Rules Review Commission
Rules Review Commission Proposed Rules to set out the RRC procedures for agencies to follow in the implementation of S.L. 2013-413
The Rules Review Commission (RRC) is the executive agency created by the General Assembly in 1986 and is charged with reviewing and approving rules adopted by state agencies. The statutory authority for the RRC is found in two places. The authority for the RRC itself is G.S. 143B-30.1 and following. The Commission’s substantive review procedures are set by the General Assembly and are codified in the Administrative Procedure Act, Chapter 150B, Articles 1 and 2A.
The Office of Administrative Hearings maintains an email notification list for persons who are interested in receiving general information relating to the Rules Review Commission and its meetings. The listserv is open to anyone with an interest in administrative rules and the Rules Review Commission. To subscribe or unsubscribe to the Rules Review Commission listserv, please use the internet form found at the following link: http://lists.ncmail.net/mailman/listinfo/RRC.InterestedPersons.
The RRC consists of ten commissioners appointed by the General Assembly, five on the recommendation of the President Pro Tempore and five on the recommendation of the Speaker of the House. As set out in G.S. 143B-30.1(c) the Commission meets at least once a month and must have six members for a quorum. The Commission must meet once a month, but it may meet more often to review temporary rules, however this rarely occurs.
Unlike most state agencies the RRC is not required to engage in formal rulemaking as required under the APA nor have its rules published in the N.C. Administrative Code. It does not need many rules since its major procedures, rights, authority, and limitations have been statutorily set by the legislature. However in 2007 and 2008 the RRC did engage in a formal rulemaking process following the APA statutory process. This was completed in July 2008 and its rules are published under the Office of Administrative Hearings: 26 NCAC Chapter 05.
The Commission uses four standards in reviewing all rules before it. These are:
- Authority. The first standard is whether a rule is within the authority delegated to the agency by the General Assembly (G.S. 150B-21.9(a)(1)). This means we review the substantive statutes cited by the agency as their authority to enact a given rule to verify that the legislature has, in fact, authorized or required an agency to enact this rule. Note that it is not enough that the federal government tells the state, or even an agency to do something. If the state has not granted an agency the specific or general authority to either 1) do the specific act cited, or 2) carry out any federal requirements in relation to the program, then the agency has no authority to respond to the federal mandate.
- Clarity. All rules must be clear and unambiguous (G.S. 150b-21.9(a)(2)). The standard itself is clear enough. Sometimes deciding whether an agency has fulfilled this standard is more difficult. Words that seem ambiguous may in context be the best that an agency can reasonably be expected to do, or are “terms of art” understood by the practitioners within a trade or industry, or are terms that are understood by people – both enforcers and those subject to the rule – without further explanation. And sometimes the opposite occurs. Words, terms or requirements that on their face may appear to be clear, start to become ambiguous when they must be put into practice.
- Necessity. A rule must be reasonably necessary to fulfill a duty delegated to the agency by the General Assembly (G.S. 150B-21.9(a)(3)). The legislature has made it clear that it wants the RRC to at least subject rules to a "reasonably necessary" scrutiny. If an agency submits a rule that merely repeats the statute, or does not actually impose a requirement or forbid some action, then the RRC may use this provision of the statute to object to it.
- Compliance with the Procedural Requirements. In addition to reviewing rules for meeting the standards of authority, clarity, and necessity, we also review rules to make sure an agency has complied with the procedural requirements for enacting those rules (G.S. 150B-21.9(a)(4)). Entry of a rule in the NCAC after review by the RRC is presumptive evidence that the rule was adopted in compliance with the procedural requirements of Article 2A (G.S. 150B-21.9(a)).
Rule Filing and Deadlines
Rule filing and process information is located on the Rules Division home page. All rules must be filed by the close of business on the 20th day (or the close of the first business day thereafter if it's a weekend or holiday) of a given month for review at the following month's meeting. If a rule change is received after 5:00 P.M. of the 20th, then the rule will be delayed and reviewed in two months. Filing deadlines are strictly enforced to ensure adequate comment and review time.
Staff Review, Opinions and Technical Changes
The RRC staff attorneys will review submitted rules to see if they meet the four standards listed above, including compliance with procedural requirements. The rule is also reviewed for typographical, grammatical and stylistic problems.
When errors are found that are general or do not change the meaning, interpretation or application of the rule, a Request For A Technical Change is sent to the agency, usually within two weeks. The corrections must be made immediately and returned to Staff before the RRC review meeting. Refer to Administrative Rule 26 NCAC 05 .0101 part 5 for a definition of a technical change.
The attorneys review all rules received and usually recommend to the Commissioners that they either approve or object to each rule. Occasionally staff will recommend studying a rule further or will make comments without making a direct recommendation. Staff recommendations are generally followed but are not binding on the Commissioners.
Staff opinions are conveyed to the agency at the same time as the technical change requests are sent, usually no later than 10 days before the actual meeting. The staff comments (both technical change requests and attorney opinions or recommendations to the Commissioners) are considered public documents and are available to any member of the public who requests them. They also are available at the top of this page (see Next Meeting) shortly after they are sent to the agency.The agencies typically may not rewrite rules to meet an anticipated objection prior to the meeting and prior to any official objection by the RRC, although they will still be allowed to make any technical changes that have been requested prior to the meeting. They also are generally not allowed to withdraw a rule once it has been filed with the RRC. The major exception would be if the staff’s (or agency’s) problem is with either a new rule (adoption), or with new language in an existing rule, and not the existing language. The other major circumstance allowing an agency to withdraw a rule before the RRC would be if there was a fatal flaw in the agency’s procedure in adopting the rule that would not entitle them to be at RRC in the first place.
Rules Review Commission Meetings
The Commission meets at least once each month, usually the third Thursday, and considers all rules filed by the 20th of the preceding month. This generally gives the staff, commission and public about four weeks between the filing of a rule for review and the public meeting where a decision is made concerning the rule. The Commission must consider all the rules before it that month and has three options: approve a rule, object to a rule, or extend the period of review on a rule. If it does either of the latter two, then the rule will be considered again at the next meeting. Eventually, the RRC must either approve or object to a rule.
The RRC must also review temporary rules before they become effective. This review may be done by a committee of at least three commissioners, rather than the full commission. However the timeline requires that these rules be reviewed within 15 business days (usually three calendar weeks) of filing with the RRC. The RRC must review responses to objections within 5 business days of receiving the response. This could require the RRC to schedule a second meeting in one month.
The RRC meeting is an open or public meeting. At the same time it is not a public hearing (where the members of the public have a right to make their views or positions concerning a rule known) nor does the Commission have any obligation to consider any public comments before taking action on a rule.
However the RRC has almost always listened to members of the public (and the rulemaking agency) concerning a rule, the staff opinion on that rule, and the standards for its review. Public comment can be in either written or oral form. The Commission does have certain rules concerning the submission of public comments:
- 26 NCAC 05 .0103 Submission of Written Comments Concerning Permanent Rules to the RRC
- 26 NCAC 05 .0105 Required Notice Prior to Oral RRC Presentation
- 26 NCAC 05 .0106 Limitations on Oral Presentations
Note that these are the main rules concerning public input, but one should consult all the RRC rules to understand the various avenues of communication with the Commission and even the provisions for obtaining RRC waiver of its own rules.
Commission Objections and Rewritten Rules
If the RRC objects to a rule, then the agency must respond and either attempt to satisfy the Commission's objection by rewriting the rule or inform the Commission that it will not change the rule and ask for it to be returned (G.S. 150B-21.12). No rule that the RRC has objected to may be filed in the NCAC. If a rule is objected to because of existing language, then the agency will have to satisfy the objection or the rule will be removed from the Code..
If the rule is rewritten to satisfy the RRC's objections, then it will be approved and filed with the OAH.
Approval and Filing with OAH
When a rule is approved it may be entered into the NCAC. The general rule is that it will become effective on the 1st day of the next month following approval by the RRC.
If 10 people file written objections with the RRC, then the law is that it will become effective on the 31st legislative day of the next regular session of the General Assembly (that begins more than 25 days after the rule was approved by the RRC). The RRC staff typically refers to such a rule as “subject to legislative review” although legally all rules are always subject to legislative review. However all rules are not subject to a delayed effective date unless this procedure is specifically followed. The agency may attempt to file a temporary rule for a rule subject to legislative review and delay, if the basis for a temporary rule existed at the time the agency began rulemaking. The Governor may also put such a rule into effect by executive order.
NORTH CAROLINA ADMINISTRATIVE CODE
OFFICE OF ADMINISTRATIVE HEARINGS
.0102 COMMUNICATIONS WITH COMMISSIONERS
.0103 SUBMISSION OF WRITTEN COMMENTS CONCERNING PERMANENT RULES TO THE RRC
.0104 SUBMISSION OF WRITTEN COMMENTS CONCERNING TEMPORARY RULES TO THE RRC
.0105 REQUIRED NOTICE PRIOR TO ORAL RRC PRESENTATION
.0106 LIMITATIONS ON ORAL PRESENTATIONS
.0107 WITHDRAWAL OF RULES AFTER FILING WITH RRC
.0108 SUBMISSION OF REWRITTEN RULES OR RULES WITH TECHNICAL CHANGES
.0109 COMMUNICATIONS WITH RRC STAFF
.0110 FILING OBJECTION LETTERS
.0111 RESPONSE TO OBJECTION LETTERS
.0113 WITHDRAWAL OF OBJECTION LETTERS
.0114 RRC RULE APPROVAL CONTINGENT ON TECHNICAL CHANGE