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NORTH CAROLINA REGISTER Volume 19, Issue 14 Pages 1130 - 1195 January 18, 2005 This issue contains documents officially filed through December 22, 2004. 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 Summary of Notice of Intent to Redevelop .............1130 A Brownfields Property, Southeast Gateway Ventures, LLC Summary of Notice of Intent to Redevelop .............1131 A Brownfields Property, Blue Devil Ventures, LLC Narrow Therapeutic Index Drugs Designated by.....1132 The NC Secretary of Human Resources II. PROPOSED RULES Agriculture & Consumer Services Board of Agriculture ............................................1133 - 1134 Environment and Natural Resources Wildlife Resources Commission ..........................1134 - 1143 Licensing Boards Pharmacy, Board of..............................................1143 Real Estate Commission.......................................1143 - 1157 State Personnel State Personnel Commission ................................1157 - 1158 III. TEMPORARY RULES Health and Human Services Commission for Health Services ..........................1171 - 1174 Division of Facility Services ................................1159 - 1171 Justice Criminal Justice Education & Training ...............1174 - 1175 Standards Commission Licensing Boards Medical Board......................................................1175 - 1177 IV. RULES REVIEW COMMISSION.......................1178 - 1186 V. CONTESTED CASE DECISIONS Index to ALJ Decisions............................................1187 - 1192 Text of Selected Decisions 04 EHR 0996........................................................1193 - 1195 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 19:14 NORTH CAROLINA REGISTER January 18, 2005 1130 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. SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY Southeast Gateway Ventures, LLC Pursuant to N.C.G.S. § 130A-310.34, Southeast Gateway Ventures, 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 Forsyth County, North Carolina. The Property consists of 46.45 acres and is located at 1100, 1122 and 1315 S. Main Street, 1019, 1116 and 1100 S. Marshall Street, 24 and 30 W. Salem Avenue, 212 Stafford Street, and 1198, 1405 and 1480 S. Broad Street. Environmental contamination exists on the Property in soil, groundwater and surface water. Southeast Gateway Ventures, LLC has committed itself to make no use of the Brownfields Property other than for a mixed-use development featuring commercial, residential, institutional, recreational and open space uses with associated impervious surface parking areas; impose various land use restrictions; and: 1) remediate underground storage tank ("UST") contamination at 1100 S. Main Street, 1100 South Marshall Street and 30 West Salem Street under the oversight of DENR's UST Section; and 2) to the extent DENR requires, cover with clean fill or conduct additional soil sampling in areas of the Property lacking impervious ground cover and proposed for benches, picnic tables, recreation and sports sites, and other gathering sites. Additional soil sampling shall also be conducted in the areas ultimately proposed for outdoor playgrounds and athletic/recreational fields at the site of the school planned for 1480 S. Broad Street. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and Southeast Gateway Ventures, 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 North Carolina Room of the Forsyth County Central Library, 660 West Fifth Street, Winston-Salem, NC 27101 by contacting Jerry Carroll at (336) 727-2264 ext. 9; or at 401 Oberlin Rd., Raleigh, NC 27605 (where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents) by contacting Shirley Liggins at that address, at shirley.liggins@ncmail.net, or at (919) 733-2801, ext. 336. 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. 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 19:14 NORTH CAROLINA REGISTER January 18, 2005 1131 SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY Blue Devil Ventures, LLC Pursuant to N.C.G.S. § 130A-310.34, Blue Devil Ventures, LLC has filed with the North Carolina Department of Environment and Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Durham, Durham County, North Carolina. The Property consists of 9.13 acres and is located at 601, 605, 700, 701 & 710 West Main Street, and 605 & 609 West Morgan Street. Blue Devil Ventures, LLC has committed itself to mixed residential and commercial redevelopment of the Property. The property is bounded to the north by West Morgan Street, across which is the first phase of Blue Devil Ventures, LLC's West Village project, completed in 2000 from other historic Liggett Group structures and consisting of mixed commercial/residential properties. To the south of the Property lie Southern Railroad Company tracks; to the east a parking lot also owned by West Village and tracks of the Norfolk & Western Railway Company; and to the west South Duke Street, across which lies commercial properties, including Brightleaf Square. The status of on-site environmental contamination will be known after Blue Devil Ventures, LLC purchases the Property, which is expected to occur if and when the Brownfields Agreement associated with this project goes into effect, and samples its groundwater and soil to DENR's satisfaction. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed provisional Brownfields Agreement between DENR and Blue Devil Ventures, LLC which in turn includes (a) a map showing the location of the Property, (b) the above-stated description of the intended future use of the Property, and (c) proposed investigation and remediation; and (2) a proposed provisional 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 reference section at the main location of the Durham County Public Library, 300 N. Roxboro St, Durham, NC 27701, telephone number (919) 560-0100, or by contacting Jennifer Malloy at the Durham Public Library's Administration offices, telephone number (919) 560-0163; 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. Written requests for a public meeting may be submitted to DENR within 30 days after the period for written public comments begins. 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 If Blue Devil Ventures, LLC samples the Property to DENR's satisfaction and a superseding Brownfields Agreement and Notice of Brownfields Property are agreed upon, another Notice of Intent to Redevelop a Brownfields Property will be filed and another Summary of Notice of Intent to Redevelop a Brownfields Property published, followed by an additional public comment period. Though the unsampled state of the Property prevents the current Notice of Intent to Redevelop a Brownfields Property from including an element required by N.C.G.S. § 130A-310.34 (a), i.e., a description of the contaminants involved and their concentrations in the media of the Property, any superseding Brownfields Agreement and Notice of Brownfields Property agreed upon will include that element and may modify the remediation to be performed by Blue Devil Ventures, LLC. IN ADDITION 19:14 NORTH CAROLINA REGISTER January 18, 2005 1132 NARROW THERAPEUTIC INDEX DRUGS DESIGNATED BY THE NORTH CAROLINA SECRETARY OF HUMAN RESOURCES Pursuant to N.C.G.S. G.S. 90-85.27(4a), this is a revised publication from the North Carolina Board of Pharmacy of narrow therapeutic index drugs designated by the North Carolina Secretary of Human Resources upon the advice of the State Health Director, North Carolina Board of Pharmacy, and North Carolina Medical Board: Carbamazepine: all oral dosage forms Cyclosporine: all oral dosage forms Digoxin: all oral dosage forms Ethosuximide Levothyroxine sodium tablets Lithium (including all salts): all oral dosage forms Phenytoin (including all salts): all oral dosage forms Procainamide Theophylline (including all salts): all oral dosage forms Warfarin sodium tablets PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1133 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 & CONSUMER SERVICES Notice is hereby given in accordance with G.S. 150B-21.2 that the Board of Agriculture intends to amend the rules cited as 02 NCAC 52A .0111; 52D .0101. Proposed Effective Date: June 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 February 2, 2005, to David S. McLeod, Secretary, NC Board of Agriculture, 1001 Mail Service Center, Raleigh, NC 27699-1001. Reason for Proposed Action: 02 NCAC 52A .0111 – To delete incorporation by reference of obsolete program for eradication of pseudorabies and to adopt current Federal program. 02 NCAC 52D .0101 – To update adoption by reference of Federal standards for the meat and poultry inspection program. 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 objections(s) to David S. McLeod, Secretary, NC Board of Agriculture, 1001 Mail Service Center, Raleigh, NC 27699-1001. Written comments may be submitted to: David S. McLeod, Secretary, NC Board of Agriculture, 1001 Mail Service Center, Raleigh, NC 27699-1001, phone (919)733-7125 – x249, fax (919)716-0105, email david.mcleod@ncmail.net. Comment period ends: March 21, 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 52 - VETERINARY DIVISION SUBCHAPTER 52A - RULES AND REGULATIONS ADOPTED BY REFERENCE SECTION .0100 - ADOPTIONS BY REFERENCE 02 NCAC 52A .0111 PSEUDORABIES PROGRAM The North Carolina Pseudorabies Program, as promulgated by the Swine Diseases Committee, is hereby adopted by reference in accordance with G.S. 150B-14(c). The document entitled Pseudorabies Eradication Program Standards, published by the United States Department of Agriculture, is incorporated by reference, including subsequent amendments and editions. Copies of this document may be obtained from the website of the United States Department of Agriculture at http://www.aphis.usda.gov/vs/nahps/pseudorabies/prv-prgm-std. pdf. Authority G.S. 106-307.3 through 106-307.5. SUBCHAPTER 52D - MEAT AND POULTRY INSPECTION SECTION .0100 - STANDARDS: OFFICIAL MARK 02 NCAC 52D .0101 CERTAIN STANDARDS ADOPTED: EXCEPTIONS The Rules, Regulations, Definitions and Standards of the United States Department of Agriculture governing meat and meat products inspection, poultry products inspection, voluntary inspection of poultry and humane methods for slaughtering animals, Subchapters A, B, C, and D, Title 9, Part 301 et. seq., Code of Federal Regulations, Parts 300 through 500, are hereby incorporated by reference, including subsequent amendments and editions, subject to the following exceptions: (1) Conformity of Federal Regulations to North Carolina Authority is Assumed. To conform federal regulations to North Carolina Authority, authority, references in the federal regulations to the "Secretary of Agriculture," the "United States Department of Agriculture," the "Food Safety and Inspection Service," its "Administrator" and "Officer in Charge" shall be deemed to refer to the corresponding North PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1134 Carolina authority, the "Commissioner of Agriculture," the "North Carolina Department of Agriculture and Consumer Services," the "Meat and Poultry Inspection Service" and its "Director for Meat and Poultry Inspection Service" and the "Area Supervisors." Supervisors," respectively. References to "interstate commerce" shall be deemed to refer to "intrastate commerce" within North Carolina. (2) Statutory references to the "Federal Meat Inspection Act" shall be deemed to refer to the corresponding provisions of the "North Carolina Meat Inspection Law," Article 49B and Article 49C of Chapter 106 of the North Carolina General Statutes. (3) Statutory references to the "Federal Poultry Products Inspection Act" shall be deemed to refer to the corresponding provisions of the "North Carolina Poultry Products Inspection Act," Article 49D of G.S. 106. (4) References to federal marks of inspection, forms, overtime rates and charges shall be deemed to refer to the corresponding North Carolina marks of inspection, forms, and overtime rates and charges. These rates are established by the Commissioner pursuant to G.S. 106-549.69 to cover the cost of providing the service. Standards of the Federal Food, Drug and Cosmetic Act incorporated in the federal regulations are applicable to these articles. Copies of the above are available for inspection in the Office office of the Director of the State Meat and Poultry Inspection Service and may be obtained at a cost of one hundred and eighteen dollars ($118.00) per copy by contacting the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. no cost from the United States Government Printing Office website at http://www.access.gpo.gov/nara/cfr/waisidx_04/9cfrv2_04.html #301. Authority G.S. 106-549.21; 106-549.22; 106-549.28. TITLE 15A – DEPARTMENT OF ENVIRONMENT & NATURAL RESOURCES Notice is hereby given in accordance with G.S. 150B-21.2 that the Wildlife Resources Commission intends to amend the rule cited as 15A NCAC 10D .0103. Proposed Effective Date: July 1, 2005 Public Hearing: Date: February 3, 2005 Time: 7:00 p.m. Location: Courthouse, 100 S. Wright Street, Burgaw, NC Reason for Proposed Action: The proposed amendment would make all deer and bear hunting north of the Bear Garden Road, on Holly Shelter Game Land by permit only. Procedure by which a person can object to the agency on a proposed rule: Persons may object by writing to Dr. David Cobb, 1701 Mail Service Center, Raleigh, NC 27699-1701. Written comments may be submitted to: Joan Troy, 1701 Mail Service Center, Raleigh, NC 27699-1701 Comment period ends: March 26, 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 10 - WILDLIFE RESOURCES AND WATER SAFETY SUBCHAPTER 10D - GAME LANDS REGULATIONS SECTION .0100 - GAME LANDS REGULATIONS 15A NCAC 10D .0103 HUNTING ON GAME LANDS (a) Safety Requirements. No person while hunting on any designated game land shall be under the influence of alcohol or any narcotic drug, or fail to comply with special restrictions enacted by the National Park Service regarding the use of the Blue Ridge Parkway where it adjoins game lands listed in this Rule. (b) Traffic Requirements. No person shall park a vehicle on game lands in such a manner as to block traffic, gates or otherwise prevent vehicles from using any roadway. (c) Tree Stands. It is unlawful to erect or to occupy, for the purpose of hunting, any tree stand or platform attached by nails, screws, bolts or wire to a tree on any game land designated herein. This prohibition shall not apply to lag-screw steps or PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1135 portable stands that are removed after use with no metal left remaining in or attached to the tree. (d) Time and Manner of Taking. Except where closed to hunting or limited to specific dates by this Chapter, hunting on game lands is permitted during the open season for the game or furbearing species being hunted. On managed waterfowl impoundments, hunters shall not enter the posted impoundment areas earlier than 4:00 a.m. on the permitted hunting dates, and hunting is prohibited after 1:00 p.m. on such hunting dates; decoys shall not be set out prior to 4:00 a.m. and must be removed by 3:00 p.m. each day. No person shall operate any vessel or vehicle powered by an internal combustion engine on a managed waterfowl impoundment. No person shall attempt to obscure the sex or age of any bird or animal taken by severing the head or any other part thereof, or possess any bird or animal which has been so mutilated. No person shall place, or cause to be placed on any game land, salt, grain, fruit, or other foods without prior written authorization of the commission or its agent. A decision to grant or deny authorization shall be made based on the best management practices for the wildlife species in question. No person shall take or attempt to take any game birds or game animals attracted to such foods. No live wild animals or wild birds shall be removed from any game land. (e) Definitions: (1) For purposes of this Section "Eastern" season refers to seasons set for those counties or parts of counties listed in 15A NCAC 10B .0203(b)(1)(A); "Central" season refers to seasons set for those counties or parts of counties listed in 15A NCAC 10B .0203(b)(1)(D); "Northwestern" season refers to seasons set for those counties or parts of counties listed in 15A NCAC 10B .0203(b)(1)(B); "Western" season refers to seasons set for those counties or parts of counties listed in 15A NCAC 10B .0203(b)(1)(C). (2) For purposes of this Section, "Dove Only Area" refers to a Game Land on which doves may be taken and dove hunting is limited to Mondays, Wednesdays, Saturdays and to Thanksgiving, Christmas and New Year's Days within the federally-announced season. (3) For purposes of this Section, "Three Days per Week Area" refers to a Game Land on which any game may be taken during the open seasons and hunting is limited to Mondays, Wednesdays, Saturdays and Thanksgiving, Christmas and New Year's Days. These "open days" also apply to either-sex hunting seasons listed under each game land. Raccoon and opossum hunting may continue until 7:00 a.m. on Tuesdays, until 7:00 a.m. on Thursdays, and until midnight on Saturdays. (4) For purposes of this Section, "Six Days per Week Area" refers to a Game Land on which any game may be taken during the open seasons, except that: (A) Bears shall not be taken on lands designated and posted as bear sanctuaries; (B) Wild boar shall not be taken with the use of dogs on such bear sanctuaries, and wild boar may be hunted only during the bow and arrow seasons, the muzzle-loading deer season and the regular gun season on deer on bear sanctuaries; (C) On game lands open to deer hunting located in or west of the counties of Rockingham, Guilford, Randolph, Montgomery and Anson, the following rules apply to the use of dogs during the regular season for hunting deer with guns: (i) Except for the counties of Cherokee, Clay, Graham, Jackson, Macon, Madison, Polk, and Swain, game birds may be hunted with dogs. (ii) In the counties of Cherokee, Clay, Graham, Jackson, Macon, Madison, Polk, and Swain, small game in season may be hunted with dogs on all game lands except on bear sanctuaries. (iii) Additionally, raccoon and opossum may be hunted when in season on Uwharrie Game Lands; (D) On bear sanctuaries in and west of Madison, Buncombe, Henderson and Polk counties dogs shall not be trained or allowed to run unleashed between March 1 and the Monday on or nearest October 15. (f) The listed seasons and restrictions apply in the following game lands: (1) Alcoa Game Land in Davidson, Davie, Montgomery, Rowan and Stanly counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season in that portion in Montgomery county and deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season in those portions in Davie, Davidson, Rowan and Stanly counties. (2) Alligator River Game Land in Tyrrell County (A) Six Day per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1136 (C) Bear may only be taken the first three hunting days during the November Bear Season and the first three hunting days during the second week of the December Bear Season. (3) Angola Bay Game Land in Duplin and Pender counties (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (4) Bachlelor Bay Game Land in Bertie and Washington counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (5) Bertie County Game Land in Bertie County (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (6) Bladen Lakes State Forest Game Land in Bladen County (A) Three Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. Deer of either sex may also be taken the Saturday preceding Eastern bow season with bow and arrow and the Friday preceding the Eastern muzzle-loading season with any legal weapon (with weapons exceptions described in this Paragraph) by participants in the Disabled Sportsman Program. (C) Handguns shall not be carried and, except for muzzle-loaders, rifles larger than .22 caliber rimfire shall not be used or possessed. (D) On the Singletary Lake Tract deer and bear may be taken only by still hunting. (E) Wild turkey hunting on the Singletary Lake Tract is by permit only. (F) Camping is restricted to Sep. 1-Feb 28 and April 7- May 14 in areas both designated and posted as camping areas. (7) Broad River Game Land in Cleveland County. (A) Three Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer with Visible Antlers Season. (C) Use of centerfire rifles is prohibited. (8) Brunswick County Game Land in Brunswick County: Permit Only Area (9) Buckridge Game Land in Tyrrell County. (A) Three Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) Bear may only be taken the first three hunting days during the November Bear Season and the first three hunting days of the second week of the December Bear Season. (10) Bullard and Branch Hunting Preserve Game Lands in Robeson County (A) Three Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (11) Butner - Falls of Neuse Game Land in Durham, Granville and Wake counties (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (C) Waterfowl may be taken only on Tuesdays, Thursdays and Saturdays; Christmas and New Year's Days, and on the opening and closing days of the applicable waterfowl seasons. Waterfowl shall not be taken after 1:00 p.m. On the posted waterfowl impoundments a special permit is required for all waterfowl hunting after November 1. (D) Horseback riding, including all equine species, is prohibited. (E) Target shooting is prohibited (F) Wild turkey hunting is by permit only. (12) Cape Fear Game Land in Pender County (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) Turkey Hunting is by permit only on that portion known as the Roan Island Tract. (13) Caswell Game Land in Caswell County (A) Three Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. Deer of either sex may also be taken the Friday preceding the Central muzzle-loading season by participants in the Disabled Sportsman Program. (C) Horseback riding is allowed only during June, July, and August and on Sundays during the remainder of the year except during open turkey and PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1137 deer seasons. Horseback riding is allowed only on roads opened to vehicular traffic. Participants must obtain a game lands license prior to engaging in such activity. (D) Bearded or beardless turkeys may be taken from the Monday on or nearest to January 15 through the following Saturday by permit only. (E) The area encompassed by the following roads is closed to all quail and woodcock hunting and all bird dog training: From Yanceyville south on NC 62 to the intersection of SR 1746, west on SR1746 to the intersection of SR 1156, south on SR 1156 to the intersection of SR 1783, east on SR 1783 to the intersection of NC 62, north on NC62 to the intersection of SR 1736, east on SR 1736 to the intersection of SR 1730, east on SR 1730 to NC 86, north on NC 86 to NC 62. (14) Caswell Farm Game Land in Lenoir County- Dove-Only Area (A) Dove hunting is by permit only from opening day through either the first Saturday or Labor Day which ever comes last of the first segment of dove season. (15) Catawba Game Land in Catawba County (A) Three Days per Week Area (B) Deer of either sex may be taken the last open day of the applicable Deer With Visible Antlers Season. (C) Deer may be taken with bow and arrow only from the tract known as Molly's Backbone. (16) Chatham Game Land in Chatham and Harnett counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) Wild turkey hunting is by permit only. (D) Horseback riding, including all equine species, is allowed only during June, July, and August and on Sundays during the remainder of the year except during open turkey and deer seasons. (17) Cherokee Game Land in Ashe County (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (18) Chowan Game Land in Chowan County (A) Six Days per Week Area (B) Deer of either sex may be taken all the days of the applicable Deer With Visible Antlers Season. (19) Chowan Swamp Game Land in Gates County (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (20) Cold Mountain Game Land in Haywood County (A) Six Days per Week Area (B) Horseback riding is prohibited except on designated trails May 16 through August 31 and all horseback riding is prohibited from September 1 through May 15. This Rule includes all equine species. (21) Columbus County Game Land in Columbus County. (A) Three Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (22) Croatan Game Land in Carteret, Craven and Jones counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) Waterfowl may be taken only on Mondays, Wednesdays, Saturdays; on Thanksgiving, Christmas and New Year's Days; and on the opening and closing days of the applicable waterfowl seasons. (23) Currituck Banks Game Land in Currituck County (A) Six Days per Week Area (B) Permanent waterfowl blinds in Currituck Sound on these game lands shall be hunted by permit only after November 1. (C) Licensed hunting guides may accompany the permitted individual or party provided the guides do not possess or use a firearm. (D) The boundary of the Game Land shall extend 5 yards from the edge of the marsh or shoreline. (E) Dogs shall be allowed only for waterfowl hunting by permitted waterfowl hunters on the day of their hunt. (F) No screws, nails, or other objects penetrating the bark shall be used to attach a tree stand or blind to a tree. (24) Dare Game Land in Dare County PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1138 (A) Six Days per Week Area (B) Deer of either sex may be taken the last day of the Deer With Visible Antlers Season. (C) No hunting on posted parts of bombing range. (D) The use and training of dogs is prohibited from March 1 through June 30. (25) Dupont State Forest Game Lands in Henderson and Transylvania counties (A) Hunting is by Permit only. (B) The training and use of dogs for hunting except during scheduled small game permit hunts for squirrel, grouse, rabbit, or quail is prohibited. (C) Participants of the Disabled Sportsman Program may also take deer of either sex with any legal weapon on the Saturday prior to the first segment of the Western bow and arrow season. (26) Dysartsville Game Land in McDowell and Rutherford counties (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (27) Elk Knob Game Land in Ashe and Watauga counties (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (28) Goose Creek Game Land in Beaufort and Pamlico counties (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) On posted waterfowl impoundments waterfowl may be taken only on Mondays, Wednesdays, Saturdays; on Thanksgiving, Christmas and New Year's Days; and on the opening and closing days of the duck hunting seasons. After November 1, on the Pamlico Point, Campbell Creek, Hunting Creek and Spring Creek impoundments, a special permit is required for hunting on opening and closing days of the duck seasons, Saturdays of the duck seasons, and on Thanksgiving and New Year's Day. (D) Camping is restricted to Sep. 1-Feb 28 and April 7- May 14 in areas both designated and posted as camping areas. (29) Green River Game Land in Henderson, and Polk counties (A) Six Days per Week Area (B) Deer of either sex may be taken the last open day of the applicable Deer With Visible Antlers Season. (C) Horseback riding is prohibited except on designated trails May 16 through- August 31 and all horseback riding is prohibited from September 1 through May 15. This rule includes all equine species. (30) Green Swamp Game Land in Brunswick County (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (31) Gull Rock Game Land in Hyde County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) On the posted waterfowl impoundments of Gull Rock Game Land hunting of any species of wildlife is limited to Mondays, Wednesdays, Saturdays; Thanksgiving, Christmas, and New Year's Days; and the opening and closing days of the applicable waterfowl seasons. (D) Camping is restricted to Sep. 1-Feb 28 and April 7- May 14 in areas both designated and posted as camping areas. (F) Bear may only be taken the first three hunting days during the November Bear Season and the first three hunting days during the second week of the December Bear Season on the Long Shoal River Tract of Gull Rock Game Land. (32) Holly Shelter Game Land in Pender County (A) Three Days per Week Area Area, except that the area of Holly Shelter Game Land, east of the Shaw Highway, south of NC Hwy 53, west of NC Hwy 50 and north of the Bear Garden Road, is open to gun deer hunting and bear hunting by Special Permit only. (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. Deer of either sex may also be taken the Friday preceding the Eastern muzzle-loading season with any legal PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1139 weapon and the Saturday preceding Eastern bow season with bow and arrow by participants in the Disabled Sportsman Program (C) Waterfowl may be taken on the opening and closing days of the applicable waterfowl seasons regardless of the day of the week on which they occur. (D) Camping is restricted to Sep. 1-Feb 28 and April 7- May 14 in areas both designated and posted as camping areas. (E) On that portion of Holly Shelter Game Land east of the Shaw Highway, south of NC Hwy 53, west of NC Hwy 50 and north of the Bear Garden road, gun deer hunting and bear hunting is by Special Permit only. (33) Hyco Game land in Person County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (34) J. Morgan Futch Game Land in Tyrrell County, Permit Only Area. (35) Jordan Game Land in Chatham, Durham, Orange and Wake counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) Waterfowl may be taken only on Mondays, Wednesdays, Saturdays; on Thanksgiving, Christmas and New Year's Days; and on the opening and closing days of the applicable waterfowl seasons. (D) Horseback riding, including all equine species, is prohibited except on those areas posted as American Tobacco Trail and other areas specifically posted for equestrian use. Unless otherwise posted, horseback riding is permitted on posted portions of the American Tobacco Trail anytime the trail is open for use. On all other trails posted for equestrian use, horseback riding is allowed only during June, July and August, and on Sundays the remainder of the year except during open turkey and deer seasons. (E) Target shooting is prohibited. (F) Wild turkey hunting is by permit only. (36) Lantern Acres Game Land in Tyrrell and Washington counties (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) Wild turkey hunting is by permit only. (37) Lee Game Land in Lee County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (38) Linwood Game Land in Davidson County (A) Six Days per Week Area (B) Deer of either sex may be taken on all of the open days of the applicable Deer With Visible Antlers Season. (39) Mayo Game Land in Person County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) Waterfowl may be taken only on Tuesdays, Thursdays and Saturdays; Christmas and New Year's Days, and on the opening and closing days of the applicable waterfowl seasons. (40) Mitchell River Game Land in Surry County (A) Three Days per Week Area (B) Deer of either sex may be taken the last six days of the applicable Deer with Visible Antlers Season. (C) Horseback riding, including all equine species, is prohibited except on designated trails May 16 through August 31 and all horseback riding is prohibited from September 1 through May 15. (41) Nantahala Game Land in Cherokee, Clay, Graham, Jackson, Macon, Swain and Transylvania counties (A) Six Days per Week Area (B) Deer of either sex may be taken the last open day of the applicable Deer With Visible Antlers Season in that portion located in Transylvania County. (C) Raccoon and opossum may be hunted only from sunset Friday until sunrise on Saturday and from sunset until 12:00 midnight on Saturday on Fires Creek Bear Sanctuary in Clay County and in that part of Cherokee County north of US 64 and NC 294, east of Persimmon Creek and Hiwassee Lake, south of Hiwassee Lake and PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1140 west of Nottely River; in the same part of Cherokee County dog training is prohibited from March 1 to the Monday on or nearest October 15. (42) Neuse River Game Land in Craven County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (43) New Lake Game Land in Hyde County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (44) North River Game Land in Currituck and Camden counties (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season except in that part in Camden County south of US 158 where the season is the last six open days of the applicable Deer With Visible Antlers Season. (C) The boundary of the Game Land shall extend five yards from the edge of the marsh or shoreline. (D) Wild turkey hunting is by permit only on that portion in Camden County. (45) Northwest River Marsh Game Land in Currituck County (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) The boundary of the Game Land shall extend five yards from the edge of the marsh or shoreline. (46) Pee Dee River Game Land in Anson, Montgomery, Richmond and Stanly counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) Use of centerfire rifles prohibited in that portion in Anson and Richmond counties North of US-74. (47) Perkins Game Land in Davie County (A) Three Days per Week Area (B) Deer of either sex may be taken the last open day of the applicable Deer With Visible Antlers Season. (48) Pisgah Game Land in Avery, Buncombe, Burke, Caldwell, Haywood, Henderson, Madison, McDowell, Mitchell, Transylvania, Watauga and Yancey counties (A) Six Days per Week Area (B) Deer of either sex may be taken the last open day of the applicable Deer With Visible Antlers Season except on that portion in Avery and Yancey counties and that portion in Haywood County encompassed by US 276 on the north, US 74 on the west, and the Blue Ridge Parkway on the south and east. (C) Harmon Den and Sherwood Bear Sanctuaries in Haywood County are closed to hunting raccoon, opossum and wildcat. Training raccoon and opossum dogs is prohibited from March 1 to the Monday on or nearest October 15 in that part of Madison County north of the French Broad River, south of US 25-70 and west of SR 1319. (49) Pungo River Game Land in Hyde County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (50) Roanoke River Wetlands in Bertie, Halifax and Martin counties (A) Hunting is by Permit only. (B) Vehicles are prohibited on roads or trails except those operated on official Commission business or by permit holders. (C) Camping is restricted to Sep. 1-Feb 28 and April 7- May 14 in areas both designated and posted as camping areas. (51) Roanoke Sound Marshes Game Land in Dare County-Hunting is by permit only. (52) Robeson Game Land in Robeson County (A) Three Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (53) Sampson Game Land in Sampson County (A) Three Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (54) Sandhills Game Land in Hoke, Moore, Richmond and Scotland counties (A) Three Days per Week Area (B) The Deer With Visible Antlers season for deer consists of the open hunting days from the second Saturday before Thanksgiving through the third Saturday after Thanksgiving except on the field trial grounds where the gun season is open days from the PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1141 second Monday before Thanksgiving through the Saturday following Thanksgiving. Deer may be taken with bow and arrow on all open hunting days during the bow and arrow season, as well as during the regular gun season. Deer may be taken with muzzle-loading firearms on open days beginning the third Saturday before Thanksgiving through the following Wednesday, and during the Deer With Visible Antlers season. (C) Gun either-sex deer hunting is by permit only. For participants in the Disabled Sportsman Program, either-sex deer hunting with any legal weapon is permitted on all areas the Thursday and Friday prior to the muzzle-loading season described in the preceding paragraph. Except for the deer, opossum, rabbit, and raccoon seasons specifically indicated for the field trial grounds in this Rule and Disabled Sportsman Program hunts, the field trial grounds are closed to all hunting during the period October 22 to March 31. (D) In addition to the regular hunting days, waterfowl may be taken on the opening and closing days of the applicable waterfowl seasons (E) Wild turkey hunting is by permit only. (F) Dove hunting on the field trial grounds will be prohibited from the second Sunday in September through the remainder of the hunting season. (G) Opossum and raccoon hunting on the field trial grounds will be allowed on open days from the second Monday before Thanksgiving through the Saturday following Thanksgiving and rabbit season on the field trial grounds will be from the Saturday preceding Thanksgiving through the Saturday following Thanksgiving. (H) The following areas are closed to all quail and woodcock hunting and dog training on birds: In Richmond County: that part east of US 1; In Scotland County: that part east of east of SR 1001 and west of US 15/501. (I) Horseback riding on field trial grounds from October 22 through March 31 shall be prohibited except by participants in authorized field trials. (55) Scuppernong Game Land in Tyrrell and Washington counties (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (56) Shearon Harris Game Land in Chatham and Wake counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) Waterfowl may be taken only on Tuesdays, Fridays, Saturdays; on Thanksgiving, Christmas and New Year's Days; and on the opening and closing days of the applicable waterfowl seasons. (D) The use or construction of permanent hunting blinds is prohibited. (E) Wild turkey hunting is by permit only. (57) Shocco Creek Game Land in Franklin and Warren counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (58) South Mountains Game Land in Burke, Cleveland, McDowell and Rutherford counties (A) Six Days per Week Area (B) The Deer With Visible Antlers season for deer consists of the open hunting days from the Monday before Thanksgiving through the third Saturday after Thanksgiving. (C) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (D) Horseback riding is prohibited except on designated trails May 16 through August 31 and all horseback riding is prohibited from September 1 through May 15. This Rule includes all equine species. (E) That part of South Mountains Game Land in Cleveland, McDowell, and Rutherford counties is closed to all grouse, quail and woodcock hunting and all bird dog training. (59) Stones Creek Game Land in Onslow County (A) Six Day Per Week Area (B) Swimming lakes is prohibited. (60) Suggs Mill Pond Game Land in Bladen County; (A) Hunting is by Permit only. PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1142 (B) Camping is restricted to Sep. 1-Feb 28 and April 7- May 14 in areas both designated and posted as camping areas. (61) Sutton Lake Game Land in New Hanover County (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (62) Three Top Mountain Game Land in Ashe County (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (C) Horseback riding is prohibited except on designated trails May 16 through August 31 and all horseback riding is prohibited from September 1 through May 15. This Rule includes all equine species. (63) Thurmond Chatham Game Land in Wilkes County (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. Participants of the Disabled Sportsman Program may also take either-sex deer with bow and arrow on the Saturday prior to Northwestern bow and arrow season. (C) Horseback riding is prohibited except on designated trails May 16 through August 31 and all horseback riding is prohibited from September 1 through May 15. This Rule includes all equine species. Participants must obtain a game lands license prior to horseback riding on this area. (64) Toxaway Game Land in Transylvania County (A) Six Days per Week Area (B) Deer of either sex may be taken the last open day of the applicable Deer With Visible Antlers Season. Participants of the Disabled Sportsman Program may also take deer of either sex with any legal weapon on the Saturday prior to the first segment of the Western bow and arrow season. (C) Horseback riding is prohibited except on designated trails May 16 through August 31 and all horseback riding is prohibited from September 1 through May 15. This Rule includes all equine species. (65) Uwharrie Game Land in Davidson, Montgomery and Randolph counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last open six days of the applicable Deer With Visible Antlers Season. (66) Vance Game Land in Vance County (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) The use of dogs, centerfire rifles and handguns for hunting deer is prohibited on the Nutbush Peninsula tract. (67) Van Swamp Game Land in Beaufort and Washington counties (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (68) White Oak River Impoundment Game Land in Onslow County (A) Three Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) Waterfowl may be taken only on Mondays, Wednesdays, Saturdays; on Thanksgiving, Christmas and New Year's Days; and on the opening and closing days of the statewide waterfowl hunting seasons. After October 1, a special permit is required for hunting waterfowl on opening and closing days of the duck seasons, Saturdays of the duck seasons, and on Thanksgiving and New Year's day. (g) On permitted type hunts deer of either sex may be taken on the hunt dates indicated on the permit. Completed applications must be received by the Commission not later than the first day of September next preceding the dates of hunt. Permits shall be issued by random computer selection, shall be mailed to the permittees prior to the hunt, and shall be nontransferable. A hunter making a kill must validate the kill and report the kill to a wildlife cooperator agent or by phone. (h) The following game lands and refuges shall be closed to all hunting except to those individuals who have obtained a valid and current permit from the Wildlife Resources Commission: Bertie, Halifax and Martin counties--Roanoke River Wetlands Bertie County--Roanoke River National Wildlife Refuge Bladen County—Suggs Mill Pond Game Lands Burke County—John's River Waterfowl Refuge Dare County--Dare Game Lands (Those parts of bombing range posted against hunting) Dare County--Roanoke Sound Marshes Game Lands PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1143 Davie--Hunting Creek Swamp Waterfowl Refuge Gaston, Lincoln and Mecklenburg counties--Cowan's Ford Waterfowl Refuge Henderson and Transylvania counties--Dupont State Forest Game Lands Authority G.S. 113-134; 113-264; 113-291.2; 113-291.5; 113-305. TITLE 21 – OCCUPATIONAL LICENSING BOARDS CHAPTER 46 – NORTH CAROLINA BOARD OF PHARMACY Notice is hereby given in accordance with G.S. 150B-21.2 that the Board of Pharmacy intends to repeal the rule cited as 21 NCAC 46 .1508 with changes from the proposed text noticed in the Register, Volume 19, Issue 04. Proposed Effective Date: June 1, 2005 Reason for Proposed Action: To delete the rule setting out prerequisites for the disease state management examination because the Board no longer administers the examination. Procedure by which a person can object to the agency on a proposed rule: Persons may submit objections regarding the proposed rule change to David R. Work, NC Board of Pharmacy, 6015 Farrington Road, Suite 201, Chapel Hill, NC 27517. Written comments may be submitted to: David R. Work, NC Board of Pharmacy, 6015 Farrington Road, Suite 201, Chapel Hill, NC 27517. Comment period ends: March 21, 2005 Procedure for Subjecting a Proposed Rule to Legislative Review: Any person who objects to the adoption of a permanent rule may submit written comments to the agency. 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 6th business day preceding the end of the month in which a rule is approved. 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 SECTION .1500 - ADMISSION REQUIREMENTS: EXAMINATIONS 21 NCAC 46 .1508 PREREQUISITES FOR DISEASE STATE MANAGEMENT EXAMINATION In order to apply for the disease state management examination administered by the Board, a pharmacist must be a North Carolina licensed pharmacist. Authority G.S. 90-85.6; 90-85.34. * * * * * * * * * * * * * * * * * * * * TITLE 21 – OCCUPATIONAL LICENSING BOARDS CHAPTER 58 – REAL ESTATE COMMISSION Notice is hereby given in accordance with G.S. 150B-21.2 that the Real Estate Commission intends to amend the rules cited as 21 NCAC 58A .0101, .0104, .0106-.0107, .0109-.0110, .0502, .0504, .0506, .1702, .1807; 58C .0205, .0207, .0603-.0604, .0607-.0608; 58E .0302, .0310, .0406-.0407. Proposed Effective Date: July 1, 2005 Public Hearing: Date: February 9, 2005 Time: 10:00 a.m. Location: County Commissioner's Office, 301 West Market Street, Greensboro, NC Reason for Proposed Action: To clarify the current rules in light of suggestions from the public, licensees, and the Commission's staff. Procedure by which a person can object to the agency on a proposed rule: Any person who objects or who has comment about the proposed rule changes may submit written comments to rule-making coordinator Pamela Millward at the address listed below. Written comments may be submitted to: Pamela Millward, NCREC, 1313 Navaho Drive, Raleigh, NC 27609, phone (919)875-3700, fax (919)981-5023. Comment period ends: March 21, 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 PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1144 objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State Local Substantive (>$3,000,000) None SUBCHAPTER 58A - REAL ESTATE BROKERS AND SALESMEN SECTION .0100 - GENERAL BROKERAGE 21 NCAC 58A .0101 PROOF OF LICENSURE (a) The annual license renewal pocket card issued by the Commission to each licensee shall be retained by the licensee as evidence of licensure. Each licensee shall carry his or her pocket card on his or her person at all times while engaging in real estate brokerage and shall produce the card as proof of licensure whenever requested. (b) The principal qualifying broker of a firm shall retain the firm's renewal pocket card at the firm and shall produce it upon request as proof of firm licensure as required by Rule .0502. (c) Every licensed real estate business entity or firm shall prominently display its license certificate or facsimile thereof in each office maintained by the entity or firm. A broker-in-charge shall also prominently display his or her license certificate in the office where he or she is broker-in-charge. (d) Every licensee shall include his or her license number in agency contracts and disclosures as provided in Rule .0104 of this Section. Authority G.S. 93A-3(c). 21 NCAC 58A .0104 AGENCY AGREEMENTS AND DISCLOSURE (a) Every agreement for brokerage services in a real estate transaction and every agreement for services connected with the management of a property owners association shall be in writing. Every agreement for brokerage services between a broker and an owner of the property to be the subject of a transaction must be in writing from the time of its formation. Every agreement for brokerage services between a broker and a buyer or tenant shall be express and shall be reduced to writing not later than the time one of the parties makes an offer to purchase, sell, rent, lease, or exchange real estate to another. However, every agreement between a broker and a buyer or tenant which seeks to bind the buyer or tenant for a period of time or to restrict the buyer's or tenant's right to work with other agents or without an agent shall be in writing from its formation. A broker or salesperson shall not continue to represent a buyer or tenant without a written agreement when such agreement is required by this Rule. Every written agreement for brokerage services of any kind in a real estate transaction shall provide for its existence for a definite period of time time, shall include the licensee's license number, and shall provide for its termination without prior notice at the expiration of that period, except that an agency agreement between a landlord and broker to procure tenants or receive rents for the landlord's property may allow for automatic renewal so long as the landlord may terminate with notice at the end of any contract period and any subsequent renewals. For the purposes of this rule, an agreement between licensees to cooperate or share compensation shall not be considered an agreement for brokerage services and, except as required by Rule .1807 of this Subchapter, need not be memorialized in writing. (b) Every listing agreement, written buyer agency agreement or other written agreement for brokerage services in a real estate sales transaction shall contain the following provision: The broker shall conduct all his brokerage activities in regard to this agreement without respect to the race, color, religion, sex, national origin, handicap or familial status of any buyer, prospective buyer, seller or prospective seller. party or prospective party to the agreement. The provision shall be set forth in a clear and conspicuous manner which shall distinguish it from other provisions of the agreement. For the purposes of this Rule, the term, familial status, shall be defined as it is in G.S. 41A-3(1b). (c) In every real estate sales transaction, a broker or salesperson shall, at first substantial contact directly with a prospective buyer or seller, provide the prospective buyer or seller with a copy of the publication "Working with Real Estate Agents," set forth the broker or salesperson's name and license number thereon, review it the publication with him or her, the buyer or seller, and determine whether the agent will act as the agent of the buyer or seller in the transaction. If the first substantial contact with a prospective buyer or seller occurs by telephone or other electronic means of communication where it is not practical to provide the "Working with Real Estate Agents" publication, the broker or salesperson shall at the earliest opportunity thereafter, but in no event later than three days from the date of first substantial contact, mail or otherwise transmit a copy of the publication to the prospective buyer or seller and review it with him or her at the earliest practicable opportunity thereafter. For the purposes of this Rule, "first substantial contact" shall include contacts between a broker or salesperson and a consumer where the consumer or broker or salesperson begins to act as though an agency relationship exists and the consumer begins to disclose to the broker or salesperson personal or confidential information. (d) A real estate broker or salesperson representing one party in a transaction shall not undertake to represent another party in the transaction without the written authority of each party. Such written authority must be obtained upon the formation of the relationship except when a buyer or tenant is represented by a broker without a written agreement in conformity with the requirements of Paragraph (a) of this Rule. Under such circumstances, the written authority for dual agency must be reduced to writing not later than the time that one of the parties represented by the broker or salesperson makes an offer to purchase, sell, rent, lease, or exchange real estate to another party. (e) In every real estate sales transaction, a broker or salesperson working directly with a prospective buyer as a seller's agent or PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1145 subagent shall disclose in writing to the prospective buyer at the first substantial contact with the prospective buyer that the broker or salesperson represents the interests of the seller. The written disclosure shall include the broker or salesperson's license number. If the first substantial contact occurs by telephone or by means of other electronic communication where it is not practical to provide written disclosure, the broker or salesperson shall immediately disclose by similar means whom he represents and shall immediately mail or otherwise transmit a copy of the written disclosure to the buyer. In no event shall the broker or salesperson mail or transmit a copy of the written disclosure to the buyer later than three days from the date of first substantial contact with the buyer. (f) In every real estate sales transaction, a broker or salesperson representing a buyer shall, at the initial contact with the seller or seller's agent, disclose to the seller or seller's agent that the broker or salesperson represents the buyer's interests. In addition, in every real estate sales transaction other than auctions, the broker or salesperson shall, no later than the time of delivery of an offer to the seller or seller's agent, provide the seller or seller's agent with a written confirmation disclosing that he represents the interests of the buyer. The written confirmation may be made in the buyer's offer to purchase purchase and shall include the broker or salesperson's license number. (g) The provisions of Paragraphs (c), (d) and (e) of this Rule shall not apply to real estate licensees representing sellers in auction sales transactions. (h) A broker or salesperson representing a buyer in an auction sale transaction shall, no later than the time of execution of a written agreement memorializing the buyer's contract to purchase, provide the seller or seller's agent with a written confirmation disclosing that he represents the interests of the buyer. The written confirmation may be made in the written agreement. (i) A firm which represents more than one party in the same real estate transaction is a dual agent and, through the brokers and salespersons associated with the firm, shall disclose its dual agency to the parties. (j) When a firm represents both the buyer and seller in the same real estate transaction, the firm may, with the prior express approval of its buyer and seller clients, designate one or more individual agents associated with the firm to represent only the interests of the seller and one or more other individual brokers and salespersons associated with the firm to represent only the interests of the buyer in the transaction. The authority for designated agency must be reduced to writing not later than the time that the parties are required to reduce their dual agency agreement to writing in accordance with Paragraph (d) of this Rule. An individual broker or salesperson shall not be so designated and shall not undertake to represent only the interests of one party if the broker or salesperson has actually received confidential information concerning the other party in connection with the transaction. A broker-in-charge shall not act as a designated agent for a party in a real estate sales transaction when a salesperson under his or her supervision will act as a designated agent for another party with a competing interest. (k) When a firm acting as a dual agent designates an individual broker or salesperson to represent the seller, the broker or salesperson so designated shall represent only the interest of the seller and shall not, without the seller's permission, disclose to the buyer or a broker or salesperson designated to represent the buyer: (1) that the seller may agree to a price, terms, or any conditions of sale other than those established by the seller; (2) the seller's motivation for engaging in the transaction unless disclosure is otherwise required by statute or rule; and (3) any information about the seller which the seller has identified as confidential unless disclosure of the information is otherwise required by statute or rule. (l) When a firm acting as a dual agent designates an individual broker or salesperson to represent the buyer, the broker or salesperson so designated shall represent only the interest of the buyer and shall not, without the buyer's permission, disclose to the seller or a broker or salesperson designated to represent the seller: (1) that the buyer may agree to a price, terms, or any conditions of sale other than those established by the seller; (2) the buyer's motivation for engaging in the transaction unless disclosure is otherwise required by statute or rule; and (3) any information about the buyer which the buyer has identified as confidential unless disclosure of the information is otherwise required by statute or rule. (m) A broker or salesperson designated to represent a buyer or seller in accordance with Paragraph (j) of this Rule shall disclose the identity of all of the brokers and salespersons so designated to both the buyer and the seller. The disclosure shall take place no later than the presentation of the first offer to purchase or sell. (n) When an individual broker or salesperson represents both the buyer and seller in the same real estate sales transaction pursuant to a written agreement authorizing dual agency, the parties may provide in the written agreement that the broker or salesperson shall not disclose the following information about one party to the other without permission from the party about whom the information pertains: (1) that a party may agree to a price, terms or any conditions of sale other than those offered; (2) the motivation of a party for engaging in the transaction, unless disclosure is otherwise required by statute or rule; and (3) any information about a party which that party has identified as confidential, unless disclosure is otherwise required by statute or rule. Authority G.S. 41A-3(1b); 41A-4(a); 93A-3(c); 93A-9. 21 NCAC 58A .0106 DELIVERY OF INSTRUMENTS (a) Except as provided in Paragraph (b) of this Rule, every broker or salesperson shall immediately, but in no event later than five days from the date of execution, deliver to the parties thereto copies of any required written agency agreement, contract, offer, lease, or option affecting real property. PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1146 (b) A broker or salesperson may be relieved of his or her duty under Paragraph (a) of this Rule to deliver copies of leases or rental agreements to the property owner, if the broker: (1) obtains the express written authority of the property owner to enter into and retain copies of leases or rental agreements on behalf of the property owner; (2) executes the lease or rental agreement on a pre-printed form, the material terms of which may not be changed by the broker without prior approval by the property owner except as may be required by law; (3) promptly provides a copy of the lease or rental agreement to the property owner upon reasonable request; and (4) delivers to the property owner within 45 days following the date of execution of the lease or rental agreement, an accounting which identifies the leased property and which sets forth the names of the tenants, the rental rates and rents collected. Authority G.S. 93A-3(c). 21 NCAC 58A .0107 HANDLING AND ACCOUNTING OF FUNDS (a) Except as provided herein, all All monies received by a licensee acting in his or her fiduciary capacity shall be deposited in a trust or escrow account maintained by a broker not later than three banking days following receipt of such monies except that earnest money deposits paid by means other than currency which are received on offers to purchase real estate and tenant security deposits paid by means other than currency which are received in connection with real estate leases shall be deposited in a trust or escrow account not later than three banking days following acceptance of such offer to purchase or lease; the date of acceptance of such offer to purchase or lease shall be set forth in the purchase or lease agreement. All monies received by a salesperson shall be delivered immediately to the broker by whom he or she is employed, except that all monies received by nonresident commercial licensees shall be delivered as required by Rule .1808 of this Subchapter. A licensee may accept custody of a check or other negotiable instrument made payable to the seller of real property as option money only for the purpose of delivering the instrument to the optionor-seller. While the instrument is in the custody of the licensee, the licensee shall either deliver it to the seller-optionor or return it to the buyer-optionee according to the instructions of the buyer-optionee. The licensee shall safeguard the instrument and shall be responsible to the parties on the instrument for its prompt and safe delivery. In no event shall a licensee retain such an instrument for more than three business days after the acceptance of the option contract. (b) In the event monies received by a licensee while acting in a fiduciary capacity are deposited in a trust or escrow account which bears interest, the broker having custody over such monies shall first secure from all parties having an interest in the monies written authorization for the deposit of the monies in an interest-bearing account. Such authorization shall specify how and to whom the interest will be disbursed, and, if contained in an offer, contract, lease, or other transaction instrument, such authorization shall be set forth in a conspicuous manner which shall distinguish it from other provisions of the instrument. (c) Closing statements shall be furnished to the buyer and the seller in the transaction at the closing or not more than five days after closing. (d) Trust or escrow accounts shall be so designated by the bank or savings and loan association in which the account is located, and all deposit tickets and checks drawn on said account as well as the monthly bank statement for the account shall bear the words "Trust Account" or "Escrow Account." (e) A licensee shall maintain and retain records sufficient to identify the ownership of all funds belonging to others. Such records shall be sufficient to show proper deposit of such funds in a trust or escrow account and to verify the accuracy and proper use of the trust or escrow account. The required records shall include: (1) bank statements; (2) canceled checks which shall be referenced to the corresponding journal entry or check stub entries and to the corresponding sales transaction ledger sheets or for rental transactions, the corresponding property or owner ledger sheets. Checks shall conspicuously identify the payee and shall bear a notation identifying the purpose of the disbursement. When a check is used to disburse funds for more than one sales transaction, owner, or property, the check shall bear a notation identifying each sales transaction, owner, or property for which disbursement is made, including the amount disbursed for each, and the corresponding sales transaction, property, or owner ledger entries. When necessary, the check notation may refer to the required information recorded on a supplemental disbursement worksheet which shall be cross-referenced to the corresponding check. In lieu of retaining canceled checks, a licensee may retain digitally imaged copies of the canceled checks provided that such images are legible reproductions of the front and back of the original instruments with no more than four instruments per page and no smaller images than 2.25 x 5.0 1.1875 x 3.0 inches, inches and provided that the licensee's bank retains the original checks or a "substitute check" as described in 12 C.F.R. 229.51 on file for a period of at least five six years and makes them available to the licensee and the Commission upon request; (3) deposit tickets. For a sales transaction, the deposit ticket shall identify the purpose and remitter of the funds deposited, the property, the parties involved, and a reference to the corresponding sales transaction ledger entry. For a rental transaction, the deposit ticket shall PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1147 identify the purpose and remitter of the funds deposited, the tenant, and the corresponding property or owner ledger entry. For deposits of funds belonging to or collected on behalf of a property owner association, the deposit ticket shall identify the property or property interest for which the payment is made, the property or interest owner, the remitter, and the purpose of the payment. When a single deposit ticket is used to deposit funds collected for more than one sales transaction, property owner, or property, the required information shall be recorded on the ticket for each sales transaction, owner, or property, or the ticket may refer to the same information recorded on a supplemental deposit worksheet which shall be cross-referenced to the corresponding deposit ticket; (4) a payment record sheet for each property or interest for which funds are collected and deposited into a property owner association trust account as required by Paragraph (i) of this Rule. Payment record sheets shall identify the amount, date, remitter, and purpose of payments received, the amount and nature of the obligation for which payments are made, and the amount of any balance due or delinquency; (5) a separate ledger sheet for each sales transaction and for each property or owner of property managed by the broker identifying the property, the parties to the transaction, the amount, date, and purpose of the deposits and from whom received, the amount, date, check number, and purpose of disbursements and to whom paid, and the running balance of funds on deposit for the particular sales transaction or, in a rental transaction, the particular property or owner of property. Monies held as tenant security deposits in connection with rental transactions may be accounted for on a separate tenant security deposit ledger for each property or owner of property managed by the broker. For each security deposit the tenant security deposit ledger shall identify the remitter, the date the deposit was paid, the amount, the tenant, landlord, and subject property. For each disbursement of tenant security deposit monies, the ledger shall identify the check number, amount, payee, date, and purpose of the disbursement. The ledger shall also show a running balance. When tenant security deposit monies are accounted for on a separate ledger as provided herein, deposit tickets, canceled checks and supplemental worksheets shall reference the corresponding tenant security deposit ledger entries when appropriate; (6) a journal or check stubs identifying in chronological sequence each bank deposit and disbursement of monies to and from the trust or escrow account, including the amount and date of each deposit and a reference to the corresponding deposit ticket and any supplemental deposit worksheet, and the amount, date, check number, and purpose of disbursements and to whom paid. The journal or check stubs shall also show a running balance for all funds in the account; (7) copies of contracts, leases and management agreements; (8) closing statements and property management statements; (9) covenants, bylaws, minutes, management agreements and periodic statements relating to the management of a property owner association; and (10) invoices, bills, and contracts paid from the trust account, and any documents not otherwise described herein necessary and sufficient to verify and explain record entries. Records of all receipts and disbursements of trust or escrow monies shall be maintained in such a manner as to create an audit trail from deposit tickets and canceled checks to check stubs or journals and to the ledger sheets. Ledger sheets and journals or check stubs must be reconciled to the trust or escrow account bank statements on a monthly basis. To be sufficient, records of trust or escrow monies must include a worksheet for each such monthly reconciliation showing the ledger sheets, journals or check stubs, and bank statements to be in agreement and balance. (f) All trust or escrow account records shall be made available for inspection by the Commission or its authorized representatives in accordance with Rule 21 NCAC 58A .0108. (g) In the event of a dispute between the seller and buyer or landlord and tenant over the return or forfeiture of any deposit other than a residential tenant security deposit held by a licensee, the licensee shall retain said deposit in a trust or escrow account until the licensee has obtained a written release from the parties consenting to its disposition or until disbursement is ordered by a court of competent jurisdiction. If it appears to a broker holding a disputed deposit that a party has abandoned his or her claim, the broker may disburse the money to the other claiming parties according to their written agreement provided that the broker first makes a reasonable effort to notify the party who has apparently abandoned his or her claim and provides that party with an opportunity to renew his or her claim to the disputed funds. Tenant security deposit monies shall be disposed of in accordance with the requirements of G.S. 42-50 through 56 and G.S. 42A-18. (h) A broker may transfer earnest money deposits in his or her possession collected in connection with a sales transaction from his or her trust account to the closing attorney or other settlement agent not more than ten days prior to the anticipated settlement date. A licensee shall not disburse prior to settlement any earnest money in his or her possession for any other purpose without the written consent of the parties. PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1148 (i) The funds of a property owner association, when collected, maintained, disbursed or otherwise controlled by a licensee, are trust monies and shall be treated as such in the manner required by this Rule. Such funds must be deposited into and maintained in a trust or escrow account or accounts dedicated exclusively for funds belonging to a single property owners association and may not be commingled with funds belonging to other property owner associations or other persons or parties. A licensee who undertakes to act as manager of a property owner association or as the custodian of funds belonging to a property owner association shall provide the association with periodic statements which report the balance of association funds in the licensee's possession or control and which account for the funds the licensee has received and disbursed on behalf of the association. Such statements must be made in accordance with the licensee's agreement with the association, but in no event shall the statements be made less frequently than every 90 days. (j) Every licensee shall safeguard the money or property of others coming into his or her possession in a manner consistent with the requirements of the Real Estate License Law and the rules adopted by the Commission. A licensee shall not convert the money or property of others to his or her own use, apply such money or property to a purpose other than that for which it was paid or entrusted to him or her, or permit or assist any other person in the conversion or misapplication of such money or property. (k) In addition to the records required by Paragraph (e) of this Rule, a licensee acting as agent for the landlord of a residential property used for vacation rentals shall create and maintain a subsidiary ledger sheet for each property or owner of such properties onto which all funds collected and disbursed are identified in categories by purpose. On a monthly basis, the licensee shall reconcile the subsidiary ledger sheets to the corresponding property or property owner ledger sheet. (l) In lieu of maintaining a subsidiary ledger sheet, the licensee may maintain an accounts payable ledger sheet for each owner or property and each vendor to whom trust monies are due for monies collected on behalf of the owner or property identifying the date of receipt of the trust monies, from whom the monies were received, rental dates, and the corresponding property or owner ledger sheet entry including the amount to be disbursed for each and the purpose of the disbursement. The licensee may also maintain an accounts payable ledger sheet in the format described in Paragraph (k) of this Rule for vacation rental tenant security deposit monies and vacation rental advance payments. Authority G.S. 93A-3(c); 93A-9. 21 NCAC 58A .0109 BROKERAGE FEES AND COMPENSATION (a) A licensee shall not receive, either directly or indirectly, any commission, rebate or other valuable consideration of more than nominal value from a vendor or a supplier of goods and services for an expenditure made on behalf of the licensee's principal in a real estate transaction without the written consent of the licensee's principal. (b) A licensee shall not receive, either directly or indirectly, any commission, rebate or other valuable consideration of more than nominal value for services which the licensee recommends, procures, or arranges relating to a real estate transaction for any party, without full disclosure to such party; provided, however, that nothing in this Rule shall be construed to permit a licensee to accept any fee, kickback or other valuable consideration that is prohibited by the Real Estate Settlement Procedures Act of 1974 (12 USC 2601 et. seq.) or any rules and regulations promulgated by the United States Department of Housing and Urban Development pursuant to such Act. (c) The Commission shall not act as a board of arbitration and shall not compel parties to settle disputes concerning such matters as the rate of commissions, the division of commissions, pay of salespersons, and similar matters. (d) Except as provided in (e) of this rule, a licensee shall not undertake in any manner, any arrangement, contract, plan or other course of conduct, to compensate or share compensation with unlicensed persons or entities for any acts performed in North Carolina for which licensure by the Commission is required. (e) A broker may pay or promise to pay consideration to a travel agent in return for procuring a tenant for a vacation rental as defined by the Vacation Rental Act if: (1) the travel agent only introduces the tenant to the broker, but does not otherwise engage in any activity which would require a real estate license; (2) the introduction by the travel agent is made in the regular course of the travel agent's business; and (3) the travel agent has not solicited, handled or received any monies in connection with the vacation rental. For the purpose of this Rule, a travel agent is any person or entity who is primarily engaged in the business of acting as an intermediary between persons who purchase air, land, and ocean travel services and the providers of such services. A travel agent is also any other person or entity who is permitted to handle and sell tickets for air travel by the Airlines Reporting Corporation (ARC). Payments authorized hereunder shall be made only after the conclusion of the vacation rental tenancy. Prior to the creation of a binding vacation rental agreement, the broker shall provide a tenant introduced by a travel agent a written statement advising him or her to rely only upon the agreement and the broker's representations about the transaction. The broker shall keep for a period of three years records of a payment made to a travel agent including records identifying the tenant, the travel agent and their addresses, the property and dates of the tenancy, and the amount paid. Authority G.S. 93A-3(c). 21 NCAC 58A .0110 BROKER-IN-CHARGE (a) Every real estate firm shall designate a broker to serve as the broker-in-charge at its principal office and a broker to serve as broker-in-charge at any branch office. No broker shall be broker-in-charge of more than one office or branch office. If a firm shares office space with one or more other firms, one broker may serve as broker-in-charge of each firm at that location. No office or branch office of a firm shall have more than one designated broker-in-charge. A broker who is a sole PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1149 proprietor shall designate himself or herself as a broker-in-charge if the broker engages in any transaction where the broker is required to deposit and maintain monies belonging to others in a trust account, engages in advertising or promoting his or her services as a broker in any manner, or has one or more brokers or salespersons affiliated with him or her in the real estate business. Each broker-in-charge shall make written notification of his or her status as broker-in-charge to the Commission on a form prescribed by the Commission within 10 days following the broker's designation as broker-in-charge. The broker-in-charge shall assume the responsibility at his or her office for: (1) the retention and display of current license renewal pocket cards by all brokers and salespersons employed at the office for which he or she is broker-in-charge; the proper display of licenses at such office in accordance with Rule .0101 of this Section; and assuring that each licensee employed at the office has complied with Rules .0503, .0504, and .0506 of this Subchapter; (2) the proper notification to the Commission of any change of business address or trade name of the firm and the registration of any assumed business name adopted by the firm for its use; (3) the proper conduct of advertising by or in the name of the firm at such office; (4) the proper maintenance at such office of the trust or escrow account of the firm and the records pertaining thereto; (5) the proper retention and maintenance of records relating to transactions conducted by or on behalf of the firm at such office, including those required to be retained pursuant to Rule .0108 of this Section; (6) the proper supervision of salespersons associated with or engaged on behalf of the firm at such office in accordance with the requirements of Rule .0506 of this Subchapter; (7) the verification to the Commission of the experience of any salesperson at such office who may be applying for licensure as a broker; and (8) the proper supervision of all brokers and salespersons employed at the office for which he or she is broker-in-charge with respect to adherence to agency agreement and disclosure requirements. (b) When used in this Rule, the term: (1) "Branch Office" means any office in addition to the principal office of a broker which is operated in connection with the broker's real estate business; and (2) "Office" means any place of business where acts are performed for which a real estate license is required. (c) A broker-in-charge must continually maintain his or her license on active status. (d) Each broker-in-charge shall notify the Commission in writing of any change in his or her status as broker-in-charge within 10 days following the change. Upon written request of a salesperson within five years after termination of his or her association with a broker-in-charge, the broker-in-charge shall provide the salesperson, on a form prescribed by the Commission, an accurate written statement regarding the number and type of properties listed, sold, bought, leased, or rented for others by the salesperson while under the supervision of the broker-in-charge. (e) A licensed real estate firm shall not be required to designate a broker-in-charge if it: (1) has been organized for the sole purpose of receiving compensation for brokerage services furnished by its principal qualifying broker through another firm or broker; (2) is designated a Subchapter S corporation by the United States Internal Revenue Service; (3) has no principal or branch office; and (4) has no person associated with it other than its principal qualifying broker. (f) Except as provided herein every broker-in-charge designated before October 1, 2000 shall complete the Commission's broker-in- charge course not later than October 1, 2005 in order to remain broker-in-charge on that date and thereafter. Except as provided herein, every broker-in-charge designated after October 1, 2000 shall complete the broker-in-charge course within 120 days following designation in order to remain broker-in-charge thereafter. Every broker who has completed the broker-in-charge course shall take the course on a recurring basis at intervals not to exceed five years between courses in order to remain eligible to be designated broker-in-charge of the principal or branch office of any real estate firm. If a broker who is designated broker-in-charge fails to complete the broker-in- charge course within the prescribed time period, the broker-in- charge status of that broker shall be immediately terminated, and the broker must complete the broker-in-charge course before he or she may again be designated as broker-in-charge. A broker-in-charge residing outside of North Carolina who is the broker-in-charge of a principal or branch office not located in North Carolina shall not be required to complete the broker-in-charge course. (g) A nonresident commercial real estate broker licensed under the provisions of Section .1800 of this Subchapter shall not act as or serve in the capacity of a broker-in-charge of a firm or office in North Carolina. Authority G.S. 93A-2; 93A-3(c); 93A-4; 93A-9. SECTION .0500 - LICENSING 21 NCAC 58A .0502 BUSINESS ENTITIES (a) Every business entity other than a sole proprietorship shall apply for and obtain from the Commission a firm license prior to engaging in business as a real estate broker. An entity that changes its business form shall be required to submit a new application immediately upon making the change and to obtain a new license. Incomplete applications shall not be acted upon by the Commission. Application forms for partnerships, corporations, limited liability companies, associations and other business entities required to be licensed as brokers shall be PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1150 available upon request to the Commission and shall require the applicant to set forth: (1) the name of the entity; (2) the name under which the entity will do business; (3) the type of business entity; (4) the address of its principal office; (5) the entity's NC Secretary of State Identification Number if required to be registered with the Office of the NC Secretary of State; (6) the name, real estate license number and signature of the proposed principal qualifying broker for the proposed firm; (7) the address of and name of the proposed broker-in-charge for each office where brokerage activities will be conducted, along with a completed broker-in-charge declaration form for each proposed broker-in-charge; (8) any past criminal conviction of and any pending criminal charge against any principal in the company or any proposed broker-in-charge; (9) any past revocation, suspension or denial of a business or professional license of any principal in the company or any proposed broker-in-charge; (10) if a general partnership, a full description of the applicant entity, including a copy of its written partnership agreement or if no written agreement exists, a written description of the rights and duties of the several partners; (11) if a business entity other than a corporation, limited liability company or partnership, a full description of the organization of the applicant entity, including a copy of its organizational documents evidencing its authority to engage in real estate brokerage; (12) if a foreign business entity, a certificate of authority to transact business in North Carolina and an executed consent to service of process and pleadings; and (13) any other information required by this Rule. The Commission also may require the applicant to declare in the license application that the applicant's organizational documents authorize the firm to engage in the real estate business and to submit organizational documents, addresses of affiliated persons and similar information. For purposes of this Paragraph, the term principal shall mean any person or entity owning 10 percent or more of the business entity, or who is an officer, director, manager, member, partner or who holds any other comparable position. (b) After filing a written application with the Commission and upon a showing that at least one principal of said business entity holds a broker license on active status and in good standing and will serve as principal qualifying broker of the entity, the entity shall be licensed provided it appears that the applicant entity employs and is directed by personnel possessed of the requisite truthfulness, honesty, and integrity. The principal qualifying broker of a partnership of any kind must be a general partner of the partnership; the principal qualifying broker of a limited liability company must be a manager of the company; and the principal qualifying broker of a corporation must be an officer of the corporation. A licensed business entity may serve as the principal qualifying broker of another licensed business entity if the principal qualifying broker-entity has as its principal qualifying broker a natural person who is himself licensed as a broker. The natural person who is principal qualifying broker shall assure the performance of the principal qualifying broker's duties with regard to both entities. (c) The licensing of a business entity shall not be construed to extend to the licensing of its partners, managers, members, directors, officers, employees or other persons acting for the entity in their individual capacities regardless of whether they are engaged in furthering the business of the licensed entity. (d) The principal qualifying broker of a business entity shall assume responsibility for: (1) designating and assuring that there is at all times a broker-in-charge for each office and branch office of the entity at which real estate brokerage activities are conducted; (2) renewing the real estate broker license of the entity; (3) retaining the firm's renewal pocket card at the firm and producing it as proof of firm licensure upon request and maintaining a photocopy of the firm license certificate and pocket card at each branch office thereof; (4) notifying the Commission of any change of business address or trade name of the entity and the registration of any assumed business name adopted by the entity for its use; (5) notifying the Commission in writing of any change of his or her status as principal qualifying broker within ten days following the change; (6) securing and preserving the transaction and trust account records of the firm whenever there is a change of broker-in-charge at the firm or any office thereof and notifying the Commission if the trust account records are out-of-balance out of balance or have not been reconciled as required by Rule .0107 of this Chapter; (7) retaining and preserving the transaction and trust account records of the firm upon termination of his or her status as principal qualifying broker until a new principal qualifying broker has been designated with the Commission or, if no new principal qualifying broker is designated, for the period of time for which said records are required to be retained by Rule .0108 of this Chapter; and (8) notifying the Commission if, upon the termination of his or her status as principal qualifying broker, the firm's transaction and trust account records cannot be retained or preserved or if the trust account records are PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1151 out-of-balance out of balance or have not been reconciled as required by Rule .0107(e) of this Chapter. (e) Every licensed business entity and every entity applying for licensure shall conform to all the requirements imposed upon it by the North Carolina General Statutes for its continued existence and authority to do business in North Carolina. Failure to conform to such requirements shall be grounds for disciplinary action or denial of the entity's application for licensure. Upon receipt of notice from an entity or agency of this state that a licensed entity has ceased to exist or that its authority to engage in business in this state has been terminated by operation of law, the Commission shall cancel the license of the entity. Authority G.S. 93A-3(c); 93A-4(a),(b),(d). 21 NCAC 58A .0504 ACTIVE AND INACTIVE LICENSE STATUS (a) Except for licenses that have expired or that have been revoked, suspended or surrendered, all licenses issued by the Commission shall be designated as being either on active status or inactive status. The holder of a license on active status may engage in any activity requiring a real estate license and may be compensated for the provision of any lawful real estate brokerage service. The holder of a license on inactive status may not engage in any activity requiring a real estate license, including the referral for compensation of a prospective seller, buyer, landlord or tenant to another real estate licensee or any other party. A licensee holding a license on inactive status must renew such license and pay the prescribed license renewal fee in order to continue to hold such license. The Commission may take disciplinary action against a licensee holding a license on inactive status for any violation of G.S. 93A or any rule promulgated by the Commission, including the offense of engaging in an activity for which a license is required while a license is on inactive status. (b) Except as provided by Rule .1804 of this Subchapter, a salesperson's license shall, upon initial licensure, be assigned to inactive status. The license of a broker or firm shall be assigned to active status. Except for persons licensed under the provisions of Section .1800 of this Subchapter, a broker or salesperson may change the status of his or her license from active to inactive status by submitting a written request to the Commission. Except for salespersons licensed under Section .1800 of this Subchapter, a salesperson's license shall be assigned by the Commission to inactive status when the salesperson is not under the active, personal supervision of a broker-in-charge. A firm's license shall be assigned by the Commission to inactive status when the firm does not have a principal qualifying broker. Except for persons licensed under the provisions of Section .1800 of this Subchapter, a broker or salesperson shall also be assigned to inactive status if, upon the second renewal of his or her license following initial licensure, or upon any subsequent renewal, he or she has not satisfied the continuing education requirement described in Rule .1702 of this Subchapter. (c) A salesperson with an inactive license who desires to have such license placed on active status must comply with the procedures prescribed in Rule .0506 of this Section. (d) A broker with an inactive license who desires to have such license placed on active status shall file with the Commission a request for license activation on a form prescribed by the Commission containing identifying information about the broker, a statement that the broker has satisfied the continuing education requirements prescribed by Rule .1703 of this Subchapter, the date of the request, and the signature of the broker. Upon the mailing or delivery of this form, the broker may engage in real estate brokerage activities requiring a license; however, if the broker does not receive from the Commission a written acknowledgment of the license activation within 30 days of the date shown on the form, the broker shall immediately terminate his or her real estate brokerage activities pending receipt of the written acknowledgment from the Commission. If the broker is notified that he or she is not eligible for license activation due to a continuing education deficiency, the broker must terminate all real estate brokerage activities until such time as the continuing education deficiency is satisfied and a new request for license activation is submitted to the Commission. (e) A firm with an inactive license which desires to have its license placed on active status shall file with the Commission a request for license activation on a form prescribed by the Commission containing identifying information about the firm and its principal qualifying broker. If the principal qualifying broker has an inactive license, he or she must satisfy the requirements of Paragraph (d) of this Rule. Upon the mailing or delivery of the completed form by the principal qualifying broker, the firm may engage in real estate brokerage activities requiring a license; however, if the firm's principal qualifying broker does not receive from the Commission a written acknowledgment of the license activation within 30 days of the date shown on the form, the firm shall immediately terminate its real estate brokerage activities pending receipt of the written acknowledgment from the Commission. If the principal qualifying broker is notified that the firm is not eligible for license activation due to a continuing education deficiency on the part of the principal qualifying broker, the firm must terminate all real estate brokerage activities until such time as the continuing education deficiency is satisfied and a new request for license activation is submitted to the Commission. (f) A person licensed as a broker or salesperson under Section .1800 of this Subchapter shall maintain his or her license on active status at all times as required by Rule .1804 of this Subchapter. Authority G.S. 93A-3(c); 93A-4(d); 93A-4A; 93A-6; 93A-9. 21 NCAC 58A .0506 SALESPERSON TO BE SUPERVISED BY BROKER (a) This Rule shall apply to all real estate salespersons except those salespersons licensed under the provisions of Section .1800 of this Subchapter. (b) A salesperson may engage in or hold himself or herself out as engaging in activities requiring a real estate license only while his or her license is on active status and he or she is supervised PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1152 by the broker-in-charge of the real estate firm or office where the salesperson is associated. A salesperson may be supervised by only one broker-in-charge at a time. (c) Upon a salesperson's association with a real estate broker or brokerage firm, the salesperson and the broker-in-charge of the office where the salesperson will be engaged in the real estate business shall immediately file with the Commission a salesperson supervision notification on a form prescribed by the Commission containing identifying information about the salesperson and the broker-in-charge, a statement from the broker-in-charge certifying that he or she will supervise the salesperson in the performance of all acts for which a license is required, the date that the broker-in-charge assumes responsibility for such supervision, and the signatures of the salesperson and broker-in-charge. If the salesperson is on inactive status at the time of associating with a broker or brokerage firm, the salesperson and broker-in-charge shall also file, along with the salesperson supervision notification, the salesperson's request for license activation on a form prescribed by the Commission containing identifying information about the salesperson, the salesperson's statement that he or she has satisfied the continuing education requirements prescribed by Rule .1703 of this Subchapter, the date of the request, and the signatures of the salesperson and the salesperson's proposed broker-in-charge. Upon the mailing or delivery of the required form(s), the salesperson may engage in real estate brokerage activities requiring a license under the supervision of the broker-in- charge; however, if the salesperson and broker-in-charge do not receive from the Commission a written acknowledgment of the salesperson supervision notification and, if appropriate, the request for license activation, within 30 days of the date shown on the form, the broker-in-charge shall immediately terminate the salesperson's real estate brokerage activities pending receipt of the written acknowledgment from the Commission. If the salesperson and broker-in-charge are notified that the salesperson is not eligible for license activation due to a continuing education deficiency, the broker-in-charge shall cause the salesperson to immediately cease all activities requiring a real estate license until such time as the continuing education deficiency is satisfied and a new salesperson supervision notification and request for license activation is submitted to the Commission. (d) A broker-in-charge who certifies to the Commission that he or she will supervise a licensed salesperson shall actively and personally directly supervise the salesperson in a manner which reasonably assures that the salesperson performs all acts for which a real estate license is required in accordance with the Real Estate License Law and Commission rules. A supervising broker who fails to supervise a salesperson as prescribed in this Rule may be subject to disciplinary action by the Commission. (e) Upon the termination of the supervisory relationship between a salesperson and his or her broker-in-charge, the salesperson and the broker-in-charge shall provide written notification of the date of termination to the Commission not later than 10 days following said termination. Authority G.S. 93A-2(b); 93A-3; 93A-9. SECTION .1700 – MANDATORY CONTINUING EDUCATION 21 NCAC 58A .1702 CONTINUING EDUCATION REQUIREMENT (a) Except as provided in A.1708 and A.1711, in In order to renew a broker or salesperson license on active status, the person requesting renewal of a license shall, upon the second renewal of such license following initial licensure, and upon each subsequent annual renewal, have completed, within one year preceding license expiration, eight classroom hours of real estate continuing education in courses approved by the Commission as provided in Subchapter 58E. Four of the required eight classroom hours must be obtained each license period by completing a mandatory update course developed annually by the Commission. The remaining four hours must be obtained by completing one or more Commission-approved elective courses described in Rule .0305 of Subchapter 58E. The licensee bears the responsibility for providing, upon request of the Commission, evidence of continuing education course completion satisfactory to the Commission. A licensed salesperson who applies for a broker license after the first renewal of his or her salesperson license must have completed the current mandatory update course and one approved elective course during the license period in which the broker license application is filed. (b) No continuing education shall be required to renew a broker or salesperson license on inactive status; however, to change a license from inactive status to active status, the licensee must satisfy the continuing education requirement described in Rule .1703 of this Section. (c) No continuing education shall be required for a licensee who is a member of the U.S. Congress or the North Carolina General Assembly in order to renew his or her license on active status. (d) The terms "active status" and "inactive status" are defined in Rule .0504 of this Subchapter. For continuing education purposes, the term "initial licensure" shall include the first time that a license of a particular type is issued to a person, and the reinstatement of a revoked or surrendered license, and any or a license expired for more than six months. Authority G.S. 93A-3(c); 93A-4A. SECTION .1800 - LIMITED NONRESIDENT COMMERCIAL LICENSING 21 NCAC 58A .1807 AFFILIATION WITH RESIDENT BROKER (a) No person licensed under this Section shall enter North Carolina to perform any act or service for which licensure as a real broker or salesperson is required unless he or she has first entered into a brokerage cooperation agreement and declaration of affiliation with an individual who is a resident in North Carolina licensed as a North Carolina real estate broker. (b) A brokerage cooperation agreement as contemplated by this Rule shall be in writing and signed by the resident North Carolina broker and the non-resident commercial licensee. It shall contain: PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1153 (1) the material terms of the agreement between the signatory licenses; (2) a description of the agency relationships, if any, which are created by the agreement among the nonresident commercial licensee, the resident North Carolina broker, and the parties each represents; (3) a description of the property or the identity of the parties and other information sufficient to identify the transaction which is the subject of the affiliation agreement; and (4) a definite expiration date. (c) A declaration of affiliation shall be written and on the form prescribed by the Commission and shall identify the nonresident commercial licensee and the affiliated resident North Carolina licensee. It shall also contain a description of the duties and obligations of each as required by the North Carolina Real Estate License Law and rules duly adopted by the Commission. The declaration of affiliation may be a part of the brokerage cooperation agreement or separate from it. (d) A nonresident commercial licensee may affiliate with more than one resident North Carolina broker at any time. However, a nonresident commercial licensee may be affiliated with only one resident North Carolina broker in a single transaction. (e) A resident North Carolina broker who enters into a brokerage cooperation agreement and declaration of affiliation with a nonresident commercial licensee shall: (1) verify that the nonresident commercial licensee is licensed in North Carolina; (2) actively and personally supervise the nonresident commercial licensee in a manner which reasonably insures that the nonresident commercial licensee complies with the North Carolina Real Estate License Law and rules adopted by the Commission; and (3) promptly notify the Commission if the nonresident commercial licensee violates the Real Estate License Law or rules adopted by the Commission; and (4) insure that records are retained in accordance with the requirements of the Real Estate License Law and rules adopted by the Commission. Commission; and (5) maintain his or her license on active status continuously for the duration of the brokerage cooperation agreement and the declaration of affiliation. (f) The nonresident commercial licensee and the affiliated resident North Carolina broker shall each retain in his or her records a copy of brokerage cooperation agreements and declarations of affiliation from the time of their creation and for at least three years following their expiration. Such records shall be made available for inspection and reproduction by the Commission or its authorized representatives without prior notice. Authority G.S. 93A-4; 93A-9. SUBCHAPTER 58C - REAL ESTATE PRELICENSING EDUCATION SECTION .0200 - PRIVATE REAL ESTATE SCHOOLS 21 NCAC 58C .0205 ADDITIONAL COURSE OFFERINGS A school that is also a Commission-approved sponsor of continuing education courses under Section .0100 or Section .0300 of Subchapter 58E may offer such continuing education courses in accordance with Commission rules governing such courses and sponsors. Schools may also offer courses in addition to those described in Section .0300 of this Subchapter or Sections .0100 and .0300 of Subchapter 58E provided that references to such courses are not made or published in a manner which implies that such courses are sanctioned by the Commission. However, if licensure as a private business or trade school under G.S. 115D-90 is required in order for the school to offer such additional courses, courses that are not approved by the Commission, then the school must obtain such license prior to offering such additional courses. Authority G.S. 93A-4(a),(d); 93A-33. 21 NCAC 58C .0207 FACILITIES AND EQUIPMENT (a) All school facilities and equipment shall be in compliance with all applicable local, state and federal laws and regulations regarding safety, health, safety and sanitation, welfare, including the Americans with Disabilities Act and other laws relating to accessibility standards for places of public accommodation. Schools shall furnish the Commission with inspection reports from appropriate local building, health and fire inspectors upon request of the Commission. (b) Classrooms shall be of sufficient size to accommodate comfortably all students enrolled in a course, shall have adequate light, heat, cooling and ventilation and shall be free of distractions which would disrupt class sessions. (c) Classrooms shall contain, at a minimum, an overhead projector and student desks or worktables sufficient to accommodate all students enrolled in a course. Authority G.S. 93A-4(a),(d); 93A-33. SECTION .0600 – PRE-LICENSING INSTRUCTORS 21 NCAC 58C .0603 APPLICATION AND CRITERIA FOR ORIGINAL APPROVAL (a) An individual seeking original approval as a pre-licensing course instructor shall make application on a form provided by the Commission. An applicant who is not a resident of North Carolina shall also file with the application a consent to service of process and pleadings. No application fee shall
Object Description
Description
Title | North Carolina register |
Date | 2005-01-18 |
Description | Volume 19. Issue 14, (January 18, 2005) |
Digital Characteristics-A | 635 KB; 70 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 14 Pages 1130 - 1195 January 18, 2005 This issue contains documents officially filed through December 22, 2004. 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 Summary of Notice of Intent to Redevelop .............1130 A Brownfields Property, Southeast Gateway Ventures, LLC Summary of Notice of Intent to Redevelop .............1131 A Brownfields Property, Blue Devil Ventures, LLC Narrow Therapeutic Index Drugs Designated by.....1132 The NC Secretary of Human Resources II. PROPOSED RULES Agriculture & Consumer Services Board of Agriculture ............................................1133 - 1134 Environment and Natural Resources Wildlife Resources Commission ..........................1134 - 1143 Licensing Boards Pharmacy, Board of..............................................1143 Real Estate Commission.......................................1143 - 1157 State Personnel State Personnel Commission ................................1157 - 1158 III. TEMPORARY RULES Health and Human Services Commission for Health Services ..........................1171 - 1174 Division of Facility Services ................................1159 - 1171 Justice Criminal Justice Education & Training ...............1174 - 1175 Standards Commission Licensing Boards Medical Board......................................................1175 - 1177 IV. RULES REVIEW COMMISSION.......................1178 - 1186 V. CONTESTED CASE DECISIONS Index to ALJ Decisions............................................1187 - 1192 Text of Selected Decisions 04 EHR 0996........................................................1193 - 1195 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 19:14 NORTH CAROLINA REGISTER January 18, 2005 1130 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. SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY Southeast Gateway Ventures, LLC Pursuant to N.C.G.S. § 130A-310.34, Southeast Gateway Ventures, 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 Forsyth County, North Carolina. The Property consists of 46.45 acres and is located at 1100, 1122 and 1315 S. Main Street, 1019, 1116 and 1100 S. Marshall Street, 24 and 30 W. Salem Avenue, 212 Stafford Street, and 1198, 1405 and 1480 S. Broad Street. Environmental contamination exists on the Property in soil, groundwater and surface water. Southeast Gateway Ventures, LLC has committed itself to make no use of the Brownfields Property other than for a mixed-use development featuring commercial, residential, institutional, recreational and open space uses with associated impervious surface parking areas; impose various land use restrictions; and: 1) remediate underground storage tank ("UST") contamination at 1100 S. Main Street, 1100 South Marshall Street and 30 West Salem Street under the oversight of DENR's UST Section; and 2) to the extent DENR requires, cover with clean fill or conduct additional soil sampling in areas of the Property lacking impervious ground cover and proposed for benches, picnic tables, recreation and sports sites, and other gathering sites. Additional soil sampling shall also be conducted in the areas ultimately proposed for outdoor playgrounds and athletic/recreational fields at the site of the school planned for 1480 S. Broad Street. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and Southeast Gateway Ventures, 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 North Carolina Room of the Forsyth County Central Library, 660 West Fifth Street, Winston-Salem, NC 27101 by contacting Jerry Carroll at (336) 727-2264 ext. 9; or at 401 Oberlin Rd., Raleigh, NC 27605 (where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents) by contacting Shirley Liggins at that address, at shirley.liggins@ncmail.net, or at (919) 733-2801, ext. 336. 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. 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 19:14 NORTH CAROLINA REGISTER January 18, 2005 1131 SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY Blue Devil Ventures, LLC Pursuant to N.C.G.S. § 130A-310.34, Blue Devil Ventures, LLC has filed with the North Carolina Department of Environment and Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Durham, Durham County, North Carolina. The Property consists of 9.13 acres and is located at 601, 605, 700, 701 & 710 West Main Street, and 605 & 609 West Morgan Street. Blue Devil Ventures, LLC has committed itself to mixed residential and commercial redevelopment of the Property. The property is bounded to the north by West Morgan Street, across which is the first phase of Blue Devil Ventures, LLC's West Village project, completed in 2000 from other historic Liggett Group structures and consisting of mixed commercial/residential properties. To the south of the Property lie Southern Railroad Company tracks; to the east a parking lot also owned by West Village and tracks of the Norfolk & Western Railway Company; and to the west South Duke Street, across which lies commercial properties, including Brightleaf Square. The status of on-site environmental contamination will be known after Blue Devil Ventures, LLC purchases the Property, which is expected to occur if and when the Brownfields Agreement associated with this project goes into effect, and samples its groundwater and soil to DENR's satisfaction. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed provisional Brownfields Agreement between DENR and Blue Devil Ventures, LLC which in turn includes (a) a map showing the location of the Property, (b) the above-stated description of the intended future use of the Property, and (c) proposed investigation and remediation; and (2) a proposed provisional 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 reference section at the main location of the Durham County Public Library, 300 N. Roxboro St, Durham, NC 27701, telephone number (919) 560-0100, or by contacting Jennifer Malloy at the Durham Public Library's Administration offices, telephone number (919) 560-0163; 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. Written requests for a public meeting may be submitted to DENR within 30 days after the period for written public comments begins. 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 If Blue Devil Ventures, LLC samples the Property to DENR's satisfaction and a superseding Brownfields Agreement and Notice of Brownfields Property are agreed upon, another Notice of Intent to Redevelop a Brownfields Property will be filed and another Summary of Notice of Intent to Redevelop a Brownfields Property published, followed by an additional public comment period. Though the unsampled state of the Property prevents the current Notice of Intent to Redevelop a Brownfields Property from including an element required by N.C.G.S. § 130A-310.34 (a), i.e., a description of the contaminants involved and their concentrations in the media of the Property, any superseding Brownfields Agreement and Notice of Brownfields Property agreed upon will include that element and may modify the remediation to be performed by Blue Devil Ventures, LLC. IN ADDITION 19:14 NORTH CAROLINA REGISTER January 18, 2005 1132 NARROW THERAPEUTIC INDEX DRUGS DESIGNATED BY THE NORTH CAROLINA SECRETARY OF HUMAN RESOURCES Pursuant to N.C.G.S. G.S. 90-85.27(4a), this is a revised publication from the North Carolina Board of Pharmacy of narrow therapeutic index drugs designated by the North Carolina Secretary of Human Resources upon the advice of the State Health Director, North Carolina Board of Pharmacy, and North Carolina Medical Board: Carbamazepine: all oral dosage forms Cyclosporine: all oral dosage forms Digoxin: all oral dosage forms Ethosuximide Levothyroxine sodium tablets Lithium (including all salts): all oral dosage forms Phenytoin (including all salts): all oral dosage forms Procainamide Theophylline (including all salts): all oral dosage forms Warfarin sodium tablets PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1133 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 & CONSUMER SERVICES Notice is hereby given in accordance with G.S. 150B-21.2 that the Board of Agriculture intends to amend the rules cited as 02 NCAC 52A .0111; 52D .0101. Proposed Effective Date: June 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 February 2, 2005, to David S. McLeod, Secretary, NC Board of Agriculture, 1001 Mail Service Center, Raleigh, NC 27699-1001. Reason for Proposed Action: 02 NCAC 52A .0111 – To delete incorporation by reference of obsolete program for eradication of pseudorabies and to adopt current Federal program. 02 NCAC 52D .0101 – To update adoption by reference of Federal standards for the meat and poultry inspection program. 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 objections(s) to David S. McLeod, Secretary, NC Board of Agriculture, 1001 Mail Service Center, Raleigh, NC 27699-1001. Written comments may be submitted to: David S. McLeod, Secretary, NC Board of Agriculture, 1001 Mail Service Center, Raleigh, NC 27699-1001, phone (919)733-7125 – x249, fax (919)716-0105, email david.mcleod@ncmail.net. Comment period ends: March 21, 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 52 - VETERINARY DIVISION SUBCHAPTER 52A - RULES AND REGULATIONS ADOPTED BY REFERENCE SECTION .0100 - ADOPTIONS BY REFERENCE 02 NCAC 52A .0111 PSEUDORABIES PROGRAM The North Carolina Pseudorabies Program, as promulgated by the Swine Diseases Committee, is hereby adopted by reference in accordance with G.S. 150B-14(c). The document entitled Pseudorabies Eradication Program Standards, published by the United States Department of Agriculture, is incorporated by reference, including subsequent amendments and editions. Copies of this document may be obtained from the website of the United States Department of Agriculture at http://www.aphis.usda.gov/vs/nahps/pseudorabies/prv-prgm-std. pdf. Authority G.S. 106-307.3 through 106-307.5. SUBCHAPTER 52D - MEAT AND POULTRY INSPECTION SECTION .0100 - STANDARDS: OFFICIAL MARK 02 NCAC 52D .0101 CERTAIN STANDARDS ADOPTED: EXCEPTIONS The Rules, Regulations, Definitions and Standards of the United States Department of Agriculture governing meat and meat products inspection, poultry products inspection, voluntary inspection of poultry and humane methods for slaughtering animals, Subchapters A, B, C, and D, Title 9, Part 301 et. seq., Code of Federal Regulations, Parts 300 through 500, are hereby incorporated by reference, including subsequent amendments and editions, subject to the following exceptions: (1) Conformity of Federal Regulations to North Carolina Authority is Assumed. To conform federal regulations to North Carolina Authority, authority, references in the federal regulations to the "Secretary of Agriculture," the "United States Department of Agriculture," the "Food Safety and Inspection Service," its "Administrator" and "Officer in Charge" shall be deemed to refer to the corresponding North PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1134 Carolina authority, the "Commissioner of Agriculture," the "North Carolina Department of Agriculture and Consumer Services," the "Meat and Poultry Inspection Service" and its "Director for Meat and Poultry Inspection Service" and the "Area Supervisors." Supervisors," respectively. References to "interstate commerce" shall be deemed to refer to "intrastate commerce" within North Carolina. (2) Statutory references to the "Federal Meat Inspection Act" shall be deemed to refer to the corresponding provisions of the "North Carolina Meat Inspection Law," Article 49B and Article 49C of Chapter 106 of the North Carolina General Statutes. (3) Statutory references to the "Federal Poultry Products Inspection Act" shall be deemed to refer to the corresponding provisions of the "North Carolina Poultry Products Inspection Act," Article 49D of G.S. 106. (4) References to federal marks of inspection, forms, overtime rates and charges shall be deemed to refer to the corresponding North Carolina marks of inspection, forms, and overtime rates and charges. These rates are established by the Commissioner pursuant to G.S. 106-549.69 to cover the cost of providing the service. Standards of the Federal Food, Drug and Cosmetic Act incorporated in the federal regulations are applicable to these articles. Copies of the above are available for inspection in the Office office of the Director of the State Meat and Poultry Inspection Service and may be obtained at a cost of one hundred and eighteen dollars ($118.00) per copy by contacting the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. no cost from the United States Government Printing Office website at http://www.access.gpo.gov/nara/cfr/waisidx_04/9cfrv2_04.html #301. Authority G.S. 106-549.21; 106-549.22; 106-549.28. TITLE 15A – DEPARTMENT OF ENVIRONMENT & NATURAL RESOURCES Notice is hereby given in accordance with G.S. 150B-21.2 that the Wildlife Resources Commission intends to amend the rule cited as 15A NCAC 10D .0103. Proposed Effective Date: July 1, 2005 Public Hearing: Date: February 3, 2005 Time: 7:00 p.m. Location: Courthouse, 100 S. Wright Street, Burgaw, NC Reason for Proposed Action: The proposed amendment would make all deer and bear hunting north of the Bear Garden Road, on Holly Shelter Game Land by permit only. Procedure by which a person can object to the agency on a proposed rule: Persons may object by writing to Dr. David Cobb, 1701 Mail Service Center, Raleigh, NC 27699-1701. Written comments may be submitted to: Joan Troy, 1701 Mail Service Center, Raleigh, NC 27699-1701 Comment period ends: March 26, 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 10 - WILDLIFE RESOURCES AND WATER SAFETY SUBCHAPTER 10D - GAME LANDS REGULATIONS SECTION .0100 - GAME LANDS REGULATIONS 15A NCAC 10D .0103 HUNTING ON GAME LANDS (a) Safety Requirements. No person while hunting on any designated game land shall be under the influence of alcohol or any narcotic drug, or fail to comply with special restrictions enacted by the National Park Service regarding the use of the Blue Ridge Parkway where it adjoins game lands listed in this Rule. (b) Traffic Requirements. No person shall park a vehicle on game lands in such a manner as to block traffic, gates or otherwise prevent vehicles from using any roadway. (c) Tree Stands. It is unlawful to erect or to occupy, for the purpose of hunting, any tree stand or platform attached by nails, screws, bolts or wire to a tree on any game land designated herein. This prohibition shall not apply to lag-screw steps or PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1135 portable stands that are removed after use with no metal left remaining in or attached to the tree. (d) Time and Manner of Taking. Except where closed to hunting or limited to specific dates by this Chapter, hunting on game lands is permitted during the open season for the game or furbearing species being hunted. On managed waterfowl impoundments, hunters shall not enter the posted impoundment areas earlier than 4:00 a.m. on the permitted hunting dates, and hunting is prohibited after 1:00 p.m. on such hunting dates; decoys shall not be set out prior to 4:00 a.m. and must be removed by 3:00 p.m. each day. No person shall operate any vessel or vehicle powered by an internal combustion engine on a managed waterfowl impoundment. No person shall attempt to obscure the sex or age of any bird or animal taken by severing the head or any other part thereof, or possess any bird or animal which has been so mutilated. No person shall place, or cause to be placed on any game land, salt, grain, fruit, or other foods without prior written authorization of the commission or its agent. A decision to grant or deny authorization shall be made based on the best management practices for the wildlife species in question. No person shall take or attempt to take any game birds or game animals attracted to such foods. No live wild animals or wild birds shall be removed from any game land. (e) Definitions: (1) For purposes of this Section "Eastern" season refers to seasons set for those counties or parts of counties listed in 15A NCAC 10B .0203(b)(1)(A); "Central" season refers to seasons set for those counties or parts of counties listed in 15A NCAC 10B .0203(b)(1)(D); "Northwestern" season refers to seasons set for those counties or parts of counties listed in 15A NCAC 10B .0203(b)(1)(B); "Western" season refers to seasons set for those counties or parts of counties listed in 15A NCAC 10B .0203(b)(1)(C). (2) For purposes of this Section, "Dove Only Area" refers to a Game Land on which doves may be taken and dove hunting is limited to Mondays, Wednesdays, Saturdays and to Thanksgiving, Christmas and New Year's Days within the federally-announced season. (3) For purposes of this Section, "Three Days per Week Area" refers to a Game Land on which any game may be taken during the open seasons and hunting is limited to Mondays, Wednesdays, Saturdays and Thanksgiving, Christmas and New Year's Days. These "open days" also apply to either-sex hunting seasons listed under each game land. Raccoon and opossum hunting may continue until 7:00 a.m. on Tuesdays, until 7:00 a.m. on Thursdays, and until midnight on Saturdays. (4) For purposes of this Section, "Six Days per Week Area" refers to a Game Land on which any game may be taken during the open seasons, except that: (A) Bears shall not be taken on lands designated and posted as bear sanctuaries; (B) Wild boar shall not be taken with the use of dogs on such bear sanctuaries, and wild boar may be hunted only during the bow and arrow seasons, the muzzle-loading deer season and the regular gun season on deer on bear sanctuaries; (C) On game lands open to deer hunting located in or west of the counties of Rockingham, Guilford, Randolph, Montgomery and Anson, the following rules apply to the use of dogs during the regular season for hunting deer with guns: (i) Except for the counties of Cherokee, Clay, Graham, Jackson, Macon, Madison, Polk, and Swain, game birds may be hunted with dogs. (ii) In the counties of Cherokee, Clay, Graham, Jackson, Macon, Madison, Polk, and Swain, small game in season may be hunted with dogs on all game lands except on bear sanctuaries. (iii) Additionally, raccoon and opossum may be hunted when in season on Uwharrie Game Lands; (D) On bear sanctuaries in and west of Madison, Buncombe, Henderson and Polk counties dogs shall not be trained or allowed to run unleashed between March 1 and the Monday on or nearest October 15. (f) The listed seasons and restrictions apply in the following game lands: (1) Alcoa Game Land in Davidson, Davie, Montgomery, Rowan and Stanly counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season in that portion in Montgomery county and deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season in those portions in Davie, Davidson, Rowan and Stanly counties. (2) Alligator River Game Land in Tyrrell County (A) Six Day per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1136 (C) Bear may only be taken the first three hunting days during the November Bear Season and the first three hunting days during the second week of the December Bear Season. (3) Angola Bay Game Land in Duplin and Pender counties (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (4) Bachlelor Bay Game Land in Bertie and Washington counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (5) Bertie County Game Land in Bertie County (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (6) Bladen Lakes State Forest Game Land in Bladen County (A) Three Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. Deer of either sex may also be taken the Saturday preceding Eastern bow season with bow and arrow and the Friday preceding the Eastern muzzle-loading season with any legal weapon (with weapons exceptions described in this Paragraph) by participants in the Disabled Sportsman Program. (C) Handguns shall not be carried and, except for muzzle-loaders, rifles larger than .22 caliber rimfire shall not be used or possessed. (D) On the Singletary Lake Tract deer and bear may be taken only by still hunting. (E) Wild turkey hunting on the Singletary Lake Tract is by permit only. (F) Camping is restricted to Sep. 1-Feb 28 and April 7- May 14 in areas both designated and posted as camping areas. (7) Broad River Game Land in Cleveland County. (A) Three Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer with Visible Antlers Season. (C) Use of centerfire rifles is prohibited. (8) Brunswick County Game Land in Brunswick County: Permit Only Area (9) Buckridge Game Land in Tyrrell County. (A) Three Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) Bear may only be taken the first three hunting days during the November Bear Season and the first three hunting days of the second week of the December Bear Season. (10) Bullard and Branch Hunting Preserve Game Lands in Robeson County (A) Three Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (11) Butner - Falls of Neuse Game Land in Durham, Granville and Wake counties (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (C) Waterfowl may be taken only on Tuesdays, Thursdays and Saturdays; Christmas and New Year's Days, and on the opening and closing days of the applicable waterfowl seasons. Waterfowl shall not be taken after 1:00 p.m. On the posted waterfowl impoundments a special permit is required for all waterfowl hunting after November 1. (D) Horseback riding, including all equine species, is prohibited. (E) Target shooting is prohibited (F) Wild turkey hunting is by permit only. (12) Cape Fear Game Land in Pender County (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) Turkey Hunting is by permit only on that portion known as the Roan Island Tract. (13) Caswell Game Land in Caswell County (A) Three Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. Deer of either sex may also be taken the Friday preceding the Central muzzle-loading season by participants in the Disabled Sportsman Program. (C) Horseback riding is allowed only during June, July, and August and on Sundays during the remainder of the year except during open turkey and PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1137 deer seasons. Horseback riding is allowed only on roads opened to vehicular traffic. Participants must obtain a game lands license prior to engaging in such activity. (D) Bearded or beardless turkeys may be taken from the Monday on or nearest to January 15 through the following Saturday by permit only. (E) The area encompassed by the following roads is closed to all quail and woodcock hunting and all bird dog training: From Yanceyville south on NC 62 to the intersection of SR 1746, west on SR1746 to the intersection of SR 1156, south on SR 1156 to the intersection of SR 1783, east on SR 1783 to the intersection of NC 62, north on NC62 to the intersection of SR 1736, east on SR 1736 to the intersection of SR 1730, east on SR 1730 to NC 86, north on NC 86 to NC 62. (14) Caswell Farm Game Land in Lenoir County- Dove-Only Area (A) Dove hunting is by permit only from opening day through either the first Saturday or Labor Day which ever comes last of the first segment of dove season. (15) Catawba Game Land in Catawba County (A) Three Days per Week Area (B) Deer of either sex may be taken the last open day of the applicable Deer With Visible Antlers Season. (C) Deer may be taken with bow and arrow only from the tract known as Molly's Backbone. (16) Chatham Game Land in Chatham and Harnett counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) Wild turkey hunting is by permit only. (D) Horseback riding, including all equine species, is allowed only during June, July, and August and on Sundays during the remainder of the year except during open turkey and deer seasons. (17) Cherokee Game Land in Ashe County (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (18) Chowan Game Land in Chowan County (A) Six Days per Week Area (B) Deer of either sex may be taken all the days of the applicable Deer With Visible Antlers Season. (19) Chowan Swamp Game Land in Gates County (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (20) Cold Mountain Game Land in Haywood County (A) Six Days per Week Area (B) Horseback riding is prohibited except on designated trails May 16 through August 31 and all horseback riding is prohibited from September 1 through May 15. This Rule includes all equine species. (21) Columbus County Game Land in Columbus County. (A) Three Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (22) Croatan Game Land in Carteret, Craven and Jones counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) Waterfowl may be taken only on Mondays, Wednesdays, Saturdays; on Thanksgiving, Christmas and New Year's Days; and on the opening and closing days of the applicable waterfowl seasons. (23) Currituck Banks Game Land in Currituck County (A) Six Days per Week Area (B) Permanent waterfowl blinds in Currituck Sound on these game lands shall be hunted by permit only after November 1. (C) Licensed hunting guides may accompany the permitted individual or party provided the guides do not possess or use a firearm. (D) The boundary of the Game Land shall extend 5 yards from the edge of the marsh or shoreline. (E) Dogs shall be allowed only for waterfowl hunting by permitted waterfowl hunters on the day of their hunt. (F) No screws, nails, or other objects penetrating the bark shall be used to attach a tree stand or blind to a tree. (24) Dare Game Land in Dare County PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1138 (A) Six Days per Week Area (B) Deer of either sex may be taken the last day of the Deer With Visible Antlers Season. (C) No hunting on posted parts of bombing range. (D) The use and training of dogs is prohibited from March 1 through June 30. (25) Dupont State Forest Game Lands in Henderson and Transylvania counties (A) Hunting is by Permit only. (B) The training and use of dogs for hunting except during scheduled small game permit hunts for squirrel, grouse, rabbit, or quail is prohibited. (C) Participants of the Disabled Sportsman Program may also take deer of either sex with any legal weapon on the Saturday prior to the first segment of the Western bow and arrow season. (26) Dysartsville Game Land in McDowell and Rutherford counties (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (27) Elk Knob Game Land in Ashe and Watauga counties (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (28) Goose Creek Game Land in Beaufort and Pamlico counties (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) On posted waterfowl impoundments waterfowl may be taken only on Mondays, Wednesdays, Saturdays; on Thanksgiving, Christmas and New Year's Days; and on the opening and closing days of the duck hunting seasons. After November 1, on the Pamlico Point, Campbell Creek, Hunting Creek and Spring Creek impoundments, a special permit is required for hunting on opening and closing days of the duck seasons, Saturdays of the duck seasons, and on Thanksgiving and New Year's Day. (D) Camping is restricted to Sep. 1-Feb 28 and April 7- May 14 in areas both designated and posted as camping areas. (29) Green River Game Land in Henderson, and Polk counties (A) Six Days per Week Area (B) Deer of either sex may be taken the last open day of the applicable Deer With Visible Antlers Season. (C) Horseback riding is prohibited except on designated trails May 16 through- August 31 and all horseback riding is prohibited from September 1 through May 15. This rule includes all equine species. (30) Green Swamp Game Land in Brunswick County (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (31) Gull Rock Game Land in Hyde County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) On the posted waterfowl impoundments of Gull Rock Game Land hunting of any species of wildlife is limited to Mondays, Wednesdays, Saturdays; Thanksgiving, Christmas, and New Year's Days; and the opening and closing days of the applicable waterfowl seasons. (D) Camping is restricted to Sep. 1-Feb 28 and April 7- May 14 in areas both designated and posted as camping areas. (F) Bear may only be taken the first three hunting days during the November Bear Season and the first three hunting days during the second week of the December Bear Season on the Long Shoal River Tract of Gull Rock Game Land. (32) Holly Shelter Game Land in Pender County (A) Three Days per Week Area Area, except that the area of Holly Shelter Game Land, east of the Shaw Highway, south of NC Hwy 53, west of NC Hwy 50 and north of the Bear Garden Road, is open to gun deer hunting and bear hunting by Special Permit only. (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. Deer of either sex may also be taken the Friday preceding the Eastern muzzle-loading season with any legal PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1139 weapon and the Saturday preceding Eastern bow season with bow and arrow by participants in the Disabled Sportsman Program (C) Waterfowl may be taken on the opening and closing days of the applicable waterfowl seasons regardless of the day of the week on which they occur. (D) Camping is restricted to Sep. 1-Feb 28 and April 7- May 14 in areas both designated and posted as camping areas. (E) On that portion of Holly Shelter Game Land east of the Shaw Highway, south of NC Hwy 53, west of NC Hwy 50 and north of the Bear Garden road, gun deer hunting and bear hunting is by Special Permit only. (33) Hyco Game land in Person County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (34) J. Morgan Futch Game Land in Tyrrell County, Permit Only Area. (35) Jordan Game Land in Chatham, Durham, Orange and Wake counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) Waterfowl may be taken only on Mondays, Wednesdays, Saturdays; on Thanksgiving, Christmas and New Year's Days; and on the opening and closing days of the applicable waterfowl seasons. (D) Horseback riding, including all equine species, is prohibited except on those areas posted as American Tobacco Trail and other areas specifically posted for equestrian use. Unless otherwise posted, horseback riding is permitted on posted portions of the American Tobacco Trail anytime the trail is open for use. On all other trails posted for equestrian use, horseback riding is allowed only during June, July and August, and on Sundays the remainder of the year except during open turkey and deer seasons. (E) Target shooting is prohibited. (F) Wild turkey hunting is by permit only. (36) Lantern Acres Game Land in Tyrrell and Washington counties (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) Wild turkey hunting is by permit only. (37) Lee Game Land in Lee County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (38) Linwood Game Land in Davidson County (A) Six Days per Week Area (B) Deer of either sex may be taken on all of the open days of the applicable Deer With Visible Antlers Season. (39) Mayo Game Land in Person County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) Waterfowl may be taken only on Tuesdays, Thursdays and Saturdays; Christmas and New Year's Days, and on the opening and closing days of the applicable waterfowl seasons. (40) Mitchell River Game Land in Surry County (A) Three Days per Week Area (B) Deer of either sex may be taken the last six days of the applicable Deer with Visible Antlers Season. (C) Horseback riding, including all equine species, is prohibited except on designated trails May 16 through August 31 and all horseback riding is prohibited from September 1 through May 15. (41) Nantahala Game Land in Cherokee, Clay, Graham, Jackson, Macon, Swain and Transylvania counties (A) Six Days per Week Area (B) Deer of either sex may be taken the last open day of the applicable Deer With Visible Antlers Season in that portion located in Transylvania County. (C) Raccoon and opossum may be hunted only from sunset Friday until sunrise on Saturday and from sunset until 12:00 midnight on Saturday on Fires Creek Bear Sanctuary in Clay County and in that part of Cherokee County north of US 64 and NC 294, east of Persimmon Creek and Hiwassee Lake, south of Hiwassee Lake and PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1140 west of Nottely River; in the same part of Cherokee County dog training is prohibited from March 1 to the Monday on or nearest October 15. (42) Neuse River Game Land in Craven County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (43) New Lake Game Land in Hyde County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (44) North River Game Land in Currituck and Camden counties (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season except in that part in Camden County south of US 158 where the season is the last six open days of the applicable Deer With Visible Antlers Season. (C) The boundary of the Game Land shall extend five yards from the edge of the marsh or shoreline. (D) Wild turkey hunting is by permit only on that portion in Camden County. (45) Northwest River Marsh Game Land in Currituck County (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) The boundary of the Game Land shall extend five yards from the edge of the marsh or shoreline. (46) Pee Dee River Game Land in Anson, Montgomery, Richmond and Stanly counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) Use of centerfire rifles prohibited in that portion in Anson and Richmond counties North of US-74. (47) Perkins Game Land in Davie County (A) Three Days per Week Area (B) Deer of either sex may be taken the last open day of the applicable Deer With Visible Antlers Season. (48) Pisgah Game Land in Avery, Buncombe, Burke, Caldwell, Haywood, Henderson, Madison, McDowell, Mitchell, Transylvania, Watauga and Yancey counties (A) Six Days per Week Area (B) Deer of either sex may be taken the last open day of the applicable Deer With Visible Antlers Season except on that portion in Avery and Yancey counties and that portion in Haywood County encompassed by US 276 on the north, US 74 on the west, and the Blue Ridge Parkway on the south and east. (C) Harmon Den and Sherwood Bear Sanctuaries in Haywood County are closed to hunting raccoon, opossum and wildcat. Training raccoon and opossum dogs is prohibited from March 1 to the Monday on or nearest October 15 in that part of Madison County north of the French Broad River, south of US 25-70 and west of SR 1319. (49) Pungo River Game Land in Hyde County (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (50) Roanoke River Wetlands in Bertie, Halifax and Martin counties (A) Hunting is by Permit only. (B) Vehicles are prohibited on roads or trails except those operated on official Commission business or by permit holders. (C) Camping is restricted to Sep. 1-Feb 28 and April 7- May 14 in areas both designated and posted as camping areas. (51) Roanoke Sound Marshes Game Land in Dare County-Hunting is by permit only. (52) Robeson Game Land in Robeson County (A) Three Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (53) Sampson Game Land in Sampson County (A) Three Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (54) Sandhills Game Land in Hoke, Moore, Richmond and Scotland counties (A) Three Days per Week Area (B) The Deer With Visible Antlers season for deer consists of the open hunting days from the second Saturday before Thanksgiving through the third Saturday after Thanksgiving except on the field trial grounds where the gun season is open days from the PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1141 second Monday before Thanksgiving through the Saturday following Thanksgiving. Deer may be taken with bow and arrow on all open hunting days during the bow and arrow season, as well as during the regular gun season. Deer may be taken with muzzle-loading firearms on open days beginning the third Saturday before Thanksgiving through the following Wednesday, and during the Deer With Visible Antlers season. (C) Gun either-sex deer hunting is by permit only. For participants in the Disabled Sportsman Program, either-sex deer hunting with any legal weapon is permitted on all areas the Thursday and Friday prior to the muzzle-loading season described in the preceding paragraph. Except for the deer, opossum, rabbit, and raccoon seasons specifically indicated for the field trial grounds in this Rule and Disabled Sportsman Program hunts, the field trial grounds are closed to all hunting during the period October 22 to March 31. (D) In addition to the regular hunting days, waterfowl may be taken on the opening and closing days of the applicable waterfowl seasons (E) Wild turkey hunting is by permit only. (F) Dove hunting on the field trial grounds will be prohibited from the second Sunday in September through the remainder of the hunting season. (G) Opossum and raccoon hunting on the field trial grounds will be allowed on open days from the second Monday before Thanksgiving through the Saturday following Thanksgiving and rabbit season on the field trial grounds will be from the Saturday preceding Thanksgiving through the Saturday following Thanksgiving. (H) The following areas are closed to all quail and woodcock hunting and dog training on birds: In Richmond County: that part east of US 1; In Scotland County: that part east of east of SR 1001 and west of US 15/501. (I) Horseback riding on field trial grounds from October 22 through March 31 shall be prohibited except by participants in authorized field trials. (55) Scuppernong Game Land in Tyrrell and Washington counties (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (56) Shearon Harris Game Land in Chatham and Wake counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (C) Waterfowl may be taken only on Tuesdays, Fridays, Saturdays; on Thanksgiving, Christmas and New Year's Days; and on the opening and closing days of the applicable waterfowl seasons. (D) The use or construction of permanent hunting blinds is prohibited. (E) Wild turkey hunting is by permit only. (57) Shocco Creek Game Land in Franklin and Warren counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last six open days of the applicable Deer With Visible Antlers Season. (58) South Mountains Game Land in Burke, Cleveland, McDowell and Rutherford counties (A) Six Days per Week Area (B) The Deer With Visible Antlers season for deer consists of the open hunting days from the Monday before Thanksgiving through the third Saturday after Thanksgiving. (C) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (D) Horseback riding is prohibited except on designated trails May 16 through August 31 and all horseback riding is prohibited from September 1 through May 15. This Rule includes all equine species. (E) That part of South Mountains Game Land in Cleveland, McDowell, and Rutherford counties is closed to all grouse, quail and woodcock hunting and all bird dog training. (59) Stones Creek Game Land in Onslow County (A) Six Day Per Week Area (B) Swimming lakes is prohibited. (60) Suggs Mill Pond Game Land in Bladen County; (A) Hunting is by Permit only. PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1142 (B) Camping is restricted to Sep. 1-Feb 28 and April 7- May 14 in areas both designated and posted as camping areas. (61) Sutton Lake Game Land in New Hanover County (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (62) Three Top Mountain Game Land in Ashe County (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. (C) Horseback riding is prohibited except on designated trails May 16 through August 31 and all horseback riding is prohibited from September 1 through May 15. This Rule includes all equine species. (63) Thurmond Chatham Game Land in Wilkes County (A) Six Days per Week Area (B) Deer of either sex may be taken the last six open days of the applicable Deer With Visible Antlers Season. Participants of the Disabled Sportsman Program may also take either-sex deer with bow and arrow on the Saturday prior to Northwestern bow and arrow season. (C) Horseback riding is prohibited except on designated trails May 16 through August 31 and all horseback riding is prohibited from September 1 through May 15. This Rule includes all equine species. Participants must obtain a game lands license prior to horseback riding on this area. (64) Toxaway Game Land in Transylvania County (A) Six Days per Week Area (B) Deer of either sex may be taken the last open day of the applicable Deer With Visible Antlers Season. Participants of the Disabled Sportsman Program may also take deer of either sex with any legal weapon on the Saturday prior to the first segment of the Western bow and arrow season. (C) Horseback riding is prohibited except on designated trails May 16 through August 31 and all horseback riding is prohibited from September 1 through May 15. This Rule includes all equine species. (65) Uwharrie Game Land in Davidson, Montgomery and Randolph counties (A) Six Days per Week Area (B) Deer of either sex may be taken the first six open days and the last open six days of the applicable Deer With Visible Antlers Season. (66) Vance Game Land in Vance County (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) The use of dogs, centerfire rifles and handguns for hunting deer is prohibited on the Nutbush Peninsula tract. (67) Van Swamp Game Land in Beaufort and Washington counties (A) Six Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (68) White Oak River Impoundment Game Land in Onslow County (A) Three Days per Week Area (B) Deer of either sex may be taken all the open days of the applicable Deer With Visible Antlers Season. (C) Waterfowl may be taken only on Mondays, Wednesdays, Saturdays; on Thanksgiving, Christmas and New Year's Days; and on the opening and closing days of the statewide waterfowl hunting seasons. After October 1, a special permit is required for hunting waterfowl on opening and closing days of the duck seasons, Saturdays of the duck seasons, and on Thanksgiving and New Year's day. (g) On permitted type hunts deer of either sex may be taken on the hunt dates indicated on the permit. Completed applications must be received by the Commission not later than the first day of September next preceding the dates of hunt. Permits shall be issued by random computer selection, shall be mailed to the permittees prior to the hunt, and shall be nontransferable. A hunter making a kill must validate the kill and report the kill to a wildlife cooperator agent or by phone. (h) The following game lands and refuges shall be closed to all hunting except to those individuals who have obtained a valid and current permit from the Wildlife Resources Commission: Bertie, Halifax and Martin counties--Roanoke River Wetlands Bertie County--Roanoke River National Wildlife Refuge Bladen County—Suggs Mill Pond Game Lands Burke County—John's River Waterfowl Refuge Dare County--Dare Game Lands (Those parts of bombing range posted against hunting) Dare County--Roanoke Sound Marshes Game Lands PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1143 Davie--Hunting Creek Swamp Waterfowl Refuge Gaston, Lincoln and Mecklenburg counties--Cowan's Ford Waterfowl Refuge Henderson and Transylvania counties--Dupont State Forest Game Lands Authority G.S. 113-134; 113-264; 113-291.2; 113-291.5; 113-305. TITLE 21 – OCCUPATIONAL LICENSING BOARDS CHAPTER 46 – NORTH CAROLINA BOARD OF PHARMACY Notice is hereby given in accordance with G.S. 150B-21.2 that the Board of Pharmacy intends to repeal the rule cited as 21 NCAC 46 .1508 with changes from the proposed text noticed in the Register, Volume 19, Issue 04. Proposed Effective Date: June 1, 2005 Reason for Proposed Action: To delete the rule setting out prerequisites for the disease state management examination because the Board no longer administers the examination. Procedure by which a person can object to the agency on a proposed rule: Persons may submit objections regarding the proposed rule change to David R. Work, NC Board of Pharmacy, 6015 Farrington Road, Suite 201, Chapel Hill, NC 27517. Written comments may be submitted to: David R. Work, NC Board of Pharmacy, 6015 Farrington Road, Suite 201, Chapel Hill, NC 27517. Comment period ends: March 21, 2005 Procedure for Subjecting a Proposed Rule to Legislative Review: Any person who objects to the adoption of a permanent rule may submit written comments to the agency. 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 6th business day preceding the end of the month in which a rule is approved. 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 SECTION .1500 - ADMISSION REQUIREMENTS: EXAMINATIONS 21 NCAC 46 .1508 PREREQUISITES FOR DISEASE STATE MANAGEMENT EXAMINATION In order to apply for the disease state management examination administered by the Board, a pharmacist must be a North Carolina licensed pharmacist. Authority G.S. 90-85.6; 90-85.34. * * * * * * * * * * * * * * * * * * * * TITLE 21 – OCCUPATIONAL LICENSING BOARDS CHAPTER 58 – REAL ESTATE COMMISSION Notice is hereby given in accordance with G.S. 150B-21.2 that the Real Estate Commission intends to amend the rules cited as 21 NCAC 58A .0101, .0104, .0106-.0107, .0109-.0110, .0502, .0504, .0506, .1702, .1807; 58C .0205, .0207, .0603-.0604, .0607-.0608; 58E .0302, .0310, .0406-.0407. Proposed Effective Date: July 1, 2005 Public Hearing: Date: February 9, 2005 Time: 10:00 a.m. Location: County Commissioner's Office, 301 West Market Street, Greensboro, NC Reason for Proposed Action: To clarify the current rules in light of suggestions from the public, licensees, and the Commission's staff. Procedure by which a person can object to the agency on a proposed rule: Any person who objects or who has comment about the proposed rule changes may submit written comments to rule-making coordinator Pamela Millward at the address listed below. Written comments may be submitted to: Pamela Millward, NCREC, 1313 Navaho Drive, Raleigh, NC 27609, phone (919)875-3700, fax (919)981-5023. Comment period ends: March 21, 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 PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1144 objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State Local Substantive (>$3,000,000) None SUBCHAPTER 58A - REAL ESTATE BROKERS AND SALESMEN SECTION .0100 - GENERAL BROKERAGE 21 NCAC 58A .0101 PROOF OF LICENSURE (a) The annual license renewal pocket card issued by the Commission to each licensee shall be retained by the licensee as evidence of licensure. Each licensee shall carry his or her pocket card on his or her person at all times while engaging in real estate brokerage and shall produce the card as proof of licensure whenever requested. (b) The principal qualifying broker of a firm shall retain the firm's renewal pocket card at the firm and shall produce it upon request as proof of firm licensure as required by Rule .0502. (c) Every licensed real estate business entity or firm shall prominently display its license certificate or facsimile thereof in each office maintained by the entity or firm. A broker-in-charge shall also prominently display his or her license certificate in the office where he or she is broker-in-charge. (d) Every licensee shall include his or her license number in agency contracts and disclosures as provided in Rule .0104 of this Section. Authority G.S. 93A-3(c). 21 NCAC 58A .0104 AGENCY AGREEMENTS AND DISCLOSURE (a) Every agreement for brokerage services in a real estate transaction and every agreement for services connected with the management of a property owners association shall be in writing. Every agreement for brokerage services between a broker and an owner of the property to be the subject of a transaction must be in writing from the time of its formation. Every agreement for brokerage services between a broker and a buyer or tenant shall be express and shall be reduced to writing not later than the time one of the parties makes an offer to purchase, sell, rent, lease, or exchange real estate to another. However, every agreement between a broker and a buyer or tenant which seeks to bind the buyer or tenant for a period of time or to restrict the buyer's or tenant's right to work with other agents or without an agent shall be in writing from its formation. A broker or salesperson shall not continue to represent a buyer or tenant without a written agreement when such agreement is required by this Rule. Every written agreement for brokerage services of any kind in a real estate transaction shall provide for its existence for a definite period of time time, shall include the licensee's license number, and shall provide for its termination without prior notice at the expiration of that period, except that an agency agreement between a landlord and broker to procure tenants or receive rents for the landlord's property may allow for automatic renewal so long as the landlord may terminate with notice at the end of any contract period and any subsequent renewals. For the purposes of this rule, an agreement between licensees to cooperate or share compensation shall not be considered an agreement for brokerage services and, except as required by Rule .1807 of this Subchapter, need not be memorialized in writing. (b) Every listing agreement, written buyer agency agreement or other written agreement for brokerage services in a real estate sales transaction shall contain the following provision: The broker shall conduct all his brokerage activities in regard to this agreement without respect to the race, color, religion, sex, national origin, handicap or familial status of any buyer, prospective buyer, seller or prospective seller. party or prospective party to the agreement. The provision shall be set forth in a clear and conspicuous manner which shall distinguish it from other provisions of the agreement. For the purposes of this Rule, the term, familial status, shall be defined as it is in G.S. 41A-3(1b). (c) In every real estate sales transaction, a broker or salesperson shall, at first substantial contact directly with a prospective buyer or seller, provide the prospective buyer or seller with a copy of the publication "Working with Real Estate Agents," set forth the broker or salesperson's name and license number thereon, review it the publication with him or her, the buyer or seller, and determine whether the agent will act as the agent of the buyer or seller in the transaction. If the first substantial contact with a prospective buyer or seller occurs by telephone or other electronic means of communication where it is not practical to provide the "Working with Real Estate Agents" publication, the broker or salesperson shall at the earliest opportunity thereafter, but in no event later than three days from the date of first substantial contact, mail or otherwise transmit a copy of the publication to the prospective buyer or seller and review it with him or her at the earliest practicable opportunity thereafter. For the purposes of this Rule, "first substantial contact" shall include contacts between a broker or salesperson and a consumer where the consumer or broker or salesperson begins to act as though an agency relationship exists and the consumer begins to disclose to the broker or salesperson personal or confidential information. (d) A real estate broker or salesperson representing one party in a transaction shall not undertake to represent another party in the transaction without the written authority of each party. Such written authority must be obtained upon the formation of the relationship except when a buyer or tenant is represented by a broker without a written agreement in conformity with the requirements of Paragraph (a) of this Rule. Under such circumstances, the written authority for dual agency must be reduced to writing not later than the time that one of the parties represented by the broker or salesperson makes an offer to purchase, sell, rent, lease, or exchange real estate to another party. (e) In every real estate sales transaction, a broker or salesperson working directly with a prospective buyer as a seller's agent or PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1145 subagent shall disclose in writing to the prospective buyer at the first substantial contact with the prospective buyer that the broker or salesperson represents the interests of the seller. The written disclosure shall include the broker or salesperson's license number. If the first substantial contact occurs by telephone or by means of other electronic communication where it is not practical to provide written disclosure, the broker or salesperson shall immediately disclose by similar means whom he represents and shall immediately mail or otherwise transmit a copy of the written disclosure to the buyer. In no event shall the broker or salesperson mail or transmit a copy of the written disclosure to the buyer later than three days from the date of first substantial contact with the buyer. (f) In every real estate sales transaction, a broker or salesperson representing a buyer shall, at the initial contact with the seller or seller's agent, disclose to the seller or seller's agent that the broker or salesperson represents the buyer's interests. In addition, in every real estate sales transaction other than auctions, the broker or salesperson shall, no later than the time of delivery of an offer to the seller or seller's agent, provide the seller or seller's agent with a written confirmation disclosing that he represents the interests of the buyer. The written confirmation may be made in the buyer's offer to purchase purchase and shall include the broker or salesperson's license number. (g) The provisions of Paragraphs (c), (d) and (e) of this Rule shall not apply to real estate licensees representing sellers in auction sales transactions. (h) A broker or salesperson representing a buyer in an auction sale transaction shall, no later than the time of execution of a written agreement memorializing the buyer's contract to purchase, provide the seller or seller's agent with a written confirmation disclosing that he represents the interests of the buyer. The written confirmation may be made in the written agreement. (i) A firm which represents more than one party in the same real estate transaction is a dual agent and, through the brokers and salespersons associated with the firm, shall disclose its dual agency to the parties. (j) When a firm represents both the buyer and seller in the same real estate transaction, the firm may, with the prior express approval of its buyer and seller clients, designate one or more individual agents associated with the firm to represent only the interests of the seller and one or more other individual brokers and salespersons associated with the firm to represent only the interests of the buyer in the transaction. The authority for designated agency must be reduced to writing not later than the time that the parties are required to reduce their dual agency agreement to writing in accordance with Paragraph (d) of this Rule. An individual broker or salesperson shall not be so designated and shall not undertake to represent only the interests of one party if the broker or salesperson has actually received confidential information concerning the other party in connection with the transaction. A broker-in-charge shall not act as a designated agent for a party in a real estate sales transaction when a salesperson under his or her supervision will act as a designated agent for another party with a competing interest. (k) When a firm acting as a dual agent designates an individual broker or salesperson to represent the seller, the broker or salesperson so designated shall represent only the interest of the seller and shall not, without the seller's permission, disclose to the buyer or a broker or salesperson designated to represent the buyer: (1) that the seller may agree to a price, terms, or any conditions of sale other than those established by the seller; (2) the seller's motivation for engaging in the transaction unless disclosure is otherwise required by statute or rule; and (3) any information about the seller which the seller has identified as confidential unless disclosure of the information is otherwise required by statute or rule. (l) When a firm acting as a dual agent designates an individual broker or salesperson to represent the buyer, the broker or salesperson so designated shall represent only the interest of the buyer and shall not, without the buyer's permission, disclose to the seller or a broker or salesperson designated to represent the seller: (1) that the buyer may agree to a price, terms, or any conditions of sale other than those established by the seller; (2) the buyer's motivation for engaging in the transaction unless disclosure is otherwise required by statute or rule; and (3) any information about the buyer which the buyer has identified as confidential unless disclosure of the information is otherwise required by statute or rule. (m) A broker or salesperson designated to represent a buyer or seller in accordance with Paragraph (j) of this Rule shall disclose the identity of all of the brokers and salespersons so designated to both the buyer and the seller. The disclosure shall take place no later than the presentation of the first offer to purchase or sell. (n) When an individual broker or salesperson represents both the buyer and seller in the same real estate sales transaction pursuant to a written agreement authorizing dual agency, the parties may provide in the written agreement that the broker or salesperson shall not disclose the following information about one party to the other without permission from the party about whom the information pertains: (1) that a party may agree to a price, terms or any conditions of sale other than those offered; (2) the motivation of a party for engaging in the transaction, unless disclosure is otherwise required by statute or rule; and (3) any information about a party which that party has identified as confidential, unless disclosure is otherwise required by statute or rule. Authority G.S. 41A-3(1b); 41A-4(a); 93A-3(c); 93A-9. 21 NCAC 58A .0106 DELIVERY OF INSTRUMENTS (a) Except as provided in Paragraph (b) of this Rule, every broker or salesperson shall immediately, but in no event later than five days from the date of execution, deliver to the parties thereto copies of any required written agency agreement, contract, offer, lease, or option affecting real property. PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1146 (b) A broker or salesperson may be relieved of his or her duty under Paragraph (a) of this Rule to deliver copies of leases or rental agreements to the property owner, if the broker: (1) obtains the express written authority of the property owner to enter into and retain copies of leases or rental agreements on behalf of the property owner; (2) executes the lease or rental agreement on a pre-printed form, the material terms of which may not be changed by the broker without prior approval by the property owner except as may be required by law; (3) promptly provides a copy of the lease or rental agreement to the property owner upon reasonable request; and (4) delivers to the property owner within 45 days following the date of execution of the lease or rental agreement, an accounting which identifies the leased property and which sets forth the names of the tenants, the rental rates and rents collected. Authority G.S. 93A-3(c). 21 NCAC 58A .0107 HANDLING AND ACCOUNTING OF FUNDS (a) Except as provided herein, all All monies received by a licensee acting in his or her fiduciary capacity shall be deposited in a trust or escrow account maintained by a broker not later than three banking days following receipt of such monies except that earnest money deposits paid by means other than currency which are received on offers to purchase real estate and tenant security deposits paid by means other than currency which are received in connection with real estate leases shall be deposited in a trust or escrow account not later than three banking days following acceptance of such offer to purchase or lease; the date of acceptance of such offer to purchase or lease shall be set forth in the purchase or lease agreement. All monies received by a salesperson shall be delivered immediately to the broker by whom he or she is employed, except that all monies received by nonresident commercial licensees shall be delivered as required by Rule .1808 of this Subchapter. A licensee may accept custody of a check or other negotiable instrument made payable to the seller of real property as option money only for the purpose of delivering the instrument to the optionor-seller. While the instrument is in the custody of the licensee, the licensee shall either deliver it to the seller-optionor or return it to the buyer-optionee according to the instructions of the buyer-optionee. The licensee shall safeguard the instrument and shall be responsible to the parties on the instrument for its prompt and safe delivery. In no event shall a licensee retain such an instrument for more than three business days after the acceptance of the option contract. (b) In the event monies received by a licensee while acting in a fiduciary capacity are deposited in a trust or escrow account which bears interest, the broker having custody over such monies shall first secure from all parties having an interest in the monies written authorization for the deposit of the monies in an interest-bearing account. Such authorization shall specify how and to whom the interest will be disbursed, and, if contained in an offer, contract, lease, or other transaction instrument, such authorization shall be set forth in a conspicuous manner which shall distinguish it from other provisions of the instrument. (c) Closing statements shall be furnished to the buyer and the seller in the transaction at the closing or not more than five days after closing. (d) Trust or escrow accounts shall be so designated by the bank or savings and loan association in which the account is located, and all deposit tickets and checks drawn on said account as well as the monthly bank statement for the account shall bear the words "Trust Account" or "Escrow Account." (e) A licensee shall maintain and retain records sufficient to identify the ownership of all funds belonging to others. Such records shall be sufficient to show proper deposit of such funds in a trust or escrow account and to verify the accuracy and proper use of the trust or escrow account. The required records shall include: (1) bank statements; (2) canceled checks which shall be referenced to the corresponding journal entry or check stub entries and to the corresponding sales transaction ledger sheets or for rental transactions, the corresponding property or owner ledger sheets. Checks shall conspicuously identify the payee and shall bear a notation identifying the purpose of the disbursement. When a check is used to disburse funds for more than one sales transaction, owner, or property, the check shall bear a notation identifying each sales transaction, owner, or property for which disbursement is made, including the amount disbursed for each, and the corresponding sales transaction, property, or owner ledger entries. When necessary, the check notation may refer to the required information recorded on a supplemental disbursement worksheet which shall be cross-referenced to the corresponding check. In lieu of retaining canceled checks, a licensee may retain digitally imaged copies of the canceled checks provided that such images are legible reproductions of the front and back of the original instruments with no more than four instruments per page and no smaller images than 2.25 x 5.0 1.1875 x 3.0 inches, inches and provided that the licensee's bank retains the original checks or a "substitute check" as described in 12 C.F.R. 229.51 on file for a period of at least five six years and makes them available to the licensee and the Commission upon request; (3) deposit tickets. For a sales transaction, the deposit ticket shall identify the purpose and remitter of the funds deposited, the property, the parties involved, and a reference to the corresponding sales transaction ledger entry. For a rental transaction, the deposit ticket shall PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1147 identify the purpose and remitter of the funds deposited, the tenant, and the corresponding property or owner ledger entry. For deposits of funds belonging to or collected on behalf of a property owner association, the deposit ticket shall identify the property or property interest for which the payment is made, the property or interest owner, the remitter, and the purpose of the payment. When a single deposit ticket is used to deposit funds collected for more than one sales transaction, property owner, or property, the required information shall be recorded on the ticket for each sales transaction, owner, or property, or the ticket may refer to the same information recorded on a supplemental deposit worksheet which shall be cross-referenced to the corresponding deposit ticket; (4) a payment record sheet for each property or interest for which funds are collected and deposited into a property owner association trust account as required by Paragraph (i) of this Rule. Payment record sheets shall identify the amount, date, remitter, and purpose of payments received, the amount and nature of the obligation for which payments are made, and the amount of any balance due or delinquency; (5) a separate ledger sheet for each sales transaction and for each property or owner of property managed by the broker identifying the property, the parties to the transaction, the amount, date, and purpose of the deposits and from whom received, the amount, date, check number, and purpose of disbursements and to whom paid, and the running balance of funds on deposit for the particular sales transaction or, in a rental transaction, the particular property or owner of property. Monies held as tenant security deposits in connection with rental transactions may be accounted for on a separate tenant security deposit ledger for each property or owner of property managed by the broker. For each security deposit the tenant security deposit ledger shall identify the remitter, the date the deposit was paid, the amount, the tenant, landlord, and subject property. For each disbursement of tenant security deposit monies, the ledger shall identify the check number, amount, payee, date, and purpose of the disbursement. The ledger shall also show a running balance. When tenant security deposit monies are accounted for on a separate ledger as provided herein, deposit tickets, canceled checks and supplemental worksheets shall reference the corresponding tenant security deposit ledger entries when appropriate; (6) a journal or check stubs identifying in chronological sequence each bank deposit and disbursement of monies to and from the trust or escrow account, including the amount and date of each deposit and a reference to the corresponding deposit ticket and any supplemental deposit worksheet, and the amount, date, check number, and purpose of disbursements and to whom paid. The journal or check stubs shall also show a running balance for all funds in the account; (7) copies of contracts, leases and management agreements; (8) closing statements and property management statements; (9) covenants, bylaws, minutes, management agreements and periodic statements relating to the management of a property owner association; and (10) invoices, bills, and contracts paid from the trust account, and any documents not otherwise described herein necessary and sufficient to verify and explain record entries. Records of all receipts and disbursements of trust or escrow monies shall be maintained in such a manner as to create an audit trail from deposit tickets and canceled checks to check stubs or journals and to the ledger sheets. Ledger sheets and journals or check stubs must be reconciled to the trust or escrow account bank statements on a monthly basis. To be sufficient, records of trust or escrow monies must include a worksheet for each such monthly reconciliation showing the ledger sheets, journals or check stubs, and bank statements to be in agreement and balance. (f) All trust or escrow account records shall be made available for inspection by the Commission or its authorized representatives in accordance with Rule 21 NCAC 58A .0108. (g) In the event of a dispute between the seller and buyer or landlord and tenant over the return or forfeiture of any deposit other than a residential tenant security deposit held by a licensee, the licensee shall retain said deposit in a trust or escrow account until the licensee has obtained a written release from the parties consenting to its disposition or until disbursement is ordered by a court of competent jurisdiction. If it appears to a broker holding a disputed deposit that a party has abandoned his or her claim, the broker may disburse the money to the other claiming parties according to their written agreement provided that the broker first makes a reasonable effort to notify the party who has apparently abandoned his or her claim and provides that party with an opportunity to renew his or her claim to the disputed funds. Tenant security deposit monies shall be disposed of in accordance with the requirements of G.S. 42-50 through 56 and G.S. 42A-18. (h) A broker may transfer earnest money deposits in his or her possession collected in connection with a sales transaction from his or her trust account to the closing attorney or other settlement agent not more than ten days prior to the anticipated settlement date. A licensee shall not disburse prior to settlement any earnest money in his or her possession for any other purpose without the written consent of the parties. PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1148 (i) The funds of a property owner association, when collected, maintained, disbursed or otherwise controlled by a licensee, are trust monies and shall be treated as such in the manner required by this Rule. Such funds must be deposited into and maintained in a trust or escrow account or accounts dedicated exclusively for funds belonging to a single property owners association and may not be commingled with funds belonging to other property owner associations or other persons or parties. A licensee who undertakes to act as manager of a property owner association or as the custodian of funds belonging to a property owner association shall provide the association with periodic statements which report the balance of association funds in the licensee's possession or control and which account for the funds the licensee has received and disbursed on behalf of the association. Such statements must be made in accordance with the licensee's agreement with the association, but in no event shall the statements be made less frequently than every 90 days. (j) Every licensee shall safeguard the money or property of others coming into his or her possession in a manner consistent with the requirements of the Real Estate License Law and the rules adopted by the Commission. A licensee shall not convert the money or property of others to his or her own use, apply such money or property to a purpose other than that for which it was paid or entrusted to him or her, or permit or assist any other person in the conversion or misapplication of such money or property. (k) In addition to the records required by Paragraph (e) of this Rule, a licensee acting as agent for the landlord of a residential property used for vacation rentals shall create and maintain a subsidiary ledger sheet for each property or owner of such properties onto which all funds collected and disbursed are identified in categories by purpose. On a monthly basis, the licensee shall reconcile the subsidiary ledger sheets to the corresponding property or property owner ledger sheet. (l) In lieu of maintaining a subsidiary ledger sheet, the licensee may maintain an accounts payable ledger sheet for each owner or property and each vendor to whom trust monies are due for monies collected on behalf of the owner or property identifying the date of receipt of the trust monies, from whom the monies were received, rental dates, and the corresponding property or owner ledger sheet entry including the amount to be disbursed for each and the purpose of the disbursement. The licensee may also maintain an accounts payable ledger sheet in the format described in Paragraph (k) of this Rule for vacation rental tenant security deposit monies and vacation rental advance payments. Authority G.S. 93A-3(c); 93A-9. 21 NCAC 58A .0109 BROKERAGE FEES AND COMPENSATION (a) A licensee shall not receive, either directly or indirectly, any commission, rebate or other valuable consideration of more than nominal value from a vendor or a supplier of goods and services for an expenditure made on behalf of the licensee's principal in a real estate transaction without the written consent of the licensee's principal. (b) A licensee shall not receive, either directly or indirectly, any commission, rebate or other valuable consideration of more than nominal value for services which the licensee recommends, procures, or arranges relating to a real estate transaction for any party, without full disclosure to such party; provided, however, that nothing in this Rule shall be construed to permit a licensee to accept any fee, kickback or other valuable consideration that is prohibited by the Real Estate Settlement Procedures Act of 1974 (12 USC 2601 et. seq.) or any rules and regulations promulgated by the United States Department of Housing and Urban Development pursuant to such Act. (c) The Commission shall not act as a board of arbitration and shall not compel parties to settle disputes concerning such matters as the rate of commissions, the division of commissions, pay of salespersons, and similar matters. (d) Except as provided in (e) of this rule, a licensee shall not undertake in any manner, any arrangement, contract, plan or other course of conduct, to compensate or share compensation with unlicensed persons or entities for any acts performed in North Carolina for which licensure by the Commission is required. (e) A broker may pay or promise to pay consideration to a travel agent in return for procuring a tenant for a vacation rental as defined by the Vacation Rental Act if: (1) the travel agent only introduces the tenant to the broker, but does not otherwise engage in any activity which would require a real estate license; (2) the introduction by the travel agent is made in the regular course of the travel agent's business; and (3) the travel agent has not solicited, handled or received any monies in connection with the vacation rental. For the purpose of this Rule, a travel agent is any person or entity who is primarily engaged in the business of acting as an intermediary between persons who purchase air, land, and ocean travel services and the providers of such services. A travel agent is also any other person or entity who is permitted to handle and sell tickets for air travel by the Airlines Reporting Corporation (ARC). Payments authorized hereunder shall be made only after the conclusion of the vacation rental tenancy. Prior to the creation of a binding vacation rental agreement, the broker shall provide a tenant introduced by a travel agent a written statement advising him or her to rely only upon the agreement and the broker's representations about the transaction. The broker shall keep for a period of three years records of a payment made to a travel agent including records identifying the tenant, the travel agent and their addresses, the property and dates of the tenancy, and the amount paid. Authority G.S. 93A-3(c). 21 NCAC 58A .0110 BROKER-IN-CHARGE (a) Every real estate firm shall designate a broker to serve as the broker-in-charge at its principal office and a broker to serve as broker-in-charge at any branch office. No broker shall be broker-in-charge of more than one office or branch office. If a firm shares office space with one or more other firms, one broker may serve as broker-in-charge of each firm at that location. No office or branch office of a firm shall have more than one designated broker-in-charge. A broker who is a sole PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1149 proprietor shall designate himself or herself as a broker-in-charge if the broker engages in any transaction where the broker is required to deposit and maintain monies belonging to others in a trust account, engages in advertising or promoting his or her services as a broker in any manner, or has one or more brokers or salespersons affiliated with him or her in the real estate business. Each broker-in-charge shall make written notification of his or her status as broker-in-charge to the Commission on a form prescribed by the Commission within 10 days following the broker's designation as broker-in-charge. The broker-in-charge shall assume the responsibility at his or her office for: (1) the retention and display of current license renewal pocket cards by all brokers and salespersons employed at the office for which he or she is broker-in-charge; the proper display of licenses at such office in accordance with Rule .0101 of this Section; and assuring that each licensee employed at the office has complied with Rules .0503, .0504, and .0506 of this Subchapter; (2) the proper notification to the Commission of any change of business address or trade name of the firm and the registration of any assumed business name adopted by the firm for its use; (3) the proper conduct of advertising by or in the name of the firm at such office; (4) the proper maintenance at such office of the trust or escrow account of the firm and the records pertaining thereto; (5) the proper retention and maintenance of records relating to transactions conducted by or on behalf of the firm at such office, including those required to be retained pursuant to Rule .0108 of this Section; (6) the proper supervision of salespersons associated with or engaged on behalf of the firm at such office in accordance with the requirements of Rule .0506 of this Subchapter; (7) the verification to the Commission of the experience of any salesperson at such office who may be applying for licensure as a broker; and (8) the proper supervision of all brokers and salespersons employed at the office for which he or she is broker-in-charge with respect to adherence to agency agreement and disclosure requirements. (b) When used in this Rule, the term: (1) "Branch Office" means any office in addition to the principal office of a broker which is operated in connection with the broker's real estate business; and (2) "Office" means any place of business where acts are performed for which a real estate license is required. (c) A broker-in-charge must continually maintain his or her license on active status. (d) Each broker-in-charge shall notify the Commission in writing of any change in his or her status as broker-in-charge within 10 days following the change. Upon written request of a salesperson within five years after termination of his or her association with a broker-in-charge, the broker-in-charge shall provide the salesperson, on a form prescribed by the Commission, an accurate written statement regarding the number and type of properties listed, sold, bought, leased, or rented for others by the salesperson while under the supervision of the broker-in-charge. (e) A licensed real estate firm shall not be required to designate a broker-in-charge if it: (1) has been organized for the sole purpose of receiving compensation for brokerage services furnished by its principal qualifying broker through another firm or broker; (2) is designated a Subchapter S corporation by the United States Internal Revenue Service; (3) has no principal or branch office; and (4) has no person associated with it other than its principal qualifying broker. (f) Except as provided herein every broker-in-charge designated before October 1, 2000 shall complete the Commission's broker-in- charge course not later than October 1, 2005 in order to remain broker-in-charge on that date and thereafter. Except as provided herein, every broker-in-charge designated after October 1, 2000 shall complete the broker-in-charge course within 120 days following designation in order to remain broker-in-charge thereafter. Every broker who has completed the broker-in-charge course shall take the course on a recurring basis at intervals not to exceed five years between courses in order to remain eligible to be designated broker-in-charge of the principal or branch office of any real estate firm. If a broker who is designated broker-in-charge fails to complete the broker-in- charge course within the prescribed time period, the broker-in- charge status of that broker shall be immediately terminated, and the broker must complete the broker-in-charge course before he or she may again be designated as broker-in-charge. A broker-in-charge residing outside of North Carolina who is the broker-in-charge of a principal or branch office not located in North Carolina shall not be required to complete the broker-in-charge course. (g) A nonresident commercial real estate broker licensed under the provisions of Section .1800 of this Subchapter shall not act as or serve in the capacity of a broker-in-charge of a firm or office in North Carolina. Authority G.S. 93A-2; 93A-3(c); 93A-4; 93A-9. SECTION .0500 - LICENSING 21 NCAC 58A .0502 BUSINESS ENTITIES (a) Every business entity other than a sole proprietorship shall apply for and obtain from the Commission a firm license prior to engaging in business as a real estate broker. An entity that changes its business form shall be required to submit a new application immediately upon making the change and to obtain a new license. Incomplete applications shall not be acted upon by the Commission. Application forms for partnerships, corporations, limited liability companies, associations and other business entities required to be licensed as brokers shall be PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1150 available upon request to the Commission and shall require the applicant to set forth: (1) the name of the entity; (2) the name under which the entity will do business; (3) the type of business entity; (4) the address of its principal office; (5) the entity's NC Secretary of State Identification Number if required to be registered with the Office of the NC Secretary of State; (6) the name, real estate license number and signature of the proposed principal qualifying broker for the proposed firm; (7) the address of and name of the proposed broker-in-charge for each office where brokerage activities will be conducted, along with a completed broker-in-charge declaration form for each proposed broker-in-charge; (8) any past criminal conviction of and any pending criminal charge against any principal in the company or any proposed broker-in-charge; (9) any past revocation, suspension or denial of a business or professional license of any principal in the company or any proposed broker-in-charge; (10) if a general partnership, a full description of the applicant entity, including a copy of its written partnership agreement or if no written agreement exists, a written description of the rights and duties of the several partners; (11) if a business entity other than a corporation, limited liability company or partnership, a full description of the organization of the applicant entity, including a copy of its organizational documents evidencing its authority to engage in real estate brokerage; (12) if a foreign business entity, a certificate of authority to transact business in North Carolina and an executed consent to service of process and pleadings; and (13) any other information required by this Rule. The Commission also may require the applicant to declare in the license application that the applicant's organizational documents authorize the firm to engage in the real estate business and to submit organizational documents, addresses of affiliated persons and similar information. For purposes of this Paragraph, the term principal shall mean any person or entity owning 10 percent or more of the business entity, or who is an officer, director, manager, member, partner or who holds any other comparable position. (b) After filing a written application with the Commission and upon a showing that at least one principal of said business entity holds a broker license on active status and in good standing and will serve as principal qualifying broker of the entity, the entity shall be licensed provided it appears that the applicant entity employs and is directed by personnel possessed of the requisite truthfulness, honesty, and integrity. The principal qualifying broker of a partnership of any kind must be a general partner of the partnership; the principal qualifying broker of a limited liability company must be a manager of the company; and the principal qualifying broker of a corporation must be an officer of the corporation. A licensed business entity may serve as the principal qualifying broker of another licensed business entity if the principal qualifying broker-entity has as its principal qualifying broker a natural person who is himself licensed as a broker. The natural person who is principal qualifying broker shall assure the performance of the principal qualifying broker's duties with regard to both entities. (c) The licensing of a business entity shall not be construed to extend to the licensing of its partners, managers, members, directors, officers, employees or other persons acting for the entity in their individual capacities regardless of whether they are engaged in furthering the business of the licensed entity. (d) The principal qualifying broker of a business entity shall assume responsibility for: (1) designating and assuring that there is at all times a broker-in-charge for each office and branch office of the entity at which real estate brokerage activities are conducted; (2) renewing the real estate broker license of the entity; (3) retaining the firm's renewal pocket card at the firm and producing it as proof of firm licensure upon request and maintaining a photocopy of the firm license certificate and pocket card at each branch office thereof; (4) notifying the Commission of any change of business address or trade name of the entity and the registration of any assumed business name adopted by the entity for its use; (5) notifying the Commission in writing of any change of his or her status as principal qualifying broker within ten days following the change; (6) securing and preserving the transaction and trust account records of the firm whenever there is a change of broker-in-charge at the firm or any office thereof and notifying the Commission if the trust account records are out-of-balance out of balance or have not been reconciled as required by Rule .0107 of this Chapter; (7) retaining and preserving the transaction and trust account records of the firm upon termination of his or her status as principal qualifying broker until a new principal qualifying broker has been designated with the Commission or, if no new principal qualifying broker is designated, for the period of time for which said records are required to be retained by Rule .0108 of this Chapter; and (8) notifying the Commission if, upon the termination of his or her status as principal qualifying broker, the firm's transaction and trust account records cannot be retained or preserved or if the trust account records are PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1151 out-of-balance out of balance or have not been reconciled as required by Rule .0107(e) of this Chapter. (e) Every licensed business entity and every entity applying for licensure shall conform to all the requirements imposed upon it by the North Carolina General Statutes for its continued existence and authority to do business in North Carolina. Failure to conform to such requirements shall be grounds for disciplinary action or denial of the entity's application for licensure. Upon receipt of notice from an entity or agency of this state that a licensed entity has ceased to exist or that its authority to engage in business in this state has been terminated by operation of law, the Commission shall cancel the license of the entity. Authority G.S. 93A-3(c); 93A-4(a),(b),(d). 21 NCAC 58A .0504 ACTIVE AND INACTIVE LICENSE STATUS (a) Except for licenses that have expired or that have been revoked, suspended or surrendered, all licenses issued by the Commission shall be designated as being either on active status or inactive status. The holder of a license on active status may engage in any activity requiring a real estate license and may be compensated for the provision of any lawful real estate brokerage service. The holder of a license on inactive status may not engage in any activity requiring a real estate license, including the referral for compensation of a prospective seller, buyer, landlord or tenant to another real estate licensee or any other party. A licensee holding a license on inactive status must renew such license and pay the prescribed license renewal fee in order to continue to hold such license. The Commission may take disciplinary action against a licensee holding a license on inactive status for any violation of G.S. 93A or any rule promulgated by the Commission, including the offense of engaging in an activity for which a license is required while a license is on inactive status. (b) Except as provided by Rule .1804 of this Subchapter, a salesperson's license shall, upon initial licensure, be assigned to inactive status. The license of a broker or firm shall be assigned to active status. Except for persons licensed under the provisions of Section .1800 of this Subchapter, a broker or salesperson may change the status of his or her license from active to inactive status by submitting a written request to the Commission. Except for salespersons licensed under Section .1800 of this Subchapter, a salesperson's license shall be assigned by the Commission to inactive status when the salesperson is not under the active, personal supervision of a broker-in-charge. A firm's license shall be assigned by the Commission to inactive status when the firm does not have a principal qualifying broker. Except for persons licensed under the provisions of Section .1800 of this Subchapter, a broker or salesperson shall also be assigned to inactive status if, upon the second renewal of his or her license following initial licensure, or upon any subsequent renewal, he or she has not satisfied the continuing education requirement described in Rule .1702 of this Subchapter. (c) A salesperson with an inactive license who desires to have such license placed on active status must comply with the procedures prescribed in Rule .0506 of this Section. (d) A broker with an inactive license who desires to have such license placed on active status shall file with the Commission a request for license activation on a form prescribed by the Commission containing identifying information about the broker, a statement that the broker has satisfied the continuing education requirements prescribed by Rule .1703 of this Subchapter, the date of the request, and the signature of the broker. Upon the mailing or delivery of this form, the broker may engage in real estate brokerage activities requiring a license; however, if the broker does not receive from the Commission a written acknowledgment of the license activation within 30 days of the date shown on the form, the broker shall immediately terminate his or her real estate brokerage activities pending receipt of the written acknowledgment from the Commission. If the broker is notified that he or she is not eligible for license activation due to a continuing education deficiency, the broker must terminate all real estate brokerage activities until such time as the continuing education deficiency is satisfied and a new request for license activation is submitted to the Commission. (e) A firm with an inactive license which desires to have its license placed on active status shall file with the Commission a request for license activation on a form prescribed by the Commission containing identifying information about the firm and its principal qualifying broker. If the principal qualifying broker has an inactive license, he or she must satisfy the requirements of Paragraph (d) of this Rule. Upon the mailing or delivery of the completed form by the principal qualifying broker, the firm may engage in real estate brokerage activities requiring a license; however, if the firm's principal qualifying broker does not receive from the Commission a written acknowledgment of the license activation within 30 days of the date shown on the form, the firm shall immediately terminate its real estate brokerage activities pending receipt of the written acknowledgment from the Commission. If the principal qualifying broker is notified that the firm is not eligible for license activation due to a continuing education deficiency on the part of the principal qualifying broker, the firm must terminate all real estate brokerage activities until such time as the continuing education deficiency is satisfied and a new request for license activation is submitted to the Commission. (f) A person licensed as a broker or salesperson under Section .1800 of this Subchapter shall maintain his or her license on active status at all times as required by Rule .1804 of this Subchapter. Authority G.S. 93A-3(c); 93A-4(d); 93A-4A; 93A-6; 93A-9. 21 NCAC 58A .0506 SALESPERSON TO BE SUPERVISED BY BROKER (a) This Rule shall apply to all real estate salespersons except those salespersons licensed under the provisions of Section .1800 of this Subchapter. (b) A salesperson may engage in or hold himself or herself out as engaging in activities requiring a real estate license only while his or her license is on active status and he or she is supervised PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1152 by the broker-in-charge of the real estate firm or office where the salesperson is associated. A salesperson may be supervised by only one broker-in-charge at a time. (c) Upon a salesperson's association with a real estate broker or brokerage firm, the salesperson and the broker-in-charge of the office where the salesperson will be engaged in the real estate business shall immediately file with the Commission a salesperson supervision notification on a form prescribed by the Commission containing identifying information about the salesperson and the broker-in-charge, a statement from the broker-in-charge certifying that he or she will supervise the salesperson in the performance of all acts for which a license is required, the date that the broker-in-charge assumes responsibility for such supervision, and the signatures of the salesperson and broker-in-charge. If the salesperson is on inactive status at the time of associating with a broker or brokerage firm, the salesperson and broker-in-charge shall also file, along with the salesperson supervision notification, the salesperson's request for license activation on a form prescribed by the Commission containing identifying information about the salesperson, the salesperson's statement that he or she has satisfied the continuing education requirements prescribed by Rule .1703 of this Subchapter, the date of the request, and the signatures of the salesperson and the salesperson's proposed broker-in-charge. Upon the mailing or delivery of the required form(s), the salesperson may engage in real estate brokerage activities requiring a license under the supervision of the broker-in- charge; however, if the salesperson and broker-in-charge do not receive from the Commission a written acknowledgment of the salesperson supervision notification and, if appropriate, the request for license activation, within 30 days of the date shown on the form, the broker-in-charge shall immediately terminate the salesperson's real estate brokerage activities pending receipt of the written acknowledgment from the Commission. If the salesperson and broker-in-charge are notified that the salesperson is not eligible for license activation due to a continuing education deficiency, the broker-in-charge shall cause the salesperson to immediately cease all activities requiring a real estate license until such time as the continuing education deficiency is satisfied and a new salesperson supervision notification and request for license activation is submitted to the Commission. (d) A broker-in-charge who certifies to the Commission that he or she will supervise a licensed salesperson shall actively and personally directly supervise the salesperson in a manner which reasonably assures that the salesperson performs all acts for which a real estate license is required in accordance with the Real Estate License Law and Commission rules. A supervising broker who fails to supervise a salesperson as prescribed in this Rule may be subject to disciplinary action by the Commission. (e) Upon the termination of the supervisory relationship between a salesperson and his or her broker-in-charge, the salesperson and the broker-in-charge shall provide written notification of the date of termination to the Commission not later than 10 days following said termination. Authority G.S. 93A-2(b); 93A-3; 93A-9. SECTION .1700 – MANDATORY CONTINUING EDUCATION 21 NCAC 58A .1702 CONTINUING EDUCATION REQUIREMENT (a) Except as provided in A.1708 and A.1711, in In order to renew a broker or salesperson license on active status, the person requesting renewal of a license shall, upon the second renewal of such license following initial licensure, and upon each subsequent annual renewal, have completed, within one year preceding license expiration, eight classroom hours of real estate continuing education in courses approved by the Commission as provided in Subchapter 58E. Four of the required eight classroom hours must be obtained each license period by completing a mandatory update course developed annually by the Commission. The remaining four hours must be obtained by completing one or more Commission-approved elective courses described in Rule .0305 of Subchapter 58E. The licensee bears the responsibility for providing, upon request of the Commission, evidence of continuing education course completion satisfactory to the Commission. A licensed salesperson who applies for a broker license after the first renewal of his or her salesperson license must have completed the current mandatory update course and one approved elective course during the license period in which the broker license application is filed. (b) No continuing education shall be required to renew a broker or salesperson license on inactive status; however, to change a license from inactive status to active status, the licensee must satisfy the continuing education requirement described in Rule .1703 of this Section. (c) No continuing education shall be required for a licensee who is a member of the U.S. Congress or the North Carolina General Assembly in order to renew his or her license on active status. (d) The terms "active status" and "inactive status" are defined in Rule .0504 of this Subchapter. For continuing education purposes, the term "initial licensure" shall include the first time that a license of a particular type is issued to a person, and the reinstatement of a revoked or surrendered license, and any or a license expired for more than six months. Authority G.S. 93A-3(c); 93A-4A. SECTION .1800 - LIMITED NONRESIDENT COMMERCIAL LICENSING 21 NCAC 58A .1807 AFFILIATION WITH RESIDENT BROKER (a) No person licensed under this Section shall enter North Carolina to perform any act or service for which licensure as a real broker or salesperson is required unless he or she has first entered into a brokerage cooperation agreement and declaration of affiliation with an individual who is a resident in North Carolina licensed as a North Carolina real estate broker. (b) A brokerage cooperation agreement as contemplated by this Rule shall be in writing and signed by the resident North Carolina broker and the non-resident commercial licensee. It shall contain: PROPOSED RULES 19:14 NORTH CAROLINA REGISTER January 18, 2005 1153 (1) the material terms of the agreement between the signatory licenses; (2) a description of the agency relationships, if any, which are created by the agreement among the nonresident commercial licensee, the resident North Carolina broker, and the parties each represents; (3) a description of the property or the identity of the parties and other information sufficient to identify the transaction which is the subject of the affiliation agreement; and (4) a definite expiration date. (c) A declaration of affiliation shall be written and on the form prescribed by the Commission and shall identify the nonresident commercial licensee and the affiliated resident North Carolina licensee. It shall also contain a description of the duties and obligations of each as required by the North Carolina Real Estate License Law and rules duly adopted by the Commission. The declaration of affiliation may be a part of the brokerage cooperation agreement or separate from it. (d) A nonresident commercial licensee may affiliate with more than one resident North Carolina broker at any time. However, a nonresident commercial licensee may be affiliated with only one resident North Carolina broker in a single transaction. (e) A resident North Carolina broker who enters into a brokerage cooperation agreement and declaration of affiliation with a nonresident commercial licensee shall: (1) verify that the nonresident commercial licensee is licensed in North Carolina; (2) actively and personally supervise the nonresident commercial licensee in a manner which reasonably insures that the nonresident commercial licensee complies with the North Carolina Real Estate License Law and rules adopted by the Commission; and (3) promptly notify the Commission if the nonresident commercial licensee violates the Real Estate License Law or rules adopted by the Commission; and (4) insure that records are retained in accordance with the requirements of the Real Estate License Law and rules adopted by the Commission. Commission; and (5) maintain his or her license on active status continuously for the duration of the brokerage cooperation agreement and the declaration of affiliation. (f) The nonresident commercial licensee and the affiliated resident North Carolina broker shall each retain in his or her records a copy of brokerage cooperation agreements and declarations of affiliation from the time of their creation and for at least three years following their expiration. Such records shall be made available for inspection and reproduction by the Commission or its authorized representatives without prior notice. Authority G.S. 93A-4; 93A-9. SUBCHAPTER 58C - REAL ESTATE PRELICENSING EDUCATION SECTION .0200 - PRIVATE REAL ESTATE SCHOOLS 21 NCAC 58C .0205 ADDITIONAL COURSE OFFERINGS A school that is also a Commission-approved sponsor of continuing education courses under Section .0100 or Section .0300 of Subchapter 58E may offer such continuing education courses in accordance with Commission rules governing such courses and sponsors. Schools may also offer courses in addition to those described in Section .0300 of this Subchapter or Sections .0100 and .0300 of Subchapter 58E provided that references to such courses are not made or published in a manner which implies that such courses are sanctioned by the Commission. However, if licensure as a private business or trade school under G.S. 115D-90 is required in order for the school to offer such additional courses, courses that are not approved by the Commission, then the school must obtain such license prior to offering such additional courses. Authority G.S. 93A-4(a),(d); 93A-33. 21 NCAC 58C .0207 FACILITIES AND EQUIPMENT (a) All school facilities and equipment shall be in compliance with all applicable local, state and federal laws and regulations regarding safety, health, safety and sanitation, welfare, including the Americans with Disabilities Act and other laws relating to accessibility standards for places of public accommodation. Schools shall furnish the Commission with inspection reports from appropriate local building, health and fire inspectors upon request of the Commission. (b) Classrooms shall be of sufficient size to accommodate comfortably all students enrolled in a course, shall have adequate light, heat, cooling and ventilation and shall be free of distractions which would disrupt class sessions. (c) Classrooms shall contain, at a minimum, an overhead projector and student desks or worktables sufficient to accommodate all students enrolled in a course. Authority G.S. 93A-4(a),(d); 93A-33. SECTION .0600 – PRE-LICENSING INSTRUCTORS 21 NCAC 58C .0603 APPLICATION AND CRITERIA FOR ORIGINAL APPROVAL (a) An individual seeking original approval as a pre-licensing course instructor shall make application on a form provided by the Commission. An applicant who is not a resident of North Carolina shall also file with the application a consent to service of process and pleadings. No application fee shall |
OCLC number | 13686205 |