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. 

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 “Unnecessary,” meaning the agency determined the rule is obsolete, redundant or otherwise no longer needed.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