2009 Rhode Island Code
Title 42 - State Affairs and Government
CHAPTER 42-35 - Administrative Procedures
§ 42-35-3 - Procedures for adoption of rules.

SECTION 42-35-3

   § 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. 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. In lieu of newspaper publication, advance notice of proposed rulemaking by all other state departments, agencies and authorities may also be provided via electronic media on a website maintained by the office of secretary of state, and authorization for such electronic notice shall commence on May 1, 2008. 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 themselves.

   (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 § 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 subdivision (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 subdivisions (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.