Chapter 106: RULEMAKING

106.01 Definitions.

As used in sections 106.01 to 106.042 of the Revised Code, as the case may be:

(A) "Agency" means an agency as defined in sections 111.15 and 119.01 of the Revised Code.

(B) "Review date" means the review date assigned to a rule by an agency under section 111.15 or 119.04 of the Revised Code.

(C) "Rule" means (1) a proposed new rule, or a proposed amendment or rescission of an existing rule, that has been filed with the joint committee on agency rule review under division (D) of section 111.15 of the Revised Code or division (C) of section 119.03 of the Revised Code or (2) an existing rule that is subject to review under sections 106.03 and 106.031 of the Revised Code. "Rule" includes an appendix to a rule.

"Proposed rule" refers to the original and a revised version of a proposed rule.

"Proposed rule" does not include a proposed rule that has been adopted and is being filed in final form.

In sections 106.03 and 106.031 of the Revised Code, "rule" does not include a rule of a state college or university, community college district, technical college district, or state community college or a rule that is consistent with and equivalent to the form required by a federal law and that does not exceed the minimum scope and intent of that federal law.

Cite as R.C. § 106.01

Added by 130th General Assembly File No. TBD, SB 3, §1, eff. 9/17/2014.

106.02 Review and revision process.

When an agency files a proposed rule and rule summary and fiscal analysis with the joint committee on agency rule review, the joint committee shall review the proposed rule and rule summary and fiscal analysis, and an invalidating concurrent resolution may be adopted, not later than the sixty-fifth day after the day on which the proposed rule was filed with the joint committee. If, after filing the original version of a proposed rule, the agency makes a revision in the proposed rule, the agency shall file the revised proposed rule and a revised rule summary and fiscal analysis with the joint committee. If the revised proposed rule is filed thirty-five or fewer days after the original version of the proposed rule was filed, the joint committee shall review the revised proposed rule and revised rule summary and fiscal analysis, and an invalidating concurrent resolution may be adopted, not later than the sixty-fifth day after the original version of the proposed rule was filed. If, however, the revised proposed rule is filed more than thirty-five days after the original version of the proposed rule was filed, the joint committee shall review the revised proposed rule and revised rule summary and fiscal analysis, and an invalidating concurrent resolution may be adopted, not later than the thirtieth day after the revised proposed rule was filed with the joint committee.

When the original version of a proposed rule and rule summary and fiscal analysis is filed with the joint committee in December or in the following January before the first day of the legislative session, the joint committee shall review the proposed rule and rule summary and fiscal analysis, and an invalidating concurrent resolution may be adopted, as if the proposed rule and rule summary and fiscal analysis had been filed with the joint committee on the first day of the legislative session in the following January. If the original version of a proposed rule and rule summary and fiscal analysis have been pending before the joint committee for more than thirty-five days, and the proposed rule and rule summary and fiscal analysis are revised in December or in the following January before the first day of the legislative session, the joint committee shall review the revised proposed rule and revised rule summary and fiscal analysis, and an invalidating concurrent resolution may be adopted, not later than the thirtieth day after the first day of the legislative session in the following January.

A revised proposed rule supersedes each earlier version of the same proposed rule.

The joint committee shall not hold its public hearing on a proposed rule earlier than the forty-first day after the proposed rule was filed with the joint committee.

Cite as R.C. § 106.02

Amended by 130th General Assembly File No. TBD, HB 10, §1, eff. 3/23/2015.

Added by 130th General Assembly File No. TBD, SB 3, §1, eff. 9/17/2014.

106.021 Resolution to invalidate rule; grounds.

If, upon reviewing a proposed rule or revised proposed rule, the joint committee on agency rule review makes any of the following findings with regard to the proposed rule or revised proposed rule, the joint committee may recommend to the senate and house of representatives the adoption of a concurrent resolution to invalidate the proposed rule or revised proposed rule or a part thereof:

(A) The proposed rule or revised proposed rule exceeds the scope of its statutory authority.

(B) The proposed rule or revised proposed rule conflicts with the legislative intent of the statute under which it was proposed.

(C) The proposed rule or revised proposed rule conflicts with another proposed or existing rule.

(D) The proposed rule or revised proposed rule incorporates a text or other material by reference and either the agency has failed to file the text or other material incorporated by reference as required by section 121.73 of the Revised Code or the incorporation by reference fails to meet the standards stated in sections 121.72, 121.75, and 121.76 of the Revised Code.

(E) The agency has failed to prepare a complete and accurate rule summary and fiscal analysis of the proposed rule or revised proposed rule as required by section 127.18 of the Revised Code.

(F) The agency has failed to demonstrate through the business impact analysis, recommendations from the common sense initiative office, and the memorandum of response that the regulatory intent of the proposed rule or revised proposed rule justifies its adverse impact on businesses in this state.

Cite as R.C. § 106.021

Added by 130th General Assembly File No. TBD, SB 3, §1, eff. 9/17/2014.

106.022 Authorization to revise and refile.

If the joint committee on agency rule review makes a finding with regard to a proposed rule under section 106.021 of the Revised Code, and also finds that it nevertheless would be worthwhile to afford the agency an opportunity to revise the proposed rule, the joint committee, as an alternative to recommending the adoption of a concurrent resolution to invalidate the proposed rule, may authorize the agency to revise and refile the proposed rule and rule summary and fiscal analysis. The joint committee shall issue the authorization in writing. In the authorization, the joint committee shall explain the finding that, but for the authorization, would have resulted in a recommendation of invalidation, and shall explain why the joint committee has found it nevertheless to be worthwhile to afford the agency an opportunity to revise the proposed rule. The joint committee shall transmit the authorization electronically to the agency, the secretary of state, the director of the legislative service commission, and, if the proposed rule is to replace an emergency rule, the governor.

When the joint committee approves such an authorization, the running of the time within which a concurrent resolution invalidating the proposed rule may be adopted is tolled until the thirty-first day after the day on which the authorization was approved. If, during the tolling period, the agency revises and refiles the proposed rule, the time within which a concurrent resolution invalidating the proposed rule may be adopted resumes running and expires on the thirty-first day after the day the proposed rule was refiled. But if, during the tolling period, the agency neither withdraws nor revises and refiles the proposed rule, the time within which a concurrent resolution invalidating the proposed rule may be adopted resumes running and expires on the thirty-first day after the day the tolling period ended.

Upon receiving the authorization, the agency may revise the proposed rule and rule summary and fiscal analysis, and then refile the revised proposed rule and rule summary and fiscal analysis electronically with the joint committee.

If the joint committee makes any of the findings outlined in section 106.021 of the Revised Code with regard to the revised proposed rule and rule summary and fiscal analysis, the joint committee may recommend the adoption of a concurrent resolution to invalidate the proposed rule under section 106.021 of the Revised Code. The joint committee may issue only one authorization with regard to the same proposed rule.

If the proposed rule that is the subject of an authorization is to replace an emergency rule, the governor may issue an order extending the emergency rule for an additional one hundred twenty days after the day on which the emergency rule otherwise would become invalid. The governor shall transmit the order electronically to the agency, the joint committee, and the director of the legislative service commission.

Cite as R.C. § 106.022

Amended by 130th General Assembly File No. TBD, HB 10, §1, eff. 3/23/2015.

Added by 130th General Assembly File No. TBD, SB 3, §1, eff. 9/17/2014.

106.023 Adoption of rules before legislative review prohibited.

An agency may not adopt a proposed rule or revised proposed rule or file it in final form unless the proposed rule has been filed with the joint committee on agency rule review under division (D) of section 111.15 or division (C) of section 119.03 of the Revised Code and the time for the joint committee to review the proposed rule and for the adoption of an invalidating concurrent resolution has expired without adoption of a concurrent resolution to invalidate the proposed rule.

If, before the time for its review of a proposed rule or revised proposed rule expires, the joint committee recommends adoption of a concurrent resolution invalidating the proposed rule or revised proposed rule, and the senate and house of representatives does not, within the time remaining for adoption of the concurrent resolution, hold five sessions at which its journal records a roll call vote disclosing a sufficient number of members in attendance to pass a bill, the time within which that house may adopt the concurrent resolution is extended until it has held five such sessions.

Cite as R.C. § 106.023

Amended by 130th General Assembly File No. TBD, HB 10, §1, eff. 3/23/2015.

Added by 130th General Assembly File No. TBD, SB 3, §1, eff. 9/17/2014.

106.03 Agency review of existing rules.

Prior to the review date of an existing rule, the agency that adopted the rule shall do both of the following:

(A) Review the rule to determine all of the following:

(1) Whether the rule should be continued without amendment, be amended, or be rescinded, taking into consideration the purpose, scope, and intent of the statute under which the rule was adopted;

(2) Whether the rule needs amendment or rescission to give more flexibility at the local level;

(3) Whether the rule needs amendment or rescission to eliminate unnecessary paperwork;

(4) Whether the rule incorporates a text or other material by reference and, if so, whether the text or other material incorporated by reference is deposited or displayed as required by section 121.74 of the Revised Code and whether the incorporation by reference meets the standards stated in sections 121.72, 121.75, and 121.76 of the Revised Code;

(5) Whether the rule duplicates, overlaps with, or conflicts with other rules;

(6) Whether the rule has an adverse impact on businesses, as determined under section 107.52 of the Revised Code;

(7) Whether the rule contains words or phrases having meanings that in contemporary usage are understood as being derogatory or offensive; and

(8) Whether the rule requires liability insurance, a bond, or any other financial responsibility instrument as a condition of licensure.

In making its review, the agency shall consider the continued need for the rule, the nature of any complaints or comments received concerning the rule, and any relevant factors that have changed in the subject matter area affected by the rule.

(B) On the basis of its review of the existing rule, the agency shall determine whether the existing rule needs to be amended or rescinded.

(1) If the existing rule needs to be amended or rescinded, the agency, on or before the review date of the existing rule, shall commence the process of amending or rescinding the existing rule in accordance with its review of the rule.

(2) If the existing rule does not need to be amended or rescinded, proceedings shall be had under section 106.031 of the Revised Code.

Upon the request of the agency that adopted an existing rule, the joint committee on agency rule review may extend the review date of the rule to a date that is not later than one hundred eighty days after the review date assigned to the rule by the agency. Not more than two such extensions may be allowed.

Cite as R.C. § 106.03

Amended by 132nd General Assembly File No. TBD, HB 26, §101.01, eff. 6/30/2017.

Added by 130th General Assembly File No. TBD, SB 3, §1, eff. 9/17/2014.

106.031 Procedures for no change rules.

If an agency, on the basis of its review of a rule under section 106.03 of the Revised Code, determines that the rule does not need to be amended or rescinded, proceedings shall be had as follows:

(A)

(1) If, considering only the standard of review specified in division (A)(6) of section 106.03 of the Revised Code, the rule has an adverse impact on businesses, the agency shall prepare a business impact analysis that describes its review of the rule under that division and that explains why the regulatory intent of the rule justifies its adverse impact on businesses. If the rule does not have an adverse impact on businesses, the agency may proceed under division (B) of this section.

(2) The agency shall transmit a copy of the full text of the rule and the business impact analysis electronically to the common sense initiative office. The office shall make the rule and analysis available to the public on its web site under section 107.62 of the Revised Code.

(3) The agency shall consider any recommendations made by the office.

(4) Not earlier than the sixteenth business day after transmitting the rule and analysis to the office, the agency shall either (a) proceed under divisions (A)(5) and (B) of this section or (b) commence, under division (B)(1) of section 106.03 of the Revised Code, the process of rescinding the rule or of amending the rule to incorporate into the rule features the recommendations suggest will eliminate or reduce the adverse impact the rule has on businesses. If the agency determines to amend or rescind the rule, the agency is not subject to the time limit specified in division (B)(1) of section 106.03 of the Revised Code.

(5) If the agency receives recommendations from the office, and determines not to amend or rescind the rule, the agency shall prepare a memorandum of response that explains why the rule is not being rescinded or why the recommendations are not being incorporated into the rule.

(B) The agency shall assign a new review date to the rule. The review date assigned shall be not later than five years after the immediately preceding review date pertaining to the rule. If the agency assigns a review date that exceeds the five-year maximum, the review date is five years after the immediately preceding review date.

(C)

(1) The agency shall file all the following, in electronic form, with the joint committee on agency rule review, the secretary of state, and the director of the legislative service commission: a copy of the rule specifying its new review date, a complete and accurate rule summary and fiscal analysis, and, if relevant, a business impact analysis of the rule, any recommendations received from the common sense initiative office, and any memorandum of response.

(2) Subject to section 106.05 of the Revised Code, the joint committee does not have jurisdiction to review, and shall reject, the filing of a rule under division (C)(1) of this section if, at any time while the rule is in its possession, it discovers that the rule has an adverse impact on businesses and the agency has not complied with division (A) of this section. The joint committee shall electronically return a rule that is rejected to the agency, together with any documents that were part of the filing. Such a rejection does not preclude the agency from refiling the rule under division (C)(1) of this section after complying with division (A) of this section. When the filing of a rule is rejected under this division, it is as if the filing had not been made.

(D) The joint committee shall publish notice of the agency's determination not to amend or rescind the rule in the register of Ohio for four consecutive weeks after the rule is filed under division (C) of this section.

(E) During the ninety-day period after a rule is filed under division (C) of this section, but after the four-week notice period required by division (D) of this section has ended, the joint committee may recommend to the senate and house of representatives the adoption of a concurrent resolution invalidating the rule if the joint committee finds any of the following:

(1) The agency improperly applied the standards in division (A) of section 106.03 of the Revised Code in reviewing the rule and in determining that the rule did not need amendment or rescission.

(2) The rule has an adverse impact on businesses, and the agency has failed to demonstrate through a business impact analysis, recommendations from the common sense initiative office, and a memorandum of response that the regulatory intent of the rule justifies its adverse impact on businesses.

(3) If the rule incorporates a text or other material by reference, the agency failed to file, or to deposit or display, the text or other material incorporated by reference as required by section 121.73 or 121.74 of the Revised Code or the incorporation by reference fails to meet the standards stated in sections 121.72, 121.75, and 121.76 of the Revised Code.

If the agency fails to comply with section 106.03 or 106.031 of the Revised Code, the joint committee shall afford the agency an opportunity to appear before the joint committee to show cause why the agency has not complied with either or both of those sections. If the agency appears before the joint committee at the time scheduled for the agency to show cause, and fails to do so, the joint committee, by vote of a majority of its members present, may recommend the adoption of a concurrent resolution invalidating the rule for the agency's failure to show cause. Or if the agency fails to appear before the joint committee at the time scheduled for the agency to show cause, the joint committee, by vote of a majority of its members present, may recommend adoption of a concurrent resolution invalidating the rule for the agency's default.

When the joint committee recommends that a rule be invalidated, the recommendation does not suspend operation of the rule, and the rule remains operational pending action by the senate and house of representatives on the concurrent resolution embodying the recommendation. If the senate and house of representatives adopt the concurrent resolution, the rule is invalid. If, however, the senate and house of representatives do not adopt the resolution, the rule continues in effect, and shall next be reviewed according to the new review date assigned to the rule.

Cite as R.C. § 106.031

Amended by 130th General Assembly File No. TBD, HB 10, §1, eff. 3/23/2015.

Added by 130th General Assembly File No. TBD, SB 3, §1, eff. 9/17/2014.

106.04 Recommendation of invalidation.

When the joint committee on agency rule review recommends invalidation of a proposed or existing rule under section 106.021 or 106.031 of the Revised Code, the chairperson of the joint committee, or another member of the joint committee designated by the chairperson, shall prepare the recommendation of invalidation in writing. The recommendation shall identify the proposed or existing rule, the agency that proposed or submitted the proposed or existing rule, and the finding that caused the joint committee to make the recommendation. The recommendation briefly shall explain the finding.

The chairperson of the joint committee shall request the legislative service commission to prepare a concurrent resolution to invalidate the proposed or existing rule according to the recommendation. The concurrent resolution shall state the finding that caused the joint committee to recommend invalidation of the rule.

Cite as R.C. § 106.04

Added by 130th General Assembly File No. TBD, SB 3, §1, eff. 9/17/2014.

106.041 Submission to clerk.

The chairperson of the joint committee on agency rule review, or another member of the joint committee designated by the chairperson, shall submit a concurrent resolution to invalidate a proposed or existing rule to the clerk of either house of the general assembly. The recommendation of invalidation and a copy of the proposed or existing rule also shall be submitted to the clerk along with the concurrent resolution.

Cite as R.C. § 106.041

Added by 130th General Assembly File No. TBD, SB 3, §1, eff. 9/17/2014.

106.042 Effect of adoption of concurrent resolution invalidating proposed rule; effect of failure to adopt resolution.

(A) The adoption by the general assembly of a concurrent resolution invalidating any version of a proposed rule prohibits the agency that proposed the rule from instituting or continuing rule-making proceedings with regard to any version of the proposed rule for the remaining term of the general assembly. However, the general assembly may adopt a concurrent resolution that authorizes the agency to institute or continue rule-making proceedings with regard to the proposed rule, but the agency may not adopt any version of the proposed rule unless it has been submitted to the joint committee on agency rule review and the time for legislative review has expired without adoption of a concurrent resolution invalidating the proposed rule.

(B) The failure of the general assembly to adopt a concurrent resolution invalidating a proposed or existing rule is not a ratification of the lawfulness or reasonableness of the proposed or existing rule or of the validity of the procedure by which the rule was proposed or adopted.

Cite as R.C. § 106.042

Amended by 132nd General Assembly File No. TBD, HB 49, §101.01, eff. 9/29/2017.

Added by 130th General Assembly File No. TBD, SB 3, §1, eff. 9/17/2014.

106.05 Referral to common sense initiative office for determination of adverse impact on business.

(A) If the joint committee on agency rule review is reviewing a proposed or existing rule under section 106.021 or 106.031 of the Revised Code and the joint committee is uncertain whether the proposed or existing rule has an adverse impact on businesses, the joint committee electronically may refer the rule to the common sense initiative office, or if the joint committee identifies an adverse impact on businesses in the proposed or existing rule that has not been evaluated or has been inadequately evaluated in a business impact analysis previously reviewed by the common sense initiative office, the joint committee electronically may rerefer the rule to the office. The joint committee electronically may transmit a memorandum to the office along with the proposed or existing rule explaining specifically why it is referring or rereferring the rule to the office. The joint committee electronically shall notify the agency if it refers or rerefers the proposed or existing rule to the office.

Such a referral or rereferral tolls the running of the time within which a concurrent resolution invalidating the proposed or existing rule may be adopted. The time resumes running when the proposed or existing rule is returned to the joint committee after the referral or rereferral. The tolling does not affect the continued operation of an existing rule.

(B) The office, within thirty days after receiving a proposed or existing rule under division (A) of this section, shall evaluate or reevaluate the rule to determine whether it has an adverse impact on businesses, and shall proceed under division (C)(1) or (2) of this section as is appropriate to its determination.

(C)

(1) If the office determined that the proposed or existing rule does not have an adverse impact on businesses, the office shall prepare a memorandum stating that finding. The office electronically shall transmit the memorandum to the agency, and electronically shall return the proposed or existing rule to the joint committee. The office also electronically shall transmit a copy of its memorandum to the joint committee along with the proposed or existing rule. The joint committee may review or reject the proposed or existing rule, the same as if the rule had not been referred or rereferred to the office. If, when the proposed or existing rule is returned to the joint committee, fewer than thirty days remain in the time by which a concurrent resolution invalidating the proposed or existing rule may be adopted, the time for adopting such a concurrent resolution is extended until the thirtieth day after the day on which the proposed or existing rule was returned to the joint committee.

(2) If the office determined that the proposed or existing rule has an adverse impact on businesses, the office shall prepare a memorandum stating that finding. The office electronically shall transmit the memorandum to the agency, and electronically shall transmit the memorandum and the proposed or existing rule to the joint committee. The memorandum shall identify the proposed or existing rule to which it relates.

In the case of a proposed rule, the joint committee may review or reject the proposed rule the same as if the proposed rule had not been referred or rereferred to the office. If, when the proposed rule is returned to the joint committee, fewer than thirty days remain in the time by which a concurrent resolution invalidating the proposed rule may be adopted, the time for adopting such a concurrent resolution is extended until the thirtieth day after the day on which the proposed rule was transmitted to the joint committee. The agency, after considering the memorandum, may revise the proposed rule.

In the case of an existing rule, it is the same as if the agency had withdrawn the existing rule from the joint committee's jurisdiction. If the agency determines, after considering the memorandum, that the existing rule needs to be amended or rescinded, the agency shall commence the process of doing so under division (B)(1) of section 106.03 of the Revised Code. If, however, the agency determines, after considering the memorandum, that the existing rule does not need to be amended or rescinded, the agency shall proceed with periodic review of the rule under division (B)(2) of section 106.03 of the Revised Code.

When the joint committee gives notice that it is referring or rereferring a proposed or existing rule to the common sense initiative office, and when the joint committee or office transmits a memorandum to the other or to an agency, the joint committee or office also electronically shall transmit a copy of the notice or memorandum to the director of the legislative service commission. The director shall publish the notice or memorandum in the register of Ohio together with a notation identifying the proposed or existing rule to which the notice or memorandum relates.

Cite as R.C. § 106.05

Amended by 130th General Assembly File No. TBD, HB 10, §1, eff. 3/23/2015.

Added by 130th General Assembly File No. TBD, SB 3, §1, eff. 9/17/2014.