RULES REVIEW COMMISSION
June 19, 2008
MINUTES
The Rules Review Commission met on Thursday, June 19, 2008, in the Assembly Room of the Methodist Building, 1307 Glenwood Avenue, Raleigh, North Carolina. Commissioners present were: Jerry Crisp, Jim Funderburk, Jeff Gray, Keith Gregory, Clarence Horton, John Lewis and Dan McLawhorn.
Staff members present were: Joseph DeLuca and Bobby Bryan, Commission Counsel, and
Angela Person, Administrative Assistant.
The following people were among those attending the meeting:
Mike Abraczinskas DENR/Division of Air Quality
Nancy Pate Department of Environment and Natural Resources
Felicia Williams Office of Administrative Hearings
Molly Masich Office of Administrative Hearings
Dana Vojtko Office of Administrative Hearings
Julie Edwards Office of Administrative Hearings
Catherine Marchesini Office of Administrative Hearings
Joan Troy Wildlife Resources Commission
Kate Pipkin Wildlife Resources Commission
Kent Nelson Wildlife Resources Commission
Dave Henderson Department of Transportation
Kelly Braam Board of Barber Examiners
S. C. Kitchen Durham County
Robert M. Ward City of Burlington
Catherine Blum DENR/Division of Marine Fisheries
Rich Carpenter DENR/Division of Marine Fisheries
Beverly Speroff DHHS/Division of Health Service Regulation
Becky Wertz DHHS/Division of Health Service Regulation
Barry Smith Freedom Newspaper
Francis Crawley Attorney Generals Office
David McGowan NC Realtors
Andrea Borden DHHS/Division of Mental Health
Lisa Martin NC Home Builders Association
Nadine Pfeiffer DHHS/Division of Health Service Regulation
Ellie Sprenkel Department of Insurance
Jean Holliday Department of Insurance
Roberta Ouellette Appraisal Board
Stephen Benjamin Department of Agriculture and Consumer Services
Clyde B. Albright Alamance County Attorney
Will Crumbley Office of State Budget and Management
David McLeod Department of Agriculture and Consumer Services
Lorie Pugh DHHS/Division of Child Development
Dedra Alston DHHS/Division of Child Development
Bill Lane Kilpatrick Stockton
Karen Sindelar City of Durham
John Cox City of Durham
Kathryn Jones Cooper Attorney General’s Office
Rich Gannon DENR/Division of Water Quality
Jason Robinson DENR/Division of Water Quality
W. Denise Baker DHHS/Division of Mental Health
Denise Stanford Contractors Board
Nancy Hemphill Medical Board
Katy West DENR/Division of Marine Fisheries
Palmer Sugg Broughton Wilkins
APPROVAL OF MINUTES
The meeting was called to order at 10:05 a.m. with Mr. Funderburk presiding. He reminded the Commission members that they have a duty to avoid conflicts of interest and the appearances of conflicts as required by NCGS 138A-15(e). Vice-Chairman Funderburk asked for any discussion, comments, or corrections concerning the minutes of the May 15 meeting. There were none and the minutes were approved as distributed.
FOLLOW-UP MATTERS
02 NCAC 42 .0501 – NC Gasoline and Oil Inspection Board. The Commission approved the rewritten rule submitted by the agency.
10A NCAC 27G .0212 – Commission for MH/DD/SAS. The Commission approved the rewritten rule submitted by the agency.
12 NCAC 11 .0210 – Alarm Systems Licensing Board. No rewritten rule has been submitted and no action was taken. Mr. DeLuca received an email from Charles McDarris, the Attorney for the agency. Mr. McDarris reported that the Alarm Board has voted to change the rule according to staff recommendations. He will make changes and submit them accordingly.
15A NCAC 02D .2602 and .2603 – Environmental Management Commission. The Commission approved the rewritten rules submitted by the agency.
15A NCAC 10C .0107 – Wildlife Resources Commission. This rule was objected to in April based on lack of authority to submit a joint rule that must also have a companion rule filed by the Marine Fisheries Commission. The MFC filed rule 15A NCAC 03Q .0107, which is that companion rule, for review this month. The Commission on motion by Mr. Gray rescinded its objection to the WRC rule and approved the rule as written. It also approved the MFC rule at that time.
25 NCAC 01C .0414 – State Personnel Commission. This rule was returned to the agency at the agency’s request.
IBC 421.3.9: NC Building Code Council – Small Residential Care Facilities – The Commission approved the rewritten rule submitted by the agency.
IPC 302.1: NC Building Code Council – Detrimental or Dangerous Materials – Mr. Barry Gupton, the APA coordinator for the agency, submitted a response asking the RRC to reconsider its objection to this rule and approve the rule as written. Commission counsel recommended against taking the action requested by the agency and stated that the agency should either amend the rule to satisfy the objection or ask that the rule be returned to the agency. The Commission took no further action on this rule.
LOG OF FILINGS
Vice-Chairman Funderburk presided over the review of the log of permanent rules.
All rules were approved unanimously with the following exceptions:
10A NCAC 13D .2210: Medical Care Commission – The Commission objected to this rule based on lack of statutory authority. There is no authority cited for paragraph (e) of this rule. G.S 131E-256 creates the Health Care Personnel Registry and authorizes the Medical Care Commission to adopt rules to implement the Section. But the Section does not prohibit the employment of persons with substantiated findings. It does require facilities to access the Registry before hiring personnel, and it requires the Department of Health and Human Services to provide the employer or potential employer with information about the nature of the findings or allegation and the status of the investigation. But it does not prohibit the hiring. There is also no general authority cited for the Commission to set qualification for who may be employed.
10A NCAC 27G .0211: DHHS: Division of MH/DD/SAS – This rule was withdrawn by the agency.
10A NCAC 27G .7102: DHHS: Division of MH/DD/SAS – The Commission objected to this rule based on lack of statutory authority. There is no authority cited for the agency to establish and change target populations merely by changing a website rather than by following the rule-making process.
10A NCAC 27I .0102, .0201, .0504: DHHS: Division of MH/DD/SAS – These rules were withdrawn by the agency.
10A NCAC 27I .0505: DHHS: Division of MH/DD/SAS – This rule was renumbered as 10A NCAC 27I .0504.
10A NCAC 28F .0214: DHHS: Division of MH/DD/SAS – This rule was withdrawn by the agency.
15A NCAC 02B .0262, .0263, .0264, .0265, .0266, .0267, .0268, .0269, .0270, .0271, .0272, .0311: Environmental Management Commission – The Commission extended the period of review on the rules. It did this in accordance with N.C.G.S. 150B-21.10(3) in order to provide the agency with additional time to review and revise these rules in accordance with comments and requests for technical changes from the RRC Commissioners and staff. This should expedite the substantive review of the rules and focus the time and attention of the agency on issues that are more of a problem than on many changes that the agency may be willing to make.
On the motion of Commissioner Horton, the RRC extended the period of review of these rules and authorized the agency to make any changes in the rules based on staff technical change requests and return the rules to the RRC by July 3, that is at least two weeks prior to its July meeting in order to give interested parties and RRC staff sufficient time to review those changes. If the agency chooses to rewrite any rule or portion of a rule based on a staff or commissioner’s comments, requests, or recommendation to object, then that is authorized also. If the changes were submitted by July 3 then the RRC could review those revised rules at its July meeting. If any changes were submitted later than July 3, then the RRC could choose to review those changes and these rules at its scheduled August 21 meeting.
15A NCAC 03O .0402 and .0404: Marine Fisheries Commission – These rules were withdrawn by the agency. Rule 03Q .0107 was approved at the time the Commission reviewed and approved the companion WRC Rule 10C .0107.
21 NCAC 12 .0204: Licensing Board of General Contractors – The Commission objected to this rule based on ambiguity. In (f), it is not clear when the Board would desire a reporting method not in compliance with Generally Accepted Accounting Principles.
21 NCAC 12 .0211: Licensing Board of General Contractors – The Commission approved this rule. The Commission received requests from more than 10 persons clearly requesting legislative review for this rule, and the effective date of this rule is therefore delayed pending legislative review.
21 NCAC 57A .0202: Appraisal Board – The Commission objected to this rule based on ambiguity. In (d), it is not clear what agency or agencies have been designated by the Board to provide criminal record reports.
21 NCAC 57A .0211: Appraisal Board –The Commission objected to this rule based on ambiguity. In (c), it is not clear what agency or agencies have been designated by the Appraisal Board to provide criminal record reports.
21 NCAC 64 .0218: Board of Examiners for Speech and Language Pathologists and Audiologists – The Commission objected to this rule based on lack of statutory authority, ambiguity and failure to comply with the Administrative Procedure Act. G.S. 150B-21.2(f) and (g) require an agency to accept comments on the text of a proposed rule for at least 60 days after the text is published in the NC Register, and to not adopt a rule until the comment period is over. This rule was published on March 3, 2008 and adopted on April 19, 2008. That is only 47 days. The rule was not adopted in compliance with Part 2 of Article 2A of the Administrative Procedure Act. In addition, it is not clear what standards the Board will use in approving continuing professional education. There is no authority cited to set the standards outside the rule-making process.
COMMISSION PROCEDURES AND OTHER BUSINESS
The Commission reviewed the written comments it received concerning its proposed rules. After a few minutes discussion concerning how to proceed, Commissioner McLawhorn suggested, and the chairman ordered that the committee which had previously worked on drafting the proposed rules, and any other interested commissioners set another meeting to determine if it wanted to make any further changes in the rules and report back at the next RRC meeting.
The meeting adjourned at 11:30 a.m.
The next scheduled meeting of the Commission is Thursday, July 17 at 10:00 a.m.
Respectfully Submitted,
Angela J. Person
Administrative Assistant
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