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NORTH CAROLINA REGISTER Volume 16, Issue 24 Pages 2707 - 2924 June 17, 2002 This issue contains documents officially filed through May 24, 2002. 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 Ruby Creech, Publications Coordinator Linda Dupree, Editorial Assistant Dana Sholes, Editorial Assistant Rhonda Wright, Editorial Assistant IN THIS ISSUE I. IN ADDITION Voting Rights Letters................................................................................... 2707 - 2711 HHS – Draft 2003 State Medical Facilities Plan......................................... 2712 – 2713 OAH – Cumulative Index............................................................................ 2714 II. RULE-MAKING PROCEEDINGS Environment and Natural Resources Health Services, Commission for ........................................................... 2715 - 2716 Marine Fisheries ..................................................................................... 2715 Wildlife Resources Commission ............................................................ 2715 Health and Human Services Medical Care Commission ..................................................................... 2715 Licensing Boards CPA Examiners....................................................................................... 2716 Transportation Motor Vehicles, Division of ................................................................... 2716 III. PROPOSED RULES Community Colleges Community Colleges, State Board of ..................................................... 2743 - 2744 Environment and Natural Resources Coastal Resources Commission.............................................................. 2719 - 2730 Forest Resources ..................................................................................... 2730 - 2734 Water Quality Division........................................................................... 2718 - 2719 Health and Human Services Medical Assistance ................................................................................. 2717 - 2718 Licensing Boards Geologists, Licensing of ......................................................................... 2734 - 2743 IV. TEMPORARY RULES Environment and Natural Resources Wildlife Resources Commission ............................................................ 2745 - 2748 Health and Human Services Health Services, Commission for ........................................................... 2748 - 2752 Secretary of State Securities Division.................................................................................. 2752 - 2753 State Treasurer Health & Wellness Trust Fund Commission.......................................... 2753 - 2757 V. APPROVED RULES................................................................................. 2758 - 2910 Agriculture Food & Drug Protection Division Standard Division Structural Pest Control Division Environment and Natural Resources Environmental Management Health Services Forest Resources, Division of Radiation Protection Soil & Water Conservation Commission Wildlife Resources Commission Health and Human Services Blind, Services for the Children's Services MH/DD/SAS Insurance Engineering & Building Codes Division Life & Health Division Property & Casualty Division Justice Private Protective Services Labor Occupational Safety & Health Licensing Boards Cosmetic Arts, Board of Dental Examiners, Board of Medical Examiners Midwifery Joint Committee Nursing, Board of Plumbing, Heating & Fire Sprinkler Professional Engineers & Land Surveyors Substance Abuse Professionals, Certification Board for Revenue Corporate Income & Franchise Tax Individual Income: Inheritance & Gift Individual Income Tax Division Sales & Use Tax Secretary of State Uniform Commercial Code Division State Personnel State Personnel Commission Transportation Highways, Division of VI. CONTESTED CASE DECISIONS Index to ALJ Decisions................................................................................ 2911 - 2919 Text of Selected Decisions 01 ABC 1409 .......................................................................................... 2920 - 2924 VII. CUMULATIVE INDEX............................................................................ 1 114 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 subdivisions of rules. Two of these, titles and chapters, are mandatory. The major subdivision 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. The other two, subchapters and sections are optional subdivisions to be used by agencies when appropriate. TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE TITLE DEPARTMENT LICENSING BOARDS CHAPTER 1 2 3 4 5 6 7 8 9 10 11 12 13 14A 15A 16 17 18 19A 20 *21 22 23 24 25 26 27 28 Administration Agriculture Auditor Commerce Correction Council of State Cultural Resources Elections Governor Health and Human Services Insurance Justice Labor Crime Control & Public Safety Environment and Natural Resources Public Education Revenue Secretary of State Transportation Treasurer Occupational Licensing Boards Administrative Procedures (Repealed) Community Colleges Independent Agencies State Personnel Administrative Hearings NC State Bar Juvenile Justice and Delinquency Prevention Acupuncture Architecture Athletic Trainer Examiners Auctioneers Barber Examiners Certified Public Accountant Examiners Chiropractic Examiners Employee Assistance Professionals General Contractors Cosmetic Art Examiners Dental Examiners Dietetics/Nutrition Electrical Contractors Electrolysis Foresters Geologists Hearing Aid Dealers and Fitters Landscape Architects Landscape Contractors Massage & Bodywork Therapy Marital and Family Therapy Medical Examiners Midwifery Joint Committee Mortuary Science Nursing Nursing Home Administrators Occupational Therapists Opticians Optometry Osteopathic Examination & Reg. (Repealed) Pastoral Counselors, Fee-Based Practicing Pharmacy Physical Therapy Examiners Plumbing, Heating & Fire Sprinkler Contractors Podiatry Examiners Professional Counselors Psychology Board Professional Engineers & Land Surveyors Real Estate Appraisal Board Real Estate Commission Refrigeration Examiners Respiratory Care Board Sanitarian Examiners Social Work Certification Soil Scientists Speech & Language Pathologists & Audiologists Substance Abuse Professionals Therapeutic Recreation Certification Veterinary Medical Board 1 2 3 4 6 8 10 11 12 14 16 17 18 19 20 21 22 26 28 30 31 32 33 34 36 37 38 40 42 44 45 46 48 50 52 53 54 56 57 58 60 61 62 63 69 64 68 65 66 Note: Title 21 contains the chapters of the various occupational licensing boards. NORTH CAROLINA REGISTER Publication Schedule for January 2002 – December 2002 Filing Deadlines Notice of Rule-Making Proceedings Notice of Text Temporary Rule volume & issue number issue date last day for filing earliest register issue for publication of text earliest date for public hearing end of required comment period deadline to submit to RRC for review at next meeting first legislative day of the next regular session end of required comment period deadline to submit to RRC for review at next meeting first legislative day of the next regular session 270th day from issue date 16:13 01/02/02 12/06/01 03/15/02 01/17/02 02/01/02 02/20/02 05/28/02 03/04/02 03/20/02 05/28/02 09/29/02 16:14 01/15/02 12/19/01 04/01/02 01/30/02 02/14/02 02/20/02 05/28/02 03/18/02 03/20/02 05/28/02 10/12/02 16:15 02/01/02 01/10/02 04/15/02 02/16/02 03/04/02 03/20/02 05/28/02 04/02/02 04/22/02 01/29/03 10/29/02 16:16 02/15/02 01/25/02 05/01/02 03/02/02 03/18/02 03/20/02 05/28/02 04/16/02 04/22/02 01/29/03 11/12/02 16:17 03/01/02 02/08/02 05/01/02 03/16/02 04/01/02 04/22/02 01/29/03 04/30/02 05/20/02 01/29/03 11/26/02 16:18 03/15/02 02/22/02 05/15/02 03/30/02 04/15/02 04/22/02 01/29/03 05/14/02 05/20/02 01/29/03 12/10/02 16:19 04/01/02 03/08/02 06/03/02 04/16/02 05/01/02 05/20/02 01/29/03 05/31/02 06/20/02 01/29/03 12/27/02 16:20 04/15/02 03/22/02 06/17/02 04/30/02 05/15/02 05/20/02 01/29/03 06/14/02 06/20/02 01/29/03 01/10/03 16:21 05/01/02 04/10/02 07/01/02 05/16/02 05/31/02 06/20/02 01/29/03 07/01/02 07/22/02 01/29/03 01/26/03 16:22 05/15/02 04/24/02 07/15/02 05/30/02 06/14/02 06/20/02 01/29/03 07/15/02 07/22/02 01/29/03 02/09/03 16:23 06/03/02 05/10/02 08/15/02 06/18/02 07/03/02 07/22/02 01/29/03 08/02/02 08/20/02 01/29/03 02/28/03 16:24 06/17/02 05/24/02 09/03/02 07/02/02 07/17/02 07/22/02 01/29/03 08/16/02 08/20/02 01/29/03 03/14/03 17:01 07/01/02 06/10/02 09/03/02 07/16/02 07/31/02 08/20/02 01/29/03 08/30/02 09/20/02 01/29/03 03/28/03 17:02 07/15/02 06/21/02 09/16/02 07/30/02 08/14/02 08/20/02 01/29/03 09/13/02 09/20/02 01/29/03 04/11/03 17:03 08/01/02 07/11/02 10/01/02 08/16/02 09/03/02 09/20/02 01/29/03 09/30/02 10/21/02 01/29/03 04/28/03 17:04 08/15/02 07/25/02 10/15/02 08/30/02 09/16/02 09/20/02 01/29/03 10/14/02 10/21/02 01/29/03 05/12/03 17:05 09/03/02 08/12/02 11/15/02 09/18/02 10/03/02 10/21/02 01/29/03 11/04/02 11/20/02 01/29/03 05/31/03 17:06 09/16/02 08/30/02 11/15/02 10/01/02 10/16/02 10/21/02 01/29/03 11/15/02 11/20/02 01/29/03 06/13/03 17:07 10/01/02 09/10/02 12/02/02 10/16/02 10/31/02 11/20/02 01/29/03 12/02/02 12/20/02 05/00/04 06/28/03 17:08 10/15/02 09/24/02 12/16/02 10/30/02 11/14/02 11/20/02 01/29/03 12/16/02 12/20/02 05/00/04 07/12/03 17:09 11/01/02 10/11/02 01/02/03 11/16/02 12/02/02 12/20/02 05/00/04 12/31/02 01/21/03 05/00/04 07/29/03 17:10 11/15/02 10/25/02 01/15/03 11/30/02 12/16/02 12/20/02 05/00/04 01/14/03 01/21/03 05/00/04 08/12/03 17:11 12/02/02 11/06/02 02/03/03 12/17/02 01/02/03 01/21/03 05/00/04 01/31/03 02/20/03 05/00/04 08/29/03 17:12 12/16/02 11/21/02 02/17/03 12/31/02 01/15/03 01/21/03 05/00/04 02/14/03 02/20/03 05/00/04 09/12/03 non-substantial economic impact substantial economic impact 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 RULE-MAKING PROCEEDINGS END OF COMMENT PERIOD TO A NOTICE OF RULE-MAKING PROCEEDINGS: This date is 60 days from the issue date. An agency shall accept comments on the notice of rule-making proceeding until the text of the proposed rules is published, and the text of the proposed rule shall not be published until at least 60 days after the notice of rule-making proceedings was published. EARLIEST REGISTER ISSUE FOR PUBLICATION OF TEXT: The date of the next issue following the end of the comment period. 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 (1) RULE WITH NON-SUBSTANTIAL ECONOMIC IMPACT: An agency shall accept comments on the text of a proposed rule for at least 30 days after the text is published or until the date of any public hearings held on the proposed rule, whichever is longer. (2) RULE WITH SUBSTANTIAL ECONOMIC IMPACT: An agency shall accept comments on the text of a proposed rule published in the Register and that has a substantial economic impact requiring a fiscal note under G.S. 150B-21.4(b1) for at least 60 days after publication or until the date of any public hearing held on the 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 16:24 NORTH CAROLINA REGISTER June 17, 2002 2707 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. U.S. Department of Justice Civil Rights Division JDR:RPL:TAR:nj Voting Section – NWB. DJ 166-012-3 950 Pennsylvania Ave., N.W. 2001-1474 Washington, D.C. 20530 2001-4032 February 15, 2002 Michael Crowell, Esq. Tharrington Smith PO Box 1151 Raleigh, NC 27602 Dear Mr. Crowell: This refers to the May 14, 2001, redistricting plan and the November 26, 2001 redistricting plan for the Town of Tarboro in Edgecombe County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your response to our July 18, 2001 request for additional information regarding the May 14, 2001 redistricting plan on December 19, 2001. We also received your submission of the November 26, 2001, redistricting plan on December 19, 2001. Your December 19, 2001, submission letter withdraws the May 14, 2001 redistricting plan from Section 5 review. Accordingly, no determination by the Attorney General is required concerning this matter. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.25(a)). The Attorney General does not interpose any objection to the remaining specified change. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. See 28 C.F.R. 51.41. Sincerely, Joseph D. Rich Chief, Voting Section IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2708 U.S. Department of Justice Civil Rights Division JDR:MJP:CEI:cp Voting Section – NWB. DJ 166-012-3 950 Pennsylvania Ave., N.W. 2002-0451 Washington, D.C. 20530 March 28, 2002 Mr. Gary O. Bartlett Executive Director State Board of Elections PO Box 27255 Raleigh, NC 27611-7255 Dear Mr. Bartlett: This refers to Session Law 2001-507, which changes absentee ballot procedures for ill and disabled voters in the State of North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on January 30, 2002. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). Sincerely, Joseph D. Rich Chief, Voting Section IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2709 U.S. Department of Justice Civil Rights Division JDR:GS:KEI:baw Voting Section – NWB. DJ 166-012-3 950 Pennsylvania Ave., N.W. 2002-1169 Washington, D.C. 20530 April 17, 2002 Mr. Gary O. Bartlett Executive Director State Board of Elections PO Box 27255 Raleigh, NC 27611-7255 Dear Mr. Bartlett: This refers to Session Law 2001-512, which requires state and county election boards to notify candidates for elective office of laws and rules prohibiting display of nonofficial signage on any state traffic device or highway signage or electric power company structures for the State of North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on February 25, 2002. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). Sincerely, Joseph D. Rich Chief, Voting Section IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2710 U.S. Department of Justice Civil Rights Division JDR:CKD:NT:cp Voting Section – GSt. DJ 166-012-3 950 Pennsylvania Ave., N.W. 2002-1851 Washington, D.C. 20530 April 29, 2002 Mr. Gary O. Bartlett Executive Director State Board of Elections PO Box 27255 Raleigh, NC 27611-7255 Dear Mr. Bartlett: This refers to Sections 97. (a) and 97. (b) of Session Law 2001-487 which pertain to campaign finance disclosure and reporting requirements for the State of North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on March 5, 2002. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). Sincerely, Joseph D. Rich Chief, Voting Section IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2711 U.S. Department of Justice Civil Rights Division JDR:CKD:SMC:cp Voting Section DJ 166-012-3 950 Pennsylvania Ave., N.W. 2002-1460 Washington, D.C. 20530 May 2, 2002 Mr. Gary O. Bartlett Executive Director State Board of Elections PO Box 27255 Raleigh, NC 27611-7255 Dear Mr. Bartlett: This refers to Chapter 119 (2001), which provides procedures for filing economic statements of interest by legislative candidates and supersedes all prior changes concerning such statements of interest, for the State of North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on March 4, 2002. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). With regard to prior unprecleared changes relating to statements of interest, because they are superseded by Chapter 119, the Attorney General will make no determination concerning these matters. See 28 C.F.R. 51.35. Sincerely, Joseph D. Rich Chief, Voting Section IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2712 TITLE 10 – DEPARTMENT OF HEALTH AND HUMAN SERVICES CHAPTER 3 – FACILITY SERVICES PUBLIC NOTICE Citizens are invited to attend public hearings on the Draft 2003 State Medical Facilities Plan to be conducted by the North Carolina State Health Coordinating Council (SHCC) at the following times and locations: Wilmington July 19, 2002 1:30-2:30 p.m. Coastal Area Health Education Center (Friday) New Hanover Regional Medical Center Auditorium -- First Floor 2131 S. 17th Street Wilmington, NC Greenville July 22, 2002 1:30-2:30 p.m. Eastern AHEC Conference Center (Monday) (Edwin W. Monroe Center) Pamlico Room 2000 Venture Tower Drive Greenville, NC Charlotte July 24, 2002 1:30-2:30 p.m. Carolinas Medical Center (Wednesday) Classroom 158, Rankin Education Center (just down from the auditorium) 1200 Blythe Boulevard Charlotte, NC Greensboro July 25, 2002 1:30-2:30 p.m. Greensboro AHEC (Thursday) Room 0031 Moses Cone Hospital Campus 1200 North Elm Street Greensboro, NC Asheville July 26, 2002 1:30-2:30 p.m. Mountain Area Health Education Center (Friday) (Between Mission St. Joseph’s and entrance for Memorial Mission Emergency Room) 501 Biltmore Avenue Second Floor, Classroom #4 Asheville, NC Raleigh July 29, 2002 1:30-2:30 p.m. Wake County Office Park (Monday) Commons Building; Room 100-A 4011 Carya Drive Raleigh, NC All persons commenting on the Draft Plan at the public hearings are asked to supply WRITTEN COPIES of their remarks. Persons with disabilities who need assistance to participate in the public hearing are requested to notify the Medical Facilities Planning Section in advance so that reasonable accommodations can be arranged. The State Medical Facilities Plan projects need for acute care hospital beds, rehabilitation facilities and beds, ambulatory surgery facilities and operating rooms, technology services and equipment, nursing care beds, home health agencies, kidney dialysis stations, hospice home care programs and inpatient beds, psychiatric hospitals, substance abuse treatment facilities, adult care home beds, and intermediate care facilities for the mentally retarded. NOTE: After the need determinations and policies are adopted by the SHCC and approved by the Governor, they will be incorporated in Administrative Procedure Act Rules for the 2003 State Medical Facilities Plan. Persons wishing to review or purchase the Draft 2003 State Medical Facilities Plan or who want information about the Plan or the series of public hearings may call 919-855-3865, or write to: Medical Facilities Planning Section, Division of Facility Services, 2714 Mail Service Center, Raleigh, NC 27699-2714. Inquiries may be made to this same address about comments or petitions received regarding the Draft Plan. Copies of the Draft Plan will also be made available to all Area Health Education Centers and to all Lead IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2713 Regional Organizations (Councils of Government) in the State. ALL WRITTEN COMMENTS AND PETITIONS ON THE DRAFT 2003 STATE MEDICAL FACILITIES PLAN MUST BE RECEIVED IN THE MEDICAL FACILITIES PLANNING SECTION OFFICE BY 5:00 P.M. ON FRIDAY, AUGUST 2, 2002. IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2714 Notice to Subscribers Due to the State's budget shortfall and the increasing cost of printing, the Cumulative Index of published rules will no longer be printed in the NC Register. This change will be effective July 1, 2002. The Office of Administrative Hearings will continue to maintain the index and make available on the OAH website: www.ncoah.com. RULE-MAKING PROCEEDINGS 16:24 NORTH CAROLINA REGISTER June 17, 2002 2715 A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-21.2. TITLE 10 – DEPARTMENT OF HEALTH AND HUMAN SERVICES CHAPTER 03 – FACILITY SERVICES Notice of Rule-making Proceedings is hereby given by the NC Medical Care Commission in accordance with G.S. 150B-21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rule Affected by this Rule-making: 10 NCAC 03Q - Other rules may be proposed in the course of the rule-making process. Authority for the Rule-making: G.S. 131E-149 Statement of the Subject Matter: This Subchapter deals with the licensure of ambulatory surgical facilities. Reason for Proposed Action: The NC Medical Care Commission proposes to adopt rules regarding the licensure of ambulatory surgical facilities. Changes are needed to conform with current building code requirements and practices. Comment Procedures: Written comments concerning this rule-making action must be submitted to Mark Benton, Chief of Budget Planning/Rule-making Coordinator, NC Division of Facility Services, 2701 Mail Service Center, Raleigh, NC 27699- 2701. TITLE 15A – DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES CHAPTER 03 – MARINE FISHERIES Notice of Rule-making Proceedings is hereby given by the NC Marine Fisheries Commission in accordance with G.S. 150B- 21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rule Affected by this Rule-making: 15A NCAC 03 - Other rules may be proposed in the course of the rule-making process. Authority for the Rule-making: G.S. 113-134; 113-182; 113- 221; 143B-289.52 Statement of the Subject Matter: Sargassum and fishing gear restrictions for specific areas. Reason for Proposed Action: Restrict the taking of sargassum if so required by federal fishery management plan. Revise the specific areas for fishing gear restrictions in response to Petition for Rulemaking for Carolina Marlin Club Marina. Also revise specific areas for fishing gear restrictions to incorporate Goose Creek State Park and delete areas where restrictions are no longer valid or needed. Comment Procedures: Written comments are encouraged and may be submitted to MFC, Juanita Gaskill, PO Box 769, Morehead City, NC 28557. * * * * * * * * * * * * * * * * * * * * CHAPTER 10 - WILDLIFE RESOURCES AND WATER SAFETY Notice of Rule-making Proceedings is hereby given by NC Wildlife Resources Commission in accordance with G.S. 150B- 21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rule Affected by this Rule-making: 15A NCAC 10A,B,F,H,I. Other rules may be proposed in the course of the rule-making process. Authority for the Rule-making: G.S. 75A-15; 113-132; 113- 134; 113-264; 113-267; 113-270; 113-270.1; 113-270.1A; 113- 273; 113-291.2; 113-291.4 Statement of the Subject Matter: General Regulations, Hunting, Water Safety, Conservation, Endangered, Threatened and Special Concern Species. Reason for Proposed Action: To set/amend regulations necessary to manage and conserve wildlife resources and maintain public safety. Comment Procedures: The record will be open for receipt of written comments. Such comments must be delivered or mailed to the NC Wildlife Resources Commission, 1701 Mail Service Center, Raleigh, NC 27699-1701. * * * * * * * * * * * * * * * * * * * * CHAPTER 18 – ENVIRONMENTAL HEALTH Notice of Rule-making Proceedings is hereby given by the Commission for Health Services in accordance with G.S. 150B- 21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of RULE-MAKING PROCEEDINGS 16:24 NORTH CAROLINA REGISTER June 17, 2002 2716 rule-making proceedings and any comments received on this notice. Citation to Existing Rule Affected by this Rule-making: 15A NCAC 18A .2500 - Other rules may be proposed in the course of the rule-making process. Authority for the Rule-making: G.S. 130A-280 through 130A- 282 Statement of the Subject Matter: To identify and update sanitation requirements for public swimming pools as needed. Reason for Proposed Action: To identify and update sanitation requirements as needed. Comment Procedures: Written comments may be mailed to Jim Hayes, NCDENR/EHSS, 1632 Mail Service Center, Raleigh, NC 27699-1632. TITLE 19A – DEPARTMENT ON TRANSPORTATION CHAPTER 03 – DIVISION OF MOTOR VEHICLES Notice of Rule-making Proceedings is hereby given by NC Department of Transportation – Division of Motor Vehicles in accordance with G.S. 150B-21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rule Affected by this Rule-making: 19A NCAC 03G .0205. Other rules may be proposed in the course of the rule-making process. Authority for the Rule-making: G.S. 20-39(b); 20-218 Statement of the Subject Matter: Rule sets out conditions for certification of school bus drivers Reason for Proposed Action: Temporary amendments to this rule were filed effective June 1, 2001 which added a physical exam requirement for certification as a school bus driver. The permanent rule was to be effective August 1, 2002. However, the current budget constraints on state agencies will not allow the Department of Public Instruction to fund the physical exams. The Division of Motor Vehicles is deleting the school bus driver physical exam requirement due to budgetary constraints. Comment Procedures: Any interested person may submit comments in writing by sending the comments to Emily Lee, APA Coordinator, NC DOT, 1501 Mail Service Center, Raleigh, NC 27699-1501. TITLE 21 – OCCUPATIONAL LICENSING BOARDS CHAPTER 08 - BOARD OF CERTIFIED PUBLIC ACCOUNTANT EXAMINERS Notice of Rule-making Proceedings is hereby given by the NC State Board of CPA Examiners in accordance with G.S. 150B- 21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rule Affected by this Rule-making: 21 NCAC 08 - Other rules may be proposed in the course of the rule-making process. Authority for the Rule-making: G.S. 93-12 Statement of the Subject Matter: Definitions, requirements for examination and certificates, continuing professional education, reciprocity, revocations, renewals and registrations, professional corporations and professional limited liability companies, state quality review programs, professional ethics and conduct. Reason for Proposed Action: The purpose of these Rule changes are to clarify, simplify and amend this Chapter to reflect the Uniform Accountancy Act. Comment Procedures: Written comments should be sent to Felecia Ashe, APA Coordinator, NC State Board of CPA Examiners, PO Box 12827, Raleigh, NC 27605-2827. PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2717 This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory reference: G.S. 150B-21.2. TITLE 10 – DEPARTMENT OF HEALTH AND HUMAN SERVICES Notice is hereby given in accordance with G.S. 150B-21.2 that the DHHS – Division of Medical Assistance intends to amend the rule cited as 10 NCAC 50B .0102. Notice of Rule-making Proceedings was published in the Register on January 15, 2002. Proposed Effective Date: April 1, 2003 Public Hearing: Date: July 3, 2002 Time: 11:30 a.m.-1:00 p.m. Location: Room 132, Kirby Building, 1985 Umstead Dr., Raleigh, NC Reason for Proposed Action: This change is based on recent General Assembly legislation to enact a new optional federal coverage group for women who have been screened for breast or cervical cancer under the Centers for Disease Control and Prevention, breast and cervical cancer early detection program and need treatment for breast or cervical cancer, including precancerous conditions. The women are not otherwise covered under creditable coverage including Medicaid and are under the age of 65. Comment Procedures: Written comments concerning this Rule-making action must be submitted by August 17, 2002 to Portia W. Rochelle, Rule-making Coordinator, Division of Medical Assistance, 1985 Umstead Dr., 2504 Mail Service Center, Raleigh, NC 27699-2504. Fiscal Impact State Local Substantive (>$5,000,000) None CHAPTER 50 – MEDICAL ASSISTANCE SUBCHAPTER 50B - ELIGIBILITY DETERMINATION SECTION .0100 - COVERAGE GROUPS 10 NCAC 50B .0102 OPTIONAL The following optional groups of individuals described by 42 U.S.C. 1396a(a)(10)(A)(ii) and 42 U.S.C. 1396a(a)(10)(C) shall be eligible for Medicaid: (1) Children: (a) Children under age one whose family income is more than the amount established under Item (14), (16), Rule .0101 of this Section and not more than a percent of the federal poverty level established by the General Assembly; (b) Children under age 21 who meet the eligibility requirements of this Subchapter; (c) Qualified children under age 19 as described in Item (4), (6), Rule .0101 of this Section, who were born on or before September 30, 1983, and whose income is not more than 100% of the federal poverty level; (d) Adopted children under age 18 with special needs, as described at 42 U.S.C. 1396a(a)(10)(A)(ii)(VIII). (2) Individuals receiving optional state supplemental payment. (3) Caretaker relatives of eligible dependent children. (4) Pregnant women: (a) Whose countable income is more than the amount established under Item (13), (15), Rule .0101 of this Section and not more than a percent of the federal poverty level established by the General Assembly, or (b) Who, if their countable income exceeds the percent of the federal poverty level, established in Sub-item (4)(a) of this Rule, meet the eligibility criteria for medically needy set forth in this Subchapter. (5) Aged, blind and disabled individuals whose income is at or below 100% of the Federal Poverty Level, adjusted each April 1, and who meet the resource requirements of SSI, but who do not receive cash assistance. (6) Women, as described at 42 U.S.C. 1396a(a)(10)(A)(ii)(XVIII) who: (a) have been screened for breast or cervical cancer under the Centers for Disease Control and Prevention breast and cervical cancer early detection program established under Title XV of the Public Health Service Act in accordance with the requirements of section 1504 of that Act and need treatment for breast or cervical cancer, including a precancerous condition of the breast or cervix; (b) are not otherwise covered under creditable coverage, as defined in PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2718 section 2701(c) of the Public Health Service Act; (c) are not otherwise eligible for Medicaid; and (d) have not attained age 65. Authority G.S. 108A-54; 42 C.F.R. 435.210; 42 C.F.R. 435.222; 42 C.F.R. 435.230; 42 C.F.R. 435.301; 42 C.F.R. 435.308; 42 C.F.R. 435.322; 42 C.F.R. 435.330; 42 U.S.C. 1396(a)(10)(A)(ii); 42 U.S.C. 1396a(a)(10)(C); S.L. 1983, c. 1034, s. 62.2; S.L. 1987, c. 738, s. 69 and 70; S.L. 1989, c. 752, s. 133. TITLE 15A – DEPARTMENT ON ENVIRONMENT AND NATURAL RESOURCES Notice is hereby given in accordance with G.S. 150B-21.2 that the DENR/DWQ intends to amend the rule cited as 15A NCAC 02R .0402. Notice of Rule-making Proceedings was published in the Register on November 15, 2001. Proposed Effective Date: April 1, 2003 Public Hearing: Date: July 15, 2002 Time: 7:00 p.m. Location: Hal Marshall County Services Center, 700 N. Tryon Street, Cooperative Extension office (the room is in the Extension Kitchen), Charlotte, NC, 28202 Date: July 18, 2002 Time: 7:00 p.m. Location: Ground Floor Hearing Room, Archdale Bldg., 512 N. Salisbury St., Raleigh, NC Reason for Proposed Action: An evaluation of the cost of stream restoration projects implemented by the NC Wetlands Restoration Program indicates that the current Schedule of Fees for this activity are inadequate to cover the actual cost of project implementation. In addition, the Environmental Management Commission is interested in incorporating an adjustment for inflation into the Schedule of Fees to minimize the need for rule revision. There is also a need for the NC Wetlands Restoration Program to recoup costs associated with the maintenance and monitoring of easements and land held by the program in absence of a restoration project. Comment Procedures: The Environmental Management Commission encourages written comments. Written as well as oral comments may be submitted at the public hearing and written comments may be submitted to Suzanne Klimek, NC Division of Water Quality – Wetlands Restoration Program, 1619 Mail Service Center, Raleigh, NC 27699-1619. Comments post-marked on or before August 16, 2002 will be made a part of the public record. The Environmental Management Commission is especially interested in comments concerning the fee for stream restoration. The Commission will consider setting the fee higher or lower than the proposed rate of $200 per linear foot of stream included in the proposed revised text. Comments regarding methods for adjusting fees for wetland and stream restoration to account for inflation and costs associated with the monitoring and maintenance of easements and property over time are also encouraged. Data to support comments submitted is strongly encouraged. Fiscal Impact State Local Substantive (>$5,000,000) None CHAPTER 02 - ENVIRONMENTAL MANAGEMENT SUBCHAPTER 02R - WETLANDS RESTORATION PROGRAM SECTION .0400 - WETLANDS RESTORATION FUND 15A NCAC 02R .0402 SCHEDULE OF FEES (a) The amount of payment into the Fund necessary to achieve compliance with compensatory mitigation requirements shall be determined in accordance with Subparagraphs (1) through (3) of this Paragraph. The fee will be based on the acres and types of compensatory mitigation specified in the approved certifications issued by the Department under 33 USC ' 1341; and permits or authorizations issued by the United States Army Corps of Engineers under 33 USC ' 1344. Payments shall be rounded up in increments of linear feet for streams and in 0.25 acre increments for wetlands, e.g. for streams, 520.3 linear feet of compensatory mitigation would be considered as 521 feet, and for wetlands, 2.35 acres of required compensatory mitigation would be considered as 2.5 acres for the purpose of calculating the amount of payment. (1) Classified surface waters other than wetlands as defined in 15A NCAC 02B .0202. The payment shall be one hundred twenty-five dollars ($125.00)two hundred dollars ($200.00) per linear foot of stream. (2) Class WL wetlands as defined in 15A NCAC 02B .0101(c)(8). The payment shall be: (A) Twelve thousand dollars ($12,000.00) per acre for non-riparian wetlands. (B) Twenty four thousand dollars ($24,000.00) per acre for riparian wetlands. (3) Class SWL wetlands as defined in 15A NCAC 02B .0101(d)(4). The payment shall be one hundred twenty thousand dollars ($120,000.00) per acre. (b) The fees outlined in Subparagraphs (a)(1) through (a)(3) of this Rule shall be reviewed annually and compared to the actual cost of restoration activities conducted by the Department, including planning, monitoring and maintenance costs. Based upon this annual review, revisions to Paragraph (a) of this Rule will be recommended when adjustments to this Schedule of Fees are deemed necessary. (c) The fees outlined in Subparagraphs (a)(1) through (a)(3) of this Rule shall be adjusted for inflation on an annual basis using the Cost Construction Index of the Engineering News-Record. This adjustment will occur at the end of each calendar year as follows: the fees in Subparagraphs (a)(1) through (a)(3) of this PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2719 Rule will be multiplied by the annual average (composite of monthly averages from January through December) of the Construction Cost Index and the result will be the increase to that fee for the next fiscal year. The revised fees will be made available via the NC Wetland Restoration Program's web site (h2o.enr.state.nc.us/wrp/index.htm) and become effective on the following July 1st. The first adjustment will be made at the close of calendar year 2003 and the first presentation of fees adjusted for inflation in the North Carolina Register will be made in March, 2004. This process will continue annually thereafter. (d) For properties and easements donated to the NC Wetlands Restoration Program, a fee of three hundred fifty dollars ($350.00) per acre will be charged at the time the land or easement is transferred to the program to cover costs of long-term management of the property. Authority G.S. 143-214.11; 143-214.12; 143-215.3. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Coastal Resources Commission intends to amend the rule cited as 15A NCAC 07B .0702. Notice of Rule-making Proceedings was published in the Register on March 1, 2002. Proposed Effective Date: April 1, 2003 Public Hearing: Date: July 9, 2002 Time: 7:00 p.m. Location: Carteret County Courthouse, Courthouse Square, Beaufort, NC Date: July 24, 2002 Time: 4:30 p.m. Location: Archdale Building, Ground Floor Hearing Room, 512 N. Salisbury St., Raleigh, NC Reason for Proposed Action: Substitute a definition for "probable 404 Wetlands" instead of relying on this term from federal law to convey meaning for local government mapping requirements. Comment Procedures: Written comments may be mailed to Kathy Vinson, Planning and Public Access Manager, Division of Coastal Management, 151-B, HWY 24, Hestron Plaza II, Morehead City, NC 28557. 252-808-2808. Comments will be accepted on this Rule through July 24, 2002. Fiscal Impact State Local Substantive (>$5,000,000) None CHAPTER 07 - COASTAL MANAGEMENT SUBCHAPTER 07B - CAMA LAND USE PLANNING 15A NCAC 07B .0702 ELEMENTS OF CAMA CORE AND ADVANCED CORE LAND USE PLANS (a) Organization of the Plan. The elements in this Rule provide general direction for development of the CAMA Core and Advanced Core Land Use Plans. A detailed Table of Contents shall be included and if the organization does not follow the outline described in this Rule, a matrix shall be included that shows the exact location of the following required elements. (b) Community Concerns and Aspirations: (1) Significant existing and emerging conditions: The plan shall include a description of the dominant growth-related conditions that influence land use, development, water quality, and other environmental concerns in the planning area. (2) Key issues: The plan shall include a description of the land use and development topics most important to the future of the planning area. At a minimum, this description shall include public access, land use compatibility, infrastructure carrying capacity, natural hazard areas, water quality, and local areas of concern as described in Subparagraph (d)(3) (Land Use Plan Management Topics) of this Rule. (3) A community vision: This shall consist of a description of the general physical appearance and form that represents the local government's plan for the future. The community vision shall include statements of general objectives to be achieved by the plan. These objectives shall serve as the foundation for more specific objectives and policies stated elsewhere in the CAMA Land Use Plan. The objectives shall include changes that the local government feels are needed to achieve the planning vision. (c) Analysis of Existing and Emerging Conditions within the planning jurisdiction. The purpose of this element is to provide a sound factual and analytical base that is necessary to support the land use and development policies included in the plan. The analysis shall be based upon the best available data or mapping information from state, federal and local sources. This element shall describe the following: (1) Population, Housing, and Economy. The plan shall include an analysis and discussion of the following data and trends: (A) Population: (i) Permanent population growth trends using data from the two most recent decennial Censuses; (ii) Current permanent and seasonal population estimates; (iii) Key population characteristics; (iv) Age; and (v) Income. (B) Housing stock: (i) Estimate of current housing stock, including permanent and seasonal units, tenure, PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2720 and types of units (single-family, multifamily, and manufactured); and (ii) Building permits issued for single-family, multifamily, and manufactured homes since last plan update. (C) Local economy: Employment by major sectors and description of community economic activity. (D) Projections. Short-term (five and ten year) and long-term (20-year) projections of permanent and seasonal population. (2) Natural systems analysis. The purpose of the natural systems analysis is to describe and analyze the natural features and environmental conditions of the planning jurisdiction, and to assess their capabilities and limitations for development. This analysis shall include: (A) Mapping and analysis of natural features. The 14-digit hydrological units delineated by the Natural Resources Conservation Service shall be used as the basic unit of analysis of natural features. Maps of the following natural features shall be developed with data provided by DCM or other state agencies for analysis and plan development. These maps may be reproduced and included in the CAMA Land Use Plan at the option of the local government. If the maps are not included in the plan, they shall be made available to the public. (i) Areas of Environmental Concern (AECs); (ii) Soil characteristics, including limitations for septic tanks, erodibility, and other factors related to development; (iii) Environmental Management Commission (EMC) water quality classifications (SC, SB, SA, HQW, and ORW) and related use support designations, and Division of Environmental Health (DEH) shellfish growing areas and water quality conditions; (iv) Flood and other natural hazard areas; (v) Storm surge areas; (vi) Non-coastal wetlands-probable 404 wetlands; Non-coastal wetlands including forested wetlands, shrub-scrub wetlands and freshwater marshes; (vii) Water supply watersheds or wellhead protection areas; (viii) Primary nursery areas, where mapped; (ix) Environmentally fragile areas, such as, but not limited to wetlands, natural heritage areas, areas containing endangered species, prime wildlife habitats, or maritime forests; and (x) Additional natural features or conditions identified by the local government. (B) Composite map of environmental conditions: (i) Composite map of environmental conditions: The plan shall include a map that shows the extent and overlap of natural features listed in Part (c)(2)(A) of this Rule and, based on the local government’s determination of the capabilities and limitations of these features and conditions for development, shows the location of the following three categories of land: (I) Class I – land containing only minimal hazards and limitations that may be addressed by commonly accepted land planning and development practices; (II) Class II – land containing development hazards and limitations that may be addressed by methods such as restrictions on types of land uses; special site planning; or the provision of public services; and (III) Class III – land containing serious hazards for development or lands where the PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2721 impact of development may cause serious damage to the functions of natural systems. (ii) The CAMA Land Use Plan shall describe or list the features or conditions selected by the local government for inclusion in each class. (C) Environmental conditions. The plan shall provide an assessment of the following environmental conditions and features and discuss their limitations or opportunities for development: (i) Water quality: (I) Status and changes of surface water quality, including impaired streams from the most recent N.C. Division of Water Quality Basinwide Water Quality Plans, 303(d)List and other comparable data; (II) Current situation and trends on permanent and temporary closures of shellfishing waters as determined by the Report of Sanitary Survey by the Shellfish Sanitation Section of the N.C. Division of Environmental Health; (III) Areas experiencing chronic wastewater treatment system malfunctions; and (IV) Areas with water quality or public health problems related to non-point source pollution. (ii) Natural hazards: (I) Areas subject to storm hazards such as recurrent flooding, storm surges and high winds; (II) Areas experiencing significant shoreline erosion as evidenced by the presence of threatened structures or public facilities; and (III) Where data is available, estimates of public and private damage resulting from floods and wind that has occurred since the last plan update. (iii) Natural resources: (I) Environmentally fragile areas (as defined in Part (c)(2)(A)(ix) of this Rule) or areas where resource functions may be impacted as a result of development; and (II) Areas containing potentially valuable natural resources. These may include, but are not limited to the following: beach quality sand deposits, protected open space, and agricultural land, that may be impacted or lost as a result of incompatible development. (3) Analysis of Land Use and Development. The purpose of the analysis of land use and development is to describe and quantify existing patterns of land uses, identify potential land use and land use/water use conflicts, determine future development trends, and project future land needs. The plan shall include the following mapping and analysis of existing land use: (A) A map of land including the following: Residential, commercial, industrial, institutional, public, dedicated open space, agriculture, forestry, confined animal feeding operations, and undeveloped; (B) The land use analysis shall include the following: PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2722 (i) Table that shows estimates of the land area allocated to each land use; (ii) Description of any land use conflicts; (iii) Description of any land use – water quality conflicts; (iv) Description of development trends using indicators. These development trends may include, but are not limited to the following: building permits and platted but un-built lots; and (v) Location of areas expected to experience development during the five years following plan certification by the CRC and a description of any potential conflicts with Class II or Class III land identified in the natural systems analysis. (C) Historic, cultural, and scenic areas designated by a state or federal agency or by local government. These areas and sites shall be located on either the existing land use map or a separate map; and (D) Projections of future land needs. The analysis shall include short term (five and ten year) and long term (20-year) projections of residential land area needed to accommodate the planning jurisdiction’s projected future permanent and seasonal population (population projections as defined in Part (c)(1)(D) (of this Rule (Analysis of Existing and Emerging Conditions). The projections of land needs may be increased up to 50% to allow for unanticipated growth and to provide market flexibility. For local governments experiencing low or no growth (as shown in Figure 1 in 15A NCAC 7B .0701), the projections of land needs may consider economic strategies in the final calculations. (4) Analysis of Community Facilities. The purpose of the analysis of community facilities is to evaluate existing and planned capacity, location, and adequacy of key community facilities that serve the community’s existing and planned population and economic base; that protect important environmental factors such as water quality; and that guide land development in the coastal area. This analysis shall include: (A) Public and private water supply and wastewater systems. The analysis of water and sewer systems shall include a description and map(s) of existing public and private systems, including existing condition and capacity; location of pipelines, documentation of any overflows, bypasses, or other problems that may degrade water quality or constitute a threat to public health; existing and planned service areas; and future needs based on population projections. If any required information is not available for private systems, the local government shall so state in the plan and this factor may be eliminated from the analysis. (B) Transportation systems. The analysis of the transportation system shall include a map showing: the existing highway system; any segments deemed by the North Carolina Department of Transportation (NCDOT) as having unacceptable service levels; highway facilities on the current thoroughfare plan; and facilities on the current transportation improvement program. The analysis shall also assess the impact of planned highway or other transportation facilities on growth levels and development patterns. (C) Stormwater systems. The analysis of public and permitted private stormwater systems shall include identification of existing drainage problems in the planning area; identification of water quality issues related to point-source discharges of stormwater runoff; and an overview of potential stormwater system requirements for local governments subject to the EPA’s Storm Water Phase II Final Rules. (D) Other facilities. The local government may include additional facilities and services such as solid waste and health and safety in the analysis. (5) Land Suitability Analysis. The purpose of the land suitability analysis is to determine the planning area's supply of land suited for PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2723 development based on the following considerations: natural system constraints, compatibility with existing land uses and development patterns, the existing land use and development criteria of local, state, and federal agencies and the availability and capacity of water, sewer, stormwater management facilities, and transportation systems. The analysis shall include a land suitability map showing vacant or under-utilized land that is suitable for development. The following factors shall be considered to assess land suitability: (A) Water quality; (B) Land Classes I, II, and III summary environmental analysis; (C) Proximity to existing developed areas and compatibility with existing land uses; (D) Potential impact of development on areas and sites designated by local historic commissions or the North Carolina Department of Cultural Resources as historic, culturally significant, or scenic; (E) Land use and development requirements of local development regulations, CAMA Use Standards and other applicable state regulations, and applicable federal regulations; and (F) Availability of community facilities, including water, sewer, stormwater and transportation. (6) Review of Current CAMA Land Use Plan. The purpose of the review of the current CAMA Land Use Plan is for the local governing body to review its success in implementing the policies and programs adopted in the plan and the effectiveness of those policies in achieving the goals of the plan. The review shall include consideration of the following factors: (A) Consistency of existing land use and development ordinances with current CAMA Land Use Plan policies; (B) Adoption of the land use plan's implementation measures by the governing body; and (C) Efficacy of current policies in creating desired land use patterns and protecting natural systems. (d) Plan for the Future. This element of the plan is intended to guide the development and use of land in the planning jurisdiction in a manner that achieves its goals for the community and CAMA. Policies affecting AECs shall also be used in making CAMA permit decisions. The plan for the future includes the local government's goals, land use and development policies, and future land use map. (1) Land use and development goals. The following shall be considered in the development of the plan's goals: (A) Community concerns and aspirations identified at the beginning of the planning process; and (B) Needs and opportunities identified in the analysis of existing and emerging conditions. (2) Policies: (A) Policies included in the land use plan shall be consistent with the goals of the CAMA, shall address the CRC management topics for land use plans, and comply with all state and federal rules. The CAMA Land Use Plan shall demonstrate how the land use and development goals, policies and future land use map, as required in Subparagraph (d)(4) of this Rule, will guide the development and use of land in the planning jurisdiction in a manner that is consistent with the specific management goal(s), planning objective(s) and land use plan requirements of each Management Topic. (B) The plan shall contain a description of the type and extent of analysis completed to determine the impact of CAMA Land Use Plan policies on the management topics; a description of both positive and negative impacts of the land use plan policies on the management topics; and a description of the policies, methods, programs and processes to mitigate any negative impacts on applicable management topics. (C) The plan shall contain a clear statement that the governing body either accepts state and federal law regarding land uses and development in AECs or, that the local government's policies exceed the requirements of state and federal agencies. If local policies exceed the State and Federal requirements, the CAMA Land Use Plan shall identify which policies exceed these requirements and to what extent. If the governing body intends to rely on Federal and State laws and regulations it shall reference these in the plan. (3) Land Use Plan Management Topics. The purposes of the CRC management topics are to insure that CAMA Land Use Plans support the goals of CAMA, to define the CRC's expectations for the land use planning process, and to give the CRC a substantive basis for PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2724 review and certification of CAMA Land Use Plans. Each of the following management topics (Public Access, Land Use Compatibility, Infrastructure Carrying Capacity, Natural Hazard Areas, Water Quality, and Local Areas of Concern) include three components: a management goal, a statement of the CRC's planning objective, and requirements for the CAMA Land Use Plans. (A) Public Access: (i) Management Goal: Maximize public access to the beaches and the public trust waters of the coastal region. (ii) Planning Objective: Develop comprehensive policies that provide beach and public trust water access opportunities for the public along the shoreline within the planning jurisdiction. Policies shall address access needs and opportunities, include strategies to develop public access, and identify feasible funding options. (iii) Land Use Plan Requirements: Land use plan policies on ocean and public waterfront access shall establish local criteria for frequency and type of access facilities. These policies shall contain provisions for public access for all segments of the community, including persons with disabilities, and shall establish access criteria for beach areas targeted for nourishment. (B) Land Use Compatibility: (i) Management Goal: Ensure that development and use of resources or preservation of land minimizes direct and secondary environmental impacts, avoids risks to public health, safety and welfare and is consistent with the capability of the land based on considerations of interactions of natural and manmade features. (ii) Planning Objective: (I) Adopt and apply local development policies, that balance protection of natural resources and fragile areas with economic development. (II) Policies to provide clear direction to assist local decision making and consistency findings for zoning, divisions of land, and public and private projects. (iii) Land Use Plan Requirements: (I) Establish building intensity and density criteria, such as floor area ratio and units per acre, consistent with the land suitability analysis for each land use designation on the Future Land Use Map. (II) Establish local mitigation criteria and concepts. These may include, but are not limited to the following: cluster subdivision design, enacting local buffers, impervious surface limits, and effective innovative stormwater management alternatives. (C) Infrastructure Carrying Capacity: (i) Management Goal: Ensure that public infrastructure systems are appropriately sized, located and managed so the quality and productivity of AECs and other fragile areas are protected or restored. (ii) Planning Objective: Establish level of service policies and criteria for infrastructure consistent with Part (c)(3)(D) (Projections of Future Land Needs) of this Rule. (iii) Land Use Plan Requirements: (I) Identify/establish service area PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2725 boundaries for existing and future infrastructure. (II) Correlate future land use map categories with existing and planned infrastructure such as wastewater, water infrastructure and transportation. (D) Natural Hazard Areas: (i) Management Goal: Conserve and maintain barrier dunes, beaches, flood plains, and other coastal features for their natural storm protection functions and their natural resources giving recognition to public health, safety, and welfare issues. (ii) Planning Objective: Develop policies that minimize threats to life, property, and natural resources resulting from development located in or adjacent to hazard areas, such as those subject to erosion, high winds, storm surge, flooding, or sea level rise. (iii) Land Use Plan Requirements: (I) Develop location, density, and intensity criteria for new, existing development and redevelopment including public facilities and infrastructure so that they can better avoid or withstand natural hazards. (II) Correlate existing and planned development with existing and planned evacuation infrastructure. (E) Water Quality: (i) Management Goal: Maintain, protect and where possible enhance water quality in all coastal wetlands, rivers, streams and estuaries. (ii) Planning Objective: Adopt policies for coastal waters within the planning jurisdiction to help ensure that water quality is maintained if not impaired and improved if impaired. (iii) Land Use Plan Requirements: (I) Devise policies that help prevent or control nonpoint source discharges (sewage and storm water) such as, but not limited to the following: impervious surface limits, vegetated riparian buffers, natural areas, natural area buffers, and wetland protection. (II) Establish policies and land use categories aimed at protecting open shellfishing waters and restoring closed or conditionally closed shellfishing waters. (F) Local Areas of Concern: (i) Management Goal: Integrate local concerns with the overall goals of CAMA in the context of land use planning. (ii) Planning Objective: Identify and address local concerns and issues, such as cultural and historic areas, scenic areas, economic development, downtown revitalization or general health and human services needs. (iii) Land Use Plan Requirements: Evaluate local concerns and issues for the development of goals, policies and implementation strategies. These may include timelines and identification of funding options. (4) Future land use map. This map depicts application of the policies for growth and development, and the desired future patterns of land use and land development with PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2726 consideration given to natural system constraints and infrastructure policies. The local government shall include such categories and descriptions of land uses and development as are required to accurately illustrate the application of its policies. At a minimum, the map shall show the following: (A) 14-digit hydrological units encompassed by the planning area; (B) areas and locations planned for conservation or open space and a description of compatible land uses and activities; (C) areas and locations planned for future growth and development with descriptions of the following characteristics: (i) predominant and supporting land uses that are encouraged in each area; (ii) overall density and development intensity planned for each area; and (iii) infrastructure required to support planned development in each area. (D) areas in existing developed areas for infill, preservation, and redevelopment; (E) existing and planned infrastructure, including major roads, water, and sewer. The local government may use additional or more detailed categories if required to depict its land use policies. If the future land use map shows development patterns or land uses that are not consistent with the natural systems analysis, or the land suitability analysis, then the plan shall include a description of the steps that the local government shall take to mitigate the impacts. In addition, the plan shall include an estimate of the cost of any community facilities or services that shall be extended or developed. The amount of land allocated to various uses shall be calculated and compared to the projection of land needs. The amount of land area thus allocated to various uses may not exceed projected needs as delineated in Part (c)(3)(D) of this Rule (Projections of Future Land Needs). (e) Tools for Managing Development. This element of the plan provides a description of the management tools that the local government selects and the actions to be taken to implement the CAMA Land Use Plan. It also includes a five-year schedule for implementation. This element shall at a minimum include: (1) Guide for land use decision-making. Describe the specific role and the status of the land use plan policies and future land use plan map in local decisions regarding land use and development. (2) Existing development program. Describe the community’s existing development management program, including local ordinances, codes, and policies, state and federal laws and regulations, and the role that the existing management program plays in implementing the plan. This description shall also include the community's approach to coordinating these codes and rules to implement the land use and development policies. (3) Additional tools. Describe any of the following additional tools selected by the local government to implement the CAMA land use plan policies. (A) Ordinances: (i) Amendments or adjustments in existing development codes required for consistency with the plan; (ii) New ordinances or codes to be developed; (B) Capital improvements program. New, upgraded or expanded community facilities, such as but not limited to the following: water, sewer, stormwater, transportation, and other facilities, and policies regarding connections to and extensions of community facilities; (C) Acquisition program. Planned acquisition of property, easements, or rights-of-way; and (D) Specific projects to reach goals. (4) Action plan/schedule. Describe the priority actions that will be taken by the local government to implement the CAMA Land Use Plan and specify the fiscal year(s) in which each action is anticipated to start and finish. The document shall contain a description of the specific steps that the local government plans to take to involve the public in monitoring implementation of the CAMA Land Use Plan, including the adoption of local ordinances that affect AECs. The action plan shall be used to prepare the implementation status report for the CAMA Land Use Plan. Authority G.S. 113A-102, 113A-107(a); 113A-110, 113A-111; 113A-124. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Coastal Resources Commission intends to amend the rules cited as 15A NCAC 07H .1101, .1201, .1205, 1301, .1401, .2001, .2101, .2201, .2401. Notice of Rule-making Proceedings was published in the Register on January 15, 2002 and March 15, 2002. Proposed Effective Date: April 1, 2003 Public Hearing: Date: July 9, 2002 PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2727 Time: 7:00 p.m. Location: Carteret County Courthouse, Courthouse Square, Beaufort, NC Date: July 24, 2002 Time: 4:30 p.m. Location: Ground Floor Hearing Room, Archdale Building, 512 N. Salisbury St., Raleigh, NC Reason for Proposed Action: 15A NCAC 07H .1101, .1201, .1301, .1401, .2001, .2101, .2201, 2401 – The proposed changes would allow more projects to become eligible for CAMA General Permits if they are located on the sound side of a barrier island and within the Ocean Hazards Area of Environmental Concern. At present, many of the CAMA and Dredge and Fill General Permits prohibit development in the Ocean Hazard AEC. However, the situation has changed in recent years due to the significant inland expanse of high hazard flood areas. Because of the changes in these areas, the CRC feels that there is a need to expand the availability for General Permits. 15A NCAC 07H .1205 – Staff has reviewed the specific conditions of the CRC's General Permit for Construction of Piers, Docks and Boat Houses. Staff believes that these proposed changes will allow piers that existed on or before July 1, 2001 to be structurally modified outside of their footprint in a manner that will minimize impacts to adjacent coastal wetlands, estuarine waters and/or public trust areas. Comment Procedures: Comments may be submitted to Charles S. Jones, Assistant Director, Division of Coastal Management, 151-B, Hwy 24, Hestron Plaza II, Morehead City, NC 28557, 252-808-2808. Comments will be accepted on these Rules through July 24, 2002. Fiscal Impact State Local Substantive (>$5,000,000) None CHAPTER 07 – COASTAL MANAGEMENT SUBCHAPTER 07H - STATE GUIDELINES FOR AREAS OF ENVIRONMENTAL CONCERN SECTION .1100 - GENERAL PERMIT FOR CONSTRUCTION OF BULKHEADS AND THE PLACEMENT OF RIPRAP FOR SHORELINE PROTECTION IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1101 PURPOSE This permit will allow the construction of bulkheads and the placement of riprap for shoreline protection in the public trust waters and estuarine waters AECs according to authority provided in Subchapter 07J .1100 and according to the following guidelines. This permit will not apply to shoreline protection along the oceanfront or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines that feature characteristics of the Estuarine Shoreline AEC. Such features include the presence of wetland vegetation, lower wave energy and lower erosion rates than the adjoining Ocean Erodible Area.within the ocean hazard AEC. Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. SECTION .1200 - GENERAL PERMIT FOR CONSTRUCTION OF PIERS: DOCKS: AND BOAT HOUSES IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1201 PURPOSE This permit will allow the construction of new piers, docks, and boat houses in the estuarine and public trust waters AECs and construction of new piers and docks within coastal wetlands AECs according to the authority provided in Subchapter 07J .1100 and according to the following guidelines. This permit will not apply to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines that feature characteristics of the Estuarine Shoreline AEC. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than the adjacent Ocean Erodible Area.the Ocean Hazard AEC. Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. 15A NCAC 07H .1205 SPECIFIC CONDITIONS (a) Piers, docks, and boat houses may extend or be located up to a maximum of 400 feet from the normal high water line, or the normal water level, whichever is applicable. (b) Piers, docks, and boat houses shall not extend beyond the established pier length along the same shoreline for similar use. This restriction shall not apply to piers 100 feet or less in length unless necessary to avoid unreasonable interference with navigation or other uses of the waters by the public. The length of piers shall be measured from the waterward edge of any wetlands that border the water body. (c) Piers longer than 200 feet shall be permitted only if the proposed length gives access to deeper water at a rate of at least one foot at each 100 foot increment of pier length longer than 200 feet, or if the additional length is necessary to span some obstruction to navigation. Measurements to determine pier lengths shall be made from the waterward edge of any coastal wetland vegetation which borders the water body. (d) Piers and docks shall be no wider than six feet and shall be elevated at least three feet above any coastal wetland substrate as measured from the bottom of the decking. (e) Any portion of a pier (either fixed or floating) extending from the main structure and six feet or less in width shall be considered either a "T" or a finger pier. (f) Any portion of a pier (either fixed or floating) greater than six feet wide shall be considered a platform or deck. (g) "T"s, finger piers, platforms, and decks of piers on lots with shorelines 100 feet or greater in length shall not exceed a combined total area of 400 square feet. The combined total area for lots less than 100 feet shall not exceed four square feet per linear foot of shoreline. (h) Platforms and decks shall have no more than six feet of any dimension extending over coastal wetlands. PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2728 (i) The width requirements established in Paragraphs (d), (e), (f), (g) and (h) of this Rule shall not apply to pier structures in existence on or before July 1, 2001 when structural modifications are needed to prevent or minimize storm damage. In these cases, pilings and cross bracing may be used to provide structural support as long as they do not extend more than two feet on either side of the principal structure. These modifications may not be used to expand the floor decking of platforms and piers. (i)(j) Boathouses shall not exceed 400 square feet and shall have sides extending no further than one-half the height of the walls and only covering the top half of the walls. Measurements of square footage shall be taken of the greatest exterior dimensions. Boathouses shall not be allowed on lots with less than 75 linear feet of shoreline. (j)(k) Areas enclosed by boat lifts shall not exceed 400 square feet. (k)(l) Piers, docks, decks, platforms and boat houses shall be single story. They may be roofed but shall not be designed to allow second story use. (l)(m) Pier alignments along federally maintained channels must also meet Corps of Engineers regulations for pier construction pursuant to Section 10 of the Rivers and Harbors Act. (m)(n) Piers, docks, and boat houses shall in no case extend more than 1/4 the width of a natural water body, human-made canal or basin. Measurements to determine widths of the water body, human-made canals or basins shall be made from the waterward edge of any coastal wetland vegetation which borders the water body. The 1/4 length limitation shall not apply when the proposed pier is located between longer piers within 200 feet of the applicant's property. However, the proposed pier shall not be longer than the pier head line established by the adjacent piers, nor, longer than 1/3 the width of the water body. (n)(o) Piers, docks and boat houses shall not interfere with the access to any riparian property, and shall have a minimum setback of 15 feet between any part of the pier and the adjacent property lines extended into the water at the points that they intersect the shoreline. The minimum setbacks provided in the rule may be waived by the written agreement of the adjacent riparian owner(s), or when two adjoining riparian owners are co-applicants. Should the adjacent property be sold before construction of the pier commences, the applicant shall obtain a written agreement with the new owner waiving the minimum setback and submit it to the Division of Coastal Management prior to initiating any development of the pier, dock, or boat house. The line of division of areas of riparian access shall be established by drawing a line along the channel or deep water in front of the property, then drawing a line perpendicular to the line of the channel so that it intersects with the shore at the point the upland property line meets the water's edge. Application of this Rule may be aided by reference to the approved diagram in Paragraph (q) of this Rule illustrating the rule as applied to various shoreline configurations. Copies of the diagram may be obtained from the Division of Coastal Management. When shoreline configuration is such that a perpendicular alignment cannot be achieved, the pier shall be aligned to meet the intent of this Rule to the maximum extent practicable. (o)(p) Piers, and mooring facilities shall be designed to provide docking space for no more than two boats. (p)(q) Applicants for authorization to construct a dock or pier shall provide notice of the permit application to the owner of any part of a shellfish franchise or lease over which the proposed dock or pier would extend. The applicant shall allow the lease holder the opportunity to mark a navigation route from the pier to the edge of the lease. (q)(r) The diagram shown below illustrates the various shoreline configurations. PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2729 Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. SECTION .1300 - GENERAL PERMIT TO MAINTAIN: REPAIR AND CONSTRUCT BOAT RAMPS ALONG ESTUARINE AND PUBLIC TRUST SHORELINES AND INTO ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1301 PURPOSE A permit under this Section shall allow for the construction of boat ramps along estuarine and public trust shorelines and into estuarine and public trust waters AECs according to the authority provided in Subchapter 07J .1100 and according to the Rules in this Section. This permit shall not apply This permit will not apply to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines that feature characteristics of the Estuarine Shoreline AEC. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than the adjacent Ocean Erodible Area. to the Ocean Hazard AEC. Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. SECTION .1400 - GENERAL PERMIT FOR CONSTRUCTION OF WOODEN GROINS IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1401 PURPOSE This permit will allow the construction of wooden groins in the estuarine and public trust waters AECs according to the authority provided in Subchapter 07J .1100 and according to the following guidelines. This general permit shall not apply to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines that feature characteristics of the Estuarine Shoreline AEC. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than the adjacent Ocean Erodible Area. the ocean hazard AEC. Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2730 SECTION .2000 - GENERAL PERMIT FOR AUTHORIZING MINOR MODIFICATIONS AND REPAIR TO EXISTING PIER/MOORING FACILITIES IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .2001 PURPOSE This permit will allow for reconfiguration, minor modifications, repair and improvements to existing pier and mooring facilities in estuarine waters and public trust areas according to the authority provided in Subchapter 07J .1100 of this Chapter and according to the following guidelines. This permit shall not apply This permit will not apply to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines that feature characteristics of the Estuarine Shoreline AEC. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than the adjacent Ocean Erodible Area.the Ocean Hazard AEC. Authority G.S. 113A-107; 113A-118.1. SECTION .2100 - GENERAL PERMIT FOR CONSTRUCTION OF MARSH ENHANCEMENT BREAKWATERS FOR SHORELINE PROTECTION IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .2101 PURPOSE This general permit shall allow the construction of offshore parallel breakwaters, made from wood, plastic lumber, or metal sheet piling for shoreline protection in conjunction with existing or created coastal wetlands. This permit shall only be applicable where a shoreline is experiencing erosion in public trust areas and estuarine waters according to authority provided in 15A NCAC 07J .1100 and according to the procedures and conditions outlined in this subchapter. This permit shall not apply to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines within the ocean hazard AEC, the inlet hazard AEC, or waters adjacent to these. AEC's, with the exception of those portions of shoreline within the Inlet Hazard Area AEC that feature characteristics of Estuarine Shorelines. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than in adjoining Ocean Erodible Area. Authority G.S. 113A-107; 113A-118.1. SECTION .2200 - GENERAL PERMIT FOR CONSTRUCTION OF FREESTANDING MOORINGS IN ESTUARINE WATERS AND PUBLIC TRUST AREAS AND OCEAN HAZARD AREAS 15A NCAC 07H .2201 PURPOSE This permit shall allow the construction of freestanding moorings in the estuarine waters and public trust areas AECs according to the procedures provided in 15A NCAC 07J .1100 and according to the rules in this Section. This permit shall not apply to waters adjacent to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines that feature characteristics of the Estuarine Shoreline AEC. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than the adjacent Ocean Erodible Area.the Ocean Hazard AEC. Authority G.S. 113A-107; 113A-118.1. SECTION .2400 - GENERAL PERMIT FOR PLACEMENT OF RIPRAP FOR WETLAND PROTECTION IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .2401 PURPOSE The general permit for placement riprap for wetland protection in estuarine and public trust waters shall allow the placement of riprap immediately adjacent to and waterward of wetlands. This permit shall only be applicable where a shoreline is experiencing erosion in public trust areas and estuarine waters according to authority provided in 15A NCAC 07J .1100 and according to the rules in this Section. This permit shall not apply to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC within the Ocean Hazard System of Areas of Environmental Concern (AEC) or waters adjacent to these AEC's with the exception of those portions of shoreline within the Inlet Hazard Area AEC that feature characteristics of Estuarine Shorelines. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than in the adjoining Ocean Erodible Area. Authority G.S. 113A-107; 113A-118.1. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the DENR – Forest Resources intends to adopt the rules cited as 15A NCAC 09C .1201-.1227. Notice of Rule-making Proceedings was published in the Register on February 1, 2002 and April 15, 2002. Proposed Effective Date: April 1, 2003 Public Hearing: Date: July 9, 2002 Time: 5:00 p.m. – 8:00 p.m. Location: Transylvania County Courthouse, 28 E. Main St., Brevard, NC Reason for Proposed Action: To initiate rules to provide for public safety and appropriate use of the DuPont State Forest. Comment Procedures: Written comments will be accepted through July 31, 2002 and should be addressed to DuPont State Forest Supervisor, NC Division of Forest Resources, 14 Gaston Mountain Rd., Asheville, NC 28806-9101. Fiscal Impact State Local Substantive (>$5,000,000) None CHAPTER 09 – DIVISION OF FOREST RESOURCES PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2731 SUBCHAPTER 09C – DIVISION PROGRAMS SECTION .1200 ��� DUPONT STATE FOREST 15A NCAC 09C .1201 PURPOSE (a) This Section coordinates all uses of DuPont State Forest in order to promise its best use for the most people. (b) DuPont State Forest is located in southwest Henderson and northeast Transylvania Counties in western North Carolina. Authority G.S. 113-8; 113-34; 113-35. 15A NCAC 09C .1202 DEFINITIONS OF TERMS Whenever used in this Subchapter: (1) "Bridle Trail" means any trail maintained for persons riding on horseback. (2) "Public nudity" means a person's intentional failure to cover with a fully opaque covering the person's genitals, pubic area, anal area, or female breasts below a point from the top of the areola while in a public place. (3) "Hiking Trail" means any trail maintained for pedestrians. (4) "Bathing Area" means any beach or water area designated by the department as a bathing area. (5) "Permit" means any written license issued by or under the authority of the department permitting the performance of a specified act or acts. (6)_____"Group" means a number of individuals related by a common factor, having structured organization, defined leadership, and whose activities are directed by a charter or written bylaws. Authority G.S. 113-35. 15A NCAC 09C .1203 PERMITS (a) A permit authorizes an act only when that act strictly conforms with the terms contained on the permit, or in applicable rules, and with existing state laws. (b) Any violation of the permit constitutes grounds for its revocation by the department. In case of revocation the permit holder shall forfeit to the department all money for the permit. Furthermore, the department shall consider the permit holder, together with his agents and employees who violated such terms, jointly and severally liable to the department for all damages suffered in excess of money so forfeited. However, neither the forfeiture of such money, nor the recovery of such damages, nor both, in any manner relieves such person from statutory punishment for any violation of a provision of any state forest rule. (c) A permit may be issued to a person or a group as defined in Rule .1202 of this Section engaged in an activity whose purpose is civic, educational, scientific, or non-profit; to government entities engaged in training activities; or to persons or groups performing volunteer maintenance activities on the forest that are authorized in advance by the forest supervisor. (d) Applications for permits shall be made at the State Forest Office during business hours. Authority G.S. 113-8; 113-34; 113-35. 15A NCAC 09C .1204 ROCK OR CLIFF CLIMBING AND RAPPELLING A person shall not engage in rock or cliff climbing or rappelling in DuPont State Forest, except at designated areas and only after obtaining a special use permit from a forest official. Application for permits may be made as provided by Rule .1203 of this Section. Authority G.S. 113-35. 15A NCAC 09C .1205 BATHING OR SWIMMING (a) A person shall not dive or jump from any falls or rocks or overhangs into any body of water. (b) A person shall not bathe or swim in any body of water in the Forest, except at such times and in such places as the Division may designate as swimming areas. (c) Public Nudity (1) Public nudity, including public nude bathing, is prohibited in all of DuPont State Forest lands or waters. This Rule does not apply to the enclosed portions of bathhouses, restrooms, tents and recreational vehicles. (2) Children under the age of five are exempt from this restriction. Authority G.S. 14-190.9; 113-35. 15A NCAC 09C .1206 HUNTING (a) Hunting Restricted. A person shall not hunt any wild bird or wild animal in the State Forest, except that: (1) a person may hunt game birds or game animals: (A) during open seasons prescribed by the North Carolina Wildlife Resources Commission; and (B) provided that he has a valid game lands use permit and special hunt permit in addition to an appropriate hunting or sportsman's license. (2) Safety Requirements. A hunter shall not: (A) be under the influence of alcohol; (B) discharge a firearm or bow and arrow from a vehicle, or within 150 yards of any building or designated camping area, or within, into, or across a posted safety zone; (C) discharge a firearm within, into, or across a posted restricted zone; (D) drive a motorized vehicle other than on roads and trails maintained for vehicular use, or in excess of 20 miles per hour; and (E) obstruct a state forest road or trail. (b) Tree Stands. Hunters shall not erect or occupy any tree stand attached to any tree, unless they use a portable stand that leaves no metal in the tree. (c) Trapping. A person may trap furbearing animals during open seasons, except in posted safety zones, provided that he has a valid PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2732 game lands use permit and trapping license, and provided that he obeys all state laws, rules and regulations. Authority G.S. 113-8; 113-34; 113-35; 113-264(a). 15A NCAC 09C .1207 FISHING A person may fish in any stream in DuPont State Forest provided that he has a valid state or county fishing license, and provided that he obeys all state fishing laws, rules and regulations. Authority G.S. 113-8; 113-34; 113-35. 15A NCAC 09C .1208 ANIMALS AT LARGE (a) No person shall have any dog, cat or other pet upon DuPont State Forest unless the animal is on a leash no longer than six feet and under the control of the owner or some other person. Hunting dogs used in accordance with NC Wildlife Commission Game Lands Regulations pertaining to DuPont State Forest are exempt from this Rule. (b) No dog, cat or other pet shall be allowed to enter the toilet or bathhouse on DuPont State Forest except assistance animals for persons with disabilities. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1209 BOATING (a) Privately owned boats or canoes may be operated in any waters on DuPont State Forest, provided they are manually operated or propelled by means of oars, paddles or electric trolling motors. Boats with gas motors attached are prohibited on any waters of the forest, except for use by rescue squads, diving teams, or other organizations conducting emergency operations. (b) Operation of boats or canoes within 50 yards of the water intake on Lake Julia is prohibited. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1210 CAMPING No person shall spend the night or maintain a camp in DuPont State Forest except under permit, and at such places and for such periods as may be designated. Application for permits may be made as provided by Rule .1203 of this Section. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1211 SPORTS AND GAMES No games or athletic contests shall be allowed except in places as may be designated. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1212 HORSES (a) No person shall use, ride or drive a horse except to, from, or along a bridle path or other designated area. (b) Each user shall remove from designated parking areas all residues (including manure) generated by his/her horse. (c) When dismounted, horses shall be tied in such a manner as to prevent damage to trees or any other plants. (d) When crossing rivers or streams, horse use shall be confined to bridges or culverts if available. (e) Users shall possess valid Coggins papers for each horse and make them available for inspection upon request. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1213 BICYCLES (a) No person shall use or ride a bicycle except on a road or trail authorized for use by motor vehicles or specifically designated as a bicycle trail. (b) When crossing rivers or streams, bicycle use shall be confined to bridges or culverts if available. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1214 EXPLOSIVES No person shall carry or possess any explosives or explosive substance including fireworks upon DuPont State Forest. This does not apply to employees of the department when they engage in construction or maintenance of the area. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1215 FIREARMS No person except authorized forest law enforcement officers of the department, game protectors, and bona fide peace officers on official duty shall carry or possess firearms of any description, or air guns or pellet guns, on or upon DuPont State Forest. Properly licensed hunters that meet the requirements of Rule .1206 of this Section are exempt from this Rule. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1216 FIRES No person shall build or start a fire in any area unless that area is designed for such purpose. These areas include fireplaces and grills made for this purpose. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1217 DISORDERLY CONDUCT No person visiting on DuPont State Forest shall disobey a lawful order of a state forest supervisor, ranger, assistant ranger, or law enforcement officer or endanger or disrupt others. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1218 INTOXICATING BEVERAGES AND DRUGS No person shall use or be intoxicated or under the influences of intoxicants, marijuana, or non-prescribed narcotic drugs as defined in G.S. 90-87. The public display or use of beer, wine, whiskey, other intoxicating beverages, marijuana or non-prescribed narcotic drugs is hereby prohibited. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1219 COMMERCIAL ENTERPRISES No person, being without a permit, shall in or on DuPont State Forest, sell or offer for sale, hire, or lease, any object or PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2733 merchandise, property, privilege, service or any other thing, or engage in any business. Application for permits may be made as provided by Rule .1203 of this Section. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1220 NOISE REGULATION The production or emission in DuPont State Forest by any person of noises, amplified speech, music or other sounds that annoy, disturb or frighten forest users, in the opinion of a Division of Forest Resources employee, is prohibited. Authority G.S. 113-34; 113-35; 113-264(a). 15A NCAC 09C .1221 MEETINGS AND EXHIBITIONS A person shall not hold any meetings or exhibitions, perform any ceremony, or make any speech, on DuPont State Forest without a permit. Application for permits may be made as provided by Rule .1203 of this Section. Authority G.S. 113-35. 15A NCAC 09C .1222 ALMS AND CONTRIBUTIONS A person shall not solicit alms or contributions for any purpose within DuPont State Forest, unless approved by the Division of Forest Resources, and such contributions will be used to benefit the forest. Authority G.S. 113-35. 15A NCAC 09C .1223 AVIATION (a) Except as noted in Paragraphs (b) and (c) of this Rule, a person shall not voluntarily bring, land or cause to descend or alight, ascend or take off within or upon any DuPont State Forest area, any airplane, flying machine, balloon, parachute, glider, hang glider, or other apparatus for aviation. Voluntarily in this connection shall mean anything other than a forced landing. (b) In forest areas where aviation activities are part of the planned forest activities, a special use permit will be required. Application for permits may be made as provided by Rule .1203 of this Section. (c) Emergency aircraft such as air ambulances and fire fighters are exempt from this Rule. Authority G.S. 113-35. 15A NCAC 09C .1224 EXPULSION For violation of the Rules in this Section, the department may withdraw the right of a person or persons to remain in DuPont State Forest. Authority G.S. 113-8; 113-34; 113-35. 15A NCAC 09C .1225 MOTORIZED VEHICLES: WHERE PROHIBITED A person shall not drive a motorized vehicle in the forest within or upon a safety zone, walk, bridle trail, fire trail, service road, or any part of the forest not designated for such purposes. Motor bikes, mini-bikes, all terrain vehicles, and unlicensed motor vehicles are prohibited within the forest. Authority G.S. 113-35. 15A NCAC 09C .1226 FLOWERS: PLANTS: MINERALS: ETC. (a) A person shall not remove, destroy or injure any tree, flower, artifact, fern, shrub, rock or other plant or mineral in any forest area. Silvicultural activities performed in accordance with the DuPont State Forest Management Plan, as approved by the Director of the Division of Forest Resources, are exempt from this Rule. (b) A person shall not collect plants, animals, minerals or artifacts from any forest area without first having obtained a collector's permit. Application for permits may be made as provided by Rule .1203 of this Section. Authority G.S. 113-35. 15A NCAC 09C .1227 FEES AND CHARGES The following fee schedule shall apply at DuPont State Forest. Payment of the appropriate fee shall be a prerequisite for the use of the public service facility or convenience provided. Unless otherwise provided in this Rule, the number of persons camping at a particular site may be limited by the forest supervisor depending upon the size of the camping group and the size and nature of the campsite. The forest supervisor may waive fees for groups performing volunteer trail maintenance or other activities providing benefit to the forest. TYPE OF FACILITY OR CONVENIENCE FEE (1) CAMPING (a) Primitive, unimproved campsites with pit privies. $8.00 (per campsite, daily) Fresh water also available. (b) Primitive group tent camping, unimproved campsites $1.00 (per person, with $8.00 minimum) with pit privies. (c) Improved group camping (water, restrooms and shower $35.00 (per day, maximum capacity 35) facilities available). (2) PICNIC SHELTER RENTAL $20.00 (1-2 tables) (by reservation only) $35.00 (3-4 tables) $50.00 (5-8 tables) $75.00 (9-12 tables) (3) COMMUNITY BUILDINGS $150.00 (per day, includes up to 20 car passes) (4) HORSE BARN $10.00 (daily per horse, maximum capacity 20 PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2734 horses) (5) SPECIAL ACTIVITIES (for uses not identified in this Rule) $1.00 (per person, with a $25.00 maximum). Authority G.S. 113-35(b). TITLE 21 – OCCUPATIONAL LICENSING BOARDS CHAPTER 21 - BOARD OF GEOLOGISTS Notice is hereby given in accordance with G.S. 150B-21.2 that the NC Board for Licensing of Geologists intends to adopt the rules cited as 21 NCAC 21 .0606-.0607, amend the rules cited as 21 NCAC 21 .0103-.0104, .0107, .0301-.0302, .0501-.0502, .0514-.0515, .0603-.0605, .0802-.0804, .0902-.0903, .1001- .1002 and repeal the rules cited as 21 NCAC 21 .0106, .0503- .0504. Notice of Rule-making Proceedings was published in the Register on February 15, 2002. Proposed Effective Date: April 1, 2003 Public Hearing: Date: July 9, 2002 Time: 10:00 a.m. Location: 3733 Benson Dr., Raleigh, NC Reason for Proposed Action: Some of the rules were outdated in that they did not conform to the Administrative Procedures Act; the office address has changed; rules are changed to be more specific, including authority citation; new rules clarify procedures for disciplinary hearings. Comment Procedures: Address comments to Robert Upton, PO Box 41225, Raleigh, NC 27629, call 919-850-9669. Comments will be accepted through July 17, 2002. Fiscal Impact State Local Substantive (>$5,000,000) None SECTION .0100 - STATUTORY AND ADMINISTRATIVE PROVISIONS 21 NCAC 21 .0103 ORGANIZATION OF THE BOARD (a) Meetings shall be open and public except that the Board may meet in closed sessions for the purposes specified in G.S. 143- 318.11. The Board is exempt from the requirement to meet in public when it meets to prepare, approve, administer or grade examinations, to deliberate the qualifications of an applicant for license or registration, or to deliberate on the disposition of a proceeding to discipline a licensed geologist. any disciplinary action for a licensed geologist or registered geological corporation or geological limited liability company. (b) The Board shall have power to compel the attendance of witnesses, to administer oaths, and to take testimony and proofs of all matters within its jurisdiction. (c) The chairman and ex-officio member shall be full voting members of the Board. Authority G.S. 89E-4; 89E-5; 143-318(6); 143-318.11. 21 NCAC 21 .0104 DUTIES OF OFFICERS (a) Chairman. The chairman shall, when present, preside at all meetings, appoint all committees, sign all certificates issued and perform all other duties pertaining to his office. (b) Vice-Chairman. The vice-chairman, in the absence of the chairman, shall perform all of the duties of the chairman. (c) Secretary Treasurer: (1) The secretary treasurer, with the assistance of an executive director or such other officers or employees as may be approved by the Board, shall conduct and care for all the correspondence of the Board, keep the minutes of all the meetings, keep all books and records, and shall sign all certificates issued. He shall have charge, care and custody of the official documents by order of the Board. He shall provide due notice of the time and place of all meetings of the Board to each member of the Board. (2) The secretary treasurer, with the assistance of an executive director or such other officers or employees as may be approved by the Board, shall receive all moneys from applicants for annual renewal or other fees and deposit them in an authorized depository of the Board. The secretary treasurer shall give bond to be conditioned on the faithful performance of the duties of his office and on the faithful accounting of all monies and other property as shall come into his hands. (3) The secretary-treasurer,secretary-treasurer shall mail a copy of Chapter 89E of the North Carolina General Statutes, as amended, and the rules of this Chapter, to each applicant for a license in and out of the state. with the assistance of an executive director or such other officers or employees as may be approved by the Board, shall provide to each applicant for a license or registration a current copy of G.S. 89E and the rules of this Chapter. Copies of the Geologists Licensing Act and the rules of this Chapter shall be provided by mail with the application packet or in electronic format on the Board's Internet website (www.ncblg.org) with the on-line application packet. Authority G.S. 89E-4; 89 E-5. 21 NCAC 21 .0106 FORMS Forms used by the Board, and available from the Board office upon request, include the following: (1) Application for Licensing as a Geologist, PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2735 (2) Application for License by Comity, (3) Application for Renewal of License, (4) Application for Reinstatement of License, (5) Application for Corporate Registration, and (6) Certificate of Registration. Authority G.S. 55B-2(6); 55B-10; 89E-8; 89E-10; 89E-11; 89E-12. 21 NCAC 21 .0107 FEES (a) Completed application forms must be accompanied by the prescribed fee. Application fees will not be refunded regardless of Board approval or disapproval of the application. Prescribed fees shall not be more than: (1) application forms for licensing as a geologist, including a copy of the Geologists Licensing Act and Rules: $ 5.00 (2)(1) Application for license $50.00 $ 55.00 (2) Application for registration $ 50.00 (3) Examination per part: cost plus $350.00 $ 30.00 (4) application for license by comity: $ 50.00 (5)(4) Biennial Annual renewal of license $70.00 $ 85.00 (5) Annual renewal of certificate of registration for corporation or limited liability company $ 25.00 (7)(6) Application for reinstatement of license $50.00 $150.00 (7) Application for reinstatement of registration $10.00 (8) licensed geologist stamp and seal: cost plus $5.00 (6)(8) Replacement of license or registration certificate $10.00 (9) application for corporate registration:$50.00 (9) Licensed geologist stamp or seal: cost plus $ 7.50 (10) annual renewal of certificate of registration for corporations $25.00 (11)(10) Registered geological corporation or limited liability company stamp andor seal: cost plus $7.50 (b) All licenses will expire biennially on July 1. Biennial Annual license renewal fees received after July 1 and before September 1 August 1 of the year due shall be subject to the assessment of a late payment penalty of twenty-five dollars ($25.00). All certificates of registration for corporations will expire annually on July 1. Annual renewal fees for certificates of registration for corporations received after August 1 and before December 31 shall be subject to a late payment penalty of twenty-five dollars ($25.00). accompanied by a late payment penalty of fifty dollars ($50.00). (c) Licenses that have not been renewed by September 1 August 1 may only be renewed by: (1) filing a reinstatement application and submitting a reinstatement fee. application, demonstrating that the applicant is otherwise qualified and entitled to license renewal, in accordance with Rule .0302 of this Chapter; (2) payment of any delinquent annual fees having accrued since the last timely renewal of the license or registration; and (3) payment of the reinstatement fee specified in Subparagraph (a)(6) of this Rule. (d) All registrations will expire on July 1. If a corporation or limited liability company fails to apply for renewal of its certificate of registration by August 1 of the year due, the registration may only be renewed by: (1) filing a reinstatement application, demonstrating that the firm is otherwise qualified and entitled to a renewal of its certificate of registration, in accordance with Rule .0302 of this Chapter; (2) payment of the required renewal fee; and (3) payment of the ten dollar ($10.00) fee specified in Subparagraph (a)(7) of this Rule. (d) (e) Licenses and registrations that have been suspended revoked under G.S. 89E-19 may be reinstated by filing a reinstatement application in accordance with Rule .0302 of this Chapter and paying the reinstatement fee.fee specified in Subparagraph (a)(6) or (a)(7) of this Rule, as applicable. (f) Extensions for certain members of armed forces. Individuals who are serving in the armed forces of the United States to whom an extension of time to file a tax return has been granted by G.S. 105-249.2 shall be granted an extension of time to pay their annual license fee. Such individuals shall provide to the Board documentation to support their request for extension. Authority G.S. 55B-2(6); 55B-10; 55B-11; 89E-5; 89E-8; 89E-10; 89E-12; 89E- 13; 89E-19; 93B-15; 105-249.2. SECTION .0300 - LICENSING OF GEOLOGISTS 21 NCAC 21 .0301 REQUIREMENTS FOR LICENSING (a) Education. In determining whether an applicant meets the minimum education requirements of the Geologists Licensing Act, the Board is authorized to determine which colleges and universities are properly accredited, and which geologic science courses qualify for meeting the minimum requirements. (b) References. Five letters of reference submitted to the Board which shall satisfy the Board as to the character, reputation, responsibility, integrity and competence of the applicant. These letters of reference must be submitted by licensed or qualified geologists or professional engineers. No member of the Board shall act as a reference for any applicant for licensing. At least two of the five letters of reference must be submitted by licensed or qualified geologists who are familiar with the applicant's work in the field of geology. (c) Written Examination. A written examination approved by the Board shall be required of all applicants. The passing grade on any written examination for licensing shall be established by the Board in advance of the examination. The applicant shall be notified, not less than 30 days before the examination, as to the time and place of the examination. A person who has failed an examination is allowed to take the examination again at the next regularly scheduled examination period. A person having a record of three failures will not be allowed to take that examination again until a written appeal is made to the Board and qualifications for examination are reviewed and reaffirmed PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2736 by the Board. The applicant must demonstrate to the Board that actions have been taken to improve the applicant's possibility of passing the exam. (d) Experience. In determining whether an applicant meets the minimum experience requirements of the Geologists Licensing Act, the Board will consider the total work experience record of the applicant. The Board will look for the applicant's ability to conduct geological work in a satisfactory manner with little or no supervision. The Board is authorized to determine which colleges and universities are properly accredited and which geological science courses qualify for experience in the field of geology. (e) Certificate by comity: (1) The Board, within its discretion, may grant a license, by comity, to a person holding a license or certificate in good standing of registration in geology from any legally constituted Board of examiners in another state whose licensing, registration and requirements are deemed to be equal or equivalent to those of this state. (2) To assure that the requirements of the other state are at least equivalent to those of this state, the applicant shall be required to show evidence of education and experience equal to those required of geologists licensed in this state who obtained a license by examination as set out in this Rule and Rule .0302 of this Section. (e) Certificate by comity. The Board shall grant a license without further examination to a person holding a license to engage in the practice of geology, which license has been issued by another jurisdiction, when the applicant meets the following conditions: (1) the applicant has filed an application for license and paid the fee required by Rule .0107 of this Chapter; (2) the applicant has provided evidence of education and experience equal to the requirements of Paragraphs (a), (b), and (d) of this Rule as indicated in Rule .0302 of this Section; (3) the applicant is in good standing with the agency regulating the practice of geology in any jurisdiction in which the applicant holds a license to practice geology; and (4) the applicant has successfully passed a written examination deemed to be equal or equivalent to the examination administered by the Board pursuant to G.S. 89E-9 and Paragraph (c) of this Rule. Authority G.S. 89E-7; 89E-8; 89E-9; 89E-11. 21 NCAC 21 .0302 APPLICATION PROCEDURE (a) All applicants for licensing, except those applying under comity, are required to furnish with their applications the following: (1) A legible official copy of their college transcript(s), and verification of graduation sent directly from the institution to the Board; (2) A record Verification of experience in the practice of geology including any of the applicant’s written reports, maps, published articles or other materials the Board determines are appropriate to document the applicant’s experience as a geologist; on forms provided by the Board; (3) Five references as defined in Rule .0301(b) of this Section; (4) A notarized copy of a completed application form as prescribed by the Board; and (5) The application fee as prescribed in Rule .0107 of this Chapter. (b) Applicants for licensing under comity shall submit an application form as prescribed by the Board along with the fee as provided in Rule .0107 of this Chapter. The Board may require the submittal of additional information. (b)(c) Applicants for reinstatement of an expired license or registration shall submit a reinstatement application and shall submit the prescribed fee in as provided by Rule .0107 of this Chapter. (c)(d) Applicants for reinstatement of a revoked or suspended license or registration shall submit such information as is required by the Board on a case-by-case basis, to determine eligibility for reinstatement pursuant to G.S. 89E-21, and shall submit the fee as provided by Rule .0107 of this Chapter. (e) Applicants for renewal of license who practice geology less than 15 days per year must submit a notarized affidavit that they have practiced geology in North Carolina less than 15 days during the past year and that they will practice less than 15 days in each of the coming two years. If a licensed geologist in fact practices 15 or more days in either year in North Carolina, he shall submit to the Board the balance of the fee prescribed for regular license renewal in Rule .0107 of this Chapter. (d) Additional information required by the Board to approve or deny approval on any application shall be filed with the Board within 60 days of the applicant's receipt of notice to provide such information. This may include any of the applicant's written reports, maps, published articles or other materials the Board determines are appropriate to document the applicant's experience as a geologist. Failure to submit the supplemental information requested within the time allowed by this Rule may result in the Board’s rejection of the application without further notice prior to such rejection. Authority G.S. 89E-7; 89E-8; 89E-9; 89E-11; 89E-12; 89E-21. SECTION .0500 - DISCIPLINARY ACTION AND PROCEDURE 21 NCAC 21 .0501 FILING OF CHARGES AND DISCIPLINARY ACTIONS (a) Any person may file with the Board a charge of negligence, incompetence, dishonest practice, or other misconduct or of any violation of G.S. 89E or of these Rules. (b) Upon receipt of such charge or upon its own initiative, the Board may, consistent with procedures required by G.S. 150B, suspend or revoke the license or certificate of registration, may impose a civil penalty not in excess of five thousand dollars ($5,000), may issue a reprimand or caution as provided in Rules Rule .0502 and .0504 of this Section or may upon a statement of PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2737 the reasons therefore dismiss the charge as unfounded or trivial, which statement shall be mailed to the geologist and the person who filed the charge.charge by certified mail. If the Board determines that a licensee is professionally incompetent, the Board may require the licensee to demonstrate fitness to practice as allowed in G.S. 89E-19(b). In addition to issuing a reprimand or suspending or revoking a license or certificate of registration, the Board may impose a civil penalty for any violation of G.S. 89E or these Rules, such penalty not to exceed five thousand dollars ($5,000.00). (c) The Board may publish in the Board's newsletter or other public media any disciplinary action taken against a licensee or registrant or any legal action taken against any person engaged in the practice of geology in violation of G.S. 89E or these Rules. Authority G.S. 89E-5; 89E-17; 89E-19; 89E-20. 21 NCAC 21 .0502 REPRIMAND (a) If probable cause evidence of a violation is found, but it is determined that a disciplinary hearing is not warranted, the Board may issue a reprimand to the accused party. A record of such reprimand shall be mailed to the accused party and within 15 days after receipt of the reprimand the accused party may refuse the reprimand and request that a Hearing be held pursuant to G.S. 150B. Such refusal and request shall be addressed to the Board and filed with the secretary- treasurer.Executive Director of the Board. (b) Upon filing of a notice refusing the reprimand and requesting a hearing, the Board shall determine whether to grant the request and whether, having granted the request, the Board will conduct the evidentiary hearing or whether it will refer the matter to the Office of Administrative Hearings for designation of an administrative law judge to conduct the hearing. If the Board elects to conduct the hearing,The the legal counsel for the Board shall thereafter prepare and file a Notice of Hearing. If the Board refers the matter to the Office of Administrative Hearings, that agency shall prepare and serve all subsequent notices related to the evidentiary hearing, including the Notice of Hearing. (c) If the letter of reprimand is accepted, a copy of the reprimand shall be maintained in the office of the Board. If a party receiving a reprimand wishes merely to file a letter rebutting his reprimand, he may in writing waive his right to hearing and submit a letter of rebuttal to be placed in his file. Authority G.S. 89E-5; 89E-19; 89E-20. 21 NCAC 21 .0503 APPLICABLE HEARING RULES When the Board elects to have the Office of Administrative Hearings hear a contested case, the Board's rules pertaining to contested case hearings, instead of the rules of the Office of Administrative Hearings, shall apply. Authority G.S. 89E-5; 89E-20; 150B-38. 21 NCAC 21 .0504 CAUTION If no probable cause is found, but it is determined by the Board that the conduct of the accused party is not in accord with accepted professional practice or may be the subject of discipline if continued or repeated, the Board may issue a letter of caution to the accused party stating that the conduct, while not the basis for a disciplinary hearing, is not professionally acceptable or may be the basis for a disciplinary hearing if repeated. A record of such letter of caution shall be maintained in the office of the Board. Authority G.S. 89E-5. 21 NCAC 21 .0514 INVESTIGATION (a) Valid complaints received by the Board shall be forwarded to an investigator for further inquiry as to whether the acts or omissions alleged violate the provisions of G.S. 89E, the Board's code of professional conduct, or any other rules of this Chapter. The Board's executive director shall notify the licensee or corporate registrant of the complaint and advise the licensee or corporate registrant that: (1) He has a duty to cooperate fully with the investigation by the Board; and (2) He may submit a written response to the complaint. (b) The investigator shall collect all information needed to determine whether a violation has occurred and the nature and severity of the violation. Information gathered during the course of an investigation shall be treated by the Board as confidential information in accordance with G.S. 89E-18(c) until the Board takes makes a final agency decision taking disciplinary action against the licensee or corporate registrant.registrant; however, the Board cannot ensure the confidentiality of any information introduced into evidence in a hearing conducted by the Office of Administrative Hearings upon referral from the Board, because the information becomes part of the public record of that agency at the time of introduction. (c) After collecting information relevant to the complaint, the investigator will submit a report consisting of the complaint, information gathered in the course of investigation, and the investigator's conclusion to a peer review committee for evaluation. The peer review committee will consist of at least two professional geologists, each of whom hold a currently valid license issued by the Board. (d) The investigation report (including, but not limited to, the supporting information relevant to the complaint) and the written evaluation of the peer review committee shall be submitted to the Executive Director of the Board to be combined with the licensee's written response to the complaint, if any, for further proceedings in accordance with Rule .0515 of this Section. Authority G.S. 89E-5; 89E-17; 89E-20. 21 NCAC 21 .0515 DISCIPLINARY PROCEDURE (a) Upon receipt of an investigation report and evaluation from the Board's investigator and peer review committee in accordance with Rule .0514 of this Section, the Board's Executive Director shall forward to the Chairman of the Board (or to a member of the Board designated by the Chairman) the investigation report, evaluation, and the supporting documentation along with the licensee's or registrant's written response to the complaint, if any. (b) The Chairman (or a member of the Board designated by the Chairman) is delegated authority to propose the disciplinary action for the violation(s) revealed by the investigation consistent with the provisions of G.S. 89E-19. The Chairman PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2738 (or a member of the Board designated by the Chairman) is also delegated authority to issue a summary suspension pursuant to G.S. 150B-3(c). (c) After review of the investigation report, evaluation, and supporting documentation, the Chairman shall notify the licensee or corporate registrant of the proposed disciplinary action by certified mail sent to the last known address of the licensee or corporate registrant as indicated by the Board’s official roster. This notification shall contain a summary of the alleged facts or conduct upon which the proposed disciplinary action is based, the effective date of the proposed disciplinary action, and an explanation of the licensee's or registrant's hearing rights pursuant to G.S. 150B, Article 3A. Notification for summary suspensions shall meet the requirements of G.S. 150B- 3(c). (d) The licensee or corporate registrant has 15 days from receipt of notification of proposed disciplinary action to file with the Board a written request for hearing. Requests for hearing must be received at the Board's office by 5:00 p.m. on the date due. If the licensee or corporate registrant does not file a written request for hearing with the Board, the Board shall receive the Chairman's recommendation on disciplinary action at its next meeting. If a majority of the Board members agree with the Chairman's recommendation the proposed disciplinary action becomes a final agency decision. If a majority of the Board members do not agree with the Chairman's recommendation, the Board shall make a review of the facts (limited to the investigator's report without supporting documentation) solely for the purpose of determining whether probable cause exists to support the allegations of violation of law and for the purpose of proposing an appropriate disciplinary action. The Chairman shall not participate in the deliberations or the voting with regard to either his recommendation or the Board’s decision regarding a substitute disciplinary action. A new notice of proposed disciplinary action will be
Object Description
Description
Title | North Carolina register |
Date | 2002-06-17 |
Description | Volume 16, Issue 24, (June 17, 2002) |
Digital Characteristics-A | 2 MB; 222 p. |
Digital Format |
application/pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_borndigital\images_master\ |
Full Text | NORTH CAROLINA REGISTER Volume 16, Issue 24 Pages 2707 - 2924 June 17, 2002 This issue contains documents officially filed through May 24, 2002. 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 Ruby Creech, Publications Coordinator Linda Dupree, Editorial Assistant Dana Sholes, Editorial Assistant Rhonda Wright, Editorial Assistant IN THIS ISSUE I. IN ADDITION Voting Rights Letters................................................................................... 2707 - 2711 HHS – Draft 2003 State Medical Facilities Plan......................................... 2712 – 2713 OAH – Cumulative Index............................................................................ 2714 II. RULE-MAKING PROCEEDINGS Environment and Natural Resources Health Services, Commission for ........................................................... 2715 - 2716 Marine Fisheries ..................................................................................... 2715 Wildlife Resources Commission ............................................................ 2715 Health and Human Services Medical Care Commission ..................................................................... 2715 Licensing Boards CPA Examiners....................................................................................... 2716 Transportation Motor Vehicles, Division of ................................................................... 2716 III. PROPOSED RULES Community Colleges Community Colleges, State Board of ..................................................... 2743 - 2744 Environment and Natural Resources Coastal Resources Commission.............................................................. 2719 - 2730 Forest Resources ..................................................................................... 2730 - 2734 Water Quality Division........................................................................... 2718 - 2719 Health and Human Services Medical Assistance ................................................................................. 2717 - 2718 Licensing Boards Geologists, Licensing of ......................................................................... 2734 - 2743 IV. TEMPORARY RULES Environment and Natural Resources Wildlife Resources Commission ............................................................ 2745 - 2748 Health and Human Services Health Services, Commission for ........................................................... 2748 - 2752 Secretary of State Securities Division.................................................................................. 2752 - 2753 State Treasurer Health & Wellness Trust Fund Commission.......................................... 2753 - 2757 V. APPROVED RULES................................................................................. 2758 - 2910 Agriculture Food & Drug Protection Division Standard Division Structural Pest Control Division Environment and Natural Resources Environmental Management Health Services Forest Resources, Division of Radiation Protection Soil & Water Conservation Commission Wildlife Resources Commission Health and Human Services Blind, Services for the Children's Services MH/DD/SAS Insurance Engineering & Building Codes Division Life & Health Division Property & Casualty Division Justice Private Protective Services Labor Occupational Safety & Health Licensing Boards Cosmetic Arts, Board of Dental Examiners, Board of Medical Examiners Midwifery Joint Committee Nursing, Board of Plumbing, Heating & Fire Sprinkler Professional Engineers & Land Surveyors Substance Abuse Professionals, Certification Board for Revenue Corporate Income & Franchise Tax Individual Income: Inheritance & Gift Individual Income Tax Division Sales & Use Tax Secretary of State Uniform Commercial Code Division State Personnel State Personnel Commission Transportation Highways, Division of VI. CONTESTED CASE DECISIONS Index to ALJ Decisions................................................................................ 2911 - 2919 Text of Selected Decisions 01 ABC 1409 .......................................................................................... 2920 - 2924 VII. CUMULATIVE INDEX............................................................................ 1 114 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 subdivisions of rules. Two of these, titles and chapters, are mandatory. The major subdivision 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. The other two, subchapters and sections are optional subdivisions to be used by agencies when appropriate. TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE TITLE DEPARTMENT LICENSING BOARDS CHAPTER 1 2 3 4 5 6 7 8 9 10 11 12 13 14A 15A 16 17 18 19A 20 *21 22 23 24 25 26 27 28 Administration Agriculture Auditor Commerce Correction Council of State Cultural Resources Elections Governor Health and Human Services Insurance Justice Labor Crime Control & Public Safety Environment and Natural Resources Public Education Revenue Secretary of State Transportation Treasurer Occupational Licensing Boards Administrative Procedures (Repealed) Community Colleges Independent Agencies State Personnel Administrative Hearings NC State Bar Juvenile Justice and Delinquency Prevention Acupuncture Architecture Athletic Trainer Examiners Auctioneers Barber Examiners Certified Public Accountant Examiners Chiropractic Examiners Employee Assistance Professionals General Contractors Cosmetic Art Examiners Dental Examiners Dietetics/Nutrition Electrical Contractors Electrolysis Foresters Geologists Hearing Aid Dealers and Fitters Landscape Architects Landscape Contractors Massage & Bodywork Therapy Marital and Family Therapy Medical Examiners Midwifery Joint Committee Mortuary Science Nursing Nursing Home Administrators Occupational Therapists Opticians Optometry Osteopathic Examination & Reg. (Repealed) Pastoral Counselors, Fee-Based Practicing Pharmacy Physical Therapy Examiners Plumbing, Heating & Fire Sprinkler Contractors Podiatry Examiners Professional Counselors Psychology Board Professional Engineers & Land Surveyors Real Estate Appraisal Board Real Estate Commission Refrigeration Examiners Respiratory Care Board Sanitarian Examiners Social Work Certification Soil Scientists Speech & Language Pathologists & Audiologists Substance Abuse Professionals Therapeutic Recreation Certification Veterinary Medical Board 1 2 3 4 6 8 10 11 12 14 16 17 18 19 20 21 22 26 28 30 31 32 33 34 36 37 38 40 42 44 45 46 48 50 52 53 54 56 57 58 60 61 62 63 69 64 68 65 66 Note: Title 21 contains the chapters of the various occupational licensing boards. NORTH CAROLINA REGISTER Publication Schedule for January 2002 – December 2002 Filing Deadlines Notice of Rule-Making Proceedings Notice of Text Temporary Rule volume & issue number issue date last day for filing earliest register issue for publication of text earliest date for public hearing end of required comment period deadline to submit to RRC for review at next meeting first legislative day of the next regular session end of required comment period deadline to submit to RRC for review at next meeting first legislative day of the next regular session 270th day from issue date 16:13 01/02/02 12/06/01 03/15/02 01/17/02 02/01/02 02/20/02 05/28/02 03/04/02 03/20/02 05/28/02 09/29/02 16:14 01/15/02 12/19/01 04/01/02 01/30/02 02/14/02 02/20/02 05/28/02 03/18/02 03/20/02 05/28/02 10/12/02 16:15 02/01/02 01/10/02 04/15/02 02/16/02 03/04/02 03/20/02 05/28/02 04/02/02 04/22/02 01/29/03 10/29/02 16:16 02/15/02 01/25/02 05/01/02 03/02/02 03/18/02 03/20/02 05/28/02 04/16/02 04/22/02 01/29/03 11/12/02 16:17 03/01/02 02/08/02 05/01/02 03/16/02 04/01/02 04/22/02 01/29/03 04/30/02 05/20/02 01/29/03 11/26/02 16:18 03/15/02 02/22/02 05/15/02 03/30/02 04/15/02 04/22/02 01/29/03 05/14/02 05/20/02 01/29/03 12/10/02 16:19 04/01/02 03/08/02 06/03/02 04/16/02 05/01/02 05/20/02 01/29/03 05/31/02 06/20/02 01/29/03 12/27/02 16:20 04/15/02 03/22/02 06/17/02 04/30/02 05/15/02 05/20/02 01/29/03 06/14/02 06/20/02 01/29/03 01/10/03 16:21 05/01/02 04/10/02 07/01/02 05/16/02 05/31/02 06/20/02 01/29/03 07/01/02 07/22/02 01/29/03 01/26/03 16:22 05/15/02 04/24/02 07/15/02 05/30/02 06/14/02 06/20/02 01/29/03 07/15/02 07/22/02 01/29/03 02/09/03 16:23 06/03/02 05/10/02 08/15/02 06/18/02 07/03/02 07/22/02 01/29/03 08/02/02 08/20/02 01/29/03 02/28/03 16:24 06/17/02 05/24/02 09/03/02 07/02/02 07/17/02 07/22/02 01/29/03 08/16/02 08/20/02 01/29/03 03/14/03 17:01 07/01/02 06/10/02 09/03/02 07/16/02 07/31/02 08/20/02 01/29/03 08/30/02 09/20/02 01/29/03 03/28/03 17:02 07/15/02 06/21/02 09/16/02 07/30/02 08/14/02 08/20/02 01/29/03 09/13/02 09/20/02 01/29/03 04/11/03 17:03 08/01/02 07/11/02 10/01/02 08/16/02 09/03/02 09/20/02 01/29/03 09/30/02 10/21/02 01/29/03 04/28/03 17:04 08/15/02 07/25/02 10/15/02 08/30/02 09/16/02 09/20/02 01/29/03 10/14/02 10/21/02 01/29/03 05/12/03 17:05 09/03/02 08/12/02 11/15/02 09/18/02 10/03/02 10/21/02 01/29/03 11/04/02 11/20/02 01/29/03 05/31/03 17:06 09/16/02 08/30/02 11/15/02 10/01/02 10/16/02 10/21/02 01/29/03 11/15/02 11/20/02 01/29/03 06/13/03 17:07 10/01/02 09/10/02 12/02/02 10/16/02 10/31/02 11/20/02 01/29/03 12/02/02 12/20/02 05/00/04 06/28/03 17:08 10/15/02 09/24/02 12/16/02 10/30/02 11/14/02 11/20/02 01/29/03 12/16/02 12/20/02 05/00/04 07/12/03 17:09 11/01/02 10/11/02 01/02/03 11/16/02 12/02/02 12/20/02 05/00/04 12/31/02 01/21/03 05/00/04 07/29/03 17:10 11/15/02 10/25/02 01/15/03 11/30/02 12/16/02 12/20/02 05/00/04 01/14/03 01/21/03 05/00/04 08/12/03 17:11 12/02/02 11/06/02 02/03/03 12/17/02 01/02/03 01/21/03 05/00/04 01/31/03 02/20/03 05/00/04 08/29/03 17:12 12/16/02 11/21/02 02/17/03 12/31/02 01/15/03 01/21/03 05/00/04 02/14/03 02/20/03 05/00/04 09/12/03 non-substantial economic impact substantial economic impact 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 RULE-MAKING PROCEEDINGS END OF COMMENT PERIOD TO A NOTICE OF RULE-MAKING PROCEEDINGS: This date is 60 days from the issue date. An agency shall accept comments on the notice of rule-making proceeding until the text of the proposed rules is published, and the text of the proposed rule shall not be published until at least 60 days after the notice of rule-making proceedings was published. EARLIEST REGISTER ISSUE FOR PUBLICATION OF TEXT: The date of the next issue following the end of the comment period. 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 (1) RULE WITH NON-SUBSTANTIAL ECONOMIC IMPACT: An agency shall accept comments on the text of a proposed rule for at least 30 days after the text is published or until the date of any public hearings held on the proposed rule, whichever is longer. (2) RULE WITH SUBSTANTIAL ECONOMIC IMPACT: An agency shall accept comments on the text of a proposed rule published in the Register and that has a substantial economic impact requiring a fiscal note under G.S. 150B-21.4(b1) for at least 60 days after publication or until the date of any public hearing held on the 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 16:24 NORTH CAROLINA REGISTER June 17, 2002 2707 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. U.S. Department of Justice Civil Rights Division JDR:RPL:TAR:nj Voting Section – NWB. DJ 166-012-3 950 Pennsylvania Ave., N.W. 2001-1474 Washington, D.C. 20530 2001-4032 February 15, 2002 Michael Crowell, Esq. Tharrington Smith PO Box 1151 Raleigh, NC 27602 Dear Mr. Crowell: This refers to the May 14, 2001, redistricting plan and the November 26, 2001 redistricting plan for the Town of Tarboro in Edgecombe County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your response to our July 18, 2001 request for additional information regarding the May 14, 2001 redistricting plan on December 19, 2001. We also received your submission of the November 26, 2001, redistricting plan on December 19, 2001. Your December 19, 2001, submission letter withdraws the May 14, 2001 redistricting plan from Section 5 review. Accordingly, no determination by the Attorney General is required concerning this matter. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.25(a)). The Attorney General does not interpose any objection to the remaining specified change. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. See 28 C.F.R. 51.41. Sincerely, Joseph D. Rich Chief, Voting Section IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2708 U.S. Department of Justice Civil Rights Division JDR:MJP:CEI:cp Voting Section – NWB. DJ 166-012-3 950 Pennsylvania Ave., N.W. 2002-0451 Washington, D.C. 20530 March 28, 2002 Mr. Gary O. Bartlett Executive Director State Board of Elections PO Box 27255 Raleigh, NC 27611-7255 Dear Mr. Bartlett: This refers to Session Law 2001-507, which changes absentee ballot procedures for ill and disabled voters in the State of North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on January 30, 2002. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). Sincerely, Joseph D. Rich Chief, Voting Section IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2709 U.S. Department of Justice Civil Rights Division JDR:GS:KEI:baw Voting Section – NWB. DJ 166-012-3 950 Pennsylvania Ave., N.W. 2002-1169 Washington, D.C. 20530 April 17, 2002 Mr. Gary O. Bartlett Executive Director State Board of Elections PO Box 27255 Raleigh, NC 27611-7255 Dear Mr. Bartlett: This refers to Session Law 2001-512, which requires state and county election boards to notify candidates for elective office of laws and rules prohibiting display of nonofficial signage on any state traffic device or highway signage or electric power company structures for the State of North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on February 25, 2002. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). Sincerely, Joseph D. Rich Chief, Voting Section IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2710 U.S. Department of Justice Civil Rights Division JDR:CKD:NT:cp Voting Section – GSt. DJ 166-012-3 950 Pennsylvania Ave., N.W. 2002-1851 Washington, D.C. 20530 April 29, 2002 Mr. Gary O. Bartlett Executive Director State Board of Elections PO Box 27255 Raleigh, NC 27611-7255 Dear Mr. Bartlett: This refers to Sections 97. (a) and 97. (b) of Session Law 2001-487 which pertain to campaign finance disclosure and reporting requirements for the State of North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on March 5, 2002. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). Sincerely, Joseph D. Rich Chief, Voting Section IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2711 U.S. Department of Justice Civil Rights Division JDR:CKD:SMC:cp Voting Section DJ 166-012-3 950 Pennsylvania Ave., N.W. 2002-1460 Washington, D.C. 20530 May 2, 2002 Mr. Gary O. Bartlett Executive Director State Board of Elections PO Box 27255 Raleigh, NC 27611-7255 Dear Mr. Bartlett: This refers to Chapter 119 (2001), which provides procedures for filing economic statements of interest by legislative candidates and supersedes all prior changes concerning such statements of interest, for the State of North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on March 4, 2002. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). With regard to prior unprecleared changes relating to statements of interest, because they are superseded by Chapter 119, the Attorney General will make no determination concerning these matters. See 28 C.F.R. 51.35. Sincerely, Joseph D. Rich Chief, Voting Section IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2712 TITLE 10 – DEPARTMENT OF HEALTH AND HUMAN SERVICES CHAPTER 3 – FACILITY SERVICES PUBLIC NOTICE Citizens are invited to attend public hearings on the Draft 2003 State Medical Facilities Plan to be conducted by the North Carolina State Health Coordinating Council (SHCC) at the following times and locations: Wilmington July 19, 2002 1:30-2:30 p.m. Coastal Area Health Education Center (Friday) New Hanover Regional Medical Center Auditorium -- First Floor 2131 S. 17th Street Wilmington, NC Greenville July 22, 2002 1:30-2:30 p.m. Eastern AHEC Conference Center (Monday) (Edwin W. Monroe Center) Pamlico Room 2000 Venture Tower Drive Greenville, NC Charlotte July 24, 2002 1:30-2:30 p.m. Carolinas Medical Center (Wednesday) Classroom 158, Rankin Education Center (just down from the auditorium) 1200 Blythe Boulevard Charlotte, NC Greensboro July 25, 2002 1:30-2:30 p.m. Greensboro AHEC (Thursday) Room 0031 Moses Cone Hospital Campus 1200 North Elm Street Greensboro, NC Asheville July 26, 2002 1:30-2:30 p.m. Mountain Area Health Education Center (Friday) (Between Mission St. Joseph’s and entrance for Memorial Mission Emergency Room) 501 Biltmore Avenue Second Floor, Classroom #4 Asheville, NC Raleigh July 29, 2002 1:30-2:30 p.m. Wake County Office Park (Monday) Commons Building; Room 100-A 4011 Carya Drive Raleigh, NC All persons commenting on the Draft Plan at the public hearings are asked to supply WRITTEN COPIES of their remarks. Persons with disabilities who need assistance to participate in the public hearing are requested to notify the Medical Facilities Planning Section in advance so that reasonable accommodations can be arranged. The State Medical Facilities Plan projects need for acute care hospital beds, rehabilitation facilities and beds, ambulatory surgery facilities and operating rooms, technology services and equipment, nursing care beds, home health agencies, kidney dialysis stations, hospice home care programs and inpatient beds, psychiatric hospitals, substance abuse treatment facilities, adult care home beds, and intermediate care facilities for the mentally retarded. NOTE: After the need determinations and policies are adopted by the SHCC and approved by the Governor, they will be incorporated in Administrative Procedure Act Rules for the 2003 State Medical Facilities Plan. Persons wishing to review or purchase the Draft 2003 State Medical Facilities Plan or who want information about the Plan or the series of public hearings may call 919-855-3865, or write to: Medical Facilities Planning Section, Division of Facility Services, 2714 Mail Service Center, Raleigh, NC 27699-2714. Inquiries may be made to this same address about comments or petitions received regarding the Draft Plan. Copies of the Draft Plan will also be made available to all Area Health Education Centers and to all Lead IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2713 Regional Organizations (Councils of Government) in the State. ALL WRITTEN COMMENTS AND PETITIONS ON THE DRAFT 2003 STATE MEDICAL FACILITIES PLAN MUST BE RECEIVED IN THE MEDICAL FACILITIES PLANNING SECTION OFFICE BY 5:00 P.M. ON FRIDAY, AUGUST 2, 2002. IN ADDITION 16:24 NORTH CAROLINA REGISTER June 17, 2002 2714 Notice to Subscribers Due to the State's budget shortfall and the increasing cost of printing, the Cumulative Index of published rules will no longer be printed in the NC Register. This change will be effective July 1, 2002. The Office of Administrative Hearings will continue to maintain the index and make available on the OAH website: www.ncoah.com. RULE-MAKING PROCEEDINGS 16:24 NORTH CAROLINA REGISTER June 17, 2002 2715 A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-21.2. TITLE 10 – DEPARTMENT OF HEALTH AND HUMAN SERVICES CHAPTER 03 – FACILITY SERVICES Notice of Rule-making Proceedings is hereby given by the NC Medical Care Commission in accordance with G.S. 150B-21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rule Affected by this Rule-making: 10 NCAC 03Q - Other rules may be proposed in the course of the rule-making process. Authority for the Rule-making: G.S. 131E-149 Statement of the Subject Matter: This Subchapter deals with the licensure of ambulatory surgical facilities. Reason for Proposed Action: The NC Medical Care Commission proposes to adopt rules regarding the licensure of ambulatory surgical facilities. Changes are needed to conform with current building code requirements and practices. Comment Procedures: Written comments concerning this rule-making action must be submitted to Mark Benton, Chief of Budget Planning/Rule-making Coordinator, NC Division of Facility Services, 2701 Mail Service Center, Raleigh, NC 27699- 2701. TITLE 15A – DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES CHAPTER 03 – MARINE FISHERIES Notice of Rule-making Proceedings is hereby given by the NC Marine Fisheries Commission in accordance with G.S. 150B- 21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rule Affected by this Rule-making: 15A NCAC 03 - Other rules may be proposed in the course of the rule-making process. Authority for the Rule-making: G.S. 113-134; 113-182; 113- 221; 143B-289.52 Statement of the Subject Matter: Sargassum and fishing gear restrictions for specific areas. Reason for Proposed Action: Restrict the taking of sargassum if so required by federal fishery management plan. Revise the specific areas for fishing gear restrictions in response to Petition for Rulemaking for Carolina Marlin Club Marina. Also revise specific areas for fishing gear restrictions to incorporate Goose Creek State Park and delete areas where restrictions are no longer valid or needed. Comment Procedures: Written comments are encouraged and may be submitted to MFC, Juanita Gaskill, PO Box 769, Morehead City, NC 28557. * * * * * * * * * * * * * * * * * * * * CHAPTER 10 - WILDLIFE RESOURCES AND WATER SAFETY Notice of Rule-making Proceedings is hereby given by NC Wildlife Resources Commission in accordance with G.S. 150B- 21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rule Affected by this Rule-making: 15A NCAC 10A,B,F,H,I. Other rules may be proposed in the course of the rule-making process. Authority for the Rule-making: G.S. 75A-15; 113-132; 113- 134; 113-264; 113-267; 113-270; 113-270.1; 113-270.1A; 113- 273; 113-291.2; 113-291.4 Statement of the Subject Matter: General Regulations, Hunting, Water Safety, Conservation, Endangered, Threatened and Special Concern Species. Reason for Proposed Action: To set/amend regulations necessary to manage and conserve wildlife resources and maintain public safety. Comment Procedures: The record will be open for receipt of written comments. Such comments must be delivered or mailed to the NC Wildlife Resources Commission, 1701 Mail Service Center, Raleigh, NC 27699-1701. * * * * * * * * * * * * * * * * * * * * CHAPTER 18 – ENVIRONMENTAL HEALTH Notice of Rule-making Proceedings is hereby given by the Commission for Health Services in accordance with G.S. 150B- 21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of RULE-MAKING PROCEEDINGS 16:24 NORTH CAROLINA REGISTER June 17, 2002 2716 rule-making proceedings and any comments received on this notice. Citation to Existing Rule Affected by this Rule-making: 15A NCAC 18A .2500 - Other rules may be proposed in the course of the rule-making process. Authority for the Rule-making: G.S. 130A-280 through 130A- 282 Statement of the Subject Matter: To identify and update sanitation requirements for public swimming pools as needed. Reason for Proposed Action: To identify and update sanitation requirements as needed. Comment Procedures: Written comments may be mailed to Jim Hayes, NCDENR/EHSS, 1632 Mail Service Center, Raleigh, NC 27699-1632. TITLE 19A – DEPARTMENT ON TRANSPORTATION CHAPTER 03 – DIVISION OF MOTOR VEHICLES Notice of Rule-making Proceedings is hereby given by NC Department of Transportation – Division of Motor Vehicles in accordance with G.S. 150B-21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rule Affected by this Rule-making: 19A NCAC 03G .0205. Other rules may be proposed in the course of the rule-making process. Authority for the Rule-making: G.S. 20-39(b); 20-218 Statement of the Subject Matter: Rule sets out conditions for certification of school bus drivers Reason for Proposed Action: Temporary amendments to this rule were filed effective June 1, 2001 which added a physical exam requirement for certification as a school bus driver. The permanent rule was to be effective August 1, 2002. However, the current budget constraints on state agencies will not allow the Department of Public Instruction to fund the physical exams. The Division of Motor Vehicles is deleting the school bus driver physical exam requirement due to budgetary constraints. Comment Procedures: Any interested person may submit comments in writing by sending the comments to Emily Lee, APA Coordinator, NC DOT, 1501 Mail Service Center, Raleigh, NC 27699-1501. TITLE 21 – OCCUPATIONAL LICENSING BOARDS CHAPTER 08 - BOARD OF CERTIFIED PUBLIC ACCOUNTANT EXAMINERS Notice of Rule-making Proceedings is hereby given by the NC State Board of CPA Examiners in accordance with G.S. 150B- 21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rule Affected by this Rule-making: 21 NCAC 08 - Other rules may be proposed in the course of the rule-making process. Authority for the Rule-making: G.S. 93-12 Statement of the Subject Matter: Definitions, requirements for examination and certificates, continuing professional education, reciprocity, revocations, renewals and registrations, professional corporations and professional limited liability companies, state quality review programs, professional ethics and conduct. Reason for Proposed Action: The purpose of these Rule changes are to clarify, simplify and amend this Chapter to reflect the Uniform Accountancy Act. Comment Procedures: Written comments should be sent to Felecia Ashe, APA Coordinator, NC State Board of CPA Examiners, PO Box 12827, Raleigh, NC 27605-2827. PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2717 This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory reference: G.S. 150B-21.2. TITLE 10 – DEPARTMENT OF HEALTH AND HUMAN SERVICES Notice is hereby given in accordance with G.S. 150B-21.2 that the DHHS – Division of Medical Assistance intends to amend the rule cited as 10 NCAC 50B .0102. Notice of Rule-making Proceedings was published in the Register on January 15, 2002. Proposed Effective Date: April 1, 2003 Public Hearing: Date: July 3, 2002 Time: 11:30 a.m.-1:00 p.m. Location: Room 132, Kirby Building, 1985 Umstead Dr., Raleigh, NC Reason for Proposed Action: This change is based on recent General Assembly legislation to enact a new optional federal coverage group for women who have been screened for breast or cervical cancer under the Centers for Disease Control and Prevention, breast and cervical cancer early detection program and need treatment for breast or cervical cancer, including precancerous conditions. The women are not otherwise covered under creditable coverage including Medicaid and are under the age of 65. Comment Procedures: Written comments concerning this Rule-making action must be submitted by August 17, 2002 to Portia W. Rochelle, Rule-making Coordinator, Division of Medical Assistance, 1985 Umstead Dr., 2504 Mail Service Center, Raleigh, NC 27699-2504. Fiscal Impact State Local Substantive (>$5,000,000) None CHAPTER 50 – MEDICAL ASSISTANCE SUBCHAPTER 50B - ELIGIBILITY DETERMINATION SECTION .0100 - COVERAGE GROUPS 10 NCAC 50B .0102 OPTIONAL The following optional groups of individuals described by 42 U.S.C. 1396a(a)(10)(A)(ii) and 42 U.S.C. 1396a(a)(10)(C) shall be eligible for Medicaid: (1) Children: (a) Children under age one whose family income is more than the amount established under Item (14), (16), Rule .0101 of this Section and not more than a percent of the federal poverty level established by the General Assembly; (b) Children under age 21 who meet the eligibility requirements of this Subchapter; (c) Qualified children under age 19 as described in Item (4), (6), Rule .0101 of this Section, who were born on or before September 30, 1983, and whose income is not more than 100% of the federal poverty level; (d) Adopted children under age 18 with special needs, as described at 42 U.S.C. 1396a(a)(10)(A)(ii)(VIII). (2) Individuals receiving optional state supplemental payment. (3) Caretaker relatives of eligible dependent children. (4) Pregnant women: (a) Whose countable income is more than the amount established under Item (13), (15), Rule .0101 of this Section and not more than a percent of the federal poverty level established by the General Assembly, or (b) Who, if their countable income exceeds the percent of the federal poverty level, established in Sub-item (4)(a) of this Rule, meet the eligibility criteria for medically needy set forth in this Subchapter. (5) Aged, blind and disabled individuals whose income is at or below 100% of the Federal Poverty Level, adjusted each April 1, and who meet the resource requirements of SSI, but who do not receive cash assistance. (6) Women, as described at 42 U.S.C. 1396a(a)(10)(A)(ii)(XVIII) who: (a) have been screened for breast or cervical cancer under the Centers for Disease Control and Prevention breast and cervical cancer early detection program established under Title XV of the Public Health Service Act in accordance with the requirements of section 1504 of that Act and need treatment for breast or cervical cancer, including a precancerous condition of the breast or cervix; (b) are not otherwise covered under creditable coverage, as defined in PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2718 section 2701(c) of the Public Health Service Act; (c) are not otherwise eligible for Medicaid; and (d) have not attained age 65. Authority G.S. 108A-54; 42 C.F.R. 435.210; 42 C.F.R. 435.222; 42 C.F.R. 435.230; 42 C.F.R. 435.301; 42 C.F.R. 435.308; 42 C.F.R. 435.322; 42 C.F.R. 435.330; 42 U.S.C. 1396(a)(10)(A)(ii); 42 U.S.C. 1396a(a)(10)(C); S.L. 1983, c. 1034, s. 62.2; S.L. 1987, c. 738, s. 69 and 70; S.L. 1989, c. 752, s. 133. TITLE 15A – DEPARTMENT ON ENVIRONMENT AND NATURAL RESOURCES Notice is hereby given in accordance with G.S. 150B-21.2 that the DENR/DWQ intends to amend the rule cited as 15A NCAC 02R .0402. Notice of Rule-making Proceedings was published in the Register on November 15, 2001. Proposed Effective Date: April 1, 2003 Public Hearing: Date: July 15, 2002 Time: 7:00 p.m. Location: Hal Marshall County Services Center, 700 N. Tryon Street, Cooperative Extension office (the room is in the Extension Kitchen), Charlotte, NC, 28202 Date: July 18, 2002 Time: 7:00 p.m. Location: Ground Floor Hearing Room, Archdale Bldg., 512 N. Salisbury St., Raleigh, NC Reason for Proposed Action: An evaluation of the cost of stream restoration projects implemented by the NC Wetlands Restoration Program indicates that the current Schedule of Fees for this activity are inadequate to cover the actual cost of project implementation. In addition, the Environmental Management Commission is interested in incorporating an adjustment for inflation into the Schedule of Fees to minimize the need for rule revision. There is also a need for the NC Wetlands Restoration Program to recoup costs associated with the maintenance and monitoring of easements and land held by the program in absence of a restoration project. Comment Procedures: The Environmental Management Commission encourages written comments. Written as well as oral comments may be submitted at the public hearing and written comments may be submitted to Suzanne Klimek, NC Division of Water Quality – Wetlands Restoration Program, 1619 Mail Service Center, Raleigh, NC 27699-1619. Comments post-marked on or before August 16, 2002 will be made a part of the public record. The Environmental Management Commission is especially interested in comments concerning the fee for stream restoration. The Commission will consider setting the fee higher or lower than the proposed rate of $200 per linear foot of stream included in the proposed revised text. Comments regarding methods for adjusting fees for wetland and stream restoration to account for inflation and costs associated with the monitoring and maintenance of easements and property over time are also encouraged. Data to support comments submitted is strongly encouraged. Fiscal Impact State Local Substantive (>$5,000,000) None CHAPTER 02 - ENVIRONMENTAL MANAGEMENT SUBCHAPTER 02R - WETLANDS RESTORATION PROGRAM SECTION .0400 - WETLANDS RESTORATION FUND 15A NCAC 02R .0402 SCHEDULE OF FEES (a) The amount of payment into the Fund necessary to achieve compliance with compensatory mitigation requirements shall be determined in accordance with Subparagraphs (1) through (3) of this Paragraph. The fee will be based on the acres and types of compensatory mitigation specified in the approved certifications issued by the Department under 33 USC ' 1341; and permits or authorizations issued by the United States Army Corps of Engineers under 33 USC ' 1344. Payments shall be rounded up in increments of linear feet for streams and in 0.25 acre increments for wetlands, e.g. for streams, 520.3 linear feet of compensatory mitigation would be considered as 521 feet, and for wetlands, 2.35 acres of required compensatory mitigation would be considered as 2.5 acres for the purpose of calculating the amount of payment. (1) Classified surface waters other than wetlands as defined in 15A NCAC 02B .0202. The payment shall be one hundred twenty-five dollars ($125.00)two hundred dollars ($200.00) per linear foot of stream. (2) Class WL wetlands as defined in 15A NCAC 02B .0101(c)(8). The payment shall be: (A) Twelve thousand dollars ($12,000.00) per acre for non-riparian wetlands. (B) Twenty four thousand dollars ($24,000.00) per acre for riparian wetlands. (3) Class SWL wetlands as defined in 15A NCAC 02B .0101(d)(4). The payment shall be one hundred twenty thousand dollars ($120,000.00) per acre. (b) The fees outlined in Subparagraphs (a)(1) through (a)(3) of this Rule shall be reviewed annually and compared to the actual cost of restoration activities conducted by the Department, including planning, monitoring and maintenance costs. Based upon this annual review, revisions to Paragraph (a) of this Rule will be recommended when adjustments to this Schedule of Fees are deemed necessary. (c) The fees outlined in Subparagraphs (a)(1) through (a)(3) of this Rule shall be adjusted for inflation on an annual basis using the Cost Construction Index of the Engineering News-Record. This adjustment will occur at the end of each calendar year as follows: the fees in Subparagraphs (a)(1) through (a)(3) of this PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2719 Rule will be multiplied by the annual average (composite of monthly averages from January through December) of the Construction Cost Index and the result will be the increase to that fee for the next fiscal year. The revised fees will be made available via the NC Wetland Restoration Program's web site (h2o.enr.state.nc.us/wrp/index.htm) and become effective on the following July 1st. The first adjustment will be made at the close of calendar year 2003 and the first presentation of fees adjusted for inflation in the North Carolina Register will be made in March, 2004. This process will continue annually thereafter. (d) For properties and easements donated to the NC Wetlands Restoration Program, a fee of three hundred fifty dollars ($350.00) per acre will be charged at the time the land or easement is transferred to the program to cover costs of long-term management of the property. Authority G.S. 143-214.11; 143-214.12; 143-215.3. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Coastal Resources Commission intends to amend the rule cited as 15A NCAC 07B .0702. Notice of Rule-making Proceedings was published in the Register on March 1, 2002. Proposed Effective Date: April 1, 2003 Public Hearing: Date: July 9, 2002 Time: 7:00 p.m. Location: Carteret County Courthouse, Courthouse Square, Beaufort, NC Date: July 24, 2002 Time: 4:30 p.m. Location: Archdale Building, Ground Floor Hearing Room, 512 N. Salisbury St., Raleigh, NC Reason for Proposed Action: Substitute a definition for "probable 404 Wetlands" instead of relying on this term from federal law to convey meaning for local government mapping requirements. Comment Procedures: Written comments may be mailed to Kathy Vinson, Planning and Public Access Manager, Division of Coastal Management, 151-B, HWY 24, Hestron Plaza II, Morehead City, NC 28557. 252-808-2808. Comments will be accepted on this Rule through July 24, 2002. Fiscal Impact State Local Substantive (>$5,000,000) None CHAPTER 07 - COASTAL MANAGEMENT SUBCHAPTER 07B - CAMA LAND USE PLANNING 15A NCAC 07B .0702 ELEMENTS OF CAMA CORE AND ADVANCED CORE LAND USE PLANS (a) Organization of the Plan. The elements in this Rule provide general direction for development of the CAMA Core and Advanced Core Land Use Plans. A detailed Table of Contents shall be included and if the organization does not follow the outline described in this Rule, a matrix shall be included that shows the exact location of the following required elements. (b) Community Concerns and Aspirations: (1) Significant existing and emerging conditions: The plan shall include a description of the dominant growth-related conditions that influence land use, development, water quality, and other environmental concerns in the planning area. (2) Key issues: The plan shall include a description of the land use and development topics most important to the future of the planning area. At a minimum, this description shall include public access, land use compatibility, infrastructure carrying capacity, natural hazard areas, water quality, and local areas of concern as described in Subparagraph (d)(3) (Land Use Plan Management Topics) of this Rule. (3) A community vision: This shall consist of a description of the general physical appearance and form that represents the local government's plan for the future. The community vision shall include statements of general objectives to be achieved by the plan. These objectives shall serve as the foundation for more specific objectives and policies stated elsewhere in the CAMA Land Use Plan. The objectives shall include changes that the local government feels are needed to achieve the planning vision. (c) Analysis of Existing and Emerging Conditions within the planning jurisdiction. The purpose of this element is to provide a sound factual and analytical base that is necessary to support the land use and development policies included in the plan. The analysis shall be based upon the best available data or mapping information from state, federal and local sources. This element shall describe the following: (1) Population, Housing, and Economy. The plan shall include an analysis and discussion of the following data and trends: (A) Population: (i) Permanent population growth trends using data from the two most recent decennial Censuses; (ii) Current permanent and seasonal population estimates; (iii) Key population characteristics; (iv) Age; and (v) Income. (B) Housing stock: (i) Estimate of current housing stock, including permanent and seasonal units, tenure, PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2720 and types of units (single-family, multifamily, and manufactured); and (ii) Building permits issued for single-family, multifamily, and manufactured homes since last plan update. (C) Local economy: Employment by major sectors and description of community economic activity. (D) Projections. Short-term (five and ten year) and long-term (20-year) projections of permanent and seasonal population. (2) Natural systems analysis. The purpose of the natural systems analysis is to describe and analyze the natural features and environmental conditions of the planning jurisdiction, and to assess their capabilities and limitations for development. This analysis shall include: (A) Mapping and analysis of natural features. The 14-digit hydrological units delineated by the Natural Resources Conservation Service shall be used as the basic unit of analysis of natural features. Maps of the following natural features shall be developed with data provided by DCM or other state agencies for analysis and plan development. These maps may be reproduced and included in the CAMA Land Use Plan at the option of the local government. If the maps are not included in the plan, they shall be made available to the public. (i) Areas of Environmental Concern (AECs); (ii) Soil characteristics, including limitations for septic tanks, erodibility, and other factors related to development; (iii) Environmental Management Commission (EMC) water quality classifications (SC, SB, SA, HQW, and ORW) and related use support designations, and Division of Environmental Health (DEH) shellfish growing areas and water quality conditions; (iv) Flood and other natural hazard areas; (v) Storm surge areas; (vi) Non-coastal wetlands-probable 404 wetlands; Non-coastal wetlands including forested wetlands, shrub-scrub wetlands and freshwater marshes; (vii) Water supply watersheds or wellhead protection areas; (viii) Primary nursery areas, where mapped; (ix) Environmentally fragile areas, such as, but not limited to wetlands, natural heritage areas, areas containing endangered species, prime wildlife habitats, or maritime forests; and (x) Additional natural features or conditions identified by the local government. (B) Composite map of environmental conditions: (i) Composite map of environmental conditions: The plan shall include a map that shows the extent and overlap of natural features listed in Part (c)(2)(A) of this Rule and, based on the local government’s determination of the capabilities and limitations of these features and conditions for development, shows the location of the following three categories of land: (I) Class I – land containing only minimal hazards and limitations that may be addressed by commonly accepted land planning and development practices; (II) Class II – land containing development hazards and limitations that may be addressed by methods such as restrictions on types of land uses; special site planning; or the provision of public services; and (III) Class III – land containing serious hazards for development or lands where the PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2721 impact of development may cause serious damage to the functions of natural systems. (ii) The CAMA Land Use Plan shall describe or list the features or conditions selected by the local government for inclusion in each class. (C) Environmental conditions. The plan shall provide an assessment of the following environmental conditions and features and discuss their limitations or opportunities for development: (i) Water quality: (I) Status and changes of surface water quality, including impaired streams from the most recent N.C. Division of Water Quality Basinwide Water Quality Plans, 303(d)List and other comparable data; (II) Current situation and trends on permanent and temporary closures of shellfishing waters as determined by the Report of Sanitary Survey by the Shellfish Sanitation Section of the N.C. Division of Environmental Health; (III) Areas experiencing chronic wastewater treatment system malfunctions; and (IV) Areas with water quality or public health problems related to non-point source pollution. (ii) Natural hazards: (I) Areas subject to storm hazards such as recurrent flooding, storm surges and high winds; (II) Areas experiencing significant shoreline erosion as evidenced by the presence of threatened structures or public facilities; and (III) Where data is available, estimates of public and private damage resulting from floods and wind that has occurred since the last plan update. (iii) Natural resources: (I) Environmentally fragile areas (as defined in Part (c)(2)(A)(ix) of this Rule) or areas where resource functions may be impacted as a result of development; and (II) Areas containing potentially valuable natural resources. These may include, but are not limited to the following: beach quality sand deposits, protected open space, and agricultural land, that may be impacted or lost as a result of incompatible development. (3) Analysis of Land Use and Development. The purpose of the analysis of land use and development is to describe and quantify existing patterns of land uses, identify potential land use and land use/water use conflicts, determine future development trends, and project future land needs. The plan shall include the following mapping and analysis of existing land use: (A) A map of land including the following: Residential, commercial, industrial, institutional, public, dedicated open space, agriculture, forestry, confined animal feeding operations, and undeveloped; (B) The land use analysis shall include the following: PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2722 (i) Table that shows estimates of the land area allocated to each land use; (ii) Description of any land use conflicts; (iii) Description of any land use – water quality conflicts; (iv) Description of development trends using indicators. These development trends may include, but are not limited to the following: building permits and platted but un-built lots; and (v) Location of areas expected to experience development during the five years following plan certification by the CRC and a description of any potential conflicts with Class II or Class III land identified in the natural systems analysis. (C) Historic, cultural, and scenic areas designated by a state or federal agency or by local government. These areas and sites shall be located on either the existing land use map or a separate map; and (D) Projections of future land needs. The analysis shall include short term (five and ten year) and long term (20-year) projections of residential land area needed to accommodate the planning jurisdiction’s projected future permanent and seasonal population (population projections as defined in Part (c)(1)(D) (of this Rule (Analysis of Existing and Emerging Conditions). The projections of land needs may be increased up to 50% to allow for unanticipated growth and to provide market flexibility. For local governments experiencing low or no growth (as shown in Figure 1 in 15A NCAC 7B .0701), the projections of land needs may consider economic strategies in the final calculations. (4) Analysis of Community Facilities. The purpose of the analysis of community facilities is to evaluate existing and planned capacity, location, and adequacy of key community facilities that serve the community’s existing and planned population and economic base; that protect important environmental factors such as water quality; and that guide land development in the coastal area. This analysis shall include: (A) Public and private water supply and wastewater systems. The analysis of water and sewer systems shall include a description and map(s) of existing public and private systems, including existing condition and capacity; location of pipelines, documentation of any overflows, bypasses, or other problems that may degrade water quality or constitute a threat to public health; existing and planned service areas; and future needs based on population projections. If any required information is not available for private systems, the local government shall so state in the plan and this factor may be eliminated from the analysis. (B) Transportation systems. The analysis of the transportation system shall include a map showing: the existing highway system; any segments deemed by the North Carolina Department of Transportation (NCDOT) as having unacceptable service levels; highway facilities on the current thoroughfare plan; and facilities on the current transportation improvement program. The analysis shall also assess the impact of planned highway or other transportation facilities on growth levels and development patterns. (C) Stormwater systems. The analysis of public and permitted private stormwater systems shall include identification of existing drainage problems in the planning area; identification of water quality issues related to point-source discharges of stormwater runoff; and an overview of potential stormwater system requirements for local governments subject to the EPA’s Storm Water Phase II Final Rules. (D) Other facilities. The local government may include additional facilities and services such as solid waste and health and safety in the analysis. (5) Land Suitability Analysis. The purpose of the land suitability analysis is to determine the planning area's supply of land suited for PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2723 development based on the following considerations: natural system constraints, compatibility with existing land uses and development patterns, the existing land use and development criteria of local, state, and federal agencies and the availability and capacity of water, sewer, stormwater management facilities, and transportation systems. The analysis shall include a land suitability map showing vacant or under-utilized land that is suitable for development. The following factors shall be considered to assess land suitability: (A) Water quality; (B) Land Classes I, II, and III summary environmental analysis; (C) Proximity to existing developed areas and compatibility with existing land uses; (D) Potential impact of development on areas and sites designated by local historic commissions or the North Carolina Department of Cultural Resources as historic, culturally significant, or scenic; (E) Land use and development requirements of local development regulations, CAMA Use Standards and other applicable state regulations, and applicable federal regulations; and (F) Availability of community facilities, including water, sewer, stormwater and transportation. (6) Review of Current CAMA Land Use Plan. The purpose of the review of the current CAMA Land Use Plan is for the local governing body to review its success in implementing the policies and programs adopted in the plan and the effectiveness of those policies in achieving the goals of the plan. The review shall include consideration of the following factors: (A) Consistency of existing land use and development ordinances with current CAMA Land Use Plan policies; (B) Adoption of the land use plan's implementation measures by the governing body; and (C) Efficacy of current policies in creating desired land use patterns and protecting natural systems. (d) Plan for the Future. This element of the plan is intended to guide the development and use of land in the planning jurisdiction in a manner that achieves its goals for the community and CAMA. Policies affecting AECs shall also be used in making CAMA permit decisions. The plan for the future includes the local government's goals, land use and development policies, and future land use map. (1) Land use and development goals. The following shall be considered in the development of the plan's goals: (A) Community concerns and aspirations identified at the beginning of the planning process; and (B) Needs and opportunities identified in the analysis of existing and emerging conditions. (2) Policies: (A) Policies included in the land use plan shall be consistent with the goals of the CAMA, shall address the CRC management topics for land use plans, and comply with all state and federal rules. The CAMA Land Use Plan shall demonstrate how the land use and development goals, policies and future land use map, as required in Subparagraph (d)(4) of this Rule, will guide the development and use of land in the planning jurisdiction in a manner that is consistent with the specific management goal(s), planning objective(s) and land use plan requirements of each Management Topic. (B) The plan shall contain a description of the type and extent of analysis completed to determine the impact of CAMA Land Use Plan policies on the management topics; a description of both positive and negative impacts of the land use plan policies on the management topics; and a description of the policies, methods, programs and processes to mitigate any negative impacts on applicable management topics. (C) The plan shall contain a clear statement that the governing body either accepts state and federal law regarding land uses and development in AECs or, that the local government's policies exceed the requirements of state and federal agencies. If local policies exceed the State and Federal requirements, the CAMA Land Use Plan shall identify which policies exceed these requirements and to what extent. If the governing body intends to rely on Federal and State laws and regulations it shall reference these in the plan. (3) Land Use Plan Management Topics. The purposes of the CRC management topics are to insure that CAMA Land Use Plans support the goals of CAMA, to define the CRC's expectations for the land use planning process, and to give the CRC a substantive basis for PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2724 review and certification of CAMA Land Use Plans. Each of the following management topics (Public Access, Land Use Compatibility, Infrastructure Carrying Capacity, Natural Hazard Areas, Water Quality, and Local Areas of Concern) include three components: a management goal, a statement of the CRC's planning objective, and requirements for the CAMA Land Use Plans. (A) Public Access: (i) Management Goal: Maximize public access to the beaches and the public trust waters of the coastal region. (ii) Planning Objective: Develop comprehensive policies that provide beach and public trust water access opportunities for the public along the shoreline within the planning jurisdiction. Policies shall address access needs and opportunities, include strategies to develop public access, and identify feasible funding options. (iii) Land Use Plan Requirements: Land use plan policies on ocean and public waterfront access shall establish local criteria for frequency and type of access facilities. These policies shall contain provisions for public access for all segments of the community, including persons with disabilities, and shall establish access criteria for beach areas targeted for nourishment. (B) Land Use Compatibility: (i) Management Goal: Ensure that development and use of resources or preservation of land minimizes direct and secondary environmental impacts, avoids risks to public health, safety and welfare and is consistent with the capability of the land based on considerations of interactions of natural and manmade features. (ii) Planning Objective: (I) Adopt and apply local development policies, that balance protection of natural resources and fragile areas with economic development. (II) Policies to provide clear direction to assist local decision making and consistency findings for zoning, divisions of land, and public and private projects. (iii) Land Use Plan Requirements: (I) Establish building intensity and density criteria, such as floor area ratio and units per acre, consistent with the land suitability analysis for each land use designation on the Future Land Use Map. (II) Establish local mitigation criteria and concepts. These may include, but are not limited to the following: cluster subdivision design, enacting local buffers, impervious surface limits, and effective innovative stormwater management alternatives. (C) Infrastructure Carrying Capacity: (i) Management Goal: Ensure that public infrastructure systems are appropriately sized, located and managed so the quality and productivity of AECs and other fragile areas are protected or restored. (ii) Planning Objective: Establish level of service policies and criteria for infrastructure consistent with Part (c)(3)(D) (Projections of Future Land Needs) of this Rule. (iii) Land Use Plan Requirements: (I) Identify/establish service area PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2725 boundaries for existing and future infrastructure. (II) Correlate future land use map categories with existing and planned infrastructure such as wastewater, water infrastructure and transportation. (D) Natural Hazard Areas: (i) Management Goal: Conserve and maintain barrier dunes, beaches, flood plains, and other coastal features for their natural storm protection functions and their natural resources giving recognition to public health, safety, and welfare issues. (ii) Planning Objective: Develop policies that minimize threats to life, property, and natural resources resulting from development located in or adjacent to hazard areas, such as those subject to erosion, high winds, storm surge, flooding, or sea level rise. (iii) Land Use Plan Requirements: (I) Develop location, density, and intensity criteria for new, existing development and redevelopment including public facilities and infrastructure so that they can better avoid or withstand natural hazards. (II) Correlate existing and planned development with existing and planned evacuation infrastructure. (E) Water Quality: (i) Management Goal: Maintain, protect and where possible enhance water quality in all coastal wetlands, rivers, streams and estuaries. (ii) Planning Objective: Adopt policies for coastal waters within the planning jurisdiction to help ensure that water quality is maintained if not impaired and improved if impaired. (iii) Land Use Plan Requirements: (I) Devise policies that help prevent or control nonpoint source discharges (sewage and storm water) such as, but not limited to the following: impervious surface limits, vegetated riparian buffers, natural areas, natural area buffers, and wetland protection. (II) Establish policies and land use categories aimed at protecting open shellfishing waters and restoring closed or conditionally closed shellfishing waters. (F) Local Areas of Concern: (i) Management Goal: Integrate local concerns with the overall goals of CAMA in the context of land use planning. (ii) Planning Objective: Identify and address local concerns and issues, such as cultural and historic areas, scenic areas, economic development, downtown revitalization or general health and human services needs. (iii) Land Use Plan Requirements: Evaluate local concerns and issues for the development of goals, policies and implementation strategies. These may include timelines and identification of funding options. (4) Future land use map. This map depicts application of the policies for growth and development, and the desired future patterns of land use and land development with PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2726 consideration given to natural system constraints and infrastructure policies. The local government shall include such categories and descriptions of land uses and development as are required to accurately illustrate the application of its policies. At a minimum, the map shall show the following: (A) 14-digit hydrological units encompassed by the planning area; (B) areas and locations planned for conservation or open space and a description of compatible land uses and activities; (C) areas and locations planned for future growth and development with descriptions of the following characteristics: (i) predominant and supporting land uses that are encouraged in each area; (ii) overall density and development intensity planned for each area; and (iii) infrastructure required to support planned development in each area. (D) areas in existing developed areas for infill, preservation, and redevelopment; (E) existing and planned infrastructure, including major roads, water, and sewer. The local government may use additional or more detailed categories if required to depict its land use policies. If the future land use map shows development patterns or land uses that are not consistent with the natural systems analysis, or the land suitability analysis, then the plan shall include a description of the steps that the local government shall take to mitigate the impacts. In addition, the plan shall include an estimate of the cost of any community facilities or services that shall be extended or developed. The amount of land allocated to various uses shall be calculated and compared to the projection of land needs. The amount of land area thus allocated to various uses may not exceed projected needs as delineated in Part (c)(3)(D) of this Rule (Projections of Future Land Needs). (e) Tools for Managing Development. This element of the plan provides a description of the management tools that the local government selects and the actions to be taken to implement the CAMA Land Use Plan. It also includes a five-year schedule for implementation. This element shall at a minimum include: (1) Guide for land use decision-making. Describe the specific role and the status of the land use plan policies and future land use plan map in local decisions regarding land use and development. (2) Existing development program. Describe the community’s existing development management program, including local ordinances, codes, and policies, state and federal laws and regulations, and the role that the existing management program plays in implementing the plan. This description shall also include the community's approach to coordinating these codes and rules to implement the land use and development policies. (3) Additional tools. Describe any of the following additional tools selected by the local government to implement the CAMA land use plan policies. (A) Ordinances: (i) Amendments or adjustments in existing development codes required for consistency with the plan; (ii) New ordinances or codes to be developed; (B) Capital improvements program. New, upgraded or expanded community facilities, such as but not limited to the following: water, sewer, stormwater, transportation, and other facilities, and policies regarding connections to and extensions of community facilities; (C) Acquisition program. Planned acquisition of property, easements, or rights-of-way; and (D) Specific projects to reach goals. (4) Action plan/schedule. Describe the priority actions that will be taken by the local government to implement the CAMA Land Use Plan and specify the fiscal year(s) in which each action is anticipated to start and finish. The document shall contain a description of the specific steps that the local government plans to take to involve the public in monitoring implementation of the CAMA Land Use Plan, including the adoption of local ordinances that affect AECs. The action plan shall be used to prepare the implementation status report for the CAMA Land Use Plan. Authority G.S. 113A-102, 113A-107(a); 113A-110, 113A-111; 113A-124. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Coastal Resources Commission intends to amend the rules cited as 15A NCAC 07H .1101, .1201, .1205, 1301, .1401, .2001, .2101, .2201, .2401. Notice of Rule-making Proceedings was published in the Register on January 15, 2002 and March 15, 2002. Proposed Effective Date: April 1, 2003 Public Hearing: Date: July 9, 2002 PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2727 Time: 7:00 p.m. Location: Carteret County Courthouse, Courthouse Square, Beaufort, NC Date: July 24, 2002 Time: 4:30 p.m. Location: Ground Floor Hearing Room, Archdale Building, 512 N. Salisbury St., Raleigh, NC Reason for Proposed Action: 15A NCAC 07H .1101, .1201, .1301, .1401, .2001, .2101, .2201, 2401 – The proposed changes would allow more projects to become eligible for CAMA General Permits if they are located on the sound side of a barrier island and within the Ocean Hazards Area of Environmental Concern. At present, many of the CAMA and Dredge and Fill General Permits prohibit development in the Ocean Hazard AEC. However, the situation has changed in recent years due to the significant inland expanse of high hazard flood areas. Because of the changes in these areas, the CRC feels that there is a need to expand the availability for General Permits. 15A NCAC 07H .1205 – Staff has reviewed the specific conditions of the CRC's General Permit for Construction of Piers, Docks and Boat Houses. Staff believes that these proposed changes will allow piers that existed on or before July 1, 2001 to be structurally modified outside of their footprint in a manner that will minimize impacts to adjacent coastal wetlands, estuarine waters and/or public trust areas. Comment Procedures: Comments may be submitted to Charles S. Jones, Assistant Director, Division of Coastal Management, 151-B, Hwy 24, Hestron Plaza II, Morehead City, NC 28557, 252-808-2808. Comments will be accepted on these Rules through July 24, 2002. Fiscal Impact State Local Substantive (>$5,000,000) None CHAPTER 07 – COASTAL MANAGEMENT SUBCHAPTER 07H - STATE GUIDELINES FOR AREAS OF ENVIRONMENTAL CONCERN SECTION .1100 - GENERAL PERMIT FOR CONSTRUCTION OF BULKHEADS AND THE PLACEMENT OF RIPRAP FOR SHORELINE PROTECTION IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1101 PURPOSE This permit will allow the construction of bulkheads and the placement of riprap for shoreline protection in the public trust waters and estuarine waters AECs according to authority provided in Subchapter 07J .1100 and according to the following guidelines. This permit will not apply to shoreline protection along the oceanfront or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines that feature characteristics of the Estuarine Shoreline AEC. Such features include the presence of wetland vegetation, lower wave energy and lower erosion rates than the adjoining Ocean Erodible Area.within the ocean hazard AEC. Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. SECTION .1200 - GENERAL PERMIT FOR CONSTRUCTION OF PIERS: DOCKS: AND BOAT HOUSES IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1201 PURPOSE This permit will allow the construction of new piers, docks, and boat houses in the estuarine and public trust waters AECs and construction of new piers and docks within coastal wetlands AECs according to the authority provided in Subchapter 07J .1100 and according to the following guidelines. This permit will not apply to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines that feature characteristics of the Estuarine Shoreline AEC. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than the adjacent Ocean Erodible Area.the Ocean Hazard AEC. Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. 15A NCAC 07H .1205 SPECIFIC CONDITIONS (a) Piers, docks, and boat houses may extend or be located up to a maximum of 400 feet from the normal high water line, or the normal water level, whichever is applicable. (b) Piers, docks, and boat houses shall not extend beyond the established pier length along the same shoreline for similar use. This restriction shall not apply to piers 100 feet or less in length unless necessary to avoid unreasonable interference with navigation or other uses of the waters by the public. The length of piers shall be measured from the waterward edge of any wetlands that border the water body. (c) Piers longer than 200 feet shall be permitted only if the proposed length gives access to deeper water at a rate of at least one foot at each 100 foot increment of pier length longer than 200 feet, or if the additional length is necessary to span some obstruction to navigation. Measurements to determine pier lengths shall be made from the waterward edge of any coastal wetland vegetation which borders the water body. (d) Piers and docks shall be no wider than six feet and shall be elevated at least three feet above any coastal wetland substrate as measured from the bottom of the decking. (e) Any portion of a pier (either fixed or floating) extending from the main structure and six feet or less in width shall be considered either a "T" or a finger pier. (f) Any portion of a pier (either fixed or floating) greater than six feet wide shall be considered a platform or deck. (g) "T"s, finger piers, platforms, and decks of piers on lots with shorelines 100 feet or greater in length shall not exceed a combined total area of 400 square feet. The combined total area for lots less than 100 feet shall not exceed four square feet per linear foot of shoreline. (h) Platforms and decks shall have no more than six feet of any dimension extending over coastal wetlands. PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2728 (i) The width requirements established in Paragraphs (d), (e), (f), (g) and (h) of this Rule shall not apply to pier structures in existence on or before July 1, 2001 when structural modifications are needed to prevent or minimize storm damage. In these cases, pilings and cross bracing may be used to provide structural support as long as they do not extend more than two feet on either side of the principal structure. These modifications may not be used to expand the floor decking of platforms and piers. (i)(j) Boathouses shall not exceed 400 square feet and shall have sides extending no further than one-half the height of the walls and only covering the top half of the walls. Measurements of square footage shall be taken of the greatest exterior dimensions. Boathouses shall not be allowed on lots with less than 75 linear feet of shoreline. (j)(k) Areas enclosed by boat lifts shall not exceed 400 square feet. (k)(l) Piers, docks, decks, platforms and boat houses shall be single story. They may be roofed but shall not be designed to allow second story use. (l)(m) Pier alignments along federally maintained channels must also meet Corps of Engineers regulations for pier construction pursuant to Section 10 of the Rivers and Harbors Act. (m)(n) Piers, docks, and boat houses shall in no case extend more than 1/4 the width of a natural water body, human-made canal or basin. Measurements to determine widths of the water body, human-made canals or basins shall be made from the waterward edge of any coastal wetland vegetation which borders the water body. The 1/4 length limitation shall not apply when the proposed pier is located between longer piers within 200 feet of the applicant's property. However, the proposed pier shall not be longer than the pier head line established by the adjacent piers, nor, longer than 1/3 the width of the water body. (n)(o) Piers, docks and boat houses shall not interfere with the access to any riparian property, and shall have a minimum setback of 15 feet between any part of the pier and the adjacent property lines extended into the water at the points that they intersect the shoreline. The minimum setbacks provided in the rule may be waived by the written agreement of the adjacent riparian owner(s), or when two adjoining riparian owners are co-applicants. Should the adjacent property be sold before construction of the pier commences, the applicant shall obtain a written agreement with the new owner waiving the minimum setback and submit it to the Division of Coastal Management prior to initiating any development of the pier, dock, or boat house. The line of division of areas of riparian access shall be established by drawing a line along the channel or deep water in front of the property, then drawing a line perpendicular to the line of the channel so that it intersects with the shore at the point the upland property line meets the water's edge. Application of this Rule may be aided by reference to the approved diagram in Paragraph (q) of this Rule illustrating the rule as applied to various shoreline configurations. Copies of the diagram may be obtained from the Division of Coastal Management. When shoreline configuration is such that a perpendicular alignment cannot be achieved, the pier shall be aligned to meet the intent of this Rule to the maximum extent practicable. (o)(p) Piers, and mooring facilities shall be designed to provide docking space for no more than two boats. (p)(q) Applicants for authorization to construct a dock or pier shall provide notice of the permit application to the owner of any part of a shellfish franchise or lease over which the proposed dock or pier would extend. The applicant shall allow the lease holder the opportunity to mark a navigation route from the pier to the edge of the lease. (q)(r) The diagram shown below illustrates the various shoreline configurations. PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2729 Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. SECTION .1300 - GENERAL PERMIT TO MAINTAIN: REPAIR AND CONSTRUCT BOAT RAMPS ALONG ESTUARINE AND PUBLIC TRUST SHORELINES AND INTO ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1301 PURPOSE A permit under this Section shall allow for the construction of boat ramps along estuarine and public trust shorelines and into estuarine and public trust waters AECs according to the authority provided in Subchapter 07J .1100 and according to the Rules in this Section. This permit shall not apply This permit will not apply to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines that feature characteristics of the Estuarine Shoreline AEC. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than the adjacent Ocean Erodible Area. to the Ocean Hazard AEC. Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. SECTION .1400 - GENERAL PERMIT FOR CONSTRUCTION OF WOODEN GROINS IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1401 PURPOSE This permit will allow the construction of wooden groins in the estuarine and public trust waters AECs according to the authority provided in Subchapter 07J .1100 and according to the following guidelines. This general permit shall not apply to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines that feature characteristics of the Estuarine Shoreline AEC. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than the adjacent Ocean Erodible Area. the ocean hazard AEC. Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2730 SECTION .2000 - GENERAL PERMIT FOR AUTHORIZING MINOR MODIFICATIONS AND REPAIR TO EXISTING PIER/MOORING FACILITIES IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .2001 PURPOSE This permit will allow for reconfiguration, minor modifications, repair and improvements to existing pier and mooring facilities in estuarine waters and public trust areas according to the authority provided in Subchapter 07J .1100 of this Chapter and according to the following guidelines. This permit shall not apply This permit will not apply to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines that feature characteristics of the Estuarine Shoreline AEC. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than the adjacent Ocean Erodible Area.the Ocean Hazard AEC. Authority G.S. 113A-107; 113A-118.1. SECTION .2100 - GENERAL PERMIT FOR CONSTRUCTION OF MARSH ENHANCEMENT BREAKWATERS FOR SHORELINE PROTECTION IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .2101 PURPOSE This general permit shall allow the construction of offshore parallel breakwaters, made from wood, plastic lumber, or metal sheet piling for shoreline protection in conjunction with existing or created coastal wetlands. This permit shall only be applicable where a shoreline is experiencing erosion in public trust areas and estuarine waters according to authority provided in 15A NCAC 07J .1100 and according to the procedures and conditions outlined in this subchapter. This permit shall not apply to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines within the ocean hazard AEC, the inlet hazard AEC, or waters adjacent to these. AEC's, with the exception of those portions of shoreline within the Inlet Hazard Area AEC that feature characteristics of Estuarine Shorelines. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than in adjoining Ocean Erodible Area. Authority G.S. 113A-107; 113A-118.1. SECTION .2200 - GENERAL PERMIT FOR CONSTRUCTION OF FREESTANDING MOORINGS IN ESTUARINE WATERS AND PUBLIC TRUST AREAS AND OCEAN HAZARD AREAS 15A NCAC 07H .2201 PURPOSE This permit shall allow the construction of freestanding moorings in the estuarine waters and public trust areas AECs according to the procedures provided in 15A NCAC 07J .1100 and according to the rules in this Section. This permit shall not apply to waters adjacent to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC with the exception of those shorelines that feature characteristics of the Estuarine Shoreline AEC. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than the adjacent Ocean Erodible Area.the Ocean Hazard AEC. Authority G.S. 113A-107; 113A-118.1. SECTION .2400 - GENERAL PERMIT FOR PLACEMENT OF RIPRAP FOR WETLAND PROTECTION IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .2401 PURPOSE The general permit for placement riprap for wetland protection in estuarine and public trust waters shall allow the placement of riprap immediately adjacent to and waterward of wetlands. This permit shall only be applicable where a shoreline is experiencing erosion in public trust areas and estuarine waters according to authority provided in 15A NCAC 07J .1100 and according to the rules in this Section. This permit shall not apply to oceanfront shorelines or to waters and shorelines adjacent to the Ocean Hazard AEC within the Ocean Hazard System of Areas of Environmental Concern (AEC) or waters adjacent to these AEC's with the exception of those portions of shoreline within the Inlet Hazard Area AEC that feature characteristics of Estuarine Shorelines. Such features include the presence of wetland vegetation, lower wave energy, and lower erosion rates than in the adjoining Ocean Erodible Area. Authority G.S. 113A-107; 113A-118.1. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the DENR – Forest Resources intends to adopt the rules cited as 15A NCAC 09C .1201-.1227. Notice of Rule-making Proceedings was published in the Register on February 1, 2002 and April 15, 2002. Proposed Effective Date: April 1, 2003 Public Hearing: Date: July 9, 2002 Time: 5:00 p.m. – 8:00 p.m. Location: Transylvania County Courthouse, 28 E. Main St., Brevard, NC Reason for Proposed Action: To initiate rules to provide for public safety and appropriate use of the DuPont State Forest. Comment Procedures: Written comments will be accepted through July 31, 2002 and should be addressed to DuPont State Forest Supervisor, NC Division of Forest Resources, 14 Gaston Mountain Rd., Asheville, NC 28806-9101. Fiscal Impact State Local Substantive (>$5,000,000) None CHAPTER 09 – DIVISION OF FOREST RESOURCES PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2731 SUBCHAPTER 09C – DIVISION PROGRAMS SECTION .1200 ��� DUPONT STATE FOREST 15A NCAC 09C .1201 PURPOSE (a) This Section coordinates all uses of DuPont State Forest in order to promise its best use for the most people. (b) DuPont State Forest is located in southwest Henderson and northeast Transylvania Counties in western North Carolina. Authority G.S. 113-8; 113-34; 113-35. 15A NCAC 09C .1202 DEFINITIONS OF TERMS Whenever used in this Subchapter: (1) "Bridle Trail" means any trail maintained for persons riding on horseback. (2) "Public nudity" means a person's intentional failure to cover with a fully opaque covering the person's genitals, pubic area, anal area, or female breasts below a point from the top of the areola while in a public place. (3) "Hiking Trail" means any trail maintained for pedestrians. (4) "Bathing Area" means any beach or water area designated by the department as a bathing area. (5) "Permit" means any written license issued by or under the authority of the department permitting the performance of a specified act or acts. (6)_____"Group" means a number of individuals related by a common factor, having structured organization, defined leadership, and whose activities are directed by a charter or written bylaws. Authority G.S. 113-35. 15A NCAC 09C .1203 PERMITS (a) A permit authorizes an act only when that act strictly conforms with the terms contained on the permit, or in applicable rules, and with existing state laws. (b) Any violation of the permit constitutes grounds for its revocation by the department. In case of revocation the permit holder shall forfeit to the department all money for the permit. Furthermore, the department shall consider the permit holder, together with his agents and employees who violated such terms, jointly and severally liable to the department for all damages suffered in excess of money so forfeited. However, neither the forfeiture of such money, nor the recovery of such damages, nor both, in any manner relieves such person from statutory punishment for any violation of a provision of any state forest rule. (c) A permit may be issued to a person or a group as defined in Rule .1202 of this Section engaged in an activity whose purpose is civic, educational, scientific, or non-profit; to government entities engaged in training activities; or to persons or groups performing volunteer maintenance activities on the forest that are authorized in advance by the forest supervisor. (d) Applications for permits shall be made at the State Forest Office during business hours. Authority G.S. 113-8; 113-34; 113-35. 15A NCAC 09C .1204 ROCK OR CLIFF CLIMBING AND RAPPELLING A person shall not engage in rock or cliff climbing or rappelling in DuPont State Forest, except at designated areas and only after obtaining a special use permit from a forest official. Application for permits may be made as provided by Rule .1203 of this Section. Authority G.S. 113-35. 15A NCAC 09C .1205 BATHING OR SWIMMING (a) A person shall not dive or jump from any falls or rocks or overhangs into any body of water. (b) A person shall not bathe or swim in any body of water in the Forest, except at such times and in such places as the Division may designate as swimming areas. (c) Public Nudity (1) Public nudity, including public nude bathing, is prohibited in all of DuPont State Forest lands or waters. This Rule does not apply to the enclosed portions of bathhouses, restrooms, tents and recreational vehicles. (2) Children under the age of five are exempt from this restriction. Authority G.S. 14-190.9; 113-35. 15A NCAC 09C .1206 HUNTING (a) Hunting Restricted. A person shall not hunt any wild bird or wild animal in the State Forest, except that: (1) a person may hunt game birds or game animals: (A) during open seasons prescribed by the North Carolina Wildlife Resources Commission; and (B) provided that he has a valid game lands use permit and special hunt permit in addition to an appropriate hunting or sportsman's license. (2) Safety Requirements. A hunter shall not: (A) be under the influence of alcohol; (B) discharge a firearm or bow and arrow from a vehicle, or within 150 yards of any building or designated camping area, or within, into, or across a posted safety zone; (C) discharge a firearm within, into, or across a posted restricted zone; (D) drive a motorized vehicle other than on roads and trails maintained for vehicular use, or in excess of 20 miles per hour; and (E) obstruct a state forest road or trail. (b) Tree Stands. Hunters shall not erect or occupy any tree stand attached to any tree, unless they use a portable stand that leaves no metal in the tree. (c) Trapping. A person may trap furbearing animals during open seasons, except in posted safety zones, provided that he has a valid PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2732 game lands use permit and trapping license, and provided that he obeys all state laws, rules and regulations. Authority G.S. 113-8; 113-34; 113-35; 113-264(a). 15A NCAC 09C .1207 FISHING A person may fish in any stream in DuPont State Forest provided that he has a valid state or county fishing license, and provided that he obeys all state fishing laws, rules and regulations. Authority G.S. 113-8; 113-34; 113-35. 15A NCAC 09C .1208 ANIMALS AT LARGE (a) No person shall have any dog, cat or other pet upon DuPont State Forest unless the animal is on a leash no longer than six feet and under the control of the owner or some other person. Hunting dogs used in accordance with NC Wildlife Commission Game Lands Regulations pertaining to DuPont State Forest are exempt from this Rule. (b) No dog, cat or other pet shall be allowed to enter the toilet or bathhouse on DuPont State Forest except assistance animals for persons with disabilities. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1209 BOATING (a) Privately owned boats or canoes may be operated in any waters on DuPont State Forest, provided they are manually operated or propelled by means of oars, paddles or electric trolling motors. Boats with gas motors attached are prohibited on any waters of the forest, except for use by rescue squads, diving teams, or other organizations conducting emergency operations. (b) Operation of boats or canoes within 50 yards of the water intake on Lake Julia is prohibited. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1210 CAMPING No person shall spend the night or maintain a camp in DuPont State Forest except under permit, and at such places and for such periods as may be designated. Application for permits may be made as provided by Rule .1203 of this Section. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1211 SPORTS AND GAMES No games or athletic contests shall be allowed except in places as may be designated. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1212 HORSES (a) No person shall use, ride or drive a horse except to, from, or along a bridle path or other designated area. (b) Each user shall remove from designated parking areas all residues (including manure) generated by his/her horse. (c) When dismounted, horses shall be tied in such a manner as to prevent damage to trees or any other plants. (d) When crossing rivers or streams, horse use shall be confined to bridges or culverts if available. (e) Users shall possess valid Coggins papers for each horse and make them available for inspection upon request. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1213 BICYCLES (a) No person shall use or ride a bicycle except on a road or trail authorized for use by motor vehicles or specifically designated as a bicycle trail. (b) When crossing rivers or streams, bicycle use shall be confined to bridges or culverts if available. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1214 EXPLOSIVES No person shall carry or possess any explosives or explosive substance including fireworks upon DuPont State Forest. This does not apply to employees of the department when they engage in construction or maintenance of the area. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1215 FIREARMS No person except authorized forest law enforcement officers of the department, game protectors, and bona fide peace officers on official duty shall carry or possess firearms of any description, or air guns or pellet guns, on or upon DuPont State Forest. Properly licensed hunters that meet the requirements of Rule .1206 of this Section are exempt from this Rule. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1216 FIRES No person shall build or start a fire in any area unless that area is designed for such purpose. These areas include fireplaces and grills made for this purpose. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1217 DISORDERLY CONDUCT No person visiting on DuPont State Forest shall disobey a lawful order of a state forest supervisor, ranger, assistant ranger, or law enforcement officer or endanger or disrupt others. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1218 INTOXICATING BEVERAGES AND DRUGS No person shall use or be intoxicated or under the influences of intoxicants, marijuana, or non-prescribed narcotic drugs as defined in G.S. 90-87. The public display or use of beer, wine, whiskey, other intoxicating beverages, marijuana or non-prescribed narcotic drugs is hereby prohibited. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1219 COMMERCIAL ENTERPRISES No person, being without a permit, shall in or on DuPont State Forest, sell or offer for sale, hire, or lease, any object or PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2733 merchandise, property, privilege, service or any other thing, or engage in any business. Application for permits may be made as provided by Rule .1203 of this Section. Authority G.S. 113-22; 113-34; 113-35. 15A NCAC 09C .1220 NOISE REGULATION The production or emission in DuPont State Forest by any person of noises, amplified speech, music or other sounds that annoy, disturb or frighten forest users, in the opinion of a Division of Forest Resources employee, is prohibited. Authority G.S. 113-34; 113-35; 113-264(a). 15A NCAC 09C .1221 MEETINGS AND EXHIBITIONS A person shall not hold any meetings or exhibitions, perform any ceremony, or make any speech, on DuPont State Forest without a permit. Application for permits may be made as provided by Rule .1203 of this Section. Authority G.S. 113-35. 15A NCAC 09C .1222 ALMS AND CONTRIBUTIONS A person shall not solicit alms or contributions for any purpose within DuPont State Forest, unless approved by the Division of Forest Resources, and such contributions will be used to benefit the forest. Authority G.S. 113-35. 15A NCAC 09C .1223 AVIATION (a) Except as noted in Paragraphs (b) and (c) of this Rule, a person shall not voluntarily bring, land or cause to descend or alight, ascend or take off within or upon any DuPont State Forest area, any airplane, flying machine, balloon, parachute, glider, hang glider, or other apparatus for aviation. Voluntarily in this connection shall mean anything other than a forced landing. (b) In forest areas where aviation activities are part of the planned forest activities, a special use permit will be required. Application for permits may be made as provided by Rule .1203 of this Section. (c) Emergency aircraft such as air ambulances and fire fighters are exempt from this Rule. Authority G.S. 113-35. 15A NCAC 09C .1224 EXPULSION For violation of the Rules in this Section, the department may withdraw the right of a person or persons to remain in DuPont State Forest. Authority G.S. 113-8; 113-34; 113-35. 15A NCAC 09C .1225 MOTORIZED VEHICLES: WHERE PROHIBITED A person shall not drive a motorized vehicle in the forest within or upon a safety zone, walk, bridle trail, fire trail, service road, or any part of the forest not designated for such purposes. Motor bikes, mini-bikes, all terrain vehicles, and unlicensed motor vehicles are prohibited within the forest. Authority G.S. 113-35. 15A NCAC 09C .1226 FLOWERS: PLANTS: MINERALS: ETC. (a) A person shall not remove, destroy or injure any tree, flower, artifact, fern, shrub, rock or other plant or mineral in any forest area. Silvicultural activities performed in accordance with the DuPont State Forest Management Plan, as approved by the Director of the Division of Forest Resources, are exempt from this Rule. (b) A person shall not collect plants, animals, minerals or artifacts from any forest area without first having obtained a collector's permit. Application for permits may be made as provided by Rule .1203 of this Section. Authority G.S. 113-35. 15A NCAC 09C .1227 FEES AND CHARGES The following fee schedule shall apply at DuPont State Forest. Payment of the appropriate fee shall be a prerequisite for the use of the public service facility or convenience provided. Unless otherwise provided in this Rule, the number of persons camping at a particular site may be limited by the forest supervisor depending upon the size of the camping group and the size and nature of the campsite. The forest supervisor may waive fees for groups performing volunteer trail maintenance or other activities providing benefit to the forest. TYPE OF FACILITY OR CONVENIENCE FEE (1) CAMPING (a) Primitive, unimproved campsites with pit privies. $8.00 (per campsite, daily) Fresh water also available. (b) Primitive group tent camping, unimproved campsites $1.00 (per person, with $8.00 minimum) with pit privies. (c) Improved group camping (water, restrooms and shower $35.00 (per day, maximum capacity 35) facilities available). (2) PICNIC SHELTER RENTAL $20.00 (1-2 tables) (by reservation only) $35.00 (3-4 tables) $50.00 (5-8 tables) $75.00 (9-12 tables) (3) COMMUNITY BUILDINGS $150.00 (per day, includes up to 20 car passes) (4) HORSE BARN $10.00 (daily per horse, maximum capacity 20 PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2734 horses) (5) SPECIAL ACTIVITIES (for uses not identified in this Rule) $1.00 (per person, with a $25.00 maximum). Authority G.S. 113-35(b). TITLE 21 – OCCUPATIONAL LICENSING BOARDS CHAPTER 21 - BOARD OF GEOLOGISTS Notice is hereby given in accordance with G.S. 150B-21.2 that the NC Board for Licensing of Geologists intends to adopt the rules cited as 21 NCAC 21 .0606-.0607, amend the rules cited as 21 NCAC 21 .0103-.0104, .0107, .0301-.0302, .0501-.0502, .0514-.0515, .0603-.0605, .0802-.0804, .0902-.0903, .1001- .1002 and repeal the rules cited as 21 NCAC 21 .0106, .0503- .0504. Notice of Rule-making Proceedings was published in the Register on February 15, 2002. Proposed Effective Date: April 1, 2003 Public Hearing: Date: July 9, 2002 Time: 10:00 a.m. Location: 3733 Benson Dr., Raleigh, NC Reason for Proposed Action: Some of the rules were outdated in that they did not conform to the Administrative Procedures Act; the office address has changed; rules are changed to be more specific, including authority citation; new rules clarify procedures for disciplinary hearings. Comment Procedures: Address comments to Robert Upton, PO Box 41225, Raleigh, NC 27629, call 919-850-9669. Comments will be accepted through July 17, 2002. Fiscal Impact State Local Substantive (>$5,000,000) None SECTION .0100 - STATUTORY AND ADMINISTRATIVE PROVISIONS 21 NCAC 21 .0103 ORGANIZATION OF THE BOARD (a) Meetings shall be open and public except that the Board may meet in closed sessions for the purposes specified in G.S. 143- 318.11. The Board is exempt from the requirement to meet in public when it meets to prepare, approve, administer or grade examinations, to deliberate the qualifications of an applicant for license or registration, or to deliberate on the disposition of a proceeding to discipline a licensed geologist. any disciplinary action for a licensed geologist or registered geological corporation or geological limited liability company. (b) The Board shall have power to compel the attendance of witnesses, to administer oaths, and to take testimony and proofs of all matters within its jurisdiction. (c) The chairman and ex-officio member shall be full voting members of the Board. Authority G.S. 89E-4; 89E-5; 143-318(6); 143-318.11. 21 NCAC 21 .0104 DUTIES OF OFFICERS (a) Chairman. The chairman shall, when present, preside at all meetings, appoint all committees, sign all certificates issued and perform all other duties pertaining to his office. (b) Vice-Chairman. The vice-chairman, in the absence of the chairman, shall perform all of the duties of the chairman. (c) Secretary Treasurer: (1) The secretary treasurer, with the assistance of an executive director or such other officers or employees as may be approved by the Board, shall conduct and care for all the correspondence of the Board, keep the minutes of all the meetings, keep all books and records, and shall sign all certificates issued. He shall have charge, care and custody of the official documents by order of the Board. He shall provide due notice of the time and place of all meetings of the Board to each member of the Board. (2) The secretary treasurer, with the assistance of an executive director or such other officers or employees as may be approved by the Board, shall receive all moneys from applicants for annual renewal or other fees and deposit them in an authorized depository of the Board. The secretary treasurer shall give bond to be conditioned on the faithful performance of the duties of his office and on the faithful accounting of all monies and other property as shall come into his hands. (3) The secretary-treasurer,secretary-treasurer shall mail a copy of Chapter 89E of the North Carolina General Statutes, as amended, and the rules of this Chapter, to each applicant for a license in and out of the state. with the assistance of an executive director or such other officers or employees as may be approved by the Board, shall provide to each applicant for a license or registration a current copy of G.S. 89E and the rules of this Chapter. Copies of the Geologists Licensing Act and the rules of this Chapter shall be provided by mail with the application packet or in electronic format on the Board's Internet website (www.ncblg.org) with the on-line application packet. Authority G.S. 89E-4; 89 E-5. 21 NCAC 21 .0106 FORMS Forms used by the Board, and available from the Board office upon request, include the following: (1) Application for Licensing as a Geologist, PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2735 (2) Application for License by Comity, (3) Application for Renewal of License, (4) Application for Reinstatement of License, (5) Application for Corporate Registration, and (6) Certificate of Registration. Authority G.S. 55B-2(6); 55B-10; 89E-8; 89E-10; 89E-11; 89E-12. 21 NCAC 21 .0107 FEES (a) Completed application forms must be accompanied by the prescribed fee. Application fees will not be refunded regardless of Board approval or disapproval of the application. Prescribed fees shall not be more than: (1) application forms for licensing as a geologist, including a copy of the Geologists Licensing Act and Rules: $ 5.00 (2)(1) Application for license $50.00 $ 55.00 (2) Application for registration $ 50.00 (3) Examination per part: cost plus $350.00 $ 30.00 (4) application for license by comity: $ 50.00 (5)(4) Biennial Annual renewal of license $70.00 $ 85.00 (5) Annual renewal of certificate of registration for corporation or limited liability company $ 25.00 (7)(6) Application for reinstatement of license $50.00 $150.00 (7) Application for reinstatement of registration $10.00 (8) licensed geologist stamp and seal: cost plus $5.00 (6)(8) Replacement of license or registration certificate $10.00 (9) application for corporate registration:$50.00 (9) Licensed geologist stamp or seal: cost plus $ 7.50 (10) annual renewal of certificate of registration for corporations $25.00 (11)(10) Registered geological corporation or limited liability company stamp andor seal: cost plus $7.50 (b) All licenses will expire biennially on July 1. Biennial Annual license renewal fees received after July 1 and before September 1 August 1 of the year due shall be subject to the assessment of a late payment penalty of twenty-five dollars ($25.00). All certificates of registration for corporations will expire annually on July 1. Annual renewal fees for certificates of registration for corporations received after August 1 and before December 31 shall be subject to a late payment penalty of twenty-five dollars ($25.00). accompanied by a late payment penalty of fifty dollars ($50.00). (c) Licenses that have not been renewed by September 1 August 1 may only be renewed by: (1) filing a reinstatement application and submitting a reinstatement fee. application, demonstrating that the applicant is otherwise qualified and entitled to license renewal, in accordance with Rule .0302 of this Chapter; (2) payment of any delinquent annual fees having accrued since the last timely renewal of the license or registration; and (3) payment of the reinstatement fee specified in Subparagraph (a)(6) of this Rule. (d) All registrations will expire on July 1. If a corporation or limited liability company fails to apply for renewal of its certificate of registration by August 1 of the year due, the registration may only be renewed by: (1) filing a reinstatement application, demonstrating that the firm is otherwise qualified and entitled to a renewal of its certificate of registration, in accordance with Rule .0302 of this Chapter; (2) payment of the required renewal fee; and (3) payment of the ten dollar ($10.00) fee specified in Subparagraph (a)(7) of this Rule. (d) (e) Licenses and registrations that have been suspended revoked under G.S. 89E-19 may be reinstated by filing a reinstatement application in accordance with Rule .0302 of this Chapter and paying the reinstatement fee.fee specified in Subparagraph (a)(6) or (a)(7) of this Rule, as applicable. (f) Extensions for certain members of armed forces. Individuals who are serving in the armed forces of the United States to whom an extension of time to file a tax return has been granted by G.S. 105-249.2 shall be granted an extension of time to pay their annual license fee. Such individuals shall provide to the Board documentation to support their request for extension. Authority G.S. 55B-2(6); 55B-10; 55B-11; 89E-5; 89E-8; 89E-10; 89E-12; 89E- 13; 89E-19; 93B-15; 105-249.2. SECTION .0300 - LICENSING OF GEOLOGISTS 21 NCAC 21 .0301 REQUIREMENTS FOR LICENSING (a) Education. In determining whether an applicant meets the minimum education requirements of the Geologists Licensing Act, the Board is authorized to determine which colleges and universities are properly accredited, and which geologic science courses qualify for meeting the minimum requirements. (b) References. Five letters of reference submitted to the Board which shall satisfy the Board as to the character, reputation, responsibility, integrity and competence of the applicant. These letters of reference must be submitted by licensed or qualified geologists or professional engineers. No member of the Board shall act as a reference for any applicant for licensing. At least two of the five letters of reference must be submitted by licensed or qualified geologists who are familiar with the applicant's work in the field of geology. (c) Written Examination. A written examination approved by the Board shall be required of all applicants. The passing grade on any written examination for licensing shall be established by the Board in advance of the examination. The applicant shall be notified, not less than 30 days before the examination, as to the time and place of the examination. A person who has failed an examination is allowed to take the examination again at the next regularly scheduled examination period. A person having a record of three failures will not be allowed to take that examination again until a written appeal is made to the Board and qualifications for examination are reviewed and reaffirmed PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2736 by the Board. The applicant must demonstrate to the Board that actions have been taken to improve the applicant's possibility of passing the exam. (d) Experience. In determining whether an applicant meets the minimum experience requirements of the Geologists Licensing Act, the Board will consider the total work experience record of the applicant. The Board will look for the applicant's ability to conduct geological work in a satisfactory manner with little or no supervision. The Board is authorized to determine which colleges and universities are properly accredited and which geological science courses qualify for experience in the field of geology. (e) Certificate by comity: (1) The Board, within its discretion, may grant a license, by comity, to a person holding a license or certificate in good standing of registration in geology from any legally constituted Board of examiners in another state whose licensing, registration and requirements are deemed to be equal or equivalent to those of this state. (2) To assure that the requirements of the other state are at least equivalent to those of this state, the applicant shall be required to show evidence of education and experience equal to those required of geologists licensed in this state who obtained a license by examination as set out in this Rule and Rule .0302 of this Section. (e) Certificate by comity. The Board shall grant a license without further examination to a person holding a license to engage in the practice of geology, which license has been issued by another jurisdiction, when the applicant meets the following conditions: (1) the applicant has filed an application for license and paid the fee required by Rule .0107 of this Chapter; (2) the applicant has provided evidence of education and experience equal to the requirements of Paragraphs (a), (b), and (d) of this Rule as indicated in Rule .0302 of this Section; (3) the applicant is in good standing with the agency regulating the practice of geology in any jurisdiction in which the applicant holds a license to practice geology; and (4) the applicant has successfully passed a written examination deemed to be equal or equivalent to the examination administered by the Board pursuant to G.S. 89E-9 and Paragraph (c) of this Rule. Authority G.S. 89E-7; 89E-8; 89E-9; 89E-11. 21 NCAC 21 .0302 APPLICATION PROCEDURE (a) All applicants for licensing, except those applying under comity, are required to furnish with their applications the following: (1) A legible official copy of their college transcript(s), and verification of graduation sent directly from the institution to the Board; (2) A record Verification of experience in the practice of geology including any of the applicant’s written reports, maps, published articles or other materials the Board determines are appropriate to document the applicant’s experience as a geologist; on forms provided by the Board; (3) Five references as defined in Rule .0301(b) of this Section; (4) A notarized copy of a completed application form as prescribed by the Board; and (5) The application fee as prescribed in Rule .0107 of this Chapter. (b) Applicants for licensing under comity shall submit an application form as prescribed by the Board along with the fee as provided in Rule .0107 of this Chapter. The Board may require the submittal of additional information. (b)(c) Applicants for reinstatement of an expired license or registration shall submit a reinstatement application and shall submit the prescribed fee in as provided by Rule .0107 of this Chapter. (c)(d) Applicants for reinstatement of a revoked or suspended license or registration shall submit such information as is required by the Board on a case-by-case basis, to determine eligibility for reinstatement pursuant to G.S. 89E-21, and shall submit the fee as provided by Rule .0107 of this Chapter. (e) Applicants for renewal of license who practice geology less than 15 days per year must submit a notarized affidavit that they have practiced geology in North Carolina less than 15 days during the past year and that they will practice less than 15 days in each of the coming two years. If a licensed geologist in fact practices 15 or more days in either year in North Carolina, he shall submit to the Board the balance of the fee prescribed for regular license renewal in Rule .0107 of this Chapter. (d) Additional information required by the Board to approve or deny approval on any application shall be filed with the Board within 60 days of the applicant's receipt of notice to provide such information. This may include any of the applicant's written reports, maps, published articles or other materials the Board determines are appropriate to document the applicant's experience as a geologist. Failure to submit the supplemental information requested within the time allowed by this Rule may result in the Board’s rejection of the application without further notice prior to such rejection. Authority G.S. 89E-7; 89E-8; 89E-9; 89E-11; 89E-12; 89E-21. SECTION .0500 - DISCIPLINARY ACTION AND PROCEDURE 21 NCAC 21 .0501 FILING OF CHARGES AND DISCIPLINARY ACTIONS (a) Any person may file with the Board a charge of negligence, incompetence, dishonest practice, or other misconduct or of any violation of G.S. 89E or of these Rules. (b) Upon receipt of such charge or upon its own initiative, the Board may, consistent with procedures required by G.S. 150B, suspend or revoke the license or certificate of registration, may impose a civil penalty not in excess of five thousand dollars ($5,000), may issue a reprimand or caution as provided in Rules Rule .0502 and .0504 of this Section or may upon a statement of PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2737 the reasons therefore dismiss the charge as unfounded or trivial, which statement shall be mailed to the geologist and the person who filed the charge.charge by certified mail. If the Board determines that a licensee is professionally incompetent, the Board may require the licensee to demonstrate fitness to practice as allowed in G.S. 89E-19(b). In addition to issuing a reprimand or suspending or revoking a license or certificate of registration, the Board may impose a civil penalty for any violation of G.S. 89E or these Rules, such penalty not to exceed five thousand dollars ($5,000.00). (c) The Board may publish in the Board's newsletter or other public media any disciplinary action taken against a licensee or registrant or any legal action taken against any person engaged in the practice of geology in violation of G.S. 89E or these Rules. Authority G.S. 89E-5; 89E-17; 89E-19; 89E-20. 21 NCAC 21 .0502 REPRIMAND (a) If probable cause evidence of a violation is found, but it is determined that a disciplinary hearing is not warranted, the Board may issue a reprimand to the accused party. A record of such reprimand shall be mailed to the accused party and within 15 days after receipt of the reprimand the accused party may refuse the reprimand and request that a Hearing be held pursuant to G.S. 150B. Such refusal and request shall be addressed to the Board and filed with the secretary- treasurer.Executive Director of the Board. (b) Upon filing of a notice refusing the reprimand and requesting a hearing, the Board shall determine whether to grant the request and whether, having granted the request, the Board will conduct the evidentiary hearing or whether it will refer the matter to the Office of Administrative Hearings for designation of an administrative law judge to conduct the hearing. If the Board elects to conduct the hearing,The the legal counsel for the Board shall thereafter prepare and file a Notice of Hearing. If the Board refers the matter to the Office of Administrative Hearings, that agency shall prepare and serve all subsequent notices related to the evidentiary hearing, including the Notice of Hearing. (c) If the letter of reprimand is accepted, a copy of the reprimand shall be maintained in the office of the Board. If a party receiving a reprimand wishes merely to file a letter rebutting his reprimand, he may in writing waive his right to hearing and submit a letter of rebuttal to be placed in his file. Authority G.S. 89E-5; 89E-19; 89E-20. 21 NCAC 21 .0503 APPLICABLE HEARING RULES When the Board elects to have the Office of Administrative Hearings hear a contested case, the Board's rules pertaining to contested case hearings, instead of the rules of the Office of Administrative Hearings, shall apply. Authority G.S. 89E-5; 89E-20; 150B-38. 21 NCAC 21 .0504 CAUTION If no probable cause is found, but it is determined by the Board that the conduct of the accused party is not in accord with accepted professional practice or may be the subject of discipline if continued or repeated, the Board may issue a letter of caution to the accused party stating that the conduct, while not the basis for a disciplinary hearing, is not professionally acceptable or may be the basis for a disciplinary hearing if repeated. A record of such letter of caution shall be maintained in the office of the Board. Authority G.S. 89E-5. 21 NCAC 21 .0514 INVESTIGATION (a) Valid complaints received by the Board shall be forwarded to an investigator for further inquiry as to whether the acts or omissions alleged violate the provisions of G.S. 89E, the Board's code of professional conduct, or any other rules of this Chapter. The Board's executive director shall notify the licensee or corporate registrant of the complaint and advise the licensee or corporate registrant that: (1) He has a duty to cooperate fully with the investigation by the Board; and (2) He may submit a written response to the complaint. (b) The investigator shall collect all information needed to determine whether a violation has occurred and the nature and severity of the violation. Information gathered during the course of an investigation shall be treated by the Board as confidential information in accordance with G.S. 89E-18(c) until the Board takes makes a final agency decision taking disciplinary action against the licensee or corporate registrant.registrant; however, the Board cannot ensure the confidentiality of any information introduced into evidence in a hearing conducted by the Office of Administrative Hearings upon referral from the Board, because the information becomes part of the public record of that agency at the time of introduction. (c) After collecting information relevant to the complaint, the investigator will submit a report consisting of the complaint, information gathered in the course of investigation, and the investigator's conclusion to a peer review committee for evaluation. The peer review committee will consist of at least two professional geologists, each of whom hold a currently valid license issued by the Board. (d) The investigation report (including, but not limited to, the supporting information relevant to the complaint) and the written evaluation of the peer review committee shall be submitted to the Executive Director of the Board to be combined with the licensee's written response to the complaint, if any, for further proceedings in accordance with Rule .0515 of this Section. Authority G.S. 89E-5; 89E-17; 89E-20. 21 NCAC 21 .0515 DISCIPLINARY PROCEDURE (a) Upon receipt of an investigation report and evaluation from the Board's investigator and peer review committee in accordance with Rule .0514 of this Section, the Board's Executive Director shall forward to the Chairman of the Board (or to a member of the Board designated by the Chairman) the investigation report, evaluation, and the supporting documentation along with the licensee's or registrant's written response to the complaint, if any. (b) The Chairman (or a member of the Board designated by the Chairman) is delegated authority to propose the disciplinary action for the violation(s) revealed by the investigation consistent with the provisions of G.S. 89E-19. The Chairman PROPOSED RULES 16:24 NORTH CAROLINA REGISTER June 17, 2002 2738 (or a member of the Board designated by the Chairman) is also delegated authority to issue a summary suspension pursuant to G.S. 150B-3(c). (c) After review of the investigation report, evaluation, and supporting documentation, the Chairman shall notify the licensee or corporate registrant of the proposed disciplinary action by certified mail sent to the last known address of the licensee or corporate registrant as indicated by the Board’s official roster. This notification shall contain a summary of the alleged facts or conduct upon which the proposed disciplinary action is based, the effective date of the proposed disciplinary action, and an explanation of the licensee's or registrant's hearing rights pursuant to G.S. 150B, Article 3A. Notification for summary suspensions shall meet the requirements of G.S. 150B- 3(c). (d) The licensee or corporate registrant has 15 days from receipt of notification of proposed disciplinary action to file with the Board a written request for hearing. Requests for hearing must be received at the Board's office by 5:00 p.m. on the date due. If the licensee or corporate registrant does not file a written request for hearing with the Board, the Board shall receive the Chairman's recommendation on disciplinary action at its next meeting. If a majority of the Board members agree with the Chairman's recommendation the proposed disciplinary action becomes a final agency decision. If a majority of the Board members do not agree with the Chairman's recommendation, the Board shall make a review of the facts (limited to the investigator's report without supporting documentation) solely for the purpose of determining whether probable cause exists to support the allegations of violation of law and for the purpose of proposing an appropriate disciplinary action. The Chairman shall not participate in the deliberations or the voting with regard to either his recommendation or the Board’s decision regarding a substitute disciplinary action. A new notice of proposed disciplinary action will be |
OCLC number | 13686205 |