RULES REVIEW COMMISSION
DECEMBER 14, 2006
MINUTES
The Rules Review Commission met on Thursday, December 14, 2006, in the Cabinet Room of the Methodist Building, 1307 Glenwood Avenue, Raleigh, North Carolina. Commissioners present were: Jim Funderburk, Jeff Gray, Jennie Hayman, Thomas Hilliard, Robert Saunders, Mary Shuping, John Tart, David Twiddy and Judson Welborn.
Staff members present were: Joseph DeLuca, Staff Counsel; Bobby Bryan, Rules Review Specialist; Barbara Townsend, Administrative Assistant.
The following people attended:
John Suttles Southern Environmental Law Center
Jim Gulick NC Department of Justice
Frank Crawley NC Department of Justice
Andy Ellen NC Retail Merchants Association
Peggy Oliver Office State Personnel
Deborah Carroll Division of Public Health
Ellie Sprenkel Department of Insurance
Dana Sholes Office of Administrative Hearings
Julie Edwards Office of Administrative Hearings
Lauren Thompson Department of Insurance
Gene Crow NCDA & CS
Kelly Randell Department of Insurance
Glenda Artis DHHS/DAAS
Shannon Crane DHHS/DAAS
Barry Gupton Building Code Council
Becky Garrett NC Board of Recreational Therapy
Nadine Pfeiffer Division Facility Services
Bob Brooks NC State Board of CPA Examiners
Mike Barham NC State Board of CPA Examiners
Elizabeth Kontis DENR/DWQ
Elliot Rushing Secretary of State
Cheri Myers Secretary of State
John Womble DHHS
Ann Wall Secretary of State
Jane Carter NC Respiratory Care Board
Ozie Stallworth Secretary of State
Gayle Holder Secretary of State
Mark Prak Brooks Pierce
Marcus Trathen Brooks Pierce
Erin Gould Department of Labor
Etta Maynard Community Colleges
Mike Lopazanski NC DCM
Julia Lohman Sheriff’s Education & Training Standards
Kim Colson DENR/DWQ
Susan Dail DHHS/DSS
Thom Allen DENR/DAQ
Paul Grable DENR/DAQ
Jean Stanley NC Board of Nursing
Keith Overcash DENR/DAQ
Sherry Samuels NCRCB
Tom Miller Attorney General’s Office/ Board of Agriculture
Nancy Pate DENR
Lee Hoffman Division of Facility Services/CON
Karen Cochrane Brown Legislative Research Staff
David McLeod Board of Agriculture
Jack Nichols Allen & Pinnix/Board of Nursing
APPROVAL OF MINUTES
The meeting was called to order at 10:09 a.m. with Chairman Hayman presiding. Chairman Hayman reminded the Commission that all members have a duty to avoid conflicts of interest and appearances of conflict pursuant to Governor Easley’s Executive Order No. 1. Chairman Hayman asked for any discussion, comments, or corrections concerning the minutes of the November 16, 2006 meeting. The minutes were approved as written.
FOLLOW-UP MATTERS
21 NCAC 46 .2506: Pharmacy Board – The Commission received the rule from the trial court on remand from the Court of Appeals and Supreme Court. The Commission approved the rule. The Commission did receive 12 letters requesting that the rule be subject to legislative review if it is not already subject to it. The Commission believes that this is an “old process” rule and thus automatically subject to a delayed effective date pending legislative review. Commissioner Saunders did not participate in any discussion or vote concerning the Pharmacy Board rule.
04 NCAC 06C .1202: Credit Union Division - The Commission approved the rewritten rule submitted by the agency.
10A NCAC 06R .0305: Social Services Commission - The Commission approved the rewritten rule submitted by the agency.
Commissioner Twiddy did not participate in any discussion or vote concerning the Department of Insurance rules.
21 NCAC 32M .0104: Medical Board – The Commission approved the rewritten rule submitted by the agency. Commissioner Shuping did not participate in any discussion or vote concerning the Medical Board rule.
21 NCAC 36 .0217; .0804: Nursing Board - The Commission approved the rewritten rules submitted by the agency. Commissioner Shuping did not participate in any discussion or vote concerning the Nursing Board rules.
21 NCAC 61 .0103: Respiratory Care Board – The Commission approved the rewritten rule submitted by the agency.
21 NCAC 65 .0205; .0401; .0601; .1001: Recreational Therapy Licensure Board - The Commission approved the rewritten rules submitted by the agency.
23 NCAC 3A .0113: Board of Community Colleges – David Sullivan appeared before the Commission and asked the Commission to rescind its objection and approve the rule. He cited additional authority for the rule along with a recent opinion from the Attorney General’s office. After his presentation Commissioner Saunders made a motion to rescind the objection to formally put Mr. Sullivan’s request before the Commission. There was no second and the motion died. The agency will be given another chance to respond to the objection.
LOG OF FILINGS
Chairman Hayman presided over the review of the log of permanent rules. All rules were approved unanimously with the following exceptions:
R 322.1: 2006 Residential Code: Building Code Council – The Commission objected to the rule due to ambiguity. It is not clear what is meant by an “accessible dwelling unit.” The term is not defined in this Code, and in the Accessibility Code, “accessible dwelling unit” is defined as a dwelling unit that complies with 30.4 only. It is therefore not clear what this rule requires.
4502: 2006 Residential Code: Building Code Council – The Commission objected to the rule due to ambiguity. In the definition of “Coastal High Hazard Area,” it is not clear what standards the Building Code Council will use in approving a Coastal Resources Commission identification of a coastal high hazard area.
15A NCAC 7H .0312: Coastal Resources Commission – The Commission objected to the rule due to ambiguity. In (1) (a), it is not clear what would constitute a “regularly maintained navigation channel”. There is the same issue in (2)(d) and (e), (3)(a), and (4)(a). In (1)(b), it is not clear what is meant by “acceptable geological and engineering standards”. There is the same issue in (2)(a). In (2)(b), it is not clear what is meant by “previously acquired data”. In (4)(c), it is not clear what standards the Division will use in determining whether to grant prior approval.
21 NCAC 8G: Board of Certified Public Accountant Examiners – The rules were unanimously approved. Commissioner Shuping did not participate in any discussion or vote concerning these rules.
21 NCAC 36: Nursing Board – The rules were unanimously approved. Commissioner Shuping did not participate in any discussion or vote concerning these rules.
21 NCAC 57A .0201: Appraisal Board – The Commission objected to this rule based on ambiguity. Paragraph (a)(3) of this rule appears to be inconsistent with (b) in Rules 57B .0102 and .0103. In 57A .0201(a)(3) an applicant for certification as a certified residential real estate appraiser has to complete the courses that a trainee registrant or licensed appraiser must have completed. However, this rule does not appear to have any requirement that the applicant complete those courses within any period of time before certification as a certified residential real estate appraiser. However, in rules 57B .0102(b) and .0103(b) an applicant who is not presently registered or licensed must have completed those courses “within the five-year period immediately preceding the date application is made to the Board.”
21 NCAC 57B .0102; .0103: Appraisal Board – The Commission objected to these rules based on ambiguity. Paragraph (a)(3) of the first rule appears to be inconsistent with (b) in these two rules. In 57A .0201(a)(3) an applicant for certification as a certified residential real estate appraiser has to complete the courses that a trainee registrant or licensed appraiser must have completed. However, that rule does not appear to have any requirement that the applicant complete those courses within any period of time before certification as a certified residential real estate appraiser. However, in rules 57B .0102(b) and .0103(b) an applicant who is not presently registered or licensed must have completed those courses “within the five-year period immediately preceding the date application is made to the Board.”
21 NCAC 57B .0304: Appraisal Board – The Board mistakenly filed this rule with the Rules Review Commission. They decided not to make any amendment to this rule. The rule is withdrawn from further review by the Rules Review Commission.
25 NCAC 1H .0631: State Personnel Commission – The Commission extended the period of review on this rule in accordance with N.C.G.S. 150B-21.10(3) in order to obtain some additional information about the rule and explore more fully with the agency to determine the relationship between this rule, the SPC’s statutory authority, the law affecting state job listings with the N.C. Employment Security Commission, and the actual practices of the agency. In (c) the rule specifies that a vacancy that is to be filled “from … outside the state government workforce shall … have an application period of not less than five working days” (emphasis added). There is no reference anywhere within this rule to listing the vacancy with the N.C. Employment Security Commission. G.S. 96-29 appears to require such vacancies for positions “which will not be filled solely by promotion or transfer from within the existing State government work force” to be listed with the NC ESC. In addition it appears to require a posting of at least 21 days before the agency may fill the vacancy. If this rule does not actually go against the requirement in G.S. 96-29, then it at least seems to be inconsistent with the statute or capable of misleading state agencies and the public as to what the totality of the requirements in both rule and statute are. If this rule in some way is not subject to the listing requirements in G.S. 96-29, then that is not clear.
25 NCAC 1H .0635: State Personnel Commission – The Commission objected to the rule based on ambiguity. In (c), lines 18 and 19, it is unclear what is meant or required by or what result should follow when “management shall be responsible” for adverse effects. It is also unclear as to what would constitute “unreasonably construed” qualification standards that management would be responsible for using.
The meeting adjourned for a short break at 12:07 p.m. and reconvened at 12:15 p.m.
TEMPORARY RULES
Chairman Hayman presided over the review of the log of temporary rules. All rules were approved unanimously except Commissioner Welborn voted against approving the Chapter 13 rules from the Secretary of State.
Commissioners Saunders and Gray did not participate in any discussion or vote concerning the Secretary of State rules.
COMMISSION PROCEDURES AND OTHER BUSINESS
Commissioner Gray requested that a discussion of the Commissions rules, policies and procedures be added to the January agenda.
The meeting adjourned at 1:00 p.m.
The next scheduled meeting of the Commission is Thursday, January 18, 2007 at 10:00 a.m.
Respectfully submitted,
Lisa Johnson
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