Written by Ellen Essman
The Joint Committee on Agency Rule Review (JCARR) plays an important role in Ohio’s government. Its review of new and old rules assists in verifying that administrative rules are not duplicative, overly-burdensome, or costly. Among other things, JCARR also helps to confirm that rules in fact carry out what the legislature had in mind when passing the law. In fact, on Monday, December 10, 2018, JCARR will decide the fate of the controversial watersheds in distress rules (we explained the proposed rules in this blog post) prompted by Governor Kasich’s July 2018 executive order.
The Joint Committee on Agency Rule Review, often referred to by its acronym, JCARR, was enacted by the Ohio General Assembly in 1977, and is codified in section 101.35 of the Ohio Revised Code. JCARR is charged with “review[ing] proposed new, amended, and rescinded rules” from Ohio’s administrative agencies. The state’s administrative agencies are numerous and include the Ohio Department of Agriculture, the Ohio Environmental Protection Agency, and the Ohio Department of Natural Resources, just to name a few. The administrative agencies are responsible for making the administrative rules to help carry out the Ohio General Assembly’s legislation.
Make-up of the committee
JCARR is made up of five members of each house of the Ohio General Assembly, meaning that five members from the house of representatives and five members from the senate make up the full committee. The speaker of the house appoints the five representatives, and the president of the senate appoints the five senators. The appointments must be bipartisan; each house may only appoint three members of the same political party. During the general assembly’s first regular session, the speaker of the house chooses the chairperson of JCARR from their house appointees, and the president of the senate chooses the vice-chair. During the second regular session, the chair and vice-chair are chosen in the reverse.
Conditions that rules must meet
If JCARR reviews an administrative rule and finds that rule to “violates one or more” of six requirements, the committee may “make a recommendation to invalidate the rule.” The six requirements are as follows:
- The rules do not exceed the scope of the rule-making agency’s statutory authority;
- The rules do not conflict with a rule of that agency or another rule-making agency;
- The rules do not conflict with the intent of the legislature in enacting the statute under which the rule is proposed;
- The rule-making agency has prepared a complete and accurate rule summary and fiscal analysis of the proposed rule, amendment, or rescission (Revised Code 18);
- The rule-making agency has met the incorporation by reference standards for a text or other material as stated in Revised Code 72, Revised Code 121.75, or Revised Code 121.76; and
- If the rule has an adverse impact on business (Revised Code 52), the rule-making agency has demonstrated through the business impact analysis, the Common Sense Initiative office recommendations, and the agency’s memorandum of response to the recommendations, that the regulatory intent of the rule justifies its adverse impact on business.
If a rule is found to violate any of the conditions listed above, a member of JCARR can move to recommend a resolution to invalidate the rule. The motion for invalidation must include the reason for the invalidation specifically based on one or more of the above conditions. The motion can be to invalidate the whole rule, or just part of the rule. If the motion for invalidation is seconded by another committee member, the members of JCARR can then vote on the motion. A majority of the committee is required to recommend a resolution for amended, revised, and rescinded rules. A two-thirds super majority is required to recommend a resolution to invalidate a no-change 5 year review.
If a motion for invalidation passes JCARR, the rule is put into suspension, meaning the administrative agency cannot proceed with the rule. A member of the committee then writes a concurrent resolution about invalidating the rule. Then, depending on which house the writer of the resolution comes from, the resolution goes to the house of representatives or senate, where the body has five session days to act on the resolution. If that time lapses, or there is no majority vote within five days, then the resolution dies, meaning the rule would no longer be suspended. If the resolution does pass the first body by majority vote, it then goes to the other house of General Assembly. Again, in the second body, the resolution must be voted on within 5 session days and be passed by a majority vote. If the resolution does not pass or is not voted on, again, the rule comes out of suspension. Finally, if the concurrent resolution for invalidating the rule passes both the house and senate, the rule is invalidated.
5 Year Review of Rules
Administrative agencies in Ohio must review their administrative rules every five years. The first part of the review requires the agency to ascertain whether or not the rule has a harmful effect on business in the state of Ohio. If the agency decides that the rule does have a bad impact on business, then the rule must be sent to the Common Sense Initiative office (CSI). The CSI is charged with finding ways to diminish the effects on business.
After the analysis of the effect on business, the agency decides whether or not the rule needs to be updated or removed. Upon deciding that a rule needs to be changed or removed, the agency must then file the rule with JCARR as a five year amended or rescinded rule. Then, JCARR goes through the process described above—the committee determines whether the amended or rescinded rule violates any of the six requirements, and if it does, the committee follows the process for rule invalidation.
If the agency determines that the rule should remain as it is, then it should file the rule as a five year no-change rule. JCARR then considers the following questions as pertains to the no-change rule:
- Should the rule be continued based on the intent of the statute under which the rule was adopted?
- Should the rule be amended to give more flexibility at the local level?
- Should the rule be rescinded or eliminated because of unnecessary paperwork?
- Does the rule meet the standards for incorporation by reference?
- Does the rule duplicate, overlap, or conflict with other rules?
- Is there a continued need for the rule?
- If the rule has an adverse impact on business, did the rulemaker demonstrate through the business impact analysis, CSI recommendations, and the memorandum of response that the regulatory intent of the rule justifies its adverse impact on business?
If JCARR finds that one of the above questions was violated or not sufficiently addressed by the agency, then the committee can entertain a motion for invalidation of the rule, triggering the rule invalidation process discussed above.
JCARR has an excellent website with informative videos and other information about its purpose and how it carries out the review process, available here. For a deeper dive into JCARR and the review process, the committee’s procedure manual is also very helpful.