This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 24 ● ISSUE 21 ● Pages 1831 - 1950
May 3, 2010
I. EXECUTIVE ORDERS
Executive Order No. 54....................................................................................................1831 – 1832
Executive Order No. 55....................................................................................................1833 – 1835
Executive Order No. 56....................................................................................................1836 – 1837
II. PROPOSED RULES
Occupational Licensing Boards and Commissions
General Contractors, Licensing Board for....................................................................1838 – 1839
Respiratory Care Board................................................................................................1839 – 1842
III. APPROVED RULES .....................................................................................................1843 – 1894
Community Colleges, Department of
Community Colleges, Board of
Crime Control and Public Safety, Department of
State Highway Patrol
Environment and Natural Resources, Department of
NC Aquariums
State Parks and Recreation
Public Health, Commission for
Health and Human Services, Department of
Medical Assistance, Division of
Insurance, Department of
Home Inspectors Licensure Board
Insurance, Commissioner of
Justice, Department of
Criminal Justice Education and Training Standards Commission
Occupational Licensing Boards and Commissions
Appraisal Board
Barber Examiners, Board of
Dental Examiners, Board of
Dietetics/Nutrition, Board of
General Contractors, Licensing Board for
Massage and Bodywork Therapy, Board of
Medical Board
Pharmacy, Board of
State Personnel, Office of
State Personnel Commission
IV. RULES REVIEW COMMISSION...............................................................................1895 – 1900
V. CONTESTED CASE DECISIONS
Index to ALJ Decisions....................................................................................................1901 – 1909
Text of ALJ Decisions
09 ABC 4931 ...............................................................................................................1910 – 1921
09 DHR 3473 ...............................................................................................................1922 – 1939
09 DHR 4743 ...............................................................................................................1940 – 1950
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult
with the agencies below. The bolded headings are typical issues which the given agency can address,
but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Molly Masich, Codifier of Rules molly.masich@oah.nc.gov (919) 431-3071
Dana Vojtko, Publications Coordinator dana.vojtko@oah.nc.gov (919) 431-3075
Julie Edwards, Editorial Assistant julie.edwards@oah.nc.gov (919) 431-3073
Tammara Chalmers, Editorial Assistant tammara.chalmers@oah.nc.gov (919) 431-3083
Rule Review and Legal Issues
Rules Review Commission
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Joe DeLuca Jr., Commission Counsel joe.deluca@oah.nc.gov (919) 431-3081
Bobby Bryan, Commission Counsel bobby.bryan@oah.nc.gov (919) 431-3079
Fiscal Notes & Economic Analysis
Office of State Budget and Management
116 West Jones Street (919) 807-4700
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
Contact: Anca Grozav, Economic Analyst osbmruleanalysis@osbm.nc.gov (919)807-4740
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn jim.blackburn@ncacc.org
Rebecca Troutman rebecca.troutman@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Erin L. Wynia ewynia@nclm.org
Governor’s Review
Edwin M. Speas, Jr. edwin.speas@nc.gov
General Counsel to the Governor (919) 733-5811
116 West Jones Street
20301 Mail Service Center
Raleigh, North Carolina 27699-0301
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney Karen.cochrane-brown@ncleg.net
Jeff Hudson, Staff Attorney Jeffrey.hudson@ncleg.net
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2010 – December 2010
FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY
RULES
Volume &
issue
number
Issue date Last day
for filing
Earliest date for
public hearing
End of required
comment
period
Deadline to submit
to RRC
for review at
next meeting
Earliest Eff.
Date of
Permanent Rule
Delayed Eff. Date of
Permanent Rule
31st legislative day of the
session beginning:
270th day from publication
in the Register
24:13 01/04/10 12/09/09 01/19/10 03/05/10 03/22/10 05/01/10 05/12/10 10/01/10
24:14 01/15/10 12/22/09 01/30/10 03/16/10 03/22/10 05/01/10 05/12/10 10/12/10
24:15 02/01/10 01/08/10 02/16/10 04/05/10 04/20/10 06/01/10 01/26/11 10/29/10
24:16 02/15/10 01/25/10 03/02/10 04/16/10 04/20/10 06/01/10 01/26/11 11/12/10
24:17 03/01/10 02/08/10 03/16/10 04/30/10 05/20/10 07/01/10 01/26/11 11/26109
24:18 03/15/10 02/22/10 03/30/10 05/14/10 05/20/10 07/01/10 01/26/11 12/10/10
24:19 04/01/10 03/11/10 04/16/10 06/01/10 06/21/10 08/01/10 01/26/11 12/27/10
24:20 04/15/10 03/24/10 04/30/10 06/14/10 06/21/10 08/01/10 01/26/11 01/10/11
24:21 05/03/10 04/12/10 05/18/10 07/02/10 07/20/10 09/01/10 01/26/11 01/28/11
24:22 05/17/10 04/26/10 06/01/10 07/16/10 07/20/10 09/01/10 01/26/11 02/11/11
24:23 06/01/10 05/10/10 06/16/10 08/02/10 08/20/10 10/01/10 01/26/11 02/26/11
24:24 06/15/10 05/24/10 06/30/10 08/16/10 08/20/10 10/01/10 01/26/11 03/12/11
25:01 07/01/10 06/10/10 07/16/10 08/30/10 09/20/10 11/01/10 01/26/11 03/28/11
25:02 07/15/10 06/23/10 07/30/10 09/13/10 09/20/10 11/01/10 01/26/11 04/11/11
25:03 08/02/10 07/12/10 08/17/10 10/01/10 10/20/10 12/01/10 01/26/11 04/29/11
25:04 08/16/10 07/26/10 08/31/10 10/15/10 10/20/10 12/01/10 01/26/11 05/13/11
25:05 09/01/10 08/11/10 09/16/10 11/01/10 11/22/10 01/01/11 01/26/11 05/29/11
25:06 09/15/10 08/24/10 09/30/10 11/15/10 11/22/10 01/01/11 01/26/11 06/12/11
25:07 10/01/10 09/10/10 10/16/10 11/30/10 12/20/10 02/01/11 05/2012 06/28/11
25:08 10/15/10 09/24/10 10/30/10 12/14/10 12/20/10 02/01/11 05/2012 07/12/11
25:09 11/01/10 10/11/10 11/16/10 01/03/11 01/20/11 03/01/11 05/2012 07/29/11
25:10 11/15/10 10/22/10 11/30/10 01/14/11 01/20/11 03/01/11 05/2012 08/12/11
25:11 12/01/10 11/05/10 12/16/10 01/31/11 02/21/11 04/01/11 05/2012 08/28/11
25:12 12/15/10 11/22/10 12/30/10 02/14/11 02/21/11 04/01/11 05/2012 09/11/11
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
EXECUTIVE ORDERS
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1831
EXECUTIVE ORDERS
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1832
EXECUTIVE ORDERS
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1833
EXECUTIVE ORDERS
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1834
EXECUTIVE ORDERS
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1835
EXECUTIVE ORDERS
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1836
EXECUTIVE ORDERS
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1837
PROPOSED RULES
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1838
Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency
must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a
later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published
notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60
days.
Statutory reference: G.S. 150B-21.2.
TITLE 21 - OCCUPATIONAL LICENSING BOARDS AND
COMMISSIONS
CHAPTER 12 - LICENSING BOARD FOR GENERAL
CONTRACTORS
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Licensing Board for General Contractors intends to
amend the rule cited as 21 NCAC 12 .0503 and adopt the rule
cited as 21 NCAC 12 .0507.
Proposed Effective Date: September 1, 2010
Public Hearing:
Date: July 14, 2010
Time: 10:00 a.m.
Location: 3739 National Drive, Suite 200, Cumberland
Building, Glenwood Place, Raleigh, NC 27612
Reason for Proposed Action:
21 NCAC 12 .0503 – This Rule is proposed for amendment to
comply with G.S. 93B-15.
21 NCAC 12 .0507 – This Rule is proposed for adoption to
comply with G.S. 93B-2.
Procedure by which a person can object to the agency on a
proposed rule: Persons may submit objections regarding the
proposed rule changes to Mark Selph, NC Licensing Board for
General Contractors, P.O. Box 17187, Raleigh, NC 27619.
Comments may be submitted to: Mark D. Selph, NC
Licensing Board for General Contractors, P.O. Box 17187,
Raleigh, NC 27619
Comment period ends: July 14, 2010
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal Impact:
State
Local
Substantial Economic Impact (>$3,000,000)
None
SECTION .0500 - LICENSE
21 NCAC 12 .0503 RENEWAL OF LICENSE
(a) Form. A licensee's application for renewal requires the
licensee to set forth whether there were any changes made in the
status of the licensee's business during the preceding year and
also requires the licensee to give a financial statement for the
business in question. The financial statement need not be
prepared by a certified public accountant or by a qualified
independent accountant but may be completed by the licensee on
the form itself.
(b) The Board shall require a licensee to submit an audited
financial statement if there is any evidence indicating that the
licensee may be unable to meet its financial obligations. A
licensee shall be required to provide evidence of continued
financial responsibility satisfactory to the Board if there are
indications that the licensee is insolvent, financially unstable, or
unable to meet its financial responsibilities. Except as provided
herein, evidence of financial responsibility shall be subject to
approval by the Board in accordance with the requirements of
Rule .0204 of this Chapter. A licensee shall provide the Board
with a copy of any bankruptcy petition filed by the licensee
within 30 days of its filing. A licensee in bankruptcy shall
provide to the Board an audited financial statement with a
classified balance sheet as part of any application for renewal. A
corporate licensee shall notify the Board of its dissolution or
suspension of its corporate charter within 30 days of such
dissolution or suspension.
(c) Display. The certificate of renewal of license granted by the
Board, containing the signatures of the Chairman and the
Secretary-Treasurer, must be displayed at all times by the
licensee at his place of business.
(d) Upon receipt of a written request by or on behalf of a
licensee who is currently in good standing with the Board, is
serving in the armed forces of the United States, and to whom
G.S. 105-249.2 grants an extension of time to file a tax return,
the Board shall grant that same extension of time for complying
with renewal application deadlines, for paying renewal fees, and
for meeting any other requirement or conditions related to the
maintenance or renewal of the license issued by the Board. A
copy of the military orders or the extension approval by the
PROPOSED RULES
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1839
Internal Revenue Service or by the North Carolina Department
of Revenue shall be furnished to the Board.
Authority G.S. 87-1; 87-10; 93B-15.
21 NCAC 12 .0507 FUND SUSPENSION
In the event the Board's authority to expend funds is suspended
pursuant to G.S. 93B-2, the Board shall continue to issue and
renew licenses and all fees tendered shall be placed in an escrow
account maintained by the Board for this purpose. Once the
Board's authority is restored, the funds shall be moved from the
escrow account into the general operating account.
Authority G.S. 87-4; 93B-2.
* * * * * * * * * * * * * * * * * * * *
CHAPTER 61 – NORTH CAROLINA RESPIRATORY
CARE BOARD
Notice is hereby given in accordance with G.S. 150B-21.2 that
the North Carolina Respiratory Care Board intends to amend
rules cited as 21 NCAC 61 .0103, .0204, .0302, .0308 and .0401.
Proposed Effective Date: September 1, 2010
Public Hearing:
Date: May 18, 2010
Time: 1:00 p.m.
Location: North Carolina Respiratory Care Board, 1100
Navaho Drive, Suite 242, Raleigh, NC 27609
Reason for Proposed Action:
21 NCAC 61 .0103 – To define the practice of respiratory care
as it relates to the management of respiratory care services.
21 NCAC 61 .0204 – To increase the renewal fee from sixty-five
dollars ($65.00) per year to seventy-five dollars ($75.00) per
year to meet budgetary requirements due to increase in expenses
for the Board.
21 NCAC 61 .0302 – This amendment is being submitted
pursuant to Session Law 2009-458.
21 NCAC 61 .0308 – To inform licensees that failure to make a
report within 15 days does not bar the Board from investigating
or taking action on the matter when it is reported.
21 NCAC 61 .0401 – To add another credentialing exam that
RCP's may take for continuing education credit and to change
the way continuing education approval fees are calculated.
Procedure by which a person can object to the agency on a
proposed rule: A person may object to the Board on a
proposed rule by sending a written objection addressed to Floyd
Boyer, RCP Executive Director, North Carolina Respiratory
Care Board, 1100 Navaho Drive, Suite 242, Raleigh, NC 27609;
call (919) 878-5595; fax (919) 878-5565; or email
fboyer@ncrcb.org.
Comments may be submitted to: Floyd Boyer, RCP Executive
Director, 1100 Navaho Drive, Suite 242, Raleigh, NC 27609;
phone (919) 878-5595; fax (919) 878-5565; email
fboyer@ncrcb.org
Comment period ends: July 2, 2010
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal Impact:
State
Local
Substantial Economic Impact (>$3,000,000)
None
SECTION .0100 - ORGANIZATION AND GENERAL
PROVISIONS
21 NCAC 61 .0103 DEFINITIONS
The definitions of terms contained in G.S. 90-648 apply to this
Chapter. In addition, the following definitions apply with regard
to these Rules:
(1) Assessment means a clinical evaluation of the
individual patient and the suitability and
efficacy of a respiratory care procedure or
treatment, including an assessment of the
suitability and efficacy of equipment for the
individual patient if equipment is to be used in
the procedure or treatment. Assessment can be
performed by physician, Respiratory Care
Practitioner (RCP) or other licensed health
care provider within their scope of practice.
(2) Respiratory care includes any acts, tests,
procedures, treatments or modalities that are
routinely taught in educational programs or in
continuing education programs for respiratory
care practitioners and are routinely performed
in respiratory care practice settings.
(3) The practice of respiratory care includes the
application of a range of evaluation and
treatment procedures related to the observing
and monitoring of signs and symptoms,
general behavior, and general physical
response to respiratory care treatment and
diagnostic testing, including the determination
of whether such signs, symptoms, reactions,
PROPOSED RULES
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1840
behavior, or general response exhibit abnormal
characteristics. In addition to the general
activities identified in G.S. 90-648(10), each
of the following specific activities constitutes
the practice of Respiratory care:
(a) the performance of pulmonary
diagnostic and sleep related testing,
(b) the administration of pharmacologic
agents related to respiratory care
procedures,
(c) establishment and maintenance of
arterial lines for hemodynamic
monitoring,
(d) therapeutic evaluation and assessment
relating to mechanical or
physiological ventilatory support,
including positive pressure support
apparatus,
(e) airway clearance techniques, postural
drainage and chest percussion,
(f) assistance with bronchoscopy,
(g) asthma and respiratory disease
management,
(h) cardiopulmonary rehabilitation,
(i) alleviating respiratory impairment
and functional limitation by
designing, implementing, and
modifying therapeutic care plans,
(j) patient instruction in respiratory care,
functional training in self-care and
home respiratory care management,
and the promotion and maintenance
of respiratory care fitness, health, and
quality of life,
(k) those advanced practice procedures
that are recognized by the Board in
Declaratory Rulings as being within
the scope of respiratory care, when
performed by an RCP with
appropriate training. training,
(l) managing the delivery of respiratory
care services through the on-going
supervision, teaching and evaluation
of respiratory care.
Authority G.S. 90-652.
SECTION .0200 - APPLICATION FOR LICENSE
21 NCAC 61 .0204 FEES
(a) Fees are as follows:
(1) For an initial application, a fee of fifty dollars
($50.00);
(2) For issuance of an active license, a fee of one
hundred twenty-five dollars ($125.00);
(3) For the renewal of an active license, a fee of
sixty five dollars ($65.00); seventy-five dollars
($75.00);
(4) For the late renewal of any license, an
additional late fee of seventy- five dollars
($75.00);
(5) For a license with a provisional or temporary
endorsement, a fee of fifty dollars ($50.00);
(6) For official verification of license status, a fee
of twenty dollars ($20.00);
(b) Fees shall be nonrefundable and shall be paid in the form of
a cashier's check, certified check or money order made payable
to the North Carolina Respiratory Care Board. However,
personal checks shall be accepted for payment of renewal fees.
Authority G.S. 90-652(2); (9); 90-660.
SECTION .0300 - LICENSING
21 NCAC 61 .0302 LICENSE RENEWAL
(a) Any licensee desiring the renewal of a license shall apply for
renewal and shall submit the fee established in this Chapter.
(b) Any person whose license is lapsed or expired and who
engages in the practice of respiratory care as defined in G.S. 90-
648(10) will be subject to the penalties prescribed in G.S. 90-
659.
(c) Each applicant for renewal shall provide proof of completion
of continuing education requirements as established in this
Chapter.
(d) Each applicant for renewal shall provide a copy of current
certification in Basic Life Support (BLS) which includes Adult,
Child and Infant Cardiopulmonary Resuscitation (CPR), the
Heimlich Maneuver, and Automatic External Defibrillator
(AED) use by the American Heart Association, the American
Red Cross or the American Safety and Health Institute. The
board shall accept a copy of the applicant's BLS Instructor
certificate or Advanced Cardiac Life Support (ACLS) certificate
in lieu of the BLS certificate.
(e) Licenses lapsed in excess of 24 months shall not be
renewable. Persons whose licenses have been lapsed in excess
of 24 months and who desire to be licensed shall apply for a new
license and shall meet all the requirements then existing.
(f) Members of the armed forces whose licenses are in good
standing and to whom G.S 105-249.2 grants an extension of time
to file a tax return are granted that same extension of time to pay
the license renewal fee and to complete the continuing education
requirements prescribed in 21 NCAC 61 .0401. A copy of
military orders or the extension approval by the Internal
Revenue Service must be furnished to the Board. If approved,
continuing education credits acquired during this extended time
period shall not be utilized for future renewal purposes.
Authority G.S. 90-652(1), (2), (4) and (13).
21 NCAC 61 .0308 CONTINUING DUTY TO
REPORT
(a) All licensed respiratory care practitioners and provisional
licensees are under a continuing duty to report to the Board any
and all:
(1) convictions of, or pleas of guilty or nolo
contendere to:
(A) any felony;
PROPOSED RULES
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1841
(B) any misdemeanor or other offense,
such as fraud, when an element of the
crime involves conduct by the
licensee which indicates a lack of
honesty, integrity, or competence
directly relating to the licensee's
delivery of respiratory care, including
crimes whose elements include
violations of Rule .0307(2), (5), (7),
(10), (19), (21), (22), (23), (24) and
(25) of this Chapter; and
(2) the existence of any civil suit which arises out
of or is related to the licensee's practice of
respiratory care.
(b) All supervising respiratory care practitioners are under a
continuing duty to report to the Board any and all:
(1) terminations of any respiratory care
practitioner for violations of the practice act or
Board rules; and
(2) violations of the practice act or Board rules by
any respiratory care practitioner under his or
her supervision.
(c) The reports required by this Rule must be made within 15
days of the occurrence. occurrence, but a failure to make a report
within 15 days does not bar the Board from investigating or
taking action on the matter when it is reported.
Authority G.S. 90-652(2).
SECTION .0400 - CONTINUING EDUCATION
REQUIREMENTS FOR LICENSE HOLDERS
21 NCAC 61 .0401 CONTINUING EDUCATION
REQUIREMENTS
(a) Upon application for license renewal, a licensee shall attest
to having completed one or more of the following learning
activity options during the preceding renewal cycle and be
prepared to submit evidence of completion if requested by the
Board:
(1) Completion of a minimum of 12 hours of
Category I Continuing Education (CE)
activities directly related to the licensee's
practice of respiratory care and currently
approved by the Board, the American
Association for Respiratory Care (AARC) or
the Accreditation Council for Continuing
Medical Education (ACCME). "Category I"
Continuing Education is defined as
participation in an educational activity directly
related to respiratory care, which includes any
one of the following:
(A) Lecture – a discourse given for
instruction before an audience or
through teleconference.
(B) Panel – a presentation of a number of
views by several professionals on a
given subject with none of the views
considered a final solution.
(C) Workshop – a series of meetings for
intensive, hands-on study, or
discussion in a specific area of
interest.
(D) Seminar – a directed advanced study
or discussion in a specific field of
interest.
(E) Symposium – a conference of more
than a single session organized for the
purpose of discussing a specific
subject from various viewpoints and
by various presenters.
(F) Distance Education – includes such
enduring materials as text, Internet or
CD, provided the proponent has
included an independently scored test
as part of the learning package.
(2) Retake the Certified Respiratory Therapist
Examination (CRT), administered by the
National Board for Respiratory Care (NBRC),
and achieve a passing score as determined by
the NBRC or take any of the following
examinations and achieve a passing score as
determined by the sponsor of the examination:
the Registry Examination for Advanced
Respiratory Therapists (RRT), administered by
the NBRC; the Neonatal/Pediatric Respiratory
Care Specialty Examination (NPS),
administered by the NBRC; the Certification
Examination for Entry Level Pulmonary
Function Technologists (CPFT), administered
by the NBRC; the Registry Examination for
Advanced Pulmonary Function Technologist
(RPFT), administered by the NBRC; the Sleep
Disorders Specialty (SDS) exam, administered
by the NBRC; the Registry Examination for
Polysomnographic Technologist (RPSGT),
administered by the Board of Registered
Polysomnographic Technologists (BRPT); or
the Asthma Educators Certification
Examination (AE-C), administered by the
National Asthma Educator Certification Board
(NAECB).
(3) Completion of a Respiratory Care refresher
course offered through a Respiratory Care
Education program accredited by the
Commission for the Accreditation of Allied
Health Educational Programs.
(4) Completion of a minimum of three semester
hours of post-licensure respiratory care
academic education leading to a baccalaureate
or masters degree in Respiratory Care.
(5) Presentation of a Respiratory Care Research
study at a continuing education conference.
(6) Authoring a published Respiratory Care book
or Respiratory Care article published in a
medical peer review journal.
(b) The completion of certification or recertification in any of
the following: Advanced Cardiac Life Support (ACLS) by the
PROPOSED RULES
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1842
American Heart Association, Pediatric Advanced Life Support
(PALS) by the American Heart Association, and Neonatal
Resuscitation Program (NRP) by the American Academy of
Pediatrics, shall count for a total of five hours of continuing
education for each renewal period; but no more than five hours
of total credit will be recognized for each renewal period for the
completion of any such certification or recertification.
(c) A licensee shall retain supporting documentation to provide
proof of completion of the option chosen in Paragraph (a) of this
Rule for a period of no less than three years.
(d) A licensee shall maintain a file at his or her practice facility
that contains a copy of the RCP license, a copy of a current
Basic Cardiac Life Support (BCLS) certification, a copy of
advanced life support certifications and a copy of all credentials
issued by the National Board for Respiratory Care.
(e) A licensee is subject to random audit for proof of
compliance with the Board's requirements for continuing
education.
(f) The Board shall inform licensees of their selection for audit
upon notice of license renewal or request for reinstatement.
Evidence of completion of the requirements of Paragraph (a) of
this Rule shall be submitted to the Board no later than 30 days of
receipt of the audit notice.
(g) Failure of a licensee to meet the requirements of this Rule
shall result in disciplinary action pursuant to G.S. 90-666.
(h) The Board shall charge the following fees for providers of
continuing education that apply for approval of continuing
education programs:
(1) Twenty dollars ($20.00) per approved hour of
CE with a maximum of one hundred fifty
dollars ($150.00) per application. Programs
approved for one to two hours of CE: Non
Profit Organizations and Government
Agencies, ten dollars ($10.00); For Profit
Organizations, twenty dollars ($20.00).
(2) Programs approved for three to five hours of
CE: Non Profit Organizations and
Government Agencies, twenty dollars
($20.00); For Profit Organizations, forty
dollars ($40.00).
(3) Programs approved for six to ten hours of CE:
Non Profit Organizations and Government
Agencies, forty dollars ($40.00); For Profit
Organizations, eighty dollars ($80.00).
(4) Programs approved for 11 or more hours of
CE: Non Profit Organizations and
Government Agencies, eighty dollars ($80.00);
For Profit Organizations, one hundred fifty
dollars ($150.00).
(i) The Board shall grant requests for extensions of the
continuing education requirements due to personal
circumstances as follows. The Board shall require
documentation of the circumstances surrounding the licensee's
request for extension.
(1) Having served in the regular armed services of
the United States at least six months of the 12
months immediately preceding the license
renewal date; or
(2) Having suffered a serious or disabling illness
or physical disability that prevented
completion of the required number of
continuing education hours during the 12
months immediately preceding the licensee
renewal date.
Authority G.S. 90-652(2)(13); 90-658; 90-660(b)(9).
PROPOSED RULES
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1843
This Section includes a listing of rules approved by the Rules Review Commission followed by the full text of those rules. The
rules that have been approved by the RRC in a form different from that originally noticed in the Register or when no notice was
required to be published in the Register are identified by an * in the listing of approved rules. Statutory Reference: G.S. 150B-
21.17.
Rules approved by the Rules Review Commission at its meeting on March 18, 2010.
REGISTER CITATION TO THE
NOTICE OF TEXT
HHS - MEDICAL ASSISTANCE, DIVISION OF
Membership 10A NCAC 22M .0102* 24:10 NCR
HOME INSPECTOR LICENSURE BOARD
Equivalent Experience 11 NCAC 08 .1004* 24:09 NCR
INSURANCE, DEPARTMENT OF
Definitions 11 NCAC 12 .1901* 24:09 NCR
Scope 11 NCAC 22 .0101* 24:12 NCR
Definitions 11 NCAC 22 .0102* 24:12 NCR
General Eligibility 11 NCAC 22 .0103* 24:12 NCR
Filing Requirements 11 NCAC 22 .0104 24:12 NCR
Financial Requirements 11 NCAC 22 .0105 24:12 NCR
Administrative, Provider, and Management Contracts 11 NCAC 22 .0106 24:12 NCR
Trust Submittal and Plan of Operation 11 NCAC 22 .0107* 24:12 NCR
Claims Payments 11 NCAC 22 .0108* 24:12 NCR
Dissolution 11 NCAC 22 .0109* 24:12 NCR
Minimum Reserve Standards 11 NCAC 22 .0110* 24:12 NCR
Claim Reserves 11 NCAC 22 .0111* 24:12 NCR
Premium Reserves 11 NCAC 22 .0112* 24:12 NCR
Maximum Net Retention Standard 11 NCAC 22 .0113* 24:12 NCR
Qualified Actuary; Maximum Net Retention Filing 11 NCAC 22 .0114* 24:12 NCR
Certification of Reserves Filing 11 NCAC 22 .0115* 24:12 NCR
Definitions and Certification of Rates Filing 11 NCAC 22 .0116* 24:12 NCR
CRIMINAL JUSTICE EDUCATION AND TRAINING STANDARDS COMMISSION
Admission of Trainees 12 NCAC 09B .0203* 24:03 NCR
CRIME CONTROL AND PUBLIC SAFETY
Rotation Wrecker Service Regulations 14A NCAC 09H .0321* 24:09 NCR
ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF
Organization and Purpose 15A NCAC 12A .0101* 24:10 NCR
Directory of State Parks and Recreation Areas 15A NCAC 12A .0104* 24:10 NCR
Natural and Cultural Resource Protection 15A NCAC 12B .0201* 24:10 NCR
Bathing and Swimming Activities Where Prohibited 15A NCAC 12B .0301* 24:10 NCR
Disposal of Refuse: Garbage, Etc. 15A NCAC 12B .0401* 24:10 NCR
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1844
PUBLIC HEALTH, COMMISSION FOR
STDS Applicable to Generators of Hazardous Waste-Part
262
15A NCAC 13A .0107 24:09 NCR
Septage Land Application Site Permits 15A NCAC 13B .0835* 23:15 NCR
Septage Detention and Treatment Facility Permits 15A NCAC 13B .0836* 23:15 NCR
Standards for Septage Detention and Treatment Facilities 15A NCAC 13B .0841* 23:15 NCR
Innovative or Alternative Treatment or Storage Methods 15A NCAC 13B .0842* 23:15 NCR
ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF
Purpose 15A NCAC 28 .0101 24:12 NCR
Facilities 15A NCAC 28 .0102 24:12 NCR
Users 15A NCAC 28 .0103* 24:12 NCR
Permissible Activities 15A NCAC 28 .0104* 24:12 NCR
Permission for Use 15A NCAC 28 .0105* 24:12 NCR
Scheduling Permissible Activities 15A NCAC 28 .0106 24:12 NCR
Available Areas 15A NCAC 28 .0107* 24:12 NCR
Long-Term Use Prohibited 15A NCAC 28 .0108 24:12 NCR
Scheduling Activities for Regular Hours 15A NCAC 28 .0201* 24:12 NCR
Aquarium Responsibilities 15A NCAC 28 .0202 24:12 NCR
Scheduling Activities for Non-regular Hours 15A NCAC 28 .0203* 24:12 NCR
Fee Schedule 15A NCAC 28 .0302* 24:12 NCR
Lethal Instruments 15A NCAC 28 .0401* 24:12 NCR
Fires 15A NCAC 28 .0403 24:12 NCR
Smoking 15A NCAC 28 .0404 24:12 NCR
Uses Not Covered by Policy 15A NCAC 28 .0405 24:12 NCR
Disorderly Conduct 15A NCAC 28 .0501 24:12 NCR
Loud Radios 15A NCAC 28 .0505 24:12 NCR
Proper Dress 15A NCAC 28 .0506 24:12 NCR
Coaster Conveyances 15A NCAC 28 .0507 24:12 NCR
Acceptance of Donated Personal Property 15A NCAC 28 .0606* 24:12 NCR
Parking 15A NCAC 28 .0703* 24:12 NCR
Food and Beverages Prohibited Inside 15A NCAC 28 .0704 24:12 NCR
BARBER EXAMINERS, BOARD OF
Where Barber Services May Be Performed 21 NCAC 06L .0111* 24:07 NCR
Additional Duties of Barber Shop Owners and Managers
and ...
21 NCAC 06L .0116* 24:07 NCR
Fees 21 NCAC 06N .0101* 24:07 NCR
GENERAL CONTRACTORS, LICENSING BOARD FOR
Multiunit Buildings 21 NCAC 12 .0211* 24:06 NCR
DENTAL EXAMINERS, BOARD OF
Definitions 21 NCAC 16B .0901* 24:10 NCR
Exemptions Granted 21 NCAC 16B .0902* 24:10 NCR
Definitions 21 NCAC 16I .0110* 24:10 NCR
Exemptions Granted 21 NCAC 16I .0111* 24:10 NCR
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1845
DIETETICS/NUTRITION, BOARD OF
Definitions 21 NCAC 17* .0101 24:09 NCR
Code of Ethics for Professional Practice and Conduct 21 NCAC 17 .0114 24:09 NCR
Violations, Complaints, Subsequent Board Action, and
Hear...
21 NCAC 17 .0116* 24:09 NCR
Suspension of Authority and Escrow of Funds 21 NCAC 17 .0117 24:09 NCR
Armed Services Licensees 21 NCAC 17 .0118 24:09 NCR
MASSAGE AND BODYWORK THERAPY, BOARD OF
License Renewal 21 NCAC 30 .0303* 24:10 NCR
MEDICAL BOARD
Supervision of Anesthesiologist Assistants 21 NCAC 32W .0109 24:06 NCR
PHARMACY, BOARD OF
Extension of Period for Certain Members of the Armed
Forces
21 NCAC 46 .1613* 24:08 NCR
APPRAISAL BOARD
Appraisal Reports 21 NCAC 57A .0405 24:08 NCR
Supervision of Trainees 21 NCAC 57A .0407* 24:08 NCR
Registered Trainee Course Requirements 21 NCAC 57B .0101 24:08 NCR
Course Completion Standards 21 NCAC 57B .0303 24:08 NCR
Course Scheduling 21 NCAC 57B .0304* 24:08 NCR
Criteria for Course Recognition 21 NCAC 57B .0307* 24:08 NCR
Course Operational Requirements 21 NCAC 57B .0606* 24:08 NCR
Sponsor Reporting of Continuing Education Credit 21 NCAC 57B .0608* 24:08 NCR
Renewal of Approval and Fees 21 NCAC 57B .0611* 24:08 NCR
COMMUNITY COLLEGES, BOARD OF
Education Services for Minors 23 NCAC 02C .0305* 24:10 NCR
Limitations in Reporting Student Membership Hours 23 NCAC 02D .0325 24:10 NCR
Maintenance of Plant Flexibility 23 NCAC 02D .0329 24:10 NCR
Definitions and Application for Initial License 23 NCAC 03A .0101 24:10 NCR
Application for Renewal of License 23 NCAC 03A .0102* 24:10 NCR
Administration of the Student Protection Fund 23 NCAC 03A .0116 24:10 NCR
These rules are subject to the next Legislative Session. (See G.S. 150B-21.3(b1))
APPRAISAL BOARD
Qualifications for Trainee Registration and Appraiser Cer... 21 NCAC 57A .0201* 24:08 NCR
Continuing Education 21 NCAC 57A .0204* 24:08 NCR
Certified Residential Real Estate Appraiser Course Requir... 21 NCAC 57B .0102* 24:08 NCR
Certified General Real Estate Appraiser Course Requirements 21 NCAC 57B .0103* 24:08 NCR
Instructor Requirements 21 NCAC 57B .0306* 24:08 NCR
Criteria for Course Approval 21 NCAC 57B .0603* 24:08 NCR
APPROVED RULES
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1846
TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
10A NCAC 22M .0102 MEMBERSHIPS
(a) The DUR Board shall consist of the Division of Medical
Assistance Drug Use Review Coordinator and the following
appointed positions:
(1) five licensed and practicing physicians;
(2) five licensed and practicing pharmacists; and
(3) at least two additional individuals with
knowledge and expertise in one or more of the
following:
(A) prescribing of Medicaid covered
outpatient drug;
(B) dispensing and monitoring of
Medicaid covered outpatient drugs;
(C) drug use review, evaluation, and
intervention; or
(D) medical quality assurance.
(b) The Division shall appoint members of the DUR Board for
up to three one-year terms. Either party shall have the right to
terminate the membership upon five days notice in writing to the
other party. The DUR Coordinator is not an appointed member,
is not subject to the term requirement and only serves on the
Board while actively employed with DMA as the DUR
Coordinator.
(c) The North Carolina Association of Pharmacists, the North
Carolina Medical Society, and the Old North State Medical
Society shall be asked by DMA's DUR Coordinator to make
nominations for some of the positions on the Board. The
Director may accept or reject nominations received.
History Note: Authority G.S. 108A-68; 42 U.S.C. 1396r-
8(g)(3)(B);
Eff. January 4, 1993;
Amended Eff. April 1, 2010.
TITLE 11 – DEPARTMENT OF INSURANCE
11 NCAC 08 .1004 EQUIVALENT EXPERIENCE
(a) The Board shall consider equivalent experience of applicants
who do not meet the experience requirements of G.S. 143-
151.51(5)a. Any one of the following descriptions of experience
is considered sufficient to meet the equivalent experience
requirements:
(1) A bachelor of science degree from any
engineering, architecture or building
technology school and two years experience
working in building design, construction, or
inspection of building, electrical, mechanical,
and plumbing systems.
(2) A two year Associate of Applied Science
degree from a community college or technical
school in building technology, civil
engineering, electrical engineering,
mechanical engineering, or architecture; and
either four years of design experience in
building, electrical, mechanical, and plumbing
systems, or four years experience as an
employee who works under the direct
supervision of a licensed general (residential
or building) contractor and who supervises
electrical, mechanical, and plumbing
subcontractors.
(3) Six years experience as an employee who
works under the direct supervision of a
licensed general contractor (residential or
building) performing building construction and
who supervises electrical, mechanical, and
plumbing subcontractors.
(4) Certification by the North Carolina Code
Officials Qualification Board as a Code
Enforcement Official with Standard Level I (or
higher) inspection certification in four areas:
building, electrical, mechanical, and plumbing.
(5) Any combination of certification listed in
Paragraph (a)(4) of this Rule and a license as
an electrical contractor (limited or greater)
issued by the N.C. Board of Electrical
Examiners, or a license as a heating or cooling
contractor (H1, H2, or H3), or a plumbing
contractor issued by the N.C. Board of
Examiners of Plumbing, Heating and Fire
Sprinkler Contractors, resulting in either a
certificate or a license in four areas in
building, electrical, mechanical, and plumbing
contracting or inspections.
(b) Applicants may submit other experience in the design,
installation, or inspection of buildings and electrical,
mechanical, and plumbing systems. The Board's Application
Evaluation Committee shall consider such experience on a case-by-
case basis.
(c) Successful completion of a home inspection course or
training program, approved by the Board, is sufficient to meet
the equivalent experience requirement for licensure. The
applicant must provide to the Board certification from the home
inspection course or training program demonstrating that the
applicant has met all requirements of that program, including
attendance, testing, and training as applicable. The home
inspection course or training program shall consist of at least
120 hours of instruction. The Board shall approve a home
inspection course or training program if such course or program
provides adequate instruction to teach all skills and knowledge
necessary to be a fully licensed home inspector in this State.
The Board shall request any documentation or information
needed to demonstrate that a home inspection course or training
program meets such requirements.
History Note: Authority G.S. 143-151.49(a)(13); 143-
151.51(5)b;
Codifier determined that agency findings did not meet criteria
for temporary rule Eff. October 15, 1996;
Temporary Adoption Eff. October 24, 1996;
Eff. July 1, 1998;
Amended Eff. April 1, 2010.
APPROVED RULES
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1847
* * * * * * * * * * * * * * * * * * * *
11 NCAC 12 .1901 DEFINITIONS
As used in this Section, the following terms have the meanings
ascribed to them:
(1) "Abuse" means the occurrence of one or more
of the following acts by a current or former
family member, household member, intimate
partner or caretaker:
(a) Attempting to cause or intentionally,
knowingly or recklessly causing
another person bodily injury, physical
harm, severe emotional distress,
psychological trauma, rape, sexual
assault or involuntary sexual
intercourse;
(b) Knowingly engaging in a course of
conduct or repeatedly committing
acts toward another person, including
following the person or minor child,
under circumstances that place the
person or minor child in reasonable
fear of bodily injury or physical
harm;
(c) Subjecting another person to false
imprisonment; or
(d) Attempting to cause or intentionally,
knowingly, or recklessly causing
damage to property so as to
intimidate or attempt to control the
behavior of another person.
(2) "Abuse-related medical condition" means a
medical condition sustained by a subject of
abuse that arises in whole or part out of an act
or pattern of abuse.
(3) "Abuse status" means the fact or perception
that a person is, has been, or may be a subject
of abuse, irrespective of whether the person
has sustained abuse-related medical
conditions.
(4) "Health benefit plan" or "plan" means an
accident and health insurance policy or
certificate; a nonprofit hospital or medical
service corporation contract; a health
maintenance organization subscriber contract;
a plan provided by a multiple employer
welfare arrangement; a plan provided by a
Professional Employer Organization; or a plan
provided by another benefit arrangement, to
the extent permitted by the Employee
Retirement Income Security Act of 1974, as
amended, or by any waiver of or other
exception to that Act provided under federal
law or regulation. "Health benefit plan"
includes accident only, credit health, dental,
vision, Medicare supplement or long-term care
insurance, coverage issued as a supplement to
liability insurance, short-term and catastrophic
health insurance, coverage only for a specified
disease or illness, hospital indemnity or other
fixed indemnity insurance, disability income
insurance, and a policy that pays on a cost-incurred
basis. "Health benefit plan" does not
mean the N.C. State Health Plan, workers'
compensation insurance or any plan
implemented or administered by the North
Carolina or United States Department of
Health and Human Services, or any successor
agency, or its representatives.
(5) "Insurance professional" means an agent,
broker, or adjuster as defined in G.S. 58-33-10
or a third party administrator as defined in
G.S. 58-56-2.
(6) "Insurer" means an insurance company subject
to Chapter 58 of the General Statutes, a service
corporation organized under Article 65 of
Chapter 58 of the General Statutes, a health
maintenance organization organized under
Article 67 of Chapter 58 of the General
Statutes, a multiple employer welfare
arrangement subject to Article 49 of Chapter
58 of the General Statutes, the North Carolina
Health Insurance Risk Pool subject to Part 6 of
Article 50 of Chapter 58 of the General
Statutes, and a Professional Employee
Organization subject to Article 89A of Chapter
58 of the General Statutes.
(7) "Insured" means a party named on a health
benefit plan as the person with legal rights to
the benefits provided by the health benefit
plan. For group plans, "insured" includes a
person who is a beneficiary covered by a
group health benefit plan.
(8) "Subject of abuse" means a person against
whom an act of abuse has been directed; who
has current or prior injuries, illnesses or
disorders that resulted from abuse; who seeks,
may have sought, or had reason to seek
medical or psychological treatment for abuse;
or protection, court-ordered protection or
shelter from abuse.
History Note: Authority G.S. 58-2-40; 58-63-65;
Eff. April 1, 2010.
* * * * * * * * * * * * * * * * * * * *
11 NCAC 22 .0101 SCOPE
This Chapter applies to self-funded trusts sponsored by
professional employer organizations if the trust is subject to
Article 89A of Chapter 58 of the General Statutes.
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
APPROVED RULES
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1848
11 NCAC 22 .0102 DEFINITIONS
(a) The definitions in G.S. 58-89A-5, including subsequent
amendments or editions, are incorporated by reference into this
Chapter.
(b) As used in this Chapter, the following terms have the
meanings ascribed to them:
(1) "Claims accrued" means liability for accrued
benefits, that portion of claims incurred on or
prior to the valuation date that result in
liability of the trust for the payment of benefits
for medical services that have been rendered
on or prior to the valuation date, and for the
payment of benefits for days of hospitalization
and days of disability that have occurred on or
prior to the valuation date, that the trust has
not paid as of the valuation date, but for which
it is liable, and will have to pay after the
valuation date.
(2) "Claims reported" means when a trust has been
informed that a claim has been incurred; if the
date reported is on or prior to the valuation
date, the claim is considered as a reported
claim for annual statement purposes.
(3) "Claims unaccrued" means liability for
unaccrued benefits, that portion of claims
incurred on or before the valuation date that
result in liability of the trust for the payment of
benefits for medical services expected to be
rendered after the valuation date, and for
benefits expected to be payable for days of
hospitalization and days of disability occurring
after the valuation date.
(4) "Claims unreported" means a claim that has
been incurred on or before the valuation date,
but the trust has not been informed.
(5) "Claim reserves" mean reserves or liabilities
held for claims incurred on or before the
valuation date, but unpaid as of the valuation
date. Claim reserves include both reported and
unreported claims. Claim reserves are
established for both accrued and unaccrued
benefits.
(6) "Incurred date" means the date that a claim is
determined to be a liability of the trust. For
example, the charges for inpatient hospital and
physician visits in hospitals would be assigned
an incurred date equal to the date of
admission; outpatient hospital charges would
be assigned an incurred date equal to the date
of service; surgical expenses would be
assigned an incurred date equal to the date of
the surgery.
(7) "Trust" means a self-funded health benefit
plan trust sponsored by a PEO that covers the
PEO's employees or assigned employees, or
both.
(8) "Unearned premium reserves" mean reserves
established for premiums received that
produce insuring periods extending beyond the
valuation date.
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0103 GENERAL ELIGIBILITY
(a) Each PEO shall provide to the Commissioner documentation
that the PEO sponsored health benefit plan is operated pursuant
to a trust agreement by a board of trustees that has fiscal control
over and is responsible for all operations of the health benefit
plan.
(b) Trustees of the trust may be owners, partners, officers,
directors, or employees of the PEO or of one or more of the
PEO's client employers. With the Commissioner's approval, a
person who is not an owner, partner, officer, director or
employee may serve as a trustee. Trustees may contract with a
licensed third party administrator to administer the operations of
the trust.
(c) The trust shall provide benefits solely for the PEO's
employees or the assigned employees, or both.
(d) Any profits from the operation of a trust shall be invested in
securities in accordance with G.S. 58-7-160 through G.S.
58-7-200. Interest or other profits accrued or received from the
securities shall be used to stabilize premium rates or provide
other benefits for the insured employees on which the PEO and
the Commissioner agree.
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0104 FILING REQUIREMENTS
(a) All communications and filings required by this Chapter
related to a trust shall be submitted to the Department's Life &
Health Division and made pursuant to 11 NCAC 12 .0329.
(b) During the pendency of the review of a submittal under this
Chapter, the PEO shall keep all required information, statements,
documents, and materials current and accurate.
(c) A submittal is not complete until the PEO has provided all
information required by this Chapter. The Commissioner is not
required to process an incomplete submittal.
(e) All financial information required by this Chapter shall be
prepared in accordance with United States Generally Accepted
Accounting Principles.
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0105 FINANCIAL REQUIREMENTS
(a) A trust may participate in a cash management program as
long as the trust has direct access to its funds at all times and the
depository or custodian maintains a separate accounting for each
account. The depository or custodian must be a national or state
bank, savings and loan association, or trust company.
(b) No surplus note or the interest from the note shall be paid or
repaid without the written approval of the Commissioner. If
APPROVED RULES
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1849
there is more than one surplus note, each note shall have its own
unique identification number in the upper left hand corner of
each page of the document.
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0106 ADMINISTRATIVE, PROVIDER,
AND MANAGEMENT CONTRACTS
(a) As used in this Rule, "fees" means any compensation that is
transferred for either contracted or noncontracted services that
are rendered to a trust or the PEO.
(b) A trust is prohibited from paying any fees, other than for
reimbursement of specific expenses, to its sponsoring PEO
unless the services rendered to the trust are available to the trust
from persons other than the PEO.
(c) The fees for such services shall be determined by comparing
those charged to MEWA's in North Carolina, as defined in G.S.
58-49-30(a).
(d) A PEO shall give the Commissioner written notification of
any proposed change to the trust's management or administrative
contract at least 45 days before the effective date of the change.
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0107 TRUST SUBMITTAL AND PLAN
OF OPERATION
(a) In order to sponsor and maintain a trust pursuant to G.S. 58-
89A-106, a PEO shall submit to the Commissioner a plan of
operation as well as the following information:
(1) Copy of the plan administrator's North
Carolina TPA license.
(2) Copy of the current contract between the PEO
employee benefit plan trust and the
administrator.
(3) Description of the marketing plan for the
PEO's services and a list of PEO employees
who solicit client employers for the PEO.
(4) A list of all client employers contracted with
the PEO, including a list of all insured
employees who are not assigned by the PEO.
(5) A copy of each optional plan of benefits
summary plan description and evidence of the
coverage and benefits offered by the trust.
(6) The schedule of the premium rates or the base
rates and factors that will be used to calculate
the premiums for each trust.
(7) Actuarial certifications to meet each of the
following requirements:
(A) Actuarial soundness of the trust as
required by G.S. 58-89A-106(a)(11);
(B) Adequacy of rates charged as
provided in 11 NCAC 22 .0116 and
22 .0117.
(C) Provisions made for incurred but not
reported claims as provided in 11
NCAC 22 .0116 and 22 .0117.
(8) Report on Financial Condition of the trust,
including:
(A) The Annual Statement of Condition
and Affairs Exhibit;
(B) The Accident and Health Exhibit;
(C) The General Expense Exhibit;
(D) The Development of Incurred Losses
Exhibit;
(E) Audited Financial Statements as
outlined in Paragraph (b) of this Rule.
(9) A copy of the stop-loss insurance agreement
covering the trust along with a summary of the
description of the agreement that explains the
nature of the coverage and net retention limits.
(10) A power of attorney, as required by G.S. 58-
16-5(10).
(b) After the initial submittal required by this Rule, every PEO
shall, within 150 days after the end of each of the trust's fiscal
years or within any such extension of time that the
Commissioner grants, file a plan of operation, along with all
information required by Paragraph (a) of this Rule, with the
Commissioner, on forms prescribed by the Commissioner and
verified by the oath of a member of the PEO's board of directors
and by an administrative executive appointed by the board,
showing the trust's financial condition on the last day of the
preceding fiscal year. The plan shall contain an audited financial
statement of the trust prepared in accordance with United States
Generally Accepted Accounting Principles, including its balance
sheet and a statement of the operations for the preceding fiscal
year certified by an independent certified public accountant. The
plan shall also include an analysis of the adequacy of reserves
and contributions or premiums charged, based on a review of
past and projected claims and expenses, pursuant to this Chapter.
(c) In addition to the information called for and furnished in
connection with the plan of operation, the Commissioner may
request information that summarizes paid and incurred expenses
and contributions or premiums received, as well as evidence that
the trust is actuarially sound. That information and evidence
shall be furnished by the PEO not later than 30 days after the
request, unless the Commissioner grants an extension.
(d) Annually the PEO shall submit an actuarial certification
prepared by an independent qualified actuary that indicates:
(1) The trust is actuarially sound, considering the
rates, benefits, and expenses of, and any other
funds available for the payment of obligations
of, the trust;
(2) The rates being charged and to be charged for
the trust are actuarially adequate to the end of
the period for which rates have been
guaranteed to the covered persons;
(3) Incurred but not reported claims and claims
reported but not fully paid have been
adequately provided for.
(e) For the first year, beginning with October 1, 2009, the
Commissioner may require the PEO to file quarterly, within 45
days after the end of each of its fiscal quarters, an unaudited
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financial statement on a form provided by the Commissioner,
verified by the oath of a member of the PEO's board of directors
and an administrative executive appointed by the board, showing
the trust's financial condition on the last day of the preceding
quarter.
(f) Any PEO or its employee benefit plan trust that fails to file a
plan of operation and other information as required by this Rule
is subject to G.S. 58-2-70; and after notice and opportunity for
hearing, the Commissioner may suspend the PEO's authority to
enroll new insured's or to do business in this State while the
failure continues. Nothing in this subsection prohibits a PEO
from continuing to operate a trust while the documentation
required under this Rule is under review by the Department as
long as the PEO operates the plan in accordance with this
Chapter and G.S. 58-89A-106.
(g) A request for an extension of time to file the annual plan of
operation and other information required by this Rule must be
made in writing and filed with the Life & Health Division no
later than 15 days before the due date of the plan. Any request
for extension received less than 15 days before the due date of
the plan shall be denied except in instances of death or disability
of key personnel or destruction of records by fire or natural
disaster declared a major disaster by the President of the United
States under the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5121, et. seq., as amended
or a proclaimed disaster by the Governor of the State where the
trust offices are located.
(h) All exhibits referenced in this Rule shall be in the format as
provided by the Commissioner, and exhibit forms may be
obtained from the Life & Health Division.
(i) Every submittal made pursuant to this Rule shall contain a
certification that any changes to the information required by this
Rule shall be reported to the Commissioner.
(j) Any change in the information required by this Chapter or by
G.S. 58-89A-106 or by G.S. 58-89A-107 shall be reported to the
Commissioner within 10 business days after the change.
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0108 CLAIMS PAYMENTS
A trust shall make claims payments in accordance with G.S. 58-
3-225.
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0109 DISSOLUTION
Any request to dissolve a trust shall be made on Form PEO-5
entitled "Application for Dissolution".
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0110 MINIMUM RESERVE
STANDARDS
(a) Claim reserves and premium reserves shall be established by
every trust.
(b) The adequacy of reserves of a trust shall be determined on
the basis of the two categories combined, but actuarially
appropriate reserves for each category must be established
separately.
(c) When a trust determines that the adequacy of its reserves
necessitates a reserve amount greater than the minimum
standards, the increased reserves shall be established and held as
the minimum reserves for that trust.
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0111 CLAIM RESERVES
(a) Minimum claim reserves are required for all incurred but
unpaid claims, which include claims accrued and claims
unaccrued.
(b) For the current year exposures, where historical claim
information is either not available or not credible as determined
by an actuary, the minimum claim reserve shall be calculated in
the following manner:
(1) Calculate the total earned premium as of the
end of a valuation period for each self funded
plan of coverage in force under the trust.
(2) Multiply the total earned premium by the
expected incurred loss ratio for each self
funded plan of coverage in force under the
trust. The sum of the results of these
multiplications is referred to as the "total
incurred claims".
(3) Subtract from the total incurred claims the
total amount of claims paid as of the end of a
valuation period. The result of this subtraction
is the total "minimum" amount that shall be
added to the claim reserves established at the
beginning of the valuation period.
(4) The calculations in Subparagraphs (b)(1) and
(2) of this Rule may give recognition to
duration.
(c) For later years of exposures, where historical claim
information is available and credible as determined by an
actuary, the minimum reserve shall be calculated using any
generally accepted or reasonable actuarial claim runoff method.
Claim runoff schedules shall be developed by using appropriate
incurred dates and paid dates for claims. Adequacy of the claim
reserves shall be determined in the aggregate.
(d) Appropriate claim expense reserves are required with
respect to the estimated expense of settlement of all incurred but
unpaid claims. Claim settlement expenses shall include both
allocated and unallocated expenses.
(e) All claim reserves for prior valuation periods shall be tested
for adequacy and reasonableness in accordance with claim
runoff schedules pursuant to the statutory financial statement
including consideration of any residual unpaid liability.
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(f) Each trust shall develop a follow-up study comparing its
previous reserve estimates against subsequent claims actually
paid together with the remaining estimated liability as of the
valuation date. The results of this study shall be filed with the
Actuarial Service Division of the Department by March 1 of
each calendar year.
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0112 PREMIUM RESERVES
(a) Unearned premium reserves are required for each trust with
respect to the period of coverage for which premiums, other than
premiums paid in advance, have been paid beyond the date of
valuation.
(b) If premiums due and unpaid are carried as an asset, such
premiums must be treated as premiums in force, subject to
unearned premium reserve determination. The value of the
unpaid commissions and the cost of collection associated with
due and unpaid premiums must be carried as an offsetting
liability.
(c) The minimum unearned premium reserve with respect to any
contract is the pro rata gross unearned modal premium that
applies to the premium period beyond the valuation date.
(d) A trust may employ suitable approximations or estimates,
including groupings, averages, and aggregate estimation, in
computing premium reserves for all of the trust options it offers.
Such approximations or estimates shall be tested periodically by
the PEO to determine their continuing adequacy and reliability.
History Note: Authority G.S. 58-2-4); 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0113 MAXIMUM NET RETENTION
STANDARD
(a) The specific maximum net retention limit for any trust,
associated with the period of time that the excess insurance
coverage is in force, shall be calculated in the following manner:
(1) Determine the total expected dollar value of
claims;
(2) Determine the total surplus at the beginning of
the period of time that the excess insurance
coverage is scheduled to be in force;
(3) Multiply Subparagraph (a)(1) of this Rule by
one percent and add that product to
Subparagraph (a)(2) of this Rule;
(4) Multiply the result of the calculation in
Subparagraph (a)(3) of this Rule times itself;
(5) Multiply Subparagraph (a)(1) of this Rule by
the number 3.4; and
(6) Divide the product of the calculation in
Subparagraph (a)(4) of this Rule by the
product of the calculation in Subparagraph
(a)(5) of this Rule.
(b) The specific maximum net retention limit shall not exceed
the lesser of:
(1) The amount in Subparagraph (a)(6) of this
Rule;
(2) Twenty-five thousand dollars ($25,000); or
(3) The specific maximum net retention limit
determined by or for the trust in accordance
with sound actuarial principles.
(c) The aggregate maximum net retention shall not exceed the
lesser of:
(1) One hundred twenty-five percent of
Subparagraph (a)(1) of this Rule; or
(2) The aggregate maximum net retention limit
determined by or for the trust in accordance
with sound actuarial principles.
(d) The Commissioner may approve a specific maximum net
retention limit or an aggregate maximum net retention limit or
both in excess of those calculated pursuant to this Rule, upon
application to the Commissioner and the Commissioner's
determination that the increase would not inhibit the ability of
the trust to perform its present and future contractual obligations
to insured employees under the trust.
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0114 "QUALIFIED ACTUARY";
MAXIMUM NET RETENTION FILING
(a) As used in this Rule and in 11 NCAC 22 .0116 and 11
NCAC 22 .0117, "qualified actuary" means an individual who is
either an Associate or Fellow of the Society of Actuaries or a
Member of the American Academy of Actuaries.
(b) Every year each PEO shall calculate its trust's maximum net
retention limit in accordance with 11 NCAC 22 .0114. This
calculation must be performed before the anniversary date of the
PEO's stop-loss insurance contract and shall be filed, no later
than 30 days before the anniversary date of the stop-loss
insurance contract, with the Actuarial Services Division of the
Department. This calculation shall include the numerical results
of all steps in 11 NCAC 22 .0114 and shall be performed by a
qualified actuary.
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0115 CERTIFICATION OF
RESERVES FILING
Every year each PEO shall file the following actuarial
certifications executed by a qualified actuary in the following
manner:
"I (Name of Qualified Actuary) am a qualified actuary
as defined by 11 NCAC 22 .0115 and I have reviewed:"
(1) 11 NCAC 22 .0111 titled, "Minimum Reserve
Standards," and I certify that if the adequacy
of the trust reserves requires reserves in excess
of the minimum standards described in 11
NCAC 22 .0112 and 11 NCAC 22 .0113, then
such increased reserves will be held and
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considered the minimum reserves for (Name
of PEO) trust.
(2) 11 NCAC 22 .0112 titled, "Claim Reserves,"
and I certify that the trust claim reserves are
being calculated in an actuarially sound
manner that produces reserves at least as great
as those prescribed in 11 NCAC 22 .0112.
(3) 11 NCAC 22 .0113 titled, "Premium
Reserves," and I certify that the trust premium
reserves are being calculated in an actuarially
sound manner that produces reserves at least
as great as those prescribed in 11 NCAC 22
.0113.
(4) 11 NCAC 22 .0114 titled, "Maximum Net
Retention Standard," and I certify that the trust
maximum net retention limits are being
calculated in an actuarially sound manner that
produces maximum net retention limits no
greater than those prescribed in 11 NCAC 22
.0114, unless the Commissioner has approved
such higher limits as described in 11 NCAC 22
.0114(d).
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
11 NCAC 22 .0116 DEFINITIONS AND
CERTIFICATION OF RATES FILING
(a) For purposes of this Chapter, the following terms have the
meanings ascribed to them:
(1) "Rates are adequate" for a given block of
policies or certificates means that the total
payments collected now and in the future by
the trust plus the investment earnings
attributable to any net retained funds should be
at least sufficient to fund the current and future
benefits promised plus cover related expenses.
(2) "Block of plans" means all coverage plans or
certificates issued by the trust under the same
schedule of rates and on the same plan
document or form.
(3) "Rates are not excessive" for a given block of
plans means that the most recent calendar year
incurred loss ratio is greater than or equal to
one minus the expense ratio for that given
block of policies or certificates.
(4) "Expense ratio" means the ratio of the trust's
operating expenses for a block of plans or
certificates to its earned premium for that
block of plans or certificates.
(5) "Operating expense" means any combination
of the following expenses:
(A) Commissions;
(B) Other acquisitions;
(C) General administration;
(D) Taxes, licenses, and fees; and
(E) Profit and contingency margin.
(6) Rates are not "unfairly discriminatory" if they
reflect equitably differences in expected risk.
(b) Every year each trust shall file the following actuarial
certification executed by a qualified actuary in the following
manner:
"I (Name of Qualified Actuary) am a qualified
actuary as defined in 11 NCAC 22 .0115 and I
certify that the rates developed for the trust of
(Name of PEO) are calculated in an actuarially
sound manner and that these rates are
adequate, not excessive, and not unfairly
discriminatory."
History Note: Authority G.S. 58-2-40; 58-89A-15; 58-89A-
105; 58-89A-106;
Eff. April 1, 2010.
TITLE 12 – DEPARTMENT OF JUSTICE
12 NCAC 09B .0203 ADMISSION OF TRAINEES
(a) The school director shall not admit any individual as a
trainee in a presentation of the Basic Law Enforcement Training
Course who is not a citizen of the United States.
(b) The school shall not admit any individual younger than 18
years of age as a trainee in any non-academic basic criminal
justice training course.
(c) The school shall give priority admission in certified criminal
justice training courses to individuals holding full-time
employment with criminal justice agencies.
(d) The school shall not admit any individual as a trainee in a
presentation of the "Criminal Justice Instructor Training Course"
who does not meet the education and experience requirements
for instructor certification under Rule .0302(1) of this
Subchapter within 60 days of successful completion of the
Instructor Training State Comprehensive Examination.
(e) The school shall not admit an individual, including partial or
limited enrollees, as a trainee in a presentation of the Basic Law
Enforcement Training Course unless the individual has taken the
reading component of a nationally standardized test within one
year prior to admission to Basic Law Enforcement Training and
has scored at or above the tenth grade level, or the equivalent. A
nationally standardized test is a test that:
(1) reports scores as national percentiles, stanines
or grade equivalents; and
(2) compares student test results to a national
norm.
(f) The school shall not admit any individual as a trainee in a
presentation of the Basic Law Enforcement Training Course
unless as a prerequisite the individual has provided to the School
Director a medical examination report, completed by a physician
licensed to practice medicine in North Carolina, a physician's
assistant, or a nurse practitioner, to determine the individual's
fitness to perform the essential job functions of a criminal justice
officer. The Director of the Standards Division shall grant an
exception to this standard for a period of time not to exceed the
commencement of the physical fitness topical area when failure
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1853
to timely receive the medical examination report is not due to
neglect on the part of the trainee.
(g) The school shall not admit any individual as a trainee in a
presentation of the Basic Law Enforcement Training Course
unless as a prerequisite the individual is a high school graduate
or has passed the General Educational Development Test
indicating high school equivalency. High school diplomas
earned through correspondence enrollment are not recognized
toward the educational requirements.
(h) The school shall not admit any individual trainee in a
presentation of the Basic Law Enforcement Training Course
unless as a prerequisite the individual has provided the certified
School Director a certified criminal record check for local and
state records for the time period since the trainee has become an
adult and from all locations where the trainee has resided since
becoming an adult. An Administrative Office of the Courts
criminal record check or a comparable out-of-state criminal
record check will satisfy this requirement.
(i) The school shall not admit any individual as a trainee in a
presentation of the Basic Law Enforcement Training Course
who has been convicted of the following:
(1) a felony;
(2) a crime for which the punishment could have
been imprisonment for more than two years;
(3) a crime or unlawful act defined as a "Class B
Misdemeanor" within the five year period
prior to the date of application for employment
unless the individual intends to seek
certification through the North Carolina
Sheriffs' Education and Training Standards
Commission;
(4) four or more crimes or unlawful acts as
defined as "Class B Misdemeanors" regardless
of the date of conviction;
(5) four or more crimes or unlawful acts defined
as "Class A Misdemeanors" except the trainee
may be enrolled if the last conviction occurred
more than two years prior to the date of
enrollment;
(6) a combination of four or more "Class A
Misdemeanors" or "Class B Misdemeanors"
regardless of the date of conviction unless the
individual intends to seek certification through
the North Carolina Criminal Justice Education
and Training Standards Commission.
(j) Individuals charged with crimes as specified in Paragraph (i)
of this Rule, and such offenses were dismissed or the person was
found not guilty, may be admitted into the Basic Law
Enforcement Training Course but completion of the Basic Law
Enforcement Training Course does not ensure that certification
as a law enforcement officer or justice officer through the North
Carolina Criminal Justice Education and Training Standards
Commission will be issued. Every individual who is admitted as
a trainee in a presentation of the Basic Law Enforcement
Training Course shall notify the School Director of all criminal
offenses which the trainee is arrested for or charged with, pleads
no contest to, pleads guilty to or is found guilty of, and notify the
School Director of all Domestic Violence Orders (G.S. 50B)
which are issued by a judicial official that provide an
opportunity for both parties to be present. This includes all
criminal offenses except minor traffic offenses and specifically
includes any offense of Driving Under the Influence (DUI) or
Driving While Impaired (DWI). A minor traffic offense is
defined, for the purposes of this Paragraph, as an offense where
the maximum punishment allowable by law is 60 days or less.
Other offenses under G.S. 20 (Motor Vehicles) or other similar
laws of other jurisdictions which shall be reported to the School
Director include G.S. 20-139 (persons under influence of drugs),
G.S. 20-28 (driving while license permanently revoked or
permanently suspended), G.S. 20-30(5) (fictitious name or
address in application for license or learner's permit), G.S. 20-
37.8 (fraudulent use of a fictitious name for a special
identification card), G.S. 20-102.1 (false report of theft or
conversion of a motor vehicle), G.S. 20-111(5) (fictitious name
or address in application for registration), G.S. 20-130.1
(unlawful use of red or blue lights), G.S. 20-137.2 (operation of
vehicles resembling law enforcement vehicles), G.S. 20-141.3
(unlawful racing on streets and highways), G.S. 20-141.5
(speeding to elude arrest), and G.S. 20-166 (duty to stop in event
of accident). The notifications required under this Paragraph
must be in writing, must specify the nature of the offense, the
court in which the case was handled, the date of the arrest or
criminal charge, the date of issuance of the Domestic Violence
Order (G.S. 50B), the final disposition, and the date thereof.
The notifications required under this Paragraph must be received
by the School Director within 30 days of the date the case was
disposed of in court. The requirements of this Paragraph are
applicable at all times during which the trainee is enrolled in a
Basic Law Enforcement Training Course. The requirements of
this Paragraph are in addition to the notifications required under
12 NCAC 10B .0301 and 12 NCAC 09B .0101(8).
History Note: Authority G.S. 17C-6; 17C-10;
Eff. January 1, 1981;
Amended Eff. June 1, 2010; December 1, 2004; July 1, 2004;
August 1, 2002; August 1, 2000; January 1, 1995; March 1,
1992; July 1, 1989; January 1, 1985.
TITLE 14A – DEPARTMENT OF CRIME CONTROL AND
PUBLIC SAFETY
14A NCAC 09H .0321 ROTATION WRECKER
SERVICE REGULATIONS
(a) The Troop Commander shall include on the Patrol Rotation
Wrecker List only those wrecker services which agree in writing
to adhere to the following provisions:
(1) A wrecker service desiring to be included on
the Highway Patrol Rotation Wrecker List
shall complete a wrecker application on a form
designated by the Patrol. All applications shall
be submitted to the appropriate District First
Sergeant.
(2) In order to be listed on a rotation wrecker list
within a zone, a wrecker service must have a
full-time business office within that Rotation
Wrecker Zone that is staffed and open during
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normal business hours of 8:00 a.m. to 5:00
p.m., Monday through Friday, excluding
holidays, and a storage facility. The Wrecker
service must have someone available to accept
telephone calls from the Patrol, and to allow
access to towed vehicles, or to retrieve towed
vehicles by the registered owner, operator, or
legal possessor during business hours. The
business office may not be the same physical
address as the owner's residence unless zoned
for commercial purposes and advertised as a
business property. A representative from the
wrecker service shall be available on call on a
24-hour basis, for emergencies. The wrecker
service shall allow vehicles to be retrieved
between the hours of 8:00 a.m. to 5:00 p.m.,
seven days a week, excluding holidays. An
individual (registered owner, legal possessor,
or operator) shall not be charged a storage fee
for days that he/she could not retrieve his/her
vehicle as a result of an action or omission on
the part of the wrecker service (such as where
the wrecker service was not open, did not
answer the telephone or a representative was
not available to release the vehicle).
(3) Wrecker service facilities and equipment,
including vehicles, office, telephone lines,
office equipment and storage facilities may not
be shared with or otherwise located on the
property of another wrecker service and must
be independently insured. Vehicles towed at
the request of the Patrol must be placed in the
storage owned and operated by the wrecker
service on the rotation list. A storage facility
for a small wrecker shall be located within the
assigned zone. For wrecker services with
large wreckers the storage facility for vehicles
towed with the large wrecker may be located
anywhere within the county. To be listed on
the large rotation wrecker list, a wrecker
service must have at least one large wrecker.
To be listed on the small rotation wrecker list,
a wrecker service must have at least one small
wrecker. In any case where husband and wife
or other family members are engaged in the
business of towing vehicles and desire to list
each business separately on the Patrol wrecker
rotation list, the wrecker service shall establish
that it is a separate legal entity for every
purpose, including federal and state tax
purposes.
(4) Each wrecker must be equipped with legally
required lighting and other safety equipment to
protect the public and the equipment must be
in good working order.
(5) Each wrecker on the Patrol Rotation Wrecker
List must be equipped with the equipment
required on the application list and the
equipment must, at all times, be operating
properly.
(6) The wrecker service operator must remove all
debris, other than hazardous materials, from
the highway and the right-of-way prior to
leaving the incident/collision scene. This
service must be completed as a part of the
required rotation service and shall not be
charged as an extra service provided.
Hazardous materials consist of those materials
and amounts that are required by law to be
handled by local Hazardous Materials Teams.
Hazardous Materials or road clean-up other
than debris may be billed in quarter hour
increments after the first hour on scene.
(7) The wrecker service must be available to the
Patrol for rotation service on a 24-hour per day
basis and accept collect calls (if applicable)
from the Patrol. Calls for service must not go
unanswered for any reason.
(8) The wrecker service shall respond, under
normal conditions, in a timely manner. Failure
to respond in a timely manner may result in a
second rotation wrecker being requested. If
the second wrecker is requested before the
arrival of the first rotation wrecker, the initial
requested wrecker shall forfeit the call and
shall immediately leave the collision/incident
scene.
(9) For Patrol-involved incidents, the wrecker
service shall respond only upon request from
Patrol authority or at the request of the person
in apparent control of the vehicle to be towed.
(10) The wrecker service, when responding to
rotation wrecker calls, shall charge reasonable
fees for services rendered. Towing, storage
and related fees charged for rotation services
may not exceed the wrecker service's charges
for nonrotation service calls that provide the
same service, labor, and conditions. Wrecker
services may secure assistance from another
rotation wrecker service when necessary, but
only one bill shall be presented to the owner or
operator of the vehicle for the work performed.
A price list for recovery, towing and storage
shall be established and kept on file at the
place of business. A price list for all small
wreckers and rollbacks with a GVWR of less
than 26,001 pounds shall be furnished, in
writing on a Patrol form, to the District First
Sergeant upon request. The District First
Sergeant shall approve all price lists submitted
within their respective District if they are
determined to be reasonable, consistent with
fees charged by other Highway Patrol rotation
wrecker services within the District and do not
exceed the wrecker service's charges for
nonrotation service calls that provide the same
service, labor, and conditions. The District
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First Sergeant shall retain a copy of all
approved price lists in the appropriate wrecker
service file located in the district office.
Storage fees shall not begin to accrue until the
next calendar day following the initial towing
of the vehicle. Wrecker service towing fees
for recovery and transport of vehicles after
5:00 p.m. and on weekends may not exceed
the towing fees for recovery and transport of
vehicles charged during regular "Business
Hours" by more than 10 percent. A mileage
fee may only be charged if the customer
requests the vehicle to be towed to a location
outside of the assigned wrecker zone or
county. If a mileage fee is warranted, the
wrecker driver shall inform the owner,
operator or legal possessor of the vehicle of
any additional charge for mileage prior to
towing. Each Troop Commander shall
designate a Troop Lieutenant to serve as a
Rotation Wrecker Liaison for their respective
Troop. The individual price list for each
respective wrecker service shall be made
available to customers upon request. Copies of
the approved price list shall be maintained
within each wrecker and shall be given to the
owner, operator or legal possessor of a vehicle
being towed as a result of a Highway Patrol
rotation wrecker call by the wrecker driver, if
the owner, operator or legal possessor of the
vehicle being towed is present at the scene.
Prices indicated on this form shall be the
maximum amount that will be charged for a
particular service; however, this does not
prevent charges of a lesser amount for said
service.
(11) All wrecker operators shall have a valid
driver's license for the type of vehicles driven;
a limited driving privilege is not allowed.
(12) Wrecker owners, operators and employees
shall not be abusive, disrespectful, or use
profane language when dealing with the public
or any member of the Patrol and shall
cooperate at all times with members of the
Patrol.
(13) The wrecker service shall adhere to all Federal
and State laws and local ordinances and
regulations related to registration and
operation of wrecker service vehicles and have
insurance as required by G.S. 20-309(a).
(14) The wrecker service shall employ only
wrecker operators who demonstrate an ability
to perform required services in a safe, timely,
efficient and courteous manner and who
satisfy all of the requirements for wrecker
drivers established or referenced herein.
(15) The wrecker service must notify the District
First Sergeant of any insurance lapse or
change. Wrecker Services shall ensure the NC
Highway Patrol is listed as "Certificate
Holder" on the Certificate of Liability
Insurance, in c/o the District First Sergeant,
complete with the current mailing address for
the Highway Patrol District Office tasked with
the responsibility for ensuring compliance
with Highway Patrol policy regarding the
respective wrecker service.
(16) The wrecker service shall notify the Patrol
whenever the wrecker service is unable to
respond to calls.
(17) Notification of rotation wrecker calls shall be
made to the owner/operator or employee of the
wrecker service. Notification shall not be
made to any answering service, pager or
answering machine.
(18) Wrecker service vehicles shall be marked on
each side by printing the wrecker service
name, city and state in at least three inch
letters. No magnetic or stick-on signs shall be
used. Decals are permissible. The wrecker
service operator shall provide a business card
to the investigating officer or person in
apparent control of the vehicle before leaving
the scene.
(19) Each wrecker service vehicle must be
registered with the Division of Motor Vehicles
in the name of the wrecker service and insured
by the wrecker service. Dealer tags shall not
be displayed on wreckers that respond to
rotation calls.
(20) Wrecker Services shall secure all personal
property at the scene of a collision to the
extent possible, and preserve personal property
in a vehicle which is about to be towed.
(21) Upon application to the Patrol Rotation
Wrecker List, the owner shall ensure that the
owner and each wrecker driver has not been
convicted of, pled guilty to, or received a
prayer for judgment continued (PJC):
(A) Within the last five years of:
(i) A first offense under G.S.
20-138.1, G.S. 20-138.2,
G.S. 20-138.2A or G.S. 20-
138.2B;
(ii) Any misdemeanor involving
an assault, an affray,
disorderly conduct, being
drunk and disruptive,
larceny or fraud;
(iii) Misdemeanor Speeding to
Elude Arrest; or
(iv) A violation of G.S. 14-223,
Resist, Obstruct, Delay.
(B) Within the last ten years of:
(i) Two or more offenses in
violation of G.S. 20-138.1,
G.S. 20-138.2, G.S. 20-
138.2A or G.S. 20-138.2B;
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1856
(ii) Felony speeding to elude
arrest; or
(iii) Any Class F, G, H or I
felony involving sexual
assault, assault, affray,
disorderly conduct, being
drunk and disruptive, fraud,
larceny, misappropriation of
property or embezzlement.
(C) At any time of:
(i) Class A, B1, B2, C, D, or E
felonies;
(ii) Any violation of G.S. 14-
34.2, Assault with deadly
weapon on a government
officer or employee, 14-
34.5, Assault with firearm
on a law enforcement
officer; or G.S. 14-34.7,
Assault on law enforcement
officer inflicting injury;
(iii) Any violation of G.S. 20-
138.5, Habitual DWI. For
convictions occurring in
federal court, another state
or country or for North
Carolina convictions for
felonies which were not
assigned a class at the time
of conviction, the North
Carolina offense which is
substantially similar to the
federal or out of state
conviction or the class of
felony which is substantially
similar to the North Carolina
felony shall be used to
determine whether the owner
or driver is eligible. Any
question from the owner of a
Wrecker Service concerning
a criminal record shall be
discussed with the First
Sergeant or his designee; or
(iv) Three felony offenses in any
federal or state court or
combination thereof. The
commission of a felony is
not considered to be a
second or subsequent felony
unless it is committed after
the conviction or guilty plea
to the previous felony.
(22) Upon employment or upon the request of the
District First Sergeant, the owner of the
wrecker service shall supply the Patrol with
the full name, current address, date of birth,
and photo copy of drivers license, valid work
VISA, or other INS Documentation for all
wrecker drivers and owner(s) in order for the
Patrol to obtain criminal history information.
The Wrecker Service shall also provide a
certified copy of the driving record for the
owner and each driver authorized to drive on
rotation upon initial application, upon the
hiring of a driver if hired after initial
application, and at the time of periodic
wrecker inspections. The wrecker service
shall inform the District First Sergeant if the
owner or a driver is charged with, convicted
of, enters a plea of guilty or no contest to, or
receives a prayer for judgment continued
(PJC) for any of the crimes listed in
Subparagraph (21) of this Paragraph. Upon
notification that a driver or owner was charged
with any of the crimes listed in this Rule, the
Patrol may conduct an independent
administrative investigation. Willful failure to
notify the District First Sergeant as required
herein shall result in removal from the rotation
wrecker service for a minimum of 12 months.
(23) Upon request or demand, the rotation wrecker
shall return personal property stored in or with
a vehicle, whether or not the towing, repair, or
storage fee on the vehicle has been or will be
paid. Personal property, for purposes of this
provision, includes any goods, wares, freight,
or any other property having any value
whatsoever other than the functioning vehicle
itself.
(24) The wrecker service shall tow disabled
vehicles to any destination requested by the
vehicle owner or other person with apparent
authority, after financial obligations have been
finalized.
(25) Unless the vehicle is being preserved by the
Patrol as evidence, the wrecker service shall
allow insurance adjusters access to and allow
inspection of the vehicle at any time during
normal working hours.
(26) Being called by the Patrol, to tow a vehicle,
does not create a contract with or obligation on
the part of Patrol or Patrol personnel to pay
any fee or towing charge except when towing
a vehicle owned by the Patrol, a vehicle that is
later forfeited to the Patrol, or if a court
determines that the Patrol wrongfully
authorized the tow and orders the Patrol to pay
transportation and storage fees.
(27) Being placed on the Patrol Rotation Wrecker
List does not guarantee a particular number or
quantity of calls, does not guarantee an
equivalent number of calls to every wrecker
service on the rotation wrecker list, nor entitle
any wrecker service to any compensation as a
consequence for not being called in
accordance with the list or when removed
from the rotation wrecker list.
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1857
(28) The failure to respond to a call by the Patrol
shall result in the wrecker service being placed
at the bottom of any rotation wrecker list and
the wrecker service shall then be
"automatically by-passed" when that wrecker
service comes up for its next rotation call.
(29) The District First Sergeant or his designee
shall subject rotation wreckers and facilities to
inspections during normal business hours.
(30) A rotation wrecker service, upon accepting a
call for service from the Patrol, must use its
wrecker. Wrecker companies shall not refer a
call to another wrecker company or substitute
for each other.
(31) If a rotation wrecker service moves its
business location or has a change of address,
the owner of the wrecker service must notify
the District First Sergeant of the new address
or location. Notification shall be made in
writing, no later than ten days prior to the
projected move. The wrecker service is not
entitled to receive rotation calls prior to
inspection of the new facility.
(32) A wrecker service may dispatch either a
wrecker or a car carrier "rollback" in response
to a Patrol rotation wrecker call, except where
the wrecker service is advised that a particular
type of recovery vehicle is needed due to
existing circumstances.
(33) A rotation wrecker driver or employee shall
not respond to a Patrol related incident with
the odor of alcohol on his/her breath or while
under the influence of alcohol, drugs or any
impairing substance.
(34) A wrecker service shall have in effect a valid
hook or cargo insurance policy issued by a
company authorized to do business in the State
of North Carolina in the amount of fifty
thousand dollars ($50,000) for each small
wrecker and one hundred fifty thousand
dollars ($150,000) for each large wrecker or as
otherwise required by Federal regulation,
whichever is greater. In addition, each
wrecker service shall have a garage keeper's
insurance policy from an insurance company
authorized to do business in the State of North
Carolina covering towed vehicles in the
amount of one hundred thousand dollars
($100,000).
(b) The District First Sergeant shall conduct an investigation of
each wrecker service desiring to be placed on the Patrol Rotation
Wrecker List and determine if the wrecker service meets the
requirements set forth in this Rule. If the District First Sergeant
determines that a wrecker service fails to satisfy one or more of
the requirements set forth in this Rule, the First Sergeant shall
notify the wrecker service owner of the reason(s) for refusing to
place it on the rotation wrecker list. Any wrecker service that
fails to comply with the requirements of this Rule may be
removed from the rotation wrecker list.
(c) The Troop Commander or designee shall ensure that a
wrecker service will only be included once on each rotation
wrecker list.
(d) If the Troop Commander or designee chooses to use a
contract, zone, or other system administered by a local agency,
the local agency rules govern the system.
(e) If a wrecker service responds to a call it shall be placed at
the bottom of the rotation wrecker list unless the wrecker
service, through no fault of its own, is not used and receives no
compensation for the call. In that event, it shall be placed back
at the top of the rotation list.
History Note: Authority G.S. 20-184; 20-185; 20-187; 20-
188;
Temporary Adoption Eff. June 9, 2000;
Eff. April 1, 2001;
Amended Eff. April 1, 2010; July 18, 2008.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
15A NCAC 12A .0101 ORGANIZATION AND
PURPOSE
The Division of Parks and Recreation manages State Parks and
Recreation Areas, plans for a balanced park and recreation
system, protects the natural diversity of the state; and, promotes
and assists in the provisions of recreation and leisure
opportunities at all service levels--local, state, federal,
commercial, private. The rules in this Chapter govern the access
to and usage of, State Parks and Recreation Areas by visitors.
Park employees, their agents and contractors are exempt from
the provisions of these Rules when performing management
duties. Persons may contact the Division at the following
address:
Director--Division of Parks and Recreation
Department of Environment and Natural Resources
1615 Mail Service Center
Raleigh, North Carolina 27699-1615
History Note: Authority G.S. 113-8; 113-35;
Eff. February 1, 1976;
Amended Eff. Pending RRC approval of other rules; January 1,
1983; April 4, 1979.
15A NCAC 12A .0104 DIRECTORY OF STATE PARKS
AND RECREATION AREAS
State parks and recreation areas under the stewardship of the
Department include the following and the year they were
established, plus any additional units authorized by the General
Assembly pursuant to G.S. 113-44.14:
(1) state rivers:
(a) Linville River, Avery County 1975;
(b) New River, Alleghany and Ashe
Counties 1975;
(c) Horsepasture River, Transylvania
County 1985; and
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24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1858
(d) Lumber River, Scotland, Hoke,
Robeson, and Columbus Counties
1989;
(2) state natural areas:
(a) Mount Jefferson State Natural Area,
Ashe County 1956;
(b) Weymouth Woods Sandhills Nature
Preserve, Moore County 1963;
(c) Theodore Roosevelt State Natural
Area, Carteret County 1971;
(d) Chowan Swamp State Natural Area,
Gates County 1973;
(e) Hemlock Bluffs State Natural Area,
Wake County 1976;
(f) Masonboro Island State Natural Area,
New Hanover County 1976;
(g) Mitchell's Mill State Natural Area,
Wake County 1976;
(h) Bushy Lake State Natural Area,
Cumberland County 1977;
(i) Baldhead Island State Natural Area,
Brunswick County 1979;
(j) Run Hill State Natural Area, Dare
County 1995;
(k) Occoneechee Mountain State Natural
Area, Orange County 1997;
(l) Bullhead Mountain State Natural
Area, Alleghany County 2000;
(m) Lea Island State Natural Area, Pender
County 2000;
(n) Beech Creek Bog State Natural Area,
Watauga County 2002;
(o) Lower Haw River State Natural Area,
Chatham County 2003;
(p) Pineola Bog State Natural Area,
Avery County 2006;
(q) Sugar Mountain Bog State Natural
Area, Avery County 2006;
(r) Sandy Run Savannas State Natural
Area, Pender and Onslow Counties
2006;
(s) Bear Paw State Natural Area, Avery
County 2008; and
(t) Yellow Mountain State Natural Area,
Mitchell and Avery Counties 2008;
(3) state parks:
(a) Mount Mitchell State Park, Yancy
County 1916;
(b) Fort Macon State Park, Carteret
County 1924;
(c) Hanging Rock State Park, Stokes
County 1935;
(d) Morrow Mountain State Park, Stanley
County 1935;
(e) Pettigrew State Park, Tyrrell and
Washington Counties 1936;
(f) Jones Lake State Park, Bladen
County 1939;
(g) Singletary Lake State Park, Bladen
County 1939;
(h) Cliffs of the Neuse State Park, Wayne
County 1945;
(i) William B. Umstead State Park,
Wake County 1945;
(j) Hammocks Beach State Park, Onslow
County 1961;
(k) Lake Norman State Park, Iredell
County 1962;
(l) Pilot Mountain State Park, Surry and
Yadkin Counties 1968;
(m) Carolina Beach State Park, New
Hanover County 1969;
(n) Stone Mountain State Park,
Alleghany and Wilkes Counties 1969;
(o) Raven Rock State Park, Harnett
County 1970;
(p) Crowders Mountain State Park,
Gaston County 1973;
(q) Eno River State Park, Durham and
Orange Counties 1973;
(r) Medoc Mountain State Park, Halifax
County 1973;
(s) Merchants Millpond State Park,
Gates County 1973;
(t) Dismal Swamp State Park, Camden
County 1974;
(u) Goose Creek State Park, Beaufort
County 1974;
(v) Jockeys Ridge State Park, Dare
County 1975;
(w) New River State Park, Alleghany and
Ashe Counties 1975;
(x) Lake Waccamaw State Park,
Columbus County 1976;
(y) South Mountain State Park, Burke
County 1978;
(z) Bay Tree Lake State Park, Bladen
County 1979;
(aa) Lake James State Park, Mc Dowell
and Burke Counties 1987;
(bb) Lumber River State Park, Scotland,
Hoke, Robeson and Columbus
Counties 1989;
(cc) Gorges State Park, Transylvania
County 1999;
(dd) Elk Knob State Park, Watauga and
Ashe Counties 2002;
(ee) Haw River State Park, Rockingham
and Guilford Counties 2003;
(ff) Mayo River State Park, Rockingham
County 2003;
(gg) Carvers Creek State Park,
Cumberland County 2005;
(hh) Chimney Rock State Park,
Rutherford, Polk, Buncombe and
Henderson Counties 2005; and
APPROVED RULES
24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1859
(ii) Grandfather Mountain State Park,
Avery, Watauga and Caldwell
Counties 2009;
(4) state recreation areas:
(a) Kerr Lake State Recreation Area,
Vance and Warren Counties 1952;
(b) Jordan Lake State Recreation Area,
Chatham County 1981;
(c) Falls Lake State Recreation Area,
Wake and Durham Counties 1982;
and
(d) Fort Fisher State Recreation Area,
New Hanover County 1986;
(5) state lakes:
(a) Bay Tree Lake, Bladen County 1929;
(b) Jones Lake, Bladen County 1929;
(c) Lake Phelps, Tyrrell and Washington
Counties 1929;
(d) Salters Lake, Bladen County 1929;
(e) Singletary Lake, Bladen County
1929;
(f) Lake Waccamaw, Columbus County
1929; and
(g) White Lake, Bladen County 1929;
and
(6) state trails:
(a) French Broad River State Trail 1987;
(b) Yadkin River State Trail 1987;
(c) Mountains-to-Sea State Trail 2000;
and
(d) Deep River State Trail 2007.
History Note: Authority G.S. 113-35;
Eff. February 1, 1976;
Amended Eff. Pending RRC approval of other rules; January 1,
1983.
15A NCAC 12B .0201 NATURAL AND CULTURAL
RESOURCE PROTECTION
(a) A person shall not remove, possess, or disturb any plant,
fungus, mineral, living or dead wild animal, or the products
thereof, or any archeological or cultural resource or artifact in
any park area except as otherwise provided in this Section.
(b) Harassing, or intentionally disturbing wildlife and their
nesting, breeding or other activities is prohibited.
(c) The placement or distribution of agricultural products,
natural or processed foods, or any other item for the purpose of
attracting or feeding any wildlife is prohibited.
(d) A person shall not collect any natural or cultural resources
or artifacts from any park area except as authorized by a research
activity permit. A research activity permit for collections shall
be issued only to a representative of a scientific educational
institution, non-profit agency or a State or Federal agency for the
purpose of research, baseline inventories, monitoring, impact
analysis, group study, or museum display when the
superintendent determines that the collection is necessary to the
stated scientific or resource management goals of the institution
or agency and that all applicable Federal and State permits have
been acquired and that the intended use of the specimens and
their final disposal is in accordance with applicable law.
Application for research activity permits shall be made as
provided by Rule .0104 of this Subchapter. A research activity
permit for personal or commercial purposes is prohibited.
History Note: Authority G.S. 113-35;
Eff. February 1, 1976;
Amended Eff: Pending RRC approval of other rules; January 1,
1983.
15A NCAC 12B .0301 BATHING AND SWIMMING
ACTIVITIES: WHERE PROHIBITED
A person shall not bathe, wade, surf, dive, scuba dive or swim in
any waters in any park area except at such times and in such
places as the Division designates.
History Note: Authority G.S. 113-35;
Eff. February 1, 1976;
Amended Eff. Pending RRC approval of other rules; October 1,
1984; January 1, 1983.
15A NCAC 12B .0401 DISPOSAL OF REFUSE:
GARBAGE: ETC.
(a) No one shall dispose of household or business refuse, or
garbage, in any park.
(b) The disposal of vegetable matter, fruits, meat products or
other food substances in other than a park refuse receptacle is
prohibited.
History Note: Authority G.S. 113-35;
Eff. February 1, 1976;
Amended Eff. Pending RRC approval of other rules; October 1,
1984; January 1, 1983.
* * * * * * * * * * * * * * * * * * *
15A NCAC 13A .0107 STDS APPLICABLE TO
GENERATORS OF HAZARDOUS WASTE - PART 262
(a) 40 CFR 262.10 through 262.12 (Subpart A), "General", are
incorporated by reference including subsequent amendments and
editions.
(b) 40 CFR 262.20 through 262.27 (Subpart B), "The Manifest",
are incorporated by reference including subsequent amendments
and editions except that 262.24, 262.25, and 262.26 are not
incorporated by reference.
(c) 40 CFR 262.30 through 262.34 (Subpart C), "Pre-Transport
Requirements", are incorporated by reference including
subsequent amendments and editions.
(d) 40 CFR 262.40 through 262.44 (Subpart D),
"Recordkeeping and Reporting", are incorporated by reference
including subsequent amendments and editions. In addition, a
generator shall keep records of inspections and results of
inspections required by Section 262.34 for at least three years
from the date of the inspection.
(e) 40 CFR 262.50 through 262.58 (Subpart E), "Exports of
Hazardous Waste", are incorporated by reference including
subsequent amendments and editions.
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1860
(f) 40 CFR 262.60 (Subpart F), "Imports of Hazardous Waste",
is incorporated by reference including subsequent amendments
and editions.
(g) 40 CFR 262.70 (Subpart G), "Farmers" is incorporated by
reference including subsequent amendments and editions.
(h) 40 CFR 262.80 through 262.89 (Subpart H), "Transfrontier
Shipments of Hazardous Waste for Recovery within the OECD",
are incorporated by reference including subsequent amendments
and editions, except that 40 CFR 262.89(e) is not incorporated
by reference.
(i) 40 CFR 262.200 through 262.216 (Subpart K), "Alternative
Requirements for Hazardous Waste Determination and
Accumulation of Unwanted Material for Laboratories Owned by
Eligible Academic Entities", is incorporated by reference
including subsequent amendments and editions.
(j)The appendix to 40 CFR Part 262 is incorporated by reference
including subsequent amendments and editions.
History Note: Authority G.S. 130A-294(c); 150B-21.6;
Eff. November 19, 1980;
Amended Eff. December 1, 1988; June 1, 1988; August 1, 1987;
May 1, 1987;
Transferred and Recodified from 10 NCAC 10F .0030 Eff. April
4, 1990;
Amended Eff. August 1, 1990;
Recodified from 15A NCAC 13A .0008 Eff. August 30, 1990;
Amended Eff. April 1, 1993; October 1, 1990;
Recodified from 15A NCAC 13A .0007 Eff. December 20, 1996;
Amended Eff. May 1, 2010; November 1, 2007; January 1, 2007;
April 1, 2001; August 1, 1998.
15A NCAC 13B .0835 SEPTAGE LAND APPLICATION
SITE PERMITS
(a) No person shall establish, or allow to be established on his
land, a septage management facility to, treat, manage, store, or
dispose of septage, or any component of septage, unless a
permit has been obtained from the Division. Disposal of septage
by trenching or burial is prohibited under the rules of this
Section.
(b) Any person that has not operated as a septage land
application site during the previous calendar year shall receive at
least three hours of new land application site operator training
from the Division prior to receiving a permit to operate a septage
land application site.
(c) To apply for a permit for a septage land application site, the
following information shall be submitted to the Division:
(1) Location of the site;
(2) Name, address, and phone number of:
(A) the applicant;
(B) the land owner or the owner's legal
representative in control of the site;
and
(C) the proposed operator;
(3) Written authorization to operate a septage land
application site signed by each landowner (if
other than the permit holder) or his legal
representative;
(4) Types of septage (as defined in G.S. 130A-
290) and the proposed annual volume of each
type of septage proposed for land application
per acre, based on the nutrient management
plan submitted.
(5) Substances other than septage previously
disposed of at this location, and the amounts of
those substances;
(6) Aerial photography extending for a distance of
at least 2500 feet in all directions from the site,
with site property boundaries accurately
depicted. Photograph scale shall be 1" = 400
feet or less;
(7) Alternative plan for the detention or disposal
of septage, during adverse weather conditions;
(8) Treatment method for each type of septage to
be discharged and the permit number of any
treatment facilities;
(9) Vicinity map (county road map) showing the
site location;
(10) A written report that documents compliance
with Rule .0837 of this Section, including, but
not limited to the following: If required by
G.S. 89F, G.S. 89C and G.S. 89E, a licensed
soil scientist, professional engineer, or
licensed geologist shall prepare these
documents. [Note: The North Carolina Board
of Licensing of Soil Scientists, Board of
Examiners for Engineers and Surveyors and
the Board of Licensing of Geologists has
determined, via letters dated November 16,
2009, March 11, 2010 and January 7, 2010,
that preparation of documents pursuant to this
Paragraph constitutes soil science, practicing
engineering, or geology under G.S. 89F, G.S.
89C and G.S. 89E.]
(A) A representative soils analysis (i.e.,
Standard Soil Fertility Analysis),
conducted within the last six months,
on each proposed field of each
proposed land application site. The
Standard Soil Fertility Analysis shall
include, but is not necessarily limited
to: acidity, base saturation (by
calculation), calcium, cation
exchange capacity, exchangeable
sodium percentage (by calculation),
magnesium, manganese, percent
humic matter, pH, phosphorus,
potassium, and sodium;
(B) A total metal analysis for each
proposed field shall be conducted for
arsenic, cadmium, copper, lead,
nickel, selenium, and zinc. A North
Carolina Department of Agriculture
& Consumer Services (NCSA&CS)
mehlich-3 extraction is an acceptable
substitute for a total metal analysis.
Mercury shall be sampled if the
applicant proposes to land apply
domestic or industrial or commercial
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1861
treatment plant septage, or if
warranted by previous site use;
(C) Field description of soil profile(s),
based on examinations of excavation
pits and auger borings, within four
feet of the land surface or to bedrock
describing the following parameters
by individual diagnostic horizons:
thickness of the horizon; texture;
color and other diagnostic features;
structure; internal drainage; depth,
thickness, and type of restrictive
horizon(s); and presence or absence
and depth of evidence of any seasonal
high water table. Applicants may be
required to dig pits when necessary
for proper evaluation of the soils at
the site;
(D) A soil map, scale 1" = 400 feet or
less, delineating major soil mapping
units within each proposed land
application site and showing all
physical features, location of pits and
auger borings, applicable setbacks,
legends, scale, and a north arrow;
(E) If the annual application rate is
proposed to exceed 125,000 gallons
per acre per year field descriptions to
a depth of six feet, shall be required;
and
(F) Global Positioning System (GPS)
data compatible with the
Department's datalogger shall be
provided for proposed sites 30 acres
or more in size.
(11) Applicants proposing to land apply 200,000
gallons per acre per year or more shall provide
a plan for monitoring soil moisture levels and
the depth to seasonal wetness to determine
when land application can occur without
impacting ground water or hydraulic
overloading. The plan shall include
recommendations concerning annual and
instantaneous loading rates of liquids, solids,
other wastewater constituents and amendments
based on in-situ measurement of saturated
hydraulic conductivity in the most restrictive
horizon. If required by G.S. 89C, G.S. 89F and
G.S. 89E, a professional engineer, licensed soil
scientist or licensed geologist shall prepare
these documents. [Note: The North Carolina
Board of Examiners for Engineers and
Surveyors, Board of Licensing of Soil
Scientists and the Board of Licensing of
Geologists has determined, via letters dated
March 11, 2010, November 16, 2009 and
January 7, 2010, that preparation of documents
pursuant to this Paragraph constitutes
practicing engineering, soil science or
geology, under G.S. 89C, G.S. 89F and G.S.
89E.]
(12) Nutrient management plan, prepared by a
Technical Specialist, including at least the
following:
(A) Crops that will be planted on the site,
including cover crops, and where
each crop will be planted. Crop
planting locations shall be depicted
on an aerial photograph or on a plat
map (scale 1" = 400 feet or less);
(B) Nitrogen needs of the crops based on
the realistic yield expectations for the
soils on the site, and crop
management practices proposed;
(C) Crop stand density required to meet
the realistic yield expectations for the
proposed crop;
(D) Approximate crop planting times and
the seeding or sprigging rates for
crops to be established;
(E) Crop harvest frequency appropriate
for the proposed realistic yield
expectations and nitrogen needs, and
approximate crop harvest times;
(F) Approximate monthly discharge rate
to match the nitrogen needs and
potential uptake of the crop;
(G) Sites proposed to receive more than
50,000 gallons per acre per year of
domestic septage, or domestic or
industrial or commercial treatment
plant septage shall include nitrogen
carry over when determining annual
application rates;
(H) Weed control recommendations;
(I) Crop use or removal;
(J) Results from at least four samples of
treated septage if the application is
proposing an increased application
rate for the land application of
septage treated to reduce nutrients;
(K) A Technical Specialist is not required
for nutrient management plans for
subsequent applications that do not
contain changes that would affect
nutrient uptake; and
(L) All nutrient management plans shall
bear the signature of the site operator.
(13) Application rates for sites proposed to receive
treated septage shall be determined based on
the most limiting nutrient;
(14) Erosion and runoff management plan showing:
(A) Buffer locations and widths based on
the direction and amount of slope
adjacent to the land application site;
(B) Vegetation type and stand density in
the buffer areas; and
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24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1862
(C) Buffer maintenance fertility
requirements.
(15) Proposed land application method,
(16) Proposed distribution plan if required in
Paragraph (e) of Rule .0837 of this Section;
(17) Sites proposing to use spray irrigation as a
land application method shall include:
(A) The location of all fixed irrigation
heads or the location of traveling gun
irrigation lanes;
(B) Irrigation head spacing and traveling
gun lane spacing shall be determined
based on standards in NC
Cooperative Extension Documents
AG-553-6 and AG-553-7 or other
similar publications;
(C) The size of all spray nozzles;
(D) System operating pressure at the
irrigation head;
(E) Calculation of the wettable acres vs.
permitted acreage;
(F) Calibration methods and frequency;
and
(G) Irrigation system operation and
maintenance plan.
(18) Demonstration from the appropriate State or
Federal Government agency that the land
application site complies with Paragraph (g) of
Rule .0837 of this if any part of the site
specified for land application is not
agricultural land;
(19) The date, location, number of hours, and
provider of annual septage land application
site operator training required in accordance
with G.S. 130A-291.3(b);
(20) Technical information pertinent to the
suitability of the proposed site;
(21) An applicant who proposes to land apply
septage, as defined in G.S. 130A-290, on a
public contact site, shall provide the Division
evidence of adequate public notice and the
applicant shall have successfully completed
the Land Application of Residuals and
Biosolids Course and maintain a Land
Application of Residuals Certificate given by
the Department of Environment and Natural
Resources; and
(22) An applicant who proposes to land apply
commercial/industrial treatment plant septage
or domestic treatment plant septage, as defined
in G.S. 130A-290, shall have successfully
completed the Land Application of Residuals
and Biosolids Course and maintain a Land
Application of Residuals Certificate given by
the Department of Environment and Natural
Resources; and
(23) An applicant who proposes to land apply
septage, as defined in G.S. 130A-290, in
excess of 50,000 gallons per acre per year
shall provide the Division with evidence of
adequate public notice which shall at a
minimum be publication in a local newspaper,
shall have successfully completed the Land
Application of Residuals and Biosolids Course
and maintain a Land Application of Residuals
Certificate issued by the Department of
Environment and Natural Resources.
(d) Application rates for septage in excess of 50,000 gallons per
acre per year and permits to land apply domestic, or industrial or
commercial treatment plant septage shall not be granted to
persons who have not demonstrated that they can properly
operate a septage land application site for at least a 12 month
period.
(e) Applications shall be submitted to the Division of Waste
Management, Solid Waste Section, 1646 Mail Service Center,
Raleigh NC 27699-1646. Applications for permits will not be
reviewed until all parts of the application have been completed
and submitted to the Division.
(f) Applications for sites or treatment methods which do not
meet the standards in accordance with this Section shall be
denied.
(g) Applications for renewal permits shall be submitted to the
Division at least 90 days prior to the expiration date of the
permit. The Division shall notify permit holders of facility
permit expiration dates 120 days prior to permit expiration.
(h) Applications for permit modification shall be required for
the following changes:
(1) Permitted area or field boundaries;
(2) Property ownership;
(3) Annual application rates;
(4) Receiver crop; or
(5) Types of septage discharged.
(i) Applications for renewal permits submitted in accordance
with Paragraph (g) of this Rule and applications for permit
modifications shall not be required to resubmit the information
required in Subparagraphs (c)(6), (8), (9), (10), (16), (17), and
(18) unless changes are made in those plans.
(j) Septage land application site permits are not transferable.
(k) Maximum permit duration including renewals is five years.
(l) Issuance of a permit does not relieve the permit holder of the
responsibility of obtaining applicable zoning approvals prior to
operation of the site.
History Note: Authority G.S. 130A-291.1;
Eff. May 1, 2010.
15A NCAC 13B .0836 SEPTAGE DETENTION AND
TREATMENT FACILITY PERMITS
(a) No person, shall establish on his land, or allow to be
established on his land, a septage detention facility, unless a
permit for the facility has been obtained from the Division or the
facility is operating in accordance with a NPDES permit issued
by the NC Division of Water Quality.
(b) Septage detention and treatment facilities shall be designed,
located, constructed, and operated in accordance with the
standards specified in Rule .0841 of this Section.
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24:21 NORTH CAROLINA REGISTER MAY 3, 2010
1863
(c) To apply for a permit for a septage detention or treatment
facility the applicant shall submit the following information to
the Division:
(1) Name, address, and phone number of
(A) the applicant;
(B) land owner or the owner's legal
representative in control of the site;
and
(C) the proposed operator;
(2) Location of the facility;
(3) Vicinity map or county road map showing the
site location;
(4) Types of septage to be stored or treated;
(5) A description of the facility including the size,
number, and type of structures to be used at
the site and construction materials to be used;
(6) An explanation of the methods for discharge
into and removal from the detention or
treatment facility, the methods for treating
leaks or spills at the site, and methods for odor
control;
(7) Septage land application site permit number
and the name of any wastewater treatment
plant(s) where the septage will be disposed;
(8) Written documentation of acceptable locations
to manage any solid or liquid wastes generated
at a treatment facility;
(9) An aerial photograph, extending for a distance
of at least 1,000 feet in all directions from the
site property lines, scale 1" = 400 feet or less;
(10) Written authorization to operate a septage
detention or treatment facility signed by each
landowner (if other than the permit holder) or
his legal representative; and
(11) Technical information pertinent to the
suitability of the proposed facility.
(d) To apply for a permit to construct a septage treatment
facility and obtain an interim permit to operate the facility, for a
period not to exceed 12 months, plans and specifications shall be
submitted. If required by G.S. 89C, a professional engineer shall
prepare these documents. [Note: The North Carolina Board of
Examiners for Engineers and Surveyors has determined, via
letter and resolution dated March 11, 2010, that preparation of
engineering design documents pursuant to this Paragraph
constitutes practicing engineering under G.S. 89C.]
(e) Treatment shall include, but not be limited to, aerobic or
anaerobic digestion, dewatering or thickening, pressing,
centrifuging, the use of organisms or enzymes, and pathogen
reduction methods or vector attraction reduction methods other
than lime stabilization. In addition to the requirements of
Paragraph (c) of this Rule, the plans shall include:
(1) Site plan at a scale appropriate to show the
detail of the facility, but in no case greater than
100 feet per inch;
(2) Engineering plans for the entire system,
including treatment, storage, and disposal
equipment, and containment structures;
(3) Detail drawings shall be at a scale appropriate
to show pumps, tanks, valves, controls, meters,
pipes, and other items critical to the operation
of the facility;
(4) An operation and maintenance manual
outlining information and instruction on how
the facility is to be operated, equipment
maintenance, required safety and personnel
training, and an outline of reports to be
submitted to the Division. Contingency plans
shall be included to add