Rhode Island General Laws 42-35-2.12. Guidance document
(a) An agency may issue a guidance document without following the procedures set forth in § 42-35-2.6 through § 42-35-2.9.
Terms Used In Rhode Island General Laws 42-35-2.12
- agency: means a state agency, authority, board, bureau, commission, department, district, division, institution, office, officer, quasi-public agency, or other political subdivisions created by the general assembly or the governor, other than the legislature or the judiciary, that is authorized by law of this state to make rules or to determine contested cases. See Rhode Island General Laws 42-35-1
- Contested case: means a proceeding, including but not restricted to, ratemaking, price fixing, and licensing, in which the legal rights, duties, or privileges of a specific party are required by law to be determined by an agency after an opportunity for hearing. See Rhode Island General Laws 42-35-1
- Guidance document: means a record of general applicability developed by an agency which lacks the force of law but states the agency's current approach to, or interpretation of, law or describes how and when the agency will exercise discretionary functions. See Rhode Island General Laws 42-35-1
- Index: means a searchable list in a record of subjects and titles with page numbers, hyperlinks, or other connectors that link each index entry to the text to which it refers. See Rhode Island General Laws 42-35-1
- Party: means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party. See Rhode Island General Laws 42-35-1
- Person: means any individual, partnership, corporation, association, the department of environmental management, governmental subdivision, or public or private organization of any character other than an agency. See Rhode Island General Laws 42-35-1
- Precedent: A court decision in an earlier case with facts and law similar to a dispute currently before a court. Precedent will ordinarily govern the decision of a later similar case, unless a party can show that it was wrongly decided or that it differed in some significant way.
- Presiding officer: A majority-party Senator who presides over the Senate and is charged with maintaining order and decorum, recognizing Members to speak, and interpreting the Senate's rules, practices and precedents.
- Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. See Rhode Island General Laws 42-35-1
- Rule: means the whole or a part of an agency statement of general applicability that implements, interprets, or prescribes law or policy or the organization, procedure, or practice requirements of an agency and has the force of law. See Rhode Island General Laws 42-35-1
- Website: means a website on the internet or other similar technology or successor technology that permits the public to search a database that archives materials required to be published or exhibited by the secretary of state or an agency under this chapter. See Rhode Island General Laws 42-35-1
(b) An agency that proposes to rely on a guidance document to the detriment of a person in any administrative proceeding shall afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the document. The agency may not use a guidance document to foreclose consideration of issues raised in the document.
(c) A guidance document may contain binding instructions to agency staff members if, at an appropriate stage in the administrative process, the agency’s procedures provide an affected person an adequate opportunity to contest the legality or wisdom of a position taken in the document.
(d) If an agency proposes to act in a contested case at variance with a position expressed in a guidance document, it shall provide a reasonable explanation for the variance. If an affected person in a contested case may have relied reasonably on the agency’s position, the explanation must include a reasonable justification for the agency’s conclusion that the need for the variance outweighs the affected person’s reliance interest.
(e) An agency shall maintain an index of all of its effective guidance documents; publish the index on its website; make all guidance documents available to the public; and file the index annually with the secretary of state. The agency may not rely on a guidance document, or cite it as precedent against any party to a proceeding, unless the guidance document is published on its agency website.
(f) A guidance document may be considered by a presiding officer or final decision maker in an agency contested case, but it does not bind the presiding officer or the final decision maker in the exercise of discretion.
(g) A person may petition an agency under § 42-35-6 to promulgate a rule in place of a guidance document.
(h) A person may petition an agency to revise or repeal a guidance document. Not later than sixty (60) days after submission of the petition, the agency shall:
(1) Revise or repeal the guidance document;
(2) Initiate a proceeding to consider a revision or repeal; or
(3) Deny the petition in a record and state its reasons for the denial.
History of Section.
P.L. 2016, ch. 203, § 3; P.L. 2016, ch. 206, § 3.