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This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER VOLUME 22 ● ISSUE 14 ● Pages 1304 - 1359 January 15, 2008 I. IN ADDITION Notice of Verbatim Adoption of Federal Standards ........................................... 1304 Model State Administrative Procedure Act Revision Process............................ 1305 Brownfields Property – Historic Preservation Foundation of NC ...................... 1306 Brownfields Property – M.H.O.C., LLC ............................................................ 1307 Brownfields Property – Tower Investments, LLC.............................................. 1308 II. PROPOSED RULES Agriculture and Consumer Services, Department of Gasoline and Oil Inspection Board ................................................................. 1309 – 1315 Health and Human Services, Department of Child Care Commission.................................................................................. 1315 – 1320 Medical Care Commission.............................................................................. 1320 – 1321 MH/DD/SAS, Commission for ....................................................................... 1321 – 1322 Public Health, Commission............................................................................. 1322 Social Services, Commission .......................................................................... 1322 – 1323 Labor, Department Department...................................................................................................... 1323 – 1324 Occupational Licensing Boards and Commissions Dental Examiners, Board of............................................................................ 1324 – 1327 State Personnel State Personnel Commission........................................................................... 1327 – 1332 III. TEMPORARY RULES Health and Human Services, Department of Health Service Regulation, Division of........................................................... 1333 – 1334 IV. CONTESTED CASE DECISIONS Index to ALJ Decisions ...................................................................................... 1335 – 1339 Text of ALJ Decisions 07 EDC 0319................................................................................................... 1340 – 1359 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. IN ADDITION 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1304 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. North Carolina Department of Labor Division of Occupational Safety and Health 4 West Edenton Street Raleigh, NC 27601 (919) 807-2875 NOTICE OF VERBATIM ADOPTION OF FEDERAL STANDARDS In consideration of G.S. 150-B-21.5(c) the Occupational Safety and Health Division of the Department of Labor hereby gives notice that: - rule changes have been submitted to update the North Carolina Administrative Code at 13 NCAC 07F .0101, 13 NCAC 07F .0201, 13 NCAC 07F .0501, and 13 NCAC 07F .0502 to incorporate by reference the occupational safety and health related provisions of Title 29 of the Code of Federal Regulations Parts 1910, 1915, 1917, and 1926 promulgated as of November 15, 2007, except as specifically described, and - the North Carolina Administrative Code at 13 NCAC 07A .0301 automatically includes amendments to certain parts of the Code of Federal Regulations, including Title 29, Part 1904—Recording and Reporting Occupational Injuries and Illnesses. This update encompasses recent verbatim adoptions that are effective February 13, 2008 and must be implemented by industry by or before May 15, 2008 concerning: - Employer Payment for Personal Protective Equipment (72 FR 64342 - 64430, November 15, 2007) The Federal Register (FR), as cited above, contains both technical and economic discussions that explain the basis for each change. For additional information, please contact: Bureau of Education, Training and Technical Assistance Occupational Safety and Health Division North Carolina Department of Labor 1101 Mail Service Center Raleigh, North Carolina 27699-1101 For additional information regarding North Carolina's process of adopting federal OSHA Standards verbatim, please contact: A. John Hoomani, General Counsel North Carolina Department of Labor Legal Affairs Division 1101 Mail Service Center Raleigh, NC 27699-1101 IN ADDITION 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1305 Model State Administrative Procedure Act Revision Process -- Invitation to Participate The National Conference of Commissioners on Uniform State Laws (NCCUSL) is revising its Model State Administrative Procedure Act (MSAPA). NCCUSL invites organizations and individuals interested in state administrative agency processes to participate in this effort. NCCUSL is a 117 year old national organization of lawyers, judges and law professors who are appointed to represent their states in drafting and seeking enactment of uniform laws to facilitate commerce and certainty in the law among the states. For more information about NCCUSL, visit http://www.nccusl.org/. The goal of the MSAPA drafting committee is to make the administrative process more efficient, accessible and fair. The most recent draft of MSAPA is available at http://www.nccusl.org/Update/CommitteeSearchResults.aspx?committee=234. The drafting process will not be completed until the spring of 2009. The MSAPA drafting committee invites interested parties to attend committee meetings as an observer and make comments and suggestions at the meetings or by submitting them in writing. To become an observer, please contact Ms. Leang Sou at NCCUSL at (312) 450-6606 or at leang.sou@nccusl.org . Submit written comments about the MSAPA to Commissioner Francis J. Pavetti, 18 The Strand, Goshen Point, Waterford, CT 06385. IN ADDITION 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1306 SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY The Historic Preservation Foundation of North Carolina, Inc. Pursuant to N.C.G.S. 130A-310.34, The Historic Preservation Foundation of North Carolina, Inc. has filed with the North Carolina Department of Environment and Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Burlington, Alamance County, North Carolina. Among other past activities, the Property is the site of the former Glencoe Mill, and consists of approximately 6.5 acres at 2362 River Road. Environmental contamination exists on the Property in soil, groundwater and stream sediment. The Historic Preservation Foundation of North Carolina, Inc. has committed itself to sell the Property for redevelopment for mixed commercial, office, light industrial, storage/warehouse, institutional and/or residential use. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and The Historic Preservation Foundation of North Carolina, Inc., 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 Burlington City Hall, 425 Lexington Ave., Burlington, NC 27215 by contacting Jondeen Terry, City Clerk at (336) 222-5023, or via email at jterry@ci.burlington.nc.us; or at the offices of the N.C. Brownfields Program, 401 Oberlin Rd., Suite 150, Raleigh, NC 27605 (where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents) 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 The Historic Preservation Foundation of North Carolina, Inc., 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 January 16, 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 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1307 SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY M.H.O.C., LLC Pursuant to N.C.G.S. 130A-310.34, M.H.O.C., 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 Charlotte, Mecklenburg County, North Carolina. The Property, which is the former site of a Dixie Trucking Company facility, comprises approximately 16.25 acres and is located at 3600 North Graham Street. Environmental contamination exists on the Property in groundwater. M.H.O.C., LLC has committed itself to redevelopment of the Property for no uses other than as a trucking terminal or for other industrial purposes. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and M.H.O.C., 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 Public Library of Charlotte & Mecklenburg County, 310 N. Tryon St., Charlotte, NC 28202 by contacting Allison Aiken at that address or at (704) 336-2725; or at the offices of the N.C. Brownfields Program, 401 Oberlin Rd., Suite 150, Raleigh, NC 27605 (where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents) 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 M.H.O.C., 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 January 16, 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 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1308 SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY Tower Investments, LLC Pursuant to N.C.G.S. 130A-310.34, Tower Investments, 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 Greensboro, Guilford County, North Carolina. The Property, the site of a former Guilford Mills plant among other operations, consists of approximately 30.24 acres and is located at 5644 Hornaday Road. Environmental contamination exists on the Property in soil and groundwater. Tower Investments, LLC has committed itself to initially redevelop the Brownfields Property for light industrial uses, such as warehousing or light manufacturing, possibly followed, within three (3) to five (5) years, by mixed retail/office redevelopment (rezoning allowing). The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and Tower Investments, 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 Greensboro Central Library, 219 North Church Street in Greensboro, North Carolina 27402-3178 by contacting Frank Barefoot in Information Services at (336) 373-2471; or at the offices of the N.C. Brownfields Program, 401 Oberlin Rd., Suite 150, Raleigh, NC 27605 (where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents) 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 Tower Investments, 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 January 16, 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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1309 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 02 – DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES Notice is hereby given in accordance with G.S. 150B-21.2 that the NC Gasoline and Oil Inspection Board intends to amend the rules cited as 02 NCAC 42 .0102, .0201, .0301, .0401, .0501 and repeal the rules cited as 02 NCAC 42 .0801 - .0806. Proposed Effective Date: May 1, 2008 Public Hearing: Date: March 18, 2008 Time: 10:00 a.m. Location: W. Donald Eaddy Bldg., 4300 Reedy Creek Road, Raleigh, NC 27607 Reason for Proposed Action: The proposed rule changes would: add specifications for biodiesel, E85, and premium diesel, along with definitions and labeling requirements; update existing specifications for motor fuels; clarify or remove ambiguous language; and delete unnecessary rules pertaining to oxygenated gasoline. Procedure by which a person can object to the agency on a proposed rule: Any person may object to the proposed rules by submitting a written statement of objection(s) to Stephen Benjamin, Secretary, NC Gasoline and Oil Inspection Board, 1050 Mail Service Center, Raleigh, NC 27699-1050. Comments may be submitted to: Stephen Benjamin, 1050 Mail Service Center, Raleigh, NC 27699-1050, phone (919) 733-3313, fax (919) 715-0524, email steve.benjamin@ncmail.net Comment period ends: The comment period ends at the conclusion of the public hearing on March 18, 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 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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1310 (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. (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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1311 (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 (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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1312 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. (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; PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1313 (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: (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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1314 (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 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: PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1315 "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. (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 Notice is hereby given in accordance with G.S. 150B-21.2 that the NC Child Care Commission intends to amend the rules cited as 10A NCAC 09 .0705, .1705, .1721, .2318 and repeal the rule cited as 10A NCAC 09 .2511. Proposed Effective Date: July 1, 2008 Public Hearing: Date: February 7, 2008 Time: 11:00 a.m. – 12:00 p.m. Location: NC Division of Child Development, 319 Chapanoke Road, Suite 120, Raleigh, NC PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1316 Reason for Proposed Action: The NC Child Care Commission proposes to amend rules regarding the requirements for CPR and First Aid training for staff of child care centers and child care homes. Many of the approved training organizations now offer two year certifications for CPR and First Aid. The proposed rules would now match with the issuing and renewing agencies time frames, but never allow for more than two years for CPR or three years for First Aid in which a certificate would have to be issued or renewed. 10A NCAC 09 .1721 and .2318 (Records Retention) – These Rules are being amended to make the retention schedule for family child care homes consistent with the schedule for child care centers. These amendments will simplify the record retention time periods by reducing the number of different retention rules, and will combine all retention schedules into one rule. The amendments will also provide retention schedules for forms that do not currently have them. 10A NCAC 09 .2511 – This Rule is scheduled to be repealed due to lack of necessity. Aquatic activities for all children in child care are addressed in Rule .1403, therefore this Rule is no longer needed. Procedure by which a person can object to the agency on a proposed rule: Anyone wishing to comment on these proposed rules or would like to request copies of the rules, should contact Dedra Alston, Rule-making Coordinator, NC Division of Child Development, 2201 Mail Service Center, Raleigh, NC 27699- 2201, at (919) 890-7060 or Dedra.Alston@ncmail.net. Written comments will be accepted through March 17, 2008. Oral comments may be made during the public hearing. The Commission Chair may impose time limits for oral remarks. Comments may be submitted to: Dedra Alston, 2201 Mail Service Center, Raleigh, NC 27699-2201, phone (919) 890- 7060, fax (919) 662-4568, email Dedra.Alston@ncmail.net Comment period ends: March 17, 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 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 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 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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1317 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. 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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1318 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; (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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1319 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 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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1320 (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. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the NC Medical Care Commission intends to amend the rule cited as 10A NCAC 13D .2210. Proposed Effective Date: July 1, 2008 Public Hearing: Date: March 5, 2008 Time: 10:00 a.m. Location: Room 201 Council Building, NC Division of Health Service Regulation, Dorothea Dix Campus, 701 Barbour Drive, Raleigh, NC 27603 Reason for Proposed Action: The Health Care Personnel Registry regulations were updated to require providers to report within 24 hours all allegations against health care personnel as defined in G.S. 131E-256(a)(1). The proposed amendment to the Nursing Home rules will reflect similar language to maintain consistency with the law and regulations within the Division. In addition, SB 56 of SL 2007 expanded the types of employees, by provider type, the Health Care Personnel Registry can investigate. This rule amendment assures anyone with a substantiated finding on the NC Health Care Personnel Registry will not be employed in a nursing home. Procedure by which a person can object to the agency on a proposed rule: An individual may object to the agency on the proposed rule by submitting written comments on the proposed rule. They may also object by attending the public hearing and personally voice their objections during that time. Comments may be submitted to: Nadine Pfeiffer, 2701 Mail Service Center, Raleigh, NC 27699-2701, phone (919) 855- 3758, fax (919) 733-2757, email Nadine.Pfeiffer@ncmail.net Comment period ends: March 17, 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 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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1321 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. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission for MH/DD/SAS intends to amend the rule cited as 10A NCAC 28C .0201. Proposed Effective Date: August 1, 2008 Instructions on How to Demand a Public Hearing: (must be requested in writing within 15 days of notice): A person may demand a public hearing on the proposed rules by submitting a request in writing to W. Denise Baker, 3018 Mail Service Center, Raleigh, NC 27699-3018 Reason for Proposed Action: Currently the buildings at all State operated facilities are smoke-free. Although there are limitations on the locations where smoking can take place on campus, tobacco smoking remains prevalent among patients/residents and staff. As such, smoking continues to impose health risks to those who smoke and those who do not. Smoking interferes with patient recovery/ habilitation and factors into aggressive behavior. In order to eliminate these negative factors smoking will no longer have a role in the treatment/ habilitative setting and open the door to improved patient/resident and staff health. Procedure by which a person can object to the agency on a proposed rule: The objection, reasons for the objection and the clearly identified portion of the rule to which the objection pertains, may be submitted in writing to W. Denise Baker, 3018 Mail Service Center, Raleigh, NC 27699-3018. Comments may be submitted to: W. Denise Baker, 3018 Mail Service Center, Raleigh, NC 27699-3018, phone (919) 715- 2780, fax (919) 733-1221, email denise.w.baker@ncmail.net Comment period ends: March 17, 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 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 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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1322 Authority G.S. 122C-51; 131E-67; 143B-147. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission for Public Health intends to amend the rule cited as 10A NCAC 46 .0301. Proposed Effective Date: August 1, 2008 Public Hearing: Date: April 30, 2008 Time: 2:00 p.m. Location: Cardinal Room, 5605 Six Forks Road, Raleigh, NC 27609 Reason for Proposed Action: The current rule identifies only one accrediting body for baccalaureate schools of nursing, but since that rule was adopted a second nationally recognized accrediting body for baccalaureate schools of nursing has been established. The amendment add the second nationally recognized accrediting body to the rule. Procedure by which a person can object to the agency on a proposed rule: Objections may be submitted in writing to Chris G. Hoke, JD, the Rule-making Coordinator, during the public comment period. Additionally, objections may be made verbally and in writing at the public hearing for this rule. Comments may be submitted to: Chris G. Hoke, JD, 1931 MSC, Raleigh, NC 27699-1931, phone (919) 707-5006, email chris.hoke@ncmail.net Comment period ends: April 30, 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 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. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Social Services Commission intends to amend the rule cited as 10A NCAC 67A .0107. Proposed Effective Date: May 1, 2008 Public Hearing: Date: March 19, 2008 Time: 10:00 a.m. Location: Albemarle Building, Conference Room 832 (8th Floor), 325 Salisbury Street, Raleigh, NC Reason for Proposed Action: North Carolina Identity Theft Protection Act mandates that Social Security Numbers cannot be imbedded in any kind of number issued for recipients to receive benefits. Procedure by which a person can object to the agency on a proposed rule: By submitting your objection in writing to Lisa Johnson, Division of Social Services, 2401 Mail Service Center, Raleigh, NC 27699-2401 or email lisa.johnson@ncmail.net and by telephone (919) 733-3055. Comments may be submitted to: Lisa Johnson, APA Rulemaking Coordinator, Division of Social Services, 2401 Mail Service Center, Raleigh, NC 27699-2401, phone (919) 733- 3055, fax (919) 733-9386, email lisa.johnson@ncmail.net PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1323 Comment period ends: March 19, 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 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 Notice is hereby given in accordance with G.S. 150B-21.2 that the NC Department of Labor intends to repeal the rule cited as 13 NCAC 07F .0104. Proposed Effective Date: May 1, 2008 Public Hearing: Date: February 4, 2008 Time: 10:00 a.m. Location: 4 W. Edenton Street, Raleigh, N.C. – Labor Building- Room 205 Reason for Proposed Action: On November 15, 2007, in 72 FR 64342 - 64430, OSHA published a final rule to update its Employer Payment for Personal Protective Equipment. The provisions in OSHA standards that require PPE generally state that the employer is to provide such PPE. However, some of these provisions did not specify that that employer is to provide such PPE at no cost to the employee. The new federal rule stipulates that the employer must pay for required PPE, except in the limited cases specified in the standard. North Carolina is a state plan state and 13 NCAC 07F .0104 is now rendered less effective than the new standard promulgated by OSHA. Due to this, the repeal of 13 NCAC 07F .0104 is necessary in order for North Carolina's Occupational Safety and Health program to remain as effective as the federal program and to maintain North Carolina's state plan status under the federal Occupational Safety and Health Act of 1970. The verbatim adoption of the federal rule implementing OSHA's new standard will be effective February 13, 2008. Procedure by which a person can object to the agency on a proposed rule: Objections to the proposed rule may be submitted, in writing, to Erin T. Gould, Assistant Rulemaking Coordinator, via United States mail at the following address: 1101 Mail Service Center, Raleigh, North Carolina 27699- 1101; or via facsimile at (919) 733-4235. Objections may also be submitted during the public hearing conducted on this rule, which is noticed above. Objections shall include the specific rule citation(s) for the objectionable rule(s), the nature of the objection(s), and the complete name(s) and contact information for the individual(s) submitting the objection. Objections must be received by 5:00 p.m. on March 17, 2008. Comments may be submitted to: Erin T. Gould, 1101 Mail Service Center, Raleigh, NC 27699-1101, phone (919) 733- 7885, fax (919) 733-4235, email erin.gould@nclabor.com Comment period ends: March 17, 2008 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1324 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 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. TITLE 21 – OCCUPATIONAL LICENSING BOARDS AND COMMISSIONS CHAPTER 16 – DENTAL EXAMINERS Notice is hereby given in accordance with G.S. 150B-21.2 that the NC State Board of Dental Examiners intends to amend the rules cited as 21 NCAC 16G .0101, .0103; 16H .0203; 16I .0104; 16R .0106. Proposed Effective Date: June 1, 2008 Public Hearing: Date: February 7, 2008 Time: 7:00 p.m. Location: Dental Board Office, 507 Airport Boulevard, Suite 105, Morrisville, NC 27560 Reason for Proposed Action: 21 NCAC 16G .0101 – is proposed for amendment to provide that dental hygienists may, upon proper delegation by a dentist, take impressions for night guards and for the repair of dentures. 21 NCAC 16G .0103 – to clarify that hygienists may make impressions as permitted by 21 NCAC 16G .0101. 21 NCAC 16H .0203 – is provided for amendment to provide that Dental Assistant II may, upon proper delegation and supervision by a dentist, take impressions for night guards and the repair of dentures. 21 NCAC 16I .0104 – is proposed for amendment to provide that a hygienist who works at least 20 hours per week in certain educational or governmental institutions may receive 2 hours of continuing education credit annually for such work. 21 NCAC 16R .0106 – is proposed for amendment to provide that a dentist who works at least 20 hours per week in certain educational or governmental institutions may receive 5 hours continuing education credit per year for such work. Procedure by which a person can object to the agency on a proposed rule: Comments to Bobby D. White, Chief Operations Officer, NC Dental Board, 507 Airport Boulevard, Suite 105, Morrisville, NC 27560, phone (919) 678-8223. Comments may be submitted to: Carolin Bakewell, 507 Airport Boulevard, Suite 105, Morrisville, NC 27560 Comment period ends: April 7, 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 SUBCHAPTER 16G – DENTAL HYGIENISTS SECTION .0100 – DENTAL HYGIENISTS PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1325 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: (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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1326 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 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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1327 (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 Notice is hereby given in accordance with G.S. 150B-21.2 that the State Personnel Commission intends to adopt the rules cited as 25 NCAC 01C .0414; 01I .2006 and amend the rules cited as 25 NCAC 01C .0215; 01H .0701, .1102-.1104, 01I .2002, .2301. Proposed Effective Date: June 1, 2008 Public Hearing: Date: February 20, 2008 Time: 10:00 a.m. Location: Office of State Personnel Conference Room, Administration Building, 116 West Jones Street 3rd Floor, Raleigh, NC. Reason for Proposed Action: 25 NCAC 01C .0215 – To amend the rule on Employment Contracts to allow an agency to require repayment of a portion of the cost for optional training if the employee does not remain employed with the agency for a predetermined length of time. The employee would be informed of this requirement in writing along with details about the amount of time required to work and the expected amount of the repayment. 25 NCAC 01C .0414 – To adopt a rule to define a type of appointment that will allow a contractual arrangement with individuals in professional/technical/highly specialized or difficult to recruit areas. The employees are not deemed to be independent contractors under the applicable IRS regulations and, therefore, must be paid on a payroll. 25 NCAC 01H .0701, .1102-.1104 – These amendments are made to conform to legislative changes (HB 1412) to G.S. 128- 15 and G.S. 126-82 which were approved by the 2007 General Assembly. 25 NCAC 01I .2002, .2006, .2301 – Rule adoption and amendment to implement changes (Senate Bill 1023) made to the State Personnel Act by the 2007 Legislature. Procedure by which a person can object to the agency on a proposed rule: A person may object to these proposed rules by one of the following methods: (1) A written letter to Peggy Oliver, HR Policy Administrator, Office of State Personnel, 1331 Mail Service Center, Raleigh, NC 27699-1331; (2) an email to peggy.oliver@ncmail.net: (3) or a telephone call to Peggy Oliver at (919)807-4832. Comments may be submitted to: Peggy Oliver, 1331 Mail Service Center, Raleigh, NC 27699-1331, phone (919)807-4832, fax (919)715-9750, email peggy.oliver@ncmail.net. Comment period ends: March 17, 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 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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1328 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 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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1329 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 (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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1330 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 qualifica
Object Description
Description
Title | North Carolina register |
Date | 2008-01-15 |
Description | Volume 22, Issue 14, (January 15, 2008) |
Digital Characteristics-A | 7 MB; 60 p. |
Digital Format |
application/pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_borndigital\images_master\ |
Full Text | This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER VOLUME 22 ● ISSUE 14 ● Pages 1304 - 1359 January 15, 2008 I. IN ADDITION Notice of Verbatim Adoption of Federal Standards ........................................... 1304 Model State Administrative Procedure Act Revision Process............................ 1305 Brownfields Property – Historic Preservation Foundation of NC ...................... 1306 Brownfields Property – M.H.O.C., LLC ............................................................ 1307 Brownfields Property – Tower Investments, LLC.............................................. 1308 II. PROPOSED RULES Agriculture and Consumer Services, Department of Gasoline and Oil Inspection Board ................................................................. 1309 – 1315 Health and Human Services, Department of Child Care Commission.................................................................................. 1315 – 1320 Medical Care Commission.............................................................................. 1320 – 1321 MH/DD/SAS, Commission for ....................................................................... 1321 – 1322 Public Health, Commission............................................................................. 1322 Social Services, Commission .......................................................................... 1322 – 1323 Labor, Department Department...................................................................................................... 1323 – 1324 Occupational Licensing Boards and Commissions Dental Examiners, Board of............................................................................ 1324 – 1327 State Personnel State Personnel Commission........................................................................... 1327 – 1332 III. TEMPORARY RULES Health and Human Services, Department of Health Service Regulation, Division of........................................................... 1333 – 1334 IV. CONTESTED CASE DECISIONS Index to ALJ Decisions ...................................................................................... 1335 – 1339 Text of ALJ Decisions 07 EDC 0319................................................................................................... 1340 – 1359 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. IN ADDITION 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1304 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. North Carolina Department of Labor Division of Occupational Safety and Health 4 West Edenton Street Raleigh, NC 27601 (919) 807-2875 NOTICE OF VERBATIM ADOPTION OF FEDERAL STANDARDS In consideration of G.S. 150-B-21.5(c) the Occupational Safety and Health Division of the Department of Labor hereby gives notice that: - rule changes have been submitted to update the North Carolina Administrative Code at 13 NCAC 07F .0101, 13 NCAC 07F .0201, 13 NCAC 07F .0501, and 13 NCAC 07F .0502 to incorporate by reference the occupational safety and health related provisions of Title 29 of the Code of Federal Regulations Parts 1910, 1915, 1917, and 1926 promulgated as of November 15, 2007, except as specifically described, and - the North Carolina Administrative Code at 13 NCAC 07A .0301 automatically includes amendments to certain parts of the Code of Federal Regulations, including Title 29, Part 1904—Recording and Reporting Occupational Injuries and Illnesses. This update encompasses recent verbatim adoptions that are effective February 13, 2008 and must be implemented by industry by or before May 15, 2008 concerning: - Employer Payment for Personal Protective Equipment (72 FR 64342 - 64430, November 15, 2007) The Federal Register (FR), as cited above, contains both technical and economic discussions that explain the basis for each change. For additional information, please contact: Bureau of Education, Training and Technical Assistance Occupational Safety and Health Division North Carolina Department of Labor 1101 Mail Service Center Raleigh, North Carolina 27699-1101 For additional information regarding North Carolina's process of adopting federal OSHA Standards verbatim, please contact: A. John Hoomani, General Counsel North Carolina Department of Labor Legal Affairs Division 1101 Mail Service Center Raleigh, NC 27699-1101 IN ADDITION 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1305 Model State Administrative Procedure Act Revision Process -- Invitation to Participate The National Conference of Commissioners on Uniform State Laws (NCCUSL) is revising its Model State Administrative Procedure Act (MSAPA). NCCUSL invites organizations and individuals interested in state administrative agency processes to participate in this effort. NCCUSL is a 117 year old national organization of lawyers, judges and law professors who are appointed to represent their states in drafting and seeking enactment of uniform laws to facilitate commerce and certainty in the law among the states. For more information about NCCUSL, visit http://www.nccusl.org/. The goal of the MSAPA drafting committee is to make the administrative process more efficient, accessible and fair. The most recent draft of MSAPA is available at http://www.nccusl.org/Update/CommitteeSearchResults.aspx?committee=234. The drafting process will not be completed until the spring of 2009. The MSAPA drafting committee invites interested parties to attend committee meetings as an observer and make comments and suggestions at the meetings or by submitting them in writing. To become an observer, please contact Ms. Leang Sou at NCCUSL at (312) 450-6606 or at leang.sou@nccusl.org . Submit written comments about the MSAPA to Commissioner Francis J. Pavetti, 18 The Strand, Goshen Point, Waterford, CT 06385. IN ADDITION 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1306 SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY The Historic Preservation Foundation of North Carolina, Inc. Pursuant to N.C.G.S. 130A-310.34, The Historic Preservation Foundation of North Carolina, Inc. has filed with the North Carolina Department of Environment and Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Burlington, Alamance County, North Carolina. Among other past activities, the Property is the site of the former Glencoe Mill, and consists of approximately 6.5 acres at 2362 River Road. Environmental contamination exists on the Property in soil, groundwater and stream sediment. The Historic Preservation Foundation of North Carolina, Inc. has committed itself to sell the Property for redevelopment for mixed commercial, office, light industrial, storage/warehouse, institutional and/or residential use. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and The Historic Preservation Foundation of North Carolina, Inc., 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 Burlington City Hall, 425 Lexington Ave., Burlington, NC 27215 by contacting Jondeen Terry, City Clerk at (336) 222-5023, or via email at jterry@ci.burlington.nc.us; or at the offices of the N.C. Brownfields Program, 401 Oberlin Rd., Suite 150, Raleigh, NC 27605 (where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents) 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 The Historic Preservation Foundation of North Carolina, Inc., 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 January 16, 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 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1307 SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY M.H.O.C., LLC Pursuant to N.C.G.S. 130A-310.34, M.H.O.C., 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 Charlotte, Mecklenburg County, North Carolina. The Property, which is the former site of a Dixie Trucking Company facility, comprises approximately 16.25 acres and is located at 3600 North Graham Street. Environmental contamination exists on the Property in groundwater. M.H.O.C., LLC has committed itself to redevelopment of the Property for no uses other than as a trucking terminal or for other industrial purposes. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and M.H.O.C., 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 Public Library of Charlotte & Mecklenburg County, 310 N. Tryon St., Charlotte, NC 28202 by contacting Allison Aiken at that address or at (704) 336-2725; or at the offices of the N.C. Brownfields Program, 401 Oberlin Rd., Suite 150, Raleigh, NC 27605 (where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents) 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 M.H.O.C., 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 January 16, 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 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1308 SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY Tower Investments, LLC Pursuant to N.C.G.S. 130A-310.34, Tower Investments, 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 Greensboro, Guilford County, North Carolina. The Property, the site of a former Guilford Mills plant among other operations, consists of approximately 30.24 acres and is located at 5644 Hornaday Road. Environmental contamination exists on the Property in soil and groundwater. Tower Investments, LLC has committed itself to initially redevelop the Brownfields Property for light industrial uses, such as warehousing or light manufacturing, possibly followed, within three (3) to five (5) years, by mixed retail/office redevelopment (rezoning allowing). The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and Tower Investments, 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 Greensboro Central Library, 219 North Church Street in Greensboro, North Carolina 27402-3178 by contacting Frank Barefoot in Information Services at (336) 373-2471; or at the offices of the N.C. Brownfields Program, 401 Oberlin Rd., Suite 150, Raleigh, NC 27605 (where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents) 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 Tower Investments, 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 January 16, 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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1309 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 02 – DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES Notice is hereby given in accordance with G.S. 150B-21.2 that the NC Gasoline and Oil Inspection Board intends to amend the rules cited as 02 NCAC 42 .0102, .0201, .0301, .0401, .0501 and repeal the rules cited as 02 NCAC 42 .0801 - .0806. Proposed Effective Date: May 1, 2008 Public Hearing: Date: March 18, 2008 Time: 10:00 a.m. Location: W. Donald Eaddy Bldg., 4300 Reedy Creek Road, Raleigh, NC 27607 Reason for Proposed Action: The proposed rule changes would: add specifications for biodiesel, E85, and premium diesel, along with definitions and labeling requirements; update existing specifications for motor fuels; clarify or remove ambiguous language; and delete unnecessary rules pertaining to oxygenated gasoline. Procedure by which a person can object to the agency on a proposed rule: Any person may object to the proposed rules by submitting a written statement of objection(s) to Stephen Benjamin, Secretary, NC Gasoline and Oil Inspection Board, 1050 Mail Service Center, Raleigh, NC 27699-1050. Comments may be submitted to: Stephen Benjamin, 1050 Mail Service Center, Raleigh, NC 27699-1050, phone (919) 733-3313, fax (919) 715-0524, email steve.benjamin@ncmail.net Comment period ends: The comment period ends at the conclusion of the public hearing on March 18, 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 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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1310 (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. (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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1311 (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 (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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1312 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. (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; PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1313 (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: (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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1314 (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 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: PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1315 "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. (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 Notice is hereby given in accordance with G.S. 150B-21.2 that the NC Child Care Commission intends to amend the rules cited as 10A NCAC 09 .0705, .1705, .1721, .2318 and repeal the rule cited as 10A NCAC 09 .2511. Proposed Effective Date: July 1, 2008 Public Hearing: Date: February 7, 2008 Time: 11:00 a.m. – 12:00 p.m. Location: NC Division of Child Development, 319 Chapanoke Road, Suite 120, Raleigh, NC PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1316 Reason for Proposed Action: The NC Child Care Commission proposes to amend rules regarding the requirements for CPR and First Aid training for staff of child care centers and child care homes. Many of the approved training organizations now offer two year certifications for CPR and First Aid. The proposed rules would now match with the issuing and renewing agencies time frames, but never allow for more than two years for CPR or three years for First Aid in which a certificate would have to be issued or renewed. 10A NCAC 09 .1721 and .2318 (Records Retention) – These Rules are being amended to make the retention schedule for family child care homes consistent with the schedule for child care centers. These amendments will simplify the record retention time periods by reducing the number of different retention rules, and will combine all retention schedules into one rule. The amendments will also provide retention schedules for forms that do not currently have them. 10A NCAC 09 .2511 – This Rule is scheduled to be repealed due to lack of necessity. Aquatic activities for all children in child care are addressed in Rule .1403, therefore this Rule is no longer needed. Procedure by which a person can object to the agency on a proposed rule: Anyone wishing to comment on these proposed rules or would like to request copies of the rules, should contact Dedra Alston, Rule-making Coordinator, NC Division of Child Development, 2201 Mail Service Center, Raleigh, NC 27699- 2201, at (919) 890-7060 or Dedra.Alston@ncmail.net. Written comments will be accepted through March 17, 2008. Oral comments may be made during the public hearing. The Commission Chair may impose time limits for oral remarks. Comments may be submitted to: Dedra Alston, 2201 Mail Service Center, Raleigh, NC 27699-2201, phone (919) 890- 7060, fax (919) 662-4568, email Dedra.Alston@ncmail.net Comment period ends: March 17, 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 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 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 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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1317 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. 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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1318 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; (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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1319 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 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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1320 (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. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the NC Medical Care Commission intends to amend the rule cited as 10A NCAC 13D .2210. Proposed Effective Date: July 1, 2008 Public Hearing: Date: March 5, 2008 Time: 10:00 a.m. Location: Room 201 Council Building, NC Division of Health Service Regulation, Dorothea Dix Campus, 701 Barbour Drive, Raleigh, NC 27603 Reason for Proposed Action: The Health Care Personnel Registry regulations were updated to require providers to report within 24 hours all allegations against health care personnel as defined in G.S. 131E-256(a)(1). The proposed amendment to the Nursing Home rules will reflect similar language to maintain consistency with the law and regulations within the Division. In addition, SB 56 of SL 2007 expanded the types of employees, by provider type, the Health Care Personnel Registry can investigate. This rule amendment assures anyone with a substantiated finding on the NC Health Care Personnel Registry will not be employed in a nursing home. Procedure by which a person can object to the agency on a proposed rule: An individual may object to the agency on the proposed rule by submitting written comments on the proposed rule. They may also object by attending the public hearing and personally voice their objections during that time. Comments may be submitted to: Nadine Pfeiffer, 2701 Mail Service Center, Raleigh, NC 27699-2701, phone (919) 855- 3758, fax (919) 733-2757, email Nadine.Pfeiffer@ncmail.net Comment period ends: March 17, 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 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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1321 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. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission for MH/DD/SAS intends to amend the rule cited as 10A NCAC 28C .0201. Proposed Effective Date: August 1, 2008 Instructions on How to Demand a Public Hearing: (must be requested in writing within 15 days of notice): A person may demand a public hearing on the proposed rules by submitting a request in writing to W. Denise Baker, 3018 Mail Service Center, Raleigh, NC 27699-3018 Reason for Proposed Action: Currently the buildings at all State operated facilities are smoke-free. Although there are limitations on the locations where smoking can take place on campus, tobacco smoking remains prevalent among patients/residents and staff. As such, smoking continues to impose health risks to those who smoke and those who do not. Smoking interferes with patient recovery/ habilitation and factors into aggressive behavior. In order to eliminate these negative factors smoking will no longer have a role in the treatment/ habilitative setting and open the door to improved patient/resident and staff health. Procedure by which a person can object to the agency on a proposed rule: The objection, reasons for the objection and the clearly identified portion of the rule to which the objection pertains, may be submitted in writing to W. Denise Baker, 3018 Mail Service Center, Raleigh, NC 27699-3018. Comments may be submitted to: W. Denise Baker, 3018 Mail Service Center, Raleigh, NC 27699-3018, phone (919) 715- 2780, fax (919) 733-1221, email denise.w.baker@ncmail.net Comment period ends: March 17, 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 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 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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1322 Authority G.S. 122C-51; 131E-67; 143B-147. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission for Public Health intends to amend the rule cited as 10A NCAC 46 .0301. Proposed Effective Date: August 1, 2008 Public Hearing: Date: April 30, 2008 Time: 2:00 p.m. Location: Cardinal Room, 5605 Six Forks Road, Raleigh, NC 27609 Reason for Proposed Action: The current rule identifies only one accrediting body for baccalaureate schools of nursing, but since that rule was adopted a second nationally recognized accrediting body for baccalaureate schools of nursing has been established. The amendment add the second nationally recognized accrediting body to the rule. Procedure by which a person can object to the agency on a proposed rule: Objections may be submitted in writing to Chris G. Hoke, JD, the Rule-making Coordinator, during the public comment period. Additionally, objections may be made verbally and in writing at the public hearing for this rule. Comments may be submitted to: Chris G. Hoke, JD, 1931 MSC, Raleigh, NC 27699-1931, phone (919) 707-5006, email chris.hoke@ncmail.net Comment period ends: April 30, 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 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. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Social Services Commission intends to amend the rule cited as 10A NCAC 67A .0107. Proposed Effective Date: May 1, 2008 Public Hearing: Date: March 19, 2008 Time: 10:00 a.m. Location: Albemarle Building, Conference Room 832 (8th Floor), 325 Salisbury Street, Raleigh, NC Reason for Proposed Action: North Carolina Identity Theft Protection Act mandates that Social Security Numbers cannot be imbedded in any kind of number issued for recipients to receive benefits. Procedure by which a person can object to the agency on a proposed rule: By submitting your objection in writing to Lisa Johnson, Division of Social Services, 2401 Mail Service Center, Raleigh, NC 27699-2401 or email lisa.johnson@ncmail.net and by telephone (919) 733-3055. Comments may be submitted to: Lisa Johnson, APA Rulemaking Coordinator, Division of Social Services, 2401 Mail Service Center, Raleigh, NC 27699-2401, phone (919) 733- 3055, fax (919) 733-9386, email lisa.johnson@ncmail.net PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1323 Comment period ends: March 19, 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 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 Notice is hereby given in accordance with G.S. 150B-21.2 that the NC Department of Labor intends to repeal the rule cited as 13 NCAC 07F .0104. Proposed Effective Date: May 1, 2008 Public Hearing: Date: February 4, 2008 Time: 10:00 a.m. Location: 4 W. Edenton Street, Raleigh, N.C. – Labor Building- Room 205 Reason for Proposed Action: On November 15, 2007, in 72 FR 64342 - 64430, OSHA published a final rule to update its Employer Payment for Personal Protective Equipment. The provisions in OSHA standards that require PPE generally state that the employer is to provide such PPE. However, some of these provisions did not specify that that employer is to provide such PPE at no cost to the employee. The new federal rule stipulates that the employer must pay for required PPE, except in the limited cases specified in the standard. North Carolina is a state plan state and 13 NCAC 07F .0104 is now rendered less effective than the new standard promulgated by OSHA. Due to this, the repeal of 13 NCAC 07F .0104 is necessary in order for North Carolina's Occupational Safety and Health program to remain as effective as the federal program and to maintain North Carolina's state plan status under the federal Occupational Safety and Health Act of 1970. The verbatim adoption of the federal rule implementing OSHA's new standard will be effective February 13, 2008. Procedure by which a person can object to the agency on a proposed rule: Objections to the proposed rule may be submitted, in writing, to Erin T. Gould, Assistant Rulemaking Coordinator, via United States mail at the following address: 1101 Mail Service Center, Raleigh, North Carolina 27699- 1101; or via facsimile at (919) 733-4235. Objections may also be submitted during the public hearing conducted on this rule, which is noticed above. Objections shall include the specific rule citation(s) for the objectionable rule(s), the nature of the objection(s), and the complete name(s) and contact information for the individual(s) submitting the objection. Objections must be received by 5:00 p.m. on March 17, 2008. Comments may be submitted to: Erin T. Gould, 1101 Mail Service Center, Raleigh, NC 27699-1101, phone (919) 733- 7885, fax (919) 733-4235, email erin.gould@nclabor.com Comment period ends: March 17, 2008 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1324 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 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. TITLE 21 – OCCUPATIONAL LICENSING BOARDS AND COMMISSIONS CHAPTER 16 – DENTAL EXAMINERS Notice is hereby given in accordance with G.S. 150B-21.2 that the NC State Board of Dental Examiners intends to amend the rules cited as 21 NCAC 16G .0101, .0103; 16H .0203; 16I .0104; 16R .0106. Proposed Effective Date: June 1, 2008 Public Hearing: Date: February 7, 2008 Time: 7:00 p.m. Location: Dental Board Office, 507 Airport Boulevard, Suite 105, Morrisville, NC 27560 Reason for Proposed Action: 21 NCAC 16G .0101 – is proposed for amendment to provide that dental hygienists may, upon proper delegation by a dentist, take impressions for night guards and for the repair of dentures. 21 NCAC 16G .0103 – to clarify that hygienists may make impressions as permitted by 21 NCAC 16G .0101. 21 NCAC 16H .0203 – is provided for amendment to provide that Dental Assistant II may, upon proper delegation and supervision by a dentist, take impressions for night guards and the repair of dentures. 21 NCAC 16I .0104 – is proposed for amendment to provide that a hygienist who works at least 20 hours per week in certain educational or governmental institutions may receive 2 hours of continuing education credit annually for such work. 21 NCAC 16R .0106 – is proposed for amendment to provide that a dentist who works at least 20 hours per week in certain educational or governmental institutions may receive 5 hours continuing education credit per year for such work. Procedure by which a person can object to the agency on a proposed rule: Comments to Bobby D. White, Chief Operations Officer, NC Dental Board, 507 Airport Boulevard, Suite 105, Morrisville, NC 27560, phone (919) 678-8223. Comments may be submitted to: Carolin Bakewell, 507 Airport Boulevard, Suite 105, Morrisville, NC 27560 Comment period ends: April 7, 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 SUBCHAPTER 16G – DENTAL HYGIENISTS SECTION .0100 – DENTAL HYGIENISTS PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1325 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: (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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1326 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 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. PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1327 (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 Notice is hereby given in accordance with G.S. 150B-21.2 that the State Personnel Commission intends to adopt the rules cited as 25 NCAC 01C .0414; 01I .2006 and amend the rules cited as 25 NCAC 01C .0215; 01H .0701, .1102-.1104, 01I .2002, .2301. Proposed Effective Date: June 1, 2008 Public Hearing: Date: February 20, 2008 Time: 10:00 a.m. Location: Office of State Personnel Conference Room, Administration Building, 116 West Jones Street 3rd Floor, Raleigh, NC. Reason for Proposed Action: 25 NCAC 01C .0215 – To amend the rule on Employment Contracts to allow an agency to require repayment of a portion of the cost for optional training if the employee does not remain employed with the agency for a predetermined length of time. The employee would be informed of this requirement in writing along with details about the amount of time required to work and the expected amount of the repayment. 25 NCAC 01C .0414 – To adopt a rule to define a type of appointment that will allow a contractual arrangement with individuals in professional/technical/highly specialized or difficult to recruit areas. The employees are not deemed to be independent contractors under the applicable IRS regulations and, therefore, must be paid on a payroll. 25 NCAC 01H .0701, .1102-.1104 – These amendments are made to conform to legislative changes (HB 1412) to G.S. 128- 15 and G.S. 126-82 which were approved by the 2007 General Assembly. 25 NCAC 01I .2002, .2006, .2301 – Rule adoption and amendment to implement changes (Senate Bill 1023) made to the State Personnel Act by the 2007 Legislature. Procedure by which a person can object to the agency on a proposed rule: A person may object to these proposed rules by one of the following methods: (1) A written letter to Peggy Oliver, HR Policy Administrator, Office of State Personnel, 1331 Mail Service Center, Raleigh, NC 27699-1331; (2) an email to peggy.oliver@ncmail.net: (3) or a telephone call to Peggy Oliver at (919)807-4832. Comments may be submitted to: Peggy Oliver, 1331 Mail Service Center, Raleigh, NC 27699-1331, phone (919)807-4832, fax (919)715-9750, email peggy.oliver@ncmail.net. Comment period ends: March 17, 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 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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1328 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 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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1329 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 (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 PROPOSED RULES 22:14 NORTH CAROLINA REGISTER JANUARY 15, 2008 1330 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 qualifica |
OCLC number | 13686205 |