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This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER VOLUME 22 ● ISSUE 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. IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 759 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 760 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 761 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 762 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 763 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 764 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 765 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 766 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 767 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 768 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 769 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 770 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 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 771 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. IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 772 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. IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 773 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 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 774 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 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 775 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 PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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 PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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). PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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. PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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 PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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. PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 781 (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). PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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 PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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 PROPOSED RULES 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 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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); PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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; PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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
Object Description
Description
Title | North Carolina register |
Date | 2007-11-01 |
Description | Volume 22, Issue 9, (November 1, 2007) |
Digital Characteristics-A | 6 MB; 141 p. |
Digital Format |
application/pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_borndigital\images_master\ |
Full Text | This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER VOLUME 22 ● ISSUE 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. IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 759 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 760 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 761 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 762 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 763 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 764 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 765 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 766 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 767 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 768 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 769 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 770 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 IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 771 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. IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 772 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. IN ADDITION 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 773 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 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 774 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 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 775 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 PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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 PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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). PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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. PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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 PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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. PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 781 (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). PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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 PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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 PROPOSED RULES 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 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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); PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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; PROPOSED RULES 22:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2007 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 |
OCLC number | 13686205 |