By Robert A. Patchett, Associate Legal Counsel I
Laws are passed by the General Assembly and usually signed by the governor. Rules, however, are adopted by administrative agencies to clarify laws and processes for compliance and have the effect of law. Rulemaking is the process by which the Commission adopts, amends, or repeals rules.
There are three different processes for rulemaking:
–temporary rulemaking, and
Permanent rulemaking is the process used most often by the Commission so it will be the focus of this article. Temporary and emergency rules are used only in rare situations to reduce the time required for a rule to become effective, and are not meant to be permanent. They must be followed by a permanent rulemaking.
Starting the Process – To start a permanent rulemaking, the Commission proposes rule text and sends it to the Office of Administrative Hearings (“OAH”). OAH publishes the text in the North Carolina Register. It is also published on the Commission’s website. Publishing provides notice to interested parties that the Commission is considering amending or adopting a rule.
Public Comment – Once the rule text is published, there are two opportunities for the public to comment on the text. Comments can be submitted to the Commission during a sixty day comment period, or at a public hearing held shortly after the rule text is published. The comment period and public hearing provide interested parties with the opportunity to express support or opposition for the proposed rule.
Commission Adoption – After the comment period and public hearing have passed, the Commission must consider all of the comments and decide whether to adopt the proposed rule text, make a change to the rule text, or reject the rule text. Rejecting the rule text ends the process. If, based on the comments, the Commission makes a substantial change to the initial proposed rule text, then the new proposed rule text is republished and another sixty-day comment period is initiated. If the Commission makes more changes or adopts the rule text as written, then the proposed rule is sent to the Rules Review Commission (“RRC”).
Rules Review Commission – The RRC reviews proposed rules to ensure agencies follow rulemaking requirements, that each rule’s purpose and language are clear, and that the Commission has the legal authority to make a specific rule. Rules are closely scrutinized by the RRC and it can either approve or object to a rule. If the RRC objects, then the Commission has the opportunity to either revise the proposed rule or end the rulemaking process. After the RRC approves a rule, it is entered into the North Carolina Administrative Code and will usually be effective either the first day of the next calendar month or on a specified day, such as July 1 of a given year.
This article came from the October 2016-Vol47-2 edition of the bulletin.