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RULES REVIEW COMMISSION

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.”

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

22:23                                                               NORTH CAROLINA REGISTER                                           JUNE 2, 2008

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