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NORTH CAROLINA REGISTER Volume 19, Issue 23 Pages 1816 - 1970 June 1, 2005 This issue contains documents officially filed through May 10, 2005. Office of Administrative Hearings Rules Division 424 North Blount Street (27601) 6714 Mail Service Center Raleigh, NC 27699-6714 (919) 733-2678 FAX (919) 733-3462 Julian Mann III, Director Camille Winston, Deputy Director Molly Masich, Director of APA Services Dana Sholes, Publication Coordinator Linda Dupree, Editorial Assistant Julie Brincefield, Editorial Assistant IN THIS ISSUE I. IN ADDITION Notice of Public Meeting – DENR ..........................1816 - 1817 Summary of Notice of Intent to Redevelop A Brownfields Property Bellevue Development, LLC ............................1818 Town of Fletcher...............................................1819 Tax Review Board Decisions...................................1820 - 1828 II. PROPOSED RULES Agriculture Plant Conservation Board.....................................1829 - 1833 Environment and Natural Resources Coastal Resources Commission ...........................1889 - 1893 Environmental Management Commission ...........1862 - 1889 Health Services, Commission for ........................1893 - 1898 Health and Human Services Facility Services ...................................................1844 - 1861 Health Services, Commission for .........................1834 - 1844 Insurance Manufactured Housing Board ..............................1861 - 1862 III. APPROVED RULES.............................................1899 - 1936 Community Colleges Environment and Natural Resources Environmental Health Environmental Management Wildlife Resources Health and Human Services Medical Care Commission Licensing Boards Cosmetic Art Examiners, Board of Nursing, Board of Podiatry Examiners, Board of Secretary of State Securities Division IV. RULES REVIEW COMMISSION.......................1937 - 1939 V. CONTESTED CASE DECISIONS Index to ALJ Decisions............................................1940 - 1948 Text of Selected Decisions 04 OSP 0190.........................................................1949 - 1970 For the CUMULATIVE INDEX to the NC Register go to: http://ncoah.com/register/CI.pdf North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC 27601. North Carolina Register (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register, 6714 Mail Service Center, Raleigh, NC 27699-6714. NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM The North Carolina Administrative Code (NCAC) has four major classifications of rules. Three of these, titles, chapters, and sections are mandatory. The major classification of the NCAC is the title. Each major department in the North Carolina executive branch of government has been assigned a title number. Titles are further broken down into chapters which shall be numerical in order. Subchapters are optional classifications to be used by agencies when appropriate. NCAC TITLES TITLE 21 LICENSING BOARDS TITLE 24 INDEPENDENT AGENCIES 1 ADMINISTRATION 2 AGRICULTURE & CONSUMER SERVICES 3 AUDITOR 4 COMMERCE 5 CORRECTION 6 COUNCIL OF STATE 7 CULTURAL RESOURCES 8 ELECTIONS 9 GOVERNOR 10A HEALTH AND HUMAN SERVICES 11 INSURANCE 12 JUSTICE 13 LABOR 14A CRIME CONTROL & PUBLIC SAFETY 15A ENVIRONMENT &NATURAL RESOURCES 16 PUBLIC EDUCATION 17 REVENUE 18 SECRETARY OF STATE 19A TRANSPORTATION 20 TREASURER 21* OCCUPATIONAL LICENSING BOARDS 22 ADMINISTRATIVE PROCEDURES (REPEALED) 23 COMMUNITY COLLEGES 24* INDEPENDENT AGENCIES 25 STATE PERSONNEL 26 ADMINISTRATIVE HEARINGS 27 NC STATE BAR 28 JUVENILE JUSTICE AND DELINQUENCY PREVENTION 1 Acupuncture 2 Architecture 3 Athletic Trainer Examiners 4 Auctioneers 6 Barber Examiners 8 Certified Public Accountant Examiners 10 Chiropractic Examiners 11 Employee Assistance Professionals 12 General Contractors 14 Cosmetic Art Examiners 16 Dental Examiners 17 Dietetics/Nutrition 18 Electrical Contractors 19 Electrolysis 20 Foresters 21 Geologists 22 Hearing Aid Dealers and Fitters 25 Interpreter/Transliterator 26 Landscape Architects 28 Landscape Contractors 29 Locksmith Licensing 30 Massage & Bodywork Therapy 31 Marital and Family Therapy 32 Medical Examiners 33 Midwifery Joint Committee 34 Funeral Service 36 Nursing 37 Nursing Home Administrators 38 Occupational Therapists 40 Opticians 42 Optometry 44 Osteopathic Examination (Repealed) 45 Pastoral Counselors, Fee-Based Practicing 46 Pharmacy 48 Physical Therapy Examiners 50 Plumbing, Heating & Fire Sprinkler Contractors 52 Podiatry Examiners 53 Professional Counselors 54 Psychology 56 Professional Engineers & Land Surveyors 57 Real Estate Appraisal 58 Real Estate Commission 60 Refrigeration Examiners 61 Respiratory Care 62 Sanitarian Examiners 63 Social Work Certification 64 Speech & Language Pathologists & Audiologists 65 Therapeutic Recreation Certification 66 Veterinary Medical 68 Substance Abuse Professionals 69 Soil Scientists 1 Housing Finance 2 Agricultural Finance Authority 3 Safety & Health Review Board 4 Reserved 5 State Health Plan Purchasing Alliance Board Note: Title 21 contains the chapters of the various occupational licensing boards and Title 24 contains the chapters of independent agencies. NORTH CAROLINA REGISTER Publication Schedule for January 2005 – December 2005 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 19:13 01/03/05 12/08/04 01/18/05 03/04/05 03/21/05 05/01/05 05/06 09/30/05 19:14 01/18/05 12/22/04 02/02/05 03/21/05 04/20/05 06/01/05 05/06 10/15/05 19:15 02/01/05 01/10/05 02/16/05 04/04/05 04/20/05 06/01/05 05/06 10/29/05 19:16 02/15/05 01/25/05 03/02/05 04/18/05 04/20/05 06/01/05 05/06 11/12/05 19:17 03/01/05 02/08/05 03/16/05 05/02/05 05/20/05 07/01/05 05/06 11/26/05 19:18 03/15/05 02/22/05 03/30/05 05/16/05 05/20/05 07/01/05 05/06 12/10/05 19:19 04/01/05 03/10/05 04/16/05 05/31/05 06/20/05 08/01/05 05/06 12/27/05 19:20 04/15/05 03/24/05 04/30/05 06/14/05 06/20/05 08/01/05 05/06 01/10/06 19:21 05/02/05 04/11/05 05/17/05 07/01/05 07/20/05 09/01/05 05/06 01/27/06 19:22 05/16/05 04/25/05 05/31/05 07/15/05 07/20/05 09/01/05 05/06 02/10/06 19:23 06/01/05 05/10/05 06/16/05 08/01/05 08/22/05 10/01/05 05/06 02/26/06 19:24 06/15/05 05/24/05 06/30/05 08/15/05 08/22/05 10/01/05 05/06 03/12/06 20:01 07/01/05 06/10/05 07/16/05 08/30/05 09/20/05 11/01/05 05/06 03/28/06 20:02 07/15/05 06/23/05 07/30/05 09/13/05 09/20/05 11/01/05 05/06 04/11/06 20:03 08/01/05 07/11/05 08/16/05 09/30/05 10/20/05 12/01/05 05/06 04/28/06 20:04 08/15/05 07/25/05 08/30/05 10/14/05 10/20/05 12/01/05 05/06 05/12/06 20:05 09/01/05 08/11/05 09/16/05 10/31/05 11/21/05 01/01/06 05/06 05/29/06 20:06 09/15/05 08/25/05 09/30/05 11/14/05 11/21/05 01/01/06 05/06 06/12/06 20:07 10/03/05 09/12/05 10/18/05 12/02/05 12/20/05 02/01/06 05/06 06/30/06 20:08 10/17/05 09/26/05 11/01/05 12/16/05 12/20/05 02/01/06 05/06 07/14/06 20:09 11/01/05 10/11/05 11/16/05 01/03/06 01/20/06 03/01/06 05/06 07/29/06 20:10 11/15/05 10/24/05 11/30/05 01/17/06 01/20/06 03/01/06 05/06 08/12/06 20:11 12/01/05 11/07/05 12/16/05 01/30/06 02/20/06 04/01/06 05/06 08/28/06 20:12 12/15/05 11/22/05 12/30/05 02/13/06 02/20/06 04/01/06 05/06 09/11/06 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 19:23 NORTH CAROLINA REGISTER June 1, 2005 1816 Note from the Codifier: This Section contains public notices that are required to be published in the Register or have been approved by the Codifier of Rules for publication. NOTICE OF PUBLIC MEETING AND PUBLIC COMMENT PERIOD NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES DIVISION OF WASTE MANAGEMENT HAZARDOUS WASTE SECTION 1646 MAIL SERVICE CENTER RALEIGH, NORTH CAROLINA 27699-1646 (919) 508- 8400 Notice is hereby given of a public meeting and public comment period on the Remedial Recommendation Document for the former Seaboard Chemical Corporation Facility and the City of High Point Riverdale Drive Landfill site located in Jamestown, North Carolina, Guilford County. The purpose of the Remedial Recommendation Document is to present the remedy that is recommended by the City of High Point, North Carolina and Seaboard Group II to address the containment and remediation of impacted soils and ground water at the site. The proposed remedy will provide the containment and treatment necessary to ensure an effective and viable remedy that is protective of public health, safety and the environment. A summary of the Document appears at the end of this notice*. This is to notify the public of a Public Hearing to be held on Thursday, June 23, 2005 at 7:00 p.m. in the auditorium at Guilford Technical Community College, located at 601 High Point Road, Jamestown, N. C. All interested parties will have an opportunity to present oral and/or written statements concerning the proposed remedy. Five (5) minutes will be allotted per speaker. The public comment period will begin on June 1, 2005 and extend through July 15, 2005. All comments received during the public comment period or at the public meeting will be considered in the formulation of a final decision on the Remedy recommendation document. Written comments regarding the Remedial Recommendation Document should be sent to the following address by July 15, 2005: Mr. Robert Glaser Hazardous Waste Section N. C. Division of Waste Management 1646 Mail Service Center Raleigh, NC 27699-1646 The Remedial Recommendation Document is available for review at the following location during office hours (9:00 a.m. – 4:00 p.m.) Monday through Friday: Division of Waste Management Hazardous Waste Section 401 Oberlin Road, Suite 150, Room 21 Raleigh, North Carolina 27605 Call (919) 508-8400, extension 8564 for an appointment The City of High Point will also maintain a copy of the Remedial Recommendation Document, as part of the administrative record, at the High Point Public Library, 901 North Main Street, High Point. No appointment is necessary to review the Remedy Recommendation Document during normal business hours (Library phone number is 336-883-3643). * Summary of Remedial Recommendation Document The proposed Remedy takes into consideration the findings of the Remedial Investigation (RI), the Feasiblity Study (FS) and the Baseline Risk assessment (BRA) and the currently known technical limitations on remediation of dense, non-aqueous phase liquids (“DNAPL”) in fractured bedrock. The proposed Remedy includes engineering and institutional controls along with leachate collection, groundwater extraction and treatment for plume containment and contaminant reduction. The proposed Remedy will control potential for off-site migration of impacted groundwater and leachate into the Deep River and, once constructed, into Randleman Reservoir. The proposed Remedy addresses these objectives through the following components: IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1817 1. Isolation of Landfill leachate and leachate-impacted groundwater to prevent its migration to the waters of the Deep River and the Northern and Southern Intermittent Streams; 2. Stabilization of Landfill slopes and enhancement of the existing caps at the Landfill and the Seaboard Site; 3. Extraction of groundwater to contain plume migration and capture impacted groundwater recharge into the Deep River and the Northern and Southern Intermittent Streams. 4. Treatment of extracted groundwater to reduce contaminant mass 5. The use of natural treatment processes, including constructed wetlands and upland phytoremediation systems, to provide sustainable and cost-effective treatment of extracted groundwater; 6. Physical and chemical treatment, including air stripping, aeration and ozone-oxidation methods, to supplement the natural treatment processes. A HiPOx treatment system, which uses hydroxyl radicals formed by the reaction of ozone with hydrogen peroxide organic containment in the groundwater, is proposed for use at the Site. This system will provide effective treatment during periods of time when the natural treatment systems are being started up 7. Continued use and maintenance of the existing fences and warning signs at the Site to restrict unauthorized access; 8. Permanent land use restrictions on the Seaboard Site and the property immediately across the Deep River from the Site and the Landfill to prevent future uses of impacted groundwater or activities which could result in unacceptable risk exposures; 9. Long term, periodic site inspections and agency reviews; and 10. Long-term, periodic groundwater and surface water monitoring. NC DENR will provide auxiliary aids and services for disabled persons who wish to review the documents to comply with the Americans with Disabilities Act. To receive special services, please contact Robert Glaser at the address above, via email at robert.glaser@ncmail.net or by calling (919) 508-8541. IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1818 SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY Bellevue Development, LLC Pursuant to N.C.G.S. § 130A-310.34, Bellevue Development, LLC has filed with the North Carolina Department of Environment and Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Hillsborough, Orange County, North Carolina. The Property consists of approximately 9.1 acres and is located at 200 through 210 South Nash Street. Environmental contamination exists on the Property in the soil and groundwater. Bellevue Development, LLC has committed itself to make no use of the Property other than for owner- or tenant-occupied residential apartments and related amenities. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and Bellevue Development, LLC, which in turn includes (a) a map showing the location of the Property, (b) a description of the contaminants involved and their concentrations in the media of the Property, (c) the above-stated description of the intended future use of the Property, and (d) proposed investigation and remediation; and (2) a proposed Notice of Brownfields Property prepared in accordance with G.S. 130A-310.35. The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at the Orange County Public Library, 300 W. Tryon St., Hillsborough, NC 27278, by contacting Ms. Kim Sholar at that address or at (919) 245-2525; or at 401 Oberlin Rd., Raleigh, NC 27605 by contacting Ms. Shirley Liggins at that address, at shirley.liggins@ncmail.net, or at (919) 508- 8411, where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents. Written public comments may be submitted to DENR within 60 days after the date this Notice is published in a newspaper of general circulation serving the area in which the brownfields property is located, or in the North Carolina Register, whichever is later. Written requests for a public meeting may be submitted to DENR within 30 days after the period for written public comments begins. Thus, if Bellevue Development, LLC, as it plans, publishes this Summary in the North Carolina Register after it publishes the Summary in a newspaper of general circulation serving the area in which the brownfields property is located, and if it effects publication of this Summary in the North Carolina Register on the date it expects to do so, the periods for submitting written requests for a public meeting regarding this project and for submitting written public comments will commence on June 2, 2005. All such comments and requests should be addressed as follows: Mr. Bruce Nicholson Brownfields Program Manager Division of Waste Management NC Department of Environment and Natural Resources 401 Oberlin Road, Suite 150 Raleigh, North Carolina 27605 IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1819 SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY Town of Fletcher Pursuant to N.C.G.S. § 130A-310.34, the Town of Fletcher has filed with the North Carolina Department of Environment and Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Fletcher, Henderson County, North Carolina. The Property consists of 28.77 acres on the east side of Howard Gap Road near U.S. Highway 25. The Property is bordered to the north by railroad tracks and land that is partially vacant and partially agricultural; to the south by the facilities of Asheville Maintenance and Construction, Inc., where equipment/supply storage and work related to electrical, carpentry and painting contracting occur, and by property containing a building that houses the Park Ridge Medical Association medical practice; to the southeast by Fletcher Community Park; to the east by land that is partially vacant and partially agricultural; and to the west by Howard Gap Road. Environmental contamination exists on the Property in soil and groundwater. The Town of Fletcher has committed itself to make no use of the Property other than for mixed commercial/residential redevelopment to include a town hall, commercial and retail businesses, office space, green space with walking trails, and residential townhomes or condominiums. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and the Town of Fletcher, which in turn includes (a) a map showing the location of the Property, (b) a description of the contaminants involved and their concentrations in the media of the Property, (c) the above-stated description of the intended future use of the Property, and (d) proposed investigation and remediation; and (2) a proposed Notice of Brownfields Property prepared in accordance with G.S. 130A-310.35. The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at Henderson County Public Library, Fletcher Branch, 120 Library Road, Fletcher, NC 28732 by contacting Sherry Waldrop at (828) 687-1218; or at 401 Oberlin Rd., Raleigh, NC 27605 by contacting Shirley Liggins at that address, at shirley.liggins@ncmail.net, or at (919) 733-2801, ext. 336, where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents. Written public comments may be submitted to DENR within 60 days after the date this Notice is published in a newspaper of general circulation serving the area in which the brownfields property is located, or in the North Carolina Register, whichever is later. Publication in the North Carolina Register is scheduled for June 1, 2005. Written requests for a public meeting may be submitted to DENR within 30 days after the period for written public comments begins. Thus, if the Town of Fletcher, as it plans, publishes this Summary in the North Carolina Register after it publishes the Summary in a newspaper of general circulation serving the area in which the brownfields property is located, and if it effects publication of this Summary in the North Carolina Register on the date it expects to do so, the periods for submitting written requests for a public meeting regarding this project and for submitting written public comments will commence on August 1, 2005. All such comments and requests should be addressed as follows: Mr. Bruce Nicholson Brownfields Program Manager Division of Waste Management NC Department of Environment and Natural Resources 401 Oberlin Road, Suite 150 Raleigh, North Carolina 27605 IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1820 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Sales and Use ) Tax for the period April 1, 1999 through ) March 31, 2002, by the Secretary of ) Revenue of North Carolina ) ) ADMINISTRATIVE DECISION ) Number: 451 ) vs. ) ) EarthData International of North Carolina, LLC ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer on Tuesday, April 13, 2004, upon a petition filed by EarthData International of North Carolina, LLC (hereinafter "Taxpayer") for administrative review of the Final Decision of the Assistant Secretary of Revenue sustaining the proposed use tax assessment for the period of April 1, 1999 through March 31, 2002. Chairman Richard H. Moore, State Treasurer, presided over the hearing with ex officio member, Jo Anne Sanford, Chair, Utilities Commission and duly appointed member, Noel L. Allen, Attorney at Law participating. Pursuant to N.C. Gen. Stat. § 105-241.2, the Taxpayer, through counsel, appeals from the adverse decision by the Assistant Secretary of Revenue issued on June 10, 2003 that sustained the assessment of use tax and interest, but waived the penalties imposed against the Taxpayer in this matter. STATEMENT OF CASE AND FACTS The Taxpayer is a land surveying company with its corporate offices in High Point, North Carolina. The Taxpayer provides aerial topographical mapping services within and without North Carolina. These services are nontaxable when ultimately sold to the Taxpayer's customers. In the course of providing land surveying services to its customers, the Taxpayer purchases aerial photography, undeveloped film, contract prints, negatives, diapositives, data tapes and compact disks, and thermal imagery from subcontractors that include affiliate companies. After conducting an audit of the Taxpayer's records, the Department of Revenue proposed a use tax assessment against the Taxpayer. The additional tax resulted from Taxpayer's purchases for use of aerial photography, undeveloped film, geo-referenced imaging data in the form of a contract print, negative or diapositive and scanning information in the form of data tapes or compact disks. After receiving the notice of assessment, the Taxpayer, through counsel, notified the Department of Revenue that it objected to the assessment and requested an administrative hearing before the Secretary of Revenue. After conducting the hearing, the Assistant Secretary of Revenue issued a final decision sustaining the proposed assessment of use tax and interest for the period of April 1, 1999 through March 31, 2002. For good cause shown, the Assistant Secretary of Revenue waived the penalties that were imposed against the Taxpayer. Thereafter, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary of Revenue's final decision with the Board. ISSUES The issues considered by the Assistant Secretary of Revenue regarding this matter are stated as follows: 1. Are the Taxpayer's purchases of undeveloped aerial photography film, contract prints, negatives, diapositives, data tapes and compact disks considered purchases of taxable property for use or purchase of nontaxable services? 2. Is the Taxpayer a disregarded entity, and therefore not subject to sales tax, based on its corporate structure and the corporate structure of its vendors? 3. Are the penalties and interest on the Taxpayer's assessment correctly proposed and assessed? IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1821 EVIDENCE Pursuant to N.C. Gen. Stat. § 105-241.2(b), the Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary. FINDINGS OF FACTS The Board reviewed and considered the findings of fact entered by the Assistant Secretary of Revenue in his decision regarding this matter. CONCLUSIONS OF LAW The Board reviewed and considered the conclusions of law made by the Assistant Secretary of Revenue in his decision regarding this matter. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the Taxpayer to rebut that presumption. In order to rebut the presumption, the Taxpayer must offer evidence to show that the assessment is not proper. The record in this matter shows that the Taxpayer is a single member limited liability company that provides aerial topographical services. In order to provide its nontaxable aerial topographical services, the Taxpayer purchases undeveloped aerial photography film, geo-referenced imaging data in the form of contact prints, negatives, or diapositives and scanning information in the form of data tapes or compact disks. These items are purchased from subcontractors, including corporate entities that are affiliates of the Taxpayer. In the petition filed with the Board, the Taxpayer contends that the subcontractors are providing services that are an integral step in the process of photogrammetry and the services rendered by the subcontractors are not taxable under North Carolina's Use Tax. The Taxpayer further contends that any tangible personal property produced by these subcontractors is merely incidental to the professional services being rendered and the tangible items are merely an instrument of the service being performed. Thus, the Taxpayer argues that the "true object" of the transactions at issue is information and not the transfer of tangible personal property. In the alternative, the Taxpayer argues that the assessment must be reduced because it includes transactions between affiliate companies that do not constitute a taxable event under North Carolina's Sales and Use Tax. In the final decision, the Assistant Secretary determined that the "true object" of the transactions in question is the contact prints, negatives, diapositives, data tapes and compact disks because these are the items that the Taxpayer must obtain and use in order to provide the nontaxable topographical services. The Assistant Secretary ruled that Taxpayer purchases tangible personal property used in providing aerial topographical services and is therefore subject to the use taxes. The Assistant Secretary also ruled that the transactions between the Taxpayer and its wholly owned sister limited liability companies are taxable transactions. Thus, the Assistant Secretary rejected the argument that the transactions between the Taxpayer and its affiliates do not constitute a taxable event. The Board, after conducting an administrative hearing in this matter, and after considering the petition, the briefs, the whole record and the Assistant Secretary's final decision, concludes that the findings of fact made by the Assistant Secretary in the decision were fully supported by competent evidence in the record; that the Assistant Secretary's conclusions of law were fully supported by the findings of fact; therefore the Assistant Secretary's final decision should be confirmed. WHEREFORE, THE BOARD ORDERS that the Assistant Secretary of Revenue's final decision be confirmed in every respect. Made and entered into the 9th day of September 2004. TAX REVIEW BOARD Richard H. Moore, Chairman State Treasurer IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1822 Jo Anne Sanford, Member Chair, Utilities Commission Noel L. Allen, Appointed Member IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1823 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: ) ) The Proposed Assessment of Unauthorized ) Substance Tax dated January 23, 2003 ) ADMINISTRATIVE DECISION by the Secretary of Revenue of the ) NUMBER 452 State of North Carolina ) ) vs. ) ) Gwendolyn Fennell-Wimes, Taxpayer ) This Matter was heard before the Regular Tax Review Board (hereinafter “Board”) in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Wednesday, August 25, 2004, pursuant to the petition of Gwendolyn Fennell- Wimes (hereinafter “Taxpayer”) for administrative review of the final decision entered by the Assistant Secretary of Revenue on August 5, 2003, sustaining the proposed tax assessment plus interest against the Taxpayer. Pursuant to N.C.G.S. 105-113.111 and N.C.G.S. 105-241.1(a)&(b), a notice of proposed assessment was delivered to the Taxpayer by U.S. Mail sent to the Taxpayer’s last known address of 701 Chandler Road, Durham, NC 27703. The notice alleged that on January 19, 2003, the Taxpayer was in unauthorized possession of 60 dosages of oxycodone, to which no tax stamps were affixed. The notice proposed an assessment comprised of excise tax in the amount of $1,200.00, penalties totaling $480.00, and interest in the amount of $6.00, for a total proposed tax liability of $1,686.00. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. Pursuant to N.C. Gen. Stat. 105-260.1, Eugene J. Cella, Assistant Secretary, conducted a hearing upon Taxpayer’s timely application and objection to the proposed assessment. On August 5, 2003, the Assistant Secretary issued the final decision, which adjusted the proposed assessment against the Taxpayer to $1,200.00 plus interest. Thereafter, the Taxpayer timely filed a petition for administrative review of the final decision with the Board. ISSUES 1. Did the Taxpayer have actual and/or constructive possession of marijuana without the proper tax stamps affixed? 2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax? EVIDENCE Pursuant to N.C. Gen. Stat. 105-241.2(b), the Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). “The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary.” On August 25, 2004, the Board conducted an administrative hearing in this matter and considered the petition, the brief, the record, the Assistant Secretary’s final decision, the arguments presented at the administrative hearing and the documentary evidence filed with the Board on August 25, 2004. Upon review of the additional evidence filed by the Taxpayer on August 25, 2004, the Board deems this evidence material to the issues and determines that it is appropriate to remand this matter to the Assistant Secretary where the evidence shall be taken and ruled upon by the Assistant Secretary. Thus, the Board, in its discretion, remands this matter to the Assistant Secretary for a further proceeding to consider the Taxpayer’s additional evidence. THEREFORE, it is the decision of the Board to REMAND this matter to the Assistant Secretary for a further proceeding. IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1824 Made and entered into the 23rd day of November , 2004. TAX REVIEW BOARD Richard H. Moore, Chairman State Treasurer Jo Anne Sanford, Member Chair, Utilities Commission Noel L. Allen, Appointed Member IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1825 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: ) ) The Proposed Assessment of Unauthorized ) Substance Tax dated September 19, 2002 ) ADMINISTRATIVE DECISION by the Secretary of Revenue of the ) NUMBER 453 State of North Carolina ) ) vs. ) ) Gary Richard Taylor, ) Taxpayer ) This Matter was heard before the Regular Tax Review Board (hereinafter “Board”) in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Wednesday, August 25, 2004, pursuant to the petition of Gary Richard Taylor (hereinafter “Taxpayer”) for administrative review of the final decision entered by the Assistant Secretary of Revenue on May 28, 2003. Pursuant to N.C.G.S. 105-113.111 and N.C.G.S. 105-241.1(a)&(b), a notice of proposed assessment was delivered to the Taxpayer by U.S. Mail sent to the Taxpayer at his last known address of 27 Edney Rd., Arden, NC 28704. Based on the Taxpayer’s unauthorized possession of 3,924.68 grams of marijuana on September 17, 2002, to which no tax stamps were affixed, the notice proposed an assessment comprised of excise tax in the amount of $13,737.50, penalties totaling $5,495.00, and interest in the amount of $68.69, for a total proposed tax liability of $19,301.19. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. Pursuant to N.C. Gen. Stat. 105-260.1, Eugene J. Cella, Assistant Secretary, conducted a hearing upon Taxpayer’s timely application and objection to the proposed assessment. On May 28, 2004, the Assistant Secretary issued the final decision, adjusting the proposed assessment of tax to $5,390.00 plus interest for the period at issue. Thereafter, the Taxpayer timely filed a petition for administrative review of the final decision with the Board. ISSUES 1. Did the Taxpayer have actual and/or constructive possession of marijuana without the proper tax stamps affixed? 2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax? EVIDENCE Pursuant to N.C. Gen. Stat. 105-241.2(b), the Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary. Based upon the Board’s review of the documentation, those documents are incorporated by reference and are made a part of this administrative decision. FINDINGS OF FACT The Board reviewed and considered the following findings of fact entered by the Assistant Secretary in his decision regarding this matter: 1. Assessment of Unauthorized Substance Tax was made against the Taxpayer on September 17, 2002, in the sum of $13,737.50 tax, $5,495.00 penalty and $68.69 interest, for a total proposed liability of $19,301.19, based on possession of 3,924.68 grams of marijuana. 2. The Taxpayer made timely objection and application for a hearing. 3. On September 17, 2002, the Taxpayer was in constructive possession of 3,924.68 grams of marijuana. 4. No tax stamps were purchased for or affixed to the marijuana as required by law. CONCLUSIONS OF LAW The Board reviewed and considered the following conclusions of law entered by the Assistant Secretary in his decision regarding this matter: IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1826 1. A preponderance of the evidence supports the foregoing findings of fact, therefore the Taxpayer is subject to an assessment of unauthorized substances tax. 2. The forty-cent tax rate authorized in G.S. 105-113.107(a)(1) applies to “harvested marijuana stems and stalks that have been separated from and are not mixed with any other parts of the marijuana plant.” Growing marijuana plants, by definition, do not quality for this tax rate. See G.S. 105-113.106(6) and G.S. 105-113.107(a)(1a). 3. Without authorization, the Taxpayer possessed 1,100 grams of marijuana on September 17, 2002, and was therefore a “dealer” as that term is defined in N.C.G.S. 105-113.106(3). 4. The Taxpayer is liable for excise tax in the amount of $3,850.00, penalties totaling $1,540.00, and interest until date of full payment. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). “The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary.” Assessments of tax are presumed to be correct and the taxpayer has the burden to show that the assessment is not proper. It is the function of this Board, upon administrative review, to review the record and determine whether the final decision is proper based upon the evidence presented at the hearing before the Assistant Secretary. Pursuant to N.C. Gen. Stat. 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the Taxpayer must offer evidence to show that the assessment is not proper. Thus, the Board having conducted an administrative hearing in this matter, and having considered the petition, the briefs, the whole record and the Assistant Secretary’s final decision, concluded that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record; that based upon the findings of fact; therefore, the decision of the Assistant Secretary should be confirmed. WHEREFORE, THE BOARD ORDERS that the Assistant Secretary’s final decision be confirmed in every respect. Made and entered into the 23rd day of November , 2004. TAX REVIEW BOARD ______________________________ Richard H. Moore, Chairman State Treasurer ______________________________ Jo Anne Sanford, Member Chair, Utilities Commission _______________________________ Noel L. Allen, Appointed Member IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1827 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: ) ) The Proposed Assessment of Unauthorized ) Substance Tax dated December 15, 2002 ) ADMINISTRATIVE DECISION by the Secretary of Revenue of the ) NUMBER 454 State of North Carolina ) ) vs. ) ) Sammy Mark Smith, Taxpayer ) This Matter was heard before the Regular Tax Review Board (hereinafter “Board”) in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Wednesday, August 25, 2004, pursuant to the petition of Sammy Mark Smith (hereinafter “Taxpayer”) for administrative review of the final decision entered by the Assistant Secretary of Revenue on July 24, 2003, sustaining the proposed tax assessment plus penalty and interest against the Taxpayer. Pursuant to N.C.G.S. 105-113.111 and N.C.G.S. 105-241.1(a)&(b), a notice of proposed assessment was delivered to the Taxpayer by leaving a copy of same at the Taxpayer’s last known address of 281 Allen Dr., Forest City, NC 28043. The notice alleged that on December 15, 2002, the Taxpayer was in unauthorized possession of 2,940 dosages of methamphetamine, to which no tax stamps were affixed. The notice proposed an assessment comprised of excise tax in the amount of $14,700.00, penalties totaling $5,880.00, and interest in the amount of $39.20, for a total proposed tax liability of $20,619.20. The Taxpayer’s mother paid the tax in full, $14,700.00, within 48 hours, therefore the penalty and interest are waived and the hearing is essentially a request for a refund. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. Pursuant to N.C. Gen. Stat. 105-260.1, Eugene J. Cella, Assistant Secretary, conducted a hearing upon Taxpayer’s timely application and objection to the proposed assessment. On July 24, 2003, the Assistant Secretary issued the final decision, which adjusted the proposed assessment based on possession of 2,940 dosages of methamphetamine, comprised of excise tax in the amount of $14,700.00 which is deemed to be proper under the law and the facts, and is sustained and declared to be final, and the Taxpayer’s request for a refund was rightly denied. ISSUES 1. Did the Taxpayer have actual and/or constructive possession of marijuana without the proper tax stamps affixed? 2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax? EVIDENCE Pursuant to N.C. Gen. Stat. 105-241.2(b), the Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary in this matter. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). “The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary.” On August 25, 2004, the Board conducted an administrative hearing in this matter and considered the petition, the brief, the record, the Assistant Secretary’s final decision, the arguments presented at the administrative hearing and the documentary evidence filed with the Board. Upon review of the additional evidence filed by the Taxpayer concerning the SBI lab report, the Board deems this evidence material to the issues and determines that it is appropriate to remand this matter to the Assistant Secretary where the evidence shall be taken and ruled upon by the Assistant Secretary. Thus, the Board, in its discretion, remands this matter to the Assistant Secretary for a further proceeding to consider the Taxpayer’s additional evidence. THEREFORE, it is the decision of the Board to REMAND this matter to the Assistant Secretary for further consideration. IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1828 Made and entered into the 23rd day of November , 2004. TAX REVIEW BOARD ______________________________ Richard H. Moore, Chairman State Treasurer ______________________________ Jo Anne Sanford, Member Chair, Utilities Commission _______________________________ Noel L. Allen, Appointed Member PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1829 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 2 – DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES Notice is hereby given in accordance with G.S. 150B-21.2 that the Plant Conservation Board intends to amend the rules cited as 02 NCAC 48F .0301-.0302; .0304. Proposed Effective Date: October 1, 2005 Instructions on How to Demand a Public Hearing: (must be requested in writing within 15 days of notice): Any person may request a public hearing on the proposed rules by submitting a request in writing no later than June 16, 2005, to Marj Boyer, Secretary, NC Plant Conservation Board, 1060 Mail Service Center, Raleigh NC 27699-1060. Reason for Proposed Action: Proposed rule changes would add and delete various plant species to lists of protected plants based on review of their current status by the Plant Conservation Board. 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 Marj Boyer, Secretary, NC Plant Conservation Board, 1060 Mail Service Center, Raleigh, NC 27699-1060. Written comments may be submitted to: Marj Boyer, Secretary, NC Plant Conservation Board, 1060 Mail Services Center, Raleigh, NC 27699-1060, phone (919)733-3610 ext. 250, fax (919)716-1041, email marj.boyer@ncmail.net. Comment period ends: August 1, 2005 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 48 - PLANT INDUSTRY SUBCHAPTER 48F - PLANT CONSERVATION SECTION .0300 - ENDANGERED PLANT SPECIES LIST: THREATENED PLANT SPECIES LIST: LIST OF SPECIES OF SPECIAL CONCERN 02 NCAC 48F .0301 ENDANGERED PLANT SPECIES LIST The North Carolina Plant Conservation Board hereby establishes the following list of endangered plant species: (1) Adiantum capillus-veneris -- L. capillus-veneris L. Venus Hair Fern; (2) Aeschynomene virginica -- (L.) virginica (L.) B.S.P. Sensitive Jointvetch; (3) Agrostis mertensii -- Trin. mertensii Trin. Arctic bentgrass; (4) Amorpha georgiana var. georgiana -- Wilbur georgiana Wilbur Georgia Indigo-bush; (5) Amphicarpum muehlenbergianum (J.A. Schultes) A.S. Hitchc. Florida Goober Grass, Blue Maidencane; (5)(6) Arethusa bulbosa -- L. bulbosa L. Bog Rose; (6)(7) Asplenium heteroresiliens -- W.H. heteroresiliens W.H. Wagner Carolina Spleenwort; (7)(8) Asplenium monanthes -- L. monanthes L. Single-sorus Spleenwort; (8)(9) Aster parviceps -- (Burgess) parviceps (Burgess) Mackenzie & Bush Glade Aster; (9)(10) Bryocrumia andersonii -- (Bartr.) andersonii (Bartr.) Anders. Gorge Moss; (10)(11) Buckleya distichophylla -- (Nuttall) distichophylla (Nuttall) Torrey Piratebush; (11)(12) Calamagrostis cainii -- Hitchcock cainii Hitchcock Cain's Reed Grass; (12)(13) Calopogon multiflorus -- Lindl. multiflorus PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1830 Lindl. Many-flowered Grass-Pink; (14) Canoparmelia amabilis Heiman & Elix Worthy Shield Lichen; (13)(15) Cardamine micranthera -- Rollins micranthera Rollins Small-anthered Bittercress; (14)(16) Carex aenea -- Fernald aenea Fernald Fernald's Hay Sedge; (15)(17) Carex barrattii -- Schweinitz barrattii Schweinitz and Torrey Barratt's Sedge; (16)(18) Carex lutea -- LeBlond lutea LeBlond Golden Sedge; (17)(19) Carex oligosperma -- Michx. oligosperma Michx. Few-seeded Sedge; (18)(20) Carex radfordii -- Gaddy radfordii Gaddy Radford's sedge; (19)(21) Carex schweinitzii -- Dewey schweinitzii Dewey ex Schweinitz Schweinitz's Sedge; (20)(22) Carya myristiciformis -- (Michaux myristiciformis (Michaux f.) Nuttall Nutmeg hickory; (21)(23) Cheilolejeunea evansii -- (M. evansii (M. Taylor) Schust. A liverwort; (22)(24) Chrysoma pauciflosculosa -- (Michx.) pauciflosculosa (Michx.) Greene Woody Goldenrod; (23)(25) Conioselinum chinense -- (L.) chinense (L.) B.S.P. Hemlock Parsley; (24)(26) Cystopteris tennesseensis -- Shaver tennesseensis Shaver Tennessee Bladderfern; (25)(27) Dalibarda repens -- L. repens L. Robin Runaway; (26)(28) Delphinium exaltatum -- Aiton exaltatum Aiton Tall Larkspur; (29) Dichanthelium caerulescens (Hack. ex Hitchc.) Correll Blue Witch Grass; (27)(30) Echinacea laevigata -- (Boynton laevigata (Boynton and Beadle) Blake Smooth Coneflower; (28)(31) Eriocaulon lineare -- Small lineare Small Linear Pipewort; (32) Eriocaulon texense Koern. Texas Hatpins; (29)(33) Filipendula rubra -- (Hill) rubra (Hill) B.L. Robins. Queen-of-the-Prairie; (34) Fimbristylis perpusilla Harper ex Small & Britt. Harper's Fimbry; (35) Gaylussacia nana (Gray) Small Confederate Huckleberry; (30)(36) Gentianopsis crinita -- (Froelich) crinita (Froelich) Ma Fringed Gentian; (31)(37) Geum radiatum -- Michaux radiatum Michaux Spreading Avens; (32)(38) Grammitis nimbata -- (Jenm.) nimbata (Jenm.) Proctor Dwarf Polypody Fern; (33)(39) Gymnocarpium appalachianum -- Pryer appalachianum Pryer & Haufler Appalachian Oak Fern; (34)(40) Helenium brevifolium -- (Nutt.) brevifolium (Nutt.) Wood Littleleaf Sneezeweed; (35)(41) Helenium vernale -- Walt. vernale Walt. Spring Sneezeweed; (42) Helianthemum nashii Britt. Florida scrub frostweed; (43) Helianthus floridanus Gray ex Chapman Florida Sunflower; (36)(44) Helianthus schweinitzii -- T. schweinitzii T. & G. Schweinitz's Sunflower; (37)(45) Hexastylis contracta -- Blomquist contracta Blomquist Mountain Heartleaf; (38)(46) Hierochloe odorata -- (L.) odorata (L.) Beauv. Holy Grass; (39)(47) Houstonia purpurea var. montana -- (Small) montana (Small) Terrell Mountain Bluet; (40)(48) Hudsonia montana -- Nutt. montana Nutt. Mountain Golden Heather; (41)(49) Hydrastis canadensis -- L. canadensis L. Goldenseal; (42)(50) Hymenophyllum tayloriae -- Farrar tayloriae Farrar & Raine Gorge filmy fern; (51) Isoetes microvela D.F. Brunton A Quillwort; (43)(52) Isotria medeoloides -- (Pursh) medeoloides (Pursh) Raf. Small Whorled Pogonia; (44)(53) Juncus caesariensis -- Coville caesariensis Coville Rough Rush; (45)(54) Juncus trifidus ssp. carolinianus -- Hamet carolinianus Hamet Ahti One-flowered Rush; (46)(55) Lilium pyrophilum -- M. pyrophilum M. W. Skinner & Sorrie Sandhills bog lily; (47)(56) Lindera melissaefolia -- (Walter) melissaefolia (Walter) Blume Southern Spicebush; (57) Lipocarpha micrantha (Vahl) G. Tucker Small-flowered Hemicarpha; (48)(58) Lophiola aurea -- Ker-Gawl. aurea Ker-Gawl. PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1831 Golden Crest; (49)(59) Lysimachia asperulaefolia -- Poiret asperulaefolia Poiret Rough-leaf Loosestrife; (50)(60) Lysimachia fraseri -- Duby fraseri Duby Fraser's Loosestrife; (51)(61) Minuartia godfreyi -- (Shinners) godfreyi (Shinners) McNeill Godfrey's Sandwort; (52)(62) Minuartia uniflora -- (Walter) uniflora (Walter) Mattfield Single-flowered Sandwort; (53)(63) Muhlenbergia torreyana -- (Schultes) torreyana (Schultes) Hitchcock Torrey's Muhly; (54)(64) Myrica gale -- L. gale L. Sweet Gale; (55)(65) Narthecium americanum -- Ker americanum Ker Bog Asphodel; (56)(66) Orbexilum macrophyllum -- (Rowlee macrophyllum (Rowlee ex Small) Rydberg Bigleaf Scurfpea; (57)(67) Orthotrichum keeverae -- Crum keeverae Crum & Anders. Keever's Bristle Moss; (58)(68) Oxypolis canbyi -- (Coult. canbyi (Coult. & Rose) Fern. Canby's Cowbane; (59)(69) Panicum hirstii -- Swallen hirstii Swallen Hirst's Panic Grass; (60)(70) Parnassia caroliniana -- Michaux caroliniana Michaux Carolina Grass-of-Parnassus; (71) Paronychia herniariodes (Michx.) Nutt. Michaux's Whitlow-wort; (61)(72) Pellaea wrightiana -- Hooker wrightiana Hooker Wright's Cliff-brake Fern; (62)(73) Plantago cordata -- Lam. cordata Lam. Heart-leaf Plantain; (63)(74) Plantago sparsiflora -- Michaux sparsiflora Michaux Pineland Plantain; (64)(75) Platanthera integrilabia -- (Correll) integrilabia (Correll) Leur White Fringeless Orchid; (65)(76) Poa paludigena -- Fernald paludigena Fernald & Wiegand Bog Bluegrass; (66)(77) Pteroglossaspis ecristata -- (Fernald) ecristata (Fernald) Rolfe Eulophia; (67)(78) Ptilimnium nodosum -- (Rose) nodosum (Rose) Mathias Harperella; (68)(79) Pyxidanthera barbulata var. brevifolia -- (Wells) brevifolia (Wells) Ahles Wells' Pyxie-moss; (69)(80) Rhus michauxii -- Sargent michauxii Sargent Michaux's Sumac; (70)(81) Rhynchospora crinipes -- Gale crinipes Gale Mosquito Beak Sedge; (71)(82) Rhynchospora macra -- (C.B. macra (C.B. Clarke) Small Large Beak Sedge; (83) Rhynchospora odorata C. Wright ex Griseb. Fragrant Beaksedge; (72)(84) Rhynchospora thornei -- Kral thornei Kral Thorne's Beaksedge; (73)(85) Rudbeckia heliopsidis -- Torr. heliopsidis Torr. & Gray Sun-facing coneflower; (74)(86) Sagittaria fasciculata -- E.O. fasciculata E.O. Beal Bunched Arrowhead; (75)(87) Sarracenia jonesii -- Wherry jonesii Wherry Mountain Sweet Pitcher Plant; (76)(88) Sarracenia oreophila -- (Kearney) oreophila (Kearney) Wherry Green Pitcher Plant; (77)(89) Schwalbea americana -- L. americana L. Chaffseed; (90) Scirpus flaccidifolius (Fern.) Schuyler Reclining Bulrush; (78)(91) Sedum pusillum -- Michaux pusillum Michaux Puck's Orpine; (79)(92) Sedum rosea -- (L.) rosea (L.) Scop. Roseroot; (80)(93) Senecio schweinitzianus -- Nuttall schweinitzianus Nuttall Schweinitz's Groundsel; (81)(94) Shortia galacifolia -- T. galacifolia T. & G. Oconee Bells; (82)(95) Sisyrinchium dichotomum -- Bicknell dichotomum Bicknell Reflexed Blue-eyed Grass; (83)(96) Solidago plumosa -- Small plumosa Small Yadkin River Goldenrod; (84)(97) Solidago ptarmicoides -- (Nees) ptarmicoides (Nees) Boivin Prairie Goldenrod; (85)(98) Solidago spithamaea -- M.A. spithamaea M.A. Curtis Blue Ridge Goldenrod; (86)(99) Solidago villosicarpa -- LeBlond villosicarpa LeBlond Coastal goldenrod; (87)(100) Sphagnum fuscum -- (Schimp.) fuscum (Schimp.) Klinggr. Brown Peatmoss; (88)(101) Sphenolobopsis pearsoni -- (Sprengel) pearsoni (Sprengel) Schuster & Kitagawa A liverwort; (102) Spigelia marilandica (L.) L. Pink Root; (89)(103) Spiraea virginiana -- Britton virginiana Britton PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1832 Virginia Spiraea; (90)(104) Sporobolus heterolepis -- Gray heterolepis Gray Prairie Dropseed; (91)(105) Stylisma pickeringii var. pickeringii -- (Torrey pickeringii (Torrey ex M.A. Curtis) Gray Pickering's Morning Glory; (92)(106) Talinum mengesii -- W. mengesii W. Wolf Large-flowered fameflower; (93)(107) Thalictrum cooleyi -- Ahles cooleyi Ahles Cooley's Meadowrue; (94)(108) Tortula ammonsiana -- Crum ammonsiana Crum & Anders. Ammon's Tortula; (109) Tridens ambiguus (Ell.) J.A. Schultes Pinelands Triodia; (95)(110) Trillium pusillum -- Michaux pusillum Michaux Carolina Least Trillium; (96)(111) Trisetum spicatum var. molle -- (Michaux) molle (Michaux) Beal Soft Trisetum. Trisetum; (112) Utricularia resupinata B.D. Greene ex Bigelow Northeastern Bladderwort; (113) Warea cuneifolia (Muhl. ex Nutt.) Nutt. Carolina Pineland-cress; (114) Zephyranthes simpsonii Chapman Rain Lily. Authority G.S. 106-202.15. 02 NCAC 48F .0302 THREATENED PLANT SPECIES LIST The North Carolina Plant Conservation Board hereby establishes the following list of threatened plant species: (1) Amaranthus pumilus -- Raf. pumilus Raf. Seabeach Amaranth; (2) Amorpha georgiana var. confusa -- Wilbur confusa Wilbur Savanna Indigo-bush; (3) Aster georgianus --Alexander georgianus Alexander Georgia Aster; (4) Astragalus michauxii --(Kuntze) michauxii (Kuntze) F.J. Herm. Sandhills Milkvetch; (5) Baptisia minor -- Lehmann minor Lehmann Prairie Blue Indigo; (6) Cacalia rugelia -- (Shuttl. rugelia (Shuttl. ex Chapm) Barkley & Cronq. Rugel's Ragwort; (7) Camassia scilloides -- (Raf.) scilloides (Raf.) Cory Wild Hyacinth; (8) Carex conoidea -- Willd. conoidea Willd. Cone-shaped Sedge; (9) Carex exilis -- Dewey exilis Dewey Coastal Sedge; (10) Eleocharis halophila -- Fern. halophila Fern. & Brack. Salt Spikerush; (11) Eupatorium resinosum -- Torr. resinosum Torr. ex DC. Resinous Boneset; (12) Fimbristylis perpusilla -- Harper perpusilla Harper ex Small & Britton Harper's Fringe-rush; (13) Geum geniculatum -- Michaux geniculatum Michaux Bent Avens; (14) Glyceria nubigena -- W.A. nubigena W.A. Anderson Smoky Mountain Mannagrass; (15) Gymnoderma lineare -- (Evans) lineare (Evans) Yoshimura & Sharp Gnome Finger Lichen; (16) Helonias bullata -- L. bullata L. Swamp Pink; (17) Hexastylis naniflora -- Blomquist naniflora Blomquist Dwarf-flowered Heartleaf; (18) Hexastylis rhombiformis Gaddy French Broad Heartleaf; (18)(19) Ilex collina -- Alexander collina Alexander Long-stalked Holly; (19)(20) Isoetes piedmontana -- (Pfeiffer) piedmontana (Pfeiffer) Reed Piedmont Quillwort; (20)(21) Liatris helleri -- (Porter) helleri (Porter) Porter Heller's Blazing Star; (21)(22) Lilaeopsis carolinensis -- Coult. carolinensis Coult. & Rose Carolina Lilaeopsis; (22)(23) Lilium grayi -- Watson grayi Watson Gray's Lily; (23)(24) Lindera subcoriacea -- Wofford subcoriacea Wofford Bog spicebush; (24)(25) Lobelia boykinii -- T. boykinii T. & G. Boykin's lobelia; (25)(26) Macbridea caroliniana -- (Walt.) caroliniana (Walt.) Blake Carolina Bogmint; (26)(27) Menyanthes trifoliata -- L. trifoliata L. Buckbean; (27)(28) Myriophyllum laxum -- Schuttlew. laxum Schuttlew. ex Chapman Loose Watermilfoil; (28)(29) Parnassia grandifolia -- DC. grandifolia DC. Large-leaved Grass-of-Parnassus; (29)(30) Platanthera integra -- (Nuttall) integra (Nuttall) Gray ex Beck Yellow Fringeless Orchid; (30)(31) Platanthera nivea -- (Nutt.) nivea (Nutt.) Luer Snowy Orchid; (31)(32) Portulaca smallii -- P. smallii P. Wilson Small's Portulaca; PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1833 (32)(33) Quercus ilicifolia -- Wangenheim ilicifolia Wangenheim Bear oak; (33)(34) Rhexia aristosa -- Britton aristosa Britton Awned Meadow-beauty; (35) Rhynchospora pleiantha (Kukenth.) Gale Coastal Beaksedge; (34)(36) Ruellia humilis -- Nutt. humilis Nutt. Low Wild-petunia; (35)(37) Sabatia kennedyana -- Fern. kennedyana Fern. Plymouth Gentian; (38) Sarracenia minor Walt. Hooded Pitcher Plant; (36)(39) Schisandra glabra -- (Brickel) glabra (Brickel) Rehder Magnolia-vine; (37)(40) Schlotheimia lancifolia -- Bartr. lancifolia Bartr. Highlands Moss; (38)(41) Senecio millefolium -- T. millefolium T. & G. Divided-leaf Ragwort; (39)(42) Solidago verna -- M.A. verna M.A. Curtis Spring-flowering Goldenrod; (40)(43) Spiranthes longilabris -- Lindl. longilabris Lindl. Giant Spiral Orchid; (41)(44) Sporobolus teretifolius -- Harper teretifolius Harper Wireleaf Dropseed; (42)(45) Thelypteris simulata -- (Davenp.) simulata (Davenp.) Nieuwl. Bog Fern; (43)(46) Trichomanes boschianum -- Sturm boschianum Sturm ex Bosch Appalachian Filmy-fern; (44)(47) Trichomanes petersii -- A. petersii A. Gray Dwarf Filmy-fern; (45)(48) Trillium discolor -- Wray discolor Wray ex Hook. Mottled Trillium; (46)(49) Utricularia olivacea -- Wright olivacea Wright ex Grisebach Dwarf Bladderwort. Authority G.S. 106-202.15. 02 NCAC 48F .0304 PLANT SPECIES OF SPECIAL CONCERN (a) Special Concern Endangered Plant Species are those species that appear on both the Endangered Species List and on the Special Concern Species List and that can be offered for propagation to propagators under permit. (1) Cystopteris tennesseensis -- Shaver tennesseensis Shaver Tennessee Bladderfern; (2) Delphinium exaltatum -- Aiton exaltatum Aiton Tall Larkspur; (3) Echinacea laevigata -- (Boynton laevigata (Boynton & Beadle) Blake Smooth Coneflower; (4) Gentianopsis crinita -- (Froehlich) crinita (Froehlich) Ma Fringed Gentian; (5) Geum radiatum -- Michaux radiatum Michaux Spreading Avens; (6) Hydrastis canadensis -- L. canadensis L. Goldenseal, Orangeroot; (7) Kalmia cuneata -- Michaux White Wicky; (8)(7) Lilium pyrophilum -- Skinner pyrophilum Skinner & Sorrie Sandhills bog lily; (9)(8) Pellaea wrightiana -- Hooker wrightiana Hooker Wright's Cliff-brake Fern; (10)(9) Rhus michauxii -- Sargent michauxii Sargent Michaux's Sumac; (11)(10) Sarracenia jonesii -- Wherry jonesii Wherry Mountain Sweet Pitcher Plant; (12)(11) Sarracenia oreophila -- (Kearney) oreophila (Kearney) Wherry Green Pitcher Plant; (13)(12) Shortia galacifolia -- T. galacifolia T. & G. Oconee Bells. Bells; (13) Spigelia marilandica (L.) L. Pink Root; (14) Zephyranthes simpsonii Chapman Rain Lily. (b) Special Concern Threatened Plant Species are those species that appear on both the Threatened Species List and on the Special Concern Species List and that can be offered for propagation to propagators under permit. (1) Eupatorium resinosum -- Torr. resinosum Torr. ex DC. Resinous Boneset; (2) Helonias bullata -- L. bullata L. Swamp Pink; (3) Liatris helleri -- (Porter) helleri (Porter) Porter Heller's Blazing Star; (4) Lilium grayi -- Watson grayi Watson Gray's Lily; (5) Sabatia kennedyana -- Fern. kennedyana Fern. Plymouth Gentian; (6) Sarracenia minor Walt. Hooded Pitcher Plant; (6)(7) Schisandra glabra -- (Brickel) glabra (Brickel) Rehder Magnolia Vine. (c) Special Concern Not Endangered or Threatened Plant Species are those species that appear on the Special Concern Species List but do not appear on the Endangered Species List or the Threatened Species List and that are unlawful to distribute, sell or offer for sale except as otherwise provided in 02 NCAC 48F .0305 and .0306. (1) Dionaea muscipula -- Ellis muscipula Ellis Venus Flytrap; (2) Panax quinquefolius -- L. quinquefolius L. Ginseng. PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1834 Authority G.S. 106-202.15. TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN SERVICES Notice is hereby given in accordance with G.S. 150B-21.2 that the Division of Facility Services intends to amend the rules cited as 10A NCAC 14C .1602, .1901-.1902, .2101, .2103, .2202- .2203, .2701-.2705, .3703 and .3802. Proposed Effective Date: October 1, 2005 Public Hearing: Date: July 21, 2005 Time: 2:00 p.m. Location: Division of Facility Services, Council Building, Room 201, Dorothea Dix Campus, 701 Barbour Drive, Raleigh, NC Reason for Proposed Action: Several subject matters are addressed in the State Medical Facilities Plan (SMFP). Each year, changes to existing Certificate of Need (CON) rules are required to ensure consistency with the SMFP. Several CON rules were amended under temporary action to coincide with the 2005 SMFP's effective date of January 1, 2005. The specific subject areas being addressed by these amended rules are Cardiac Catheterization and Cardiac Angioplasty Equipment, Radiation Therapy Equipment, Surgical Services and Operating Rooms, End-State Renal Disease Services, Magnetic Resonance Imaging (MRI) Scanner, Positron Emission Tomography (PET) Scanner, and Acute Care Beds. These rules were amended through temporary procedures and this rule-making action will facilitate the permanent rule-making process. Procedure by which a person can object to the agency on a proposed rule: An individual may object to the agency on the proposed rules by submitting written comments on the proposed rule. They may also object by attending the public hearing and personally voice their objections during that time. Written comments may be submitted to: Mercidee Benton, Division of Facility Services, 2701 Mail Service Center, Raleigh, NC 27699-2701, phone (919) 855-3750, fax (919) 733-2757, email mercidee.benton@ncmail.net. Comment period ends: August 1, 2005 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 14 – DIRECTOR, DIVISION OF FACILITY SERVICES SUBCHAPTER 14C – CERTIFICATE OF NEED REGULATIONS SECTION .1600 – CRITERIA AND STANDARDS FOR CARDIAC CATHETERIZATION EQUIPMENT AND CARDIAC ANGIOPLASTY EQUIPMENT 10A NCAC 14C .1602 INFORMATION REQUIRED OF APPLICANT (a) An applicant that proposes to acquire cardiac catheterization or cardiac angioplasty equipment shall use the acute care facility/medical equipment application form. (b) The applicant shall provide the following additional information based on the population residing within the applicant's proposed cardiac catheterization service area: (1) the projected annual number of cardiac catheterization procedures, by CPT or ICD-9- CM codes, by classification of classified by adult diagnostic, adult therapeutic and pediatric cardiac catheterization procedure, to be performed in each cardiac catheterization room for each of the first 12 calendar quarters the facility during each of the first three years of operation following completion of the proposed project, including the methodology and assumptions used for these projections; (2) documentation of the applicant's experience in treating cardiovascular patients at the facility during the past 12 months, including: (A) the number of patients receiving stress tests; (B) the number of patients receiving intravenous thrombolytic therapies; (C) the number of patients presenting in the Emergency Room or admitted to the hospital with suspected or diagnosed acute myocardial infarction; (D) the number of patients referred to other facilities for cardiac catheterization procedures or open heart surgery procedures, by type of procedure; and PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1835 (E) the number of diagnostic and therapeutic cardiac catheterization procedures performed during the twelve month period reflected in the most recent licensure form on file with the Division of Facility Services; (3) the number of cardiac catheterizationpatients patients, classified by adult diagnostic, adult therapeutic and pediatric, from the proposed cardiac catheterization service area who are projected to have a cardiac catheterization procedure that the applicant proposes to serve by patient's county of residence in each of the first 12 quarters three years of operation, including the methodology and assumptions used for these projections; (4) the number of patients from the proposed primary cardiac catheterization service area who are projected to have a cardiac catheterization procedure by patients' county of residence in each of the first 12 quarters of operation, including the methodology and assumptions used for these projections; (5)(4) documentation of the applicant's projected sources of patient referrals that are located in the proposed cardiac catheterization service area, including letters from the referral sources that demonstrate their intent to refer patients to the applicant for cardiac catheterization procedures; (6)(5) evidence of the applicant's capability to communicate with emergency transportation agencies and with an established comprehensive cardiac services program; (7)(6) the number and composition of cardiac catheterization teams available to the applicant; (8)(7) documentation of the applicant's in-service training or continuing education programs for cardiac catheterization team members; (9)(8) a written agreement with a comprehensive cardiac services program that specifies the arrangements for referral and transfer of patients seen by the applicant and that includes a process to alleviate the need for duplication in cardiac catheterization procedures; (10)(9) a written description of patient selection criteria including referral arrangements for high-risk patients; (11)(10) a copy of the contractual arrangements for the acquisition of the proposed cardiac catheterization equipment or cardiac angioplasty equipment, including itemization of the cost of the equipment; and (12)(11) documentation that the cardiac catheterization equipment and cardiac angioplasty equipment and the procedures for operation of the equipment are designed and developed based on the American College of Cardiology/American Heart Association Guidelines for Cardiac Catheterization Laboratories (1991) report. Authority G.S. 131E-177(1); 131E-183. SECTION .1900 – CRITERIA AND STANDARDS FOR RADIATION THERAPY EQUIPMENT 10A NCAC 14C .1901 DEFINITIONS These definitions shall apply to all rules in this Section: (1) "Approved linear accelerator" means a linear accelerator which was not operational prior to the beginning of the review period. (2) "Complex Radiation treatment" is equal to 1.0 ESTV and means: treatment on three or more sites on the body; use of special techniques such as tangential fields with wedges, rotational or arc techniques; or use of custom blocking. (3) "Equivalent Simple Treatment Visit [ESTV]" means one basic unit of radiation therapy which normally requires up to fifteen (15) minutes for the uncomplicated set-up and treatment of a patient on a megavoltage teletherapy unit including the time necessary for portal filming. (4) "Existing linear accelerator" means a linear accelerator in operation prior to the beginning of the review period. (5) "Intermediate Radiation treatment" means treatment on two separate sites on the body, three or more fields to a single treatment site or use of multiple blocking and is equal to 1.0 ESTV. (6) "Linear accelerator" means MRT equipment which is used to deliver a beam of electrons or photons in the treatment of cancer patients. (7) "Linear accelerator service area" means a single or multi-county area as used in the development of the need determination in the applicable State Medical Facilities Plan. (8) "Megavoltage unit" means MRT equipment which provides a form of teletherapy that involves the delivery of energy greater than, or equivalent to, one million volts by the emission of x-rays, gamma rays, electrons, or other radiation. (9) "Megavoltage radiation therapy (MRT)" means the use of ionizing radiation in excess of one million electron volts in the treatment of cancer. (10) "MRT equipment" means a machine or energy source used to provide megavoltage radiation therapy including linear accelerators and other particle accelerators. (11) "Radiation therapy equipment" means medical equipment which is used to provide radiation therapy services. PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1836 (12) "Radiation therapy services" means those services which involve the delivery of controlled and monitored doses of radiation to a defined volume of tumor bearing tissue within a patient. Radiation may be delivered to the tumor region by the use of radioactive implants or by beams of ionizing radiation or it may be delivered to the tumor region systemically. (13) "Radiation therapy service area" means a single or multi-county area as used in the development of the need determination in the applicable State Medical Facilities Plan. (14) "Simple Radiation treatment" means treatment on a single site on the body, single treatment field or parallel opposed fields with no more than simple blocks and is equal to 1 ESTV. (15) "Simulator" means a machine that reproduces the geometric relationships of the MRT equipment to the patient. (16) "Special technique" means radiation therapy treatments that may require increased time for each patient visit including: (a) total body irradiation (photons or electrons) which equals 2.5 ESTVs; (b) hemi-body irradiation which equals 2.0 ESTVs; (c) intraoperative radiation therapy which equals 10.0 ESTVs; (d) particle neutron and proton radiation therapy which equals 2.0 ESTVs; (e) weekly radiation therapy management, conformal,which equals 1.5 ESTVs; (e) intensity modulated radiation treatment (IMRT) which equals 2.0 ESTVs; (f) limb salvage irradiation at lengthened SSD which equals 1.0 ESTV; (g) additional field check radiographs which equals .50 ESTV; (h) stereotactic radiosurgery treatment management with linear accelerator or gamma knife which equals 3.0. ESTVs; and (i) pediatric patient under anesthesia which equals 1.2 1.5 ESTVs. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .1902 INFORMATION REQUIRED OF APPLICANT (a) An applicant proposing to acquire radiation therapy equipment shall use the Acute Care Facility/Medical Equipment application form. (b) An applicant proposing to acquire radiation therapy equipment shall also provide the following additional information: (1) a list of all the radiation therapy equipment to be acquired and documentation of the capabilities and capacities of each item of equipment; (2) documentation of the purchase price and fair market value of each piece of radiation therapy equipment, each simulator, and any other related equipment proposed to be acquired; (3) the projected number of patient treatments by county and by simple, intermediate and complex treatments to be performed on each piece of radiation therapy equipment for each of the first eight calendar quarters three years of operation following the completion of the proposed project and documentation of all assumptions by which utilization is projected; (4) documentation that the proposed radiation therapy equipment shall be operational at least seven hours per day, five days a week; (5) documentation that no more than one simulator is available for every two linear accelerators in the applicant's facility, except that an applicant that has only one linear accelerator may have one simulator; (6) documentation that the services shall be offered in a physical environment that conforms to the requirements of federal, state, and local regulatory bodies; and (7) the projected number of patients that will be treated for cure and the number of patients that will be treated for palliation on each linear accelerator on an annual basis. by county in each of the first three years of operation following completion of the proposed project. Authority G.S. 131E-177(1); 131E-183. SECTION .2100 – CRITERIA AND STANDARDS FOR SURGICAL SERVICES AND OPERATING ROOMS 10A NCAC 14C .2101 DEFINITIONS The following definitions shall apply to all rules in this Section: (1) "Ambulatory surgical case" means an individual who receives one or more ambulatory surgical procedures in an operating room during a single operative encounter. (2) "Ambulatory surgical service area" means a single or multi-county area as used in the development of the ambulatory surgical facility need determination in the applicable State Medical Facilities Plan. (3) "Ambulatory surgical services" means those surgical services provided to patients as part of an ambulatory surgical program within a licensed ambulatory surgical facility or a general acute care hospital licensed under G.S. 131E, Article 5, Part A. (4)(1) "Ambulatory surgical facility" means a facility as defined in G.S. 131E-176(1b). PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1837 (5)(2) "Operating room" means an inpatient operating room, an outpatient or ambulatory surgical operating room, a shared operating room, or an endoscopy procedure room in a licensed health service facility. (6)(3) "Ambulatory surgical program" means a program as defined in G.S. 131E-176(1c). (7) "Ambulatory surgical procedure" means a procedure performed in an operating room which requires local, regional or general anesthesia and a period of post-operative observation of less than 24 hours. (8)(4) "Existing operating rooms" means those operating rooms in ambulatory surgical facilities and hospitals which were reported in the License Application for Ambulatory Surgical Facilities and Programs and in Part III of Hospital Licensure Renewal Application Form submitted to the Licensure Section of the Division of Facility Services and which were licensed and certified prior to the beginning of the review period. (9)(5) "Approved operating rooms" means those operating rooms that were approved for a certificate of need by the Certificate of Need Section prior to the date on which the applicant's proposed project was submitted to the Agency but that have not been licensed and certified. (10)(6) "Multispecialty ambulatory surgical program" means a program as defined in G.S. 131E- 176(15a). (11)(7) "Outpatient or ambulatory surgical operating room" means an operating room used solely for the performance of ambulatory surgical procedures. procedures which require local, regional or general anesthesia and a period of post-operative observation of less than 24 hours. (8) "Service area" means the Operating Room Service Area as defined in the applicable State Medical Facilities Plan. (12)(9) "Shared operating room" means an operating room that is used for the performance of both ambulatory and inpatient surgical procedures. (13)(10) "Specialty area" means an area of medical practice in which there is an approved medical specialty certificate issued by a member board of the American Board of Medical Specialties and includes, but is not limited to the following: gynecology, otolaryngology, plastic surgery, general surgery, ophthalmology, urology, orthopedics, and oral surgery. (14)(11) "Specialty ambulatory surgical program" means a program as defined in G.S. 131E- 176(24c). (15) "Practical utilization" is 4.3 surgical cases per day for an outpatient or ambulatory surgical operating room, 3.5 surgical cases per day for a shared operating room, 2.7 surgical cases per day for an inpatient operating room, and 4.3 cases per day for an endoscopy procedure room. (12) "Surgical case" means an individual who receives one or more surgical procedures in an operating room during a single operative encounter. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .2103 PERFORMANCE STANDARDS (a) In projecting utilization for existing, approved, proposed and expanded surgical programs, a program utilization, the existing, approved and proposed operating rooms shall be considered to be open available for use five days per week and 52 weeks a year. (b) A proposal to establish a new ambulatory surgical facility, to increase the number of operating rooms (excluding dedicated C-section operating rooms), to convert a specialty ambulatory surgical program to a multispecialty ambulatory surgical program or to add a specialty to a specialty ambulatory surgical program shall not be approved unless the applicant documents that the average number of surgical cases per operating room to be performed in the applicant's facility each facility owned by the applicant in the proposed service area, is reasonably projected to be at least 2.7 2.4 surgical cases per day for each inpatient operating room, 4.3 4.8 surgical cases per day for each outpatient or ambulatory surgical operating room, 4.3 7.2 cases per day for each endoscopy procedure room, and 3.5 3.2 surgical cases per day for each shared operating room during the fourth quarter of the third year of operation following completion of the project. (c) A proposal to develop an additional operating room to be used as a dedicated C-section operating room shall not be approved unless the applicant documents that the average number of surgical cases per operating room to be performed in each facility owned by the applicant in the proposed service area, is reasonably projected to be at least 2.4 surgical cases per day for each inpatient operating room (excluding dedicated C-section operating rooms), 4.8 surgical cases per day for each outpatient or ambulatory surgical operating room and 3.2 surgical cases per day for each shared operating room during the third year of operation following completion of the project. (c)(d) An applicant proposing to convert a specialty ambulatory surgical program to a multispecialty ambulatory surgical program or to add a specialty to a specialty ambulatory surgical program shall provide documentation to show that each existing ambulatory surgery program in the ambulatory surgical service area that performs ambulatory surgery in the same specialty area as proposed in the application is currently operating at 4.3 4.8 surgical cases per day for each outpatient or ambulatory surgical operating room, 4.3 7.2 cases per day for each endoscopy procedure room, and 3.5 3.2 surgical cases per day for each shared operating room. (d)(e) An applicant proposing to convert a specialty ambulatory surgical program to a multispecialty ambulatory surgical program or to add a specialty to a specialty ambulatory surgical PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1838 program shall provide documentation to show that each existing and approved ambulatory surgery program in the ambulatory surgical service area that performs ambulatory surgery in the same specialty areas as proposed in the application is reasonably projected to be operating at 4.3 4.8 surgical cases per day for each outpatient or ambulatory surgical operating room, 4.3 7.2 cases per day for each endoscopy procedure room, and 3.5 3.2 surgical cases per day for each shared surgical operating room prior to the completion of the proposed project. The applicant shall document the assumptions and provide data supporting the methodology used for the projections. (f) The applicant shall document the assumptions and provide data supporting the methodology used for each projection in this Rule. Authority G.S. 131E-177; 131E-183(b). SECTION .2200 – CRITERIA AND STANDARDS FOR END-STAGE RENAL DISEASE SERVICES 10A NCAC 14C .2202 INFORMATION REQUIRED OF APPLICANT (a) An applicant that proposes to increase dialysis stations in an existing certified facility or relocate stations must provide the following information: (1) Utilization rates; (2) Mortality rates; (3) The number of patients that are home trained and the number of patients on home dialysis; (4) The number of transplants performed or referred; (5) The number of patients currently on the transplant waiting list; (6) Hospital admission rates, by admission diagnosis, i.e., dialysis related versus non-dialysis related; (7) The number of patients with infectious disease, i.e., hepatitis and AIDS, e.g., hepatitis, and the number converted to infectious status during last calendar year. (b) An applicant that proposes to develop a new facility, increase the number of dialysis stations in an existing facility, or establish a new dialysis station, or the relocation of relocate existing dialysis stations must shall provide the following information requested on the End Stage Renal Disease (ESRD) Treatment application form: (1) A For new facilities, a letter of intent to sign a written agreement or a signed written agreement with an acute care hospital that specifies the relationship with the dialysis facility and describes the services that the hospital will provide to patients of the dialysis facility. The agreement must comply with 42 C.F.R., Section 405.2100. (2) A For new facilities, a letter of intent to sign a written agreement or a written agreement with a transplantation center describing the relationship with the dialysis facility and the specific services that the transplantation center will provide to patients of the dialysis facility. The agreements must include the following: (A) timeframe for initial assessment and evaluation of patients for transplantation, (B) composition of the assessment/evaluation team at the transplant center, (C) method for periodic re-evaluation, (D) criteria by which a patient will be evaluated and periodically re-evaluated for transplantation, and (E) signatures of the duly authorized persons representing the facilities and the agency providing the services. (3) Documentation that the water supply will comply with 42 C.F.R., Section 405.2100. (4)(3) Documentation of standing service from a power company and back-up capabilities. (5)(4) The For new facilities, the location of the site on which the services are to be operated. If such site is neither owned by nor under option to the applicant, the applicant must provide a written commitment to pursue acquiring the site if and when the approval is granted, must specify a secondary site on which the services could be operated should acquisition efforts relative to the primary site ultimately fail, and must demonstrate that the primary and secondary sites are available for acquisition. (6)(5) Documentation that the services will be provided in conformity with applicable laws and regulations pertaining to staffing, fire safety equipment, physical environment, water supply, and other relevant health and safety requirements. (7)(6) The projected patient origin for the services. All assumptions, including the methodology by which patient origin is projected, must be stated. (8)(7) For new facilities, documentation that at least 80 percent of the anticipated patient population resides within 30 miles of the proposed facility. (8) A commitment that the applicant shall admit and provide dialysis services to patients who have no insurance or other source of payment, but for whom payment for dialysis services will be made by another healthcare provider in an amount equal to the Medicare reimbursement rate for such services. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .2203 PERFORMANCE STANDARDS (a) An applicant proposing to establish a new End Stage Renal Disease facility shall document the need for at least 10 stations based on utilization of 3.2 patients per station per week as of the end of the first operating year of the facility. PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1839 (b) An applicant proposing to increase the number of dialysis stations in an existing End Stage Renal Disease facility shall document the need for the additional stations based on utilization of 3.2 patients per station per week as of the end of the first operating year of the additional stations. stations with the exception that the performance standard shall be waived for a need in the State Medical Facilities Plan that is based on an adjusted need determination. (c) An applicant shall provide all assumptions, including the specific methodology by which patient utilization is projected. Authority G.S. 131E-177(1); 131E-183(b). SECTION .2700 - CRITERIA AND STANDARDS FOR MAGNETIC RESONANCE IMAGING SCANNER 10A NCAC 14C .2701 DEFINITIONS The following definitions shall apply to all rules in this Section: (1) "Approved MRI scanner" means an MRI scanner which was not operational prior to the beginning of the review period but which had been issued a certificate of need. (2) " Capacity of fixed MRI scanner" means 100% of the procedure volume that the MRI scanner is capable of completing in a year, given perfect scheduling, no machine or room downtime, no cancellations, no patient transportation problems, no staffing or physician delays and no MRI procedures outside the norm. Annual capacity of a fixed MRI scanner is 6,864 weighted MRI procedures, which assumes two weighted MRI procedures are performed per hour and the scanner is operated 66 hours per week, 52 weeks per year. (3) "Capacity of mobile MRI scanner" means 100% of the procedure volume that the MRI scanner is capable of completing in a year, given perfect scheduling, no machine or room downtime, no cancellations, no patient transportation problems, no staffing or physician delays and no MRI procedures outside the norm. Annual capacity of a mobile MRI scanner is 4,160 weighted MRI procedures, which assumes two weighted MRI procedures are performed per hour and the scanner is operated 40 hours per week, 52 weeks per year. (2)(4) "Existing MRI scanner" means an MRI scanner in operation prior to the beginning of the review period. (5) "Fixed MRI scanner" means an MRI scanner that is not a mobile MRI scanner. (3)(6) "Magnetic Resonance Imaging" (MRI) means a non-invasive diagnostic modality in which electronic equipment is used to create tomographic images of body structure. The MRI scanner exposes the target area to nonionizing magnetic energy and radio frequency fields, focusing on the nuclei of atoms such as hydrogen in the body tissue. Response of selected nuclei to this stimulus is translated into images for evaluation by the physician. (4)(7) "Magnetic resonance imaging scanner" (MRI Scanner) is defined in G.S. 131E- 176(14e),G.S. 131E-176(14e).and includes dedicated fixed breast MRI scanners. (8) "Mobile MRI region" means either the eastern part of the State which includes the counties in Health Service Areas IV, V and VI, or the western part of the State which includes the counties in Health Service Areas I, II, and III. The counties in each Health Service Area are identified in Appendix A of the State Medical Facilities Plan. (5)(9) "Mobile MRI scanner" means an MRI scanner and transporting equipment which is moved at least weekly to provide services at two or more host facilities. (6)(10) "MRI procedure" means a single discrete MRI study of one patient. (7)(11) "MRI service area" means the Magnetic Resonance Imaging Planning Areas, as defined in the applicable State Medical Facilities Plan, except for proposed new mobile MRI scanners. scanners for which the service area is a mobile MRI region. (8)(12) "MRI study" means one or more scans relative to a single diagnosis or symptom. (13) "Pediatric MRI patient" means a patient requiring an MRI scan who is under the age of 12 years or who is a special needs patient and is under the age of 21 years. (14) "Related entity" means the parent company of the applicant, a subsidiary company of the applicant (i.e., the applicant owns 50% or more of another company), a joint venture in which the applicant is a member, or a company that shares common ownership with the applicant (i.e., the applicant and another company are owned by some of the same persons). (15) "Special Needs patient" means a patient who has cerebral palsy, encephalomyelopathy, central nervous system injuries, genetic and metabolic disorders, autism, and mental retardation. (16) "Temporary MRI scanner" means a MRI scanner that the Certificate of Need Section has approved to be temporarily located in North Carolina at a facility that holds a certificate of need for a new fixed MRI scanner, but which is not operational because the project is not yet complete. (17) "Weighted MRI procedures" means MRI procedures which are adjusted to account for the length of time to complete the procedure, PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1840 based on the following weights: one outpatient MRI procedure without contrast or sedation is valued at 1.0 weighted MRI procedure, one outpatient MRI procedure with contrast or sedation is valued at 1.4 weighted MRI procedures, one inpatient MRI procedure without contrast or sedation is valued at 1.4 weighted MRI procedures; and one inpatient MRI procedure with contrast or sedation is valued at 1.8 weighted MRI procedures. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .2702 INFORMATION REQUIRED OF APPLICANT (a) An applicant proposing to acquire an MRI scanner, including a mobile MRI scanner, shall use the Acute Care Facility/Medical Equipment application form. (b) Except for proposals to acquire mobile MRI scanners that serve two or more host facilities, both the applicant and the person billing the patients for the MRI service shall be named as co-applicants in the application form. (c) An applicant proposing to acquire a magnetic resonance imaging scanner, including a mobile MRI scanner, shall provide the following information: (1) documentation that the proposed fixed MRI scanner shall be available and staffed for use at least 66 hours per week, with the exception of a mobile MRI scanner; week; (2) documentation that the proposed mobile MRI scanner shall be available and staffed for use at least 40 hours per week; (2) projections of the annual number of procedures to be performed for each of the first three years of operation after completion of the project; (3) the average charge to the patient, regardless of who bills the patient, for each of the 20 most frequent MRI procedures to be performed for each of the first three years of operation after completion of the project and a description of items included in the charge; if the professional fee is included in the charge, provide the dollar amount for the professional fee; (4) if the proposed MRI service will be provided pursuant to a service agreement, the dollar amount of the service contract fee billed by the applicant to the contracting party for each of the first three years of operation; and (5) letters from physicians indicating their intent to refer patients to the proposed magnetic resonance imaging scanner. scanner and their estimate of the number of patients proposed to be referred per year; (6) for each location at which the service will be provided, projections of the annual number of weighted MRI procedures to be performed for each of the four types of weighted MRI procedures, as identified in the SMFP, for each of the first three years of operation after completion of the project; (7) a detailed description of the methodology used to project the number of weighted MRI procedures to be performed; (8) documentation to support each assumption used in projecting the number of procedures to be performed; (9) for each existing fixed or mobile MRI scanner owned by the applicant or a related entity and operated in North Carolina in the month the application is submitted, the vendor, tesla strength, serial number or vehicle identification number, CON project identification number, physical location for fixed MRI scanners, and host sites for mobile MRI scanners; (10) for each approved fixed or mobile MRI scanner to be owned by the applicant or a related entity and approved to be operated in North Carolina, the proposed vendor, proposed tesla strength, CON project identification number, physical location for fixed MRI scanners, and host sites for mobile MRI scanners; (11) if proposing to acquire a mobile MRI scanner, an explanation of the basis for selection of the proposed host sites if the host sites are not located in MRI service areas that lack a fixed MRI scanner. (d) An applicant proposing to acquire a mobile MRI scanner shall provide copies of letters of intent from, and proposed contracts with, all of the proposed host facilities of the new MRI scanner. (e) An applicant proposing to acquire a dedicated fixed breast MRI scanner shall: (1) provide a copy of a contract or working agreement with a radiologist or practice group that has experience interpreting images and is trained to interpret images produced by an MRI scanner configured exclusively for mammographic studies; (2) document that the applicant performed mammograms without interruption in the provision of the service during the last year; and (3) document that the applicant's existing mammography equipment is in compliance with the U.S. Food and Drug Administration Mammography Quality Standards Act. (f) An applicant proposing to acquire a dedicated fixed pediatric MRI scanner shall: (1) provide a copy of a contract or working agreement with two pediatric radiologists qualified as described in 10A NCAC 14C .2705(f)(1); (2) provide a copy of the facility's emergency plan for pediatric and special needs patients that PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1841 outline all emergency procedures including acute care transfers and a copy of a contract with an ambulance service for transportation during any emergencies; (3) commit that the proposed MRI scanner shall be used exclusively to perform procedures on pediatric MRI patients; (4) provide a description of the scope of the research studies that shall be conducted to develop protocols related to MRI scanning of pediatric MRI patients; which includes special needs patients: and (5) commit to prepare an annual report, to be submitted to the Medical Facilities Planning Section and the Certificate of Need Section, which shall include the protocols for scanning pediatric MRI patients and the annual volume of weighted MRI procedures performed, by type. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .2703 PERFORMANCE STANDARDS (a) An applicant proposing to acquire a mobile magnetic resonance imaging (MRI) scanner shall: (1) if an applicant operates an existing mobile MRI scanner in the Health Service Area(s), demonstrate that at least 2900 MRI procedures were performed in the last year on each of its existing mobile MRI scanners operating in the Health Service Area(s), (e.g., HSA I), in which the proposed mobile MRI scanner will be located demonstrate that each existing mobile MRI scanner which the applicant or a related entity owns and operates in the mobile MRI region in which the proposed equipment will be located, except temporary MRI scanners, performed 3,328 weighted MRI procedures in the most recent 12 month period for which the applicant has data. [Note: This is not the average number of weighted MRI procedures performed on all of the applicant's mobile MRI scanners.]; (2) demonstrate annual utilization in the third year of operation is reasonably projected to be at least 2900 3328 weighted MRI procedures on each of its the existing, approved and proposed mobile MRI scanners owned by the applicant or a related entity to be operated in the Health Service Area(s), (e.g., HSA I), mobile MRI region in which the proposed equipment will be located. [Note: This is not the average number of weighted MRI procedures performed on all of the applicant's mobile MRI scanners.]; (3) document the assumptions and provide data supporting the methodology used for each projection required in this Rule. (b) An applicant proposing to acquire a fixed magnetic resonance imaging (MRI) scanner for which the need determination in the State Medical Facilities Plan was based on the utilization of fixed MRI scanners, scanner, except for fixed MRI scanners described in Paragraphs (c) and (d) of this Rule, shall: (1) if an applicant operates an existing MRI scanner in the proposed MRI service area, demonstrate that its existing MRI scanners, except mobile MRI scanners, operating in the proposed MRI service area in which the proposed MRI scanner will be located performed an average of at least 2900 MRI procedures per scanner in the last year; demonstrate that the existing fixed MRI scanners which the applicant or a related entity owns and locates in the proposed MRI service area performed an average of 3,328 weighted MRI procedures in the most recent 12 month period for which the applicant has data. (2) demonstrate that each existing mobile MRI scanner which the applicant or a related entity owns and operates in the proposed mobile MRI region, except temporary MRI scanners, performed 3,328 weighted MRI procedures in the most recent 12 month period for which the applicant has data. [Note: This is not the average number of weighted MRI procedures performed on all of the applicant's mobile MRI scanners.]; (2)(3) demonstrate annual utilization in the third year of operation is reasonably projected to be an average of 2900 procedures per scanner for all existing, approved and proposed MRI scanners or mobile MRI scanners to be operated by the applicant in the MRI service area(s) in which the proposed equipment will be located; and; demonstrate that the average annual utilization of the existing, approved and proposed fixed MRI scanners which the applicant or a related entity owns and locates in the proposed MRI service area are reasonably expected to perform the following number of weighted MRI procedures, whichever is applicable, in the third year of operation following completion of the proposed project: (A) 1,716 weighted MRI procedures in MRI service areas in which the SMFP shows no fixed MRI scanners are located, (B) 3,775 weighted MRI procedures in MRI service areas in which the SMFP shows one fixed MRI scanner is located, (C) 4,118 weighted MRI procedures in MRI service areas in which the SMFP shows two fixed MRI scanners are located, PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1842 (D) 4,462 weighted MRI procedures in MRI service areas in which the SMFP shows three fixed MRI scanners are located, or (E) 4,805 weighted MRI procedures in MRI service areas in which the SMFP shows four or more fixed MRI scanners are located. (4) demonstrate that annual utilization of each existing, approved and proposed mobile MRI scanner which the applicant or a related entity owns and locates in the proposed MRI service area is reasonably expected to perform 3,328 weighted MRI procedures in the third year of operation following completion of the proposed project. [Note: This is not the average number of weighted MRI procedures to be performed on all of the applicant's mobile MRI scanners.]; (4)(5) document the assumptions and provide data supporting the methodology used for each projection required in this Rule. (c) An applicant proposing to acquire a magnetic resonance imaging (MRI) scanner for which the need determination in the State Medical Facilities Plan was based on utilization of mobile MRI scanners, shall: (1) if the applicant does not own or lease an MRI scanner or have an approved MRI scanner, demonstrate annual utilization in the third year of operation is reasonably projected to be at least 2080 MRI procedures per year for the proposed MRI scanner; (2) if the applicant already owns or leases an MRI scanner or has an approved MRI scanner, demonstrate annual utilization is reasonably projected to be an average of 2900 MRI procedures per scanner for all existing, approved and proposed MRI scanners or mobile MRI scanners to be operated by the applicant in the MRI service area(s) in which the proposed equipment will be located; and (3) document the assumptions and provide data supporting the methodology used for each projection required in this Rule. (d)(c) An applicant proposing to acquire a fixed magnetic resonance imaging (MRI) scanner for which the need determination in the State Medical Facilities Plan was based on the absence of an existing or approved fixed MRI scanner in the MRI service area an approved petition for an adjustment to the need determination shall: (1) demonstrate annual utilization of the proposed MRI scanner in the third year of operation is reasonably projected to be at least 2080 1,716 weighted MRI procedures per year; and (2) document the assumptions and provide data supporting the methodology used for each projection required in this Rule. (e)(d) An applicant proposing to acquire a dedicated fixed pediatric MRI scanner shall: (1) demonstrate annual utilization of the proposed MRI scanner in the third year of operation is reasonably projected to be at least 2746 weighted MRI procedures (i.e., 80 percent of one procedure per hour, 66 hours per week, 52 weeks per year); and (2) document the assumptions and provide data supporting the methodology used for each projection required in this Rule. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .2704 SUPPORT SERVICES (a) An applicant proposing to acquire a magnetic resonance imaging scanner, including a mobile MRI scanner, shall make available through written affiliation or referral agreements the following services: (1) anesthesiology, (2) radiology, (3) oncology, (4) neurology, (5) internal medicine, (6) orthopedics, (7) neurosurgery, (8) pathology, and (9) surgery. (b)(a) An applicant proposing to acquire a mobile MRI scanner shall provide referral agreements between each host site and at least one other provider of MRI services in the proposed MRI service area to document the availability of MRI services if patients require them when the mobile unit is not in service at that host site. (b) An applicant proposing to acquire a dedicated fixed pediatric MRI scanner shall provide a written policy regarding pediatric sedation which outlines the criteria for sedating a pediatric patient, including the special needs patients, and identifies the staff that will administer and supervise the sedation process. (c) An applicant proposing to acquire a dedicated fixed pediatric MRI scanner shall provide evidence of the availability of a pediatric code cart at the facility where the proposed pediatric MRI scanner will be located and a plan for emergency situations as described in 10A NCAC 14C .2702(f)(2). (d) An applicant proposing to acquire a fixed or mobile MRI scanner shall obtain accreditation from the Joint Commission for the Accreditation of Healthcare Organizations, the American College of Radiology or a comparable accreditation authority, as determined by the Certificate of Need Section, for magnetic resonance imaging within two years following operation of the proposed MRI scanner. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .2705 STAFFING AND STAFF TRAINING (a) An applicant proposing to acquire an MRI scanner shall demonstrate that one diagnostic radiologist certified by the American Board of Radiologists shall be available to provide the proposed services who has had: PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1843 (1) training in magnetic resonance imaging as an integral part of his or her residency training program; or (2) six months of supervised MRI experience under the direction of a certified diagnostic radiologist; or (3) at least six months of fellowship training, or its equivalent, in MRI; or (4) a combination of MRI experience and fellowship training equivalent to Subparagraph (a)(1), (2) or (3) of this Rule. (b) An applicant proposing to acquire a dedicated fixed breast MRI scanner shall provide documentation that the radiologist is trained and has experience in interpreting images produced by an MRI scanner configured exclusively to perform mammographic studies. (c) The An applicant proposing to acquire a MRI scanner shall provide evidence of the availability of two full-time MRI technologist-radiographers and that one of these technologists shall be present during the hours of operation of the MRI scanner. (d) An applicant proposing to acquire an MRI scanner shall demonstrate that the following staff training is provided: (1) American Red Cross or American Heart Association certification in cardiopulmonary resuscitation (CPR) and basic cardiac life support; and (2) the availability of an organized program of staff education and training which is integral to the services program and ensures improvement in technique and the proper training of new personnel. (e) An applicant proposing to acquire a mobile MRI scanner shall document that the requirements in Paragraphs (a) and (c) of this Rule shall be met at each host facility. (f) An applicant proposing to acquire a dedicated fixed pediatric MRI scanner shall: (1) provide documentation of the availability of at least two radiologists, certified by the American Board of Radiology, with a pediatric fellowship or two years of specialized training in pediatrics; (2) provide evidence that the applicant will have at least one licensed physician on-site during the hours of operation of the proposed MRI scanner; (3) provide documentation that the applicant will employ at least two licensed registered nurses and that one of these nurses shall be present during the hours of operation of the proposed MRI scanner; (4) provide a description of a research group for the project including a radiologist, neurologist, pediatric sedation specialist and research coordinator; (5) provide documentation of the availability of the research group to conduct research studies on the proposed MRI scanner; and (6) provide letters from the proposed members of the research group indicating their qualifications, experience and willingness to participate on the research team. (g) An applicant proposing to perform cardiac MRI procedures shall provide documentation of the availability of a radiologist, certified by the American Board of Radiology, with training and experience in interpreting images produced by an MRI scanner configured to perform cardiac MRI studies. Authority G.S. 131E-177(1); 131E-183(b). SECTION .3700 - CRITERIA AND STANDARDS FOR POSITRON EMISSION TOMOGRAPHY SCANNER 10A NCAC 14C .3703 PERFORMANCE STANDARDS (a) An applicant proposing to acquire a dedicated PET scanner, including a mobile dedicated PET scanner, shall demonstrate that: (1) the proposed dedicated PET scanner, including a proposed mobile dedicated PET scanner, shall be utilized at an annual rate of at least 1,220 3,200 PET procedures by the end of the third year following completion of the project; (2) if an applicant operates an existing dedicated PET scanner, its existing dedicated PET scanners, excluding those used exclusively for research, performed an average of 1,200 at least 3,200 PET procedures per PET scanner in the last year; and (3) its existing and approved dedicated PET scanners shall perform an average of at least 1,220 3,200 PET procedures per PET scanner during the third year following completion of the project. (b) The applicant shall describe the assumptions and provide data to support and document the assumptions and methodology used for each projection required in this Rule. Authority G.S. 131E-177(1); 131E-183(b). SECTION .3800 - CRITERIA AND STANDARDS FOR ACUTE CARE BEDS 10A NCAC 14C .3802 INFORMATION REQUIRED OF APPLICANT (a) An applicant that proposes to develop new acute care beds shall complete the Acute Care Facility/Medical Equipment application form. (b) An applicant proposing to develop new acute care beds shall submit the following information: (1) the number of acute care beds proposed to be licensed and operated following completion of the proposed project; (2) documentation that the proposed services shall be provided in conformance with all applicable facility, programmatic, and service specific licensure, certification, and JCAHO accreditation standards; PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1844 (3) documentation that the proposed services shall be offered in a physical environment that conforms to the requirements of federal, state, and local regulatory bodies; (4) if adding new acute care beds to an existing facility, documentation of the number of inpatient days of care provided in the last operating year in the existing licensed acute care beds by medical diagnostic category, as classified by the Centers for Medicare and Medicaid Services according to the list set forth in the applicable State Medical Facilities Plan; (5) the projected number of inpatient days of care to be provided in the total number of licensed acute care beds in the facility, by county of residence, for each of the first three years following completion of the proposed project, including all assumptions, data and methodologies; (6) documentation that the applicant shall be able to communicate with emergency transportation agencies 24 hours per day, 7 days per week; (7) documentation that services in the emergency care department shall be provided 24 hours per day, 7 days per week, including a description of the scope of services to be provided during each shift and the physician and professional staffing that will be responsible for provision of those services; (8) copy of written administrative policies that prohibit the exclusion of services to any patient on the basis of age, race, sex, creed, religion, disability or the patient’s ability to pay; (9) a written commitment to participate in and comply with conditions of participation in the Medicare and Medicaid programs; (10) documentation of the health care services provided by the applicant, and any facility in North Carolina owned or operated by the applicant’s parent organization, in each of the last two operating years to Medicare patients, Medicaid patients, and patients who are not able to pay for their care; (11) documentation of strategies to be used and activities undertaken by the applicant to attract physicians and medical staff who will provide care to patients without regard to their ability to pay; and (12) correspondence from physicians and other referral sources that documents their willingness to offered in the new acute care beds; and (13)(12) documentation that the proposed new acute care beds shall be operated in a hospital that provides inpatient medical services to both surgical and non-surgical patients. (c) An applicant proposing to develop new acute care beds in a new licensed hospital or on a new campus of an existing hospital shall also submit the following information: (1) the projected number of inpatient days of care to be provided in the licensed acute care beds in the new hospital or on the new campus, by major diagnostic category as recognized by the Centers for Medicare and Medicaid Services (CMS) according to the list set forth in the applicable State Medical Facilities Plan; (2) documentation that medical and surgical services shall be provided in the proposed acute care beds on a daily basis within at least five of the major diagnostic categories as recognized by the Centers for Medicare and Medicaid Services (CMS) according to the list set forth in the applicable State Medical Facilities Plan; (3) copies of written policies and procedures for the provision of care within the new acute care hospital or on the new campus, including but not limited to the following: (A) the admission and discharge of patients, including discharge planning, (B) transfer of patients to another hospital, (C) infection control, and (D) safety procedures; (4) documentation that the applicant owns or otherwise has control of the site on which the proposed acute care beds will be located; and (5) documentation that the proposed site is suitable for development of the facility with regard to water, sewage disposal, site development and zoning requirements; and provide the required procedures for obtaining zoning changes and a special use permit if site is currently not properly zoned. zoned; and (6) correspondence from physicians and other referral sources that documents their willingness to refer or admit patients to the proposed new hospital or new campus. Authority G.S. 131E-177(1); 131E-183. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission for Health Services intends to amend the rule cited as 10A NCAC 43D .0706. Proposed Effective Date: October 1, 2005 Public Hearing: Date: July 7, 2005 Time: 10:00 a.m. – 12:00 p.m. Location: Room 116, Royster Building, Dorthea Dix Campus, 1020 Richardson Drive, Raleigh, NC PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1845 Reason for Proposed Action: The proposed rule changes are required to comply with the Child and Nutrition and WIC Reauthorization Act of 2004, P.L. 108-265 as well as some state policy changes dealing with cost containment in the retail food delivery system of the WIC Program. In addition, the changes include the establishment of three new sanctions for vendor violations described in the new rule. Procedure by which a person can object to the agency on a proposed rule: Objections may be submitted in writing to Chris G. Hoke, JD, the Rule-Making Coordinator, during the public comment period. Additionally, objections may be made verbally or in writing at the public hearing for this rule. Written comments may be submitted to: Chris Hoke, 1915 Mail Service Center, Raleigh, NC 27699-1915, email chris.hoke@ncmail.net. Comment period ends: August 1, 2005 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 10A NCAC 43D .0706 AUTHORIZED WIC VENDORS (a) Vendor applicants and authorized vendors shall be placed into peer groups as follows: (1) When annual WIC supplemental food sales are not yet available, vendor applicants and authorized vendors, excluding chain stores, stores under a WIC corporate agreement, military commissaries, and free-standing pharmacies, shall be placed into peer groups based on the number of cash registers in the store until annual WIC supplemental food sales become available. The following are the peer groups based on the number of cash registers in the store: Peer Group I - - zero to two cash registers; Peer Group II - - three to five cash registers; and Peer Group III - - six or more cash registers;registers. WIC sales figures of new vendors will be reviewed six months from authorization. A vendor whose first six months of WIC sales exceed twenty five thousand dollars ($25,000) will be placed in the peer group designation in accordance with the dollar thresholds of Subparagraph(a)(2). (2) Authorized vendors for which annual WIC supplemental food sales is available, excluding chain stores, stores under a WIC corporate agreement, military commissaries, and free-standing pharmacies, shall be placed into peer groups as follows, except as provided in Subparagraph (a)(7)(8) of this Rule. Peer Group I - - two thousand dollars ($2,000) to twenty five thousand dollars ($25,000) annually in WIC supplemental food sales at the store; Peer Group II - - greater than twenty five thousand dollars ($25,000) but not exceeding seventy five thousand dollars ($75,000) annually in WIC supplemental food sales at the store; Peer Group III - - greater than seventy five thousand dollars ($75,000) but not exceeding three hundred thousand dollars ($300,000) annually in WIC supplemental food sales at the store; and Peer Group IV - - greater than three hundred thousand dollars ($300,000) annually in WIC supplemental food sales at the store; (3) Chain stores, stores under a WIC corporate agreement (20 or more authorized vendors under one agreement), military commissaries, and free-standing pharmacies, including free-standing pharmacy chain stores and free-standing pharmacies participating under a WIC corporate agreement, shall be placed into peer groups as follows: Peer Group IV - - chain stores, stores under a WIC corporate agreement (20 or more authorized vendors under one agreement) and military commissaries; and Peer Group V - - free-standing pharmacies, including free-standing pharmacy chain stores and free-standing pharmacies participating under a WIC corporate agreement; (4) Annual WIC supplemental food sales is the dollar amount in sales of WIC supplemental foods at the store within a 12-month period. PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1846 (5) If a vendor applicant has at least 30% ownership in the applying store and at least 30% ownership in a store(s) already authorized, the applying store shall be placed in the peer group of the highest designation of the already authorized stores(s). Upon contract reauthorization, all stores held under common ownership shall be placed in the highest peer group among those held commonly. Common ownership is ownership of 30% or more in two or more stores. (5)(6) In determining a vendor's peer group designation based on annual WIC supplemental food sales under Subparagraph (a)(2) of this Rule, the state agency shall look at the most recent 12-month period for which sales data is available. If the most recent available 12-month period of WIC sales data ends more than one year prior to the time of designation, the peer group designation shall be based on the number of cash registers in the store in accordance with Subparagraph (a)(1) of this Rule. (6)(7) The state agency may reassess an authorized vendor's peer group designation at any time during the vendor's agreement period and place the vendor in a different peer group if upon reassessment the state agency determines that the vendor is no longer in the appropriate peer group. (7)(8) A vendor applicant previously authorized in a peer group under Subparagraph (a)(2) of this Rule that is being reauthorized following the nonrenewal or termination of its Agreement or disqualification from the WIC Program shall be placed into the same peer group the vendor applicant was previously in under Subparagraph (a)(2) of this Rule, provided that no more than one year has passed since the nonrenewal, termination or disqualification. If more than one year has passed, the vendor applicant shall be placed into a peer group in accordance with Subparagraph (a)(1) of this Rule. (b) To become authorized as a WIC vendor, a vendor applicant shall comply with the following vendor selection criteria: (1) Accurately complete a WIC Vendor Application, a WIC Price List, and a WIC Vendor Agreement. A vendor applicant must submit its current highest shelf price for each WIC supplemental food listed on the WIC Price List; (2) At the time of application and throughout the term of authorization, submit all completed forms to the local WIC program, except that a corporate entity operating under a WIC corporate agreement shall submit one completed WIC corporate agreement and the WIC Price Lists to the state agency and a separate WIC Vendor Application for each store to the local WIC agency. A corporate entity operating under a WIC corporate agreement may submit a single WIC Price List for those stores that have the same prices for WIC supplemental foods in each store, rather than submitting a separate WIC Price List for each store; (3) Authorized vendors shall agree to purchase all infant formula, exempt infant formula, and WIC-eligible medical food directly from: (A) Infant formula manufacturers registered with the Food and Drug Administration; (B) Food and drug wholesalers registered with the North Carolina Secretary of State and inspected or licensed by the North Carolina Department of Agriculture; (C) Retail food stores that purchase directly from infant formula manufacturers or an approved wholesaler in
Object Description
Description
Title | North Carolina register |
Date | 2005-06-01 |
Description | Volume 19, Issue 23, (June 1, 2005) |
Digital Characteristics-A | 1 MB; 159 p. |
Digital Format |
application/pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_borndigital\images_master\ |
Full Text | NORTH CAROLINA REGISTER Volume 19, Issue 23 Pages 1816 - 1970 June 1, 2005 This issue contains documents officially filed through May 10, 2005. Office of Administrative Hearings Rules Division 424 North Blount Street (27601) 6714 Mail Service Center Raleigh, NC 27699-6714 (919) 733-2678 FAX (919) 733-3462 Julian Mann III, Director Camille Winston, Deputy Director Molly Masich, Director of APA Services Dana Sholes, Publication Coordinator Linda Dupree, Editorial Assistant Julie Brincefield, Editorial Assistant IN THIS ISSUE I. IN ADDITION Notice of Public Meeting – DENR ..........................1816 - 1817 Summary of Notice of Intent to Redevelop A Brownfields Property Bellevue Development, LLC ............................1818 Town of Fletcher...............................................1819 Tax Review Board Decisions...................................1820 - 1828 II. PROPOSED RULES Agriculture Plant Conservation Board.....................................1829 - 1833 Environment and Natural Resources Coastal Resources Commission ...........................1889 - 1893 Environmental Management Commission ...........1862 - 1889 Health Services, Commission for ........................1893 - 1898 Health and Human Services Facility Services ...................................................1844 - 1861 Health Services, Commission for .........................1834 - 1844 Insurance Manufactured Housing Board ..............................1861 - 1862 III. APPROVED RULES.............................................1899 - 1936 Community Colleges Environment and Natural Resources Environmental Health Environmental Management Wildlife Resources Health and Human Services Medical Care Commission Licensing Boards Cosmetic Art Examiners, Board of Nursing, Board of Podiatry Examiners, Board of Secretary of State Securities Division IV. RULES REVIEW COMMISSION.......................1937 - 1939 V. CONTESTED CASE DECISIONS Index to ALJ Decisions............................................1940 - 1948 Text of Selected Decisions 04 OSP 0190.........................................................1949 - 1970 For the CUMULATIVE INDEX to the NC Register go to: http://ncoah.com/register/CI.pdf North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC 27601. North Carolina Register (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register, 6714 Mail Service Center, Raleigh, NC 27699-6714. NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM The North Carolina Administrative Code (NCAC) has four major classifications of rules. Three of these, titles, chapters, and sections are mandatory. The major classification of the NCAC is the title. Each major department in the North Carolina executive branch of government has been assigned a title number. Titles are further broken down into chapters which shall be numerical in order. Subchapters are optional classifications to be used by agencies when appropriate. NCAC TITLES TITLE 21 LICENSING BOARDS TITLE 24 INDEPENDENT AGENCIES 1 ADMINISTRATION 2 AGRICULTURE & CONSUMER SERVICES 3 AUDITOR 4 COMMERCE 5 CORRECTION 6 COUNCIL OF STATE 7 CULTURAL RESOURCES 8 ELECTIONS 9 GOVERNOR 10A HEALTH AND HUMAN SERVICES 11 INSURANCE 12 JUSTICE 13 LABOR 14A CRIME CONTROL & PUBLIC SAFETY 15A ENVIRONMENT &NATURAL RESOURCES 16 PUBLIC EDUCATION 17 REVENUE 18 SECRETARY OF STATE 19A TRANSPORTATION 20 TREASURER 21* OCCUPATIONAL LICENSING BOARDS 22 ADMINISTRATIVE PROCEDURES (REPEALED) 23 COMMUNITY COLLEGES 24* INDEPENDENT AGENCIES 25 STATE PERSONNEL 26 ADMINISTRATIVE HEARINGS 27 NC STATE BAR 28 JUVENILE JUSTICE AND DELINQUENCY PREVENTION 1 Acupuncture 2 Architecture 3 Athletic Trainer Examiners 4 Auctioneers 6 Barber Examiners 8 Certified Public Accountant Examiners 10 Chiropractic Examiners 11 Employee Assistance Professionals 12 General Contractors 14 Cosmetic Art Examiners 16 Dental Examiners 17 Dietetics/Nutrition 18 Electrical Contractors 19 Electrolysis 20 Foresters 21 Geologists 22 Hearing Aid Dealers and Fitters 25 Interpreter/Transliterator 26 Landscape Architects 28 Landscape Contractors 29 Locksmith Licensing 30 Massage & Bodywork Therapy 31 Marital and Family Therapy 32 Medical Examiners 33 Midwifery Joint Committee 34 Funeral Service 36 Nursing 37 Nursing Home Administrators 38 Occupational Therapists 40 Opticians 42 Optometry 44 Osteopathic Examination (Repealed) 45 Pastoral Counselors, Fee-Based Practicing 46 Pharmacy 48 Physical Therapy Examiners 50 Plumbing, Heating & Fire Sprinkler Contractors 52 Podiatry Examiners 53 Professional Counselors 54 Psychology 56 Professional Engineers & Land Surveyors 57 Real Estate Appraisal 58 Real Estate Commission 60 Refrigeration Examiners 61 Respiratory Care 62 Sanitarian Examiners 63 Social Work Certification 64 Speech & Language Pathologists & Audiologists 65 Therapeutic Recreation Certification 66 Veterinary Medical 68 Substance Abuse Professionals 69 Soil Scientists 1 Housing Finance 2 Agricultural Finance Authority 3 Safety & Health Review Board 4 Reserved 5 State Health Plan Purchasing Alliance Board Note: Title 21 contains the chapters of the various occupational licensing boards and Title 24 contains the chapters of independent agencies. NORTH CAROLINA REGISTER Publication Schedule for January 2005 – December 2005 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 19:13 01/03/05 12/08/04 01/18/05 03/04/05 03/21/05 05/01/05 05/06 09/30/05 19:14 01/18/05 12/22/04 02/02/05 03/21/05 04/20/05 06/01/05 05/06 10/15/05 19:15 02/01/05 01/10/05 02/16/05 04/04/05 04/20/05 06/01/05 05/06 10/29/05 19:16 02/15/05 01/25/05 03/02/05 04/18/05 04/20/05 06/01/05 05/06 11/12/05 19:17 03/01/05 02/08/05 03/16/05 05/02/05 05/20/05 07/01/05 05/06 11/26/05 19:18 03/15/05 02/22/05 03/30/05 05/16/05 05/20/05 07/01/05 05/06 12/10/05 19:19 04/01/05 03/10/05 04/16/05 05/31/05 06/20/05 08/01/05 05/06 12/27/05 19:20 04/15/05 03/24/05 04/30/05 06/14/05 06/20/05 08/01/05 05/06 01/10/06 19:21 05/02/05 04/11/05 05/17/05 07/01/05 07/20/05 09/01/05 05/06 01/27/06 19:22 05/16/05 04/25/05 05/31/05 07/15/05 07/20/05 09/01/05 05/06 02/10/06 19:23 06/01/05 05/10/05 06/16/05 08/01/05 08/22/05 10/01/05 05/06 02/26/06 19:24 06/15/05 05/24/05 06/30/05 08/15/05 08/22/05 10/01/05 05/06 03/12/06 20:01 07/01/05 06/10/05 07/16/05 08/30/05 09/20/05 11/01/05 05/06 03/28/06 20:02 07/15/05 06/23/05 07/30/05 09/13/05 09/20/05 11/01/05 05/06 04/11/06 20:03 08/01/05 07/11/05 08/16/05 09/30/05 10/20/05 12/01/05 05/06 04/28/06 20:04 08/15/05 07/25/05 08/30/05 10/14/05 10/20/05 12/01/05 05/06 05/12/06 20:05 09/01/05 08/11/05 09/16/05 10/31/05 11/21/05 01/01/06 05/06 05/29/06 20:06 09/15/05 08/25/05 09/30/05 11/14/05 11/21/05 01/01/06 05/06 06/12/06 20:07 10/03/05 09/12/05 10/18/05 12/02/05 12/20/05 02/01/06 05/06 06/30/06 20:08 10/17/05 09/26/05 11/01/05 12/16/05 12/20/05 02/01/06 05/06 07/14/06 20:09 11/01/05 10/11/05 11/16/05 01/03/06 01/20/06 03/01/06 05/06 07/29/06 20:10 11/15/05 10/24/05 11/30/05 01/17/06 01/20/06 03/01/06 05/06 08/12/06 20:11 12/01/05 11/07/05 12/16/05 01/30/06 02/20/06 04/01/06 05/06 08/28/06 20:12 12/15/05 11/22/05 12/30/05 02/13/06 02/20/06 04/01/06 05/06 09/11/06 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 19:23 NORTH CAROLINA REGISTER June 1, 2005 1816 Note from the Codifier: This Section contains public notices that are required to be published in the Register or have been approved by the Codifier of Rules for publication. NOTICE OF PUBLIC MEETING AND PUBLIC COMMENT PERIOD NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES DIVISION OF WASTE MANAGEMENT HAZARDOUS WASTE SECTION 1646 MAIL SERVICE CENTER RALEIGH, NORTH CAROLINA 27699-1646 (919) 508- 8400 Notice is hereby given of a public meeting and public comment period on the Remedial Recommendation Document for the former Seaboard Chemical Corporation Facility and the City of High Point Riverdale Drive Landfill site located in Jamestown, North Carolina, Guilford County. The purpose of the Remedial Recommendation Document is to present the remedy that is recommended by the City of High Point, North Carolina and Seaboard Group II to address the containment and remediation of impacted soils and ground water at the site. The proposed remedy will provide the containment and treatment necessary to ensure an effective and viable remedy that is protective of public health, safety and the environment. A summary of the Document appears at the end of this notice*. This is to notify the public of a Public Hearing to be held on Thursday, June 23, 2005 at 7:00 p.m. in the auditorium at Guilford Technical Community College, located at 601 High Point Road, Jamestown, N. C. All interested parties will have an opportunity to present oral and/or written statements concerning the proposed remedy. Five (5) minutes will be allotted per speaker. The public comment period will begin on June 1, 2005 and extend through July 15, 2005. All comments received during the public comment period or at the public meeting will be considered in the formulation of a final decision on the Remedy recommendation document. Written comments regarding the Remedial Recommendation Document should be sent to the following address by July 15, 2005: Mr. Robert Glaser Hazardous Waste Section N. C. Division of Waste Management 1646 Mail Service Center Raleigh, NC 27699-1646 The Remedial Recommendation Document is available for review at the following location during office hours (9:00 a.m. – 4:00 p.m.) Monday through Friday: Division of Waste Management Hazardous Waste Section 401 Oberlin Road, Suite 150, Room 21 Raleigh, North Carolina 27605 Call (919) 508-8400, extension 8564 for an appointment The City of High Point will also maintain a copy of the Remedial Recommendation Document, as part of the administrative record, at the High Point Public Library, 901 North Main Street, High Point. No appointment is necessary to review the Remedy Recommendation Document during normal business hours (Library phone number is 336-883-3643). * Summary of Remedial Recommendation Document The proposed Remedy takes into consideration the findings of the Remedial Investigation (RI), the Feasiblity Study (FS) and the Baseline Risk assessment (BRA) and the currently known technical limitations on remediation of dense, non-aqueous phase liquids (“DNAPL”) in fractured bedrock. The proposed Remedy includes engineering and institutional controls along with leachate collection, groundwater extraction and treatment for plume containment and contaminant reduction. The proposed Remedy will control potential for off-site migration of impacted groundwater and leachate into the Deep River and, once constructed, into Randleman Reservoir. The proposed Remedy addresses these objectives through the following components: IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1817 1. Isolation of Landfill leachate and leachate-impacted groundwater to prevent its migration to the waters of the Deep River and the Northern and Southern Intermittent Streams; 2. Stabilization of Landfill slopes and enhancement of the existing caps at the Landfill and the Seaboard Site; 3. Extraction of groundwater to contain plume migration and capture impacted groundwater recharge into the Deep River and the Northern and Southern Intermittent Streams. 4. Treatment of extracted groundwater to reduce contaminant mass 5. The use of natural treatment processes, including constructed wetlands and upland phytoremediation systems, to provide sustainable and cost-effective treatment of extracted groundwater; 6. Physical and chemical treatment, including air stripping, aeration and ozone-oxidation methods, to supplement the natural treatment processes. A HiPOx treatment system, which uses hydroxyl radicals formed by the reaction of ozone with hydrogen peroxide organic containment in the groundwater, is proposed for use at the Site. This system will provide effective treatment during periods of time when the natural treatment systems are being started up 7. Continued use and maintenance of the existing fences and warning signs at the Site to restrict unauthorized access; 8. Permanent land use restrictions on the Seaboard Site and the property immediately across the Deep River from the Site and the Landfill to prevent future uses of impacted groundwater or activities which could result in unacceptable risk exposures; 9. Long term, periodic site inspections and agency reviews; and 10. Long-term, periodic groundwater and surface water monitoring. NC DENR will provide auxiliary aids and services for disabled persons who wish to review the documents to comply with the Americans with Disabilities Act. To receive special services, please contact Robert Glaser at the address above, via email at robert.glaser@ncmail.net or by calling (919) 508-8541. IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1818 SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY Bellevue Development, LLC Pursuant to N.C.G.S. § 130A-310.34, Bellevue Development, LLC has filed with the North Carolina Department of Environment and Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Hillsborough, Orange County, North Carolina. The Property consists of approximately 9.1 acres and is located at 200 through 210 South Nash Street. Environmental contamination exists on the Property in the soil and groundwater. Bellevue Development, LLC has committed itself to make no use of the Property other than for owner- or tenant-occupied residential apartments and related amenities. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and Bellevue Development, LLC, which in turn includes (a) a map showing the location of the Property, (b) a description of the contaminants involved and their concentrations in the media of the Property, (c) the above-stated description of the intended future use of the Property, and (d) proposed investigation and remediation; and (2) a proposed Notice of Brownfields Property prepared in accordance with G.S. 130A-310.35. The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at the Orange County Public Library, 300 W. Tryon St., Hillsborough, NC 27278, by contacting Ms. Kim Sholar at that address or at (919) 245-2525; or at 401 Oberlin Rd., Raleigh, NC 27605 by contacting Ms. Shirley Liggins at that address, at shirley.liggins@ncmail.net, or at (919) 508- 8411, where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents. Written public comments may be submitted to DENR within 60 days after the date this Notice is published in a newspaper of general circulation serving the area in which the brownfields property is located, or in the North Carolina Register, whichever is later. Written requests for a public meeting may be submitted to DENR within 30 days after the period for written public comments begins. Thus, if Bellevue Development, LLC, as it plans, publishes this Summary in the North Carolina Register after it publishes the Summary in a newspaper of general circulation serving the area in which the brownfields property is located, and if it effects publication of this Summary in the North Carolina Register on the date it expects to do so, the periods for submitting written requests for a public meeting regarding this project and for submitting written public comments will commence on June 2, 2005. All such comments and requests should be addressed as follows: Mr. Bruce Nicholson Brownfields Program Manager Division of Waste Management NC Department of Environment and Natural Resources 401 Oberlin Road, Suite 150 Raleigh, North Carolina 27605 IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1819 SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY Town of Fletcher Pursuant to N.C.G.S. § 130A-310.34, the Town of Fletcher has filed with the North Carolina Department of Environment and Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Fletcher, Henderson County, North Carolina. The Property consists of 28.77 acres on the east side of Howard Gap Road near U.S. Highway 25. The Property is bordered to the north by railroad tracks and land that is partially vacant and partially agricultural; to the south by the facilities of Asheville Maintenance and Construction, Inc., where equipment/supply storage and work related to electrical, carpentry and painting contracting occur, and by property containing a building that houses the Park Ridge Medical Association medical practice; to the southeast by Fletcher Community Park; to the east by land that is partially vacant and partially agricultural; and to the west by Howard Gap Road. Environmental contamination exists on the Property in soil and groundwater. The Town of Fletcher has committed itself to make no use of the Property other than for mixed commercial/residential redevelopment to include a town hall, commercial and retail businesses, office space, green space with walking trails, and residential townhomes or condominiums. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and the Town of Fletcher, which in turn includes (a) a map showing the location of the Property, (b) a description of the contaminants involved and their concentrations in the media of the Property, (c) the above-stated description of the intended future use of the Property, and (d) proposed investigation and remediation; and (2) a proposed Notice of Brownfields Property prepared in accordance with G.S. 130A-310.35. The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at Henderson County Public Library, Fletcher Branch, 120 Library Road, Fletcher, NC 28732 by contacting Sherry Waldrop at (828) 687-1218; or at 401 Oberlin Rd., Raleigh, NC 27605 by contacting Shirley Liggins at that address, at shirley.liggins@ncmail.net, or at (919) 733-2801, ext. 336, where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents. Written public comments may be submitted to DENR within 60 days after the date this Notice is published in a newspaper of general circulation serving the area in which the brownfields property is located, or in the North Carolina Register, whichever is later. Publication in the North Carolina Register is scheduled for June 1, 2005. Written requests for a public meeting may be submitted to DENR within 30 days after the period for written public comments begins. Thus, if the Town of Fletcher, as it plans, publishes this Summary in the North Carolina Register after it publishes the Summary in a newspaper of general circulation serving the area in which the brownfields property is located, and if it effects publication of this Summary in the North Carolina Register on the date it expects to do so, the periods for submitting written requests for a public meeting regarding this project and for submitting written public comments will commence on August 1, 2005. All such comments and requests should be addressed as follows: Mr. Bruce Nicholson Brownfields Program Manager Division of Waste Management NC Department of Environment and Natural Resources 401 Oberlin Road, Suite 150 Raleigh, North Carolina 27605 IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1820 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Sales and Use ) Tax for the period April 1, 1999 through ) March 31, 2002, by the Secretary of ) Revenue of North Carolina ) ) ADMINISTRATIVE DECISION ) Number: 451 ) vs. ) ) EarthData International of North Carolina, LLC ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer on Tuesday, April 13, 2004, upon a petition filed by EarthData International of North Carolina, LLC (hereinafter "Taxpayer") for administrative review of the Final Decision of the Assistant Secretary of Revenue sustaining the proposed use tax assessment for the period of April 1, 1999 through March 31, 2002. Chairman Richard H. Moore, State Treasurer, presided over the hearing with ex officio member, Jo Anne Sanford, Chair, Utilities Commission and duly appointed member, Noel L. Allen, Attorney at Law participating. Pursuant to N.C. Gen. Stat. § 105-241.2, the Taxpayer, through counsel, appeals from the adverse decision by the Assistant Secretary of Revenue issued on June 10, 2003 that sustained the assessment of use tax and interest, but waived the penalties imposed against the Taxpayer in this matter. STATEMENT OF CASE AND FACTS The Taxpayer is a land surveying company with its corporate offices in High Point, North Carolina. The Taxpayer provides aerial topographical mapping services within and without North Carolina. These services are nontaxable when ultimately sold to the Taxpayer's customers. In the course of providing land surveying services to its customers, the Taxpayer purchases aerial photography, undeveloped film, contract prints, negatives, diapositives, data tapes and compact disks, and thermal imagery from subcontractors that include affiliate companies. After conducting an audit of the Taxpayer's records, the Department of Revenue proposed a use tax assessment against the Taxpayer. The additional tax resulted from Taxpayer's purchases for use of aerial photography, undeveloped film, geo-referenced imaging data in the form of a contract print, negative or diapositive and scanning information in the form of data tapes or compact disks. After receiving the notice of assessment, the Taxpayer, through counsel, notified the Department of Revenue that it objected to the assessment and requested an administrative hearing before the Secretary of Revenue. After conducting the hearing, the Assistant Secretary of Revenue issued a final decision sustaining the proposed assessment of use tax and interest for the period of April 1, 1999 through March 31, 2002. For good cause shown, the Assistant Secretary of Revenue waived the penalties that were imposed against the Taxpayer. Thereafter, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary of Revenue's final decision with the Board. ISSUES The issues considered by the Assistant Secretary of Revenue regarding this matter are stated as follows: 1. Are the Taxpayer's purchases of undeveloped aerial photography film, contract prints, negatives, diapositives, data tapes and compact disks considered purchases of taxable property for use or purchase of nontaxable services? 2. Is the Taxpayer a disregarded entity, and therefore not subject to sales tax, based on its corporate structure and the corporate structure of its vendors? 3. Are the penalties and interest on the Taxpayer's assessment correctly proposed and assessed? IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1821 EVIDENCE Pursuant to N.C. Gen. Stat. § 105-241.2(b), the Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary. FINDINGS OF FACTS The Board reviewed and considered the findings of fact entered by the Assistant Secretary of Revenue in his decision regarding this matter. CONCLUSIONS OF LAW The Board reviewed and considered the conclusions of law made by the Assistant Secretary of Revenue in his decision regarding this matter. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the Taxpayer to rebut that presumption. In order to rebut the presumption, the Taxpayer must offer evidence to show that the assessment is not proper. The record in this matter shows that the Taxpayer is a single member limited liability company that provides aerial topographical services. In order to provide its nontaxable aerial topographical services, the Taxpayer purchases undeveloped aerial photography film, geo-referenced imaging data in the form of contact prints, negatives, or diapositives and scanning information in the form of data tapes or compact disks. These items are purchased from subcontractors, including corporate entities that are affiliates of the Taxpayer. In the petition filed with the Board, the Taxpayer contends that the subcontractors are providing services that are an integral step in the process of photogrammetry and the services rendered by the subcontractors are not taxable under North Carolina's Use Tax. The Taxpayer further contends that any tangible personal property produced by these subcontractors is merely incidental to the professional services being rendered and the tangible items are merely an instrument of the service being performed. Thus, the Taxpayer argues that the "true object" of the transactions at issue is information and not the transfer of tangible personal property. In the alternative, the Taxpayer argues that the assessment must be reduced because it includes transactions between affiliate companies that do not constitute a taxable event under North Carolina's Sales and Use Tax. In the final decision, the Assistant Secretary determined that the "true object" of the transactions in question is the contact prints, negatives, diapositives, data tapes and compact disks because these are the items that the Taxpayer must obtain and use in order to provide the nontaxable topographical services. The Assistant Secretary ruled that Taxpayer purchases tangible personal property used in providing aerial topographical services and is therefore subject to the use taxes. The Assistant Secretary also ruled that the transactions between the Taxpayer and its wholly owned sister limited liability companies are taxable transactions. Thus, the Assistant Secretary rejected the argument that the transactions between the Taxpayer and its affiliates do not constitute a taxable event. The Board, after conducting an administrative hearing in this matter, and after considering the petition, the briefs, the whole record and the Assistant Secretary's final decision, concludes that the findings of fact made by the Assistant Secretary in the decision were fully supported by competent evidence in the record; that the Assistant Secretary's conclusions of law were fully supported by the findings of fact; therefore the Assistant Secretary's final decision should be confirmed. WHEREFORE, THE BOARD ORDERS that the Assistant Secretary of Revenue's final decision be confirmed in every respect. Made and entered into the 9th day of September 2004. TAX REVIEW BOARD Richard H. Moore, Chairman State Treasurer IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1822 Jo Anne Sanford, Member Chair, Utilities Commission Noel L. Allen, Appointed Member IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1823 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: ) ) The Proposed Assessment of Unauthorized ) Substance Tax dated January 23, 2003 ) ADMINISTRATIVE DECISION by the Secretary of Revenue of the ) NUMBER 452 State of North Carolina ) ) vs. ) ) Gwendolyn Fennell-Wimes, Taxpayer ) This Matter was heard before the Regular Tax Review Board (hereinafter “Board”) in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Wednesday, August 25, 2004, pursuant to the petition of Gwendolyn Fennell- Wimes (hereinafter “Taxpayer”) for administrative review of the final decision entered by the Assistant Secretary of Revenue on August 5, 2003, sustaining the proposed tax assessment plus interest against the Taxpayer. Pursuant to N.C.G.S. 105-113.111 and N.C.G.S. 105-241.1(a)&(b), a notice of proposed assessment was delivered to the Taxpayer by U.S. Mail sent to the Taxpayer’s last known address of 701 Chandler Road, Durham, NC 27703. The notice alleged that on January 19, 2003, the Taxpayer was in unauthorized possession of 60 dosages of oxycodone, to which no tax stamps were affixed. The notice proposed an assessment comprised of excise tax in the amount of $1,200.00, penalties totaling $480.00, and interest in the amount of $6.00, for a total proposed tax liability of $1,686.00. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. Pursuant to N.C. Gen. Stat. 105-260.1, Eugene J. Cella, Assistant Secretary, conducted a hearing upon Taxpayer’s timely application and objection to the proposed assessment. On August 5, 2003, the Assistant Secretary issued the final decision, which adjusted the proposed assessment against the Taxpayer to $1,200.00 plus interest. Thereafter, the Taxpayer timely filed a petition for administrative review of the final decision with the Board. ISSUES 1. Did the Taxpayer have actual and/or constructive possession of marijuana without the proper tax stamps affixed? 2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax? EVIDENCE Pursuant to N.C. Gen. Stat. 105-241.2(b), the Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). “The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary.” On August 25, 2004, the Board conducted an administrative hearing in this matter and considered the petition, the brief, the record, the Assistant Secretary’s final decision, the arguments presented at the administrative hearing and the documentary evidence filed with the Board on August 25, 2004. Upon review of the additional evidence filed by the Taxpayer on August 25, 2004, the Board deems this evidence material to the issues and determines that it is appropriate to remand this matter to the Assistant Secretary where the evidence shall be taken and ruled upon by the Assistant Secretary. Thus, the Board, in its discretion, remands this matter to the Assistant Secretary for a further proceeding to consider the Taxpayer’s additional evidence. THEREFORE, it is the decision of the Board to REMAND this matter to the Assistant Secretary for a further proceeding. IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1824 Made and entered into the 23rd day of November , 2004. TAX REVIEW BOARD Richard H. Moore, Chairman State Treasurer Jo Anne Sanford, Member Chair, Utilities Commission Noel L. Allen, Appointed Member IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1825 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: ) ) The Proposed Assessment of Unauthorized ) Substance Tax dated September 19, 2002 ) ADMINISTRATIVE DECISION by the Secretary of Revenue of the ) NUMBER 453 State of North Carolina ) ) vs. ) ) Gary Richard Taylor, ) Taxpayer ) This Matter was heard before the Regular Tax Review Board (hereinafter “Board”) in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Wednesday, August 25, 2004, pursuant to the petition of Gary Richard Taylor (hereinafter “Taxpayer”) for administrative review of the final decision entered by the Assistant Secretary of Revenue on May 28, 2003. Pursuant to N.C.G.S. 105-113.111 and N.C.G.S. 105-241.1(a)&(b), a notice of proposed assessment was delivered to the Taxpayer by U.S. Mail sent to the Taxpayer at his last known address of 27 Edney Rd., Arden, NC 28704. Based on the Taxpayer’s unauthorized possession of 3,924.68 grams of marijuana on September 17, 2002, to which no tax stamps were affixed, the notice proposed an assessment comprised of excise tax in the amount of $13,737.50, penalties totaling $5,495.00, and interest in the amount of $68.69, for a total proposed tax liability of $19,301.19. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. Pursuant to N.C. Gen. Stat. 105-260.1, Eugene J. Cella, Assistant Secretary, conducted a hearing upon Taxpayer’s timely application and objection to the proposed assessment. On May 28, 2004, the Assistant Secretary issued the final decision, adjusting the proposed assessment of tax to $5,390.00 plus interest for the period at issue. Thereafter, the Taxpayer timely filed a petition for administrative review of the final decision with the Board. ISSUES 1. Did the Taxpayer have actual and/or constructive possession of marijuana without the proper tax stamps affixed? 2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax? EVIDENCE Pursuant to N.C. Gen. Stat. 105-241.2(b), the Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary. Based upon the Board’s review of the documentation, those documents are incorporated by reference and are made a part of this administrative decision. FINDINGS OF FACT The Board reviewed and considered the following findings of fact entered by the Assistant Secretary in his decision regarding this matter: 1. Assessment of Unauthorized Substance Tax was made against the Taxpayer on September 17, 2002, in the sum of $13,737.50 tax, $5,495.00 penalty and $68.69 interest, for a total proposed liability of $19,301.19, based on possession of 3,924.68 grams of marijuana. 2. The Taxpayer made timely objection and application for a hearing. 3. On September 17, 2002, the Taxpayer was in constructive possession of 3,924.68 grams of marijuana. 4. No tax stamps were purchased for or affixed to the marijuana as required by law. CONCLUSIONS OF LAW The Board reviewed and considered the following conclusions of law entered by the Assistant Secretary in his decision regarding this matter: IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1826 1. A preponderance of the evidence supports the foregoing findings of fact, therefore the Taxpayer is subject to an assessment of unauthorized substances tax. 2. The forty-cent tax rate authorized in G.S. 105-113.107(a)(1) applies to “harvested marijuana stems and stalks that have been separated from and are not mixed with any other parts of the marijuana plant.” Growing marijuana plants, by definition, do not quality for this tax rate. See G.S. 105-113.106(6) and G.S. 105-113.107(a)(1a). 3. Without authorization, the Taxpayer possessed 1,100 grams of marijuana on September 17, 2002, and was therefore a “dealer” as that term is defined in N.C.G.S. 105-113.106(3). 4. The Taxpayer is liable for excise tax in the amount of $3,850.00, penalties totaling $1,540.00, and interest until date of full payment. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). “The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary.” Assessments of tax are presumed to be correct and the taxpayer has the burden to show that the assessment is not proper. It is the function of this Board, upon administrative review, to review the record and determine whether the final decision is proper based upon the evidence presented at the hearing before the Assistant Secretary. Pursuant to N.C. Gen. Stat. 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the Taxpayer must offer evidence to show that the assessment is not proper. Thus, the Board having conducted an administrative hearing in this matter, and having considered the petition, the briefs, the whole record and the Assistant Secretary’s final decision, concluded that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record; that based upon the findings of fact; therefore, the decision of the Assistant Secretary should be confirmed. WHEREFORE, THE BOARD ORDERS that the Assistant Secretary’s final decision be confirmed in every respect. Made and entered into the 23rd day of November , 2004. TAX REVIEW BOARD ______________________________ Richard H. Moore, Chairman State Treasurer ______________________________ Jo Anne Sanford, Member Chair, Utilities Commission _______________________________ Noel L. Allen, Appointed Member IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1827 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: ) ) The Proposed Assessment of Unauthorized ) Substance Tax dated December 15, 2002 ) ADMINISTRATIVE DECISION by the Secretary of Revenue of the ) NUMBER 454 State of North Carolina ) ) vs. ) ) Sammy Mark Smith, Taxpayer ) This Matter was heard before the Regular Tax Review Board (hereinafter “Board”) in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Wednesday, August 25, 2004, pursuant to the petition of Sammy Mark Smith (hereinafter “Taxpayer”) for administrative review of the final decision entered by the Assistant Secretary of Revenue on July 24, 2003, sustaining the proposed tax assessment plus penalty and interest against the Taxpayer. Pursuant to N.C.G.S. 105-113.111 and N.C.G.S. 105-241.1(a)&(b), a notice of proposed assessment was delivered to the Taxpayer by leaving a copy of same at the Taxpayer’s last known address of 281 Allen Dr., Forest City, NC 28043. The notice alleged that on December 15, 2002, the Taxpayer was in unauthorized possession of 2,940 dosages of methamphetamine, to which no tax stamps were affixed. The notice proposed an assessment comprised of excise tax in the amount of $14,700.00, penalties totaling $5,880.00, and interest in the amount of $39.20, for a total proposed tax liability of $20,619.20. The Taxpayer’s mother paid the tax in full, $14,700.00, within 48 hours, therefore the penalty and interest are waived and the hearing is essentially a request for a refund. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. Pursuant to N.C. Gen. Stat. 105-260.1, Eugene J. Cella, Assistant Secretary, conducted a hearing upon Taxpayer’s timely application and objection to the proposed assessment. On July 24, 2003, the Assistant Secretary issued the final decision, which adjusted the proposed assessment based on possession of 2,940 dosages of methamphetamine, comprised of excise tax in the amount of $14,700.00 which is deemed to be proper under the law and the facts, and is sustained and declared to be final, and the Taxpayer’s request for a refund was rightly denied. ISSUES 1. Did the Taxpayer have actual and/or constructive possession of marijuana without the proper tax stamps affixed? 2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax? EVIDENCE Pursuant to N.C. Gen. Stat. 105-241.2(b), the Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary in this matter. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). “The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary.” On August 25, 2004, the Board conducted an administrative hearing in this matter and considered the petition, the brief, the record, the Assistant Secretary’s final decision, the arguments presented at the administrative hearing and the documentary evidence filed with the Board. Upon review of the additional evidence filed by the Taxpayer concerning the SBI lab report, the Board deems this evidence material to the issues and determines that it is appropriate to remand this matter to the Assistant Secretary where the evidence shall be taken and ruled upon by the Assistant Secretary. Thus, the Board, in its discretion, remands this matter to the Assistant Secretary for a further proceeding to consider the Taxpayer’s additional evidence. THEREFORE, it is the decision of the Board to REMAND this matter to the Assistant Secretary for further consideration. IN ADDITION 19:23 NORTH CAROLINA REGISTER June 1, 2005 1828 Made and entered into the 23rd day of November , 2004. TAX REVIEW BOARD ______________________________ Richard H. Moore, Chairman State Treasurer ______________________________ Jo Anne Sanford, Member Chair, Utilities Commission _______________________________ Noel L. Allen, Appointed Member PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1829 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 2 – DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES Notice is hereby given in accordance with G.S. 150B-21.2 that the Plant Conservation Board intends to amend the rules cited as 02 NCAC 48F .0301-.0302; .0304. Proposed Effective Date: October 1, 2005 Instructions on How to Demand a Public Hearing: (must be requested in writing within 15 days of notice): Any person may request a public hearing on the proposed rules by submitting a request in writing no later than June 16, 2005, to Marj Boyer, Secretary, NC Plant Conservation Board, 1060 Mail Service Center, Raleigh NC 27699-1060. Reason for Proposed Action: Proposed rule changes would add and delete various plant species to lists of protected plants based on review of their current status by the Plant Conservation Board. 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 Marj Boyer, Secretary, NC Plant Conservation Board, 1060 Mail Service Center, Raleigh, NC 27699-1060. Written comments may be submitted to: Marj Boyer, Secretary, NC Plant Conservation Board, 1060 Mail Services Center, Raleigh, NC 27699-1060, phone (919)733-3610 ext. 250, fax (919)716-1041, email marj.boyer@ncmail.net. Comment period ends: August 1, 2005 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 48 - PLANT INDUSTRY SUBCHAPTER 48F - PLANT CONSERVATION SECTION .0300 - ENDANGERED PLANT SPECIES LIST: THREATENED PLANT SPECIES LIST: LIST OF SPECIES OF SPECIAL CONCERN 02 NCAC 48F .0301 ENDANGERED PLANT SPECIES LIST The North Carolina Plant Conservation Board hereby establishes the following list of endangered plant species: (1) Adiantum capillus-veneris -- L. capillus-veneris L. Venus Hair Fern; (2) Aeschynomene virginica -- (L.) virginica (L.) B.S.P. Sensitive Jointvetch; (3) Agrostis mertensii -- Trin. mertensii Trin. Arctic bentgrass; (4) Amorpha georgiana var. georgiana -- Wilbur georgiana Wilbur Georgia Indigo-bush; (5) Amphicarpum muehlenbergianum (J.A. Schultes) A.S. Hitchc. Florida Goober Grass, Blue Maidencane; (5)(6) Arethusa bulbosa -- L. bulbosa L. Bog Rose; (6)(7) Asplenium heteroresiliens -- W.H. heteroresiliens W.H. Wagner Carolina Spleenwort; (7)(8) Asplenium monanthes -- L. monanthes L. Single-sorus Spleenwort; (8)(9) Aster parviceps -- (Burgess) parviceps (Burgess) Mackenzie & Bush Glade Aster; (9)(10) Bryocrumia andersonii -- (Bartr.) andersonii (Bartr.) Anders. Gorge Moss; (10)(11) Buckleya distichophylla -- (Nuttall) distichophylla (Nuttall) Torrey Piratebush; (11)(12) Calamagrostis cainii -- Hitchcock cainii Hitchcock Cain's Reed Grass; (12)(13) Calopogon multiflorus -- Lindl. multiflorus PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1830 Lindl. Many-flowered Grass-Pink; (14) Canoparmelia amabilis Heiman & Elix Worthy Shield Lichen; (13)(15) Cardamine micranthera -- Rollins micranthera Rollins Small-anthered Bittercress; (14)(16) Carex aenea -- Fernald aenea Fernald Fernald's Hay Sedge; (15)(17) Carex barrattii -- Schweinitz barrattii Schweinitz and Torrey Barratt's Sedge; (16)(18) Carex lutea -- LeBlond lutea LeBlond Golden Sedge; (17)(19) Carex oligosperma -- Michx. oligosperma Michx. Few-seeded Sedge; (18)(20) Carex radfordii -- Gaddy radfordii Gaddy Radford's sedge; (19)(21) Carex schweinitzii -- Dewey schweinitzii Dewey ex Schweinitz Schweinitz's Sedge; (20)(22) Carya myristiciformis -- (Michaux myristiciformis (Michaux f.) Nuttall Nutmeg hickory; (21)(23) Cheilolejeunea evansii -- (M. evansii (M. Taylor) Schust. A liverwort; (22)(24) Chrysoma pauciflosculosa -- (Michx.) pauciflosculosa (Michx.) Greene Woody Goldenrod; (23)(25) Conioselinum chinense -- (L.) chinense (L.) B.S.P. Hemlock Parsley; (24)(26) Cystopteris tennesseensis -- Shaver tennesseensis Shaver Tennessee Bladderfern; (25)(27) Dalibarda repens -- L. repens L. Robin Runaway; (26)(28) Delphinium exaltatum -- Aiton exaltatum Aiton Tall Larkspur; (29) Dichanthelium caerulescens (Hack. ex Hitchc.) Correll Blue Witch Grass; (27)(30) Echinacea laevigata -- (Boynton laevigata (Boynton and Beadle) Blake Smooth Coneflower; (28)(31) Eriocaulon lineare -- Small lineare Small Linear Pipewort; (32) Eriocaulon texense Koern. Texas Hatpins; (29)(33) Filipendula rubra -- (Hill) rubra (Hill) B.L. Robins. Queen-of-the-Prairie; (34) Fimbristylis perpusilla Harper ex Small & Britt. Harper's Fimbry; (35) Gaylussacia nana (Gray) Small Confederate Huckleberry; (30)(36) Gentianopsis crinita -- (Froelich) crinita (Froelich) Ma Fringed Gentian; (31)(37) Geum radiatum -- Michaux radiatum Michaux Spreading Avens; (32)(38) Grammitis nimbata -- (Jenm.) nimbata (Jenm.) Proctor Dwarf Polypody Fern; (33)(39) Gymnocarpium appalachianum -- Pryer appalachianum Pryer & Haufler Appalachian Oak Fern; (34)(40) Helenium brevifolium -- (Nutt.) brevifolium (Nutt.) Wood Littleleaf Sneezeweed; (35)(41) Helenium vernale -- Walt. vernale Walt. Spring Sneezeweed; (42) Helianthemum nashii Britt. Florida scrub frostweed; (43) Helianthus floridanus Gray ex Chapman Florida Sunflower; (36)(44) Helianthus schweinitzii -- T. schweinitzii T. & G. Schweinitz's Sunflower; (37)(45) Hexastylis contracta -- Blomquist contracta Blomquist Mountain Heartleaf; (38)(46) Hierochloe odorata -- (L.) odorata (L.) Beauv. Holy Grass; (39)(47) Houstonia purpurea var. montana -- (Small) montana (Small) Terrell Mountain Bluet; (40)(48) Hudsonia montana -- Nutt. montana Nutt. Mountain Golden Heather; (41)(49) Hydrastis canadensis -- L. canadensis L. Goldenseal; (42)(50) Hymenophyllum tayloriae -- Farrar tayloriae Farrar & Raine Gorge filmy fern; (51) Isoetes microvela D.F. Brunton A Quillwort; (43)(52) Isotria medeoloides -- (Pursh) medeoloides (Pursh) Raf. Small Whorled Pogonia; (44)(53) Juncus caesariensis -- Coville caesariensis Coville Rough Rush; (45)(54) Juncus trifidus ssp. carolinianus -- Hamet carolinianus Hamet Ahti One-flowered Rush; (46)(55) Lilium pyrophilum -- M. pyrophilum M. W. Skinner & Sorrie Sandhills bog lily; (47)(56) Lindera melissaefolia -- (Walter) melissaefolia (Walter) Blume Southern Spicebush; (57) Lipocarpha micrantha (Vahl) G. Tucker Small-flowered Hemicarpha; (48)(58) Lophiola aurea -- Ker-Gawl. aurea Ker-Gawl. PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1831 Golden Crest; (49)(59) Lysimachia asperulaefolia -- Poiret asperulaefolia Poiret Rough-leaf Loosestrife; (50)(60) Lysimachia fraseri -- Duby fraseri Duby Fraser's Loosestrife; (51)(61) Minuartia godfreyi -- (Shinners) godfreyi (Shinners) McNeill Godfrey's Sandwort; (52)(62) Minuartia uniflora -- (Walter) uniflora (Walter) Mattfield Single-flowered Sandwort; (53)(63) Muhlenbergia torreyana -- (Schultes) torreyana (Schultes) Hitchcock Torrey's Muhly; (54)(64) Myrica gale -- L. gale L. Sweet Gale; (55)(65) Narthecium americanum -- Ker americanum Ker Bog Asphodel; (56)(66) Orbexilum macrophyllum -- (Rowlee macrophyllum (Rowlee ex Small) Rydberg Bigleaf Scurfpea; (57)(67) Orthotrichum keeverae -- Crum keeverae Crum & Anders. Keever's Bristle Moss; (58)(68) Oxypolis canbyi -- (Coult. canbyi (Coult. & Rose) Fern. Canby's Cowbane; (59)(69) Panicum hirstii -- Swallen hirstii Swallen Hirst's Panic Grass; (60)(70) Parnassia caroliniana -- Michaux caroliniana Michaux Carolina Grass-of-Parnassus; (71) Paronychia herniariodes (Michx.) Nutt. Michaux's Whitlow-wort; (61)(72) Pellaea wrightiana -- Hooker wrightiana Hooker Wright's Cliff-brake Fern; (62)(73) Plantago cordata -- Lam. cordata Lam. Heart-leaf Plantain; (63)(74) Plantago sparsiflora -- Michaux sparsiflora Michaux Pineland Plantain; (64)(75) Platanthera integrilabia -- (Correll) integrilabia (Correll) Leur White Fringeless Orchid; (65)(76) Poa paludigena -- Fernald paludigena Fernald & Wiegand Bog Bluegrass; (66)(77) Pteroglossaspis ecristata -- (Fernald) ecristata (Fernald) Rolfe Eulophia; (67)(78) Ptilimnium nodosum -- (Rose) nodosum (Rose) Mathias Harperella; (68)(79) Pyxidanthera barbulata var. brevifolia -- (Wells) brevifolia (Wells) Ahles Wells' Pyxie-moss; (69)(80) Rhus michauxii -- Sargent michauxii Sargent Michaux's Sumac; (70)(81) Rhynchospora crinipes -- Gale crinipes Gale Mosquito Beak Sedge; (71)(82) Rhynchospora macra -- (C.B. macra (C.B. Clarke) Small Large Beak Sedge; (83) Rhynchospora odorata C. Wright ex Griseb. Fragrant Beaksedge; (72)(84) Rhynchospora thornei -- Kral thornei Kral Thorne's Beaksedge; (73)(85) Rudbeckia heliopsidis -- Torr. heliopsidis Torr. & Gray Sun-facing coneflower; (74)(86) Sagittaria fasciculata -- E.O. fasciculata E.O. Beal Bunched Arrowhead; (75)(87) Sarracenia jonesii -- Wherry jonesii Wherry Mountain Sweet Pitcher Plant; (76)(88) Sarracenia oreophila -- (Kearney) oreophila (Kearney) Wherry Green Pitcher Plant; (77)(89) Schwalbea americana -- L. americana L. Chaffseed; (90) Scirpus flaccidifolius (Fern.) Schuyler Reclining Bulrush; (78)(91) Sedum pusillum -- Michaux pusillum Michaux Puck's Orpine; (79)(92) Sedum rosea -- (L.) rosea (L.) Scop. Roseroot; (80)(93) Senecio schweinitzianus -- Nuttall schweinitzianus Nuttall Schweinitz's Groundsel; (81)(94) Shortia galacifolia -- T. galacifolia T. & G. Oconee Bells; (82)(95) Sisyrinchium dichotomum -- Bicknell dichotomum Bicknell Reflexed Blue-eyed Grass; (83)(96) Solidago plumosa -- Small plumosa Small Yadkin River Goldenrod; (84)(97) Solidago ptarmicoides -- (Nees) ptarmicoides (Nees) Boivin Prairie Goldenrod; (85)(98) Solidago spithamaea -- M.A. spithamaea M.A. Curtis Blue Ridge Goldenrod; (86)(99) Solidago villosicarpa -- LeBlond villosicarpa LeBlond Coastal goldenrod; (87)(100) Sphagnum fuscum -- (Schimp.) fuscum (Schimp.) Klinggr. Brown Peatmoss; (88)(101) Sphenolobopsis pearsoni -- (Sprengel) pearsoni (Sprengel) Schuster & Kitagawa A liverwort; (102) Spigelia marilandica (L.) L. Pink Root; (89)(103) Spiraea virginiana -- Britton virginiana Britton PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1832 Virginia Spiraea; (90)(104) Sporobolus heterolepis -- Gray heterolepis Gray Prairie Dropseed; (91)(105) Stylisma pickeringii var. pickeringii -- (Torrey pickeringii (Torrey ex M.A. Curtis) Gray Pickering's Morning Glory; (92)(106) Talinum mengesii -- W. mengesii W. Wolf Large-flowered fameflower; (93)(107) Thalictrum cooleyi -- Ahles cooleyi Ahles Cooley's Meadowrue; (94)(108) Tortula ammonsiana -- Crum ammonsiana Crum & Anders. Ammon's Tortula; (109) Tridens ambiguus (Ell.) J.A. Schultes Pinelands Triodia; (95)(110) Trillium pusillum -- Michaux pusillum Michaux Carolina Least Trillium; (96)(111) Trisetum spicatum var. molle -- (Michaux) molle (Michaux) Beal Soft Trisetum. Trisetum; (112) Utricularia resupinata B.D. Greene ex Bigelow Northeastern Bladderwort; (113) Warea cuneifolia (Muhl. ex Nutt.) Nutt. Carolina Pineland-cress; (114) Zephyranthes simpsonii Chapman Rain Lily. Authority G.S. 106-202.15. 02 NCAC 48F .0302 THREATENED PLANT SPECIES LIST The North Carolina Plant Conservation Board hereby establishes the following list of threatened plant species: (1) Amaranthus pumilus -- Raf. pumilus Raf. Seabeach Amaranth; (2) Amorpha georgiana var. confusa -- Wilbur confusa Wilbur Savanna Indigo-bush; (3) Aster georgianus --Alexander georgianus Alexander Georgia Aster; (4) Astragalus michauxii --(Kuntze) michauxii (Kuntze) F.J. Herm. Sandhills Milkvetch; (5) Baptisia minor -- Lehmann minor Lehmann Prairie Blue Indigo; (6) Cacalia rugelia -- (Shuttl. rugelia (Shuttl. ex Chapm) Barkley & Cronq. Rugel's Ragwort; (7) Camassia scilloides -- (Raf.) scilloides (Raf.) Cory Wild Hyacinth; (8) Carex conoidea -- Willd. conoidea Willd. Cone-shaped Sedge; (9) Carex exilis -- Dewey exilis Dewey Coastal Sedge; (10) Eleocharis halophila -- Fern. halophila Fern. & Brack. Salt Spikerush; (11) Eupatorium resinosum -- Torr. resinosum Torr. ex DC. Resinous Boneset; (12) Fimbristylis perpusilla -- Harper perpusilla Harper ex Small & Britton Harper's Fringe-rush; (13) Geum geniculatum -- Michaux geniculatum Michaux Bent Avens; (14) Glyceria nubigena -- W.A. nubigena W.A. Anderson Smoky Mountain Mannagrass; (15) Gymnoderma lineare -- (Evans) lineare (Evans) Yoshimura & Sharp Gnome Finger Lichen; (16) Helonias bullata -- L. bullata L. Swamp Pink; (17) Hexastylis naniflora -- Blomquist naniflora Blomquist Dwarf-flowered Heartleaf; (18) Hexastylis rhombiformis Gaddy French Broad Heartleaf; (18)(19) Ilex collina -- Alexander collina Alexander Long-stalked Holly; (19)(20) Isoetes piedmontana -- (Pfeiffer) piedmontana (Pfeiffer) Reed Piedmont Quillwort; (20)(21) Liatris helleri -- (Porter) helleri (Porter) Porter Heller's Blazing Star; (21)(22) Lilaeopsis carolinensis -- Coult. carolinensis Coult. & Rose Carolina Lilaeopsis; (22)(23) Lilium grayi -- Watson grayi Watson Gray's Lily; (23)(24) Lindera subcoriacea -- Wofford subcoriacea Wofford Bog spicebush; (24)(25) Lobelia boykinii -- T. boykinii T. & G. Boykin's lobelia; (25)(26) Macbridea caroliniana -- (Walt.) caroliniana (Walt.) Blake Carolina Bogmint; (26)(27) Menyanthes trifoliata -- L. trifoliata L. Buckbean; (27)(28) Myriophyllum laxum -- Schuttlew. laxum Schuttlew. ex Chapman Loose Watermilfoil; (28)(29) Parnassia grandifolia -- DC. grandifolia DC. Large-leaved Grass-of-Parnassus; (29)(30) Platanthera integra -- (Nuttall) integra (Nuttall) Gray ex Beck Yellow Fringeless Orchid; (30)(31) Platanthera nivea -- (Nutt.) nivea (Nutt.) Luer Snowy Orchid; (31)(32) Portulaca smallii -- P. smallii P. Wilson Small's Portulaca; PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1833 (32)(33) Quercus ilicifolia -- Wangenheim ilicifolia Wangenheim Bear oak; (33)(34) Rhexia aristosa -- Britton aristosa Britton Awned Meadow-beauty; (35) Rhynchospora pleiantha (Kukenth.) Gale Coastal Beaksedge; (34)(36) Ruellia humilis -- Nutt. humilis Nutt. Low Wild-petunia; (35)(37) Sabatia kennedyana -- Fern. kennedyana Fern. Plymouth Gentian; (38) Sarracenia minor Walt. Hooded Pitcher Plant; (36)(39) Schisandra glabra -- (Brickel) glabra (Brickel) Rehder Magnolia-vine; (37)(40) Schlotheimia lancifolia -- Bartr. lancifolia Bartr. Highlands Moss; (38)(41) Senecio millefolium -- T. millefolium T. & G. Divided-leaf Ragwort; (39)(42) Solidago verna -- M.A. verna M.A. Curtis Spring-flowering Goldenrod; (40)(43) Spiranthes longilabris -- Lindl. longilabris Lindl. Giant Spiral Orchid; (41)(44) Sporobolus teretifolius -- Harper teretifolius Harper Wireleaf Dropseed; (42)(45) Thelypteris simulata -- (Davenp.) simulata (Davenp.) Nieuwl. Bog Fern; (43)(46) Trichomanes boschianum -- Sturm boschianum Sturm ex Bosch Appalachian Filmy-fern; (44)(47) Trichomanes petersii -- A. petersii A. Gray Dwarf Filmy-fern; (45)(48) Trillium discolor -- Wray discolor Wray ex Hook. Mottled Trillium; (46)(49) Utricularia olivacea -- Wright olivacea Wright ex Grisebach Dwarf Bladderwort. Authority G.S. 106-202.15. 02 NCAC 48F .0304 PLANT SPECIES OF SPECIAL CONCERN (a) Special Concern Endangered Plant Species are those species that appear on both the Endangered Species List and on the Special Concern Species List and that can be offered for propagation to propagators under permit. (1) Cystopteris tennesseensis -- Shaver tennesseensis Shaver Tennessee Bladderfern; (2) Delphinium exaltatum -- Aiton exaltatum Aiton Tall Larkspur; (3) Echinacea laevigata -- (Boynton laevigata (Boynton & Beadle) Blake Smooth Coneflower; (4) Gentianopsis crinita -- (Froehlich) crinita (Froehlich) Ma Fringed Gentian; (5) Geum radiatum -- Michaux radiatum Michaux Spreading Avens; (6) Hydrastis canadensis -- L. canadensis L. Goldenseal, Orangeroot; (7) Kalmia cuneata -- Michaux White Wicky; (8)(7) Lilium pyrophilum -- Skinner pyrophilum Skinner & Sorrie Sandhills bog lily; (9)(8) Pellaea wrightiana -- Hooker wrightiana Hooker Wright's Cliff-brake Fern; (10)(9) Rhus michauxii -- Sargent michauxii Sargent Michaux's Sumac; (11)(10) Sarracenia jonesii -- Wherry jonesii Wherry Mountain Sweet Pitcher Plant; (12)(11) Sarracenia oreophila -- (Kearney) oreophila (Kearney) Wherry Green Pitcher Plant; (13)(12) Shortia galacifolia -- T. galacifolia T. & G. Oconee Bells. Bells; (13) Spigelia marilandica (L.) L. Pink Root; (14) Zephyranthes simpsonii Chapman Rain Lily. (b) Special Concern Threatened Plant Species are those species that appear on both the Threatened Species List and on the Special Concern Species List and that can be offered for propagation to propagators under permit. (1) Eupatorium resinosum -- Torr. resinosum Torr. ex DC. Resinous Boneset; (2) Helonias bullata -- L. bullata L. Swamp Pink; (3) Liatris helleri -- (Porter) helleri (Porter) Porter Heller's Blazing Star; (4) Lilium grayi -- Watson grayi Watson Gray's Lily; (5) Sabatia kennedyana -- Fern. kennedyana Fern. Plymouth Gentian; (6) Sarracenia minor Walt. Hooded Pitcher Plant; (6)(7) Schisandra glabra -- (Brickel) glabra (Brickel) Rehder Magnolia Vine. (c) Special Concern Not Endangered or Threatened Plant Species are those species that appear on the Special Concern Species List but do not appear on the Endangered Species List or the Threatened Species List and that are unlawful to distribute, sell or offer for sale except as otherwise provided in 02 NCAC 48F .0305 and .0306. (1) Dionaea muscipula -- Ellis muscipula Ellis Venus Flytrap; (2) Panax quinquefolius -- L. quinquefolius L. Ginseng. PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1834 Authority G.S. 106-202.15. TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN SERVICES Notice is hereby given in accordance with G.S. 150B-21.2 that the Division of Facility Services intends to amend the rules cited as 10A NCAC 14C .1602, .1901-.1902, .2101, .2103, .2202- .2203, .2701-.2705, .3703 and .3802. Proposed Effective Date: October 1, 2005 Public Hearing: Date: July 21, 2005 Time: 2:00 p.m. Location: Division of Facility Services, Council Building, Room 201, Dorothea Dix Campus, 701 Barbour Drive, Raleigh, NC Reason for Proposed Action: Several subject matters are addressed in the State Medical Facilities Plan (SMFP). Each year, changes to existing Certificate of Need (CON) rules are required to ensure consistency with the SMFP. Several CON rules were amended under temporary action to coincide with the 2005 SMFP's effective date of January 1, 2005. The specific subject areas being addressed by these amended rules are Cardiac Catheterization and Cardiac Angioplasty Equipment, Radiation Therapy Equipment, Surgical Services and Operating Rooms, End-State Renal Disease Services, Magnetic Resonance Imaging (MRI) Scanner, Positron Emission Tomography (PET) Scanner, and Acute Care Beds. These rules were amended through temporary procedures and this rule-making action will facilitate the permanent rule-making process. Procedure by which a person can object to the agency on a proposed rule: An individual may object to the agency on the proposed rules by submitting written comments on the proposed rule. They may also object by attending the public hearing and personally voice their objections during that time. Written comments may be submitted to: Mercidee Benton, Division of Facility Services, 2701 Mail Service Center, Raleigh, NC 27699-2701, phone (919) 855-3750, fax (919) 733-2757, email mercidee.benton@ncmail.net. Comment period ends: August 1, 2005 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 14 – DIRECTOR, DIVISION OF FACILITY SERVICES SUBCHAPTER 14C – CERTIFICATE OF NEED REGULATIONS SECTION .1600 – CRITERIA AND STANDARDS FOR CARDIAC CATHETERIZATION EQUIPMENT AND CARDIAC ANGIOPLASTY EQUIPMENT 10A NCAC 14C .1602 INFORMATION REQUIRED OF APPLICANT (a) An applicant that proposes to acquire cardiac catheterization or cardiac angioplasty equipment shall use the acute care facility/medical equipment application form. (b) The applicant shall provide the following additional information based on the population residing within the applicant's proposed cardiac catheterization service area: (1) the projected annual number of cardiac catheterization procedures, by CPT or ICD-9- CM codes, by classification of classified by adult diagnostic, adult therapeutic and pediatric cardiac catheterization procedure, to be performed in each cardiac catheterization room for each of the first 12 calendar quarters the facility during each of the first three years of operation following completion of the proposed project, including the methodology and assumptions used for these projections; (2) documentation of the applicant's experience in treating cardiovascular patients at the facility during the past 12 months, including: (A) the number of patients receiving stress tests; (B) the number of patients receiving intravenous thrombolytic therapies; (C) the number of patients presenting in the Emergency Room or admitted to the hospital with suspected or diagnosed acute myocardial infarction; (D) the number of patients referred to other facilities for cardiac catheterization procedures or open heart surgery procedures, by type of procedure; and PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1835 (E) the number of diagnostic and therapeutic cardiac catheterization procedures performed during the twelve month period reflected in the most recent licensure form on file with the Division of Facility Services; (3) the number of cardiac catheterizationpatients patients, classified by adult diagnostic, adult therapeutic and pediatric, from the proposed cardiac catheterization service area who are projected to have a cardiac catheterization procedure that the applicant proposes to serve by patient's county of residence in each of the first 12 quarters three years of operation, including the methodology and assumptions used for these projections; (4) the number of patients from the proposed primary cardiac catheterization service area who are projected to have a cardiac catheterization procedure by patients' county of residence in each of the first 12 quarters of operation, including the methodology and assumptions used for these projections; (5)(4) documentation of the applicant's projected sources of patient referrals that are located in the proposed cardiac catheterization service area, including letters from the referral sources that demonstrate their intent to refer patients to the applicant for cardiac catheterization procedures; (6)(5) evidence of the applicant's capability to communicate with emergency transportation agencies and with an established comprehensive cardiac services program; (7)(6) the number and composition of cardiac catheterization teams available to the applicant; (8)(7) documentation of the applicant's in-service training or continuing education programs for cardiac catheterization team members; (9)(8) a written agreement with a comprehensive cardiac services program that specifies the arrangements for referral and transfer of patients seen by the applicant and that includes a process to alleviate the need for duplication in cardiac catheterization procedures; (10)(9) a written description of patient selection criteria including referral arrangements for high-risk patients; (11)(10) a copy of the contractual arrangements for the acquisition of the proposed cardiac catheterization equipment or cardiac angioplasty equipment, including itemization of the cost of the equipment; and (12)(11) documentation that the cardiac catheterization equipment and cardiac angioplasty equipment and the procedures for operation of the equipment are designed and developed based on the American College of Cardiology/American Heart Association Guidelines for Cardiac Catheterization Laboratories (1991) report. Authority G.S. 131E-177(1); 131E-183. SECTION .1900 – CRITERIA AND STANDARDS FOR RADIATION THERAPY EQUIPMENT 10A NCAC 14C .1901 DEFINITIONS These definitions shall apply to all rules in this Section: (1) "Approved linear accelerator" means a linear accelerator which was not operational prior to the beginning of the review period. (2) "Complex Radiation treatment" is equal to 1.0 ESTV and means: treatment on three or more sites on the body; use of special techniques such as tangential fields with wedges, rotational or arc techniques; or use of custom blocking. (3) "Equivalent Simple Treatment Visit [ESTV]" means one basic unit of radiation therapy which normally requires up to fifteen (15) minutes for the uncomplicated set-up and treatment of a patient on a megavoltage teletherapy unit including the time necessary for portal filming. (4) "Existing linear accelerator" means a linear accelerator in operation prior to the beginning of the review period. (5) "Intermediate Radiation treatment" means treatment on two separate sites on the body, three or more fields to a single treatment site or use of multiple blocking and is equal to 1.0 ESTV. (6) "Linear accelerator" means MRT equipment which is used to deliver a beam of electrons or photons in the treatment of cancer patients. (7) "Linear accelerator service area" means a single or multi-county area as used in the development of the need determination in the applicable State Medical Facilities Plan. (8) "Megavoltage unit" means MRT equipment which provides a form of teletherapy that involves the delivery of energy greater than, or equivalent to, one million volts by the emission of x-rays, gamma rays, electrons, or other radiation. (9) "Megavoltage radiation therapy (MRT)" means the use of ionizing radiation in excess of one million electron volts in the treatment of cancer. (10) "MRT equipment" means a machine or energy source used to provide megavoltage radiation therapy including linear accelerators and other particle accelerators. (11) "Radiation therapy equipment" means medical equipment which is used to provide radiation therapy services. PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1836 (12) "Radiation therapy services" means those services which involve the delivery of controlled and monitored doses of radiation to a defined volume of tumor bearing tissue within a patient. Radiation may be delivered to the tumor region by the use of radioactive implants or by beams of ionizing radiation or it may be delivered to the tumor region systemically. (13) "Radiation therapy service area" means a single or multi-county area as used in the development of the need determination in the applicable State Medical Facilities Plan. (14) "Simple Radiation treatment" means treatment on a single site on the body, single treatment field or parallel opposed fields with no more than simple blocks and is equal to 1 ESTV. (15) "Simulator" means a machine that reproduces the geometric relationships of the MRT equipment to the patient. (16) "Special technique" means radiation therapy treatments that may require increased time for each patient visit including: (a) total body irradiation (photons or electrons) which equals 2.5 ESTVs; (b) hemi-body irradiation which equals 2.0 ESTVs; (c) intraoperative radiation therapy which equals 10.0 ESTVs; (d) particle neutron and proton radiation therapy which equals 2.0 ESTVs; (e) weekly radiation therapy management, conformal,which equals 1.5 ESTVs; (e) intensity modulated radiation treatment (IMRT) which equals 2.0 ESTVs; (f) limb salvage irradiation at lengthened SSD which equals 1.0 ESTV; (g) additional field check radiographs which equals .50 ESTV; (h) stereotactic radiosurgery treatment management with linear accelerator or gamma knife which equals 3.0. ESTVs; and (i) pediatric patient under anesthesia which equals 1.2 1.5 ESTVs. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .1902 INFORMATION REQUIRED OF APPLICANT (a) An applicant proposing to acquire radiation therapy equipment shall use the Acute Care Facility/Medical Equipment application form. (b) An applicant proposing to acquire radiation therapy equipment shall also provide the following additional information: (1) a list of all the radiation therapy equipment to be acquired and documentation of the capabilities and capacities of each item of equipment; (2) documentation of the purchase price and fair market value of each piece of radiation therapy equipment, each simulator, and any other related equipment proposed to be acquired; (3) the projected number of patient treatments by county and by simple, intermediate and complex treatments to be performed on each piece of radiation therapy equipment for each of the first eight calendar quarters three years of operation following the completion of the proposed project and documentation of all assumptions by which utilization is projected; (4) documentation that the proposed radiation therapy equipment shall be operational at least seven hours per day, five days a week; (5) documentation that no more than one simulator is available for every two linear accelerators in the applicant's facility, except that an applicant that has only one linear accelerator may have one simulator; (6) documentation that the services shall be offered in a physical environment that conforms to the requirements of federal, state, and local regulatory bodies; and (7) the projected number of patients that will be treated for cure and the number of patients that will be treated for palliation on each linear accelerator on an annual basis. by county in each of the first three years of operation following completion of the proposed project. Authority G.S. 131E-177(1); 131E-183. SECTION .2100 – CRITERIA AND STANDARDS FOR SURGICAL SERVICES AND OPERATING ROOMS 10A NCAC 14C .2101 DEFINITIONS The following definitions shall apply to all rules in this Section: (1) "Ambulatory surgical case" means an individual who receives one or more ambulatory surgical procedures in an operating room during a single operative encounter. (2) "Ambulatory surgical service area" means a single or multi-county area as used in the development of the ambulatory surgical facility need determination in the applicable State Medical Facilities Plan. (3) "Ambulatory surgical services" means those surgical services provided to patients as part of an ambulatory surgical program within a licensed ambulatory surgical facility or a general acute care hospital licensed under G.S. 131E, Article 5, Part A. (4)(1) "Ambulatory surgical facility" means a facility as defined in G.S. 131E-176(1b). PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1837 (5)(2) "Operating room" means an inpatient operating room, an outpatient or ambulatory surgical operating room, a shared operating room, or an endoscopy procedure room in a licensed health service facility. (6)(3) "Ambulatory surgical program" means a program as defined in G.S. 131E-176(1c). (7) "Ambulatory surgical procedure" means a procedure performed in an operating room which requires local, regional or general anesthesia and a period of post-operative observation of less than 24 hours. (8)(4) "Existing operating rooms" means those operating rooms in ambulatory surgical facilities and hospitals which were reported in the License Application for Ambulatory Surgical Facilities and Programs and in Part III of Hospital Licensure Renewal Application Form submitted to the Licensure Section of the Division of Facility Services and which were licensed and certified prior to the beginning of the review period. (9)(5) "Approved operating rooms" means those operating rooms that were approved for a certificate of need by the Certificate of Need Section prior to the date on which the applicant's proposed project was submitted to the Agency but that have not been licensed and certified. (10)(6) "Multispecialty ambulatory surgical program" means a program as defined in G.S. 131E- 176(15a). (11)(7) "Outpatient or ambulatory surgical operating room" means an operating room used solely for the performance of ambulatory surgical procedures. procedures which require local, regional or general anesthesia and a period of post-operative observation of less than 24 hours. (8) "Service area" means the Operating Room Service Area as defined in the applicable State Medical Facilities Plan. (12)(9) "Shared operating room" means an operating room that is used for the performance of both ambulatory and inpatient surgical procedures. (13)(10) "Specialty area" means an area of medical practice in which there is an approved medical specialty certificate issued by a member board of the American Board of Medical Specialties and includes, but is not limited to the following: gynecology, otolaryngology, plastic surgery, general surgery, ophthalmology, urology, orthopedics, and oral surgery. (14)(11) "Specialty ambulatory surgical program" means a program as defined in G.S. 131E- 176(24c). (15) "Practical utilization" is 4.3 surgical cases per day for an outpatient or ambulatory surgical operating room, 3.5 surgical cases per day for a shared operating room, 2.7 surgical cases per day for an inpatient operating room, and 4.3 cases per day for an endoscopy procedure room. (12) "Surgical case" means an individual who receives one or more surgical procedures in an operating room during a single operative encounter. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .2103 PERFORMANCE STANDARDS (a) In projecting utilization for existing, approved, proposed and expanded surgical programs, a program utilization, the existing, approved and proposed operating rooms shall be considered to be open available for use five days per week and 52 weeks a year. (b) A proposal to establish a new ambulatory surgical facility, to increase the number of operating rooms (excluding dedicated C-section operating rooms), to convert a specialty ambulatory surgical program to a multispecialty ambulatory surgical program or to add a specialty to a specialty ambulatory surgical program shall not be approved unless the applicant documents that the average number of surgical cases per operating room to be performed in the applicant's facility each facility owned by the applicant in the proposed service area, is reasonably projected to be at least 2.7 2.4 surgical cases per day for each inpatient operating room, 4.3 4.8 surgical cases per day for each outpatient or ambulatory surgical operating room, 4.3 7.2 cases per day for each endoscopy procedure room, and 3.5 3.2 surgical cases per day for each shared operating room during the fourth quarter of the third year of operation following completion of the project. (c) A proposal to develop an additional operating room to be used as a dedicated C-section operating room shall not be approved unless the applicant documents that the average number of surgical cases per operating room to be performed in each facility owned by the applicant in the proposed service area, is reasonably projected to be at least 2.4 surgical cases per day for each inpatient operating room (excluding dedicated C-section operating rooms), 4.8 surgical cases per day for each outpatient or ambulatory surgical operating room and 3.2 surgical cases per day for each shared operating room during the third year of operation following completion of the project. (c)(d) An applicant proposing to convert a specialty ambulatory surgical program to a multispecialty ambulatory surgical program or to add a specialty to a specialty ambulatory surgical program shall provide documentation to show that each existing ambulatory surgery program in the ambulatory surgical service area that performs ambulatory surgery in the same specialty area as proposed in the application is currently operating at 4.3 4.8 surgical cases per day for each outpatient or ambulatory surgical operating room, 4.3 7.2 cases per day for each endoscopy procedure room, and 3.5 3.2 surgical cases per day for each shared operating room. (d)(e) An applicant proposing to convert a specialty ambulatory surgical program to a multispecialty ambulatory surgical program or to add a specialty to a specialty ambulatory surgical PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1838 program shall provide documentation to show that each existing and approved ambulatory surgery program in the ambulatory surgical service area that performs ambulatory surgery in the same specialty areas as proposed in the application is reasonably projected to be operating at 4.3 4.8 surgical cases per day for each outpatient or ambulatory surgical operating room, 4.3 7.2 cases per day for each endoscopy procedure room, and 3.5 3.2 surgical cases per day for each shared surgical operating room prior to the completion of the proposed project. The applicant shall document the assumptions and provide data supporting the methodology used for the projections. (f) The applicant shall document the assumptions and provide data supporting the methodology used for each projection in this Rule. Authority G.S. 131E-177; 131E-183(b). SECTION .2200 – CRITERIA AND STANDARDS FOR END-STAGE RENAL DISEASE SERVICES 10A NCAC 14C .2202 INFORMATION REQUIRED OF APPLICANT (a) An applicant that proposes to increase dialysis stations in an existing certified facility or relocate stations must provide the following information: (1) Utilization rates; (2) Mortality rates; (3) The number of patients that are home trained and the number of patients on home dialysis; (4) The number of transplants performed or referred; (5) The number of patients currently on the transplant waiting list; (6) Hospital admission rates, by admission diagnosis, i.e., dialysis related versus non-dialysis related; (7) The number of patients with infectious disease, i.e., hepatitis and AIDS, e.g., hepatitis, and the number converted to infectious status during last calendar year. (b) An applicant that proposes to develop a new facility, increase the number of dialysis stations in an existing facility, or establish a new dialysis station, or the relocation of relocate existing dialysis stations must shall provide the following information requested on the End Stage Renal Disease (ESRD) Treatment application form: (1) A For new facilities, a letter of intent to sign a written agreement or a signed written agreement with an acute care hospital that specifies the relationship with the dialysis facility and describes the services that the hospital will provide to patients of the dialysis facility. The agreement must comply with 42 C.F.R., Section 405.2100. (2) A For new facilities, a letter of intent to sign a written agreement or a written agreement with a transplantation center describing the relationship with the dialysis facility and the specific services that the transplantation center will provide to patients of the dialysis facility. The agreements must include the following: (A) timeframe for initial assessment and evaluation of patients for transplantation, (B) composition of the assessment/evaluation team at the transplant center, (C) method for periodic re-evaluation, (D) criteria by which a patient will be evaluated and periodically re-evaluated for transplantation, and (E) signatures of the duly authorized persons representing the facilities and the agency providing the services. (3) Documentation that the water supply will comply with 42 C.F.R., Section 405.2100. (4)(3) Documentation of standing service from a power company and back-up capabilities. (5)(4) The For new facilities, the location of the site on which the services are to be operated. If such site is neither owned by nor under option to the applicant, the applicant must provide a written commitment to pursue acquiring the site if and when the approval is granted, must specify a secondary site on which the services could be operated should acquisition efforts relative to the primary site ultimately fail, and must demonstrate that the primary and secondary sites are available for acquisition. (6)(5) Documentation that the services will be provided in conformity with applicable laws and regulations pertaining to staffing, fire safety equipment, physical environment, water supply, and other relevant health and safety requirements. (7)(6) The projected patient origin for the services. All assumptions, including the methodology by which patient origin is projected, must be stated. (8)(7) For new facilities, documentation that at least 80 percent of the anticipated patient population resides within 30 miles of the proposed facility. (8) A commitment that the applicant shall admit and provide dialysis services to patients who have no insurance or other source of payment, but for whom payment for dialysis services will be made by another healthcare provider in an amount equal to the Medicare reimbursement rate for such services. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .2203 PERFORMANCE STANDARDS (a) An applicant proposing to establish a new End Stage Renal Disease facility shall document the need for at least 10 stations based on utilization of 3.2 patients per station per week as of the end of the first operating year of the facility. PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1839 (b) An applicant proposing to increase the number of dialysis stations in an existing End Stage Renal Disease facility shall document the need for the additional stations based on utilization of 3.2 patients per station per week as of the end of the first operating year of the additional stations. stations with the exception that the performance standard shall be waived for a need in the State Medical Facilities Plan that is based on an adjusted need determination. (c) An applicant shall provide all assumptions, including the specific methodology by which patient utilization is projected. Authority G.S. 131E-177(1); 131E-183(b). SECTION .2700 - CRITERIA AND STANDARDS FOR MAGNETIC RESONANCE IMAGING SCANNER 10A NCAC 14C .2701 DEFINITIONS The following definitions shall apply to all rules in this Section: (1) "Approved MRI scanner" means an MRI scanner which was not operational prior to the beginning of the review period but which had been issued a certificate of need. (2) " Capacity of fixed MRI scanner" means 100% of the procedure volume that the MRI scanner is capable of completing in a year, given perfect scheduling, no machine or room downtime, no cancellations, no patient transportation problems, no staffing or physician delays and no MRI procedures outside the norm. Annual capacity of a fixed MRI scanner is 6,864 weighted MRI procedures, which assumes two weighted MRI procedures are performed per hour and the scanner is operated 66 hours per week, 52 weeks per year. (3) "Capacity of mobile MRI scanner" means 100% of the procedure volume that the MRI scanner is capable of completing in a year, given perfect scheduling, no machine or room downtime, no cancellations, no patient transportation problems, no staffing or physician delays and no MRI procedures outside the norm. Annual capacity of a mobile MRI scanner is 4,160 weighted MRI procedures, which assumes two weighted MRI procedures are performed per hour and the scanner is operated 40 hours per week, 52 weeks per year. (2)(4) "Existing MRI scanner" means an MRI scanner in operation prior to the beginning of the review period. (5) "Fixed MRI scanner" means an MRI scanner that is not a mobile MRI scanner. (3)(6) "Magnetic Resonance Imaging" (MRI) means a non-invasive diagnostic modality in which electronic equipment is used to create tomographic images of body structure. The MRI scanner exposes the target area to nonionizing magnetic energy and radio frequency fields, focusing on the nuclei of atoms such as hydrogen in the body tissue. Response of selected nuclei to this stimulus is translated into images for evaluation by the physician. (4)(7) "Magnetic resonance imaging scanner" (MRI Scanner) is defined in G.S. 131E- 176(14e),G.S. 131E-176(14e).and includes dedicated fixed breast MRI scanners. (8) "Mobile MRI region" means either the eastern part of the State which includes the counties in Health Service Areas IV, V and VI, or the western part of the State which includes the counties in Health Service Areas I, II, and III. The counties in each Health Service Area are identified in Appendix A of the State Medical Facilities Plan. (5)(9) "Mobile MRI scanner" means an MRI scanner and transporting equipment which is moved at least weekly to provide services at two or more host facilities. (6)(10) "MRI procedure" means a single discrete MRI study of one patient. (7)(11) "MRI service area" means the Magnetic Resonance Imaging Planning Areas, as defined in the applicable State Medical Facilities Plan, except for proposed new mobile MRI scanners. scanners for which the service area is a mobile MRI region. (8)(12) "MRI study" means one or more scans relative to a single diagnosis or symptom. (13) "Pediatric MRI patient" means a patient requiring an MRI scan who is under the age of 12 years or who is a special needs patient and is under the age of 21 years. (14) "Related entity" means the parent company of the applicant, a subsidiary company of the applicant (i.e., the applicant owns 50% or more of another company), a joint venture in which the applicant is a member, or a company that shares common ownership with the applicant (i.e., the applicant and another company are owned by some of the same persons). (15) "Special Needs patient" means a patient who has cerebral palsy, encephalomyelopathy, central nervous system injuries, genetic and metabolic disorders, autism, and mental retardation. (16) "Temporary MRI scanner" means a MRI scanner that the Certificate of Need Section has approved to be temporarily located in North Carolina at a facility that holds a certificate of need for a new fixed MRI scanner, but which is not operational because the project is not yet complete. (17) "Weighted MRI procedures" means MRI procedures which are adjusted to account for the length of time to complete the procedure, PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1840 based on the following weights: one outpatient MRI procedure without contrast or sedation is valued at 1.0 weighted MRI procedure, one outpatient MRI procedure with contrast or sedation is valued at 1.4 weighted MRI procedures, one inpatient MRI procedure without contrast or sedation is valued at 1.4 weighted MRI procedures; and one inpatient MRI procedure with contrast or sedation is valued at 1.8 weighted MRI procedures. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .2702 INFORMATION REQUIRED OF APPLICANT (a) An applicant proposing to acquire an MRI scanner, including a mobile MRI scanner, shall use the Acute Care Facility/Medical Equipment application form. (b) Except for proposals to acquire mobile MRI scanners that serve two or more host facilities, both the applicant and the person billing the patients for the MRI service shall be named as co-applicants in the application form. (c) An applicant proposing to acquire a magnetic resonance imaging scanner, including a mobile MRI scanner, shall provide the following information: (1) documentation that the proposed fixed MRI scanner shall be available and staffed for use at least 66 hours per week, with the exception of a mobile MRI scanner; week; (2) documentation that the proposed mobile MRI scanner shall be available and staffed for use at least 40 hours per week; (2) projections of the annual number of procedures to be performed for each of the first three years of operation after completion of the project; (3) the average charge to the patient, regardless of who bills the patient, for each of the 20 most frequent MRI procedures to be performed for each of the first three years of operation after completion of the project and a description of items included in the charge; if the professional fee is included in the charge, provide the dollar amount for the professional fee; (4) if the proposed MRI service will be provided pursuant to a service agreement, the dollar amount of the service contract fee billed by the applicant to the contracting party for each of the first three years of operation; and (5) letters from physicians indicating their intent to refer patients to the proposed magnetic resonance imaging scanner. scanner and their estimate of the number of patients proposed to be referred per year; (6) for each location at which the service will be provided, projections of the annual number of weighted MRI procedures to be performed for each of the four types of weighted MRI procedures, as identified in the SMFP, for each of the first three years of operation after completion of the project; (7) a detailed description of the methodology used to project the number of weighted MRI procedures to be performed; (8) documentation to support each assumption used in projecting the number of procedures to be performed; (9) for each existing fixed or mobile MRI scanner owned by the applicant or a related entity and operated in North Carolina in the month the application is submitted, the vendor, tesla strength, serial number or vehicle identification number, CON project identification number, physical location for fixed MRI scanners, and host sites for mobile MRI scanners; (10) for each approved fixed or mobile MRI scanner to be owned by the applicant or a related entity and approved to be operated in North Carolina, the proposed vendor, proposed tesla strength, CON project identification number, physical location for fixed MRI scanners, and host sites for mobile MRI scanners; (11) if proposing to acquire a mobile MRI scanner, an explanation of the basis for selection of the proposed host sites if the host sites are not located in MRI service areas that lack a fixed MRI scanner. (d) An applicant proposing to acquire a mobile MRI scanner shall provide copies of letters of intent from, and proposed contracts with, all of the proposed host facilities of the new MRI scanner. (e) An applicant proposing to acquire a dedicated fixed breast MRI scanner shall: (1) provide a copy of a contract or working agreement with a radiologist or practice group that has experience interpreting images and is trained to interpret images produced by an MRI scanner configured exclusively for mammographic studies; (2) document that the applicant performed mammograms without interruption in the provision of the service during the last year; and (3) document that the applicant's existing mammography equipment is in compliance with the U.S. Food and Drug Administration Mammography Quality Standards Act. (f) An applicant proposing to acquire a dedicated fixed pediatric MRI scanner shall: (1) provide a copy of a contract or working agreement with two pediatric radiologists qualified as described in 10A NCAC 14C .2705(f)(1); (2) provide a copy of the facility's emergency plan for pediatric and special needs patients that PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1841 outline all emergency procedures including acute care transfers and a copy of a contract with an ambulance service for transportation during any emergencies; (3) commit that the proposed MRI scanner shall be used exclusively to perform procedures on pediatric MRI patients; (4) provide a description of the scope of the research studies that shall be conducted to develop protocols related to MRI scanning of pediatric MRI patients; which includes special needs patients: and (5) commit to prepare an annual report, to be submitted to the Medical Facilities Planning Section and the Certificate of Need Section, which shall include the protocols for scanning pediatric MRI patients and the annual volume of weighted MRI procedures performed, by type. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .2703 PERFORMANCE STANDARDS (a) An applicant proposing to acquire a mobile magnetic resonance imaging (MRI) scanner shall: (1) if an applicant operates an existing mobile MRI scanner in the Health Service Area(s), demonstrate that at least 2900 MRI procedures were performed in the last year on each of its existing mobile MRI scanners operating in the Health Service Area(s), (e.g., HSA I), in which the proposed mobile MRI scanner will be located demonstrate that each existing mobile MRI scanner which the applicant or a related entity owns and operates in the mobile MRI region in which the proposed equipment will be located, except temporary MRI scanners, performed 3,328 weighted MRI procedures in the most recent 12 month period for which the applicant has data. [Note: This is not the average number of weighted MRI procedures performed on all of the applicant's mobile MRI scanners.]; (2) demonstrate annual utilization in the third year of operation is reasonably projected to be at least 2900 3328 weighted MRI procedures on each of its the existing, approved and proposed mobile MRI scanners owned by the applicant or a related entity to be operated in the Health Service Area(s), (e.g., HSA I), mobile MRI region in which the proposed equipment will be located. [Note: This is not the average number of weighted MRI procedures performed on all of the applicant's mobile MRI scanners.]; (3) document the assumptions and provide data supporting the methodology used for each projection required in this Rule. (b) An applicant proposing to acquire a fixed magnetic resonance imaging (MRI) scanner for which the need determination in the State Medical Facilities Plan was based on the utilization of fixed MRI scanners, scanner, except for fixed MRI scanners described in Paragraphs (c) and (d) of this Rule, shall: (1) if an applicant operates an existing MRI scanner in the proposed MRI service area, demonstrate that its existing MRI scanners, except mobile MRI scanners, operating in the proposed MRI service area in which the proposed MRI scanner will be located performed an average of at least 2900 MRI procedures per scanner in the last year; demonstrate that the existing fixed MRI scanners which the applicant or a related entity owns and locates in the proposed MRI service area performed an average of 3,328 weighted MRI procedures in the most recent 12 month period for which the applicant has data. (2) demonstrate that each existing mobile MRI scanner which the applicant or a related entity owns and operates in the proposed mobile MRI region, except temporary MRI scanners, performed 3,328 weighted MRI procedures in the most recent 12 month period for which the applicant has data. [Note: This is not the average number of weighted MRI procedures performed on all of the applicant's mobile MRI scanners.]; (2)(3) demonstrate annual utilization in the third year of operation is reasonably projected to be an average of 2900 procedures per scanner for all existing, approved and proposed MRI scanners or mobile MRI scanners to be operated by the applicant in the MRI service area(s) in which the proposed equipment will be located; and; demonstrate that the average annual utilization of the existing, approved and proposed fixed MRI scanners which the applicant or a related entity owns and locates in the proposed MRI service area are reasonably expected to perform the following number of weighted MRI procedures, whichever is applicable, in the third year of operation following completion of the proposed project: (A) 1,716 weighted MRI procedures in MRI service areas in which the SMFP shows no fixed MRI scanners are located, (B) 3,775 weighted MRI procedures in MRI service areas in which the SMFP shows one fixed MRI scanner is located, (C) 4,118 weighted MRI procedures in MRI service areas in which the SMFP shows two fixed MRI scanners are located, PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1842 (D) 4,462 weighted MRI procedures in MRI service areas in which the SMFP shows three fixed MRI scanners are located, or (E) 4,805 weighted MRI procedures in MRI service areas in which the SMFP shows four or more fixed MRI scanners are located. (4) demonstrate that annual utilization of each existing, approved and proposed mobile MRI scanner which the applicant or a related entity owns and locates in the proposed MRI service area is reasonably expected to perform 3,328 weighted MRI procedures in the third year of operation following completion of the proposed project. [Note: This is not the average number of weighted MRI procedures to be performed on all of the applicant's mobile MRI scanners.]; (4)(5) document the assumptions and provide data supporting the methodology used for each projection required in this Rule. (c) An applicant proposing to acquire a magnetic resonance imaging (MRI) scanner for which the need determination in the State Medical Facilities Plan was based on utilization of mobile MRI scanners, shall: (1) if the applicant does not own or lease an MRI scanner or have an approved MRI scanner, demonstrate annual utilization in the third year of operation is reasonably projected to be at least 2080 MRI procedures per year for the proposed MRI scanner; (2) if the applicant already owns or leases an MRI scanner or has an approved MRI scanner, demonstrate annual utilization is reasonably projected to be an average of 2900 MRI procedures per scanner for all existing, approved and proposed MRI scanners or mobile MRI scanners to be operated by the applicant in the MRI service area(s) in which the proposed equipment will be located; and (3) document the assumptions and provide data supporting the methodology used for each projection required in this Rule. (d)(c) An applicant proposing to acquire a fixed magnetic resonance imaging (MRI) scanner for which the need determination in the State Medical Facilities Plan was based on the absence of an existing or approved fixed MRI scanner in the MRI service area an approved petition for an adjustment to the need determination shall: (1) demonstrate annual utilization of the proposed MRI scanner in the third year of operation is reasonably projected to be at least 2080 1,716 weighted MRI procedures per year; and (2) document the assumptions and provide data supporting the methodology used for each projection required in this Rule. (e)(d) An applicant proposing to acquire a dedicated fixed pediatric MRI scanner shall: (1) demonstrate annual utilization of the proposed MRI scanner in the third year of operation is reasonably projected to be at least 2746 weighted MRI procedures (i.e., 80 percent of one procedure per hour, 66 hours per week, 52 weeks per year); and (2) document the assumptions and provide data supporting the methodology used for each projection required in this Rule. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .2704 SUPPORT SERVICES (a) An applicant proposing to acquire a magnetic resonance imaging scanner, including a mobile MRI scanner, shall make available through written affiliation or referral agreements the following services: (1) anesthesiology, (2) radiology, (3) oncology, (4) neurology, (5) internal medicine, (6) orthopedics, (7) neurosurgery, (8) pathology, and (9) surgery. (b)(a) An applicant proposing to acquire a mobile MRI scanner shall provide referral agreements between each host site and at least one other provider of MRI services in the proposed MRI service area to document the availability of MRI services if patients require them when the mobile unit is not in service at that host site. (b) An applicant proposing to acquire a dedicated fixed pediatric MRI scanner shall provide a written policy regarding pediatric sedation which outlines the criteria for sedating a pediatric patient, including the special needs patients, and identifies the staff that will administer and supervise the sedation process. (c) An applicant proposing to acquire a dedicated fixed pediatric MRI scanner shall provide evidence of the availability of a pediatric code cart at the facility where the proposed pediatric MRI scanner will be located and a plan for emergency situations as described in 10A NCAC 14C .2702(f)(2). (d) An applicant proposing to acquire a fixed or mobile MRI scanner shall obtain accreditation from the Joint Commission for the Accreditation of Healthcare Organizations, the American College of Radiology or a comparable accreditation authority, as determined by the Certificate of Need Section, for magnetic resonance imaging within two years following operation of the proposed MRI scanner. Authority G.S. 131E-177(1); 131E-183(b). 10A NCAC 14C .2705 STAFFING AND STAFF TRAINING (a) An applicant proposing to acquire an MRI scanner shall demonstrate that one diagnostic radiologist certified by the American Board of Radiologists shall be available to provide the proposed services who has had: PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1843 (1) training in magnetic resonance imaging as an integral part of his or her residency training program; or (2) six months of supervised MRI experience under the direction of a certified diagnostic radiologist; or (3) at least six months of fellowship training, or its equivalent, in MRI; or (4) a combination of MRI experience and fellowship training equivalent to Subparagraph (a)(1), (2) or (3) of this Rule. (b) An applicant proposing to acquire a dedicated fixed breast MRI scanner shall provide documentation that the radiologist is trained and has experience in interpreting images produced by an MRI scanner configured exclusively to perform mammographic studies. (c) The An applicant proposing to acquire a MRI scanner shall provide evidence of the availability of two full-time MRI technologist-radiographers and that one of these technologists shall be present during the hours of operation of the MRI scanner. (d) An applicant proposing to acquire an MRI scanner shall demonstrate that the following staff training is provided: (1) American Red Cross or American Heart Association certification in cardiopulmonary resuscitation (CPR) and basic cardiac life support; and (2) the availability of an organized program of staff education and training which is integral to the services program and ensures improvement in technique and the proper training of new personnel. (e) An applicant proposing to acquire a mobile MRI scanner shall document that the requirements in Paragraphs (a) and (c) of this Rule shall be met at each host facility. (f) An applicant proposing to acquire a dedicated fixed pediatric MRI scanner shall: (1) provide documentation of the availability of at least two radiologists, certified by the American Board of Radiology, with a pediatric fellowship or two years of specialized training in pediatrics; (2) provide evidence that the applicant will have at least one licensed physician on-site during the hours of operation of the proposed MRI scanner; (3) provide documentation that the applicant will employ at least two licensed registered nurses and that one of these nurses shall be present during the hours of operation of the proposed MRI scanner; (4) provide a description of a research group for the project including a radiologist, neurologist, pediatric sedation specialist and research coordinator; (5) provide documentation of the availability of the research group to conduct research studies on the proposed MRI scanner; and (6) provide letters from the proposed members of the research group indicating their qualifications, experience and willingness to participate on the research team. (g) An applicant proposing to perform cardiac MRI procedures shall provide documentation of the availability of a radiologist, certified by the American Board of Radiology, with training and experience in interpreting images produced by an MRI scanner configured to perform cardiac MRI studies. Authority G.S. 131E-177(1); 131E-183(b). SECTION .3700 - CRITERIA AND STANDARDS FOR POSITRON EMISSION TOMOGRAPHY SCANNER 10A NCAC 14C .3703 PERFORMANCE STANDARDS (a) An applicant proposing to acquire a dedicated PET scanner, including a mobile dedicated PET scanner, shall demonstrate that: (1) the proposed dedicated PET scanner, including a proposed mobile dedicated PET scanner, shall be utilized at an annual rate of at least 1,220 3,200 PET procedures by the end of the third year following completion of the project; (2) if an applicant operates an existing dedicated PET scanner, its existing dedicated PET scanners, excluding those used exclusively for research, performed an average of 1,200 at least 3,200 PET procedures per PET scanner in the last year; and (3) its existing and approved dedicated PET scanners shall perform an average of at least 1,220 3,200 PET procedures per PET scanner during the third year following completion of the project. (b) The applicant shall describe the assumptions and provide data to support and document the assumptions and methodology used for each projection required in this Rule. Authority G.S. 131E-177(1); 131E-183(b). SECTION .3800 - CRITERIA AND STANDARDS FOR ACUTE CARE BEDS 10A NCAC 14C .3802 INFORMATION REQUIRED OF APPLICANT (a) An applicant that proposes to develop new acute care beds shall complete the Acute Care Facility/Medical Equipment application form. (b) An applicant proposing to develop new acute care beds shall submit the following information: (1) the number of acute care beds proposed to be licensed and operated following completion of the proposed project; (2) documentation that the proposed services shall be provided in conformance with all applicable facility, programmatic, and service specific licensure, certification, and JCAHO accreditation standards; PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1844 (3) documentation that the proposed services shall be offered in a physical environment that conforms to the requirements of federal, state, and local regulatory bodies; (4) if adding new acute care beds to an existing facility, documentation of the number of inpatient days of care provided in the last operating year in the existing licensed acute care beds by medical diagnostic category, as classified by the Centers for Medicare and Medicaid Services according to the list set forth in the applicable State Medical Facilities Plan; (5) the projected number of inpatient days of care to be provided in the total number of licensed acute care beds in the facility, by county of residence, for each of the first three years following completion of the proposed project, including all assumptions, data and methodologies; (6) documentation that the applicant shall be able to communicate with emergency transportation agencies 24 hours per day, 7 days per week; (7) documentation that services in the emergency care department shall be provided 24 hours per day, 7 days per week, including a description of the scope of services to be provided during each shift and the physician and professional staffing that will be responsible for provision of those services; (8) copy of written administrative policies that prohibit the exclusion of services to any patient on the basis of age, race, sex, creed, religion, disability or the patient’s ability to pay; (9) a written commitment to participate in and comply with conditions of participation in the Medicare and Medicaid programs; (10) documentation of the health care services provided by the applicant, and any facility in North Carolina owned or operated by the applicant’s parent organization, in each of the last two operating years to Medicare patients, Medicaid patients, and patients who are not able to pay for their care; (11) documentation of strategies to be used and activities undertaken by the applicant to attract physicians and medical staff who will provide care to patients without regard to their ability to pay; and (12) correspondence from physicians and other referral sources that documents their willingness to offered in the new acute care beds; and (13)(12) documentation that the proposed new acute care beds shall be operated in a hospital that provides inpatient medical services to both surgical and non-surgical patients. (c) An applicant proposing to develop new acute care beds in a new licensed hospital or on a new campus of an existing hospital shall also submit the following information: (1) the projected number of inpatient days of care to be provided in the licensed acute care beds in the new hospital or on the new campus, by major diagnostic category as recognized by the Centers for Medicare and Medicaid Services (CMS) according to the list set forth in the applicable State Medical Facilities Plan; (2) documentation that medical and surgical services shall be provided in the proposed acute care beds on a daily basis within at least five of the major diagnostic categories as recognized by the Centers for Medicare and Medicaid Services (CMS) according to the list set forth in the applicable State Medical Facilities Plan; (3) copies of written policies and procedures for the provision of care within the new acute care hospital or on the new campus, including but not limited to the following: (A) the admission and discharge of patients, including discharge planning, (B) transfer of patients to another hospital, (C) infection control, and (D) safety procedures; (4) documentation that the applicant owns or otherwise has control of the site on which the proposed acute care beds will be located; and (5) documentation that the proposed site is suitable for development of the facility with regard to water, sewage disposal, site development and zoning requirements; and provide the required procedures for obtaining zoning changes and a special use permit if site is currently not properly zoned. zoned; and (6) correspondence from physicians and other referral sources that documents their willingness to refer or admit patients to the proposed new hospital or new campus. Authority G.S. 131E-177(1); 131E-183. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission for Health Services intends to amend the rule cited as 10A NCAC 43D .0706. Proposed Effective Date: October 1, 2005 Public Hearing: Date: July 7, 2005 Time: 10:00 a.m. – 12:00 p.m. Location: Room 116, Royster Building, Dorthea Dix Campus, 1020 Richardson Drive, Raleigh, NC PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1845 Reason for Proposed Action: The proposed rule changes are required to comply with the Child and Nutrition and WIC Reauthorization Act of 2004, P.L. 108-265 as well as some state policy changes dealing with cost containment in the retail food delivery system of the WIC Program. In addition, the changes include the establishment of three new sanctions for vendor violations described in the new rule. Procedure by which a person can object to the agency on a proposed rule: Objections may be submitted in writing to Chris G. Hoke, JD, the Rule-Making Coordinator, during the public comment period. Additionally, objections may be made verbally or in writing at the public hearing for this rule. Written comments may be submitted to: Chris Hoke, 1915 Mail Service Center, Raleigh, NC 27699-1915, email chris.hoke@ncmail.net. Comment period ends: August 1, 2005 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 10A NCAC 43D .0706 AUTHORIZED WIC VENDORS (a) Vendor applicants and authorized vendors shall be placed into peer groups as follows: (1) When annual WIC supplemental food sales are not yet available, vendor applicants and authorized vendors, excluding chain stores, stores under a WIC corporate agreement, military commissaries, and free-standing pharmacies, shall be placed into peer groups based on the number of cash registers in the store until annual WIC supplemental food sales become available. The following are the peer groups based on the number of cash registers in the store: Peer Group I - - zero to two cash registers; Peer Group II - - three to five cash registers; and Peer Group III - - six or more cash registers;registers. WIC sales figures of new vendors will be reviewed six months from authorization. A vendor whose first six months of WIC sales exceed twenty five thousand dollars ($25,000) will be placed in the peer group designation in accordance with the dollar thresholds of Subparagraph(a)(2). (2) Authorized vendors for which annual WIC supplemental food sales is available, excluding chain stores, stores under a WIC corporate agreement, military commissaries, and free-standing pharmacies, shall be placed into peer groups as follows, except as provided in Subparagraph (a)(7)(8) of this Rule. Peer Group I - - two thousand dollars ($2,000) to twenty five thousand dollars ($25,000) annually in WIC supplemental food sales at the store; Peer Group II - - greater than twenty five thousand dollars ($25,000) but not exceeding seventy five thousand dollars ($75,000) annually in WIC supplemental food sales at the store; Peer Group III - - greater than seventy five thousand dollars ($75,000) but not exceeding three hundred thousand dollars ($300,000) annually in WIC supplemental food sales at the store; and Peer Group IV - - greater than three hundred thousand dollars ($300,000) annually in WIC supplemental food sales at the store; (3) Chain stores, stores under a WIC corporate agreement (20 or more authorized vendors under one agreement), military commissaries, and free-standing pharmacies, including free-standing pharmacy chain stores and free-standing pharmacies participating under a WIC corporate agreement, shall be placed into peer groups as follows: Peer Group IV - - chain stores, stores under a WIC corporate agreement (20 or more authorized vendors under one agreement) and military commissaries; and Peer Group V - - free-standing pharmacies, including free-standing pharmacy chain stores and free-standing pharmacies participating under a WIC corporate agreement; (4) Annual WIC supplemental food sales is the dollar amount in sales of WIC supplemental foods at the store within a 12-month period. PROPOSED RULES 19:23 NORTH CAROLINA REGISTER June 1, 2005 1846 (5) If a vendor applicant has at least 30% ownership in the applying store and at least 30% ownership in a store(s) already authorized, the applying store shall be placed in the peer group of the highest designation of the already authorized stores(s). Upon contract reauthorization, all stores held under common ownership shall be placed in the highest peer group among those held commonly. Common ownership is ownership of 30% or more in two or more stores. (5)(6) In determining a vendor's peer group designation based on annual WIC supplemental food sales under Subparagraph (a)(2) of this Rule, the state agency shall look at the most recent 12-month period for which sales data is available. If the most recent available 12-month period of WIC sales data ends more than one year prior to the time of designation, the peer group designation shall be based on the number of cash registers in the store in accordance with Subparagraph (a)(1) of this Rule. (6)(7) The state agency may reassess an authorized vendor's peer group designation at any time during the vendor's agreement period and place the vendor in a different peer group if upon reassessment the state agency determines that the vendor is no longer in the appropriate peer group. (7)(8) A vendor applicant previously authorized in a peer group under Subparagraph (a)(2) of this Rule that is being reauthorized following the nonrenewal or termination of its Agreement or disqualification from the WIC Program shall be placed into the same peer group the vendor applicant was previously in under Subparagraph (a)(2) of this Rule, provided that no more than one year has passed since the nonrenewal, termination or disqualification. If more than one year has passed, the vendor applicant shall be placed into a peer group in accordance with Subparagraph (a)(1) of this Rule. (b) To become authorized as a WIC vendor, a vendor applicant shall comply with the following vendor selection criteria: (1) Accurately complete a WIC Vendor Application, a WIC Price List, and a WIC Vendor Agreement. A vendor applicant must submit its current highest shelf price for each WIC supplemental food listed on the WIC Price List; (2) At the time of application and throughout the term of authorization, submit all completed forms to the local WIC program, except that a corporate entity operating under a WIC corporate agreement shall submit one completed WIC corporate agreement and the WIC Price Lists to the state agency and a separate WIC Vendor Application for each store to the local WIC agency. A corporate entity operating under a WIC corporate agreement may submit a single WIC Price List for those stores that have the same prices for WIC supplemental foods in each store, rather than submitting a separate WIC Price List for each store; (3) Authorized vendors shall agree to purchase all infant formula, exempt infant formula, and WIC-eligible medical food directly from: (A) Infant formula manufacturers registered with the Food and Drug Administration; (B) Food and drug wholesalers registered with the North Carolina Secretary of State and inspected or licensed by the North Carolina Department of Agriculture; (C) Retail food stores that purchase directly from infant formula manufacturers or an approved wholesaler in |
OCLC number | 13686205 |