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This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER VOLUME 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 APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 1850 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. APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 1851 (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 APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 1852 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 APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 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 APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 1854 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 APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 1855 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; APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 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. APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 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 APPROVED RULES 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. APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 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 APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 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 APPROVED RULES 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. APPROVED RULES 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
Object Description
Description
Title | North Carolina register |
Date | 2010-05-03 |
Description | Vol. 24, Issue 21 (May 3, 2010) |
Digital Characteristics-A | 14 MB; 124 p. |
Digital Format | application/pdf |
Full Text | 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 APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 1850 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. APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 1851 (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 APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 1852 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 APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 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 APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 1854 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 APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 1855 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; APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 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. APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 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 APPROVED RULES 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. APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 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 APPROVED RULES 24:21 NORTH CAROLINA REGISTER MAY 3, 2010 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 APPROVED RULES 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. APPROVED RULES 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 |
OCLC number | 13686205 |