North Carolina register, July 1998 - present

              This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 22 ● ISSUE 09 ● Pages 759 - 895
November 1, 2007
I. IN ADDITION
State Board of Elections........................................................................................ 759 – 765
Decision Letters on "Changes Affecting Voting" from US Attorney General ...... 766 – 769
Building Code Council.......................................................................................... 770 – 771
Social Services Commission (correction).............................................................. 772
Insurance, Department (correction)....................................................................... 773
II. PROPOSED RULES
Agriculture and Consumer Services, Department of
Agriculture, Board of ............................................................................................ 774 – 782
Environment and Natural Resources, Department of
Coastal Resources Commission ............................................................................ 791 – 807
Soil and Water Conservation Commission............................................................ 786 – 791
Health and Human Services, Department of
Commission for Mental Health/DD/SAS.............................................................. 784 – 786
Division of Mental Health/DD/SAS...................................................................... 782 – 784
Occupational Licensing Boards and Commissions
Medical Board....................................................................................................... 807
Nursing, Board of.................................................................................................. 808 – 811
III. APPROVED RULES .............................................................................................. 812 – 855
Commerce, Department of
Cemetery Commission
Cultural Resources, Department of
Environment and Natural Resource, Department of
Coastal Resources Commission
Environmental Management Commission
Parks and Recreation Authority
Governor, Office of the
State Budget and Management, Office of
Health and Human Services, Department
Medical Care Commission
MH/DD/SAS
Public Health, Commission for
Occupational Licensing Boards and Commission
Dental Examiners, Board of
Massage and Bodywork Therapy, Board of
Occupational Therapy, Board of
Pharmacy, Board of
Real Estate Commission
Recreational Therapy Licensure, Board of
IV. RULES REVIEW COMMISSION........................................................................ 856 – 878
V. CONTESTED CASE DECISIONS
Index to ALJ Decisions............................................................................................. 879 – 882
Text of ALJ Decisions
06 DOJ 1528 ......................................................................................................... 883 – 887
07 EDC 0054......................................................................................................... 888 – 895
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
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: Nathan Knuffman, Economist III nathan.Knuffman@ncmail.net (919)807-4728
Jonathan Womer, Asst. State Budget Officer jonathan.womer@ncmail.net (919)807-4737
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 2007 – December 2007
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
(first legislative
day of the next
regular session)
270th day from publication
in the Register
21:13 01/02/07 12/07/06 01/17/07 03/05/07 03/20/07 05/01/07 05/08 09/29/07
21:14 01/16/07 12/20/06 01/31/07 03/19/07 03/20/07 05/01/07 05/08 10/13/07
21:15 02/01/07 01/10/07 02/16/07 04/02/07 04/20/07 06/01/07 05/08 10/29/07
21:16 02/15/07 01/25/07 03/02/07 04/16/07 04/20/07 06/01/07 05/08 11/12/07
21:17 03/01/07 02/08/07 03/16/07 04/30/07 05/21/07 07/01/07 05/08 11/26/07
21:18 03/15/07 02/22/07 03/30/07 05/14/07 05/21/07 07/01/07 05/08 12/10/07
21:19 04/02/07 03/12/07 04/17/07 06/01/07 06/20/07 08/01/07 05/08 12/28/07
21:20 04/16/07 03/23/07 05/01/07 06/15/07 06/20/07 08/01/07 05/08 01/11/08
21:21 05/01/07 04/10/07 05/16/07 07/02/07 07/20/07 09/01/07 05/08 01/26/08
21:22 05/15/07 04/24/07 05/30/07 07/16/07 07/20/07 09/01/07 05/08 02/09/08
21:23 06/01/07 05/10/07 06/16/07 07/31/07 08/20/07 10/01/07 05/08 02/26/08
21:24 06/15/07 05/24/07 06/30/07 08/14/07 08/20/07 10/01/07 05/08 03/11/08
22:01 0702/07 06/11/07 07/17/07 08/31/07 09/20/07 11/01/07 05/08 03/28/08
22:02 07/16/07 06/22/07 07/31/07 09/14/07 09/20/07 11/01/07 05/08 04/11/08
22:03 08/01/07 07/11/07 08/16/07 10/01/07 10/22/07 12/01/07 05/08 04/27/08
22:04 08/15/07 07/25/07 08/30/07 10/15/07 10/22/07 12/01/07 05/08 05/11/08
22:05 09/04/07 08/13/07 09/19/07 11/05/07 11/20/07 01/01/08 05/08 05/31/08
22:06 09/17/07 08/24/07 10/02/07 11/16/07 11/20/07 01/01/08 05/08 06/13/08
22:07 10/01/07 09/10/07 10/16/07 11/30/07 12/20/07 02/01/08 05/08 06/27/08
22:08 10/15/07 09/24/07 10/30/07 12/14/07 12/20/07 02/01/08 05/08 07/11/08
22:09 11/01/07 10/11/07 11/16/07 12/31/07 01/21/08 03/01/08 05/08 07/28/08
22:10 11/15/07 10/25/07 11/30/07 01/14/08 01/21/08 03/01/08 05/08 08/11/08
22:11 12/03/07 11/08/07 12/18/07 02/01/08 02/20/08 04/01/08 05/08 08/29/08
22:12 12/17/07 11/26/07 01/01/08 02/15/08 02/20/08 04/01/08 05/08 09/12/08
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.
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NOTICE OF RULE MAKING PROCEEDINGS AND PUBLIC HEARING
NORTH CAROLINA BUILDING CODE COUNCIL
Notice of Rule-making Proceedings is hereby given by NC Building Code Council in accordance with G.S. 150B-21.5(d).
Citation to Existing Rule Affected by this Rule-Making: North Carolina Building, Electrical, Energy Conservation, Fire, Fuel
Gas, Mechanical, Plumbing and Residential Codes.
Authority for Rule-making: G.S. 143-136; 143-138.
Reason for Proposed Action: To incorporate changes in the NC State Building Codes as a result of rulemaking petitions filed with
the NC Building Code Council and to incorporate changes proposed by the Council.
Public Hearing: December 10, 2007, 1:00PM, NC Legislative Building, Third Floor Auditorium, 16 West Jones Street, Raleigh, NC
27603
Comment Procedures: Written comments may be sent to Chris Noles, Secretary, NC Building Code Council, NC Department of
Insurance, 322 Chapanoke Road, Suite 200, Raleigh, NC 27603. Comment period expires on December 31, 2007.
Statement of Subject Matter:
1. Request by David Smith, Chairman of the Residential Standing Committee, to amend the 2006 NC Residential Code for
One and Two Family Dwellings, Section R311.5.6.3. The proposed amendment is as follows:
R311.5.6.3 Handrail grip size. All required handrails shall be of one of the following types or provide equivalent graspability.
1. Type I. Handrails with a circular cross section shall have an outside diameter of at least 11/4 inches (32 mm) and not greater than 2
inches (51 mm). If the handrail is not circular it shall have a perimeter dimension of at least 4 inches (102 mm) and not greater than 61/4
inches (160 mm) with a maximum cross section of dimension of 21/4 inches(57 mm).
2. Type II. Handrails with a perimeter greater than 61/4 inches (160 mm) shall provide a graspable finger recess area on both sides of the
profile. The finger recess shall begin within a distance of 3/4 inch (19 mm) measured vertically from the tallest portion of the profile and
achieve a depth of at least 5/16 inch (8 mm) within 7/8 inch (22 mm) below the widest portion of the profile. This required depth shall
continue for at least 3/8 inch (10 mm) to a level that is not less than 13/4 inches (45 mm) below the tallest portion of the profile. The minimum
width of the handrail above the recess shall be 11/4 inches (32 mm) to a maximum of 23/4 inches (70 mm). Edges shall have a minimum
radius of 0.01 inch (0.25 mm).
Exception: Exterior handrails (garages and areas exposed to the weather) shall not be more than 3-1/2 inches in cross-section
dimension.
2. Request by David Smith, Chairman of the Residential Standing Committee, to amend the 2006 NC Residential Code for
One and Two Family Dwellings, Section R302.1. The proposed amendment is as follows:
R302.1 Exterior walls. Exterior walls with a fire separation distance less than 3 feet (914 mm) shall have not less than a one-hour
fire-resistive rating with exposure from both sides. Projections shall not extend to a point closer than 2 feet (610 mm) from the line
used to determine the fire separation distance.
Exception: Detached garages accessory to a dwelling located within 2 feet of a lot line shall be permitted to have roof eave
projections not exceeding 4 inches.
Projections extending into the fire separation distance shall have not less than one-hour fire-resistive construction on the underside.
The above provisions shall not apply to walls which are perpendicular to the line used to determine the fire separation distance.
Exceptions:
1. Tool and storage sheds, playhouses and similar structures exempted from permits by Chapter 1 are not required to provide wall
protection based on location on the lot. Projections beyond the exterior wall shall not extend over the lot line.
2. In Townhouse construction (with 3 or more attached dwellings) the soffit material shall be securely attached to framing members
and shall be constructed using either non-combustible soffit material; fire retardant treated soffit material; vinyl soffit installed over ¾
inch wood sheathing or 5/8 inch gypsum board; or aluminum soffit installed over ¾ inch wood sheathing or 5/8 inch gypsum board.
Venting requirements shall be provided in both soffit and underlayments. Vents shall be either nominal 2-inch continuous or
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equivalent intermittent and shall not exceed the minimum net free air requirements established in section R806.2 by more than 50%.
Vents in soffit are not allowed within four feet of fire walls or property lines.
3. Request by the Staff of the NC Department of Insurance to adopt the following codes with the NC Amendments:
A. 2006 International Building Code, with 2009 NC Amendments
B. 2006 International Energy Conservation Code, with 2009 NC Amendments
C. 2006 International Fire Code, with 2009 NC Amendments
D. 2006 International Fuel Gas Code, with 2009 NC Amendments
E. 2006 International Mechanical Code, with 2009 NC Amendments
F. 2006 International Plumbing Code, with 2009 NC Amendments
G. 2006 International Residential Code, with 2009 NC Amendments
H. 2008 National Electrical Code, with 2008 NC Amendments
Proposed amendments may be viewed at the following links:
http://www.ncdoi.com/OSFM/Engineering/engineering_home.asp
STATE BUILDING CODES
-BUILDING CODES - 2009 EDITION - PROPOSED AMENDMENTS
OR
http://www.ncbuildingcodes.com/OSFM/Engineering/BCC/ncbuildingcodes.asp
-ADOPTED CODE INFORMATION
-NC STATE BUILDING CODES
-BUILDING CODES - 2009 EDITION - PROPOSED AMENDMENTS
2008 NC/NEC 2008 - The Base Document for the 2008 NC Electrical Code is the 2008 NEC.
2009 NC/ICC 2006 – The Base Documents for the 2009 NC State Building Codes are the 2006 I-Codes.
The NC Amendments are proposed replacements to the Sections printed in the Base Documents.
The 2006 I-Codes are available at www.iccsafe.org for purchase.
The 2008 NEC is available at www.nfpa.org for purchase.
Single copies are available by November 1, 2007 for REVIEW ONLY at the following locations:
Asheville Inspections 828-259-5846
Davie County Inspections, Mocksville 336-753-6050
NC Department of Insurance, Raleigh 919-661-5880 x 254
Greenville Inspections 252-329-4466
The anticipated adoption date of the 2008 NC Electrical Code and the 2009 NC State Building Codes is March 11, 2008.
The proposed effective date for the 2008 NC Electrical Code is June 1, 2008.
The proposed effective date for the 2009 NC State Building Codes is January 1, 2009.
4. Request by John Hitch, Chairman of the General Construction Standing Committee, to amend the 2006 International
Building Code, Table 1017.1 in conjunction with Item 3A above. The Council granted a petition on 9/11/07 to add the
following Footnote "f" to Table 1017.1, to "Occupancy B", unsprinklered. The proposed amendment is as follows:
Table 1017.1 Corridor Fire-Resistance Rating.
f. Exit access corridors are not required to be rated on any single tenant floor or in any single tenant space, when 1-hour rated tenant
demising walls are provided between all tenant spaces and 1-hour rated floor/ceiling assemblies are provided in multi-story buildings.
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SOCIAL SERVICES COMMISSION
Public Hearing Correction
Notice was published in the NC Register Volume 22 Issue 8 page 517 that a public hearing would be held concerning 10A NCAC 06R
.0501-.0503; .0508 on November 19, 2007 at 10:00 a.m. at the Social Services Commission, Conference Room 832, (8th Floor,
Albemarle Building), 325 N. Salisbury Street, Raleigh, NC. That hearing information is incorrect; the correct hearing information is
as follows:
Date: December 14, 2007
Time: 10:00 a.m.
Location: Social Services Commission, Conference Room 819-E, (8th Floor, Albemarle Building), 325 N. Salisbury Street, Raleigh,
NC
Should you have any questions about the meeting, please contact Lisa Johnson with the Division of Social Services at
lisa.johnson@ncmail.net or (919) 733-3055.
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DEPARTMENT OF INSURANCE
11 NCAC 06A.0408 -- LICENSING OF MOTOR VEHICLE DAMAGE APPRAISER was incorrectly printed in the N.C. Register,
Volume 22, Issue 8, October 15, 2007. The Department of Insurance submitted the rule as a proposed repeal.
11 NCAC 06A .0408 LICENSING OF MOTOR VEHICLE DAMAGE APPRAISER
(a) The applicant must submit the appropriate forms along with a company check, certified check, cashier's check or money order in
the proper amount to the Division. The applicant must meet all other relevant requirements of G.S. 58-33-30 and 58-33-10(e).
(b) In addition to all required forms and fees, an applicant for a nonresident motor vehicle damage appraiser license shall submit a
home state certification stating that the applicant is duly licensed for the same kind of insurance for which he is applying. A letter of
certification shall be valid for no more than 60 days from date of issuance.
Authority G.S. 58-2-40; 58-33-10(14); 58-33-30.
PROPOSED RULES
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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 North Carolina Board of Agriculture intends to adopt the
rules cited as 02 NCAC 52J .0401 - .0420, .0501 - .0502, .0601 -
.0610, .0701 - .0705, .0801 - .0803 and amend the rules cited as
02 NCAC 52J .0203, .0210, .0302 with changes from the
proposed text notice in the Register, Volume 22, Issue 01, pages
4 – 13.
Proposed Effective Date: March 1, 2008
Instructions on How to Demand a Public Hearing: (must be
requested in writing within 15 days of notice):
Reason for Proposed Action:
02 NCAC 52J .0203, .0210, .0302 - The proposed changes
clarify that: separate housing is not required for the unweaned
offspring of an animal in a shelter; that rabies vaccination is not
required for animals less than 12 weeks old or that have been in
the shelter less than 15 days; ambient temperature requirements
are clarified; enclosures must be secured to the vehicle during
transit; and other technical and conforming changes.
02 NCAC 52J .0401 - .0420, .0501 - .0502, .0601 - .0610, .0701
- .0705, .0801 - .0803 - S.L. 2005-267, s. 11.5, requires the
Board of Agriculture to adopt rules on the euthanasia of animals
in the possession of an animal shelter, including those operated
by local governments. The rules are required to include
standards for equipment, procedures, and training of persons
who participate in euthanasia of shelter animals.
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 David S.
McLeod, Secretary, NC Board of Agriculture, 1001 Mail Service
Center, Raleigh, NC 27699-1001.
Comments may be submitted to: David S. McLeod, 1001 Mail
Service Center, Raleigh, NC 27699-1001, phone (919) 733-
7125 extension 238, fax (919) 716-0090, email
david.mcleod@ncmail.net
Comment period ends: December 31, 2007
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 52 - VETERINARY DIVISION
SUBCHAPTER 52J - ANIMAL WELFARE SECTION
SECTION .0200 - FACILITIES AND OPERATING
STANDARDS
02 NCAC 52J .0203 OUTDOOR FACILITIES
(a) Primary enclosures and walkways with which an animal
comes in contact shall be constructed of sealed concrete or other
surfaces impervious to moisture. Gravel may be used if
maintained at a minimum depth of six inches and kept in a
sanitary manner.
(b) Dogs and cats kept outdoors shall be provided housing to
allow them to remain dry and comfortable during inclement
weather. Housing shall be constructed of material which is
impervious to moisture, moisture and which can be disinfected.
One house shall be available for each animal within each
enclosure. enclosure except for a mother and its unweaned
offspring.
(c) In addition to housing, the enclosure shall provide protection
from excessive sun and inclement weather.
(d) Animal owners shall be advised at the time of reservation
and admission if the animal will be kept in outside facilities.
(e) A suitable method of drainage shall be provided to rapidly
eliminate excess water. The drainage system shall be
constructed to prevent cross-contamination among animals.
Authority G.S. 19A-24.
PROPOSED RULES
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02 NCAC 52J .0210 VETERINARY CARE
(a) A written program of veterinary care to include disease
control and prevention, vaccination, euthanasia, and adequate
veterinary care shall be established with the assistance of a
licensed veterinarian.
(b) If there is a disease problem that persists for more than 30
days at the facility, the facility operator shall obtain and follow a
veterinarian's written recommendations for correcting the
problem.
(c) Each dog and cat shall be observed daily by the animal
caretaker in charge, or by someone under his direct supervision.
Sick or diseased, injured, lame, or blind dogs or cats shall be
provided with veterinary care or be euthanized, provided that
this shall not affect compliance with any state or local law
requiring the holding, for a specified period, of animals
suspected of being diseased. If euthanasia is performed at a
certified facility, a list of personnel approved to perform
euthanasia shall be maintained on a Letter of Euthanasia
Certification form and kept on file at the facility.in a Policy and
Procedure Manual as described in 02 NCAC 52J .0800.
Diseased or deformed animals shall be sold or adopted only
under the policy set forth in the "Program of Veterinary Care."
Full written disclosure of the medical condition of the animal
shall be provided to the new owner.
(d) All animals in a licensed or registered facility shall be in
compliance with the North Carolina rabies law, G.S. 130A,
Article 6, Part 6. However, no shelter shall be disapproved
following inspection or otherwise cited for failure to inoculate
any dog or cat known to be less than 12 weeks old or until such
animals have been in the shelter at least 15 days.
Authority G.S. 19A-24.
SECTION .0300 - TRANSPORTATION STANDARDS
02 NCAC 52J .0302 PRIMARY ENCLOSURES USED
IN TRANSPORTING DOGS AND CATS
(a) Primary enclosures such as compartments or transport cages,
cartons, or crates used to transport cats and dogs shall be
constructed, ventilated and designed to protect the health and
insure the safety of the animals. Such enclosures shall be
constructed or positioned in the vehicle in such a manner that:
(1) Each animal in the vehicle has sufficient fresh
air for normal breathing.
(2) The openings of such enclosures are easily
accessible for emergency removals at all
times.
(3) The animals are adequately protected from the
elements.
The ambient temperature shall be maintained between 50
degrees F and 85 degrees F. The shelter shall be deemed as
being in compliance if its vehicles' animal containment units are
equipped with operable air-conditioning, forced-air cooling and
heating or other appropriate temperature control mechanisms.
(b) Animals transported in the same primary enclosure shall be
of the same species. Puppies or kittens less than four months of
age shall not be transported in the same primary enclosure with
adult dogs and cats other than their dams.
(c) Primary enclosures used to transport dogs and cats shall be
large enough for each animal to turn about freely, and to easily
stand, sit, or lie down in a natural position. Primary enclosures
used to transport dogs and cats shall be secured to the vehicle to
prevent sliding or tipping of the enclosure during transit.
(d) Animals shall not be placed in primary enclosures over other
animals in transit unless such enclosure is constructed so as to
prevent animal excreta from entering lower enclosures.
(e) All primary enclosures used to transport dogs and cats shall
be sanitized between use for shipments.
Authority G.S. 19A-24.
SECTION .0400 - EUTHANASIA STANDARDS
02 NCAC 52J .0401 ADOPTION BY REFERENCE
Except as provided in the rules of this Section, any method of
euthanasia approved by the American Veterinary Medical
Association, Humane Society of the United States or the
American Humane Association is hereby incorporated by
reference. In all circumstances, the euthanasia method should be
selected and used with the highest ethical standards.
Authority G.S. 19A-24(5).
02 NCAC 52J .0402 AUTHORIZED PERSONS
Only a Certified Euthanasia Technician, Probationary
Euthanasia Technician, or a veterinarian licensed to practice
veterinary medicine in North Carolina may euthanize an animal
in a certified animal shelter. A Certified Euthanasia Technician
shall not euthanize animals using a method for which they are
not currently certified except as specified in 02 NCAC 52J
.0700.
Authority G.S. 19A-24(5).
02 NCAC 52J .0403 DEFINITIONS
As used in this Subchapter:
(1) "Certified Euthanasia Technician" means a
person employed by a certified facility who
has been instructed in the proper methods of
humane euthanasia, security and record
keeping and possesses other skills as deemed
necessary by the Animal Welfare Section.
(2) "Certified facility" means a certified animal
shelter, kennel or pet shop that employs at
least one Certified Euthanasia Technician or
licensed veterinarian to perform euthanasia on
animals at that certified facility.
(3) "Approved Certified Euthanasia Technician
trainer" means a person or organization that
received permission from the Animal Welfare
Section to provide training to applicants or
individuals seeking to be Certified Euthanasia
Technicians.
(4) "Chemical Agent" means any chemical
approved by the American Veterinary Medical
Association, the Humane Society of the United
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776
States or the American Humane Association
which is used to induce death.
(5) "Applicant" means a person seeking
certification as a Euthanasia Technician.
(6) "Commercially manufactured chamber" means
a chamber built with the intention for sale with
the purpose of euthanizing animals, and which
meets the requirements of 02 NCAC 52J
.0600.
Authority G.S. 19A-24(5).
02 NCAC 52J .0404 CERTIFICATION
REQUIREMENTS FOR EUTHANASIA TECHNICIANS
(a) Individuals who perform euthanasia must be trained and
qualified as a Certified Euthanasia Technician as set forth in this
Rule.
(b) Individuals seeking certification as a Euthanasia Technician
shall submit a written application documenting their
qualifications to the Animal Welfare Section, North Carolina
Department of Agriculture and Consumer Services, 1030 Mail
Service Center, Raleigh, NC 27699-1030, on the form provided
by the Animal Welfare Section.
(c) The Animal Welfare Section shall receive and review all
applications for Euthanasia Technician certification and
determine whether or not to issue the individual applicant proof
of certification in the form of a printed certificate.
Authority G.S. 19A-24(5).
02 NCAC 52J .0405 CERTIFICATION STANDARDS
Applicants for certification as a Certified Euthanasia Technician
shall be at least 18 years of age at the date they receive
certification. Applicants shall not be eligible for certification if
they have been convicted of a felony offense or a crime or
infraction involving animal abuse or neglect and shall
demonstrate compliance with this Section.
Authority G.S. 19A-24(5).
02 NCAC 52J .0406 APPLICATION
REQUIREMENTS
Application requirements:
(1) a completed and signed application form;
(2) a document from an approved Certified
Euthanasia Technician trainer establishing that
the applicant has completed an approved
course, passed the course written examination
and passed a practical examination in the
specific euthanasia techniques for which the
applicant is seeking certification;
(3) the applicant can provide separate
documentation of having taken an approved
course and passed the written examination and
having passed a practical examination given
by a different approved Certified Euthanasia
Technician trainer;
(4) each applicant shall specify in the application
form the specific euthanasia techniques the
applicant is requesting certification.
Authority G.S. 19A-24(5).
02 NCAC 52J .0407 TRAINING AND
EXAMINATIONS
(a) Training and examinations for euthanasia certification shall
consist of:
(1) Classroom lecture covering the entire list of
subjects in Paragraph (b) of this Rule;
(2) Earning a score of 80 percent correct on a
written test provided by the Animal Welfare
Section, demonstrating adequate knowledge of
the subjects listed in Paragraph (b) of this
Rule;
(3) Successfully passing a practical examination
in each of the euthanasia methods for which
the applicant is seeking certification.
(b) The Animal Welfare Section shall develop Certified
Euthanasia Technician training programs and materials or
accredit training programs and materials to be offered by other
individuals, schools, agencies or veterinary practices. Said
programs and materials shall conform to the processes set forth
by the American Veterinary Medical Association, the Humane
Society of the United States or the American Humane
Association and shall include, but not be limited to, the
following topics:
(1) The theory and history of euthanasia methods
and practice;
(2) Animal anatomy;
(3) Proper animal restraint, handling and methods
for controlling animal stress;
(4) Proper chemical agent dosages, record keeping
and usage documentation, chemical agent,
instrument and equipment storage, handling
and disposal in accordance with rules and the
Code of Federal Regulations;
(5) Proper injection techniques;
(6) Proper euthanasia techniques not utilizing
injected chemical agents;
(7) Proper and accurate verification of animal
death;
(8) Proper record keeping;
(9) Proper disposal of euthanized animals;
(10) Stress management for euthanasia personnel;
(11) Proper methods and techniques of euthanasia
under extraordinary circumstances; and
(12) Proper methods, techniques and chemicals
inducing anesthesia and sedation in animals
prior to euthanasia;
(13) Proper methods, techniques and chemicals
used in the practical examination section for
Certified Euthanasia Technician.
(c) The Animal Welfare Section shall prepare written
examinations to be given to applicants. Following the classroom
training detailed in 02 NCAC 52J .0407, the applicant shall take
a written examination provided by the Animal Welfare Section
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777
that will be used by the approved trainer. Those passing the
written examination in accordance with 02 NCAC 52J .0407 will
be eligible for the practical examination of the methods of
euthanasia for which the applicant seeks certification.
(d) The applicant must pass a practical examination on each
method of euthanasia for which they seek certification.
(1) Prior to certification the applicant shall
euthanize one or more animals in the presence
of an approved trainer using the techniques the
applicant has listed or intends to list in his or
her application for certification. Any animals
used shall be animals previously scheduled for
euthanasia.
(2) In the alternative, upon prior written approval
by the Animal Welfare Section the practical
examination may consist of simulation of the
euthanasia technique, using an appropriately
anesthetized animal or an Animal Welfare
Section-approved animal simulator. The
Animal Welfare Section shall determine and
render in writing beforehand whether
equipment and/or harmless substances as shall
be deemed adequate for use in determining the
applicant's competency.
(e) Applicants for certification in Euthanasia by Injection shall
demonstrate the following knowledge and competencies:
(1) Correctly calculate chemical agent dosage
based upon the species, age, weight and
condition of the animal;
(2) Correctly complete all required
documentation;
(3) Correctly draw the properly calculated
chemical dosage into a syringe and needle of a
type and size appropriate for the animal;
(4) Correctly administer the chemical agent to the
animal or administer a substance to an
approved animal simulator as described in this
Section;
(5) Applicants shall be able to properly perform
intravenous and intraperitoneal injections on
dogs and intravenous or intraperitoneal
injections on cats;
(6) Knowledge of the medical procedures and
drugs necessary for an animal to be euthanized
by cardiac injection;
(7) Demonstrate ability to verify death by:
(A) lack of respiration;
(B) lack of ocular reflexes;
(C) lack of a heartbeat;
(8) Knowledge about the human health risks
associated with the use of chemical agents
used for euthanasia including signs and
symptoms associated with accidental exposure
of the Certified Euthanasia Technician;
(9) Proper first aid for a person accidentally
exposed to chemical agents used for
euthanasia.
(f) Applicants for certification in Euthanasia by Gas Inhalation
shall meet the standards set forth in this Paragraph:
(1) Demonstrate proper knowledge of the dangers
and human health effects of exposure to
carbon monoxide gas;
(2) Demonstrate proper knowledge about which
animals Euthanasia by Gas Inhalation is
approved and which species, age, medical or
physical conditions make it improper to use
Euthanasia by Gas Inhalation;
(3) Demonstrate proper techniques in placing
animals into the chamber;
(4) Demonstrate adequate knowledge about the
maintenance, operation and cleaning of the
chamber, fittings, gas cylinder, valves, and
other parts of the equipment;
(5) Demonstrate proper operation of the chamber;
(6) Demonstrate ability to verify death by:
(A) lack of respiration;
(B) lack of ocular reflexes;
(C) lack of a heartbeat;
(7) Knowledge about the human health risks
associated with the use of carbon monoxide
when used for euthanasia. Such knowledge
shall also include signs and symptoms
associated with accidental exposure of the
Certified Euthanasia Technician;
(8) Proper first aid for a person accidentally
exposed to carbon monoxide used for
euthanasia.
Authority G.S. 19A-24(5).
02 NCAC 52J .0408 TRAINERS
Training will be provided by the Animal Welfare Section or by
companies or individuals meeting the following criteria:
(1) Possess working knowledge of euthanasia
conducted according to this Section;
(2) Have demonstrated a proficiency in euthanasia
of animals;
(3) Have experience training staff in euthanasia;
(4) Provide references from individuals or
organizations previously trained;
(5) Information taught shall conform to this
Section and the guidelines set forth by the
American Veterinary Medical Association, the
Humane Society of the United States or the
American Humane Association;
(6) Shall disclose to their students and the Animal
Welfare Section any potential conflicts of
interest;
(7) Shall agree to allow unannounced audit of
their instruction and testing by the Animal
Welfare Section;
(8) Prior to providing euthanasia training leading
to certification as a Euthanasia Technician, the
person or company shall obtain approval
before each class for its training program from
the Animal Welfare Section.
Authority G.S. 19A-24(5).
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778
02 NCAC 52J .0409 PROBATIONARY EUTHANASIA
TECHNICIANS
An individual who has passed the written exam, but has not
taken and successfully passed the practical examination may
serve as a Probationary Euthanasia Technician under the direct
supervision of:
(1) a licensed veterinarian; or
(2) Certified Euthanasia Technician
for up to three consecutive months or until such time as the next
practical euthanasia exam is conducted, whichever is longer.
Certified animal shelters employing probationary euthanasia
technicians must notify the Animal Welfare Section no later than
five days prior to the probationary euthanasia technician's first
day serving in that capacity.
Authority G.S. 19A-24(5).
02 NCAC 52J .0410 EXAM REQUIRED
An individual who has not passed the written exam may not
serve as a Certified Euthanasia Technician or Probationary
Euthanasia Technician.
Authority G.S. 19A-24(5).
02 NCAC 52J .0411 NEW APPLICATION
If the individual or applicant fails to pass the practical exam a
second time and wishes to apply for certification again, the
individual shall submit a new application to the Animal Welfare
Section, attend an accredited training program, pass the written
exam and take and pass a practical examination on euthanasia.
The Animal Welfare Section will cancel the application of any
applicant who fails the written examination twice.
Authority G.S. 19A-24(5).
02 NCAC 52J .0412 ISSUANCE OF CERTIFICATION
Upon the receipt of materials specified in this Section the
Animal Welfare Section shall issue a Certificate.
Authority G.S. 19A-24(5).
02 NCAC 52J .0413 LENGTH OF CERTIFICATION
A Certificate issued by the Animal Welfare Section shall be
valid for five years from the date of issuance unless it is revoked
pursuant to this Section or upon termination of employment or
volunteer status as described in this Section.
Authority G.S. 19A-24(5).
02 NCAC 52J .0414 TERMINATION OF
EMPLOYMENT
Upon termination of employment or volunteer status from a
certified facility, a Certified Euthanasia Technician shall not
perform animal euthanasia in a certified facility until recertified
by the Animal Welfare Section. The Certified Euthanasia
Technician's certification shall be cancelled effectively upon
termination of employment or volunteer status. No later than 10
days from the date of the termination of a Certified Euthanasia
Technician's employment or volunteer status at that certified
facility the Certified Euthanasia Technician shall complete a
form notifying the Animal Welfare Section of the termination of
employment or volunteer status and shall return the form and the
Certificate to the Animal Welfare Section.
Authority G.S. 19A-24(5).
02 NCAC 52J .0415 NOTICE OF TERMINATION
A certified facility shall notify the Animal Welfare Section in
writing, no later than 10 days from the date of the termination of
a Certified Euthanasia Technician's employment or volunteer
status at that certified facility.
Authority G.S. 19A-24(5).
02 NCAC 52J .0416 RECERTIFICATION
(a) If a former Certified Euthanasia Technician is employed or
is accepted as a volunteer at a certified facility before the
expiration of his certification, the former Certified Euthanasia
Technician and/or employer may request reinstatement of his/her
certification from the Animal Welfare Section. The reinstated
Certification shall be good for five years from the date of its
initial issue.
(b) If a former Certified Euthanasia Technician is employed or
is accepted as a volunteer at a certified facility after the
expiration of his certification, the former Certified Euthanasia
Technician may only euthanize animals under the direct
supervision of a licensed veterinarian or currently certified
euthanasia technician for three months or until he/she passes
practical examination whichever is less. The former Certified
Euthanasia Technician and the manager of the certified facility
will each notify the Animal Welfare Section within 10 days of
the date the former Certified Euthanasia Technician is employed
or accepted as a volunteer.
Authority G.S. 19A-24(5).
02 NCAC 52J .0417 CERTIFICATION RENEWAL
Certifications may be renewed every five years provided that:
(1) within the 12 months immediately preceding
the application for certification renewal the
Certified Euthanasia Technician has taken and
passed a practical examination for each
method of euthanasia for which they are
seeking certification renewal;
(2) the applicant receives up-to-date information
about the method of euthanasia for which the
applicant is seeking certification;
(3) the applicant receives training in stress
management for the employee.
The applicant shall submit an application for certification
renewal to the Animal Welfare Section. The application shall be
on a form created by the Animal Welfare Section and shall
include a document from an approved Certified Euthanasia
Technician trainer establishing that the applicant has passed a
practical examination in the specific euthanasia techniques for
which they are seeking certification.
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779
Authority G.S. 19A-24(5).
02 NCAC 52J .0418 DUTIES
The scope of duties of a Certified Euthanasia Technician shall
include, but are not limited to:
(1) Preparing animals for euthanasia;
(2) Accurately recording the identification number
of the animal, its species, sex, breed
description and date, dosages for drugs that are
administered and amounts for drugs wasted;
(3) Ordering euthanasia supplies;
(4) Maintaining the security of all controlled
substances and other approved drugs in
accordance with applicable state and federal
laws and regulations;
(5) Directly supervising probationary Euthanasia
Technicians;
(6) Reporting to the appropriate government
agencies violations or suspicions of a violation
of these Rules or any abuse of drugs;
(7) Humanely euthanizing animals; and
(8) Proper and lawful disposal of euthanized
animals and expired or unwanted chemical
agent(s) or the containers, instruments and
equipment used in the administration of
approved drugs in accordance with all
applicable federal, state and local laws and
regulations;
(9) Properly notify the Animal Welfare Section as
required in this Section upon leaving
employment or volunteer status at a covered
facility.
Authority G.S. 19A-24(5)
02 NCAC 52J .0419 GROUNDS FOR DISCIPLINE –
CERTIFIED EUTHANASIA TECHNICIANS
The Department may refuse to issue, renew, or reinstate the
certification of a Euthanasia Technician, or may deny, revoke,
suspend, sanction, or place on probation, impose other forms of
discipline, and enter into consent agreements and negotiated
settlements with Certified Euthanasia Technician pursuant to the
procedures set forth in G.S. 150B, Article 3, for any of the
following reasons:
(1) Failure to Carry Out Duties. Failure to carry
out the duties of a Certified Euthanasia
Technician;
(2) Abuse of Chemical Substances. Abuse of any
drug or chemical substance by:
(a) Selling, diverting or giving away
drugs or chemical substances;
(b) Stealing drugs or chemical
substances;
(c) Misusing chemical substances; or
(d) Abetting anyone in the foregoing
activities;
(3) Euthanizing animals without proper
supervision;
(4) Allowing uncertified individuals to euthanize
animals;
(5) Allowing probationary Euthanasia Technicians
to euthanize animals outside of the Certified
Euthanasia Technician's personal presence;
(6) Fraud, misrepresentation, or deception in
obtaining certification;
(7) Unethical or Unprofessional Conduct.
Unethical or unprofessional conduct means to
knowingly engage in conduct of a character
likely to deceive or defraud the public. Such
conduct includes but is not limited to working
in conjunction with any agency or person
illegally practicing as a Certified Euthanasia
Technician; failing to provide sanitary
facilities or apply sanitary procedures for the
euthanizing of any animal; euthanizing
animals in a manner that endangers the health
or welfare of the public; gross ignorance,
incompetence or inefficiency in the
euthanizing of animals as determined by, but
not limited to, the practices generally and
currently followed and accepted as approved
by the American Veterinary Medical
Association, the Humane Society of the United
States or the American Humane Association;
intentionally performing a duty, task or
procedure involved in the euthanizing of
animals for which the individual is not
qualified; and swearing falsely in any
testimony or affidavits relating to practicing as
a Certified Euthanasia Technician;
(8) Conviction of any criminal offense as
described in this Section;
(9) Improper Record Keeping. Failure to follow
proper record keeping procedures as outlined
in these Rules;
(10) Improper Security and Storage for Approved
Chemical Agents. Failure to provide and
maintain proper security and storage for
approved euthanasia and restraint drugs as
established under applicable United States
Drug Enforcement Administration and North
Carolina Department of Health and Human
Services statutes and rules;
(11) Improper Disposal of Approved Chemical
Agents and Equipment. Failure to properly
dispose of approved drugs and the containers,
instruments and equipment;
(12) Improper Labeling of Approved Chemical
Agents. Failure to properly label approved
euthanasia and restraint chemical agents;
(13) Revocation, Suspension or Limitation. The
revocation, suspension, limitation, of a license,
certificate or registration or any other
disciplinary action by another state or United
States jurisdiction or voluntary surrender of a
license, certificate or registration by virtue of
which one is licensed, certified or registered to
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780
practice as a Certified Euthanasia Technician
in that state or jurisdiction on grounds other
than nonpayment of the renewal fee;
(14) Failure of any applicant or certificate holder to
cooperate with the North Carolina Department
of Agriculture and Consumer Services during
any investigation or inspection;
(15) Any action or omission by the Certified
Euthanasia Technician that the Commissioner
of the North Carolina Department of
Agriculture and Consumer Services believes is
contrary to the best interest of the public to
continue having the person certified to
euthanize animals.
Authority G.S. 19A-24(5).
02 NCAC 52J .0420 CRIMINAL CONVICTIONS
"Conviction of a charge or crime" in this Section means being
found guilty, convicted, placed on probation or entering a guilty
plea that is accepted by the court, forfeiture of bail, bond or
collateral deposited to secure one's own appearance in a criminal
proceeding or having received a withheld judgment, prayer for
judgment continued or suspended sentence by a court of
competent jurisdiction in this state, in a federal court or another
state of one or more of the following:
(1) any felony as defined by federal or state law;
(2) any criminal act that in any way is related to
practicing as a Certified Euthanasia
Technician.
Authority G.S. 19A-24(5).
SECTION .0500 - EUTHANASIA BY INJECTION
02 NCAC 52J .0501 AUTHORIZED PERSONS
Only a Certified Euthanasia Technician or person listed as an
exception to the Certified Euthanasia Technician requirement
shall administer euthanasia by injection.
Authority G.S. 19A-24(5).
02 NCAC 52J .0502 INTRACARDIAC INJECTION
Intracardiac injection shall only be used on animals that have
been properly anesthetized or heavily sedated.
Authority G.S. 19A-24(5).
SECTION .0600 - EUTHANASIA BY CARBON
MONOXIDE
02 NCAC 52J .0601 CARBON MONOXIDE SUNSET
Carbon monoxide is a permissible method of euthanasia at a
certified facility. However, carbon monoxide shall cease to be
permissible under these Rules and applicable law as of January
1, 2012. From that date forward, the use of carbon monoxide as
a method of euthanasia in certified shelters is prohibited. This
prohibition shall not apply to extraordinary circumstances as
provided under the provisions of 02 NCAC 52J .0700.
Authority G.S. 19A-24(5).
02 NCAC 52J .0602 CARBON MONOXIDE
EQUIPMENT
If carbon monoxide is used for euthanasia, the following
requirements shall be met:
(1) Only commercially compressed, bottled gas
shall be used;
(2) The gas shall be delivered in a commercially
manufactured chamber that allows for the
individual separation of animals;
(3) Animals placed inside of the chamber shall be
of the same species;
(4) The chamber shall rapidly achieve a minimum
six percent uniform concentration of carbon
monoxide;
(5) Death shall occur within five minutes of
beginning the administration of the gas;
(6) Animals shall remain in the chamber with
carbon monoxide for a minimum of 20
minutes.
Authority G.S. 19A-24(5).
02 NCAC 52J .0603 PROHIBITED USES
Carbon monoxide shall not be used to euthanize the following
animals:
(1) Animals that appear to be less than 16 weeks
of age;
(2) Animals that are pregnant;
(3) Animals that are moderately to significantly
clinically ill;
(4) Animals that are significantly injured;
(5) Animals that are near death;
(6) Animals that are geriatric.
Authority G.S. 19A-24(5).
02 NCAC 52J .0604 DEAD ANIMALS
Live animals shall not be placed into a chamber with dead
animals.
Authority G.S. 19A-24(5).
02 NCAC 52J .0605 INDIVIDUAL SEPARATION
Animals shall be individually separated within the euthanasia
chamber.
Authority G.S. 19A-24(5).
02 NCAC 52J .0606 CHAMBER REQUIREMENTS
(a) The chamber shall be located in a well-ventilated place,
preferably outdoors.
(b) The chamber shall be of good working order.
(c) The chamber shall have strong airtight seals around the
doors and viewports.
(d) The chamber shall have at least one port for viewing of the
animals during euthanasia.
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(e) The chamber shall be well lit.
(f) Any chamber electrical wiring or components exposed to
carbon monoxide must be warranted by the manufacturer to be
explosion proof.
(g) Any light inside of the chamber shall be shatterproof.
(h) The chamber shall use exhaust ventilation to evacuate the
gas from the chamber before the doors are opened upon
completion of the process.
(i) If the chamber is located outdoors:
(1) The exhaust shall be vented well above the
operator;
(2) The minimum stack velocity shall be at least
3,000 feet per minute;
(3) If there is a roof above the chamber, the
exhaust shall be vented at least three feet
above the highest point of the roof;
(4) The exhaust shall not be located near any
building air intakes.
(j) If the chamber is located indoors:
(1) The exhaust shall be vented to the outdoors at
least three feet above the highest point of the
roof;
(2) The exhaust shall not be located near any
building air intakes;
(3) The minimum stack velocity shall be at least
3,000 feet per minute;
(4) At least two carbon monoxide detectors shall
be placed in the room.
Authority G.S. 19A-24(5).
02 NCAC 52J .0607 INSPECTIONS AND RECORDS
(a) Chamber seals, exhaust flow, carbon monoxide monitors and
other equipment used in the euthanasia process shall be
inspected at least monthly and repaired or replaced as necessary.
(b) Chamber must be inspected at least annually by the
manufacturer, an authorized representative or an industrial
hygienist knowledgeable about the manufacture and operation of
the chamber.
(c) A record shall be made of each inspection recording the
results, the date of the inspection, and the name of the person
performing the inspection. The record shall be maintained in the
policy and procedure manual for at least two years.
Authority G.S. 19A-24(5).
02 NCAC 52J .0608 CLEANING CHAMBER
The chamber shall be well cleaned between uses.
Authority G.S. 19A-24(5).
02 NCAC 52J .0609 OPERATIONAL GUIDES AND
INSTRUCTION MANUALS
Current operational guides and maintenance instruction manuals
shall be kept in the room with the chamber at all times.
Authority G.S. 19A-24(5).
02 NCAC 52J .0610 PERSONS REQUIRED TO BE
PRESENT
The chamber shall not be operated unless a Certified Euthanasia
Technician or a veterinarian licensed in North Carolina and one
other adult are present at the time of its use.
Authority G.S. 19A-24(5).
SECTION .0700 - EXTRAORDINARY CIRCUMSTANCES
02 NCAC 52J .0701 METHODS OF EUTHANASIA
PERMITTED UNDER EXTRAORDINARY
CIRCUMSTANCES AND SITUATIONS
An extraordinary circumstance or situation includes but is not
limited to a situation which is offsite from the shelter, in which
an animal poses a significant or immediate risk to life, limb or
public health and in which no alternative, less extreme measure
of euthanasia is feasible. It also includes circumstances or
situations in which it would be inhumane to transport an animal
to another location to perform euthanasia.
Authority G.S. 19A-24(5).
02 NCAC 52J .0702 GUNSHOT OR OTHER
METHODS
Under the most extraordinary circumstances and situations
which occurs offsite from the shelter a shelter employee may use
gunshot or other extreme method of euthanasia.
Authority G.S. 19A-24(5).
02 NCAC 52J .0703 METHODS AND STANDARDS
Methods of euthanasia used under this Section must be approved
by the American Veterinary Medical Association, the Humane
Society of the United States or the American Humane
Association for use on that species of animal and must conform
to standards set forth by that organization.
Authority G.S. 19A-24(5).
02 NCAC 52J .0704 TECHNICIAN NOT REQUIRED
If such an extraordinary circumstance or situation occurs and
euthanasia is necessary, the person performing the euthanasia is
not required to be a Certified Euthanasia Technician.
Authority G.S. 19A-24(5).
02 NCAC 52J .0705 REPORTS
If euthanasia is performed under extraordinary circumstances or
situations, a report shall be made of the circumstances and kept
on file for at least two years. The report shall include the date,
time, identification of the animal, the name of the person
performing the final euthanasia, the method of euthanasia and
the reason for euthanasia of the animal as permitted by this
Section.
Authority G.S. 19A-24(5).
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782
SECTION .0800 - POLICY AND PROCEDURE MANUAL
02 NCAC 52J .0801 MANUAL REQUIRED
Any animal shelter performing euthanasia shall have a current
policy and procedure manual about euthanasia.
Authority G.S. 19A-24(5).
02 NCAC 52J .0802 CONTENTS
The manual shall set forth the shelter's equipment, process, and
the individual separation of animals.
Authority G.S. 19A-24(5).
02 NCAC 52J .0803 ADDITIONAL CONTENTS
The manual shall be kept consistent with the publications listed
below and reflect the current information for each. The manual
shall include but not be limited to:
(1) A copy of the most current North Carolina
Animal Welfare Act including statutes and
rules;
(2) A copy of the 2000 Report of the American
Veterinary Medical Association Panel on
Euthanasia and any future revisions,
replacements, supplements or changes thereto
issued by said organization;
(3) A current copy of the Euthanasia Training
Manual of the Humane Society of the United
States;
(4) If printed, a copy of a publication on
euthanasia by the American Humane
Association;
(5) A list of methods of euthanasia allowed at the
shelter and the policy and procedures for each
method;
(6) A list of Certified Euthanasia Technicians, the
methods of euthanasia in which they have
received training, the date of training and the
date of expiration of their Certification;
(7) The name, address and contact information for
the veterinarian responsible for the Annual
Program of Veterinary Care;
(8) The name, address and contact information for
veterinarians responsible for the veterinary
medical care of the animals. The contact
information will include telephone numbers
for working hours, weekends, nights and
holidays;
(9) Euthanasia procedure to use in emergencies,
after hours, holidays and weekends;
(10) Procedures to follow if no Certified Euthanasia
Technician is present and euthanasia of an
animal is necessary;
(11) Methods of verifying death of an animal after
a euthanasia process is performed;
(12) The name and contact information of the
supplier of euthanasia materials shall be listed.
It shall include but not be limited to:
(a) Bottled gas (if applicable);
(b) Manufacturer of the chamber used to
euthanize animals by inhalant gas (if
applicable);
(c) Injectable euthanasia solution;
(d) Tranquilizer or anesthetic solution;
(13) Original of DEA certification permitting the
use of controlled substances;
(14) A material safety data sheet for any chemical
or gas used for euthanasia in that shelter;
(15) A material safety data sheet for any anesthetic
or tranquilizer used in that facility;
(16) Notice of the signs and symptoms associated
with human exposure to the agents used for
euthanasia at the facility;
(17) Proper first aid for people accidentally
exposed to the agents used for euthanasia at
the facility;
(18) Contact information of the physician or
medical facility providing medical treatment to
employees of the facility. The information
shall include but not be limited to the name of
the medical facility, the telephone number for
both working and after-hours contact and
directions to the medical facility from the
certified facility including a map. If the
medical facility does not provide service after-hours,
on weekends or on holidays, there must
be contact information as described above for
the nearest medical facility, urgent care clinic
or emergency room that does provide care
during that time.
Authority G.S. 19A-24(5).
TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Department of Health and Human Resources -
DMH/DD/SAS intends to adopt the rules cited as 10A NCAC
26C .0402; 27A .0301 - .0304; 27G .0507.
Proposed Effective Date: March 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:
10A NCAC 26C .0402 – The proposed rule satisfies
requirements established in Session Law 2006-142 directing
DHHS and the Secretary to identify directives and
communications previously issued by the Division of
PROPOSED RULES
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783
MH/DD/SAS that require adoption as administrative rules in
order to be enforceable and to undertake to adopt those rules.
10A NCAC 27A .0301 - .0304 – The proposed rules are
necessary to promote standardization of forms and processes
related to claims submission, payment and denial between
provider agencies and LMEs. Session Law 2006-142 directs the
Secretary to adopt rules regarding what constitutes a clean
claim for purposes of billing.
10A NCAC 27G .0507 – The proposed rule is necessary in order
to provide guidance to Boards of Directors and CFACs as they
carry out one of their primary duties per statute which is to
determine that past effectiveness of their chosen Area Director
and to provide future guidance to that Area Director based on
that historical analysis. General Statute 122C-121(b) requires
each Area Board to conduct an annual performance evaluation
of the Area Director based on criteria established by the
Secretary and the Area Board.
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: December 31, 2007
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 26 - MENTAL HEALTH: GENERAL
SUBCHAPTER 26C – OTHER GENERAL RULES
SECTION .0400 - MISCELLANEOUS
10A NCAC 26C .0402 STANDARDIZED FORMS AND
PROCESSES
(a) Pursuant to G.S 122C-112.1(32) this Rule sets forth the
standardized forms and processes to be used by local
management entities (LMEs) and providers in support of LME
system management functions. LMEs and providers shall use
the standardized forms and processes provided by the Secretary
for system management functions including:
(1) person-centered plan;
(2) screening/triage/referral interview;
(3) claims processing;
(4) contract;
(5) memorandum of agreement;
(6) quality improvement plan;
(7) strategic plan;
(8) local business plan;
(9) authorization of state funded services;
(10) endorsement of a provider of service; and
(11) letter of support for residential facilities.
(b) All standardized forms and processes shall be implemented
on a statewide basis.
(c) No standardized form or process shall require more
information than is necessary to comply with state or federal
reporting requirements.
(d) A standardized form or process shall not be altered in any
way by an LME or provider.
(e) An LME shall not add any additional requirements upon
providers that are not included in a standardized process.
Authority G.S. 122C-112.1(a)(32); S.L. 2006-142, Section 2.(b).
CHAPTER 27 – MENTAL HEALTH: COMMUNITY
FACILITIES AND SERVICES
SUBCHAPTER 27A – FISCAL RULES
SECTION .0300 – CLEAN CLAIMS
10A NCAC 27A .0301 SCOPE
This Section governs the requirements that constitute a clean
claim for purposes of billing. These rules are applicable to local
management entities (LMEs) and public and private providers
who seek to provide services that are payable from funds
administered by an LME.
Authority G.S. 122C-3(30b); 122C-112.1(a)(32).
10A NCAC 27A .0302 DEFINITIONS
"Claim" means an itemized statement with standardized
elements that is submitted for payment by a provider to the
authorizing LME.
"Clean Claim" means an itemized statement with standardized
elements, completed in its entirety in a format as set forth in
Rule .0303 of this Section.
Authority G.S. 122C-112.1(a)(32).
10A NCAC 27A .0303 CLEAN CLAIM FORMAT
REQUIREMENTS
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784
(a) A provider of a service that is payable from funds
administered by an LME shall submit a claim for payment to the
authorizing LME. The provider shall submit the claim in one of
the formats listed as follows:
(1) HIPAA compliant 837;
(2) CMS-1500; or
(3) the standardized billing format provided by the
DMH/DD/SAS.
The provider shall complete each element contained in the
selected format.
(b) The billing format provided by the DMH/DD/SAS shall
contain standardized elements including:
(1) date of claim;
(2) provider information including:
(A) name; and
(B) number.
(3) client information including:
(A) name;
(B) identification number;
(C) target population code; and
(D) ICD-9 diagnosis code.
(4) service information including:
(A) name;
(B) date;
(C) units delivered;
(D) billing code; and
(E) authorization number.
Authority G.S. 122C-112.1(a)(32).
10A NCAC 27A .0304 CLAIMS REVIEW
PROCEDURES
(a) The LME shall review the claim to determine if it is clean.
The determination shall be based on whether the claim is
submitted as follows:
(1) the claim is submitted in one of the formats as
set forth in Rule .0303 of this Section; and
(2) the information requested in each element of
the selected format is complete.
(b) When a claim meets the requirements as set forth in
Paragraph (a) of this Rule, it shall be considered a clean claim.
(c) The LME shall deny a claim that does not meet the
requirements as set forth in Paragraph (a) of this Rule. The
LME shall notify the provider of the denied claim. The
notification shall specify the reason for denial and include the
steps to be followed for resubmission.
Authority G.S. 122C-112.1(a)(32).
SUBCHAPTER 27G - RULES FOR MENTAL HEALTH,
DEVELOPMENTAL DISABILITIES, AND SUBSTANCE
ABUSE FACILITIES AND SERVICES
SECTION .0500 - AREA PROGRAM REQUIREMENTS
10A NCAC 27G .0507 AREA BOARD ANNUAL
EVALUATION OF AN AREA DIRECTOR
(a) This Rule governs the annual evaluation of Area Directors.
(b) Area Boards shall evaluate, but not be limited to, the Area
Director's performance in each of the following areas:
(1) Relationship with the Board of Directors and
CFAC.
(2) Relationship with the community served and
with local and State officials
(3) Encouraging consumer/family involvement in
system management activities including, but
not limited to:
(A) program development,
(B) quality management, and
(C) community development.
(4) Recruiting, monitoring, and maintaining
effective relationship with qualified providers
of services.
(5) Management of human resources.
(6) Management of fiscal resources.
(7) Demonstration of leadership skills.
(c) Area Boards may use the Area Director evaluation as an
opportunity to create an annual plan for the Area Director that
includes both policy and programmatic considerations.
Authority G.S. 122C-112.1.
* * * * * * * * * * * * * * * * * * * *
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Commission for MH/DD/SAS intends to adopt the rules cited
as 10A NCAC 26C .0601 - .0606; 27G .0212.
Proposed Effective Date: March 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:
10A NCAC 26C .0601 - .0606 - The proposed rules are
necessary to clearly identify the circumstances and process by
which the Secretary of DHHS shall remove a function from a
Local Management Entity. Session Law 2006-142(HB 2077)
requires the Commission for MH/DD/SAS to adopt rules
regarding the notice and procedural requirements for removal
of one or more LME functions.
10A NCAC 27G .0212 – The Commission shall exercise the
following powers and duties under G.S. 122C-26(5)(e). The
proposed rule addresses this requirement.
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
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22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007
785
Comment period ends: December 31, 2007
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 26 - MENTAL HEALTH: GENERAL
SUBCHAPTER 26C – OTHER GENERAL RULES
SECTION .0600 – REMOVAL OF LOCAL
MANAGEMENT ENTITY FUNCTIONS
10A NCAC 26C .0601 SCOPE
The requirements of this Section govern the removal of a local
management entity (LME) function as set forth in G.S. 122C-
115.4(d).
Authority G.S. 122C-115.4(f)(3).
10A NCAC 26C .0602 DEFINITIONS
As used in the rules in this Section, the following terms have the
meanings specified:
(1) "Critical performance indicator" means any of
the measures developed and implemented
pursuant to G.S.122C-112.1(33).
(2) "Focused technical assistance" means the
process of advising, providing consultation
and evaluation related to a specific function,
activity or performance indicator designed to
improve the quality of performance of the
targeted operation.
(3) "Local management entity (LME)" means the
same as defined in G.S. 122C-3(20b).
(4) "Material breach" means an LME has failed to
maintain for a period of two consecutive
months the required outcome expectations, as
outlined in the DHHS/LME contract, on a
critical performance indicator after the LME
has received focused technical assistance.
(5) "Monitor" or "Monitoring" means the same as
defined in 10A NCAC 27G .0602(9).
Authority G.S. 122C-115.4(f)(3).
10A NCAC 26C .0603 NOTICE OF DEFICIENT
PERFORMANCE
The Director of the Division of Mental Health, Developmental
Disabilities and Substance Abuse Services (DMH/DD/SAS)
shall issue a notice of deficient performance in writing to an
LME when the LME fails to achieve the required outcome for a
critical performance indicator established for one the primary
functions of LMEs as set forth in G.S. 122C-115.4(b). The
written notice shall:
(1) identify the critical performance indicator
outcome the LME failed to achieve including a
statement of the findings that support a
conclusion of deficient performance;
(2) identify the LME function related to the
critical performance indicator outcome;
(3) identify the required outcome expectation(s);
and
(4) state the timeframe for meeting the required
outcome expectation(s).
Authority G.S. 122C-115.4(f)(3).
10A NCAC 26C .0604 PLAN OF CORRECTION
REQUIREMENTS
(a) The LME shall respond to the notice of deficient
performance by submitting to the DMH/DD/SAS a written Plan
of Correction (POC) within 15 working days of receipt.
(b) The DMH/DD/SAS shall review the POC and approve it as
written or communicate in writing with the LME regarding
required corrections. The LME shall have a period of five
additional working days to submit a revised POC.
(c) Failure to submit or revise POC may result in a suspension
of funding for the LME function.
Authority G.S. 122C-115.4(f)(3).
10A NCAC 26C .0605 FOCUSED TECHNICAL
ASSISTANCE
Within 15 working days of the approval of the POC, the
DMH/DD/SAS shall initiate focused technical assistance and
monitoring of the LME. The DMH/DD/SAS shall continue to
provide focused technical assistance and monitoring until:
(1) the LME achieves and maintains the required
outcome on the designated performance
indicator(s) for a period of two consecutive
months; or
(2) the end of six months, whichever occurs first.
Authority G.S. 122C-115.4(f)(3).
10A NCAC 26C .0606 REMOVAL OF LME FUNCTION
(a) The LME shall be considered to have a material breach if the
LME fails to achieve and maintain for a period of two
consecutive months, the required outcome expectations on the
PROPOSED RULES
22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007
786
designated performance indicator(s) after the six month period
occurs as specified in Rule .0605 of this Section.
(b) Upon identifying the LME as having an uncorrected
material breach and within a timeframe not to exceed 30
working days, the Secretary shall arrange for a contract with
another LME to implement the function associated with the
deficient critical performance indicator as set forth in G.S. 122C-
115.4(d)(3). Prior to the removal of the function, the Secretary
shall send written notification to the LME stating:
(1) the LME function that is being removed;
(2) the date of the removal of the function;
(3) the entity identified to implement the function
being removed;
(4) the amount of fund reallocation from the
deficient LME to the receiving entity; and
(5) the expectation that the deficient LME shall
cooperate with the Secretary and receiving
entity as necessary to ensure a smooth,
seamless transition of the function.
Authority G.S. 122C-115.4(f)(3).
CHAPTER 27 – MENTAL HEALTH: COMMUNITY
FACILITIES AND SERVICES
SUBCHAPTER 27G - RULES FOR MENTAL HEALTH,
DEVELOPMENTAL DISABILITIES, AND SUBSTANCE
ABUSE FACILITIES AND SERVICES
SECTION .0200 - OPERATION AND MANAGEMENT
RULES
10A NCAC 27G .0212 DISCLOSURE OF FINANCIAL
INTEREST OF PROVIDERS OF MH/DD/SA SERVICES
TO POTENTIAL CLIENTS
(a) When a provider refers a potential client to another provider
in which the referring provider holds a financial interest, the
referring provider shall disclose the financial interest to the
potential client prior to or at the time of referral.
(b) A referring provider shall be considered to have a financial
interest when the referring provider is an owner, principal,
employee, a potential employee of the provider who is in the
hiring process, immediate family member of an owner, principle
employee or an affiliate of the provider that the potential client is
referred.
(c) For purposes of this Rule, a "referring provider entity"
includes:
(1) an agency;
(2) an organization;
(3) a local management entity (LME) as set forth
in G.S. 122C-3(20b); or
(4) an individual employee or contractor of an
agency, organization or LME.
(d) For purposes of this Rule, "immediate family member of an
employee" means husband or wife; birth or adoptive parent,
child, or sibling; stepparent, stepchild, stepbrother, or stepsister;
father-in-law, mother-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister- in-law; grandparent or grandchild; or
spouse of a grandparent or grandchild.
Authority G.S. 122C-3(20b); 122C-26(5)(e).
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOUCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Soil and Water Conservation Commission intends to adopt
the rules cited as 15A NCAC 06I .0107-.0108 and amend the
rules cited as 15A NCAC 06E .0102, .0105, .0107-.0108.
Proposed Effective Date: March 1, 2008
Instructions on How to Demand a Public Hearing: (must be
requested in writing within 15 days of notice): Any person
requesting that the Soil and Water Conservation Commission
conduct a public hearing on any portion of these proposed rules
must submit a written request to Vernon Cox, Division of Soil
and Water Conservation, 1614 Mail Service Center, Raleigh, NC
27699-1614. The request must specify which rule the hearing is
being requested on.
Reason for Proposed Action: The Soil and Water
Conservation Commission (SWCC) has responsibility for
establishing rules and guidelines for the North Carolina
Agriculture Cost Share Program (ACSP) and the Community
Conservation Assistance Program (CCAP). The ACSP and
CCAP are both voluntary programs established to provide
financial and technical assistance to encourage installation of
best management practices (BMPs) to reduce nonpoint sources
of pollution to waters of the state. Amendments to ACSP rules
are proposed to improve the efficiency and effectiveness of the
program in protecting water quality. CCAP is a new program
established by Session Law 2007-78. Rules of CCAP are being
proposed in order to set forth procedures for the Soil and Water
Conservation Commission to encourage local governments,
individual landowners, and businesses to incorporate
stormwater BMPs within their landscape to reduce the input of
nonpoint source pollution into the waters of the State.
Procedure by which a person can object to the agency on a
proposed rule: You are encouraged to submit written
comments, data or other relevant information by December 31,
2007. The Soil and Water Conservation Commission is very
interested in all comments pertaining to the proposed rules. All
persons interested and potentially affected by the proposed rules
are strongly encouraged to read this entire notice and make
comments. The Soil and Water Conservation Commission may
not adopt a rule that differs substantially from the text of the
proposed rule published in this notice unless the EMC publishes
the text of the proposed different rule and accepts comments on
the new text (G.S. 150B 21-2(g)). Written comments may be
submitted to Vernon Cox, Division of Soil and Water
Conservation, 1614 Mail Service Center, Raleigh, NC 27699-
1614, vernon.cox@ncmail.net or fax at (919)715-3559.
PROPOSED RULES
22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007
787
Comments may be submitted to: Vernon Cox, Division of Soil
and Water Conservation, 1614 Mail Service Center, Raleigh, NC
27699-1614, vernon.cox@ncmail.net or fax at (919)715-3559.
Comment period ends: December 31, 2007.
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 06 - SOIL AND WATER CONSERVATION
COMMISSION
SUBCHAPTER 06E - AGRICULTURE COST SHARE
PROGRAM FOR NONPOINT SOURCE POLLUTION
CONTROL
SECTION .0100 - AGRICULTURE COST SHARE
PROGRAM
15A NCAC 06E .0102 DEFINITIONS FOR
SUBCHAPTER 06E
In addition to the definitions found in G.S. 143-215.75, the
following terms used in this Subchapter have the following
meanings:
(1) Agriculture Nonpoint Source (NPS) Pollution
means pollution originating from a diffuse
source as a result of agricultural activities
related to crop production, animal production
units production and management of poultry
and livestock, and land application of waste
materials.materials, and management of
forestland incidental to agricultural
production.
(2) Allocation means the annual share of the
state's appropriation to participating districts.
(3) Applicant means a person(s) who applies for
best management practice cost sharing monies
from the district. An applicant may also be
referred to as a cooperator. All entities, with
which the applicant is associated, including
those in other counties, shall be considered the
same applicant.
(4) Average Costs means the calculated cost,
determined by averaging recent actual costs
and current cost estimates necessary for best
management practice implementation. Actual
costs include labor, supplies, and other direct
costs required for physical installation of a
practice.
(5) Best Management Practice (BMP) means a
structural or nonstructural management based
practice used singularly or in combination to
reduce nonpoint source inputs to receiving
waters.
(6) Conservation Plan of Operation (CPO) means
a written plan scheduling the applicant's
decisions concerning land use, and both cost
shared and non-cost shared BMPs to be
installed and maintained on the operating unit.
(7) Cost Share Agreement means an annual or
long term agreement between the applicant
and the district which defines the BMPs to be
cost shared, rate and amount of payment,
minimum practice life, and date of BMP
installation. The agreement shall state that the
recipient shall maintain and repair the
practice(s) for the specified minimum life of
the practice. The Cost Share Agreement shall
have a maximum contract life of three years
for BMP installation. The district shall
perform an annual status review during the
installation period.
(8) Cost Share Incentive (CSI) means a
predetermined fixed payment paid to an
applicant for implementing a BMP in lieu of
cost share.
(9) Cost Share Rate means a cost share percentage
paid to an applicant for implementing BMPs.
(10) Detailed Implementation Plan means the plan
approved by the commission that specifies the
guidelines for the current program year;
including, BMPs that will be eligible for cost
sharing and the minimum life expectancy of
those practices.
(11) District BMP means a BMP designated by a
district to reduce the delivery of agricultural
NPS pollution and which is reviewed and
approved by the Division to be technically
adequate prior to funding.
(12) Encumbered Funds means monies from a
district's allocation which have been
committed to an applicant after initial approval
of the cost share agreement.
(13) Full Time Equivalent (FTE) means 2,080
hours per annum which equals one full time
technical position.
(14) In-kind Contribution means a contribution by
the applicant towards the implementation of
BMPs. In-kind contributions shall be
PROPOSED RULES
22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007
788
approved by the district and can include but
not be limited to labor, fuel, machinery use,
and supplies and materials necessary for
implementing the approved BMPs.
(15) Landowner means any natural person or other
legal entity, including a governmental agency,
who holds either an estate of freehold (such as
a fee simple absolute or a life estate) or an
estate for years or from year to year in land,
but does not include an estate at will or by
sufferance in land. Furthermore, a
governmental or quasi-governmental agency
such as a drainage district or a soil and water
conservation district, or any such agency, by
whatever name called, exercising similar
powers for similar purposes, can be a
landowner for the purposes of these Rules if
the governmental agency holds an easement in
land.
(16) Program Year means the period from July 1
through June 30 for which funds are allocated
to districts.
(17) Proper Maintenance means that a practice(s) is
being maintained such that the practice(s) is
successfully performing the function for which
it was originally implemented.
(18) Soil Loss Tolerance (t) means the maximum
allowable annual soil erosion rate to maintain
the soil resource base, depending on soil type.
(19) Strategy Plan means the annual plan for the
N.C. Agriculture Cost Share Program for
Nonpoint Source Pollution Control to be
developed by each district. The plan identifies
pollution treatment needs and the level of cost
sharing and technical assistance monies
required to address those annual needs in the
respective district.
(20) Technical Representative of the district means
a person designated by the district to act on
their behalf who participates in the planning,
design, implementation and inspection of
BMPs. These practices shall be technically
reviewed by the Division. The district
chairman shall certify that the technical
representative has properly planned, designed
and inspected the BMPs.
(21) Unencumbered Funds means the portion of the
allocation to each district which has not been
committed for cost sharing.
Authority G.S. 139-3; 143-215.74; 143B-294.
15A NCAC 06E .0105 COST SHARE AND INCENTIVE
PAYMENTS
(a) Cost share and incentive payments may be made through
Cost Share Agreements between the district and the applicant.
(b) For all practices except those eligible for CSI, the state shall
provide a percentage of the average cost for BMP installation
not to exceed the maximum cost share percentages shown in
subdivisions (6), (8), and (9) of G.S. 143-215.74(b), and the
applicant shall contribute the remainder of the cost. In-kind
contributions by the applicant shall be included in the applicants'
cost share contribution. In-kind contributions shall be specified
in the agreement for cost sharing and shall be approved by the
district.
(c) CSI payments shall be limited to a maximum of three years
per farm.
(d) Average installation costs for each comparative area or
region of the state and the amount of cost share incentive
payments shall be updated and revised at least triannually
triennially by the Division for approval by the Commission.
(e) The total annual cost share payments to an applicant shall
not exceed the maximum funding authorized in subdivisions (6)
and (9) of G.S. 143-215.74(b).
(f) Cost share payments to implement BMPs under this program
may be combined with other funding programs, as long as the
combined cost share rate does not exceed the amount and
percentages set forth in Paragraphs (b) and (e) of this Rule. For
special funding programs where the applicant relinquishes all
production capability on his or her agricultural land for at least
10 years, combined funding may equal up to 100 percent.
Agriculture Cost Share Program funding shall not exceed the
maximum cost share percentages shown in subdivisions (6), (8),
and (9) of G.S. 143-215.74(b).
(g) Use of cost share payments is restricted to land located
within the county approved for funding by the Commission.
However, in the situation where an applicant's farm is not
located solely within a county, the entire farm, if contiguous,
shall be eligible for cost share payments.
(h) Cost share contracts used on or for local, state or federal
government land must be approved by the Commission in order
to avoid potential conflicts of interest and to ensure that such
contracts are consistent with the purposes of this program.
(i) The district Board of Supervisors may approve Cost Share
Agreements with cost share percentages or amounts less than the
maximum allowable in subdivisions (6), (8), and (9) of G.S.
143-215.74(b) if:
(1) The Commission allocates insufficient cost
share BMP funding to the district to enable it
to award funding to all applicants;
(2) The district establishes other criteria in its
annual strategy plan for cost sharing
percentages or amounts less than those
allowable in subdivisions (6), (8), and (9) of
G.S. 143-215.74(b).
(j) For purposes of determining eligible payments under
practice-specific caps described in the detailed implementation
plan, the district board shall consider all entities with which the
applicant is associated, including those in other counties, as the
same applicant.
Authority G.S. 139-4; 139-8; 143-215.74; 143B-294.
15A NCAC 06E .0107 COST SHARE AGREEMENT
(a) The landowner shall be required to sign the agreement for all
practices other than conservation tillage agronomic practices and
land application of animal wastes. An applicant who is not the
landowner may submit a long term written lease or other legal
PROPOSED RULES
22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007
789
document, indicating control over the land in lieu of the
landowner's signature, provided the control runs the length of the
life of the practice as listed in the respective Program Year's
Implementation Plan. Signature on the agreement constitutes
responsibility for BMP maintenance and continuation.
(b) As a condition for receiving cost share or cost share
incentive payments for implementing BMP's, the applicant shall
agree to continue and maintain those practices for the minimum
life as set forth in the Detailed Implementation Plan, effective
the date the BMP's are implemented.
(c) As a condition for receiving cost share payments, the
applicant shall agree to submit a soil test sample for analysis and
follow the fertilizer application recommendations as close as
reasonably and practically possible. Soil testing shall be
required a minimum of every two years on all cropland affected
by cost share payments. Failure to soil test shall not constitute
noncompliance with the cost share agreement.
(d) As a condition for receiving cost share payments for waste
management systems, the applicant shall agree to have the waste
material analyzed once every year to determine its nutrient
content. If the waste is land applied, the applicant shall agree to
soil test the area of application and to apply the waste as close as
reasonably and practically possible to recommended rates.
When waste is land applied, waste analysis and soil testing shall
be conducted annually.
(e) The technical representative of the district shall determine if
the practice(s) implemented have been installed according to
specifications as defined for the respective program year in the
USDA-Natural Resources Conservation Service Technical
Guide, Section IV, Raleigh, North Carolina, or according to
other specifications approved by the Commission, or according
to specifications approved by the Division for district BMP's.
The district shall be responsible for making an annual spot check
of five percent of all the participating farms cost share
agreements to ensure proper maintenance. Waste management
systems shall be included as part of the annual five percent
check except for systems on farms without certified waste
management plans. In those cases, the systems will receive
annual status reviews for five years following implementation.
(f) If the technical representative of the district determines that a
BMP for which program funds were received has been destroyed
or has not been properly maintained, the applicant will be
notified that the BMP must be repaired or re-implemented within
30 working days. For vegetative practices, applicants are given
one calendar year to re-establish the vegetation. The district
may grant a prescribed extension period if it determines
compliance can not be met due to circumstances beyond the
applicants control.
(g) If the practices are not repaired or reimplemented within the
specified time, the applicant shall be required to repay to the
Division a prorated refund for cost share BMP's as shown in
Table 1 and 100 percent of the cost share incentive payments
received.
Table 1
PRORATED REFUND SCHEDULE FOR NONCOMPLIANCE
OF COST SHARE PAYMENTS
Percent Age of Practice Life Percent Refund
0 100
10 95
20 89
30 82
40 74
50 65
60 55
70 44
80 31
90 17
100 0
(h) An applicant, who has been found in noncompliance and
who does not agree to repair or reimplement the cost shared
practices, and a District may jointly request the commission to
informally mediate the case. To invoke this method of
mediation, both parties must stipulate that the commission
mediation is binding.
(i) An applicant shall have a maximum of 180 days to make
repayment to the Division following the final appeals process.
(j) The inability to properly maintain cost shared practices or the
destruction of such practices through no fault of the applicant
shall not be considered as noncompliance with the cost share
agreement.
PROPOSED RULES
22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007
790
(k) When land under cost share agreement changes owners the
new landowner shall be strongly encouraged by the district to
continue and maintain practice(s) previously implemented.
accept the remaining maintenance obligation. If the new
landowner does not accept the maintenance requirements in
writing, then the original applicant shall be required to refund
100 percent of all CSI payments and a prorated portion of cost
share payments in accordance with Table 1 in Paragraph (g) of
this Rule.
Authority G.S. 139-8; 143-215.74.
15A NCAC 06E .0108 DISTRICT PROGRAM
OPERATION
(a) As a component of the annual strategy plan developed by
each district, both cropland and animal operations will be
prioritized according to pollution potential. Technical and
financial assistance will be targeted to facilitate BMP
implementation on the identified critical areas.
(b) Priority by the district may be given to implementing
systems of BMP's which provide the most cost effective
reduction of nonpoint source pollution.
(c) All applicants shall apply to the district and complete the
necessary forms in order to receive cost share payments.
(d) The district shall review each application and the feasibility
of each application. The district shall review and approve the
evaluation and assign priority for cost sharing. All applicants
shall be informed of cost share approval or denial.
(e) Upon approval of the application by the district, the
applicant and the district shall enter into a cost share agreement.
The cost share agreement shall list the practices to be cost shared
with state funds. The agreement shall also include the average
cost of the recommended practice(s), cost incentive payment of
the practice(s), and the expected implementation date of the
practice(s). CPO's will be developed and become a part of the
cost share agreement.
(f) Upon completion of practice(s) implementation, the
technical representative of the district shall notify the district of
compliance with design specifications.
(g) Upon notification, the district shall review the CPO. Upon
approval, the district shall certify the practices in the CPO and
notify the Division to make payment to the applicant.
(h) Upon receipt of a quarterly statement from the district, the
Division shall reimburse to the district the appropriate amount
for technical and clerical assistance.
(i) The district shall be responsible for and approve all BMP
inspections as set forth in Rule .0107(e) of this Section to insure
proper maintenance and continuation under the cost share
agreement.
(j) Districts shall provide quarterly reports on program
accomplishments to the commission on October 15, January 15,
April 15 and an annual report on July 15.
(k)(j) The district will be responsible for keeping appropriate
records dealing with the program.
Authority G.S. 139-4; 139-8; 143-215.74; 143B-294.
SUBCHAPTER 06I – COMMUNITY CONSERVATION
ASSISTANCE PROGRAM FOR NONPOINT SOURCE
POLLUTION CONTROL
SECTION .0100 – COMMUNITY CONSERVATION
ASSISTANCE PROGRAM
15A NCAC 06I .0107 COST SHARE AGREEMENT
(a) The landowner shall be required to sign the agreement for all
practices. An applicant who is not the landowner may submit a
long term written lease or other legal document, indicating
control over the land in lieu of the landowner's signature,
provided the control runs the length of the life of the practice as
listed in the respective Program Year's Implementation Plan.
Signature on the agreement constitutes responsibility for BMP
maintenance and continuation.
(b) As a condition for receiving cost share or cost share
incentive payments for implementing BMP's, the applicant shall
agree to continue and maintain those practices for the minimum
life as set forth in the Detailed Implementation Plan, effective
the date the BMP's are implemented.
(c) As a condition for receiving cost share payments, the
applicant shall agree to submit a soil test sample for analysis and
follow the fertilizer application recommendations as close as
reasonably and practically possible.
(d) The technical representative of the district shall determine if
the practice(s) implemented have been installed according to
specifications approved by the Commission or by the Division
for district BMP's. The district shall be responsible for making
an annual spot check of five percent of all cost share agreements
for which the required BMP maintenance period has not expired.
(e) If the technical representative of the district determines that
a BMP for which program funds were received has been
destroyed or has not been properly maintained, the applicant will
be notified that the BMP must be repaired or re-implemented
within 30 working days. For vegetative practices, applicants are
given one calendar year to re-establish the vegetation. The
district may grant a prescribed extension period if it determines
compliance cannot be met due to circumstances beyond the
applicants control.
(f) If the practices are not repaired or reimplemented within the
specified time, the applicant shall be required to repay to the
Division a prorated refund for cost share BMP's as shown in
Table 1 and 100 percent of the cost share incentive payments
received.
Table 1
PRORATED REFUND SCHEDULE FOR NONCOMPLIANCE
OF COST SHARE PAYMENTS
Percent Age of Practice Life Percent Refund
PROPOSED RULES
22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007
791
0 100
10 95
20 89
30 82
40 74
50 65
60 55
70 44
80 31
90 17
100 0
(g) An applicant, who has been found in noncompliance and
who does not agree to repair or reimplement the cost shared
practices, and a District may jointly request the commission to
informally mediate the case. To invoke this method of
mediation, both parties must stipulate that the commission
mediation is binding.
(i) An applicant shall have a maximum of 180 days to make
repayment to the Division following the final appeals process.
(j) The inability to properly maintain cost shared practices or the
destruction of such practices through no fault of the applicant
shall not be considered as noncompliance with the cost share
agreement.
(k) When land under cost share agreement changes owners, the
new landowner shall be strongly encouraged by the district to
accept the remaining maintenance obligation. If the new
landowner does not accept the maintenance requirements in
writing, then the original applicant shall be required to refund
100 percent of all CSI payments and a prorated portion of cost
share payments in accordance with Table 1 in Paragraph (f) of
this Rule.
Authority G.S. 139-8; 143-215.74(M).
15A NCAC 06I .0108 DISTRICT PROGRAM
OPERATION
(a) As a component of the annual strategy plan developed by
each district, all natural resource concerns will be prioritized
according to pollution potential. Technical and financial
assistance will be targeted to facilitate BMP implementation on
the identified critical areas.
(b) Priority by the district may be given to implementing
systems of BMP's which provide the most cost effective
reduction of nonpoint source pollution.
(c) All applicants shall apply to the district and complete the
necessary forms in order to receive cost share payments.
(d) The district shall review each application and the feasibility
of each application. The district shall review and approve the
evaluation and assign priority for cost sharing. All applicants
shall be informed of cost share approval or denial.
(e) Upon approval of the application by the district, the
applicant and the district shall enter into a cost share agreement.
The cost share agreement shall list the practices to be cost shared
with state funds. The agreement shall also include the average
cost of the recommended practice(s), cost incentive payment of
the practice(s), and the expected implementation date of the
practice(s). CPO's will be developed and become a part of the
cost share agreement.
(f) Upon completion of practice(s) implementation, the
technical representative of the district shall notify the district of
compliance with design specifications.
(g) Upon notification, the district shall review the CPO. Upon
approval, the district shall certify the practices in the CPO and
notify the Division to make payment to the applicant.
(h) Upon receipt of a quarterly statement from the district, the
Division shall reimburse to the district the appropriate amount
for technical and clerical assistance.
(i) The district shall be responsible for and approve all BMP
inspections as set forth in Rule .0107(d) of this Section to insure
proper maintenance and continuation under the cost share
agreement.
(j) The district will be responsible for keeping appropriate
records dealing with the program.
Authority G.S. 139-4; 139-8; 143-215.74(M); 143B-294.
* * * * * * * * * * * * * * * * * * * *
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Coastal Resources Commission intends to amend the rules
cited as 15A NCAC 07B .0802, 07H .0209, .0305-.0306, .0312.
Proposed Effective Date: March 1, 2008
Public Hearing:
Date: November 29, 2007
Time: 5:00 p.m.
Location: City Hotel and Bistro, 203 SW Greenville Blvd.,
Greenville, NC 27834
Reason for Proposed Action:
15A NCAC 07B .0802 - The Coastal Resources Commission
(CRC) is proceeding with rule making in order to clarify how
PROPOSED RULES
22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007
792
local governments are to present their locally-adopted land use
plans to the Commission for certification. The proposed
changes are procedural clarifications.
15A NCAC 07H .0209 - The Coastal Resources Commission has
proposed rule amendments that further refine the limitations
under which existing structures built over public trust waters
may be redeveloped and has clarified the acceptable non-water
dependent uses of these structures.
15A NCAC 07H .0305 - The primary purposes for this proposed
rule change, along with other minor and administrative
changes: 1. To eliminate the alternate vegetation line (AVL)
provision which has proven to be unworkable. 2. To re-define
large-scale beach fill projects. To create a methodology other
than the existing AVL methodology for establishing static
vegetation lines for the communities of Oak Island and Ocean
Isle Beach.
15A NCAC 07H .0306 - The proposed changes focus on three
primary components; 1) setback requirements will be based on
structure size, removing the single-family residence exemption;
2) setback distances will be calculated based on stepped setback
factors with the maximum factor increased from 60 to 90 times
the erosion rate; and 3) setback exceptions for development
adjacent to large-scale beach nourishment projects.
15A NCAC 07H .0312 - The Division of Coastal Management
(DCM) has recently identified certain technical difficulties
within the rule that can make compliance with the rule
impractical in some instances. For example, the rule currently
requires a characterization of the native beach sediment from
the dune crest offshore to a depth of 20 feet. On some parts of
the coast this depth can still be found over thee miles offshore,
and it is not the CRC's intent to require sampling that far from
the dry sand beach. In addition, the current rule requires
seafloor surveys of potential borrow areas using a methodology
that will not work in shallow water. This provision needs to be
amended to allow for an alternate sampling methodology.
Procedure by which a person can object to the agency on a
proposed rule: Objections may be filed in writing and
addressed to the Director, NC Division of Coastal Management,
400 Commerce Ave, Morehead City, NC 28557.
Comments may be submitted to: Jim Gregson, 400
Commerce Avenue, Morehead City, NC 28557, phone (252)808-
2808, fax (252)547-3330.
Comment period ends: December 31, 2007
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 - COASTAL MANAGEMENT
SUBCHAPTER 07B – CAMA LAND USE PLANNING
SECTION .0800 – CAMA LAND USE PLAN REVIEW
AND CRC CERTIFICATION
15A NCAC 07B .0802 PRESENTATION TO COASTAL
RESOURCES COMMISSION FOR CERTIFICATION
(a) Re-Certification: If the CRC adopts new CAMA Land Use
Plan rules, plans shall be updated within six years of the
effective date of the new rules. If a scoping process is held, a
summary shall be provided to the CRC along with the request
for re-certification of the existing CAMA Land Use Plan.
(b) Committee Designated by CRC to Review Local Land Use
Plans:
(1) The appropriate DCM District Planner shall
submit a written report to the committee
designated by the CRC as to the type of plan
being presented, highlight any unique
characteristics of the plan, identify any land
use conflicts with adjacent planning
jurisdictions or other state/federal agencies,
identify any inaccuracy or inconsistency of
items in the plan, and recommend certification,
conditional certification, or non-certification.
(2) The local government shall submit its draft
Land Use Plan shall be presented to the
committee designated by the CRC. CRC by an
elected local official, municipal or county staff
member, or designated citizen representative.
(3) The public shall have an opportunity to present
submit written objections, comments, or
statements of support prior to action by the
committee designated by the CRC. Written
objections shall be received by DCM no less
than 15 business days prior to the next
scheduled CAMA Land Use Plan review
meeting and shall be limited to the criteria for
CRC certification as defined in Subparagraph
(c)(3) of this Rule. Written objections shall
identify the specific plan elements that are
opposed. A copy of any objections shall be
sent by the DCM to the local government
submitting the CAMA Land Use Plan.
(4) The local government may withdraw the
submitted CAMA Land Use Plan from CRC
consideration at any time before review.
(c) CRC Certification:
PROPOSED RULES
22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007
793
(1) The CRC shall certify the CAMA Land Use
Plan following the procedures and conditions
specified in this Rule.
(2) Provided the locally adopted land use plan has
been received by the Executive Secretary no
earlier than 45 days and no later than 30 days
prior to the next CRC meeting, the CRC shall
certify, conditionally certify or not certify the
plan at that meeting or mutually agreed upon
date. If the CRC fails to take action as
specified above the plan shall be certified.
(3) The CRC shall certify plans which:
(A) are consistent with the current
federally approved North Carolina
Coastal Management Program; and
(B) are consistent with the Rules of the
CRC; and
(C) do not violate state or federal law;
and
(D) contain policies that address each
Management Topic. If a local
government cannot meet any CAMA
Land Use Plan requirement contained
within Paragraphs (d) and (e) of 15A
NCAC 07B .0702 the plan shall
include a description of the analysis
that was undertaken, explain the
reason(s) the requirement could not
be met, and the local government's
alternative plan of action to address
the CAMA Land Use Plan
requirements. If such description(s)
are not included in the plan, it shall
not be certified; and
(E) contain a local resolution of adoption
that includes findings which
demonstrate that policy statements
and the Future Land Use Plan Map
(FLUP) have been evaluated, and
determine that no internal
inconsistencies exist.
(d) Non-Certification: If the plan is not certified the CRC shall
within 30 days inform the local government as to how the plan
might be changed so certification can be granted. Until the plan
is certified, the pre-existing certified CAMA Land Use Plan
shall remain in effect.
(e) Conditional Certification: If the plan is conditionally
certified, the CRC shall within 30 days provide the local
government with condition(s) that shall be met for certification.
Until the condition(s) is met on a conditionally certified plan, the
pre-existing certified CAMA Land Use Plan shall remain in
effect. When the local government complies with all conditions
for a conditionally certified plan, as determined by the Executive
Secretary of the CRC, plan certification is automatic with no
further action needed by the CRC.
Authority G.S. 113A-107(a); 113A-110; 113-111; 113A-124.
SUBCHAPTER 07H - STATE GUIDELINES FOR AREAS
OF ENVIRONMENTAL CONCERN
SECTION .0200 – THE ESTUARINE AND OCEAN
SYSTEMS
15A NCAC 07H .0209 COASTAL SHORELINES
(a) Description. The Coastal Shorelines category includes
estuarine shorelines and public trust shorelines. Estuarine
shorelines AEC are those non-ocean shorelines extending from
the normal high water level or normal water level along the
estuarine waters, estuaries, sounds, bays, fresh and brackish
waters, and public trust areas as set forth in an agreement
adopted by the Wildlife Resources Commission and the
Department of Environment and Natural Resources [described in
Rule .0206(a) of this Section] for a distance of 75 feet landward.
For those estuarine shorelines immediately contiguous to waters
classified as Outstanding Resource Waters by the Environmental
Management Commission, the estuarine shoreline AEC shall
extend to 575 feet landward from the normal high water level or
normal water level, unless the Coastal Resources Commission
establishes the boundary at a greater or lesser extent following
required public hearing(s) within the affected county or counties.
Public trust shorelines AEC are those non-ocean shorelines
immediately contiguous to public trust areas, as defined in Rule
07H .0207(a) of this Section, located inland of the dividing line
between coastal fishing waters and inland fishing waters as set
forth in that agreement and extending 30 feet landward of the
normal high water level or normal water level.
(b) Significance. Development within coastal shorelines
influences the quality of estuarine and ocean life and is subject
to the damaging processes of shore front erosion and flooding.
The coastal shorelines and wetlands contained within them serve
as barriers against flood damage and control erosion between the
estuary and the uplands. Coastal shorelines are the intersection
of the upland and aquatic elements of the estuarine and ocean
system, often integrating influences from both the land and the
sea in wetland areas. Some of these wetlands are among the
most productive natural environments of North Carolina and
they support the functions of and habitat for many valuable
commercial and sport fisheries of the coastal area. Many land-based
activities influence the quality and productivity of
estuarine waters. Some important features of the coastal
shoreline include wetlands, flood plains, bluff shorelines, mud
and sand flats, forested shorelines and other important habitat
areas for fish and wildlife.
(c) Management Objective. The management objective is to
ensure that shoreline development is compatible with the
dynamic nature of coastal shorelines as well as the values and
the management objectives of the estuarine and ocean system.
Other objectives are to conserve and manage the important
natural features of the estuarine and ocean system so as to
safeguard and perpetuate their biological, social, aesthetic, and
economic values; to coordinate and establish a management
system capable of conserving and utilizing these shorelines so as
to maximize their benefits to the estuarine and ocean system and
the people of North Carolina.
(d) Use Standards. Acceptable uses shall be those consistent
with the management objectives in Paragraph (c) of this Rule.
PROPOSED RULES
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794
These uses shall be limited to those types of development
activities that will not be detrimental to the public trust rights
and the biological and physical functions of the estuarine and
ocean system. Every effort shall be made by the permit
applicant to avoid, mitigate or reduce adverse impacts of
development to estuarine and coastal systems through the
planning and design of the development project. In every
instance, the particular location, use, and design characteristics
shall comply with the general use and specific use standards for
coastal shorelines, and where applicable, the general use and
specific use standards for coastal wetlands, estuarine waters, and
public trust areas described in Rule .0208 of this Section.
(1) All development projects, proposals, and
designs shall preserve and not weaken or
eliminate natural barriers to erosion, including,
but not limited to, peat marshland, resistant
clay shorelines, and cypress-gum protective
fringe areas adjacent to vulnerable shorelines.
(2) All development projects, proposals, and
designs shall limit the construction of
impervious surfaces and areas not allowing
natural drainage to only so much as is
necessary to adequately service the major
purpose or use for which the lot is to be
developed. Impervious surfaces shall not
exceed 30 percent of the AEC area of the lot,
unless the applicant can effectively
demonstrate, through innovative design, that
the protection provided by the design would be
equal to or exceed the protection by the 30
percent limitation. Redevelopment of areas
exceeding the 30 percent impervious surface
limitation may be permitted if impervious
areas are not increased and the applicant
designs the project to comply with the intent of
the rule to the maximum extent feasible.
(3) All development projects, proposals, and
designs shall comply with the following
mandatory standards of the North Carolina
Sedimentation Pollution Control Act of 1973:
(A) All development projects, proposals,
and designs shall provide for a buffer
zone along the margin of the
estuarine water which is sufficient to
confine visible siltation within 25
percent of the buffer zone nearest the
land disturbing development.
(B) No development project proposal or
design shall permit an angle for
graded slopes or fill which is greater
than an angle which can be retained
by vegetative cover or other
erosion-control devices or structures.
(C) All development projects, proposals,
and designs which involve
uncovering more than one acre of
land shall plant a ground cover
sufficient to restrain erosion within
30 working days of completion of the
grading; provided that this shall not
apply to clearing land for the purpose
of forming a reservoir later to be
inundated.
(4) Development shall not have a significant
adverse impact on estuarine and ocean
resources. Significant adverse impacts shall
include but not be limited to development that
would directly or indirectly impair water
quality standards, increase shoreline erosion,
alter coastal wetlands or Submerged Aquatic
Vegetation (SAV), deposit spoils waterward of
normal water level or normal high water, or
cause degradation of shellfish beds.
(5) Development shall not interfere with existing
public rights of access to, or use of, navigable
waters or public resources.
(6) No public facility shall be permitted if such a
facility is likely to require public expenditures
for maintenance and continued use, unless it
can be shown that the public purpose served
by the facility outweighs the required public
expenditures for construction, maintenance,
and continued use. For the purpose of this
standard, "public facility" shall mean a project
that is paid for in any part by public funds.
(7) Development shall not cause irreversible
damage to valuable, historic architectural or
archaeological resources as documented by the
local historic commission or the North
Carolina Department of Cultural Resources.
(8) Established common-law and statutory public
rights of access to the public trust lands and
waters in estuarine areas shall not be
eliminated or restricted. Development shall
not encroach upon public accessways nor shall
it limit the intended use of the accessways.
(9) Within the AECs for shorelines contiguous to
waters classified as Outstanding Resource
Waters by the EMC, no CAMA permit shall
be approved for any project which would be
inconsistent with applicable use standards
adopted by the CRC, EMC or MFC for
estuarine waters, public trust areas, or coastal
wetlands. For development activities not
covered by specific use standards, no permit
shall be issued if the activity would, based on
site-specific information, degrade the water
quality or outstanding resource values.
(10) Within the Coastal Shorelines category
(estuarine and public trust shoreline AECs),
new development shall be located a distance of
30 feet landward of the normal water level or
normal high water level, with the exception of
the following:
(A) Water-dependent uses as described in
Rule 07H .0208(a)(1) of this Section;
(B) Pile-supported signs (in accordance
with local regulations);
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795
(C) Post- or pile-supported fences;
(D) Elevated, slatted, wooden boardwalks
exclusively for pedestrian use and six
feet in width or less. The boardwalk
may be greater than six feet in width
if it is to serve a public use or need;
(E) Crab Shedders, if uncovered with
elevated trays and no associated
impervious surfaces except those
necessary to protect the pump;
(F) Decks/Observation Decks limited to
slatted, wooden, elevated and
unroofed decks that shall not
singularly or collectively exceed 200
square feet;
(G) Grading, excavation and landscaping
with no wetland fill except when
required by a permitted shoreline
stabilization project. Projects shall
not increase stormwater runoff to
adjacent estuarine and public trust
waters;
(H) Development over existing
impervious surfaces, provided that
the existing impervious surface is not
increased and the applicant designs
the project to comply with the intent
of the rules to the maximum extent
feasible;
(I) Where application of the buffer
requirement would preclude
placement of a residential structure
with a footprint of 1,200 square feet
or less on lots, parcels and tracts
platted prior to June 1, 1999,
development may be permitted within
the buffer as required in
Subparagraph (d)(10) of this Rule,
providing the following criteria are
met:
(i) Development shall minimize
the impacts to the buffer and
reduce runoff by limiting
land disturbance to only so
much as is necessary to
construct and provide access
to the residence and to allow
installation or connection of
utilities such as water and
sewer; and
(ii) The residential structure
development shall be located
a distance landward of the
normal high water or normal
water level equal to 20
percent of the greatest depth
of the lot. Existing
structures that encroach into
the applicable buffer area
may be replaced or repaired
consistent with the criteria
set out in Rules .0201 and
.0211 in Subchapter 07J of
this Chapter; and
(J) Where application of the buffer
requirement set out in 15A NCAC
07H .0209(d)(10) would preclude
placement of a residential structure on
an undeveloped lot platted prior to
June 1, 1999 that are 5,000 square
feet or less that does not require an
on-site septic system, or on an
undeveloped lot that is 7,500 square
feet or less that requires an on-site
septic system, development may be
permitted within the buffer if all the
following criteria are met:
(i) The lot on which the
proposed residential
structure is to be located, is
located between:
(I) Two existing
waterfront
residential
structures, both of
which are within
100 feet of the
center of the lot and
at least one of
which encroaches
into the buffer; or
(II) An existing
waterfront
residential structure
that encroaches into
the buffer and a
road, canal, or other
open body of water,
both of which are
within 100 feet of
the center of the lot;
(ii) Development of the lot shall
minimize the impacts to the
buffer and reduce runoff by
limiting land disturbance to
only so much as is necessary
to construct and provide
access to the residence and
to allow installation or
connection of utilities;
(iii) Placement of the residential
structure and pervious
decking may be aligned no
further into the buffer than
the existing residential
structures and existing
pervious decking on
adjoining lots;
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796
(iv) The first one and one-half
inches of rainfall from all
impervious surfaces on the
lot shall be collected and
contained on-site in
accordance with the design
standards for stormwater
management for coastal
counties as specified in 15A
NCAC 02H .1005. The
stormwater management
system shall be designed by
an individual who meets
applicable State
occupational licensing
requirements for the type of
system proposed and
approved during the permit
ap