North Carolina register, July 1998 - present

              This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 22 ● ISSUE 15 ● Pages 1360 - 1455
February 1, 2008
I. EXECUTIVE ORDERS
Executive Order No. 134 .................................................................................... 1360
II. IN ADDITION
Note from the Codifier.................................................................................... 1361 – 1380
Brownfields Property – Notice of Correction M.H.O.C., LLC....................... 1381
Brownfields Property – Edgemont Realty, LLC ............................................. 1382
DENR – Notice of Application for Approval of Wastewater System............. 1383 – 1384
Decision Letters on "Changes Affecting Voting" from US Attorney General 1385
Tax Review Board Decisions.......................................................................... 1386 – 1394
III. PROPOSED RULES
Environment and Natural Resources, Department of
Marine Fisheries Commission......................................................................... 1395 – 1406
Public Health, Commission for ....................................................................... 1406 – 1410
IV. APPROVED RULES........................................................................................ 1411 – 1435
Agriculture and Consumer Services, Department of
Commissioner of Agriculture
Environment and Natural Resources, Department of
Soil and Water Conservation Commission
Wildlife Resources Commission
Health and Human Services, Department of
Public Health, Commission for
Insurance, Department of
Home Inspector Licensure Board
Justice, Department of
Campus and Company Police Programs
Private Protective Services Board
Sheriffs' Education and Training Standards Commission
Occupational Licensing Boards and Commissions
Cosmetic Art Examiners, Board of
Landscape Architects, Board of
Landscape Contractors Registration Board
Medical Board
Secretary of State, Department of
Secretary of State, Office of
V. RULES REVIEW COMMISSION ................................................................. 1436 – 1450
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions ...................................................................................... 1451 – 1455
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult
with the agencies below. The bolded headings are typical issues which the given agency can address,
but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
Capehart-Crocker House (919) 733-2678
424 North Blount Street (919) 733-3462 FAX
Raleigh, North Carolina 27601-2817
contact: Molly Masich, Codifier of Rules molly.masich@ncmail.net (919) 733-3367
Dana Vojtko, Publications Coordinator dana.vojtko@ncmail.net (919) 733-2679
Julie Edwards, Editorial Assistant julie.edwards@ncmail.net (919) 733-2696
Felicia Williams, Editorial Assistant felicia.s.williams@ncmail.net (919) 733-3361
Rule Review and Legal Issues
Rules Review Commission
1307 Glenwood Ave., Suite 159 (919) 733-2721
Raleigh, North Carolina 27605 (919) 733-9415 FAX
contact: Joe DeLuca Jr., Commission Counsel joe.deluca@ncmail.net (919) 715-8655
Bobby Bryan, Commission Counsel bobby.bryan@ncmail.net (919) 733-0928
Angela Person, Administrative Assistant angela.person@ncmail.net (919) 733-2721
Fiscal Notes & Economic Analysis
Office of State Budget and Management
116 West Jones Street (919) 807-4700
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
contact: William Crumbley, Economic Analyst william.crumbley@ncmail.net (919) 807-4740
Governor’s Review
Reuben Young reuben.young@ncmail.net
Legal Counsel to the Governor (919) 733-5811
116 West Jones Street(919)
Raleigh, North Carolina 27603
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney karenc@ncleg.net
Jeff Hudson, Staff Attorney jeffreyh@ncleg.net
County and Municipality Government Questions or Notification
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn jim.blackburn@ncacc.org
Rebecca Troutman rebecca.troutman@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Anita Watkins awatkins@nclm.org
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2008 – December 2008
FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY
RULES
Volume &
issue
number
Issue date Last day
for filing
Earliest date for
public hearing
End of required
comment
period
Deadline to submit
to RRC
for review at
next meeting
Earliest Eff.
Date of
Permanent Rule
Delayed Eff. Date of
Permanent Rule
31st legislative day of the
session beginning:
270th day from publication
in the Register
22:13 01/02/08 12/06/07 01/17/08 03/03/08 03/20/08 05/01/08 05/13/08 09/28/08
22:14 01/15/08 12/19/07 01/30/08 03/17/08 03/20/08 05/01/08 05/13/08 10/11/08
22:15 02/01/08 01/10/08 02/16/08 04/01/08 04/21/08 06/01/08 01/2009 10/28/08
22:16 02/15/08 01/25/08 03/01/08 04/15/08 04/21/08 06/01/08 01/2009 11/11/08
22:17 03/03/08 02/11/08 03/18/08 05/02/08 05/20/08 07/01/08 01/2009 11/28/08
22:18 03/17/08 02/25/08 04/01/08 05/16/08 05/20/08 07/01/08 01/2009 12/12/08
22:19 04/01/08 03/10/08 04/16/08 06/02/08 06/20/08 08/01/08 01/2009 12/27/08
22:20 04/15/08 03/25/08 04/30/08 06/16/08 06/20/08 08/01/08 01/2009 01/10/09
22:21 05/01/08 04/10/08 05/16/08 06/30/08 07/21/08 09/01/08 01/2009 01/26/09
22:22 05/15/08 04/24/08 05/30/08 07/14/08 07/21/08 09/01/08 01/2009 02/09/09
22:23 06/02/08 05/09/08 06/17/08 08/01/08 08/20/08 10/01/08 01/2009 02/27/09
22:24 06/16/08 05/23/08 07/01/08 08/15/08 08/20/08 10/01/08 01/2009 03/13/09
23:01 07/01/08 06/10/08 07/16/08 09/02/08 09/22/08 11/01/08 01/2009 03/28/09
23:02 07/15/08 06/23/08 07/30/08 09/15/08 09/22/08 11/01/08 01/2009 04/11/09
23:03 08/01/08 07/11/08 08/16/08 09/30/08 10/20/08 12/01/08 01/2009 04/28/09
23:04 08/15/08 07/25/08 08/30/08 10/14/08 10/20/08 12/01/08 01/2009 05/12/09
23:05 09/02/08 08/11/08 09/17/08 11/03/08 11/20/08 01/01/09 01/2009 05/30/09
23:06 09/15/08 08/22/08 09/30/08 11/14/08 11/20/08 01/01/09 01/2009 06/12/09
23:07 10/01/08 09/10/08 10/16/08 12/01/08 12/22/08 02/01/09 05/2010 06/28/09
23:08 10/15/08 09/24/08 10/30/08 12/15/08 12/22/08 02/01/09 05/2010 07/12/09
23:09 11/03/08 10/13/08 11/18/08 01/02/09 01/20/09 03/01/09 05/2010 07/31/09
23:10 11/17/08 10/24/08 12/02/08 01/16/09 01/20/09 03/01/09 05/2010 08/14/09
23:11 12/01/08 11/05/08 12/16/08 01/30/09 02/20/09 04/01/09 05/2010 08/28/09
23:12 12/15/08 11/20/08 12/30/08 02/13/09 02/20/09 04/01/09 05/2010 09/11/09
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
EXECUTVE ORDERS
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1360
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1361
Note from the Codifier: This Section contains public notices that are required to be published in the Register or have been approved
by the Codifier of Rules for publication.
Note from the Codifier
North Carolina Register
Volume 22, Issue 14
January 15, 2008
The print copy of the NC Register, Volume 22, Issue 14 January 15, 2008, distributed by Lexis-Nexis included formatting errors to
proposed rules. The formatting errors for some rules did not include strike through and underlining of text. No words or text were
omitted.
The proposed rules, as published by the Office of Administrative Hearings in the official on the internet NC Register as required by
G.S. 150B-21.24, were correctly formatted.
http://www.ncoah.com/rules/register/Volume22Issue14January152008.pdf
For the convenience of the print copy recipients, the text of the proposed rules contained in the notices published in the January 15
issue are reprinted below.
TITLE 02 – DEPARTMENT OF AGRICULTURE AND
CONSUMER SERVICES
CHAPTER 42 - GASOLINE AND OIL INSPECTION
BOARD
SECTION .0100 - PURPOSE AND DEFINITIONS
02 NCAC 42 .0102 DEFINITIONS
Except as otherwise defined in Chapter 119, North Carolina
General Statutes, the definitions applicable in this Chapter are as
follows:
(1) "ASTM" means the American Society for
Testing and Materials. ASTM International.
(2) "Approved lead substitute" means an EPA
registered gasoline additive formulated to
reduce valve seat recession in engines
designed to operate on leaded gasoline.
(3) "Biodiesel" means a fuel comprised of mono-alkyl
esters of long chain fatty acids derived
from vegetable oils or animal fats, designated
B100, and meeting the requirements of ASTM
D 6751.
(4) "Biodiesel Blend" means a blend of biodiesel
meeting ASTM D 6751 with petroleum-based
diesel fuel meeting ASTM D 975 or fuel oil
meeting ASTM D 396 and designated BXX,
where XX represents the volume percentage of
biodiesel in the blend.
(3)(5) "Board" means the Gasoline and Oil
Inspection Board.
(4)(6) "Cetane number" means the relative ignition
quality of diesel fuels by the ASTM Cetane
Method D-613. D 613.
(5) "Control area" means an area of the state
designated by the Environmental Management
Commission pursuant to Title 2 of the Clean
Air Act Amendments of 1990 in which the
oxygen content of gasoline is regulated for the
purpose of reducing carbon monoxide levels.
(6) "Control area oxygenate blending facility"
means any facility at which the oxygen content
of gasoline is altered, excluding retail outlets
and wholesale purchaser-consumer facilities.
(7) "Control area terminal" means a terminal
which is capable of receiving gasoline in bulk,
e.g., by pipeline, marine vessel, tank truck, or
barge, or at which gasoline is altered either in
quantity or quality, excluding the addition of
deposit control additives.
(8) "Control period" means the period during
which the oxygen content of gasoline is
regulated in any control area.
(9)(7) "Denatured fuel ethanol" means ethanol
meeting the provisions of ASTM D-4806, D
4806,"Standard Specification for Denatured
Fuel Ethanol to be Blended with Gasolines for
Use as an Automotive Spark-Ignition Engine
Fuel."
(10)(8) "Director" means the director Director of the
Standards Division of the North Carolina
Department of Agriculture. Agriculture and
Consumer Services.
(11)(9) "Distributor" means any person who transports
or stores or causes the transportation or storage
of gasoline at any point between any gasoline
refinery or importer's facility and any retail
outlet or wholesale purchaser-consumer's
facility.
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1362
(10) "E85" means a petroleum product that is a
blend of denatured ethanol and gasoline or
natural gasoline of which the ethanol portion is
nominally 70 to 85 percent ethanol by volume
and meeting the requirements of ASTM D
5798.
(12)(11) "EPA" means the United States Environmental
Protection Agency.
(13)(12) "Leaded" means any gasoline or
gasoline-oxygenate blend which contains more
than 0.05 gram lead per U.S. gallon (0.013
gram lead per liter) or contains an approved
lead substitute which provides a lead
equivalency of at least 0.10 gram lead per U.S.
gallon (0.026 gram per liter).
(14)(13) "Liquefied petroleum gas" means any material
which is composed predominantly of any of
the following hydrocarbons or mixtures of
same: propane, propylene, butanes (normal or
iso-butane), and butylenes.
(15)(14) "Motor Octane Number" means the number
describing the relative anti-knock
characteristic of a motor fuel determined by
ASTM Motor Method (D-2700). (D 2700).
(16) "Non-oxygenated gasoline" means any
gasoline which does not meet the definition of
oxygenated gasoline.
(15) "NCWM" means the National Conference on
Weights and Measures.
(16) "NIST" means the National Institute of
Standards and Technology.
(17) "Octane Index" means the number obtained by
adding the research octane number and the
motor octane number and dividing the sum by
two.
(18) "Oxygen content of gasoline" means the
percentage of oxygen by weight contained in a
gasoline, based upon its percentage oxygenate
by volume, excluding denaturants and other
non-oxygen-containing components with all
measurements adjusted to 60 degrees
Fahrenheit.
(19)(18) "Oxygenate" means any substance which,
when added to gasoline, increases the amount
of oxygen in that gasoline, and which has been
approved by EPA for use in gasoline.
(20) "Oxygenated gasoline" means any gasoline
containing a substance which adds oxygen to
that gasoline.
(19) "Premium Diesel" means a refined middle
distillate petroleum product that meets the
specifications of ASTM D 975 and NIST
Handbook 130, Uniform Engine Fuels,
Petroleum Products and Automotive
Lubricants Regulation, section 2.2.1.
(21)(20) "Qualitative word or term" means any word or
term used in a brand name which by definition
or customary usage indicates a level of quality,
classification, grade, or designation.
(22)(21) "Regular" when used as part of a brand name
or as a grade designation for gasoline or
gasoline-oxygenate blend shall be construed to
mean a leaded an unleaded regular grade
commercial automotive gasoline or
gasoline-oxygenate blend unless the brand
name or grade designation also contains the
word "Unleaded" or a word or term of
equivalent meaning. blend.
(22) "Renewable Diesel Fuel" means a fuel which
is not a mono-alkyl ester; meets the
registration requirements for fuels and fuel
additives established by the Environmental
Protection Agency under section 7545 of the
Clean Air Act; is intended for use in engines
that are designed to run on conventional,
petroleum derived diesel fuel; is derived from
nonpetroleum renewable resources including,
but not limited to, vegetable oil, animal
wastes, including poultry fats and poultry
wastes, and other waste materials, or
municipal solid waste and sludges and oils
derived from wastewater and the treatment of
wastewater; and meets the latest version of
ASTM specification D 975.
(23) "Research Octane Number" means the number
describing the relative anti-knock
characteristic of a motor fuel determined by
ASTM Research Method (D-2699). (D 2699).
(24) "Reseller" means any person who purchases
gasoline and resells or transfers it to a retailer
or a wholesale purchaser-consumer.
(25)(24) "Retail outlet" means any establishment at
which gasoline is sold or offered for sale
"Retail" means the sale or offering for sale of
gasoline to the ultimate consumer for use in a
motor vehicle.
(26) "Retailer" means any person who owns, leases,
operates, controls or supervises a retail outlet.
(27)(25) "Substantially Similar" rule means the U.S.
United States Environmental Protection
Agency's "Substantially Similar" rule, Section
211 (f) (1) of the Clean Air Act [42 U.S.C.
7545 (f) (1)].
(28)(26) "Terminal" means a facility at which gasoline
is dispensed into trucks for transportation to
retail outlets or wholesale purchaser-consumer
facilities.
(29) "Total alcohol" means the aggregate total in
volume percent of all alcohol contained in any
fuel defined in this Chapter.
(30) "Total oxygenate" means the aggregate total in
volume percent of all oxygenates contained in
any fuel defined in this Chapter.
(31)(27) "Unleaded" means any gasoline or
gasoline-oxygenate blend to which no lead or
phosphorus compounds have been
intentionally added and which contains not
more than 0.05 gram lead per U.S. gallon
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1363
(0.013 gram lead per liter) and not more than
0.005 gram phosphorus per U.S. gallon
(0.0013 gram phosphorus per liter).
(32) "Wholesale purchaser-consumer" means any
organization that is an ultimate consumer of
gasoline and which purchases or obtains
gasoline from a supplier for use in motor
vehicles and receives delivery of that product
into a storage tank of at least 550-gallon
capacity substantially under the control of that
organization.
ASTM documents referred to in this Rule are hereby adopted by
reference, including subsequent amendments and editions, and
are available for inspection in the Office of the Director of the
Standards Division. Copies of these documents may be obtained
from the ASTM, 1916 Race Street, Philadelphia, PA 19103, at a
cost determined by ASTM.
Authority G.S. 119-26; 119-26.1.
SECTION .0200 - QUALITY OF LIQUID FUEL
PRODUCTS
02 NCAC 42 .0201 STANDARD SPECIFICATIONS
(a) The Board hereby adopts by reference, including subsequent
amendments and editions, ASTM D-4814, D 4814,"Standard
Specification for Automotive Spark-Ignition Engine Fuel" as
standard specification for gasoline with the following
modifications:
(1) Applications for temporary exceptions to
vapor pressure and vapor/liquid ratio
specifications as provided in this
Subparagraph may be made to the
director.Director. Said applications shall
contain evidence satisfactory to the director
that outlets marketing gasoline in North
Carolina cannot feasibly be supplied from bulk
terminals furnishing specified volatility level
gasoline or that customary sources of supply
have been temporarily interrupted by product
shortage and alternate sources furnishing
specified volatility level gasoline are not
available. Such temporary exceptions granted
shall apply only until the next meeting of the
board Board at which time the board Board
shall establish the duration of the exception;
(2) The minimum lead content for gasoline
registered or labeled as "leaded" or "regular"
shall be as defined in Rule .0102 of this
Chapter; 02 NCAC 42 .0102;
(3) Vapor pressure and vapor/liquid ratio seasonal
specifications as listed in this Subparagraph
may be extended for a maximum period of 15
days to allow for the disbursement of old
stocks. However, new stocks of a higher
volatility classification shall not be offered for
retail sale prior to the effective date of the
higher volatility classification.
(b) The Board hereby adopts by reference, including subsequent
amendments and editions, ASTM D-4814, D 4814,"Standard
Specification for Automotive Spark-Ignition Engine Fuel" as
standard specification for alcohol blends with the following
modifications:
(1) A vapor pressure tolerance not exceeding one
pound per square inch; inch for ethanol blends
of up to 10 percent;
(2) Vapor pressure and vapor/liquid ratio seasonal
specifications as listed in this Subparagraph
may be extended for a maximum period of 15
days to allow for the disbursement of old
stocks. However, new stocks of a higher
volatility classification shall not be offered for
retail sale prior to the effective date of the
higher volatility classification;
(3) Applications for temporary exceptions to
vapor pressure and vapor/liquid ratio
specifications as provided in this
Subparagraph may be made to the
director.Director. Said applications shall
contain evidence satisfactory to the director
Director that outlets marketing gasoline in
North Carolina cannot feasibly be supplied
from bulk terminals furnishing specified
volatility level gasoline or that customary
sources of supply have been temporarily
interrupted by product shortage and alternate
sources furnishing specified volatility level
gasoline are not available. Such temporary
exceptions granted shall apply only until the
next meeting of the board Board at which time
the board Board shall establish the duration of
the exception;
(4) The minimum temperature at 50 percent
evaporated shall be 158 degrees F. (70 degrees
C.) 150 degrees F (66 degrees C) as
determined by ASTM Test Method D-86; D
86 for ethanol blends of up to 10 percent;
(5) The minimum lead content for
gasoline/oxygenate gasoline and alcohol
blends registered or labeled as "leaded" or
"regular" shall be as defined in Rule .0102 of
this Chapter; 02 NCAC 42 .0102;
(6) Octane rating shall not be less than the octane
index certified on the brand name registration
as required by 2 02 NCAC 42 .0500;
(7) All blends, both leaded and unleaded, shall be
blended according to the EPA "Substantially
Similar" rule or an EPA waiver for unleaded
fuel;
(8) Water tolerance shall be such that no phase
separation occurs when subjected to a
temperature equal to the temperatures
specified in Table 4, ASTM D-4814. the table
for "Maximum Temperature for Phase
Separation, oC," ASTM D 4814;
(9) The vapor/liquid ratio specification shall be
waived for ethanol blends of up to 10 percent.
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1364
(c) The Board hereby adopts by reference, including subsequent
amendments and editions, ASTM D-975, D 975, "Standard
Specification for Diesel Fuel Oils" as standard specification for
diesel motor fuels and renewable diesel fuels with the following
modification: For diesel motor fuel grade 2-D, the minimum
flash point as determined by ASTM Test Method D-56 D 56
shall be 115 degrees F. (46 degrees C.). F (46 degrees C).
(d) The Board hereby adopts by reference, including subsequent
amendments and editions, ASTM D-396, D 396, "Standard
Specification for Fuel Oils" as standard specification for fuel
oils. oils and blends of biodiesel and fuel oil.
(e) The Board hereby adopts by reference, including subsequent
amendments and editions, ASTM D-3699, D 3699, "Standard
Specification for Kerosene" as standard specification for
kerosenes with the following modification: For grade 2-K, the
presence or absence of coloring matter shall in no way be
determinative of whether a substance meets the requirements of
this grade of kerosene.
(f) The Board hereby adopts by reference, including subsequent
amendments and editions, ASTM D 6751, "Standard
Specification for Biodiesel (B100) Blend Stock for Distillate
Fuels" as standard specification for biodiesel (B100) and for B99
(a blend of 99 percent biodiesel and one percent petroleum
diesel).
(g) The Board hereby adopts by reference, including subsequent
amendments and editions, ASTM D 5798, "Standard
Specification for Fuel Ethanol (Ed75-Ed85) for Automotive
Spark-Ignition Engines" as standard specification for E85 fuel
ethanol.
(h) The Board hereby adopts by reference, including subsequent
amendments and editions, NIST Handbook 130, "Uniform
Engine Fuels, Petroleum Products and Automotive Lubricants
Regulation," section 2.2.1 "Premium Diesel Fuel" as the
standard specification of premium diesel fuels in addition to
ASTM D 975. Copies of this document may be obtained at no
cost from the NIST Web site -
http://ts.nist.gov/WeightsandMeasures/.
(f)(i) In addition to meeting all specification requirements as set
forth in this Rule, each fuel must be suitable for the intended
use. Motor fuels shall not contain concentrations of methyl
tertiary butyl ether (MTBE) in violation of G.S. 119-26.3.
(g)(j) ASTM documents adopted by reference herein are
available for inspection in the Office office of the Director of the
Standards Division and may be obtained from ASTM, 1916
Race Street, Philadelphia, PA 19103, at a cost determined by
ASTM. ASTM International, 100 Barr Harbor Drive, PO Box
C700, West Conshohocken, PA 19428-2959 or their Web site -
www.astm.org, at the following cost for each document: D 396,
thirty-five dollars ($35.00); D 975, forty-one dollars ($41.00); D
3699, thirty dollars ($30.00); D 4814, forty-seven dollars
($47.00); D 5798, thirty-five dollars ($35.00); and D 6571,
thirty-five dollars ($35.00).
Authority G.S. 119-26; 119-26.1; 119-26.3; 150B-14.
SECTION .0300 - SALE OF GASOLINE
02 NCAC 42 .0301 GASOLINE SOLD UNDER
LABEL NAME OR BRAND
(a) All gasoline sold at wholesale or retail in North Carolina
shall be sold under the label, name, or brand name under which
the gasoline was first purchased for resale in North Carolina,
except as provided in Paragraph (b) of this Rule.
(b) The owner of any gasoline purchased for sale or resale in
North Carolina may sell such gasoline under a label, name, or
brand other than that under which the gasoline was purchased
provided that a notice of intention to change the label, name, or
brand Motor Fuel Brand Name Registration form is filed with
the director. Director.
Authority G.S. 119-26.
SECTION .0400 - DISPENSING DEVICES AND PUMPS
02 NCAC 42 .0401 LABELING OF DISPENSING
DEVICES
(a) For the purpose of product identity, each dispensing device
used in the retailing of any motor fuel shall be plainly and
conspicuously labeled with the following:
(1) for gasoline, For gasoline and gasoline-oxygenate
blends of up to 10 percent ethanol,
the registered brand name;
(2) for For diesel fuel, the registered brand name
plus a descriptive or generic label if the
registered brand name does not adequately
identify the type and/or grade of product;
(3) For biodiesel and biodiesel blends, the
registered brand name plus a descriptive or
generic label if the registered brand name does
not adequately identify the type or grade of
product;
(3)(4) for For gasoline-oxygenate blends containing
at least one percent by volume of methanol,
the registered brand name plus an additional
label which states that the blend "contains
methanol." The label shall be composed of
letters at least one inch in height, minimum
one-eighth inch stroke, which contrast
distinctly with the label background and shall
be affixed to the dispenser front panel in a
position clear and conspicuous from the
driver's position. Exceptions to this Rule are:
(A) for For fuels not covered by an EPA
waiver, the additional label shall
identify the percent by volume of
ethanol or methanol in the blend; and
(B) for For fuels meeting the EPA's
"Substantially Similar" rule and
which do not contain methanol, no
additional label is required. required;
(5) For E85 fuel ethanol, the registered brand
name.
(b) Each dispensing device used in the retailing of products
other than motor fuel shall be plainly and conspicuously labeled
as follows:
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1365
(1) Kerosene shall be labeled as either 1-K
Kerosene or 2-K Kerosene. In addition, each
dispenser shall contain one of the following
legends as appropriate:
(A) On 1-K kerosene dispensers, the
legend "Suitable For Use In Unvented
Heaters"; or
(B) On 2-K kerosene dispensers, the
legend "May Not Be Suitable For Use
In Unvented Heaters";
(2) Other products shall be labeled with either the
applicable generic name or a brand name
which identifies the type of product.
(c) Whenever a motor fuel or other product provided for in this
Section is offered for sale, sold, or delivered at retail in barrels,
casks, cans, or other containers, each container shall be labeled
in accordance with this Section and in accordance with 15
U.S.C. 1451 et. seq. seq., the Fair Packaging and Labeling Act.
(d) If a dispenser is so designed that two one or more
hose/nozzles which are hoses connected to a common housing
dispense more than one type or grade of product, means shall be
provided to clearly indicate the identity of the product being
dispensed from each hose/nozzle. hose.
Authority G.S. 119-27.
SECTION .0500 - REGISTRATION AND BRANDING
02 NCAC 42 .0501 BRANDING AND
REGISTRATION OF MOTOR FUELS
(a) All motor fuels offered for sale, sold, or delivered to a
purchaser in this State shall be branded, and each and every
brand name shall be registered, together with quality
specifications, registered with the director Director on forms
provided by the director. In his discretion, the director: Director.
The Director:
(1) may require written certification or other
satisfactory evidence proof of compliance for
any motor fuel which is subject to federal
Federal waiver requirements or other
applicable laws or regulations; and
(2) may require any person desiring to register a
motor fuel for which there exists no generally
recognized classification, basic quality
standards, or performance record, to submit, in
writing, the following:
(A) certified test data and performance
evaluations; and
(B) detailed chemical and physical
characteristics.
This information shall be from independent sources of
recognized qualification or otherwise satisfactory to the director,
Director, and shall be submitted before an application for
registration will be considered.
(b) Any brand name registration under this Section shall in no
way supersede federal Trademark Law Federal or state
trademark law or state Brandname Law. brand name law.
Authority G.S. 119-26.
SECTION .0800 - OXYGENATED GASOLINE
02 NCAC 42 .0801 PURPOSE AND APPLICABILITY
(a) This Section sets forth oxygenated gasoline standards for
areas designated by the Environmental Management
Commission as carbon monoxide nonattainment areas pursuant
to Title II of the 1990 Amendments to the Federal Clean Air Act
and regulations promulgated by the United States Environmental
Protection Agency. The requirements of this Section apply to all
gasoline offered for sale, sold, exchanged, or dispensed as a fuel
for use in a spark ignition engine in a control area during a
control period, except for gasoline intended for use in aircraft.
(b) The requirements of this Section apply to the following
control areas:
(1) The Raleigh/Durham Metropolitan Statistical
Area consisting of Durham, Franklin, Orange,
and Wake Counties;
(2) The Greensboro/Winston-Salem/High Point
Metropolitan Statistical Area consisting of
Davie, Davidson, Forsyth, Guilford, Randolph,
Stokes, and Yadkin Counties;
(3) Any other areas designated by the
Environmental Management Commission, in
accordance with the Administrative Procedure
Act.
The requirements of this Section do not apply to areas which
have been removed from designation as carbon monoxide
nonattainment areas by the Environmental Management
Commission and the Environmental Protection Agency.
(c) The control period is a four month period beginning
November 1 and running through the last day of February of the
following year.
(d) Gasoline in storage within the counties identified in
Paragraph (b) of this Rule prior to November 1 at a retail outlet
or wholesale purchaser-consumer dispensing facility having total
gasoline tank capacity of less than 550 gallons or a total weekly
dispensing rate of less than 550 gallons is exempt from the
requirements of this Section. However, any gasoline supplied to
the retail outlet or wholesale purchaser-consumer facility during
the control period shall comply with the requirements of this
Section.
(e) If the Administrator of the U.S. Environmental Protection
Agency delays the effective date of the oxygenated gasoline
requirements then the provisions of this Section do not apply
during such period.
Authority G.S. 119-26; 119-26.1; 143-215.107.
02 NCAC 42 .0802 OXYGEN CONTENT
In addition to the requirements in Section .0200 of this Chapter,
the gasoline identified in Rule .0801 of this Section shall have an
oxygen content of not less than 2.7 percent by weight.
Authority G.S. 119-26; 119-26.1; 143-215.107.
02 NCAC 42 .0803 RECORD KEEPING AND
TRANSFER REQUIREMENTS
(a) All parties in the gasoline distribution network, as described
in this Rule, shall maintain records containing compliance
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1366
information enumerated or described in this Rule. These records
shall be retained by the regulated parties for at least one year.
(1) Control area terminal operators. Persons who
own, lease, operate or control gasoline
terminals which serve control areas shall
maintain records containing the following
information:
(A) The owner(s) of each batch of
gasoline;
(B) For all batches or truckloads of
gasoline leaving the terminal, the
volume of gasoline, the type of
oxygenate(s), and minimum oxygen
content of the batch or truckload;
(C) Destination of each tank truck sale or
batch of gasoline, that is, whether it
was within a control area or not;
(D) The name and address of the party to
whom the gasoline was sold or
transferred and the date of the sale or
transfer.
(2) Control area oxygenate blenders. Persons who
own, lease, operate or control facilities at
which the oxygen content of gasoline is altered
and which serve control areas shall maintain
records containing the following information:
(A) The owner(s) of each batch of
gasoline;
(B) For all batches or truckloads of
oxygenated gasoline leaving the
terminal, the volume of oxygenated
gasoline, the type of oxygenate(s),
and minimum oxygen content of the
batch or truckload;
(C) Destination of each tank truck sale or
batch of gasoline, that is, whether it
was within a control area or not;
(D) The name and address of the party to
whom the oxygenated gasoline or
oxygenate(s) was sold or transferred
and the date of the sale or transfer.
(3) Retailers and wholesale purchaser-consumers
within a control area must maintain the
following records:
(A) The names and addresses of the
parties from whom all shipments of
gasoline were purchased or received,
and the dates when they were
received;
(B) Data on every shipment of gasoline
bought, sold or transported,
including:
(i) Volume of each shipment;
(ii) Type of oxygenate(s) and
oxygen content;
(iii) Destination of each sale or
shipment of gasoline, that is,
whether it is intended for use
within a control area.
(b) Each time that physical custody or title of gasoline destined
for a control area changes hands other than when gasoline is sold
or dispensed for use in motor vehicles at a retail outlet or
wholesale purchaser-consumer facility, the transferor shall
provide to the transferee, in addition to, or as part of, normal
bills of lading, invoices, etc., document(s) which clearly and
conspicuously contains the following information on that
shipment:
(1) The date of the transfer;
(2) The name and address of the transferor;
(3) The name and address of the transferee;
(4) The volume of gasoline which is being
transferred;
(5) The proper identification of the gasoline as
non-oxygenated or oxygenated;
(6) Type of oxygenate(s) and minimum oxygen
content.
Such document(s) shall accompany every shipment of gasoline
to a control area after it has been dispensed by a terminal or
control area oxygenate blending facility, or the information shall
be included in the normal paperwork which is generated
subsequent to the shipment of gasoline from a terminal or
control area oxygenate blending facility.
Authority G.S. 119-26; 119-26.1; 143-215.107.
02 NCAC 42 .0804 GASOLINE DISPENSER
LABELING
(a) Each gasoline dispenser stand from which oxygenated
gasoline is dispensed at a retail outlet in the control area shall be
affixed during the control period with a legible and conspicuous
label which contains the following statement:
"The gasoline dispensed from this pump is oxygenated and will
reduce carbon monoxide emissions from motor vehicles."
(b) The posting of the statement in Paragraph (a) of this Rule
shall be in block letters of no less than 20-point bold type; in a
color contrasting with the intended background. The label shall
be placed in the vertical surface of the dispenser front panel in a
position clear and conspicuous from the driver's position.
(c) The retailer shall be responsible for compliance with the
labeling requirements of this Section.
(d) The label may remain on the dispenser even when
oxygenated gasoline is not being sold provided the oxygenated
control period is identified.
Authority G.S. 119-26.1; 119-27; 143-215.107.
02 NCAC 42 .0805 SAMPLING, TESTING AND
OXYGEN CONTENT CALCULATIONS
(a) Sampling methodologies used to determine compliance with
this Section shall be those set forth in Appendix D of Title 40,
Part 80 of the Code of Federal Regulations, which is adopted by
reference, including subsequent amendments and editions.
Copies of the Code of Federal Regulations may be obtained
from the Government Printing Office, Washington, D.C. at a
cost determined by that office.
(b) Determination of the oxygenate(s) and their volume in
gasoline shall be in accordance with test method ASTM D 4815
as set forth in ASTM specification D 4814.
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1367
(c) Oxygen content shall be calculated by multiplying the mass
concentration of each oxygenate in gasoline by the oxygen
molecular weight contribution of the oxygenate. All volume
measurements shall be adjusted to 60 degrees Fahrenheit. For
the purpose of calculating oxygen content, the following oxygen
molecular weight contributions shall be used.
Oxygen molecular Specific gravity
Oxygenate weight contribution at 60 degrees F
Methyl Alcohol 0.4993 0.7963
Ethyl Alcohol 0.3473 0.7939
n-Propyl Alcohol 0.2662 0.8080
Isopropyl Alcohol 0.2662 0.7899
n-Butyl Alcohol 0.2158 0.8137
Isobutyl Alcohol 0.2158 0.8058
sec-Butyl Alcohol 0.2158 0.8114
tertiary-Butyl Alcohol 0.2158 0.7922A
Methyl tertiary-Butyl Ether 0.1815 0.7460
Ethyl tertiary-Butyl Ether 0.1566 0.7452
tertiary-Amyl Methyl Ether 0.1566 0.7752
tertiary-Hexyl Methyl Ether 0.1377 0.7860
AExtrapolated, below freezing temperature.
Authority G.S. 119-26; 119-26.1; 143-215.107.
02 NCAC 42 .0806 COMPLIANCE AND
ENFORCEMENT
(a) During the first 10 days of the control period, gasoline at
retail and wholesale purchaser-consumer facilities will be
deemed in compliance provided documentation on all deliveries
during the five days preceding the control period indicates that
all gasoline delivered to said facilities complied with Rule .0802
of this Section.
(b) Gasoline found not to be in compliance with the
requirements of this Section will be ordered off sale or removed
from use.
(1) The gasoline may be returned to sale or use
once the owner has blended the gasoline with
additional oxygenates sufficient to comply
with the oxygen content standard of this
Section, provided this procedure is supervised
by the director and is in accordance with G.S.
119-27.
(2) The gasoline may be transferred for use
outside a control area, provided the record
keeping requirements of Rule .0803 of this
Section are followed and the transfer
procedure is supervised by the director in
accordance with G.S. 119-27.
Authority G.S. 119-26; 119-26.1; 119-27; 143-215.107.
TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
CHAPTER 09 - CHILD CARE RULES
SECTION .0700 - HEALTH AND OTHER STANDARDS
FOR CENTER STAFF
10A NCAC 09 .0705 SPECIAL TRAINING
REQUIREMENTS
(a) At least one staff member shall be knowledgeable of and
able to recognize common symptoms of illness.
(b) Staff who have completed within the last three years a
course in basic first aid aid, shall be present at all times children
are present. First aid training shall be renewed on or before
expiration of the certification or every three years, whichever is
less. The number of staff required to complete the course shall
be based on the number of children present as shown in the
following chart:
Verification of each required staff person's completion of this
course shall be maintained in the person's individual personnel
file in the center. The basic first aid course shall address
principles for responding to emergencies, rescue breathing, and
techniques for handling common childhood injuries, accidents
and illnesses such as: choking, burns, fractures, bites and stings,
wounds, scrapes, bruises, cuts and lacerations, poisoning,
seizures, bleeding, allergic reactions, eye and nose injuries and
sudden changes in body temperature.
(c) A first aid information sheet shall be posted in a prominent
place for quick referral. An acceptable form may be requested
free of charge from the North Carolina Child Care Health and
Safety Resource Center.
(d) Each child care center shall have at least one person on the
premises at all times, and at least one person who accompanies
the children whenever they are off the premises, who has current
certification in successfully completed within the last 12 months
a cardiopulmonary resuscitation (CPR) course provided by either
Number of children present Number of staff trained in
first aid required
1-29 1 staff
30-79 2 staff
80 and above 3 staff
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1368
the American Heart Association or the American Red Cross or
other organizations approved by the Division. Other
organizations shall be approved if the Division determines that
the courses offered are substantially equivalent to those offered
by the American Red Cross. Successfully completed is defined
as demonstrating competency, as evaluated by the instructor, in
performing CPR. The course shall provide training in CPR
appropriate for the ages of children in care. Documentation of
successful completion of the course from the American Heart
Association, the American Red Cross, or other organization
approved by the Division shall be on file in the center.
(e) Staff shall complete at least four clock hours of training in
safety. This training shall address playground safety hazards,
playground supervision, maintenance and general upkeep of the
outdoor area, and age and developmentally appropriate
playground equipment. Staff counted to comply with this Rule
shall have six months from the date of employment, or from the
date a vacancy occurs, to complete the required safety training.
The number of staff required to complete this training shall be as
follows:
(1) In centers with a licensed capacity of less than
30 children, at least one staff person shall
complete this training.
(2) In centers with a licensed capacity of 30 or
more children, at least two staff, including the
administrator, shall complete this training.
(f) In centers that are licensed to care for infants ages 12 months
and younger:
(1) the center director and any child care provider
scheduled to work in the infant room,
including volunteers counted in staff/child
ratios, shall complete ITS-SIDS training;
(2) ITS-SIDS training shall be completed within
four months of the individual assuming
responsibilities in the infant room or as an
administrator, or within four months of these
rules becoming effective, whichever is later,
and shall be completed again every three years
from the completion of previous ITS-SIDS
training;
(3) Completion of ITS-SIDS training may be
included once every three years in the number
of hours needed to meet annual in-service
training requirements in Section .0700 of this
Chapter;
(4) Individuals who have completed initial ITS-SIDS
training prior to this Rule becoming
effective shall not be required to repeat the
training until three years from the completion
of initial ITS-SIDS training; and
(5) Prior to an individual assuming responsibility
for the care of an infant, the center's safe sleep
policy for infants shall be reviewed with the
individual as required by Rule .0707(a) of this
Section.
Authority G.S. 110-85; 110-91(1),(8); 143B-168.3.
SECTION .1700 –FAMILY CHILD CARE HOME
REQUIREMENTS
10A NCAC 09 .1705 HEALTH AND TRAINING
REQUIREMENTS FOR FAMILY CHILD CARE HOME
OPERATORS
(a) Prior to receiving a license, each family child care home
operator shall:
(1) Complete and keep on file a health
questionnaire which attests to the operator's
physical and emotional ability to care for
children. The Division may require a written
statement or medical examination report
signed by a licensed physician or other
authorized health professional if there is
reason to believe that the operator's health may
adversely affect the care of the children.
(2) Obtain written proof that he or she is free of
active tuberculosis. The results indicating the
individual is free of active tuberculosis shall
be obtained within 12 months prior to applying
for a license.
(3) Complete within 12 months prior to applying
for a license a basic first aid course that at a
minimum, shall address principles for
responding to emergencies, techniques for
rescue breathing, and techniques for handling
common childhood injuries, accidents and
illnesses such as: choking, burns, fractures,
bites and stings, wounds, scrapes, bruises, cuts
and lacerations, poisoning, seizures, bleeding,
allergic reactions, eye and nose injuries and
sudden changes in body temperature.
(4) Successfully complete within 12 months prior
to applying for a license a course by the
American Heart Association or the American
Red Cross or other organizations approved by
the Division, in cardiopulmonary resuscitation
(CPR) appropriate for the ages of children in
care. Other organizations will be approved if
the Division determines that the courses
offered are substantially equivalent to those
offered by the American Red Cross.
Successfully completed is defined as
demonstrating competency, as evaluated by
the instructor, in performing CPR.
Documentation of successful completion of
the course from the American Heart
Association, the American Red Cross, or other
organization approved by the Division shall be
on file in the home.
(b) After receiving a license, an operator shall:
(1) Update the health questionnaire referenced in
Paragraph (a) of this Rule annually. The
Division may require the operator to obtain
written proof that he or she is free of active
tuberculosis.
(2) Complete a first aid course as referenced in
Paragraph (a) of this Rule every three years.
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1369
First aid training shall be renewed on or before
expiration of the certification or every three
years, whichever is less.
(3) Successfully complete a Have current
certification in CPR course annually as
referenced in Paragraph (a) of this Rule.
(4) If licensed to care for infants ages 12 months
and younger, complete ITS-SIDS training
within four months of receiving the license, or
within four months of this rule becoming
effective, whichever is later, and complete it
again every three years from the completion of
previous ITS-SIDS training. Completion of
ITS-SIDS training may be included once every
three years in the number of hours needed to
meet the annual in-service training
requirement in Paragraph (b) (5) of this Rule.
Individuals who have completed initial ITS-SIDS
training prior to this rule becoming
effective shall not be required to repeat the
training until three years from the completion
of initial ITS-SIDS training.
(5) Complete 12 clock hours of annual in-service
training in the topic areas required by G.S.
110-91(11), except that persons with at least
10 years work experience as a caregiver in a
regulated child care arrangement shall
complete eight clock hours of annual in-service
training.
(A) Only training which has been
approved by the Division as
referenced in Rule .0708 of this
Subchapter Chapter shall count
toward the required hours of annual
in-service training.
(B) The operator shall maintain a record
of annual in-service training activities
in which he or she has participated.
The record shall include the subject
matter, the topic area in G.S. 110-
91(11) covered, the name of the
training provider or organization, the
date training was provided and the
number of hours of training
completed. First aid training may be
counted no more than once every
three years.
Authority G.S. 110-85; 110-88; 110-91; 143B-168.3.
10A NCAC 09 .1721 REQUIREMENTS FOR
RECORDS
(a) The operator shall maintain the following health records for
each child who attends on a regular basis, including his or her
own preschool child(ren):
(1) a copy of the child's health assessment as
required by G.S. 110-91(1);
(2) a copy of the child's immunization record;
(3) a health and emergency information form
provided by the Division that is completed and
signed by a child's parent. The completed
form shall be on file the first day the child
attends. An operator may use another form
other than the one provided by the Division, as
long as the form includes the following
information:
(A) the child's name, address, and date of
birth;
(B) the names of individuals to whom the
child may be released;
(C) the general status of the child's health;
(D) any allergies or restrictions on the
child's participation in activities with
specific instructions from the child's
parent or physician;
(E) the names and phone numbers of
persons to be contacted in an
emergency situation;
(F) the name and phone number of the
child's physician and preferred
hospital; and
(G) authorization for the operator to seek
emergency medical care in the
parent's absence;
(4) when medication is administered,
authorization for the operator to administer the
specific medication according to the parent's or
physician's instructions.
(b) The operator shall complete and maintain other records
which shall include:
(1) documentation for the operator's procedures in
emergency situations, on a form which shall be
provided by the Division;
(2) documentation that monthly fire drills are
practiced. The documentation shall include
the date each drill is held, the time of day, the
length of time taken to evacuate the home, and
the operator's signature;
(3) incident reports that are completed each time a
child receives medical treatment by a
physician, nurse, physician's assistant, nurse
practitioner, community clinic, or local health
department, as a result of an incident occurring
while the child is in the family child care
home. Each incident shall be reported on a
form provided by the Division, signed by the
operator and the parent, and maintained in the
child's file. A copy shall be mailed to a
representative of the Division within seven
calendar days after the incident occurs;
(4) an incident log which is filled out any time an
incident report is completed. This log shall be
cumulative and maintained in a separate file
and shall be available for review by a
representative of the Division. This log shall
be completed on a form supplied by the
Division;
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1370
(5) documentation that a monthly check for
hazards on the outdoor play area is completed.
This form shall be supplied by the Division
and shall be maintained in the family child
care home for review by a representative of the
Division; and
(6) Accurate daily attendance records for all
children in care, including the operator's own
preschool children. The attendance record
shall indicate the date and time of arrival and
departure for each child.
(c) Written records shall be available for review, upon request,
by a representative of the Division and shall be maintained as
follows:
(1) Records required in Paragraph (b)(2) – (b)(6)
of this Rule shall be maintained for a
minimum of three years, or during the length
of time the program has operated, whichever is
less.
(2) Children's records shall be maintained while
the child is enrolled, and for a minimum of
three years after the child is no longer
enrolled.
(3) All other records shall be maintained for as
long as the license to which they pertain
remains valid.
(1) All children's records as required in this
Chapter, except medication permission slips as
required in Rule .1720(c)(13) of this Section,
must be kept on file one year from the date the
child is no longer enrolled.
(2) Additional caregiver records as required in this
Chapter shall be maintained on file one year
from the employee's last date of employment.
(3) Current program records as required in this
Chapter shall be maintained on file for as long
as the license remains. Prior versions shall be
maintained based on the time frame in the
following charts:
(A) A minimum of 30 days from the
revision or replacement date:
Record Rule
Daily Schedule .1718(13)
Infant Feeding
Schedule
.1718(6)
SIDS Sleep
Chart/Visual
Check
.1724(8)
(B) A minimum of one year from the
revision or replacement date:
Record Rule
Attendance .1721 (b)(6)
Emergency Numbers .1720(a)(8)
Emergency
Procedures Form
.1721(b)(1)
Field
Trip/Transportation
Permission
.1723(1)
Fire Drill Log .1721(b)(2)
Incident Log .1721(b)(4)
Playground
Inspection
.1721(b)(5)
Pet Vaccinations .1720(d)(10)
(4) Well-water analysis, pool inspection and
inspections for local ordinances as referenced
in Rules .1720(d)(1), .1719(7), and .1702(d) of
this Section shall remain on file at the family
child care home for as long as the license
remains valid.
(5) Records may be maintained in a paper format
or electronically, except that records that
require a signature of a staff person or parent
shall be maintained in a paper format.
(6) All records required in this Chapter shall be
available for review by a representative of the
Division.
Authority G.S. 110-85; 110-88; 110-91(1),(9).
SECTION .2300 - FORMS
10A NCAC 09 .2318 RETENTION OF FORMS AND
REPORTS BY AN OPERATOR
Each operator must keep on file in the center, copies of all
forms, inspection reports, letters and other correspondence
which serve as documentation of compliance or non-compliance
for as long as the license to which they pertain remains valid.
(a) All children's records as required in this Chapter, except the
Medication Permission Slip as referenced in Rule .0803(13) of
this Chapter, shall be maintained on file for at least one year
from the date the child is no longer enrolled in the center.
(b) All personnel records as required in this Chapter shall be
maintained on file at least one year from the date the employee
is no longer employed.
(c) Current program records shall be maintained on file for as
long as the license remains valid. Prior versions shall be
maintained based on the time frame in the following charts:
(1) A minimum of 30 days from the revision or
replacement date:
Record Rule
Activity Plan .0508 (a)
Allergy Postings .0901(e)
Feeding Schedule .0902
Menu .0901(b)
SIDS Sleep
Chart/Visual Check
.0606(a)(7)
(2) A minimum of one year from the revision or
replacement date:
Record Rule
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1371
Attendance G.S. 110-91(9)
Daily Schedule .0508(a)
Emergency Medical
Care Plan
.0802(a)
Fire Drill Log .0302(d)(4)
Incident Log .0802(e)
Playground
Inspection
.0604(q)
Safe Arrival and
Departure
Procedures
.1003(b)
(d) All building, fire, sanitation and pool inspections as
referenced in G.S. 110-91; Rules .0302 and .1403 of this Chapter
shall remain on file at the center for as long as the license
remains valid.
(e) Records may be maintained in a paper format or
electronically, except that records that require a signature of a
staff person or parent shall be maintained in a paper format.
(f) All records required in this Chapter shall be available for
review by a representative of the Division.
Authority G.S. 110-85; 110-91(9); 143B-168.3.
SECTION .2500 - CARE FOR SCHOOL-AGE CHILDREN
10A NCAC 09 .2511 OTHER STAFF
REQUIREMENTS
(a) The staff/child ratios required in this Subchapter for
school-age children shall always be maintained. The required
lifeguards shall not be counted in the number of staff required to
meet the staff/child ratio.
(b) In addition to the requirements of Rule .2510(k) of this
Subchapter, the staff/child ratio shall be one adult to each 12
children in bodies of water other than swimming pools.
Authority G.S. 110-91(8),(11); 143B-168.3.
* * * * * * * * * * * * * * * * * * * *
CHAPTER 13 – NC MEDICAL CARE COMMISSION
SUBCHAPTER 13D – RULES FOR THE LICENSING OF
NURSING HOMES
SECTION .2200 - GENERAL STANDARDS OF
ADMINISTRATION
10A NCAC 13D .2210 REPORTING AND
INVESTIGATING ABUSE, NEGLECT OR
MISAPPROPRIATION
(a) The A facility shall take reasonable measures to prevent
patient abuse, patient neglect, or misappropriation of patient
property, including but not limited to orientation and instruction
of facility staff on patients' rights, and the screening of and
requesting of references for all prospective employees.
(b) The administrator shall ensure that the Health Care
Personnel Registry Section of the Division of Health Service
Regulation is notified within 24 hours or as soon as practicable
of all allegations which appear to a reasonable person to be
related to patient abuse, neglect or misappropriation of patient
property. of the health care facility becoming aware of all
allegations against health care personnel as defined in G.S.
131E-256(a)(1), which includes abuse, neglect, misappropriation
of resident property, misappropriation of the property of the
facility, diversion of drugs belonging to a health care facility or a
resident, fraud against a health care facility or a resident, and
injuries of unknown source in accordance with 42 CFR
subsection 483.13 which is incorporated by reference.
(c) The facility shall thoroughly investigate allegations of
patient abuse, patient neglect, or misappropriation of patient
property in accordance with 42 CFR subsection 483.13 which is
incorporated by reference, including subsequent amendments,
and shall document all relevant information pertaining to such
investigation and shall take whatever steps are necessary to
prevent further incidents of abuse, neglect or misappropriation of
patient property while the investigation is in progress. Copies of
the The Code of Federal Regulations Regulations, Title 42,
Public Health, Part 430 to the end, revised as of October 1, 2005,
Description Item 572-B,may be purchased from the
Superintendent of Documents, U.S. Government Printing Office,
P.O. Box 371954, PA 15202-7954 979050, St. Louis, MO
63197-9000, for thirty eight dollars ($38.00) and may be
purchased with a credit card by a direct telephone call to the
G.P.O. at (202) 512-1800.(866) 512-1800 or online at
http://bookstore.gpo.gov/ or accessed electronically at
http://ecfr.gpoaccess.gov/.
(d) The administrator shall ensure that the report of
investigation is printed or typed and postmarked to the Health
Care Personnel Registry Section of the Division of Health
Service Regulation within five working days of the allegation.
The report shall include the date and time of the alleged incident
of abuse, neglect or misappropriation of property; the patient's
full name and room number; details of the allegation and any
injury; names of the accused and any witnesses; names of the
facility staff who investigated the allegation; results of the
investigation; and any corrective action that may have been
taken by the facility.
(e) The facility shall not employ any person with a substantiated
finding on the North Carolina Health Care Personnel Registry.
Authority G.S. 131E-104; 131E-131; 131E-255; 131E-256.
* * * * * * * * * * * * * * * * * * * *
CHAPTER 28 – MENTAL HEALTH: STATE OPERATED
FACILITIES AND SERVICES
SUBCHAPTER 28C - DIGNITY AND RESPECT
SECTION .0200 - ESTHETIC AND HUMANE
ENVIRONMENT
10A NCAC 28C .0201 STATE FACILITY
ENVIRONMENT
(a) The State Facility Director shall assure the provision of an
esthetic and humane environment which enhances the positive
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1372
self-image of the client and preserves human dignity. This
includes:
(1) providing warm and cheerful furnishings;
(2) providing flexible and humane schedules; and
(3) directing state facility employees to address
clients in a respectful manner; and manner.
(4) providing adequate areas accessible to clients
who wish to smoke tobacco and areas for non-smokers
as requested.
(b) The State Facility Director shall also, to the extent possible,
make every effort to:
(1) provide a quiet atmosphere for uninterrupted
sleep during scheduled sleeping hours; and
(2) provide areas accessible to the client for
personal privacy, for at least limited periods of
time, unless determined inappropriate by the
treatment team.
Authority G.S. 122C-51; 131E-67; 143B-147.
* * * * * * * * * * * * * * * * * * * *
CHAPTER 46 - LOCAL STANDARDS
SECTION .0300 - LOCAL HEALTH DEPARTMENT
STAFF
10A NCAC 46 .0301 MINIMUM STANDARD
HEALTH DEPARTMENT: STAFFING
(a) A minimum standard health department shall consist of at
least a full-time health director, a full-time public health nurse, a
full-time registered sanitarian, and a full-time secretary.
(b) Full-time means that the employee's full time occupation is
in public health. The employee is not necessarily employed full
time in one department.
(c) All local health department nurses shall either:
(1) Have a nursing degree from a baccalaureate
school accredited by the National League for
Nursing; Nursing or the Commission on
Collegiate Nursing Education; or
(2) Complete within one year of employment with
the health department an introductory course
in principles and practices of public health and
public health nursing sponsored by the
Department. The curriculum for the course
will be developed by the Department with
input from local health departments and
schools of nursing.
Authority G.S. 130A-5(3); 130A-9.
* * * * * * * * * * * * * * * * * * * *
CHAPTER 67 – SOCIAL SERVICES - PROCEDURES
SUBCHAPTER 67A – GENERAL ADMINISTRATION
SECTION .0100 - ADMINISTRATION
10A NCAC 67A .0107 FORMS
(a) In order to comply with the budgeting, planning and
reimbursement requirements of G.S. Chapter 108A and 45 CFR
228.17, each county department of social services shall complete
all forms specified by the Department of Health and Human
Services.
(b) The forms, initial service client information record, and
service client information change notice, shall be completed by
the case manager for each client requesting social services. All
required fields must be completed and required fields not
properly completed shall be considered an error and returned to
the worker. Clients may refuse to provide their social security
numbers and shall not be denied benefits, but the social security
numbers, or alternate unique identifiers as assigned by county
departments of social services or the North Carolina Division of
Social Services, worker identification numbers of case managers
are required in order to allocate costs for federal financial
participation.
(c) The form, worker daily report of services to clients, shall be
completed by the county services workers and division of
services for the blind services workers. This form provides
information to meet reporting requirements at the federal, state
and local levels and will provide the basis for county
reimbursement. All required fields must be completed and
required fields not properly completed shall be considered an
error and returned to the worker. The social security numbers or
alternate unique identifiers as assigned by county departments of
social services or the North Carolina Division of Social Services
worker identification numbers of service workers are required in
order to allocate costs for federal financial participation.
Authority G.S. 75-62; 143B-153; 45 CFR 228.17; 5 USC 552a.
TITLE 13 – DEPARTMENT OF LABOR
CHAPTER 07 - OFFICE OF OCCUPATIONAL SAFETY
AND HEALTH
13 NCAC 07F.0104 PERSONAL PROTECTIVE
EQUIPMENT
Subpart I -- Personal Protective Equipment -- 29 CFR 1910.132,
General requirements, is amended at 29 CFR 1910.132(b) to
read:
"(b) Equipment. (1) Employer-provided equipment.
It is the responsibility of the employer to provide, at no
cost to the employee, all personal protective equipment
which the employee does not wear off the jobsite for
use off the job.
(2) Employee-owned equipment. Where employees
provide their own protective equipment, the employer
shall be responsible to assure its adequacy, including
proper maintenance, and sanitation of such equipment."
Authority G.S. 95-131; 95-133; 150B-21.6.
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TITLE 21 – OCCUPATIONAL LICENSING BOARDS AND
COMMISSIONS
CHAPTER 16 – DENTAL EXAMINERS
SUBCHAPTER 16G – DENTAL HYGIENISTS
SECTION .0100 – DENTAL HYGIENISTS
21 NCAC 16G .0101 FUNCTIONS WHICH MAY BE
DELEGATED
A dental hygienist may be delegated appropriate functions to be
performed under the direct control and supervision of a dentist
who shall be personally and professionally responsible and liable
for any and all consequences or results arising from performance
of such acts and functions. In addition to the functions set out in
G.S. 90-221(a) and 21 NCAC 16H .0201, functions which may
be delegated to a dental hygienist include:
(1) Take impressions for study models and
opposing casts which will not be used for
construction of permanent dental appliances,
but which may be used for the fabrication of
adjustable orthodontic appliances; appliances,
nightguards and the repair of dentures or
partials;
(2) Apply sealants to teeth that do not require
mechanical alteration prior to the application
of such sealants, provided that a dentist has
examined the patient and prescribed the
procedure;
(3) Insert matrix bands and wedges;
(4) Place cavity bases and liners;
(5) Place and/or remove rubber dams;
(6) Cement temporary restorations using
temporary cement;
(7) Apply acid etch materials/rinses;
(8) Apply bonding agents;
(9) Remove periodontal dressings;
(10) Remove sutures;
(11) Place gingival retraction cord;
(12) Remove excess cement;
(13) Flush, dry and temporarily close root canals;
(14) Place and remove temporary restorations;
(15) Place and tie in or untie and remove
orthodontic arch wires;
(16) Insert interdental spacers;
(17) Fit (size) orthodontic bands or brackets;
(18) Apply dentin desensitizing solutions;
(19) Perform periodontal screening;
(20) Perform periodontal probing;
(21) Perform subgingival exploration for or
removal of hard or soft deposits;
(22) Perform sulcular irrigation;
(23) Apply sulcular antimicrobial or antibiotic
agents which are resorbable;
(24) Perform extra-oral adjustments which affect
function, fit, or occlusion of any temporary
restoration or appliance; and
(25) Initially form and size orthodontic arch wires
and place arch wires after final adjustment and
approval by the dentist.
Authority G.S. 90-221; 90-223(b).
21 NCAC 16G .0103 PROCEDURES PROHIBITED
Those procedures which require the professional education and
skill of a dentist and may not be delegated to a dental hygienist
shall include, but shall not be limited to:
(1) Comprehensive examination, diagnosis and
treatment planning;
(2) Surgical or cutting procedures on hard or soft
tissues, including laser, air abrasion or micro-abrasion
procedures;
(3) Placement or removal of sulcular
nonresorbable agents;
(4) The issuance of prescription drugs,
medications or work authorizations;
(5) Taking of impressions for final fixed or
removable restorations or
prostheses;protheses, except as provided for in
Rule .0101(1) of this Chapter;
(6) Final placement or intraoral adjustment of a
fixed or removable appliance;
(7) Intraoral occlusal adjustments which affect
function, fit, or occlusion of any temporary or
permanent restoration or appliance;
(8) Extra-oral occlusal adjustments which affect
function, fit, or occlusion of any permanent
restoration or appliance;
(9) Performance of direct pulp capping or
pulpotomy;
(10) Placement of sutures;
(11) Final placement or cementation of orthodontic
bands or brackets;
(12) Placement or cementation of final restorations;
(13) Administration of any anesthetic by any route
except the administration of topically-applied
agents intended to anesthetize only cutaneous
tissue; and
(14) Intraoral use of a high speed handpiece.
Authority G.S. 90-221(a); 90-223(b).
SUBCHAPTER 16H - DENTAL ASSISTANTS
SECTION .0100 - CLASSIFICATION AND TRAINING
21 NCAC 16H .0203 PERMITTED FUNCTIONS OF
DENTAL ASSISTANT II
A Dental Assistant II may perform any and all acts or procedures
which may be performed by a Dental Assistant I. In addition, a
Dental Assistant II may be delegated the following functions to
be performed under the direct control and supervision of a
dentist who shall be personally and professionally responsible
and liable for any and all consequences or results arising from
the performance of such acts and functions:
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22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1374
(1) Take impressions for study models and
opposing casts which will not be used for
construction of dental appliances, but which
may be used for the fabrication of adjustable
orthodontic appliances; appliances,
nightguards and the repair of dentures or
partials;
(2) Apply sealants to teeth that do not require
mechanical alteration prior to the application
of such sealants, provided a dentist has
examined the patient and prescribed the
procedure;
(3) Insert matrix bands and wedges;
(4) Place cavity bases and liners;
(5) Place and/or remove rubber dams;
(6) Cement temporary restorations using
temporary cement;
(7) Apply acid etch materials/rinses;
(8) Apply bonding agents;
(9) Remove periodontal dressings;
(10) Remove sutures;
(11) Place gingival retraction cord;
(12) Remove excess cement;
(13) Flush, dry and temporarily close root canals;
(14) Place and remove temporary restorations;
(15) Place and tie in or untie and remove
orthodontic arch wires;
(16) Insert interdental spacers;
(17) Fit (size) orthodontic bands or brackets;
(18) Apply dentin desensitizing solutions;
(19) Perform extra-oral adjustments which affect
function, fit or occlusion of any temporary
restoration or appliance;
(20) Initially form and size orthodontic arch wires
and place arch wires after final adjustment and
approval by the dentist;
(21) Polish the clinical crown using only;
(a) a hand-held brush and appropriate
polishing agents; or
(b) a combination of a slow speed
handpiece (not to exceed 10,000 rpm)
with attached rubber cup or bristle
brush, and appropriate polishing
agents.
Before a Dental Assistant II can utilize a slow speed handpiece
with rubber cup or bristle brush attachment, a formal educational
course in coronal polishing consisting of at least 7 hours shall be
completed. A polishing procedure shall in no way be
represented to the patient as a prophylaxis and no specific charge
shall be made for such unless the dentist has performed an
evaluation for calculus, deposits, or accretions and a dentist or
dental hygienist has removed any substances detected.
Authority G.S. 90-29(c)(9); 90-48.
SUBCHAPTER 16I - ANNUAL RENEWAL OF DENTAL
HYGIENIST LICENSE
SECTION .0100 – ANNUAL RENEWAL
21 NCAC 16I .0104 REPORTING CONTINUING
EDUCATION
(a) The number of hours completed to satisfy the continuing
education requirement shall be indicated on the renewal
application form submitted to the Board and certified by the
hygienist. Upon request by the Board or its authorized agent, the
hygienist shall provide official documentation of attendance at
courses indicated. Such documentation shall be provided by the
organization offering or sponsoring the course. Documentation
must include:
(1) the title;
(2) the number of hours of instruction;
(3) the date of the course attended;
(4) the name(s) of the course instructor(s); and
(5) the name of the organization offering or
sponsoring the course.
(b) All records, reports and certificates relative to continuing
education hours must be maintained by the licensee for at least
two years and shall be produced upon request of the Board or its
authorized agent.
(c) Dental hygienists shall receive four hours credit per year for
continuing education when engaged in the following:
(1) service on a full-time basis on the faculty of an
educational institution with direct involvement
in education, training, or research in dental or
dental auxiliary programs; or
(2) affiliation with a federal, state or county
government agency whose operation is
directly related to dentistry or dental
auxiliaries.
Verification of credit hours shall be maintained in the manner
specified in this Rule.
(d) Evidence of service or affiliation with an agency as specified
in Paragraph (c) of this Rule shall be in the form of verification
of affiliation or employment which is documented by a director
or an official acting in a supervisory capacity.
(e) Hygienists who work at least 20 hours per week in an
institution or entity described in Subparagraph (c)(1) or (2) of
this Rule shall receive two hours credit per year for continuing
education.
Authority G.S. 90-225.1.
SUBCHAPTER 16R - CONTINUING EDUCATION
REQUIREMENTS: DENTISTS
SECTION .0100 – CONTINUING EDUCATION
21 NCAC 16R .0106 EXEMPTION FROM AND
CREDIT FOR CONTINUING EDUCATION
(a) Dentists may request exemption from continuing education
requirements by submitting evidence in writing to the Board of
retirement or semi-retirement from the practice of dentistry. A
retired dentist is a dentist who never practices dentistry. A semi-retired
dentist is a dentist who practices on an occasional basis
not to exceed 100 clock hours in a calendar year. A dentist who
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22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1375
can demonstrate a disabling condition may request a variance in
continuing education hours during a particular period. Written
documentation of a disabling condition that interferes with the
dentist's ability to complete the required hours shall be provided
to the Board. The Board may grant or deny requests for variance
in continuing education hours based on a disabling condition on
a case by case basis, taking into consideration the particular
disabling condition involved and its affect on the dentist's ability
to complete the required hours. In considering the request, the
Board may require additional documentation substantiating any
specified disability.
(b) In those instances where continuing education is waived and
the exempt individual wishes to resume practice, the Board shall
require continuing education courses in accordance with Rule
.0103 of this Section when reclassifying the licensee. The Board
may require those licensees who have not practiced dentistry for
a year or more to undergo a bench test prior to allowing the
licensee to resume practice when there is indication of inability
to practice dentistry.
(c) Dentists shall receive 10 hours credit per year for continuing
education when engaged in any of the following:
(1) service on a full-time basis on the faculty of an
educational institution with direct involvement
in education, training, or research in dental or
dental auxiliary programs; or
(2) affiliation with a federal, state or county
government agency whose operation is
directly related to dentistry or dental
auxiliaries. Verification of credit hours shall
be maintained in the manner specified in Rule
.0105 of this Section.
(d) Dentists who work at least 20 hours per week in an
institution or entity described in Subparagraph (c)(1) or (2) of
this Rule shall receive five hours credit per year for continuing
education.
Authority G.S. 90-31.1; 90-38.
TITLE 25 – STATE PERSONNEL
CHAPTER 1 - OFFICE OF STATE PERSONNEL
SUBCHAPTER 1C - PERSONNEL ADMINISTRATION
SECTION .0200 - GENERAL EMPLOYMENT POLICIES
25 NCAC 01C .0215 EMPLOYMENT CONTRACTS
(a) Except as to apprenticeship agreements executed according
to the provisions of N.C.G.S. Chapter 94 and except as to
provisions of Paragraph (b) below, the following provisions
apply to employment contracts:
(1) No person employee shall be required, as a
condition of employment subject to N.C.G.S.
Chapter 126 to enter into a contractual
arrangement with any state agency as defined
in 25 NCAC 01A .0103or university for
employment with that agency or university.
However, this shall not prohibit apprenticeship
agreements for training purposes when
executed according to the provisions of N. C.
G. S. Chapter 94.
(2) No state agency or university may require, as a
condition of employment, that a personan
employee agree, in writing or otherwise, to a
minimum specified length of employment,
except for the minimum training period
specified in an apprenticeship agreement duly
executed under G.S. Chapter 94.
(3) No state agency may prohibit, as a condition
of initial or continued employment, any person
employee from transferring to another state
agency or university.
(4) No state agency or university may require, as a
condition of employment, that a personan
employee agree, in writing or otherwise, that a
payment be made to the employing agency if a
minimum specified period of employment is
not met.
(5) No agency may require the repayment of the
cost of job training required by the employing
agency as a condition of continued
employment.
(b) An agency that provides all or part of the cost of professional
development seminars or other educational opportunities to
employees that are not a requirement for the job and that are in
excess of $5000 may condition the provision of agency funds
upon agreement of the employee to repay the funds subject to
the following conditions:
(1) The employee is informed about the
repayment provisions in advance,
(2) The amount of time that the agency expects
the employee to remain employed is clearly
specified and does not exceed one year,
(3) The prorated amount that the employee will
have to repay for each month the employee
leaves prior to the end of the term is clearly
specified in the agreement, and
(4) The terms of the agreement are reduced to
writing and the employee and the human
resources director both sign the agreement.
Authority G.S. 94; 126-4.
SECTION .0400 - APPOINTMENT
25 NCAC 01C .0414 CONTRACTUAL WORKER
(a) Notwithstanding 25 NCAC 1C .0215, an agency may
employ individuals pursuant to a contract if the individuals are
engaged to perform on-going professional or technical services
in the areas of medicine or health care, engineering, information
technology, or other highly specialized or difficult to recruit
areas. Agency contracts with independent contractors under the
applicable IRS regulations are not subject to this rule.
(b) Contracts for persons hired under this appointment type may
be for any period of time up to three years. Such contracts shall
include, as a minimum, the duration of the contract, the amount
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1376
of compensation to be received under the contract, and other
matters necessary for the parties to have an accurate
understanding of the respective obligations of the contract. The
contract shall include a provision that the individual is subject, at
a minimum, to Articles 6 and 7 of Chapter 126 of the General
Statutes. If the agency is providing any benefits to the
individual, e.g., health insurance, retirement, the contract must
so state; otherwise, the contract must contain a provision
whereby both parties agree and acknowledge that no benefits
are being provided or received under the contract. The contract
may also contain a renewal provision but such a provision must
be contingent upon the written agreement of both parties.
(c) An individual working pursuant to a contract is subject to
the terms of the contract and is not entitled to any benefits
except as expressly stated in the contract. The provisions of
Chapter 126 of the North Carolina General Statutes, the State
Personnel Manual, and Title 25 of the Administrative Code are
only deemed to be terms of the contract insofar as they are
specifically incorporated by reference in the contract.
Authority G.S. 126-4.
SUBCHAPTER 1H - RECRUITMENT AND SELECTION
SECTION .0700 - PRIORITY CONSIDERATION:
GENERAL PROVISIONS
25 NCAC 01H .0701 GENERAL PROVISIONS
(a) It is recognized that certain applicants for positions of State
employment may receive a priority over other applicants for the
position. Priority consideration in certain situations may be
accorded to the following applicants:
(1) Career State employees applying for a position
that is a higher salary grade (or salary grade
equivalency) as provided in 25 NCAC 01H
.0800;
(2) Career State employees who have received
written notification of imminent separation
due to a reduction in force;
(3) Eligible employees in positions which are
designated as exempt policymaking and who
have less than 10 years of cumulative State
service in subject positions as provided in 25
NCAC 01H .1000;
(4) Eligible employees in positions which are
designated as exempt managerial and who
have less than 10 years of cumulative State
service in subject positions and who have been
removed from the exempt position for reasons
other than cause but not because the
employee’s selection violated G.S. 126-14.2,
as provided in 25 NCAC 01H .1000;
(5) Eligible employees in positions which are
designated as exempt managerial and who
have less than 10 years of cumulative State
service and who have been removed from the
exempt managerial position because the
employee's selection violated G.S. 126-14.2,
as provided in 25 NCAC 01H .1000; and
(6) Eligible veterans applying for initial
employment or subsequent employment an
initial position in State government, as
provided in 25 NCAC 01H .1100.
(b) The priority consideration listed in Subparagraph (a)(6) of
this Rule may only be asserted against substantially equal or less
qualified non-veteran outside applicants or other State
employees who do not fall into any of the categories listed in
Subparagraphs (a)(1) – (a)(5) of this Rule.
(c) The priority consideration listed in Subparagraphs (a)(3),
(a)(4) and (a)(5) of this Rule may be defeated by an employee
with the priority listed in Subparagraph (a)(2) of this Rule or by
a current State employee who has greater cumulative State
service in positions subject to the State Personnel Act. The
selected applicant must meet the minimum qualifications,
including training, experience, competencies and knowledge,
skills and abilities.
Authority G.S. 126-4.
SECTION .1100 – VETERANS' PREFERENCE
25 NCAC 01H .1102 CLAIMING VETERANS'
PREFERENCE
In order to claim veterans' preference, all eligible persons shall
submit a DD Form 214, Certificate of Release or Discharge from
Active Duty, along with a State Application for Employment
(PD-107 or its equivalent) to the appointing authority.
Appointing authorities are responsible for verifying eligibility
and may request additional documentation as is necessary to
ascertain eligibility. Eligible veterans shall meet the minimum
qualifications, as defined in 25 NCAC 01H .0635, for the
position.
Authority G.S. 126-4(4); 126-4(10); 128-15.
25 NCAC 01H .1103 ALLEGATION OF DENIAL OF
VETERANS' PREFERENCE
Any claim or allegation that veterans' preference has not been
accorded to an eligible veteran shall be filed with the State
Personnel Commission through the established contested case
procedures of the Office of Administrative Hearings. Such
claims shall be filed in a manner consistent with the
requirements of G.S. 150B-23 and G.S. 126-38. Such claims
shall be heard as contested cases pursuant to G.S. 150B, Article
3. The State Personnel Commission may, upon a finding that
veterans' preference was denied in violation of these Rules, order
the hiring or reinstatementemployment, subsequent employment,
promotion, reassignment or horizontal transfer of any affected
person, as well as any other remedy necessary to correct the
violation.
Authority G.S. 126-4(10); 126-4(11); 126-34.1(b)(4); 126-37;
126-38; 150B-2(2); 150B, Article 3.
25 NCAC 01H .1104 APPLICATION OF THE
VETERANS' PREFERENCE
IN ADDITION
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1377
(a) The Veterans’ preference to shall be accorded eligible
veterans, as defined in 25 NCAC 01H .1105, shall apply in
initial selection and reduction in force situations only. by giving
additional credit as follows:
(b)(1) In initial selectionemployment, subsequent
employment, promotion, reassignment, and
horizontal transfer procedures, where
numerically scored examinations are used in
determining the relative ranking of candidates,
10 points shall be awarded to eligible veterans.
(c)(2) In initial selection,employment, subsequent
employment, promotion, reassignment, and
horizontal transfer procedures where
structured interview, assessment center,
in-basket, or any other procedure, not
numerically scored, is used to qualitatively
assess the relative ranking of candidates, the
veteran who has met the minimum
qualification requirements for the vacancy, and
who has less than four years of related military
experience beyond that necessary to minimally
qualify, shall also receive additional
experience credit for up to four years of
unrelated military service. The spouse or
dependent shall not receive additional
experience credit for the veteran's unrelated
military service. To determine the amount of
additional experience credit to be granted for
unrelated military service, first determine the
amount of related military service possessed
by the eligible veteran beyond that required to
meet the minimum qualifications, then apply
the following:(d) The amount of additional
experience credit to be granted for unrelated
military service in individual cases shall be
determined as follows. First, determine the
amount of related military service possessed
by the eligible veteran beyond that required to
meet the minimum qualifications.
(A) If the total of such experience equals
or exceeds four years, the additional
credit for unrelated military service
does not apply.
(B) If the total of such experience is less
than four years, the veteran shall
receive direct experience credit for
unrelated military service in an
amount not to exceed the difference
between the eligible veteran's related
military service and the four-year
maximum credit that may be granted.
(3) In reduction-in-force situations, when
calculating length of service, the eligible
veteran shall be accorded one year of State
service for each year or fraction thereof of
military service, up to a maximum of five
years credit. This additional credit does not
count as total state service.
(e)(b) After applying the preference, preference to candidates
from outside the State government structure, upon initial
employment or subsequent employment as outlined in Paragraph
(a)(1) or (2) above, the qualified eligible veteran shall be hired
when the veteran's overall qualifications are substantially equal
to the non-veterans in the applicant pool as provided in 25
NCAC 01H .0701(b). Substantially equal qualifications occur
when the employing agency cannot make a reasonable
determination that the qualifications held by one or more
applicants are significantly better suited for the position than the
qualifications held by another applicant.
(f) In reduction-in-force situations, when calculating length of
service, the eligible veteran shall be accorded one year of State
service for each year or fraction thereof of military service, up to
a maximum of five years credi(g)(c) Spouses of disabled
veterans, the surviving spouse or dependent of a veteran who
died on active duty during periods of war either directly or
indirectly as a result of such service, the spouses of veterans who
suffer disabling injuries through service-related reasons during
peacetime, and the surviving spouse or dependent of a veteran
who died through service-related reasons during peacetime shall
be eligible for preference in state employment if the spouse
meets the minimum qualifications. The spouse or dependent
shall not receive additional experience credit for the veteran's
unrelated military service. The preference to be given is that the
qualified spouse or dependent shall be hired when the spouse or
dependent's overall qualifications are substantially equal to the
non-veterans in the applicant pool. The spouse, surviving
spouse or surviving dependent of that veteran may claim such
employment veterans' preference without regard to whether
such preference has been claimed previously by the veteran.
(d) For promotion, reassignment and horizontal transfer, after
applying the preference to veterans who are current State
employees as explained under "Determining Military Service
Credit," the eligible veteran competes with all other applicants
who have substantially equal qualifications.
Authority G.S. 126-4(4); 126-4(10); 128-15.
SUBCHAPTER 1I - SERVICE TO LOCAL
GOVERNMENT
SECTION .2000 - APPOINTMENT AND SEPARATION
25 NCAC 01I .2002 TYPES OF APPOINTMENTS
AND DURATION
(a) Probationary Appointment:
(1) Individuals receiving original appointments to
permanent positions must serve a probationary
period. Persons being hired after leaving
employment in a subject position, and
employees voluntarily accepting promotions,
transfers or demotions in another county,
social services department, mental health
program, district health program or emergency
management program may be required to serve
a probationary period by their new employer.
This period is an essential extension of the
selection process, and provides the time for
IN ADDITION
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effective adjustment of the new employee or
elimination of those whose performance will
not meet acceptable standards. Persons being
rehired after leaving employment in a position
subject to G. S. 126 who have achieved career
status and have not experienced a break in
service, and employees voluntarily accepting
promotions, transfers or demotions in another
county, in a department of social services,
mental health program, county or district
public health program or emergency
management program who have achieved
career status and have not experienced a break
in service shall not be required to serve a new
probationary period, except for the purpose of
determining eligibility for benefits or
compensation under local government policy.
(2) The length of the probationary period shall not
be less than three nor more than nine months
of either full-time or part-time employment.
The length is dependant upon the complexity
of the position and the rapidity of progress
made by the particular individual in the
position. When the employee's performance
meets the required standard of work, after at
least three months and not more than nine
months in the position, the employee shall be
given permanent status unless in a trainee
appointment. If the desired level of
performance is not achieved within nine
months after initial appointment, the employee
shall be separated from service unless in
trainee status; an employee with a trainee
appointment is expected to make a satisfactory
progress, but is not permanent until he has
completed the training period.
(3) At any time during a probationary period an
employee may be separated from service for
causes related to performance of duties or for
personal conduct detrimental to the agency
without right of appeal or hearing. The
employee must be given notice of dismissal,
including reasons.
(4)(3) Employment in a temporary appointment may
be toward the probationary period at the
discretion of the appointing authority.
Employment in an intermittent or emergency
appointment shall not be credited toward the
probationary period.
(b) Trainee Appointment:
(1) A trainee appointment may be made to a
position in any class for which the
specification includes special provisions for a
trainee progression leading to a regular
appointment. An individual may not be
appointed as a trainee if he/she possesses the
acceptable training and experience for the
class.
(2) The specification for each class in which a
trainee appointment is authorized will define
the minimum qualifications for the trainee
appointment and the minimum qualifications
for a regular probationary appointment. It is,
of course, expected that the individual will
progress through supervised experience to a
minimum level of satisfactory performance in
the position during a period of time indicated
by the difference between the amounts of
experience required for the two types of
appointments. This limit does not include time
spent on educational leave or additional time
required to participate in a work-study
program designed to meet educational
requirements for the class. An employee may
not remain on a trainee appointment beyond
the time he meets the educational and
experience requirements for the class. After
the employee has successfully completed all
educational and experience requirements he
shall be given probationary or permanent
status in the position or shall be separated. If
the period of the trainee appointment equals or
exceeds nine months, the employee must be
given permanent status or be separated at the
completion of the trainee period.
(3) If an employee with permanent status in
another class accepts a trainee appointment,
the permanent status will be waived for the
duration of the trainee appointment. The
employee can regain permanent status either
through successful completion of the trainee
appointment, by reinstatement to the class in
which he previously held status, or by transfer
to a position in a class for which he/she would
have been eligible based on previous
permanent status.
(4) A former employee who does not meet the
minimum requirements of the class to which
he is being appointed shall be given a trainee
appointment. All requirements for the trainee
appointment must be satisfied prior to
attaining permanent status.
(c) Permanent Appointment. A permanent appointment is an
appointment to a permanently established position when the
incumbent is expected to be retained on a permanent basis.
Permanent appointments follow the satisfactory completion of a
probationary and/or trainee appointment, or may be made upon
reinstatement of a qualified employee.
(d) Time-Limited Appointment. A time-limited appointment
may be made to:
(1) a permanent position that is vacant due to the
incumbent's leave of absence and when the
replacement employee's services will be
needed for a period of one year or less; or
(2) to a permanent position that has an established
duration of no more than two years. Such
appointment shall not be made for less than six
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1379
months. If at the end of the two year
time-limited appointment, the work is
expected to continue and the position becomes
permanent, the employee should be given a
permanent appointment. A time-limited
appointment is distinguished from a temporary
appointment by the greater length of time, and
from the regular permanent appointment by its
limited duration.
(e) Temporary Appointment. A temporary appointment may be
made to a permanent or temporary position. The appointment
shall be limited to a maximum duration of 12 months.
(f) Pre-Vocational Student Appointment. This appointment is
to be used to enable students to gain practical knowledge of their
particular occupational area of interest. A suitable plan for
training under close supervision must be developed for the
individual. In the case of a co-operative, work study, internship,
or similar appointment, the time schedule for work must be
determined. The basis of eligibility and selection for such an
appointment shall be outlined in a formal plan developed by the
participating agencies for each type and level of student
involvement. Upon successful completion of their training,
individuals may be considered for any vacant position for which
qualified.
(g) Emergency Appointment:
(1) An emergency appointment may be made
when an emergency situation exists requiring
the services of an employee before it is
possible to identify a qualified applicant
through the regular selection process. When it
is determined that an emergency appointment
is necessary, all other requirements for
appointments will be waived.
(2) An emergency appointment may be made for a
period of up to 60 work days (consecutive or
non-consecutive), or a total of 480 hours "in
pay status". Any one individual may not
receive successive emergency appointments
with the same department or agency. At least
three calendar months must elapse before that
department or agency can give the same
individual another emergency appointment.
(h) Appointment of Incumbents in Newly-Covered Programs:
(1) Upon extension of State Personnel Act
requirements to a program, position, or group
of positions, the incumbent(s) may be
appointed with permanent status in his
classifications under any of the following
circumstances:
(A) The employee is qualified for
reinstatement on the basis of previous
permanent status in a comparable
position; or
(B) The employee has at least three
months of satisfactory service in the
program or agency, as certified by the
appointing authority, and the
appointing authority recommends that
the employee be granted permanent
status.
(2) If the agency fails to grant permanent status
within nine months from the initial coverage
then the incumbent must be terminated.
Employees given trainee appointments will be
given permanent status consistent with other
trainee appointments.
(3) Incumbents who have less than three months
of service with the agency shall be continued
with no status until they are granted permanent
status or terminated as required in this Rule.
Employees with more than three months but
less than nine months services in the agency
may be continued without status until nine
months have elapsed. At the end of nine
months, however, the incumbent must be
granted permanent status or terminated.
(i) Work Against Appointment. When qualified applicants are
unavailable and there is no trainee provision for the
classification of the vacancy, the appointing authority may
appoint an employee below the level of the regular classification
in a work-against situation. A work-against appointment is for
the purpose of allowing the employee to gain the qualifications
needed for the full class through on-the-job experience. The
appointee must meet the minimum training and experience
standard of the class to which initially appointed. A
work-against appointment may not be made when applicants are
available who meet the training and experience requirements for
the full class, and for the position in question.
Authority G.S. 126-4.
25 NCAC 01I .2006 BREAK IN SERVICE
(a) A break in service occurs when an employee is in non-pay
status for more than 31 calendar days. (An employee is in pay
status when working, when on paid leave or when on workers'
compensation leave. An employee is not in pay status after the
last day of work when separated because of resignation,
dismissal, death, retirement or reduction in force.) Periods of
leave without pay do not constitute a break in service.
(b) A break in service does not occur when an employee moves
from one local government agency subject to G. S. 126 to
another local government agency subject to G. S. 126 without
being in non-pay status for more than 31 calendar days.
(c) A break in service does not occur when an employee moves
from a local government agency subject to G. S. 126 to a state
agency or university without being in non-pay status for more
than 31 calendar days.
(d) A break in service does not occur when an employee moves
from a state agency or university from a position subject to G. S.
126 to a local government agency subject to G. S. 126 without
being in non-pay status for more than 31 calendar days.
Authority G.S. 126-4.
SECTION .2300 - DISCIPLINARY ACTION:
SUSPENSION, DISMISSAL AND APPEALS
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1380
25 NCAC 01I .2301 JUST CAUSE FOR
DISCIPLINARY ACTION
(a) Any employee, regardless of occupation, position, or
profession may be warned, demoted, suspended or dismissed by
the appointing authority. Such actions may be taken against
employees with permanent status, as defined in 25 NCAC 1I
.2002(a)(2), career status as defined in G. S. 126-1.1 only for
just cause. The degree and type of action taken shall be based
upon the sound and considered judgment of the appointing
authority in accordance with the provisions of this Rule. When
just cause exists the only disciplinary actions provided for under
this Section are:
(1) Written warning;
(2) Disciplinary suspension without pay;
(3) Demotion; and
(4) Dismissal.
(b) At any time during the period prior to achieving career
status, including during the probationary period, an employee
may be separated from service for causes related to performance
of duties or for personal conduct detrimental to the agency
without right of appeal or hearing. The employee must be given
notice of dismissal, including reasons. Such notice may be, but
is not required to be, in writing.
(b)(c) There are two bases for the discipline or dismissal of
employees under the statutory standard of "just cause" as set out
in G.S. 126-35. These two bases are:
(1) Discipline or dismissal imposed on the basis of
unsatisfactory job performance, including
grossly inefficient job performance.
(2) Discipline or dismissal imposed on the basis of
unacceptable personal conduct.
(c)(d) Either unsatisfactory or grossly inefficient job
performance or unacceptable personal conduct, as defined in 25
NCAC 1I .2302(a); .2303(a); and .2304(b), constitutes just cause
for discipline or dismissal. The categories are not mutually
exclusive, as certain actions by employees may fall into both
categories, depending upon the facts of each case. No
disciplinary action shall be invalid solely because the
disciplinary action is labeled incorrectly.
(d)(e) The imposition of any disciplinary action shall comply
with the procedural requirements of this Section.
Authority G.S. 126-35.
IN ADDITION
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1381
NOTICE OF CORRECTION FOR NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
M.H.O.C., LLC
Please take notice that the address of the property subject to the Summary of Notice of Intent to Redevelop a Brownfields Property
published by M.H.O.C., LLC in the January 15, 2008 edition of the NC Register is not 3600 North Graham Street, Charlotte, North
Carolina, but 3606 North Graham Street.
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1382
SUMMARY OF NOTICE OF
INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
Edgemont Realty, LLC
Pursuant to N.C.G.S. § 130A-310.34, Edgemont Realty, LLC has filed with the North Carolina Department of Environment and
Natural Resources (“DENR”) a Notice of Intent to Redevelop a Brownfields Property (“Property”) in Durham, Durham County, North
Carolina. The Property, the former site of the Golden Belt Manufacturing Co., consists of 5.478 acres and is located at 807 East Main
Street. Environmental contamination exists on the Property in soil and groundwater. Edgemont Realty, LLC has committed itself to
redevelopment of the Property for no uses other than mixed use that may include office, high-density residential, retail, light
manufacturing, institutional and, with prior written DENR approval, other commercial use. The Notice of Intent to Redevelop a
Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and Edgemont Realty, LLC, which in turn
includes (a) a map showing the location of the Property, (b) a description of the contaminants involved and their concentrations in the
media of the Property, (c) the above-stated description of the intended future use of the Property, and (d) proposed investigation and
remediation; and (2) a proposed Notice of Brownfields Property prepared in accordance with G.S. 130A-310.35.
The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at the Durham County Library, 300 N.
Roxboro Street, Durham, NC 27701 by contacting Lynn Richardson at that address or at (919) 560-0171; or at the offices of the N.C.
Brownfields Program (where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the
documents), 401 Oberlin Rd., Suite 150, Raleigh, NC 27605 by contacting Shirley Liggins at that address, at
shirley.liggins@ncmail.net, or at (919) 508-8411.
Written public comments may be submitted to DENR within 30 days after the date this Notice is published in a newspaper of
general circulation serving the area in which the brownfields property is located, or in the North Carolina Register, whichever is later.
Written requests for a public meeting may be submitted to DENR within 21 days after the period for written public comments begins.
Thus, if Edgemont Realty, LLC, as it plans, publishes this Summary in the North Carolina Register after it publishes the Summary in a
newspaper of general circulation serving the area in which the brownfields property is located, and if it effects publication of this
Summary in the North Carolina Register on the date it expects to do so, the periods for submitting written requests for a public
meeting regarding this project and for submitting written public comments will commence on February 2, 2008. All such comments
and requests should be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environment and Natural Resources
401 Oberlin Road, Suite 150
Raleigh, North Carolina 27605
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1383
Notice of Application for Innovative Approval of a Wastewater System for On-site Subsurface Use
Pursuant to NCGS 130A-343(g), the North Carolina Department of Environment and Natural Resources (DENR) shall publish a
Notice in the NC Register that a manufacturer has submitted a request for approval of a wastewater system, component, or device for
on-site subsurface use. The following applications have been submitted to DENR:
Application by: Mike Price
Norweco, Inc
220 Republic St
Norwalk, OH 44857
For: Revised Innovative Approval for "Singulair® ATU/Sand Filter" advanced wastewater pretreatment system
And
Application by: Mike Hoover
North Carolina State University, Dept of Soil Science
Box 7619
Raleigh, NC 27695-7619
For: Revised Innovative Approval for "Pressure Dosed Sand Filter" advanced wastewater pretreatment system
And
Application by: Bord na Mona
Environmental Products US, Inc
PO Box 77457
Greensboro, NC 27417
For: Revised Innovative Approval for "Peat Filter" advanced wastewater pretreatment system
And
Application by: Mark Lubbers
Aquapoint, Inc
241 Duchaine Blvd
New Bedford, MA 02745
For: Revised Innovative Approval for "Bioclere" advanced wastewater pretreatment system
And
Application by: Eric Valentine
American Manufacturing Company
PO Box 97
Elkwood, VA 22718-0097
For: Revised Innovative Approval for "American Perc-Rite®" Subsurface drip wastewater dispersal system
DENR Contact: Ted Lyon
1-919-715-3274
Fax: 919-715-3227
ted.lyon@ncmail.net
These applications may be reviewed by contacting the applicant or at 2728 Capital Blvd., Raleigh, NC, On-Site Water Protection
Section, Division of Environmental Health. Draft proposed innovative approvals and proposed final action on the application by
DENR can be viewed on the On-Site Water Protection Section web site: http://www.deh.enr.state.nc.us/osww_new/new1//index.htm.
IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1384
Written public comments may be submitted to DENR within 30 days of the date of the Notice publication in the North Carolina
Register. All written comments should be submitted to Mr. Ted Lyon, Chief, On-site Water Protection Section, 1642 Mail Service
Center, Raleigh, NC 27699-1642, or ted.lyon@ncmail.net, or fax 919.715.3227. Written comments received by DENR in accordance
with this Notice will be taken into consideration before a final agency decision is made on the innovative subsurface wastewater
system application.
IN ADDITION
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22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
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IN ADDITION
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IN ADDITION
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IN ADDITION
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IN ADDITION
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IN ADDITION
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IN ADDITION
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
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PROPOSED RULES
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1395
Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency
must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a
later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published
notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60
days.
Statutory reference: G.S. 150B-21.2.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the North Carolina Marine Fisheries Commission intends to
adopt the rule cited as 15A NCAC 03O .0112 and amend the
rules cited as 15A NCAC 03J .0304; 03M .0202; 03O .0101,
.0402, .0404, .0501, .0503; 03Q .0107.
Proposed Effective Date: July 1, 2008
Public Hearing:
Date: February 19, 2008, Tuesday
Time: 7:00 p.m.
Location: DENR Regional Office, 942 Washington Square Mall,
Washington, NC 27889
Public Hearing:
Date: February 21, 2008, Thursday
Time: 7:00 p.m.
Location: UNCW Center for Marine Science, 5600 Marvin K.
Moss Lane, Wilmington, NC 28409
Reason for Proposed Action:
15A NCAC 03J .0304 – Amendments to this rule are proposed
to create a season for the use of electrical fishing devices in joint
waters of the Cape Fear River, in order to protect sunfish
populations.
15A NCAC 03M .0202 – The 2004 Estuarine Striped Bass
Fishery Management Plan was approved by the Marine
Fisheries Commission and the Wildlife Resources Commission,
with an allowance for additional data collection for determining
measures to address two specific management actions in the
Central Southern Management Area. These management
actions are to reduce mortality in the recreational fishery and to
reduce discards in the commercial large mesh gill net fishery.
In response to the results of the additional data collected,
amendments to this rule are proposed to help conserve available
spawning stock of striped bass to rebuild the population of the
species.
15A NCAC 03O .0101 – General Statute 113-174.3, regarding
the For Hire Blanket Coastal Recreational Fishing License, was
modified. This modification requires a change in the current
rule in order to clarify certifications that for-hire boat captains
must possess and documentation requirements that for-hire boat
captains must meet when applying for a For Hire Blanket
Coastal Recreational Fishing License.
15A NCAC 03O .0112 – General Statute 113-174.3, regarding
the For Hire Blanket Coastal Recreational Fishing License, was
modified. In response, this rule is proposed for adoption in
order to clarify all license requirements that a for-hire vessel
operator must meet and all conditions that a for-hire vessel
operator must abide when engaged in for-hire recreational
fishing activities.
15A NCAC 03O .0402, .0404 – The Fisheries Reform Act (FRA)
of 1997 placed a cap on the number of Standard Commercial
Fishing Licenses (SCFLs) available to new entrants. In
response, the Marine Fisheries Commission (MFC) created a
License Eligibility Board. The Board may approve an
application for a SCFL if certain criteria are met by the
applicant that demonstrate participation in the commercial
fishing industry. Since there is a limited number of SCFLs they
have acquired a monetary value. Often when individuals
transfer a SCFL they are financially compensated by the person
receiving the license. Over the last two years there has been an
increase in the number of short-term transfers of SCFLs. The
majority of these licenses are acquired for the purpose of sale
and thus do not meet the spirit of the FRA or the intent of the
MFC. Amendments to these rules are needed to address the
transfer of SCFLs obtained through the License Eligibility
Board.
15A NCAC 03O .0501 – Proclamation M-12-2006 mandates a
For Hire Fishing Permit for vessels that do not possess a For
Hire Blanket Coastal Recreational Fishing License for the
number of persons on the vessel engaged in for-hire fishing. The
proclamation outlines the requirements to obtain the For Hire
Fishing Permit. This rule is proposed for amendment to move
the For Hire Fishing Permit from proclamation to permanent
rule.
15A NCAC 03O .0503 – Proclamation M-12-2006 mandates a
For Hire Fishing Permit for vessels that do not possess a For
Hire Blanket Coastal Recreational Fishing License for the
number of persons on the vessel engaged in for-hire fishing. The
proclamation outlines the specific conditions permitted persons
must abide. This rule is proposed for amendment to move the
For Hire Fishing Permit specific conditions from proclamation
to permanent rule.
15A NCAC 03Q .0107 – The 2004 Estuarine Striped Bass
Fishery Management Plan was approved by the Marine
Fisheries Commission and the Wildlife Resources Commission,
with an allowance for additional data collection for determining
measures to address two specific management actions in the
Central Southern Management Area. These management
actions are to reduce mortality in the recreational fishery and to
reduce discards in the commercial large mesh gill net fishery.
In response to the results of the additional data collected,
amendments to this rule are proposed to help conserve available
spawning stock of striped bass to rebuild the population of the
species. Amendments are also proposed to create an area
closure for the use of electrical fishing devices downstream of
PROPOSED RULES
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1396
the three locks and dams on the Cape Fear River, to address
user conflicts.
Procedure by which a person can object to the agency on a
proposed rule: If you have any objections to the proposed
rules, please forward a typed or handwritten letter indicating
your specific reasons for your objections to the following
address: NC Division of Marine Fisheries, Catherine Blum,
Rulemaking Coordinator, P.O. Box 769, Morehead City, NC
28557
Comments may be submitted to: Catherine Blum, P.O. Box
769, Morehead City, NC 28557, phone (252) 808-8013, fax
(252) 726-0254, email catherine.blum@ncmail.net
Comment period ends: April 1, 2008
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 03 - MARINE FISHERIES
SUBCHAPTER 03J - NETS, POTS, DREDGES, AND
OTHER FISHING DEVICES
SECTION .0300 – POTS, DREDGES, AND OTHER
FISHING DEVICES
15A NCAC 03J .0304 ELECTRICAL FISHING DEVICE
It is lawful unlawful to take catfish by the use of a hand-operated
device generating pulsating electrical current in the Cape Fear
River between except from 800 feet downstream of Lock and
Dam No. 1 in Bladen County downstream to where the Black
River joins the Cape Fear River. River from July 1 to March 1.
Authority G.S. 113-134; 113-182; 143B-289.52.
SUBCHAPTER 03M - FINFISH
SECTION .0200 - STRIPED BASS
15A NCAC 03M .0202 SEASON, SIZE AND HARVEST
LIMIT: INTERNAL COASTAL WATERS
(a) The Fisheries Director may, by proclamation, impose any or
all the following restrictions on the taking of striped bass in a
commercial fishing operation or for recreational purposes in
internal coastal waters: waters during the period from October 1
through April 30:
(1) Specify season or seasons: fishing days and
times,
(A) for recreational purposes;
(B) for commercial fishing operations
from October 1 through April 30,
(2) Specify areas, but shall not include coastal
waters of the Cape Fear River,
(3) Specify quantity, except possession shall not
exceed:
(a) more than three fish in any one day in
the Albemarle Sound Management
Area as designated in 15A NCAC
03R .0201, and
(b) more than two fish in any one day in
the joint and coastal fishing waters of
the Central Southern Management
Area as designated in 15A NCAC
03R .0201.
(4) Specify means/methods,
(5) Specify size, but the minimum size specified
shall not be less than 18 inches total length,
and
(6) Require submission of statistical and
biological data.
Fish that do not meet the minimum size limit specified by
proclamation shall immediately be returned to the waters from
which taken regardless of condition.
(b) The Fisheries Director may, by proclamation, impose any or
all the following restrictions on the taking of striped bass by
hook-and-line or for recreational purposes in internal coastal
waters in order to comply with the management requirements
incorporated in the North Carolina Estuarine Striped Bass Plan:
(1) Specify quantity, but shall not exceed
possession of more than three fish in any one
day, and
(2) Specify size, but the minimum size specified
shall not be less than 18 inches total length.
Authority G.S. 113-134; 113-182; 113-221; 143B-289.52.
SUBCHAPTER 03O – LICENSES, LEASES AND
FRANCHISES
SECTION .0100 – LICENSES
15A NCAC 03O .0101 PROCEDURES AND
REQUIREMENTS TO OBTAIN LICENSES,
ENDORSEMENTS AND COMMERCIAL FISHING
VESSEL REGISTRATIONS
(a) To obtain any Marine Fisheries licenses, endorsements,
commercial fishing vessel registrations except Recreational
Fishing Tournament Licenses to Sell Fish and Land or Sell
PROPOSED RULES
22:15 NORTH CAROLINA REGISTER FEBRUARY 1, 2008
1397
Licenses, the following information is required for the
application by the licensee, a responsible party or person holding
a power of attorney:
(1) Full name, physical address, mailing address,
date of birth, and signature of the licensee on
the application. If the licensee is not
appearing before a license agent or a
representative of the Division, the licensee's
signature on the application shall be notarized;
(2) Current picture identification of licensee or
responsible party; acceptable forms of picture
identification are driver's license, state
identification card, military identification card,
resident alien card (green card) or passport or
if purchased by mail, a copy thereof;
(3) Certification that the applicant does not have
four or more marine or estuarine resource
violations during the previous three years,
except Blanket Coastal Recreational Fishing
Licenses;
(4) Valid documentation papers or current motor
boat registration or copy thereof when
purchasing a commercial fishing vessel
registration. If an application for transfer of
documentation is pending, a copy of the
pending application and a notarized bill of sale
may be submitted;
(5) Current articles of incorporation and a current
list of corporate officers when purchasing a
license or commercial fishing vessel
registration in a corporate name. In the case of
incorporation of an individual fishing vessel,
the name of the master of that vessel shall also
be specified. It is unlawful to fail to notify the
Morehead City Office of the Division of
Marine Fisheries within five days of change of
the master specified for that vessel;
(6) If a partnership is established by a written
partnership agreement, a current copy of such
agreement shall be provided when purchasing
a license, endorsement or commercial fishing
vessel registration in a partnership name;
(7) For nonresidents, certification of the state of
residency;
(8) In addition to the information required in G.S.
113-169.4, linear length of pier when
purchasing an Ocean Fishing Pier License;
(9) In addition to the information required in G.S.
113-171.1, current aircraft registration and list
of operator(s) when purchasing a Spotter Plane
License;
(10) In addition, for fish dealers licenses, the
physical address of the established location
where business is conducted and, if different,
the address where records are kept;
(11) When purchasing a Fish Dealer License with
clam or oyster categories or a consolidated
license, the applicant shall provide valid
certification as a North Carolina certified
shellfish dealer;
(12) In addition, for the Ocean Fishing Pier Blanket
Coastal Recreation Fishing License, a valid
Ocean Fishing Pier License issued in the name
of the applicant or copy thereof.
(13) In addition, for the For Hire Blanket Coastal
Recreational Fishing License, the applicant
shall provide:
(A) A valid certification from the United
States Coast Guard (USCG) that
allows carrying six or fewer
passengers or a certification from the
USCG that allows carrying more than
six passengers; and
(B) Valid documentation papers or
current motor boat registration or
copies thereof for the vessel engaged
as for-hire. If an application for
transfer of documentation is pending,
a copy of the pending application and
a notarized bill of sale may be
submitted.
(b) License to Land Flounder from the Atlantic Ocean.
(1) To qualify for a License to Land Flounder
from the Atlantic Ocean, the applicant shall:
(A) have landed in North Carolina at least
1,000 pounds of flounder from a
single vessel each year from the
Atlantic Ocean during any two of the
1992-93, 1993-94, 1994-95 license
years for which the person had a
vessel that was licensed to land in
North Carolina; and
(B) have been licensed under G.S. 113-
152 or 113-153 during any two of the
1992-93, 1993-94, or 1994-95 license
years; and
(C) hold a valid Standard or Retired
Standard Commercial Fishing
License or valid Land or Sell License.
(2) It is lawful for a person to hold Licenses to
Land Flounder from the Atlantic Ocean equal
to the number of vessels that he owns that
individually met the eligibility requirements of
Parts (b)(1)(A) and (b)(1)(B) of this Rule.
(3) The License to Land Flounder from the
Atlantic Ocean is only valid when used on the
vessel specified at the time of license issuance.
(4) At the time of issuance, the applicant for the
License to Land Flounder from the Atlantic
Ocean shall specify the name of the master of
the vessel for