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Periodic Review and Expiration of Existing Rules

 

 
 
 

 

 
 
 

 

 

In the 2013 legislative session, the General Assembly enacted Session Law 2013-413.  This law established G.S. § 150B-21.3A, “Periodic Review and Expiration of Existing Rules.”  This statute requires the Rules Review Commission (“Commission”) to establish a process and schedule for those covered agencies to ensure compliance with the law. This schedule and process requires agencies to review all of their active rules codified in the NC Administrative Code (“the Code”) every 10 years.  The Commission has begun implementation of this process. An overview of the process was created to capture the process and Commission progress since the law was signed on August 23, 2013.

 

This explanation is not intended to capture all nuances of the process.

 

An Overview of the Review Process

The new regulatory process requires all covered agencies to review all of their active rules.  While there are some exclusions, this process includes many departments, boards, commissions, and licensing boards. Staff of the Commission created a PowerPoint presentation to give an overview of this process.

 

Agencies must classify each rule as:

 

1)         “Necessary with substantive public interest,” generally meaning the rule is needed but there are known or suspected concerns about it from the public;

2)         “Necessary without substantive public interest,” generally meaning the rule is needed and there is no known concerns from the public; or

3)         “Unnecessary,” meaning the agency determined the rule is obsolete, redundant or otherwise no longer needed.

 

Agencies must invite public comment on the classifications. Agencies must post a report issued by the Commission on the agency’s website and on the Office of Administrative Hearings’ website. The public comment period lasts for at least 60 days. The agency is then required to respond in the report to each public comment when there is an objection to a rule.  After the comment period is over and the agency has had an opportunity to make its final classification, the agency will send to the Commission a report of the classification as well as public comments received and the agency’s response. 

 

Based upon a review of the public comments, the Commission will review the submission, and determine whether it agrees with the agency classification. When reviewing the comments to determine if they have merit, the Commission must use the standards of review in G.S. § 150B-21.9, (generally meaning that the language is clear, that it is within the agency’s statutory authority, and that it is necessary to implement law).  The Commission must also determine if the comment addresses the substance of the rule. If the RRC disagrees with the agency’s determination that a rule is “necessary without substantive public interest” or “unnecessary,” the Commission may move the classification of the rule to “necessary with substantive public interest.”  The Commission does not have the authority to declare that a rule is “unnecessary” if the agency has not already classified it as “unnecessary.”

 

The RRC will then send a report to the Joint Legislative Administrative Procedure Oversight Committee (“APO”) at the General Assembly. The Commission determination will become final following consultation with APO or on the 61st day after the report is submitted if the APO does not meet. The APO may disagree with the Commission determination and recommend to the General Assembly that the agency conduct a review of the rule the following year. 

 

Effect on Rules in the Code

Rules designated as “necessary without substantive public interest” will remain in the Code. Rules designated as “unnecessary” will be removed from the Code without any further agency action. Rules designated as “necessary with substantive public interest” must be re-adopted as if they were new rules, following the permanent rulemaking process set forth in Article 2A.  If an agency does not re-adopt the rule, the rule will be removed from the Code.

 

If an agency does not conduct the review, the rules will expire and be removed from the Code, unless the rule is required to implement or conform to federal law.

 

Rules and Documents Created by the Commission and Staff Relating to the Process

G.S. § 150B-21.3A requires the Commission to consider the scope and complexity of rules subject to the review in establishing the schedule for review. After soliciting comments from all agencies and the public, the Commission established the initial schedule of review. The Commission adopted Rule 26 NCAC 05 .0211 for that purpose.  As reflected in this Rule, the initial review of the approximately 19,600 rules in the Code is to be completed by July 2019.

 

The Commission has also adopted rules to establish the process for agencies to complete the review of their rules, including the deadlines for completion and the methods for soliciting public comments.

 

The Rules Division staff of the Office of Administrative Hearings created documents to assist agencies in understanding and navigating the process.  [flowchart and cheat sheet]

 

Commenting on Rules in Reports

As reports are received by agencies, OAH will post copies of the reports on the Commission’s website.  All comments on the individual rules contained in the reports must be directed to the agency contact who is listed below the link to the report.  Therefore, comments should not be sent directly to the Rules Review Commission or its staff. Any such comments directed to the Commission or its staff will not be considered as official comments.  Instead, the public must send the comments to the individual identified by the agency.