APA designated the Secretary of State as the codifier of rules of state agencies. Section 42-35-5(a) of the amended law now requires the Department of State to “publish on its website, in a searchable format, the full text of all rules promulgated by agencies.” Furthermore, § 42-35-5(b) directs the Secretary of State to “oversee the publication of an updated code of state regulations.” A crucial provision of the law is also included in this subsection: by December 31, 2018, agencies must resubmit all existing regulations to the Secretary of State, written in plain language, for publication into the new code of regulations. Any rules that are not resubmitted by this deadline and are not published in the code become unenforceable unless and until they are resubmitted in accordance with the law.
Cost/Benefit Analysis
Section 42-35-2.9 is new to the APA and requires agencies to perform a regulatory analysis as part of the rulemaking process. As it did before the 2016 amendments, the APA provides that agencies must “demonstrate that there is no alternative approach among the alternatives considered during the rule making proceeding which would be as effective and less burdensome to affected private persons as another regulation.”
Direct Final Rulemaking
The APA now allows “direct final rule-making,” which is a truncated procedure for rulemaking if an agency deems that the proposed rule is “expected to be non-controversial.”11 For such rules, agencies must still provide a concise explanatory statement at the time the rule is filed and must...
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