Many state agencies are skirting legislation requiring them to determine whether the regulations they collectively impose are necessary, said Garth Dunklin, chairman of the state Rules Review Commission. Dunklin wants tighter controls to force agencies to look closer at rules they issue and potentially remove more of them from the books.
The Rules Review Commission has collected agency recommendations on 8,964 rules, or roughly 46.44 percent of the 19,302 rules subject to an ongoing reapproval process, Dunklin said.
The Rules Review Commission has the authority to change an agency’s recommendation on keeping or eliminating its rules. The Joint Legislative Administrative Procedure Oversight Committee reviews final recommendations.
The Rules Review Commission began pushing in 2012 for all state agency regulations to face a sunset period at which they would expire unless reviewed and justified for continuation.
But agencies complained that would be burdensome and pressured the General Assembly to grant other options.
In response, the legislature designed a “three-bucket” system. Agencies may abolish outdated regulations, keep them unchanged without a public process, or put them through a formal readoption process with public hearings and comment.
As of Dec. 13, agencies recommended preserving 5,550 rules just as they are without change, removing 1,077 from the state code, and submitting 2,337 through the formal readoption process.
“When 61 percent of the rules that are going through this process are staying in the code with no change, they’re not getting the full exposure to public comment or careful examination,” Dunklin said. That “bothers us from a policy standpoint.”
In early December, Dunklin appeared before the Joint Legislative Administrative Procedure Oversight Committee and recommended the General Assembly revise the law to eliminate the option allowing agencies to simply maintain rules without review.
Eliminating the “middle bucket” would bring the law closer to its original objective, “simply that every bill in the code would expire on certain dates, and have to be readopted,” similar to a process other states use, Dunklin said.
“The concept there was to make agencies pick up and look at their rules, and examine their continuing usefulness and efficacy, expose them to the process of public comment that is a part of our rulemaking process,” Dunklin said. Outdated rules could be stricken from the code, and the remaining rules could be improved with renewed scrutiny.
Dunklin noted that many agency heads who were asked by a Rules Review Commission member what a particular rule was, “the response, disturbingly frequently, would be, ‘I’m not really sure, it’s just always been there,’” he said.
Dunklin said some agencies still have no idea what some of their rules are. So far, 12 percent of all rules have been eliminated as obsolete after agency reviews.
“In some instances we have seen agencies repeal rules because they relate to a program that expired more than 10 years ago,” Dunklin said. After reviewing its rules, the North Carolina Board of Barber Examiners classified more than half unnecessary; the rest are going through the readoption process.
Some agencies have bought into the need for going through the more formal review and readoption procedures.
“A large chunk of the Board of Agriculture’s rules came through their readoption process last month,” Dunklin said. “We have other readoptions that are scheduled all the way out to 2019.”
The General Assembly directed the Rules Review Commission to schedule reviews first for the Department of Environmental Quality and the Department of Health and Human Services.
Dunklin said “close to all of DEQ’s rules” will go through readoption and public comment. Far fewer were abolished, or recommended to be kept as is without public comment.
Other agencies have been “all over the place. They’ve had some rules to be removed, they’ve had some rules to remain, they’ve had some rules to be subject to readoption,” Dunklin said.
Dunklin said “a really big question” is whether Democratic Gov. Roy Cooper will try to make agency changes that could affect the rules review initiative because governors often try to impose their agendas through the rulemaking process.
However, the periodic review process is mandated by the legislative branch, “so it is their bailiwick to decide if anything changes about that. The governor doesn’t have any say-so about that really,” Dunklin said.
Even if former Republican Gov. Pat McCrory had been re-elected, “there probably would be a lull in rulemaking for the next few months because it is very common even for a second term for there to be a lot of changeovers,” Dunklin said. So new agency appointees will spend several months learning about their jobs instead of dealing with rules review.
Dunklin expects work already completed by the Rules Review Commission to stand.
Hypothetically, though, a new agency head could “tear up all of their rules and start over,” and if those regulations are clear, unambiguous, and within the agency’s statutory authority, the Rules Review Commission is required to approve them, he said.
Rules Review Commission members are appointed by the legislature, so Cooper has no role in their terms.
While the knock against regulations often is they impose barriers to market entry and harm the economy, “It’s not a black and white issue,” Dunklin said. Some are necessary, and need to be enforced.
Dunklin said he would not favor a proposal such as one President-elect Donald Trump has floated that would require eliminating two rules for every new one requested.
“It would be so easy to circumvent,” he said. “I have seen a rule that was one page long. I have seen a rule that was 101 pages long.”
Sometimes, more rules are better. The North Carolina Real Estate Commission expanded its trust account regulation from one rule to three because it involved three types of subject matter. That clarified and improved implementation of the rule, Dunklin said.