RULES REVIEW COMMISSION
May 15, 2008
MINUTES
The Rules Review Commission met on Thursday, May 15, 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, Jennie Hayman, 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
Nancy Pate
Jim Tschupp
Dominic Marinelli
Felicia Williams
Molly Masich
Dana Vojtko
Julie Edwards
Joan Troy
Kate Pipkin
Brad Gunn
Kent Nelson
Lisa Johnson
Tamika Williams
Hank Bowers
Peggy Oliver
Kelly Braam
Bill Scoggin
David Williams
Barry Gupton
John Rustin
Annaliese Dolph
Alexis Chappell
DENR/Division of Air Quality
Department of Environment and Natural Resources
American Institute of Architecture of NC
United Spinal Association
Office of Administrative Hearings
Office of Administrative Hearings
Office of Administrative Hearings
Office of Administrative Hearings
Wildlife Resources Commission
Wildlife Resources Commission
Wildlife Resources Commission
Wildlife Resources Commission
DHHS/Social Services Commission
DHHS/Social Services Commission
DHHS/Social Services Commission
Office of State Personnel
Board of Barber Examiners
Kennedy Covington
DENR/Division of Soil and Water Conservation
Department of Insurance/Building Code Council
Family Policy Council
Disability Rights NC
Disability Rights NC
APPROVAL OF MINUTES
The meeting was called to order at 10:02 a.m. with Ms. Hayman presiding. She 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). Chairman Hayman asked for any discussion, comments,
or corrections concerning the minutes of the April 17 meeting. Commissioner Jeff Gray suggested a
correction on page four of the minutes. He noted that in the objection to 21 NCAC 06O .0115 “fee”
should be “fine.” The minutes were approved contingent on the corrections being made.
FOLLOW-UP MATTERS
10A NCAC 27G .0212 – Mental Health Commission. No rewritten rule has been submitted and no
action was taken.
10A NCAC 67A .0107 – Social Services Commission. The Commission approved the rule
submitted by the agency. Mr. Hank Bowers from the agency spoke to the Commissioners explaining
the reasons why they used identification numbers.
12 NCAC 11 .0210 – Alarm Systems Licensing Board. Mr. DeLuca spoke with Charles McDarris,
the Attorney for the agency. Mr. McDarris was in agreement with commission counsel’s
recommendation to object to the rule and that the rule needed revision. The commission objected to
this rule based on lack of statutory authority and ambiguity. The second to the last sentence of this
rule, lines 11 – 12, allows the board to exempt certain companies from “compliance with this rule.”
However there are no standards set in the rule which the board will use in determining whether to
grant this exemption. If the standards are set outside rulemaking that is outside the agency’s authority
and a violation of G.S. 150B-19(6). If the intent of the rule is to grant the exemption to any company
providing only monitoring services, then that is not clear.
15A NCAC 06E .0107 – Soil and Water Conservation Commission. The Commission approved the
rewritten rule submitted by the agency.
15A NCAC 06I .0107 – Soil and Water Conservation Commission. The Commission approved the
rewritten rule submitted by the agency.
15A NCAC 10B .0203 – Wildlife Resources Commission. The agency determined that the version
of the rule approved by the RRC at its April meeting was not the rule adopted by the Wildlife
Resources Commission at its meeting in March. On the recommendation of Commission Counsel
DeLuca, the RRC rescinded its April approval of the rule and approved the rule originally adopted by
the Wildlife Resources Commission.
15A NCAC 10C .0107 – Wildlife Resources Commission. No rewritten rule has been submitted and
no action will be taken on this rule until a joint rule is filed by the Marine Fisheries Commission.
15A NCAC 10I .0104 – Wildlife Resources Commission. The Commission approved the rewritten
rule submitted by the agency.
21 NCAC 06A .0103 – State Board of Barber Examiners. The Commission approved the rewritten
rule submitted by the agency.
21 NCAC 06J .0109 – State Board of Barber Examiners. The Commission approved the rewritten
rule submitted by the agency.
21 NCAC 06K .0110 – State Board of Barber Examiners. The Commission approved the rewritten
rule submitted by the agency.
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21 NCAC 06L .0106, .0115, .0118, .0119 – State Board of Barber Examiners. The Commission
approved rewritten rules .0106 and .0115 submitted by the agency. The Commission also approved
new rules .0118 and .0119 adopted by the agency in response to the objection to rule .0115.
21 NCAC 06O .0112, .0115 – State Board of Barber Examiners. The Commission approved the
rewritten rules submitted by the agency.
21 NCAC 06P .0103 – State Board of Barber Examiners. The Commission approved the rewritten
rule submitted by the agency.
21 NCAC 06Q .0101 – State Board of Barber Examiners. The Commission approved the rewritten
rule submitted by the agency.
25 NCAC 01L .0102 – State Personnel Commission. The rule was returned to the agency at the
agency’s request.
LOG OF FILINGS
Chairman Hayman presided over the review of the log of permanent rules.
Commissioner Gray recused himself and did not participate in any vote concerning rules from the
Board of Barber Examiners because he is the attorney for the agency.
Commissioner Horton recused himself and did not participate in any vote concerning rules from the
State Personnel Commission because he is involved in litigation with the agency.
All rules were approved unanimously with the following exceptions:
02 NCAC 42 .0501: Gasoline and Oil Inspection Board – The Commission objected to this Rule
based on lack of statutory authority and ambiguity. In (a)(1) and (2), lines 7 and 10 specify that the
director “may require” any applicant desiring to brand and register a motor fuel “to provide certain
information” and in lines 15 and 16 there is a further description of what qualifies the required
information. It is unclear what constitutes information from “independent sources” and “of
recognized qualification.” It is also unclear what standards the director shall use to determine
whether or not the “sources” or “recognized qualification” are satisfactory. To the extent any of this
is set outside rulemaking, there is no authority to do that.
15A NCAC 02D .2602: Environmental Management Commission – The Commission objected to
this Rule based on lack of statutory authority and ambiguity. In (h), it is unclear what is meant by
“technically justified.” This does not appear to be the specific guidelines necessary for a waiver or
modification provision pursuant to G.S. 150B-19(6). In (i)(3), it is not clear what standards the
director will use in prescribing or approving methods where no method is specified in the rules.
15A NCAC 02D .2603: Environmental Management Commission – The Commission objected to
this Rule based on ambiguity. In (b), it is not clear what is meant by “technically justifies.”
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25 NCAC 01C .0414: State Personnel Commission – The RRC extended the period for review on
the rule. The RRC and the agency and its attorney need to meet to spend more time researching the
issue of whether the State Personnel Commission has sufficient authority to adopt this rule. On its
face the rule seems to violate State Personnel Act provisions and would allow a state employee who
would otherwise meet the definition of a “career state employee” to be exempted from the
protections or requirements of the SPA. The RRC has an additional 70 days to act on this rule, as set
out in G.S. 150B-21.13. It also may consider this rule at its next meeting, June 19.
Building Code Council – Chapter 11 Accessibility Code – The Commission has received requests
from more than 10 persons clearly requesting legislative review of Chapter 11, the accessibility
provisions, of the 2006 International Building code with 2009 NC Amendments and they are
therefore subject to a delayed effective date. Attorney Bill Scoggin spoke in support of this Rule.
IBC 421.3.9: NC Building Code Council – Small Residential Care Facilities – The Commission
objected to this Rule based on ambiguity. This is a rule regulating the use of heating devices in the
facility rather than its construction. There is no authority cited to regulate the use rather than the
installation of heating systems by the building code.
IPC 302.1: NC Building Code Council – Detrimental or Dangerous Materials – The Commission
objected to this Rule based on lack of statutory authority. This is a rule regulating the use of the
plumbing system in the facility rather than its construction. There is no authority cited to regulate the
use rather than the installation of plumbing systems by the building code. Barry Gupton from the
agency responded to questions asked by the Commission pertaining to this rule.
COMMISSION PROCEDURES AND OTHER BUSINESS
Ms. Hayman mentioned that there was only one written comment on proposed RRC rules. The
comment period expires May 16, so the Commission may take action to adopt the rules at the June
meeting.
Commissioner McLawhorn thanked the Commission and Commission Counsel for working so
diligently on the categories of items requested as technical changes.
The meeting adjourned at 11:08 a.m.
The next scheduled meeting of the Commission is Thursday, June 19 at 10:00 a.m.
Respectfully Submitted,
Angela J. Person
Administrative Assistant
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