Recent Changes to the Administrative Procedures Act, 0417 RIBJ, RIBJ, 65 RI Bar J., No. 5, Pg. 5

Recent Changes to the Administrative Procedures Act

Vol. 65 No. 5 Pg. 5

Rhode Island Bar Journal

April, 2017

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.^[1] This article will highlight several significant aspects of the new law, which took effect on June 29, 2016.

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].”^[2] Additionally, agencies must “maintain and publish a separate, current, and dated index and compilation of all final rules filed with the Secretary of State, make the index and compilation available for public inspection and, for a reasonable charge, copying at the principal office of the agency; update the index and compilation at least monthly; and file the index and the compilation and all changes to both with the Secretary of State.”^[3]The various documents that each agency is now required to produce and maintain must be posted on agency websites by December 31, 2018.^[4]

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.”^[5] This procedure is discretionary rather than mandatory, and it remains to be seen whether advance notice of proposed rulemaking will become standard practice.

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.^[6] Evidently, the Legislature did not want the regulatory overhaul process to stretch on for years, so it enacted a hard deadline with a significant consequence for agencies that fail to comply with this time frame.

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.”^[7]Further, “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.”^[8]Now, in addition to this analysis, agencies are also required to perform a cost-benefit analysis “of a reasonable range of regulatory alternatives reflecting the scope of discretion provided by the statute authorizing the proposed rule.”^[9]The regulatory analysis must set forth the agency’s conclusion on whether the benefits of the proposed rule outweigh its cost.¹⁰ This provision of the law raises some interesting questions. For example, how can the Department of Environmental Management quantify the public benefits of rules protecting natural resources such as groundwater? How can the Department of Health compare the cost to restaurants of implementing food safety measures against the lives that could potentially be saved by such measures?

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...