NC Register Volume 16 Issue 15 - Office of Administrative Hearings

RULES REVIEW COMMISSION15A NCAC 7L: DENR – The Chairman displaced these rules to the end of the meeting.15A NCAC 18A .0436: DENR/Commission for Health Services – This rule was approved conditioned upon receiving a technicalchange by the end of the day. The technical change was subsequently received.15A NCAC 18A .0618: DENR/Commission for Health Services – The Commission objected to this rule due to ambiguity. In (k) therule refers to records that must be "kept and maintained." However there are no actual explicit documentation (or record making)requirements in this rule. The rule needs to either specify what activity must be documented or delete the record-keeping requirement.15A NCAC 18D .0303: DENR/Commission for Health Services – This rule was approved conditioned upon receiving a technicalchange by the end of the day. The technical change was subsequently received.21 NCAC 46 .1814: NC Board of Pharmacy – The Commission objected to this rule due to ambiguity. In (c) it is unclear whatsupervisory requirements are placed on the pharmacist. It is unclear whether the rule intends to require some pharmacist involvementto ensure that a "person legally qualified to administer drugs" is not able to remove more drugs than "the quantity… needed tosatisfy… patient needs." It is unclear if (c) intends to require that a pharmacist somehow limit the ability of a dispensing device tolimit the quantity of drugs removed to only "doses needed to satisfy" patient needs, providing actual supervision to insure that onlythat dosage is removed, or simply complying with (a) and (b). If it does intend to require that additional step or stage of supervision,then (c) goes beyond the requirements and limitations found in (a) and (b). However it is not clear that is the intent of (c). Part of thisambiguity arises from the difference in language in (a)(1) that addresses access by any "authorized personnel" and that in (c)addressing access by persons "legally qualified to administer drugs." The group in (c) is a smaller group of individuals then those in(a). One wonders if the board actually intends the distinctions in the supervision requirements in (a) over access by any "authorizedpersonnel" and that in (c) over those "legally qualified to administer drugs." In summary the rule is not clear over the actualsupervisory requirements placed on pharmacists and may be unclear about who the pharmacist is to supervise.21 NCAC 46 .2502: NC Board of Pharmacy – This rule was approved conditioned upon receiving a technical change by the end of theday. The technical change was not received. Ms. Stanford wants to take the rule to her board. It will thus be placed on the agenda fornext month.21 NCAC 57A .0201: NC Appraisal Board – The Commission objected to this rule due to lack of statutory authority and ambiguity.In (a)(5) the Board states that in place of a straightforward hours of experience standard for each of the licensing categories, it "mayutilize" a point system. Presumably this would allocate a given number of points for such and such a type of appraisal. However,there is no point system laid out. So the rule is either vague or it uses a point system that is made and adjusted outside of rulemaking.This is beyond the Board's authority. Also it is unclear, when read in conjunction with 21 NCAC 57B .0101, how many hours in eachcourse applicants are required to have completed under (a)(1) and (a)(2). If reference was made in (a)(1) and (2) to rule 57B .0101rather than to specific courses in this rule, that should solve the ambiguity. In addition to the above substantive problems, in (c), page2 at line 11 and 13, the agency needs to make a technical change to make reference to the "previous" registration, licensure, orcertification being canceled.21 NCAC 57A .0203: NC Appraisal Board – The Commission objected to this rule due to lack of statutory authority. There is noauthority for the Board to determine the renewal period outside of rulemaking as set out in (b).21 NCAC 57A .0407: NC Appraisal Board – The Commission objected to this rule due to ambiguity. At the end of (a)(7) the rulestates that disciplinary action "includes" an active suspension or revocation. It is not clear if the Board intends to limit the scope ofthis portion of the rule to prohibit those with only this level of disciplinary action from supervising trainees. If that is so, then it is notclearly stated in this rule. If they actually intend to use this as well as milder forms of discipline as discipline as disqualifiers, then thissentence is unnecessary.21 NCAC 57A .0409: NC Appraisal Board – The Commission objected to this rule due to ambiguity. It is unclear who must take theaction of reporting to the Board any of the violations cited in this rule. Presumably it is the registrant/licensee/certificate holder, butthat is not explicit. Could it be anyone with knowledge, such as a business partner or another licensee? If no one reported, it wouldseem that they could be subject to enforcement action also, as well as the licensee, at least the way this rule is presently written.21 NCAC 57B .0211: NC Appraisal Board – The Commission objected to this rule due to lack of statutory authority. There isauthority for the Board to require any course changes to receive Board approval. However the standards for that approval must be setout in the rules. It does not appear that the standards are set out in this or any other rule.21 NCAC 57B .0303: NC Appraisal Board – The Commission objected to this rule due to lack of statutory authority and ambiguity.There is no authority for the provision in the second sentence of (b) where the Board approves final course examinations unless thestandards for that approval are set out in the rules.21 NCAC 57B .0306: NC Appraisal Board – The Commission objected to this rule due to ambiguity. In (a)(2) it is unclear whatconstitutes "a reasonable amount" of income property appraising experience. This is a change from "at least one-third" of theinstructor's experience. This suggests that, at least in certain cases, the Board wanted to require more or allow less experience. Thismight be acceptable if the Board could specify the standards for deciding when the one-third (or any other proportion) is not desirable.21 NCAC 57B .0602: NC Appraisal Board – The Commission objected to this rule due to lack of statutory authority and ambiguity.The standards for course approval decisions referred to in (a) do not appear to be set out in the rule. Indeed the last sentence of (a)seems to indicate that the standards are not addressed in rulemaking. If they are addressed in rulemaking, that is unclear. If there areno standards specified, the Board is without authority to use standards made outside of formal rulemaking.Commissioners Devan and Twiddy recused themselves from consideration of or voting on the Real Estate Commission rules.16:15 NORTH CAROLINA REGISTER February 1, 20021745