NORTH CAROLINA
REGISTER
Volume 15, Issue 22
Pages 1852 - 1897
May 15, 2001
This issue contains documents officially filed
through April 24, 2001.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
6714 Mail Service Center
Raleigh, NC 27699-6714
(919) 733-2678
FAX (919) 733-3462
Julian Mann III, Director
Camille Winston, Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Linda Dupree, Editorial Assistant
Dana Sholes, Editorial Assistant
Rhonda Wright, Editorial Assistant
IN THIS ISSUE
I. IN ADDITION
Elections, Board of, Written Opinions......................1852 - 1854
II. RULE-MAKING PROCEEDINGS
Environment and Natural Resources
Coastal Resources Commission...............................1857 - 1858
Environmental Management.....................................1855 - 1857
Marine Fisheries Commission..................................1857
Licensing Boards
Appraisal Board ..........................................................1859
General Contractors ...................................................1858 - 1859
Pharmacy, Board of ...................................................1859
III. PROPOSED RULES
Environment and Natural Resources
Marine Fisheries Commission..................................1862 - 1864
Health and Human Services
Mental Health, Developmental Disabilities
And Substance Abuse Services ..........................1860 - 1862
State Personnel
State Personnel Commission....................................1864 - 1869
IV. TEMPORARY RULES
Environment and Natural Resources
Environmental Management.....................................1877 - 1880
Marine Fisheries Commission..................................1880 - 1883
Health and Human Services
Facilities Services .......................................................1870 - 1874
Medical Care Commission........................................1874 - 1877
V. RULES REVIEW COMMISSION..........................1884 - 1885
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions.................................................1886 - 1897
VII. CUMULATIVE INDEX .............................................1 - 85
North Carolina Register is published semi -monthly for $195 per year by the Office of Administrative Hearings, 424
North Blount Street, Raleigh, NC 27601. North Carolina Register (ISSN 15200604) to mail at Periodicals Rates is paid
at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register, 6714 Mail Service Center,
Raleigh, NC 27699-6714.
NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM
The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and
chapters, are mandatory. The major subdivision of the NCAC is the title. Each major department in the North
Carolina executive branch of government has been assigned a title number. Titles are further broken down into
chapters which shall be numerical in order. The other two, subchapters and sections are optional subdivisions to
be used by agencies when appropriate.
TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE DEPARTMENT LICENSING BOARDS CHAPTER
1
2
3
4
5
6
7
8
9
10
11
12
13
14A
15A
16
17
18
19A
20
*21
22
23
24
25
26
27
28
Administration
Agriculture
Auditor
Commerce
Correction
Council of State
Cultural Resources
Elections
Governor
Health and Human Services
Insurance
Justice
Labor
Crime Control & Public Safety
Environment and Natural Resources
Public Education
Revenue
Secretary of State
Transportation
Treasurer
Occupational Licensing Boards
Administrative Procedures (Repealed)
Community Colleges
Independent Agencies
State Personnel
Administrative Hearings
NC State Bar
Juvenile Justice and Delinquency
Prevention
Acupuncture
Architecture
Athletic Trainer Examiners
Auctioneers
Barber Examiners
Certified Public Accountant Examiners
Chiropractic Examiners
Employee Assistance Professionals
General Contractors
Cosmetic Art Examiners
Dental Examiners
Dietetics/Nutrition
Electrical Contractors
Electrolysis
Foresters
Geologists
Hearing Aid Dealers and Fitters
Landscape Architects
Landscape Contractors
Massage & Bodywork Therapy
Marital and Family Therapy
Medical Examiners
Midwifery Joint Committee
Mortuary Science
Nursing
Nursing Home Administrators
Occupational Therapists
Opticians
Optometry
Osteopathic Examination & Reg. (Repealed)
Pastoral Counselors, Fee-Based Practicing
Pharmacy
Physical Therapy Examiners
Plumbing, Heating & Fire Sprinkler Contractors
Podiatry Examiners
Professional Counselors
Psychology Board
Professional Engineers & Land Surveyors
Real Estate Appraisal Board
Real Estate Commission
Refrigeration Examiners
Sanitarian Examiners
Social Work Certification
Soil Scientists
Speech & Language Pathologists & Audiologists
Substance Abuse Professionals
Therapeutic Recreation Certification
Veterinary Medical Board
1
2
3
4
6
8
10
11
12
14
16
17
18
19
20
21
22
26
28
30
31
32
33
34
36
37
38
40
42
44
45
46
48
50
52
53
54
56
57
58
60
62
63
69
64
68
65
66
Note: Title 21 contains the chapters of the various occupational licensing boards.
NORTH CAROLINA REGISTER
Publication Schedule for July 2000 – June 2001
Filing Deadlines
Notice of
Rule-Making
Proceedings
Notice of Text Temporary
Rule
volume &
issue
number
issue date last day
for filing
earliest register
issue for
publication of
text
earliest
date for
public
hearing
end of
required
comment period
deadline to
submit to RRC
for review at
next meeting
first legislative
day of the next
regular session
end of
required
comment
period
deadline to
submit to RRC
for review at
next meeting
first legislative
day of the next
regular session
270th day
from issue
date
15:13 01/02/01 12/07/00 03/15/01 01/17/01 02/01/01 02/20/01 05/00/02 03/05/01 03/20/01 05/00/02 09/29/01
15:14 01/16/01 12/20/00 04/02/01 01/31/01 02/15/01 02/20/01 05/00/02 03/19/01 03/20/01 05/00/02 10/13/01
15:15 02/01/01 01/10/01 04/02/01 02/16/01 03/05/01 03/20/01 05/00/02 04/02/01 04/20/01 05/00/02 10/29/01
15:16 02/15/01 01/25/01 05/01/01 03/02/01 03/19/01 03/20/01 05/00/02 04/16/01 04/20/01 05/00/02 11/12/01
15:17 03/01/01 02/08/01 05/01/01 03/16/01 04/02/01 04/20/01 05/00/02 04/30/01 05/21/01 05/00/02 11/26/01
15:18 03/15/01 02/22/01 05/15/01 03/30/01 04/16/01 04/20/01 05/00/02 05/14/01 05/21/01 05/00/02 12/10/01
15:19 04/02/01 03/12/01 06/01/01 04/17/01 05/02/01 05/21/01 05/00/02 06/01/01 06/20/01 05/00/02 12/28/01
15:20 04/16/01 03/26/01 06/15/01 05/01/01 05/16/01 05/21/01 05/00/02 06/15/01 06/20/01 05/00/02 01/11/02
15:21 05/01/01 04/10/01 07/02/01 05/16/01 05/31/01 06/20/01 05/00/02 07/02/01 07/20/01 05/00/02 01/26/02
15:22 05/15/01 04/24/01 07/16/01 05/30/01 06/14/01 06/20/01 05/00/02 07/16/01 07/20/01 05/00/02 02/09/02
15:23 06/01/01 05/11/01 08/01/01 06/18/01 07/02/01 07/20/01 05/00/02 07/31/01 08/20/01 05/00/02 02/26/02
15:24 06/15/01 05/25/01 08/15/01 07/02/01 07/16/01 07/20/01 05/00/02 08/14/01 08/20/01 05/00/02 03/12/02
16:01 07/02/01 06/11/01 09/04/01 07/17/01 08/01/01 08/20/01 05/00/02 08/31/01 09/20/01 05/00/02 03/29/02
16:02 07/16/01 06/22/01 09/17/01 07/31/01 08/15/01 08/20/01 05/00/02 09/14/01 09/20/01 05/00/02 04/12/02
16:03 08/01/01 07/11/01 10/01/01 08/16/01 08/31/01 09/20/01 05/00/02 10/01/01 10/22/01 05/00/02 04/28/02
16:04 08/15/01 07/25/01 10/15/01 08/30/01 09/14/01 09/20/01 05/00/02 10/15/01 10/22/01 05/00/02 05/12/02
16:05 09/04/01 08/13/01 11/15/01 09/19/01 10/04/01 10/22/01 05/00/02 11/05/01 11/20/01 05/00/02 06/01/02
16:06 09/17/01 08/24/01 12/03/01 10/02/01 10/17/01 10/22/01 05/00/02 11/16/01 11/20/01 05/00/02 06/14/02
16:07 10/01/01 09/10/01 12/03/01 10/16/01 10/31/01 11/20/01 05/00/02 11/30/01 12/20/01 05/00/02 06/28/02
16:08 10/15/01 09/24/01 12/17/01 10/30/01 11/14/01 11/20/01 05/00/02 12/14/01 12/20/01 05/00/02 07/12/02
16:09 11/01/01 10/11/01 01/02/02 11/16/01 12/03/01 12/20/01 05/00/02 12/31/01 01/21/02 05/00/02 07/29/02
16:10 11/15/01 10/24/01 01/15/02 11/30/01 12/17/01 12/20/01 05/00/02 01/14/02 01/21/02 05/00/02 08/12/02
16:11 12/03/01 11/07/01 02/01/02 12/18/01 01/02/02 01/22/02 05/00/02 02/01/02 02/20/02 05/00/02 08/30/02
16:12 12/17/01 11/26/01 02/15/02 01/02/02 01/16/02 01/22/02 05/00/02 02/15/02 02/20/02 05/00/02 09/13/02
non-substantial economic impact substantial economic impact
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling. Time is
computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be
published twice a month and contains the
following information submitted for
publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceed-ings;
(3) text of proposed rules;
(4) text of permanent rules approved by
the Rules Review Commission;
(5) notices of receipt of a petition for
municipal incorporation, as required
by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S.
Attorney General concerning
changes in laws affecting voting in a
jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as
required by G.S. 120-30.9H;
(8) orders of the Tax Review Board
issued under G.S. 105-241.2; and
(9) other information the Codifier of
Rules determines to be helpful to the
public.
COMPUTING TIME: In computing time
in the schedule, the day of publication of
the North Carolina Register is not included.
The last day of the period so computed is
included, unless it is a Saturday, Sunday, or
State holiday, in which event the period
runs until the preceding day which is not a
Saturday, Sunday, or State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published
on the first and fifteen of each month if the
first or fifteenth of the month is not a
Saturday, Sunday, or State holiday for
employees mandated by the State
Personnel Commission. If the first or
fifteenth of any month is a Saturday,
Sunday, or a holiday for State employees,
the North Carolina Register issue for that
day will be published on the day of that
month after the first or fifteenth that is not
a Saturday, Sunday, or holiday for State
employees.
LAST DAY FOR FILING: The last day
for filing for any issue is 15 days before the
issue date excluding Saturdays, Sundays,
and holidays for State employees.
NOTICE OF RULE-MAKING
PROCEEDINGS
END OF COMMENT PERIOD TO A
NOTICE OF RULE-MAKING
PROCEEDINGS : This date is 60 days from
the issue date. An agency shall accept
comments on the notice of rule-making
proceeding until the text of the proposed rules
is published, and the text of the proposed rule
shall not be published until at least 60 days
after the notice of rule-making proceedings
was published.
EARLIEST REGISTER ISSUE FOR
PUBLICATION OF TEXT: The date of the
next issue following the end of the comment
period.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC
HEARING: The hearing date shall be at
least 15 days after the date a notice of the
hearing is published.
END OF REQUIRED COMMENT
PERIOD
(1) RULE WITH NON-SUBSTANTIAL
ECONOMIC IMPACT: An agency shall
accept comments on the text of a proposed
rule for at least 30 days after the text is
published or until the date of any public
hearings held on the proposed rule,
whichever is longer.
(2) RULE WITH SUBSTANTIAL
ECONOMIC IMPACT: An agency shall
accept comments on the text of a proposed
rule published in the Register and that has
a substantial economic impact requiring a
fiscal note under G.S. 150B-21.4(b1) for
at least 60 days after publication or until
the date of any public hearing held on the
rule, whichever is longer.
DEADLINE TO SUBMIT TO THE
RULES REVIEW COMMISSION:
The Commission shall review a rule
submitted to it on or before the twentieth
of a month by the last day of the next
month.
FIRST LEGISLATIVE DAY OF THE
NEXT REGULAR SESSION OF THE
GENERAL ASSEMBLY: This date is
the first legislative day of the next regular
session of the General Assembly
following approval of the rule by the
Rules Review Commission. See G.S.
150B-21.3, Effective date of rules.
IN ADDITION
15:22 NORTH CAROLINA REGISTER May 15, 2001
1852
This Section contains public notices that are required to be published in the Register or have been approved by the
Codifier of Rules for publication.
STATE BOARD OF ELECTIONS
6400 Mail Service Center ? Raleigh, NC 27699-6400
GARY O. BARTLETT Mailing Address:
Director
PO Box 2169
Raleigh, NC 27602-2169
(919) 733-7173
Fax (919) 715-0135
February 28, 2001
Mr. Ferrell Blount
Southern Republican Leadership Conference 2002
PO Box 12949
Raleigh, NC 27605
Re: Southern Republican Leadership Conference 2002
Dear Mr. Blount,
Your letter dated February 22, 2001 details the plans for the Southern Republican Leadership Conference 2002 (SRLC) and
requests a ruling pursuant to G. S. 163-278.23.
Contingent upon all the assurances and performances set out in your letter, SRLC will not be required to file a report
disclosing the finances of the conference. The more important assurances given are as follow:
·  The SRLC will be an independent business entity with separate accounts from the North Carolina Republican Party.
·  All funds raised from corporations will be solicited by SRLC and spent on the actual conference.
·  The North Carolina Republican Party will collect registration fees and will not solicit or accept any registration fees from any
business entity.
·  Any potential revenue derived by the North Carolina Republican Party will come totally from individual participants.
The November 1, 1989 letter of this office from Executive Secretary-Director Alex K. Brock to Mr. R. Jack Hawke and the
October 31, 1989 letter of Mr. Hawke to this office, are attached and are incorporated into this opinion by reference.
If any of the circumstances of the 2002 SRLC conference set out in your recent letter change, please contact this office.
Sincerely,
Gary O. Bartlett
Executive Secretary-Director
Attachments: Your letter of February 22, 2001
Letter of Mr. Jack Hawke of October 31, 1989
This office's letter of November 1, 1989
cc: North Carolina Republican Party
IN ADDITION
15:22 NORTH CAROLINA REGISTER May 15, 2001
1853
STATE BOARD OF ELECTIONS
6400 Mail Service Center ? Raleigh, NC 27699-6400
GARY O. BARTLETT Mailing Address:
Director
PO Box 2169
Raleigh, NC 27602-2169
(919) 733-7173
Fax (919) 715-0135
April 18, 2001
Mr. Duane Royal
Treasurer Sampson County Republican Party
PO Box 1325
Clinton, NC 28328
RE: Donation Use as to Party Headquarters
Dear Mr. Royal,
Your letter of March 29, 2001 requests guidance for political party building fund donation use and a ruling pursuant to GS 163 -278.23. We welcome your request in
order to have the opportunity to provide more detail to all parties as to this issue.
GS 163-278.19B controls the issue of donations to political party headquarters building funds. Please note (4) of that statute that specifically prohibits the use of
building funds to pay utilities or to purchase equ ipment other than fixtures. Only expenditures authorized by GS 63-278.19B(4) may be made from the building fund.
As such, the building fund can not be used to:
(1) Pay utilities
(2) Purchase furniture unless it becomes a fixture
(3) Purchase computers or related information technology items unless they become fixtures
A display case affixed to the building would be a fixture, which could be paid for out of the building fund. A fixture is an item attached to realty to which an
expectation attaches that it will stay on or in the real estate. This would include light fixtures, sinks, bathtubs, commodes, heating and air conditioning systems, built -
in kitchen appliances, wallpaper or paint, installed carpet or flooring, widow dressings, and other similar type items.
Since furniture and computers are not fixtures, they are not allowed to be paid under the provisions of GS 63 -278.19(B). Thus the prohibition against contributions
from corporations and business entities would come into play to make in -kind donations, of these types and from the list above, from businesses unlawful. In -kind
donations by businesses of items and services allowed to be paid from a political party building fund would be lawful.
This office would interpret the "renovation" language fou nd in the statute to allow repairs and maintenance to the building and fixtures (both as to the cost of materials
and labor) to be paid for out of a political party building fund. Maintenance would also include pest control, lawn -care, and landscaping for the headquarters. Business
entities would be able to provide funds or in-kind donations for these maintenance and repair needs as per the provisions of GS 163 -278.19A.
This office would interpret that maintenance of the building would also include the cos ts of maintaining property insurance upon it and fixtures, but would exclude
liability coverage and personal property coverage on non -fixture contents. Thus it may be necessary that the insurance premium on the party headquarters be
unbundled so as to determine the actual cost of property coverage to the building and fixtures.
The payment of property tax upon the building and its fixtures from the building fund will be allowed by this office, based upon the fact that the payment of such
taxes are necessary to maintain the building ownership in the political party, and that tax payments are often covered in escrow accounts paid into jointly with the
allowable mortgage payment. Since items of personal property can not be bought with building fund monies, the tax on personal property can not be paid from the
building fund.
Based upon a review of building fund reports filed with this office, it appears that disbursements from building funds for personal property have been made. Notice is
hereby given that this office will not review building fund reports for enforcement purposes for a period until July 1, 2001 to allow political party organizations to
amend their building fund reports to reflect corrected disbursements. The parties are allowed, as well, to amend their reports to reflect additional retroactive
disbursements from building funds based upon any allowance of the same contained in this opinion. I would also ask the state parties headquarters staff to share this
information with counties that have or plan to have county headquarters.
Sincerely,
Gary O. Bartlett
Executive Secretary-Director
Cc: North Carolina Democratic Party
Cc: North Carolina Republican Party
Cc: North Carolina Libertarian Party
IN ADDITION
15:22 NORTH CAROLINA REGISTER May 15, 2001
1854
STATE BOARD OF ELECTIONS
6400 Mail Service Center ? Raleigh, NC 27699-6400
GARY O. BARTLETT Mailing Address:
Director
PO Box 2169
Raleigh, NC 27602-2169
(919) 733-7173
Fax (919) 715-0135
October 8, 1998
Mr. George E. Wilson, Treasurer
Sampson County Republican Party
PO Box 1325
Clinton, NC 28328
Re: Advisory Ruling issued under G.S. 163-278.23
Dear Mr. Wilson:
In your letter dated September 29, 1998, you state that the Sampson County Republican Party is in the process of totally
renovating the headquarters it owns. New bathrooms, kitchen area, heat & air conditioning, new lighting, store front, ceiling, carpet,
walls, and other items have been built and paid for from the Building Fund. The request for a ruling is to determine is whether or not
building fun money can be used to purchase appliances, desks, chairs, telephone system, and etc.
An October 7, 1994 opinion on "Political Party Building Funds" permitted State political parties to accept contributions from
business entities, including corporations into a separate segregated building fund. Provided district and county executive committees
strictly adhere to the provisions, district and county executive committee building funds may accept business contributions. The
provisions are as follows:
1. Business contributions solicited and accepted are designated for the building fund.
2. Potential business contributors are advised that all business contributions will be exclusively for the building fund.
3. A separate segregated bank account in which only business contributions designated for the building fund will be
deposited is established.
4. The funds deposited in that separate account will be expended only to purchase or construct, or in payment of the
mortgage, for a headquarters, or to refund contributions if a facility is not acquired.
5. No business funds received will be used for the purpose of influencing Federal, State, or local elections.
6. No limit, other than on a voluntary basis, is placed on the amount of the business contributions, individual or collectively,
to the building fund.
7. The building fund contributions and expenditures shall be disclosed to the public in an annual report filed at the Campaign
Reporting Office, no later than the last Friday in January of the following year.
The opinion gave particular attention to the fact that the building fund ruling does not allow either monetary or in -kind
contributions from any business entity for headquarters rent and utilities, either as a part of a building fund or into any political party
fund or bank account.
After careful review, and considering that the opinion provides for a building fund to receive business contributions only to
purchase or construct or in payment of the mortgage for a headquarters, or to refund contributions if a facility is not acquired, the
response must be no. The Building Fund cannot be used to purchase equipment and furnishings for headquarters and should refund
any business contributions that remain after reconstruction is complete and any mortgage is paid.
I am sorry this ruling is unfavorable. However, the Sampson County Republican Party may certainly pay for equipment and
furnishings from its treasury account holding funds contributed by individuals from their personal funds.
Very truly yours,
Gary O. Bartlett
Executive Secretary-Director
RULE-MAKING PROCEEDINGS
15:22 NORTH CAROLINA REGISTER May 15, 2001
1855
A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The
agency must publish a notice of the subject matter for public comment at least 60 days prior to publishing the
proposed text of a rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be
found in the Register under the section heading of Temporary Rules. A Rule -making Agenda published by an agency
serves as Rule -making Proceedings and can be found in the Register under the section heading of Rule -making
Agendas. Statutory reference: G.S. 150B-21.2.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
CHAPTER 02 – ENVIRONMENTAL MANAGEMENT
Notice of Rule-making Proceedings is hereby given by the
Environmental Management Commission in accordance with
G.S. 150B-21.2. The agency shall subsequently publish in the
Register the text of the rule(s) it proposes to adopt as a result
of this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rule Affected by this Rule-making:
15A NCAC 02B .0304 - Other rules may be proposed in the
course of the rule-making process.
Authority for the Rule-making: G.S. 143-214.1; 143-215.1;
143-215.3(a)(1)
Statement of the Subject Matter: The Environmental
Management Commission (EMC) is proposing to reclassify a
portion of the North Toe River in Avery and Mitchell Counties
(French Broad River Basin) from Class C Tr (Trout) to Water
Supply-V Tr.
Reason for Proposed Action: The Town of Spruce Pine has
requested that the headwaters above their WS-IV North Toe
River Water Supply Watershed and associated tributaries in
Avery County (French Broad River Basin) be reclassified from
Class C Tr to WS-V Tr. The segment of the river which is
requested for reclassification extends from a point located
approximately 4.5 miles due north of the Avery
County/Mitchell County line to the headwaters (source); this
point is also the upper boundary of a WS-IV water supply
watershed (which extends downstream to the Spruce Pine
water supply intake). Thus, in this case, no intake or critical
area for an intake is located nor is proposed to be located in
the waters to be reclassified. The Town’s current water supply
intake, critical area, and protected area will not be altered,
but all waters above and draining to the water supply
watershed will be reclassified; this proposed area comprises
the northernmost portion of the North Toe River. The
tributaries flowing into the part of the North Toe River to be
reclassified are currently Class C Tr or Class C, and these
tributaries are proposed to be reclassified to WS-V Tr and
WS-V, respectively. The Public Water Supply (PWS) Section
of the NC Division of Environmental Health (DEH) has given
the Town of Spruce Pine permission to pursue expansion of
their water treatment plant, and as part of this process, the
town was required by the NC DEH PWS Section to request
this reclassification. Avery County, the Town of Newland, and
Mitchell County are the three local governments to be
affected. No confirmation that the water is suitable for
treatment for potable use was required from the PWS Section,
and DWQ did not collect water samples from the waters to be
reclassified in order to determine if these waters meet the
water quality standards required by a WS-V classification;
this confirmation and sampling were not required because the
waters proposed to be reclassified are located above a current
water supply (WS-IV) intake, and therefore met water quality
standards for a water supply classification. In addition, all
the waters proposed to be reclassified had a water supply
classification in 1994; due to a following court decision and
an EMC rule reinterpretation, the water supply classifications
of some of these waters were removed. Furthermore, staff
with the PWS Section is not aware of any new discharges or
pollution sources in the waters proposed for reclassification
since an earlier sanitary survey of those waters was done in
1990. If reclassified, more stringent water quality standards
will apply to the waters to be reclassified. However, due to the
past classification history of these waters, the NPDES
discharges into these waters currently meet these more
stringent water quality standards. Nevertheless, any new
NPDES discharges will need to comply with these more
stringent standards. In addition, DOT Best Management
Practices (BMPs) will need to be applied as practical for WS-V
waters (whereas no DOT BMPs are required for Class C
waters).
Comment Procedures: The purpose of this announcement is
to encourage those interested in this proposal to provide
written comments. Written comments, data, or other
information relevant to this proposal can be submitted. It is
very important that all interested and potentially affected
persons or parties make their views known to the
Environmental Management Commission whether in favor or
opposed to an and all provisions of the proposal being
noticed. Written comments may be submitted to Elizabeth
Kountis, DENR/Division of Water Quality, Planning Branch,
1617 Mail Service Center, Raleigh, NC 27699-1617, or by
calling Elizabeth Kountis at (919) 733-5083, ext. 369.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
CHAPTER 02 – ENVIRONMENTAL MANAGEMENT
Notice of Rule-making Proceedings is hereby given by the
Environmental Management Commission in accordance with
G.S. 150B-21.2. The agency shall subsequently publish in the
Register the text of the rule(s) it proposes to adopt as a result
of this notice of rule-making proceedings and any comments
received on this notice.
RULE-MAKING PROCEEDINGS
15:22 NORTH CAROLINA REGISTER May 15, 2001
1856
Citation to Existing Rule Affected by this Rule-making:
15A NCAC 02B .0304 - Other rules may be proposed in the
course of the rule-making process.
Authority for the Rule-making: G.S. 143-214.1; 143-215.1;
143-215.3(a)(1)
Statement of the Subject Matter: The Environmental
Management Commission (EMC) is proposing to reclassify
the French Broad River (Transylvania, Henderson,
Buncombe, and Madison Counties) in the French Broad River
Basin from Class C/C Tr (Trout)/Water Supply-IV/Water
Supply-IV CA (Critical Area) to Class B (Primary
Recreation)/B Tr/Water Supply-IV & B/Water Supply-IV CA &
B. The EMC is also proposing to reclassify the Nolichucky
River (Mitchell and Yancey Counties) in the French Broad
River Basin from Class C to Class B.
Reason for Proposed Action: Asheville Regional Office
DWQ staff requested reclassification of the French Broad
River (Transylvania, Henderson, Buncombe, and Madison
Counties; French Broad River Basin) and Nolichucky River
(Mitchell and Yancey Counties; French Broad River Basin) to
Class B. More specifically, the French Broad River is to be
reclassified from Class C/C Tr/WS-IV/WS-IV CA to Class B/B
Tr/WS -IV&B/WS -IV CA&B, and the Nolichucky River would
be reclassified from Class C to Class B. This reclassification
consists of the entire French Broad River main stem including
the main stems of its four headwater forks as well as the Bent
Creek watershed (below Lake Powhatan dam) and Davidson
River watershed, and the entire Nolichucky River main stem
including the North Toe River main stem from S.R.1187 (near
Toecane) to its confluence with the Nolichucky River.
Approximately 160 and 23 river miles exist within the
proposed French Broad River and Nolichucky River
reclassification area, respectively. The purpose of this Rule
change is to protect the existing waters’ primary recreation
uses. Primary recreation means swimming, skin diving,
skiing, and similar uses involving human body contact with
water where such activities take place in an organized or on a
frequent basis. Both of these rivers receive heavy recreational
use, with 27 river boat access sites on the main stem of the
French Broad River and national forest land within both river
areas. Water quality studies conducted in the summers of 1998
and 1999 show that these waters meet the criteria for Class B
in the above-mentioned areas proposed for reclassification. If
reclassified, facilities that are not discharging will not be
affected. However, new wastewater discharges, expansions of
existing discharges, and existing discharges with fecal
violations to these waters will need to comply with reliability
standards; these standards require facilities to insure
continued treatment of wastewater during instances of power
failure. In addition, dischargers who do not currently have a
fecal limit will be required to have a fecal limit and disinfect.
The water quality standard to be met for fecal coliform for
Class B waters is that it not exceed a geometric mean of
200/100 ml based on at least five consecutive samples
examined during any 30-day period and it not exceed 400/100
ml in more than 20% of the samples examined during such a
period. For dischargers to Tr waters that do not disinfect by
chlorination but wish to do so, a chlorine limit and
dechlorination will be required. It is important to note that
sources of water pollution which preclude any uses affiliated
with a B classification shall be considered to be violating a
water quality standard, and discharges in the immediate
vicinity of bathing areas may not be allowed if the Director
determines that the waste can not be reliably treated to ensure
the protection of primary recreation.
Comment Procedures: The purpose of this announcement is
to encourage those interested in this proposal to provide
written comments. Written comments, data, or other
information relevant to this proposal can be submitted. It is
very important that all interested and potentially affected
persons or parties make their views known to the
Environmental Management Commission whether in favor or
opposed to any and all provisions of the proposal being
noticed. Written comments may be submitted to Elizabeth
Kountis, DENR/Division of Water Qualtity, Planning Branch,
1617 Mail Service Center, Raleigh, NC 27699-1617, or by
calling Elizabeth Kountis at (919) 733-5083, ext. 369.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
CHAPTER 02 – ENVIRONMENTAL MANAGEMENT
Notice of Rule-making Proceedings is hereby given by the
Environmental Management Commission in accordance with
G.S. 150B-21.2. The agency shall subsequently publish in the
Register the text of the rule(s) it proposes to adopt as a result
of this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rule Affected by this Rule-making:
15A NCAC 02B .0315 - Other rules may be proposed in the
course of the rule-making process.
Authority for the Rule-making: G.S. 143-214.1; 143-215.1;
143-215.3(a)(1)
Statement of the Subject Matter: The Environmental
Management Commission (EMC) is proposing to reclassify a
portion of the Neuse River in Lenoir County (Neuse River
Basin) from Class C NSW (Nutrient Sensitive Waters) to
Water Supply-IV CA (Critical Area) NSW.
Reason for Proposed Action: The Wooten Company has
requested on behalf of Lenoir County that a Neuse River
segment in Lenoir County (Neuse River Basin) be reclassified
to WS-IV so that five cities in Lenoir County and perhaps
adjacent counties may meet demands for long-term drinking
water supply. The segment of the river requested for
reclassification is currently Class C NSW and extends from
Pot Neck (which is along S.R. 1324 just east of its intersection
with S.R. 1335) to a point on the Neuse River in Lenoir County
near the Wayne County/Lenoir County line. Included in the
proposed watershed are tributaries that are currently
classified as Class C NSW or Class C Sw NSW. Under the
current proposal, the area that is within 10 miles and draining
to the intake (Protected Area) would be reclassified to WS-IV
NSW and WS-IV Sw NSW, and the area 0.5 mile and draining
to the river intake would be reclassified to WS-IV CA (Critical
RULE-MAKING PROCEEDINGS
15:22 NORTH CAROLINA REGISTER May 15, 2001
1857
Area) NSW. Water quality studies revealed that levels of some
parameters were above DWQ water quality standards or
action levels for the existing Class C waters, but levels of only
one parameter, total phenol, were above the DWQ water
supply standards. The DWQ water supply standard for total
phenol is based on the toxicity of chlorinated phenols to
humans, whereas the water quality study result for total
phenol measures all forms of phenol in a given sample. As
chlorinated phenols are not naturally occurring, and there is
no notable source of chlorine in the proposed water supply
watershed, it is suspected that the total phenol reported
represents non-chlorinated phenols. Non-chlorinated phenols
are not toxic to man and frequently may be formed naturally
from decaying plant material that is suspected to be prevalent
in these waters. The Public Water Supply Section of the NC
Division of Environmental Health stated that all parameter
levels exceeding DWQ standards or action levels can be
addressed via proper treatment. Sampling efforts were
repeated on April 3, 2001, and analytical results should be
available mid-2001. If reclassified, additional regulations will
be required in the proposed water supply watershed within
which Lenoir County and the Town of LaGrange have
jurisdiction. Low Density and High Density development
options are available for projects that require a Sedimentation
and Erosion Control Plan and are located within the proposed
watershed. Under Low Density development, one dwelling unit
per 0.5 acre or 24% built upon area (bua) and 30 foot buffers
are permitted in both the CA and Protected Area (PA). Under
High Density development, 24-50% bua and 100 foot buffers
are required in the CA whereas 24-70% bua and 100 foot
buffers are permitted in the PA. The High Density
development option also requires the control of runoff from
the first 1" of rainfall by engineered stormwater controls.
Three dwelling units per acre or 36% built upon area are
options under Low or High Density development within the PA
if there is no curb and gutter street system used. Although
there are no permitted dischargers in the area proposed for
reclassification, any new industrial wastewater discharges in
the CA will require additional treatment. No new landfills will
be allowed in the CA, and DOT Best Management Practices
(BMPs) will be required throughout the entire proposed water
supply watershed.
Comment Procedures: The purpose of this announcement is
to encourage those interested in this proposal to provide
written comments. Written comments, data, or other
information relevant to this proposal can be submitted. It is
very important that all interested and potentially affected
persons or parties make their views known to the
Environmental Management Commission whether in favor or
opposed to any and all provisions of the proposal being
noticed. Written comments may be submitted to Elizabeth
Kountis, DENR/Division of Water Quality, Planning Branch,
1617 Mail Service Center, Raleigh, NC 27699-1617, or by
calling Elizabeth Kountis at (919) 733-5083, ext. 369.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
CHAPTER 03 – MARINE FISHERIES
Notice of Rule-making Proceedings is hereby given by the
NC Marine Fisheries Commission in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Register the text of the rule(s) it proposes to adopt as a result
of this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rule Affected by this Rule-making:
15A NCAC 03I, 03J, 03M, 03N, 03O - Other rules may be
proposed in the course of the rule-making process.
Authority for the Rule-making: G.S. 113-134; 113-182;
113-221; 143B-289.52
Statement of the Subject Matter: Procedures for
consideration of applications to the Standard Commercial
Fishing Licenses Eligibility Pool; beach seines; fyke nets,
hickory shad; black sea bass; nursery areas; southern
flounder fishery management plan; dolphin/wahoo
restrictions.
Reason for Proposed Action: The Marine Fisheries
Commission is reviewing and considering updating the rules
governing the Standard Commercial Fishing License
Eligibility Board; allowing a limited number of hickory shad
to be used for bait; examining the need to define and restrict
beach seines and fyke nets; considering management
restrictions for black sea bass; reviewing nursery areas;
management actions necessary to implement the southern
flounder fishery management plan; and considering
management restrictions to comply with the dolphin/wahoo
fishery management plan.
Comment Procedures: Written comments are encouraged
and may be submitted to MFC, Juanita Gaskill, PO Box 769,
Morehead City, NC 28557.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
CHAPTER 07 – COASTAL MANAGEMENT
Notice of Rule-making Proceedings is hereby given by the
Coastal Resources Commission in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Register the text of the rule(s) it proposes to adopt as a result
of this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rule Affected by this Rule-making:
15A NCAC 07B - Other rules may be proposed in the course
of the rule-making process.
Authority for the Rule-making: G.S. 113A-119.1
Statement of the Subject Matter: Land use plan guidelines
Reason for Proposed Action: In November, 1998, the
Coastal Resources Commission (CRC) authorized the
appointment of the Land Use Plan Review Team to evaluate
the CAMA land use planning program and make
recommendations for improvement. Based on the
recommendations submitted in September, 2000, the CRC is
RULE-MAKING PROCEEDINGS
15:22 NORTH CAROLINA REGISTER May 15, 2001
1858
revising it's land use planning guidelines (Subchapter 7B).
The revised guidelines aim to improve the quality of local
plans by better supporting the purposes and goals of CAMA.
The rules include simple, clear requirements for land use
plans, improved land suitability analysis and management
objectives to tie land use plans to CAMA goals.
Comment Procedures: Written comments may be submitted
to Kathy Vinson, 151-B, Hwy 24, Hestron Plaza II, Morehead
City, NC 28557, phone 252-808-2808.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
CHAPTER 07 – COASTAL MANAGEMENT
Notice of Rule-making Proceedings is hereby given by the
Coastal Resources Commission in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Register the text of the rule(s) it proposes to adopt as a result
of this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rule Affected by this Rule-making:
15A NCAC 07K .0213 - Other rules may be proposed in the
course of the rule-making process.
Authority for the Rule-making: G.S. 113A-119.1
Statement of the Subject Matter: High Hazard Flood AEC
Exceptions
Reason for Proposed Action: The proposed amendment will
reduce the permitting burden for certain types of development
located in the high hazard flood AEC.
Comment Procedures: Written comments may be submitted
to Charles S. Jones, 151-B, Hwy 24, Hestron Plaza II,
Morehead City, NC 28557, phone 252-808-2808.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
TITLE 15A – DEPARTMENT OF ENVRONMENT AND
NATURAL RESOURCES
CHAPTER 07 – COASTAL MANAGEMENT
Notice of Rule-making Proceedings is hereby given by the
Coastal Resources Commission in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Register the text of the rule(s) it proposes to adopt as a result
of this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rule Affected by this Rule-making:
15A NCAC 07L - Other rules may be proposed in the course
of the rule-making process.
Authority for the Rule-making: G.S. 113A-119.1
Statement of the Subject Matter: Local Planning and
Management Grants
Reason for Proposed Action: The Department of
Environment and Natural Resources is revising the funding
rules for Local Planning and Management Grants to local
governments. These grants provide funding assistance for
CAMA land use plans and coastal planning and management
projects within North Carolina's coastal area. These changes
are based on the recommendations of the Land Use Plan
Review Team, which was appointed by the Coastal Resources
Commission to evaluate the current program and make
recommendations for improvement. The revisions include a
more cost effective framework for funding land use plans and
incentives to improve the level of implementation.
Comment Procedures: Comments may be submitted to
Kathy Vinson, 151-B Hwy 24, Hestron Plaza II, Morehead
City, NC 28557, phone 252-808-2808.
TITLE 21 – OCCUPATIONAL LICENSING BOARDS
CHAPTER 12 – LICENSING BOARD FOR GENERAL
CONTRACTORS
Notice of Rule-making Proceedings is hereby given by NC
Licensing Board for General Contractors in accordance with
G.S. 150B-21.2. The agency shall subsequently publish in the
Register the text of the rules it proposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rule Affected by this Rule-making: 21
NCAC 12 .0103; .0202; .0204; .0503; .0818. Other rules may
be proposed in the course of the rule-making process.
Authority for the Rule-making: G.S. 87-1; 87-2; 87-3; 87-
4; 87-5; 87-6; 87-7; 87-8; 87-10; 87-11; 150B-38
Statement of the Subject Matter: Notice is hereby given in
accordance with G.S. 150B-21.2 that the North Carolina
Licensing Board for General Contractors (Board) will
consider adopting rules, repealing rules, or amending rules
addressing the structure of the Board, contractor
classifications, licensure eligibility; licensure renewal;
requests for hearing; the definition of "undertaking to bid or
construct" on a public job; and minimum experience
requirements for licensure applicants.
Reason for Proposed Action:
1. To amend power of Secretary-Treasurer to allow for
designee to sign checks;
2. To amend licensure classifications to provide that if an
applicant passes the building, public utilities, and highway
examinations, license granted to the applicant will carry with
it a designation of "unclassified";
3. To increase the financial responsibility requirements for
working capital for limited, intermediate, and unlimited
licenses and to increase the bond amounts required to
demonstrate financial responsibility for limited, intermediate,
and unlimited licenses;
4. To require a corporate licensee to notify the Board of its
dissolution or suspension of its corporate charter within 30
RULE-MAKING PROCEEDINGS
15:22 NORTH CAROLINA REGISTER May 15, 2001
1859
days and to require a foreign corporation to notify the Board
of revocation of its certificate of authority;
5. To set a time limit within which an individual must file a
request for a hearing;
6. To define " undertakes to bid or construct" under G.S. 87-1
for public jobs; and
7. To establish minimum experience requirements for
licensure applicants.
Comment Procedures: Written comments may be submitted
on the subject matter of the proposed rulemaking to Mark D.
Selph at the Board's office. The Board's address is P.O. Box
17187, Raleigh, NC 27619.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
CHAPTER 46 - BOARD OF PHARMACY
Notice of Rule-making Proceedings is hereby given by NC
Board of Pharmacy in accordance with G.S. 150B-21.2. The
agency shall subsequently publish in the Register the text of
the rules it proposes to adopt as a result of this notice of rule-making
proceedings and any comments received on this
notice.
Citation to Existing Rule Affected by this Rule-making: 21
NCAC 46 .1414; .1601; .1814; .2004; .2502. Other rules may
be proposed in the course of the rule-making process.
Authority for the Rule-making: G.S. 90-85.6; 90-85.21; 90-
85.25; 90-85.32; 90-85.33; 90-640; 150B-38
Statement of the Subject Matter: Notice is hereby given in
accordance with G.S. 150B-21.2 that the North Carolina
Board of Pharmacy (Board) will consider adopting rules,
repealing rules, or amending rules addressing drug
distribution and control in a health care facility pharmacy,
pharmacy permits, automated dispensing or drug supply
devices, requests for hearings, responsibilities of pharmacist-managers,
exemptions from wearing identification badges,
and identification requirements for persons picking up
prescriptions.
Reason for Proposed Action:
1. To set out requirements for supervision of technicians
using pyxis machines;
2. To revise number of technicians a pharmacist may
supervise;
3. To set out time limit within which an individual may
request a formal hearing;
4. To require that documentation of dispensing errors be
readily retrievable and available for inspection at permitted
location;
5. To set out exemptions from wearing of identification
badges requirement; and
6. To require positive identification of persons picking up
prescriptions.
Comment Procedures: Written comments may be submitted
on the subject matter of the proposed rulemaking to David R.
Work, Executive Director, P.O. Box 459, Carrboro, NC
27510-0459.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
CHAPTER 57 – REAL ESTATE APPRAISAL BOARD
Notice of Rule-making Proceedings is hereby given by NC
Appraisal Board in accordance with G.S. 150B-21.2. The
agency shall subsequently publish in the Register the text of
the rules it proposes to adopt as a result of this notice of rule-making
proceedings and any comments received on this
notice.
Citation to Existing Rule Affected by this Rule-making: 21
NCAC 57A .0200; .0300; .0400; 57B .0100; .0200; .0300;
.0400; .0500; .0600; 57C .0101-.0104. Other rules may be
proposed in the course of the rule-making process.
Authority for the Rule-making: G.S. 93E-1-10
Statement of the Subject Matter: Review of current rules
indicates a need for technical and clerical changes. Also, the
board must come into compliance with changes in continuing
education requirements on the federal level for trainees and
appraisers.
Reason for Proposed Action: There has been a change in
continuing education requirements for appraisers by the
appraiser qualifications Board of Appraisal Foundation, in
accordance with Title XI of the US Code. In addition, some
technical and clerical changes to the rules are necessary.
These changes also address requirements for continuing
education sponsors.
Comment Procedures: Written comments should be directed
to Mel Black, Executive Director, NC Appraisal Board, PO
Box 20500, Raleigh, NC 27619-0500.
PROPOSED RULES
15:22 NORTH CAROLINA REGISTER May 15, 2001
1860
This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published
a Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days
from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The
required comment period is 60 days for a rule that has a substantial economic impact of at least five million dollars
($5,000,000). Statutory reference: G.S. 150B-21.2.
TITLE 10 – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Commission for Mental Health, Developmental
Disabilities and Substance Abuse Services intends to amend
the rule cited as 10 NCAC 45H .0205. Notice of Rule-making
Proceedings was published in the Register on November 15,
2000.
Proposed Effective Date: August 1, 2002
Instructions on How to Demand a Public Hearing: (must be
requested in writing within 15 days of notice): Any person
may request a public hearing on the proposed rule by
submitting a request in writing within 15 days of this notice.
The request should be submitted to John Womble,
DMHDDSAS, Regulatory Unit, 3016 Mail Service Center,
Raleigh, NC 27699-3016.
Reason for Proposed Action: This action is proposed in
order to be consistent with the Drug Enforcement
Administration (DEA) by placing "Modafinil" and Zaleplon in
Schedule IV of the federal controlled substance act. Modafinil
is a central nervous system (CNS) stimulant that produces
many of the sa me pharmacological effects and adverse
reactions as classic psychomotor stimulants, but at higher
doses. Zaleplon is a central nervous system (CNS) depressant
for short-term treatment of insomnia.
Comment Procedures: Written comments should be sent to
John Womble, Regulatory Branch, 3016 Mail Service Center,
Raleigh, NC 27699-3016.
Fiscal Impact
State
Local
Substantive (>$5,000,000)
None
CHAPTER 45 - COMMISSION FOR MENTAL HEALTH, DEVELOPMENTAL DISABILITIES AND SUBSTANCE ABUSE
SERVICES
SUBCHAPTER 45H – DRUG TREATMENT FACILITIES
SECTION .0200 – SCHEDULES OF CONTROLLED SUBSTANCES
10 NCAC 45H .0205 SCHEDULE IV
(a) Schedule IV shall consist of the drugs and other substances by whatever official name, common or usual name, chemical name or
brand name designated listed in this Rule. Each drug or substance has been assigned the Drug Enforcement Administration controlled
substances code number set forth opposite it.
(b) Depressants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation
which contains any quantity of the following substances, including its salts, isomers and salts of isomers whenever the existence of
such salts, isomers and salts of isomers is possible within the specific chemical designation:
(1) Alprazolam 2882
(2) Barbital 2145
(3) Bromazepam 2748
(4) Camazepam 2749
(5) Chloral betaine 2460
(6) Chloral hydrate 2465
(7) Chlordiazepoxide 2744
(8) Clobazam 2751
(9) Clonazepam 2737
(10) Clorazepate 2768
(11) Clotiazepam 2752
(12) Cloxazolam 2753
(13) Delorazepam 2754
(14) Diazepam 2765
(15) Estazolam 2756
(16) Ethchlorvynol 2540
(17) Ethinamate 2545
PROPOSED RULES
15:22 NORTH CAROLINA REGISTER May 15, 2001
1861
(18) Ethyl loflazepate 2758
(19) Fludiazepam 2759
(20) Flunitrazepam 2763
(21) Flurazepam 2767
(22) Halazepam 2762
(23) Haloxazolam 2771
(24) Ketazolam 2772
(25) Loprazolam 2773
(26) Lorazepam 2885
(27) Lormetazepam 2774
(28) Mebutamate 2800
(29) Medazepam 2836
(30) Meprobamate 2820
(31) Methohexital 2264
(32) Methylphenobarbital (mephobarbital) 2250
(33) Midazolam 2884
(34) Nimetazepam 2837
(35) Nitrazepam 2834
(36) Nordiazepam 2838
(37) Oxazepam 2835
(38) Oxazolam 2839
(39) Paraldehyde 2585
(40) Petrichloral 2591
(41) Phenobarbital 2285
(42) Pinazepam 2883
(43) Prazepam 2764
(44) Quazepam 2881
(45) Temazepam 2925
(46) Tetrazepam 2886
(47) Triazolam 2887
(48) Zaleplon
(48)(49) Zolpidem 2783
(c) Fenfluramine. Any material compound, mixture or preparation which contains any of the following substances including its salts,
isomers (whether optical, position or geometric) and salts of such isomers whenever the existence of such salts, isomers and salts of
isomers is possible:
Fenfluramine 1670
(d) Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or other
preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including
their salts, isomers (whether optical, position, or geometric), and salts of such isomers whenever the existence of such salts, isomers,
and salts of isomers is possible within the specific chemical designation:
(1) Cathine [(+)-norpseudoephedrine] 1230
(2) Diethylpropion 1610
(3) Fencamfamin 1760
(4) Fenproporex 1575
(5) Mazindol 1605
(6) Mefenorex 1580
(7) Modafinil
(7)(8) Phentermine 1640
(8)(9) Pemolin (including organometallic complexes and chelates thereof) 1530
(9)(10) Sibutramine 1675
(e) Other Substances. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or
preparation which contains any quantity of the following substance, including its salts:
(1) Butorphanol (including its optical isomers) 9720
(2) Pentazocine 9709
(3) Pipradrol 1750
(4) SPA [(-)-1-dimethylamino-1,2-diphenylethane] 1635
(f) Narcotic Drugs. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation
containing limited quantities of any of the following narcotic drugs, or any salt thereof:
(1) not more than one milligram of difenoxin and not less than 25 micrograms of atropine
sulfate per dosage unit, 9167
(2) Dextropropoxyphene (alpha-(8f)-4-dimethylamino-1,2-diphenyl-3-
PROPOSED RULES
15:22 NORTH CAROLINA REGISTER May 15, 2001
1862
methyl-2-propionoxybutane), 9278
(3) Buprenorphine 9064
Authority G.S. 90-88; 90-92; 143B-147.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Marine Fisheries Commission intends to amend the
rule cited as 15A NCAC 03O .0101. Notice of Rule-making
Proceedings was published in the Register on January 2,
2001.
Proposed Effective Date: August 1, 2002
Public Hearing:
Date: June 6, 2001
Time: 7:00 p.m.
Location: New Bern Riverfront Convention Center, Tryon
Room, New Bern, NC
Reason for Proposed Action: The Fisheries Reform Act of
1997 and its amendments (House Bill 1448) created a new
license system that became effective July 1, 1999. Included in
the Fisheries Reform Act of 1997 was the authority of the
Marine Fisheries Commission to adopt rules to implement
such a license system. Due to the complexity and
comprehensiveness of the Fisheries Reform Act into all areas
of fishery management as well as licensing, the Marine
Fisheries Commission has phased implementation of various
aspects of the Fisheries Reform Act, such as licensing and
permits, to allow for more thorough review by the various
Committees of the Commission and the Commission itself.
The renewal process was not addressed in the original
licensing rules because the emphasis was on getting this new
complex license scheme implemented. In 1999, the General
Assembly modified the licensing provisions to allow the
advance sale or renewal of licenses prior to the beginning of
the fiscal year in Session Laws 1999-209, s. 6, which added
Subsection (j) to G.S. 113-168.1. The development of a mail-in
renewal system to better implement this advance sale
provision and the streamlining of the renewal process is still
part of the implementation process of the Fisheries Reform
Act.
Comment Procedures: Written comments are encouraged
and may be submitted to the MFC, Juanita Gaskill, PO Box
769, Morehead City, NC 28557. Oral comments may be
presented at the public hearing scheduled for June 6, 2001 at
New Bern Riverfront Convention Center, Tryon Room, New
Bern, NC beginning at 7:00 p.m. Oral presentation length
may be limited, depending on the number of people that wish
to speak at the public hearing. The public comments period
will end on June 14, 2001. The Marine Fisheries Commission
will consider this Rule and the public comments at a business
session scheduled for June 7-8 at the New Bern Riverfront
Convention Center, Tryon Room, New Bern, NC.
Fiscal Impact
State
Local
Substantive (>$5,000,000)
None
CHAPTER 03 – MARINE FISHERIES
SUBCHAPTER 03O – LICENSES, LEASES AND
FRANCHISES
SECTION .0100 – LICENSES
15A NCAC 03O .0101 PROCEDURE AND
REQUIREMENTS TO OBTAIN LICENSES,
ENDORSEMENTS AND COMMERCIAL FISHING
VESSEL REGISTRATIONS
(a) To obtain any Marine Fisheries licenses, endorsements,
commercial fishing vessel registrations except Recreational
Fishing Tournament Licenses to Sell Fish and Land or Sell
Licenses, the following information is required for a proper
application by the licensee, a responsible party or person
holding a power of attorney:
(1) Full name, physical address, mailing
address, date of birth, and signature of the
licensee on the application. If the licensee is
not appearing before a license agent or a
representative of the Division, the licensee's
signature on the application must be
notarized;
(2) Current picture identification of licensee or
responsible party; acceptable forms of
picture identification are driver's license,
state identification card, military
identification card, resident alien card (green
card) or passport or if purchased by mail, a
copy thereof;
(3) Certification that the applicant does not have
four or more marine or estuarine resource
violations during the previous three years;
(4) Valid documentation papers or current
motor boat registration or copy thereof when
purchasing a commercial fishing vessel
registration. If an application for transfer of
documentation is pending, a copy of the
pending application and a notarized bill of
sale may be submitted;
(5) Current articles of incorporation and a
current list of corporate officers when
purchasing a license or commercial fishing
vessel registration in a corporate name. In
the case of incorporation of an individual
fishing vessel, the name of the master of that
vessel shall also be specified. It is unlawful
to fail to notify the Morehead City Office of
the Division of Marine Fisheries within five
days of change of the master specified for
that vessel;
PROPOSED RULES
15:22 NORTH CAROLINA REGISTER May 15, 2001
1863
(6) If a partnership is established by a written
partnership agreement, a current copy of
such agreement shall be provided when
purchasing a license, endorsement or
commercial fishing vessel registration in a
partnership name;
(7) For nonresidents, certification of the state of
residency;
(8) In addition to the information required in
G.S. 113-169.4, linear length of pier when
purchasing an Ocean Fishing Pier License;
(9) In addition to the information required in
G.S. 113-171.1, current aircraft registration
and list of operator(s) when purchasing a
Spotter Plane License;
(10) In addition, for fish dealers licenses, the
physical address of the established location
where business is conducted and, if
different, the address where records are kept.
(b) To obtain a License to Land Flounder from the Atlantic
Ocean:
(1) To qualify for a License to Land Flounder
from the Atlantic Ocean, the applicant shall:
(A) have landed in North Carolina at
least 1,000 pounds of flounder from
a single vessel each year from the
Atlantic Ocean during any two of
the 1992-93, 1993-94, 1994-95
license years for which the person
had a vessel that was licensed to
land in North Carolina; and
(B) have been licensed under G.S. 113-
152 or 113-153 during any two of
the 1992-93, 1993-94, or 1994-95
license years; and
(C) hold a valid Standard or Retired
Standard Commercial Fishing
License or valid Land or Sell
License.
(2) It is lawful for a person to hold Licenses to
Land Flounder from the Atlantic Ocean
equal to the numb er of vessels that he owns
that individually met the eligibility
requirements of Parts (b) (1) (A) and (b) (1)
(B) of this Rule.
(3) The License to Land Flounder from the
Atlantic Ocean is only valid when used on
the vessel specified at the time of license
issuance.
(4) At the time of issuance, the applicant for the
License to Land Flounder from the Atlantic
Ocean shall specify the name of the master
of the vessel for each License to Land
Flounder from the Atlantic Ocean issued.
(5) Applicants for a License to Land Flounder
from the Atlantic Ocean shall complete an
application form provided by the Division of
Marine Fisheries and submit it to the
Morehead City Office of the Division of
Marine Fisheries for processing.
(6) It is unlawful for the holder of the License to
Land Flounder from the Atlantic Ocean to
fail to notify the Morehead Office of the
Division of Marine Fisheries within five
days of change as to the master identified on
the license.
(7) Licenses to Land Flounder from the Atlantic
Ocean are is sued for the current license year
and expire on June 30.
(c) To obtain a Recreational Fishing Tournament License to
Sell Fish , the following information is required for a proper
application:
(1) Full name, physical address, mailing
address, date of birth, signature of the
tournament organizer, name of tournament,
and dates of tournament on the license
application. If the licensee is not appearing
before a representative of the Division, the
licensee's signature must be notarized on the
application.
(2) Current picture identification of tournament
organizer; acceptable forms of picture
identification are driver's license, state
identification card, military identification
card, or passport, or if purchased by mail, a
copy thereof.
(3) The tournament organizer must apply with
the Division of Marine Fisheries at least 30
days prior to the starting date of the
tournament.
(d) To obtain a Land or Sell License, the following
information is required for a proper application:
(1) Full name, physical address, mailing
address, date of birth, and signature of the
responsible party or master for the vessel on
the license application. If the licensee is not
appearing before a representative of the
Division, the licensee's signature on the
application must be notarized on the
application;
(2) Current picture identification of responsible
party or master; acceptable forms of picture
identification are driver's license, state
identification card, military identification
card, or passport or if applying by mail, a
copy thereof;
(3) Valid documentation papers or current
motor boat registration or copy thereof when
purchasing a commercial fishing vessel
registration. If an application for transfer of
documentation is pending, a copy of the
pending application and a notarized bill of
sale may be submitted.
Fees will be based on the vessel's homeport as it appears on
the U.S. Coast Guard documentation papers or the State in
which the vessel is registered.
(e) Proof of residency in North Carolina for:
(1) Standard Commercial Fishing License or
Retired Standard Commercial Fishing
License shall be:
PROPOSED RULES
15:22 NORTH CAROLINA REGISTER May 15, 2001
1864
(A) a notarized certification from the
applicant that the applicant is a
resident of the State of North
Carolina as defined by G.S. 113-
130(4); and
(B) a notarized certification from the
applicant that a North Carolina
State Income Tax Return was filed
for the previous calendar or tax
year as a North Carolina resident;
or
(C) a notarized certification that the
applicant was not required to file a
North Carolina State Income Tax
Return for the previous calendar or
tax year; or
(D) military identification, military
dependent identification and
permanent change of station orders
or assignment orders substantiating
individual's active duty assignment
at a military facility in North
Carolina.
(2) All other types of licenses:
(A) North Carolina voter registration
card; or
(B) Current North Carolina Driver's
License; or
(C) Current North Carolina Certificate
of Domicile; or
(D) Current North Carolina
Identification Card issued by the
North Carolina Division of Motor
Vehicles; or
(E) Military identification, military
dependent identification and
permanent change of station orders
or assignment orders substantiating
individual's active duty assignment
at a military facility in North
Carolina.
(f) Applications submitted without complete and required
information will be deemed incomplete and will not be
considered further until resubmitted with all required
information.
(g) It is unlawful for a license or registration holder to fail to
notify the Division of Marine Fisheries within 30 days of a
change of address.
(h) Licenses are available at Offices of the Division or by
mail from the Morehead City Office, unless otherwise
specified. In addition, Recreational Commercial Gear
Licenses are available at Wildlife Service Agents who have
been designated as agents of the Department.
(i) To renew any Marine Fisheries licenses, endorsements,
and commercial fishing vessel registration, except
Recreational Commercial Gear Licenses, the following is
required for a proper renewal application by the licensee, a
responsible party or person holding a power of attorney:
(1) The information required in Subparagraphs
(a)(4), (a)(5), and (a)(6) of this Rule are only
required if a change has occurred since the
last issuance of license, endorsement or
commercial fishing vessel registration.
(2) Certification that articles of incorporation
and list of corporate officers, if incorporated,
written partnership agreement, if written
partnership, or documentation papers or
motor boat registration previously provided
for initial license purchase is still valid and
current for renewal.
(3) Current and valid state driver's license or
state identification picture identification
numbers and expiration dates must be
verified on mail license renewal applications
or any other electronic license renewal
process, otherwise the licensee must provide
a photocopy for renewal by mail or visit a
Division License Office and present a
current and valid picture identification
pursuant to Subparagraph (a)(2) of this Rule.
(4) The Division of Marine Fisheries may
require current copies of documentation for
licenses, endorsements, commercial fishing
vessel registration on renewal when
necessary to verify inconsistent information
or the information cannot be verified by
independent sources.
(5) If the linear length of the pier has not
changed for the Ocean Fishing Pier License
renewal, the responsible party will certify
that the length is accurate; otherwise, a
Marine Patrol Officer's signature is required
to certify the linear length before the license
can be renewed.
Authority G.S. 113-134; 113-168; 113-168.1; 113-168.2;
113-168.3; 113-168.4; 113-168.5; 113-168.6; 113-169;
113-169.2; 113-169.3; 113-169.4; 113-169.5; 113-171.1;
143B-289.52.
TITLE 25 – OFFICE OF STATE PERSONNEL
Notice is hereby given in accordance with G.S. 150B-21.2 that
the State Personnel Commission intends to amend the rules
cited as 25 NCAC 01B .0437; 01C .0214 and 01J .0603.
Notice of Rule-making Proceedings for 25 NCAC 01B .0437
was published in the Register on October 2, 2000 and for 25
NCAC 01C .0214 and 01J .0603 was published October 16,
2000.
Proposed Effective Date: July 1, 2002
Public Hearing:
Date: June 6, 2001
Time: 10:00
Location: 116 West Jones Street, Administration Building, 5th
Floor Conference Room, Raleigh, NC
Reason for Proposed Action:
25 NCAC 01B .0437 - H.B. 968 reduced the Commission's
time in which it may exercise jurisdiction over Recommended
PROPOSED RULES
15:22 NORTH CAROLINA REGISTER May 15, 2001
1865
Decisions rendered by the Administrative Law Judges from 90
to 60 days. This compressed time period will require the
commission to hear every case in which the Office of
Administrative Hearings delivers a record to the Office of
State Personnel at any time prior to a commission meeting. In
order for the commissioners to have adequate time to review
the parties written arguments in each case, it will be important
for the Parties to submit those as soon as possible after the
Recommended Decision in a mater is issued.
25 NCAC 01C .0214 and 01J .0603 - The proposed
amendment to these rules would allow the agency/university
the option to issue a final response before the 60 calendar
expiration period. Should an agency/university exercise this
option it waives its right to make another or different
determination. A written final agency decision waiver should
be issued to the grievant and the grievant should acknowledge
waiver and return such written acknowledgement to the
agency/university.
Comment Procedures:
25 NCAC 01B .0437 - Written comments may be submitted to
Delores A. Joyner, Office of State Personnel, 1331 Mail
Service Center, Raleigh, NC 27699-1331. Oral comments will
be received at the public hearing. Written comments must be
received no later than June 14, 2001.
25 NCAC 01C .0214 and 01J .0603 – Written comments may
be submitted to Ms. Nellie Riley, Hearing Officer, Office of
State Personnel, 1331 Mail Service Center, Raleigh, NC
27699-1331. Oral comments will be received at the public
hearing. Written comments must be received no later than
June 14, 2001.
Fiscal Impact
State
Local
Substantive (>$5,000,000)
None
CHAPTER 01 – OFFICE OF STATE PERSONNEL
SUBCHAPTER 01B – STATE PERSONNEL
COMMISSION
SECTION .0400 – APPEAL TO COMMISSION
25 NCAC 01B .0437 STATE PERSONNEL
COMMISSION: PROCEDURES
(a) The State Personnel Commission Administrator, on behalf
of theThe State Personnel Commission Commission, shall
receive the record in the contested cases forwarded by the
Office of Administrative Hearings and the State Personnel
Commission shall make a final administrative decision in the
case. Any record received by the Administrator on the day of
a Commission meeting shall be deemed to have been received
after the Commission meeting and the time in which the
Commission has to review and decide the case shall run from
the Commission meeting. The Office of State Personnel shall
be responsible for the administrative management of contested
cases coming before the Commission for its review and
decision.
(b) Oral Argument. Either party to a contested case may
request the opportunity to appear before the State Personnel
Commission and make oral argument in all cases.cases except
those arising under G.S. 126-14.4. Such arguments shall be
based solely on the information contained in the record
submitted by the OAH. Oral arguments shall be requested or
waived in writing no more than 10 calendar days after the
filing date of the recommended decision of the Administrative
Law Judge and the parties shall attach a copy of the
Administrative Law Judge's recommended decision to the
request or waiver.notice by the Commission has been sent to
the parties that the Commission has received the official
record from the OAH in the contested case. After 30 calendar
days have passed since the notice to the parties that the official
record has been received by the Commission, the Commission
shall send After the Commission has received either a request
or waiver of oral argument from the parties, the Commission
shall send a notice of review which shall contain the date, time
and place of the Commission meeting at which the case shall
may be reviewed. If a party fails has failed to request or
waive oral argument in a timely fashion, that party may not be
allowed to present oral argument.argument or file legal briefs
or memoranda to the Commission. Each party requesting oral
argument shall be allotted a maximum of 10 minutes for the
presentation, unless the time period is extended by a vote of
the Commission. Time may be extended by the Commission
for good cause shown as defined in 25 NCAC 01B .0439. All
requests to speak for more than 10 minutes shall be made in
writing in the same document which requests the opportunity
to make oral argument. The party which did not prevail
before the Administrative Law Judge is entitled to make the
first oral argument and to present a rebuttal. If both parties are
seeking changes in the Administrative Law Judge's
recommended decision, both parties may present a rebuttal
and the party with the burden of proof in the contested case is
entitled to the last rebuttal.
(c) Briefs, Legal Memoranda, Attorney's Fees Requests. All
briefs and legal memoranda in cases other than those arising
under G.S. 14.4 shall be received by the Office of State
Personnel no later than 30 calendar days after the date of the
notice sent by the Commission notifying the parties of the
Commission's receipt of the official record from the OAH.the
filing date of the recommended decision of the Administrative
Law Judge. Such document shall also be served upon the
opposing party.party and a copy of the recommended decision
of the Administrative Law Judge shall be attached to the
document. Such a document received after the deadline shall
be presented to the Commission only after the party has shown
that the opposing party was served with the document no later
than 30 calendar days after the date of the notice sent by the
Commission notifying the parties of the Commission's receipt
of the official record from the OAH.filing date of the
recommended decision of the Administrative Law Judge.
Attorney's fees requests must be presented to the Commission
by the prevailing party to a Commission Decision and Order at
least one month before the meeting at which the matter is to be
considered. Such requests must also be served upon the
opposing party. The Commission shall notify the parties upon
receipt of a request for attorneys fees and provide an
PROPOSED RULES
15:22 NORTH CAROLINA REGISTER May 15, 2001
1866
opportunity for the opposing party to file objections to the fees
requested. If the parties wish to make oral argument on an
attorney's fees request, a request for oral argument must be
received by the Office of State Personnel within two weeks
after the filing of the attorney's fees request and at least one
month prior to the meeting at which such oral argument is
requested. Parties shall submit 25 copies of each pleading
(with three holes in the left margin) filed with the
Commission. An extension of time to file documents with the
Commission may be granted by the Administrator for good
cause shown as defined in 25 NCAC 01B .0439.
(d) Written Exceptions. Proposed Alternative Findings,
Conclusions and Recommendations. Each party shall submit
written exceptions to the recommended decision of the
Administrative Law Judge, unless the party accepts the
recommended decision in its entirety. Any party may choose
to submit proposed alternative findings of fact and conclusion
of law. Exceptions and alternative findings of fact and
conclusions shall be received by the Office of State Personnel
no later than 30 calendar days after the date of the notice sent
by the Commission notifying the parties of the Commission's
receipt of the official record from the OAH. filing date of the
recommended decision of the Administrative Law Judge.
Written exceptions shall be specifically drawn. Each
exception and proposed alternative finding or conclusion shall
specifically, separately, and in detail, set forth how the finding
or conclusion is clearly contrary to the preponderance of the
admissible evidence, the specific reason(s) the Commission
should not adopt the Administrative Law Judge's
recommended finding of fact or conclusion of law and the
specific evidence in the record which supports the rejection of
the Administrative Law Judge's recommended finding of fact
or conclusion of law, including but not limited to references to
the testimony of witnesses, any evidentiary exhibits, and any
exercise of discretion by the agency to which deference should
be accorded. Any new findings of fact proposed to the
Commission must be supported by a preponderance of the
evidence which shall be set forth in support of the new finding
of fact. Any new decision proposed to the Commission must
be supported by a preponderance of the admissible evidence in
the record and the reason that the Administrative Law Judge's
decision is clearly contrary to the preponderance of the
admissible evidence in the record must be set forth in detail.
If the Administrative Law Judge has recommended granting
summary judgment or judgment on the pleadings and a party
proposes that the Commission reject the Administrative Law
Judge's decision, the party shall set forth the basis for rejecting
the Administrative Law Judge's decision in detail. Reference
must be made to the transcript (and volumes, where
applicable), if the transcript of the hearing was made and is
available. Where a party excepts to a finding, conclusion, or
recommendation and requests its deletion or amendment, an
alternative finding, conclusion, or recommendation shall be
made. Such a document received after the deadline shall be
presented to the Commission only after the party has shown
that the opposing party was served with the document no later
than 30 calendar days after the date of the notice sent by the
Commission notifying the parties of the Commission's receipt
of the official record from the OAH. the filing date of the
Administrative Law Judge's recommended decision. The
Commission may adopt the findings of fact and conclusions of
law of the Administrative Law Judge, or to amend the same,
or to adopt alternative findings of fact and conclusion of law,
either from those submitted by the parties or drawn from its
own review of the whole record. Parties shall submit 20 25
copies of each pleading (with three holes in the left margin)
filed with the Commission. An extension of time to file
documents with the Commission may be granted by the
Administrator for good cause shown as defined in 25 NCAC
01B .0439.
(e) Proposed Decision and Order. Each party to a contested
case shall submit a proposed Decision and Order for
consideration by the Commission in that case. The proposed
Decision and Order shall be received by the Office of State
Personnel no later than 30 calendar days after the date of the
notice sent by the Commission notifying the parties of the
Commission's receipt of the official record from OAH.filing
date of the recommended decision of the Administrative Law
Judge. The Commission may delay decision in a case until all
parties have submitted a proposed Decision and Order. The
Proposed Decision and Order shall indicate which findings,
conclusions, and recommendations of the Administrative Law
Judge are being deleted or amended and why, and what new
findings, and conclusions are being adopted.and specifically,
separately, and in detail, set forth how the finding or
conclusion is clearly contrary to the preponderance of the
admissible evidence. The Proposed Decision and Order must
include the specific reason(s) the Commission should not
adopt the Administrative Law Judge's recommended finding
of fact or conclusion of law and the specific evidence in the
record which supports the rejection of the Administrative Law
Judge's recommended finding of fact or conclusion of law,
including but not limited to references to the testimony of
witnesses, any evidentiary exhibits, and any exercise of
discretion by the agency to which deference should be
accorded. Any new findings of fact proposed to the
Commission must be supported by a preponderance of the
evidence which shall be set forth in support of the new finding
of fact in the Proposed Decision and Order. Any new
conclusions of law or decision proposed to the Commission
must be supported by a preponderance of the admissible
evidence in the record and the reason that the Administrative
Law Judge's decision is clearly contrary to the preponderance
of the admissible evidence in the record must be set forth in
detail in the Proposed Decision and Order. If the
Administrative Law Judge has recommended granting
summary judgment or judgment on the pleadings and a party
proposes that the Commission reject the Administrative Law
Judge's decision, the party shall set forth the basis for rejecting
the Administrative Law Judge's decision in detail in the
Proposed Decision and Order. The proposed Decision and
Order shall contain an order in the case for the signature of the
Administrator to the Commission, consistent with and
supported by the findings and conclusions. Parties shall
submit 20 25 copies of each pleading (with three holes in the
left margin) filed with the Commission. An extension of time
to file documents with the Commission may be granted by the
Administrator for good cause shown as defined in 25 NCAC
01B .0439.
(f) Service on Opposing Parties. Copies of all documents
permitted or required by this Rule shall be served on the
opposing party, but no later than 30 calendar days after the
PROPOSED RULES
15:22 NORTH CAROLINA REGISTER May 15, 2001
1867
date of the notice sent by the Commission notifying the parties
of the Commission's receipt of the official record from the
OAH. the filing date of the recommended decision of the
Administrative Law Judge. If a document is filed
electronically with the Commission as permitted in 25 NCAC
01B .0437(i), the document must also be served electronically
on the opposing party if the opposing party has an electronic
address. Electronic service must be followed by service of
printed copies of any document filed electronically within 24
hours of electronic filing.
(g) Notification. The parties or when applicable, the legal
representative of record for a party, shall be notified by
certified mail, return receipt requested, of the Commission's
decision. The Commission's decision shall be prepared and
sent out by the Office of State Personnel. Copies or the
content of a specific decision and order shall not be released to
non-parties until the Office of State Personnel has knowledge
that all parties have received a copy of the Decision and
Order.
(h) Cases arising under G.S. 126-14.4. In contested cases
arising under G.s. 126-14.4, where the Commission is required
to make a decision within 60 days of receipt of the official
recrod, the parties shall not be entitled to appear in person
before the Commission and make oral argument. Instead,
either party may request an opportunity to make oral argument
to the Commission in a teleconference (or by other video or
audio electronic conferencing means) within 10 calendar days
of notice by the Commission that it has received the official
record from the Office of Administrative Hearings. If a party
requests the opportunity to present an oral argument in a
teleconference, a teleconference shall be scheduled by the
Office of State Personnel and a Notice of Review via
Teleconference shall be sent to the parties which shall contain
the date and time the teleconference will take place and the
telephone numbers at which the parties will be called. No
delays in scheduling the teleconference shall be permitted
which would prejudice the Commission's ability to render its
written decision in compliance with the statutory 60-da6
deadline. Any briefs or legal memoranda which the parties
wish to submit must be received by the Office of State
Personnel no later than 14 calendar days after notice that the
Commission has received the official record from the Office
of Administrative Hearings. An extension of time to file
documents with the Commission may be granted by the
Administrator for good cause shown as defined in 25 NCAC
01B .0439. Each party requesting oral argument shall be
allotted a maximum of 10 minutes for the presentation, unless
the time period is extended by a vote of the Commission for
good cause shown as defined in 25 NCAC 01B .0439. All
requests to speak for more than 10 minutes shall be made in
writing in the same document which requests the opportunity
to make oral argument. The party which did not prevail
before the Administrative Law Judge is entitled to make the
first oral argument and to present a rebuttal. If both parties are
seeking changes in the Administrative Law Judge's
recommended decision, both parties may present a rebuttal
and the party with the burden of proof in the contested case is
entitled to the last rebuttal.
(h) Electronic Filing. Any documents which are required or
permitted to be filed under 25 NCAC 01B .0437, may be filed
electronically by midnight of the filing date with the State
Personnel Commission Administrator in a format readable by
the Administrator. Printed copies of any documents filed
electronically must also be filed with the Administrator in
accordance with 25 NCAC 01B .0437(c), (d) and (e) within 24
hours of the electronic filing.
Authority G.S. 126-4.
SUBCHAPTER 01C – PERSONNEL
ADMINISTRATION
SECTION .0200 – GENERAL EMPLOYMENT
POLICIES
25 NCAC 01C .0214 UNLAWFUL WORKPLACE
HARASSMENT
(a) Purpose. The purpose of this policy is to establish that the
State of North Carolina prohibits in any form unlawful
workplace harassment of state employees or applicants, and to
require that every agency subject to the State Personnel Act
establishes policies and programs to ensure that work sites are
free of unlawful workplace harassment.
(b) Unlawful workplace harassment is defined as unsolicited,
and unwelcome speech or conduct based upon race, sex,
creed, religion, national origin, age, color, or handicapping
condition as defined by G.S. 168A-3 that creates a hostile
work environment or circumstances involving quid pro quo:
(1) Hostile Work Environment is one that both a
reasonable person would find hostile or
abusive and one that the particular person
who is the object of the harassment
perceives to be hostile or abusive. Hostile
work environment is determined by looked
looking at all of the circumstances,
including the frequency of the allegedly
harassing conduct, its severity, whether it is
physically threatening or humiliating, and
whether it unreasonably interferes with an
employee’s work performance.
(2) Quid Pro Quo harassment consists of
unwelcome sexual advances, requests for
sexual favors, or other verbal or physical
conduct when:
(A) submission to such conduct is made
either explicitly or implicitly a term
or condition of an individual’s
employment; or
(B) submission to or rejection of such
conduct by an individual is used as
the basis for employment decisions
affecting such individual.
(3) Retaliation is adverse action taken because
of opposition to unlawful workplace
harassment.
(c) Policy. The policy of the State of North Carolina is that
no state employee may engage in conduct that falls under the
definition of unlawful workp lace harassment indicated in
Paragraph (b) of this Rule. No personnel decisions shall be
made on the basis of upon race, sex, creed, religion, national
origin, age, color, or handicapping condition as defined by
G.S. 168A-3. All
PROPOSED RULES
15:22 NORTH CAROLINA REGISTER May 15, 2001
1868
(d) employees are guaranteed the right to work in an
environment free from unlawful workplace harassment and
retaliation. Unlawful workplace harassment shall hereforth
henceforth be deemed a form of discrimination prohibited by
G.S. 126-16 and G.S. 126-36.
(e) Grievances. Any current or former state employee who
feels he/she has been the victim of unlawful workplace
harassment in violation of this policy and G.S. 126-16 and
G.S. 126-36 may file a grievance through the departmental
grievance procedure. Filing such a written complaint shall be
a prerequisite to any further appeal to the State Personnel
Commission regarding unlawful workplace harassment. After
the employee’s written complaint is submitted to the
department or agency, the department or agency shall have 60
days within which to consider the complaint and take any
appropriate remedial action, if any unless the department or
agency has waived the 60-day period, and the employee has
acknowledged such waiver. The waiver and
acknowledgement shall be in writing. Consis tent with G.S.
126-34, G.S. 126-34.1, G.S. 126-36 and G.S. 126-36.1 G.S.
126-36.1, any current or former state employee who feels that
he/she has been subjected to unlawful workplace harassment
may appeal directly to the State Personnel Commission (such
appeal consisting of a contested case hearing under G.S. 150B
and a decision by the State Personnel Commission) only after
submitting a written complaint and waiting sixty days from the
submission of the complaintafter receiving notification of
remedial action, if any, by the department or agency.
(f) Departmental Plans. Each department head or university
chancellor shall include as a supplement to the Affirmative
Action Plan a plan setting for the steps to be taken to prevent
and correct unlawful workplace harassment. Each department
or university shall submit such a plan to the Office of State
Personnel for review, technical assistance, and approval by the
Director of State Personnel. Each plan on unlawful workplace
harassment shall, at the minimum, include:
(1) publishing and disseminating a policy
statement establishing that unlawful
workplace harassment of employees and
applicants is prohibited;
(2) establishment of internal procedure to
handle complaints of unlawful workplace
harassment. This procedure shall provide
prompt investigation and resolution of
complaints within the department or
university and shall offer the employee
recourse other than through the immediate
supervisor;
(3) utilization of training and other methods to
prevent unlawful workplace harassment;
(4) stating that the department will, in
allegations of unlawful workplace
harassment, review the entire record and the
totality of the circumstances, to determine
whether the alleged conduct constitutes
unlawful workplace harassment;
(5) development of appropriate disciplinary
actions for conduct determined to constitute
unlawful workplace harassment, to be
implemented on a case by case basis on the
facts of each complaint;
(6) prohibition of internal interference,
coercion, restraint or reprisal against any
person complaining of alleged unlawful
workplace harassment;
(7) notification to all employees that a
complaint or allegation of unlawful
workplace harassment must be filed within
the department or agency and that the
agency or department has 60 days (or less, if
waived by agency or department and
acknowledged by employee) to take
appropriate action, if any, in response to the
complaint prior to the filing of a complaint
of unlawful workplace harassment with the
State Personnel Commission.
Authority G.S. 126-4; 126-16; 126-17; 126-36; 126-36.1.
SUBCHAPTER 01J – EMPLOYEE RELATIONS
SECTION .0600 – DISCIPLINARY ACTION:
SUSPENSION AND DISMISSAL
25 NCAC 01J .0603 APPEALS
(a) A career employee who has been demoted, suspended or
dismissed shall have 15 calendar days from the date of his
receipt of written notice of such action to file an appeal with
his department/university grievance procedure. Grievances
which do not allege discrimination, a violation of G.S. 126-
7.1(a) or (c), a violation of G.S. 126-82, or that do not allege a
denial of employment or promotion in violation of G.S. 126-
14.2 must follow the department or university grievance
procedure. An appeal to the State Personnel Commission of a
final departmental or university decision must be filed with the
Office of Administrative Hearings in accordance with G.S.
150B-23 within 30 calendar days of receipt of the final agency
decision. Grievances which allege unlawful workplace
harassment must be submitted in writing to the agency or
department, within 30 calendar days of the alleged harassing
action, and the agency or department must be given 60
calendar days in which to take appropriate remedial action, if
any, unless the department or agency has waived the 60-day
period, and the employee has acknowledged such waiver. The
acknowledgement and waiver shall be in writing. An appeal
to the State Personnel Commission of unlawful workplace
harassment must be filed with the Office of Administrative
Hearings in accordance with G.S. 150B-23 and within 30
calendar days of notification of the remedial action, if any,
taken by the agency. 60th day of the period given to the
agency to consider the unlawful workplace harassment
complaint.
(b) Grievances which allege discrimination not including
unlawful workplace harassment may, at the election of the
employee, proceed through the department or university
procedure or proceed directly to the State Personnel
Commission (SPC) for a hearing by the Office of
Administrative Hearings (OAH) and a decision by the SPC. A
direct appeal to the SPC (such appeal involving a contested
case hearing by the OAH and a recommended decision by that
agency to the SPC) alleging discrimination not including
unlawful workplace harassment must be filed in accordance
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1869
with G.S. 150B-23 and must be filed within 30 calendar days
of receipt of notice of the alleged discriminatory act.
(c) Grievances which allege a violation of G.S. 126-14.2 must
be filed with the Civil Rights Division of the OAH within 30
calendar days after the employee or applicant receives written
notice that the position in question has been filled. The
employee or applicant must file a petition for a contested case
hearing pursuant to G.S. 126-34.1 and Article 3 of Chapter
150B within 15 days of the initial determination by the OAH
Civil Rights Division that there has been a violation of G.S.
126-14.2.
(d) Grievances filed on an untimely basis (see G.S. 126-14.4,
126-35, 126-36 and 126-38) must be dismissed. Allegations
of discrimination raised more than 30 calendar days after
receipt of notice of the occurrence of the alleged
discriminatory act must be dismissed. Grievances alleging
unlawful workplace harassment raised more than 30 calendar
days after the 60th day of the 60-day time period given to the
agency to consider an unlawful workplace harassment
complaint must be dismissed. notification of the remedial
action, if any, taken by the agency must be dismissed.
Authority G.S. 126-1A; 126-35; 126-36; 126-38; 150B, Article
3; 150B-23.
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This Section includes temporary rules reviewed by the Codifier of Rules and entered in the North Carolina Administrative Code and
includes, from time to time, a listing of temporary rules that have expired. See G.S. 150B-21.1 and 26 NCAC 02C .0500 for adoption
and filing requirements. Pursuant to G.S. 150B-21.1(e), publication of a temporary rule in the North Carolina Register serves as a
notice of rule-making proceedings unless this notice has been previously published by the agency.
TITLE 10 – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Rule-making Agency: Division of Facility Services, DHHS
Rule Citation: 10 NCAC 03R .6302, .6308
Effective Date: May 1, 2001
Findings Reviewed and Approved by: Beecher R. Gray
Authority for the rulemaking: G.S. 131E-176(25); 131E-
177(1); 131E-183(b)
Reason for Proposed Action: The amendment/repeal to
these Rules are necessary to comply with recent changes in
Ambulatory Surgical Service Area 24 that now eliminate the
need for one additional ambulatory surgical facility in that
area (as identified in the 2001 SMFP and promulgated by the
aforementioned temporary rules). Temporary rule-making is
necessary because the process does not provide the
Department with the time necessary to utilize the permanent
rule-making process.
Comment Procedures: Questions or comments concerning
the rules should be directed to Jackie Sheppard, Assistant
Director/Rule-Making Coordinator, Division of Facility
Services, 701 Barbour Dr., 2701 Mail Service Center,
Raleigh, NC 27699-2701.
CHAPTER 03 – FACILITY SERVICES
SUBCHAPTER 03R – CERTIFICATE OF NEED REGULATIONS
SECTION .6300 – PLANNING POLICIES AND NEED DETERMINATION FOR 2001
10 NCAC 03R .6302 CERTIFICATE OF NEED REVIEW SCHEDULE
The Department of Health and Human Services (DHHS) has established the following review schedules for certificate of need
applications:
(1) Ambulatory Surgical Facilities (in accordance with the need determination in 10 NCAC 03R .6308)
Ambulatory Surgery CON Beginning
Service Area Review Date
Area 24 (Greene, Lenoir, Martin and Pitt Counties) September 1, 2001
(2)(1) Heart-Lung Bypass Machine (in accordance with the need determination in 10 NCAC 03R .6310)
CON Beginning
Hospital Service System Review Date
Gaston Memorial August 1, 2001
(3)(2) Fixed Cardiac Catheterization Equipment (in accordance with the need determination in 10 NCAC 03R .6311)
CON Beginning
County Review Date
Pasquotank March 1, 2001
Johnston July 1, 2001
(4)(3) Shared Fixed Cardiac Catheterization Equipment (in accordance with the need determination in 10 NCAC 03R
.6312)
CON Beginning
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1871
Hospital Service System Review Date
Lake Norman Regional April 1, 2001
(5)(4) Positron Emission Tomography Scanners (in accordance with the need determination in 10 NCAC 03R .6314)
CON Beginning
Health Service Area (HSA) Review Date
I October 1, 2001
III April 1, 2001
IV July 1, 2001
V November 1, 2001
VI March 1, 2001
(6)(5) Magnetic Resonance Imaging Scanners (in accordance with the need determinations in 10 NCAC 03R .6320)
Magnetic Resonance Imaging Scanners CON Beginning
Service Area Review Date
3 (Buncombe, Madison, McDowell, Mitchell, Yancey) August 1, 2001
13 (Caswell, Durham, Granville, Person, Vance, Warren) November 1, 2001
17 (Anson, Mecklenburg, Union) October 1, 2001
19 (Franklin, Harnett, Johnston, Lee, Wake) March 1, 2001
21 (Bladen, Brunswick, Columbus, Duplin, New Hanover, Pender) July 1, 2001
(7)(6) Magnetic Resonance Imaging Scanners (in accordance with the need determination in 10 NCAC 03R .6321)
Magnetic Resonance Imaging Scanners CON Beginning
Service Area Review Date
15 (Davidson, Guilford, Randolph & Rockingham) August 1, 2001
17 (Anson, Mecklenburg, Union) April 1, 2001
(8)(7) Nursing Care Beds (in accordance with the need determination in 10 NCAC 03R .6322)
CON Beginning
County Review Date
Davie August 1, 2001
Wayne May 1, 2001
(9)(8) Medicare-Certified Home Health Agencies or Offices (in accordance with the need determination in 10 NCAC 03R
.6323)
CON Beginning
County Review Date
Pamlico November 1, 2001
(10)(9) Hospice Home Ca re Program Need Determination (in accordance with the need determination in 10 NCAC 03R
.6326.
CON Beginning
County Review Date
Wake May 1, 2001
(11)(10) Adolescent Residential Chemical Dependency (Substance Abuse) Treatment Beds (in accordance with the need
determination in 10 NCAC 03R .6329)
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CON Beginning
Mental Health Planning Region Review Date
Western Region June 1, 2001
(12)(11) Chemical Dependency (Substance Abuse) Beds – Adult Detox-Only Beds (in accordance with the need
determination in 10 NCAC 03R .6330)
CON Beginning
Mental Health Planning Area Review Date
1 (Cherokee, Clay, Graham, Haywood, Jackson, Macon, Swain June 1, 2001
4 (Henderson, Transylvania) June 1, 2001
5 (Alexander, Burke, Caldwell, McDowell) June 1, 2001
6 (Rutherford, Polk) June 1, 2001
7 (Cleveland, Gaston, Lincoln) June 1, 2001
10 (Rowan, Stanly, Cabarrus, Union) June 1, 2001
11 (Surry, Yadkin, Iredell) June 1, 2001
13 (Rockingham) June 1, 2001
15 (Alamance, Caswell) June 1, 2001
16 (Orange, Person, Chatham) July 1, 2001
18 (Vance, Granville, Franklin, Warren) July 1, 2001
19 (Davidson) June 1, 2001
21 (Bladen, Columbus, Robeson, Scotland) July 1, 2001
24 (Johnston) July 1, 2001
25 (Wake) July 1, 2001
29 (Wayne) July 1, 2001
30 (Wilson, Greene) July 1, 2001
31 (Edgecombe, Nash) July 1, 2001
32 (Halifax) July 1, 2001
33 (Carteret, Craven, Jones, Pamlico) July 1, 2001
34 (Lenoir) July 1, 2001
36 (Bertie, Gates, Hertford, Northampton) July 1, 2001
37 (Beaufort, Hyde, Martin, Tyrrell, Washington) July 1, 2001
38 (Camden, Chowan, Currituck, Dare, Pasquotank, Perquimans) July 1, 2001
39 (Duplin, Sampson) July 1, 2001
(13)(12) Intermediate Care Facilities for the Mentally Retarded (in accordance with need determination in 10 NCAC 03R
.6331.
CON Beginning
Mental Health Planning Area Review Date
Statewide demonstration project, in any HSA except HSA IV February 1, 2001
(14)(13) There are 11 categories of projects for certificate of need review. The DHHS shall determine the appropriate review
category or categories for all applications submitted pursuant to 10 NCAC 3R .0304. For proposals which include
more than one category, the DHHS may require the applicant to submit separate applications. If it is not practical to
submit separate applications, the DHHS shall determine in which category the application shall be reviewed. The
review of an application for a certificate of need shall commence in the next applicable review schedule after the
application has been determined to be complete. The 11 categories are:
(a) Category A. Proposals submitted by acute care hospitals, except those proposals included in Categories B
through H and Categories J and K, including but not limited to the following types of projects: renovation,
construction, equipment, and acute care services.
(b) Category B. Proposals for nursing care beds; new continuing care retirement communities applying for
exemption under 10 NCAC 03R .6337; and relocations of nursing care beds under 10 NCAC 03R .6339 or
10 NCAC 03R .6341.
(c) Category C. Proposals for new psychiatric facilities; psychiatric beds in existing health care facilities; new
intermediate care facilities for the mentally retarded (ICF/MR) and ICF/MR beds in existing health care
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facilities; new substance abuse and chemical dependency treatment facilities; substance abuse and chemical
dependency treatment beds in existing health care facilities.
(d) Category D. Proposals for new dialysis stations in response to the "county need" or "facility need"
methodologies; and relocations of existing dialysis stations to another county.
(e) Category E. Proposals for new or expanded inpatient rehabilitation facilities and inpatient rehabilitation
beds in other health care facilities; and new or expanded ambulatory surgical facilities except those
proposals included in Category H.
(f) Category F. Proposals for new Medicare-certified home health agencies or offices, new hospices, new
hospice inpatient facility beds, and new hospice residential care facility beds.
(g) Category G. Proposals for conversion of hospital beds to nursing care under 10 NCAC 03R .6336.
(h) Category H. Proposals for bone marrow transplantation services, burn intensive care services, neonatal
intensive care services, open heart surgery services, solid organ transplantation services, air ambulance
equipment, cardiac angioplasty equipment, cardiac catheterization equipment, heart-lung bypass machines,
gamma knives, lithotriptors, magnetic resonance imaging scanners, positron emission tomography
scanners, major medical equipment as defined in G.S. 131E-176 (14f), diagnostic centers as defined in G.S.
131E-176 (7a), and oncology treatment centers as defined in G.S. 131E-176 (18a).
(i) Category I. Proposals involving cost overruns; expansions of existing continuing care retirement
communities which are licensed by the Department of Insurance at the date the application is filed and are
applying under 10 NCAC 3R .6337 for exemption from need determinations in 10 NCAC 03R .6322;
relocations within the same county of existing health service facilities, beds or dialysis stations which do
not involve an increase in the number of health service facility beds or stations; relocations of nursing care
beds from State Psychiatric Hospitals to local communities pursuant to 10 NCAC 03R .6340; reallocation
of beds or services; Category A proposals submitted by Academic Medical Center Teaching Hospitals
designated prior to January 1, 1990; proposals submitted pursuant to 10 NCAC 03R .6332(c) by Academic
Medical Center Teaching Hospitals designated prior to January 1, 1990; acquisition of replacement
equipment that does not result in an increase in the inventory; and any other proposal not included in
Categories A through H and Categories J and K.
(j) Category J. Proposals for demonstration projects.
(k) Category K. Proposals for conversion of acute care hospitals to long-term acute care hospitals.
(15)(14) A service, facility, or equipment for which a need determination is identified in Items (1) through (13) of this Rule
shall have only one scheduled review date and one corresponding application filing deadline in the calendar year as
specified in these items, even though the following review schedule shows multiple review dates for the broad
category. Applications for certificates of need for new institutional health services not specified in Items (1) through
(13) of this Rule shall be reviewed pursuant to the following review schedule, with the exception that no reviews are
scheduled if the need determination is zero. Need determinations for additional dialysis stations pursuant to the
"county need" or "facility need" methodologies shall be reviewed in accordance with 10 NCAC 03R .6324 or 10
NCAC 03R .6325.
CON Beginning Review Categories Review Categories
Review Date for HSA I, II, III for HSA IV, V, VI
January 1, 2001 D D
February 1, 2001 A, E, G, I, J J
March 1, 2001 -- A, E, G, H, I
April 1, 2001 B, F, H, I --
May 1, 2001 -- B, F, I
June 1, 2001 A, C, I, K K
July 1, 2001 -- A, C, H, I
August 1, 2001 B, E, H. I --
September 1, 2001 D B, D, E, I
October 1, 2001 A, F, H, I --
November 1, 2001 -- A, F, H, I
December 1, 2001 C, I C, I
For purposes of Magnetic Resonance Imaging (MRI) scanners reviews only, Anson County in MRI Area 17 is
considered to be in HSA III and Caswell County in MRI Area 13 is considered to be in HSA IV.
(16)(15) In order to give the DHHS sufficient time to provide public notice of review and public notice of public hearings as
required by G.S. 131E-185, the deadline for filing certificate of need applications is 5:00 p.m. on the 15th day of the
month preceding the "CON Beginning Review Date." In instances when the 15th day of the month falls on a
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1874
weekend or holiday, the filing deadline is 5:00 p.m. on the next business day. The filing deadline is absolute and
applications received after the deadline shall not be reviewed in that review period.
History Note: Authority G.S. 131E-176(25); 131E-177(1); 131E-183(b);
Temporary Adoption Eff. January 1, 2001;
Temporary Amendment Eff. May 1, 2001.
10 NCAC 03R .6308 AMBULATORY SURGICAL
FACILITIES NEED DETERMINATION (REVIEW
CATEGORY E)
It is determined that there is a need for one additional
ambulatory surgical facility with two operating rooms in
Ambulatory Surgery Service Area 24. It is determined that
there is no need for additional Ambulatory Surgical Facilities
in any other Ambulatory Surgical Facility Planning Area.
History Note: Authority G.S. 131E-176(25); 131E-177(1);
131E-183(b);
Temporary Adoption Eff. January 1, 2001;
Temporary Repeal Eff. May 1, 2001.
* * * * * * * * * * * * * * * * * * * *
Rule-making Agency: NC Medical Care Commission
Rule Citation: 10 NCAC 42B .2701-.2703; 42C .4002-.4004;
42D .2302-.2304
Effective Date: May 1, 2001
Findings Reviewe d and Approved by: Beecher R. Gray
Authority for the rulemaking: G.S. 131D-2; Session Law
2000-129
Reason for Proposed Action: S.L. 2000-129 modified G.S.
131D-34.1 to require Adult Care Homes, Family Care Homes
and DDA's to notify the Department of deaths occurring in
these facilities. These temporary rules were adopted to
establish the requirements by which deaths – and the
information needed for each death – are to be reported to the
Department. The NC Medical Care Commission has the
authority to adopt rules pertaining to Adult Care Homes.
Given S.L. 2000-129 effective date of January 1, 2001,
temporary rule-making action is needed. Otherwise, the
earliest effective date under permanent rule-making would be
July 1, 2002.
Comment Procedures: Questions or comments concerning
the rules should be directed to Jackie Sheppard, Assistant
Director/Rule-making Coordinator, Division of Facility
Services, 701 Barbour Dr., 2701 Mail Service Center,
Raleigh, NC 27699-2701.
CHAPTER 42 – INDIVIDUAL AND FAMILY SUPPORT
SUBCHAPTER 42B – LICENSING OF HOMES FOR
DEVELOPMENTALLY DISABLED ADULTS
SECTION .2700 – DEATH REPORTING
REQUIREMENTS
10 NCAC 42B .2701 DEFINITIONS
The following definitions shall apply throughout this Section:
(1) "Accident" means an unexpected, unnatural
or irregular event contributing to a resident's
death and includes, but is not limited to,
medication errors, falls, fractures, choking,
elopement, exposure, poisoning, drowning,
burns or thermal injury, electrocution,
misuse of equipment, mo tor vehicle
accidents, and natural disasters.
(2) "Division" means the Division of Facility
Services (DFS).
(2) "Immediately" means at once, at or near the
present time, without delay.
(3) "Violence" means physical force exerted for
the purpose of violating, damaging, abusing
or injuring.
History Note: Authority G.S. 131D-2;
Temporary Adoption Eff. May 1, 2001.
10 NCAC 42B .2702 SCOPE
For purposes of this Section, facilities licensed in accordance
with G.S. 131D-2 shall report resident deaths to the Division
of Facility Services.
History Note: Authority G.S. 131D-2;
Temporary Adoption Eff. May 1, 2001.
10 NCAC 42B .2703 REPORTING REQUIREMENTS
(a) Upon learning of the death of a resident a facility shall file
a report in accordance with G.S. 131D-34.1 and these Rules.
A facility shall be deemed to have learned of a death when any
facility staff obtains reliable information that the death
occurred.
(b) A written notice containing the information listed under
Paragraph (d) of this Rule shall be made immediately for a
resident death occurring in an adult care home within seven
days of the use of a physical restraint or physical hold on the
resident or within 24 hours of the resident's transfer from the
adult care home to a hospital, if the death occurred within
seven days of physical restraint or physical hold of the
resident.
(c) A written notice containing the information under
Paragraph (d) of this Rule shall be made within three days of
any death resulting from violence, accident, suicide or
homicide.
(d) Written notice may be submitted in person or by
telefascimile or electronic mail. If the reporting facility does
not have the capacity or capability to submit a written notice
immediately, the information contained in the notice can be
reported by telephone following the same time requirements
under Subparagraphs (b) and (c) of this Rule until such time
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the written notice can be submitted. The notice shall include
at least the following information:
(1) Reporting facility: Name, address, county,
license number (if applicable),
Medicare/Medicaid provider number (if
applicable), facility administrator and
telephone number, name and title of person
preparing report, first person to learn of
death and first staff to receive report of
death, and date and time report prepared;
(2) Resident information: Name, Medicaid
number (if applicable), date of birth, age,
sex, race, primary admitting diagnoses, and
date of most recent admission to an acute
care hospital;
(3) Circumstances of death: place and address
where resident died, date and time death was
discovered, physical location decedent was
found, cause of death (if known), whether or
not decedent was restrained at the time of
death or within seven days of death and if
so, a description of the type of restraint and
its usage, and a description of events
surrounding the death; and
(4) Other information: list of other authorities
such as law enforcement or the County
Department of Social Services that have
been notified, have investigated or are in the
process of investigating the death or events
related to the death.
(e) The facility shall submit a written report, using a form
pursuant to G.S. 131D-34.1(e). The facility shall provide,
fully and accurately, all information sought on the form. If the
facility is unable to obtain any information sought on the form,
or if any such information is not yet available, the facility shall
so explain on the form.
(f) In addition, the facility shall:
(1) Notify the Division of Facility Services
immediately whenever it has reason to
believe that information provided may be
erroneous, misleading, or otherwise
unreliable;
(2) Submit to the Division of Facility Services,
immediately after it becomes available, any
information required by this Rule that was
previously unavailable; and
(3) Provide, upon request by the Division of
Facility Services, other information the
facility obtains regarding the death,
including, but not limited to, death
certificates, autopsy reports, and reports by
other authorities.
(g) With regard to any resident death under circumstances
described in G.S. 130A-383, a facility shall notify the
appropriate law enforcement authorities so the medical
examiner of the county in which the body is found can be
notified. Documentation of such notification shall be
maintained by the facility and be made available for review by
the Division upon request.
(h) In deaths not under the jurisdiction of the medical
examiner, the facility shall notify the decedent's next -of-kin,
or other individual authorized according to G.S. 130A-398,
that an autopsy may be requested as designated in G.S. 130A-
389.
History Note: Authority G.S. 131D-2;
Temporary Adoption Eff. May 1, 2001.
SUBCHAPTER 42C – LICENSING OF FAMILY CARE
HOMES
SECTION .4000 – DEATH REPORTING
REQUIREMENTS
10 NCAC 42C .4002 DEFINITIONS
The following definitions shall apply throughout this Section:
(1) "Accident" means an unexpected, unnatural
or irregular event contributing to a resident's
death and includes, but is not limited to,
medication errors, falls, fractures, choking,
elopement, exposure, poisoning, drowning,
burns or thermal injury, electrocution,
misuse of equipment, motor vehicle
accidents, and natural disasters.
(2) "Division" means the Division of Facility
Services (DFS).
(3) "Immediately" means at once, at or near the
present time, without delay.
(4) "Violence" means physical force exerted for
the purpose of violating, damaging, abusing
or injuring.
History Note: Authority G.S. 131D-2;
Temporary Adoption Eff. May 1, 2001.
10 NCAC 42C .4003 SCOPE
For purposes of this Section, facilities licensed in accordance
with G.S. 131D-2 shall report resident deaths to the Division
of Facility Services.
History Note: Authority G.S. 131D-2;
Temporary Adoption Eff. May 1, 2001.
10 NCAC 42C .4004 REPORTING REQUIREMENTS
(a) Upon learning of the death of a resident a facility shall file
a report in accordance with G.S. 131D-34.1 and these Rules.
A facility shall be deemed to have learned of a death when any
facility staff obtains reliable information that the death
occurred.
(b) A written notice containing the information listed under
Paragraph (d) of this Rule shall be made immediately for a
resident death occurring in an adult care home within seven
days of the use of a physical restraint or physical hold on the
resident or within 24 hours of the resident's transfer from the
adult care home to a hospital, if the death occurred within
seven days of physical restraint or physical hold of the
resident.
(c) A written notice containing the information under
Paragraph (d) of this Rule shall be made within three days of
any death resulting from violence, accident, suicide or
homicide.
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(d) Written notice may be submitted in person or by
telefascimile or electronic mail. If the reporting facility does
not have the capacity or capability to submit a written notice
immediately, the information contained in the notice can be
reported by telephone following the same time requirements
under Subparagraphs (b) and (c) of this Rule until such time
the written notice can be submitted. The notice shall include
at least the following information:
(1) Reporting facility: Name, address, county,
license number (if applicable),
Medicare/Medicaid provider number (if
applicable), facility administrator and
telephone number, name and title of person
preparing report, first person to learn of
death and first staff to receive report of
death, and date and time report prepared;
(2) Resident information: Name, Medicaid
number (if applicable), date of birth, age,
sex, race, primary admitting diagnoses, and
date of most recent admission to an acute
care hospital;
(3) Circumstances of death: place and address
where resident died, date and time death was
discovered, physical location decedent was
found, cause of death (if known), whether or
not decedent was restrained at the time of
death or within seven days of death and if
so, a description of the type of restraint and
its usage, and a description of events
surrounding the death.; and
(4) Other information: list of other authorities
such as law enforcement or the County
Department of Social Services that have
been notified, have investigated or are in the
process of investigating the death or events
related to the death.
(e) The facility shall submit a written report, using a form
pursuant to G.S. 131D-34.1(e). The facility shall provide,
fully and accurately, all information sought on the form. If the
facility is unable to obtain any information sought on the form,
or if any such information is not yet available, the facility shall
so explain on the form.
(f) In addition, the facility shall:
(1) Notify the Division of Facility Services
immediately whenever it has reason to
believe that information provided may be
erroneous, misleading, or otherwise
unreliable;
(2) Submit to the Division of Facility Services,
immediately after it becomes available, any
information required by this Rule that was
previously unavailable; and
(3) Provide, upon request by the Division of
Facility Services, other information the
facility obtains regarding the death,
including, but not limited to, death
certificates, autopsy reports, and reports by
other authorities.
(g) With regard to any resident death under circumstances
described in G.S. 130A-383, a facility shall notify the
appropriate law enforcement authorities so the medical
examiner of the county in which the body is found can be
notified. Documentation of such notification shall be
maintained by the facility and be made available for review by
the Division upon request.
(h) In deaths not under the jurisdiction of the medical
examiner, the facility shall notify the decedent's next -of-kin,
or other individual authorized according to G.S. 130A-398,
that an autopsy may be requested as designated in G.S. 130A-
389.
History Note: Authority G.S. 131D-2;
Temporary Adoption Eff. May 1, 2001.
SUBCHAPTER 42D – LICENSING OF HOMES FOR
THE AGED AND INFIRM
SECTION .2300 – DEATH REPORTING
REQUIREMENTS
10 NCAC 42D .2302 DEFINITIONS
The following definitions shall apply throughout this Section:
(1) "Accident" means an unexpected, unnatural
or irregular event contributing to a resident's
death and includes, but is not limited to,
medication errors, falls, fractures, choking,
elopement, exposure, poisoning, drowning,
burns or thermal injury, electrocution,
misuse of equipment, motor vehicle
accidents, and natural disasters.
(2) "Division" means the Division of Facility
Services (DFS).
(2) "Immediately" means at once, at or near the
present time, without delay.
(3) "Violence" means physical force exerted for
the purpose of violating, damaging, abusing
or injuring.
History Note: Authority G.S. 131D-2;
Temporary Adoption Eff. May 1, 2001.
10 NCAC 42D .2303 SCOPE
For purposes of this Section, facilities licensed in accordance
with G.S. 131D-2 shall report resident deaths to the Division
of Facility Services.
History Note: Authority G.S. 131D-2;
Temporary Adoption Eff. May 1, 2001.
10 NCAC 42D .2304 REPORTING
REQUIREMENTS
(a) Upon learning of the death of a resident a facility shall file
a report in accordance with G.S. 131D-34.1 and these Rules.
A facility shall be deemed to have learned of a death when any
facility staff obtains reliable information that the death
occurred.
(b) A written notice containing the information listed under
Paragraph (d) of this Rule shall be made immediately for a
resident death occurring in an adult care home within seven
days of the use of a physical restraint or physical hold on the
resident or within 24 hours of the resident's transfer from the
adult care home to a hospital, if the death occurred within
TEMPORARY RULES
15:22 NORTH CAROLINA REGISTER May 15, 2001
1877
seven days of physical restraint or physical hold of the
resident.
(c) A written notice containing the information under
Paragraph (d) of this Rule shall be made within three days of
any death resulting from violence, accident, suicide or
homicide.
(d) Written notice may be submitted in person or by
telefascimile or electronic mail. If the reporting facility does
not have the capacity or capability to submit a written notice
immediately, the information contained in the notice can be
reported by telephone following the same time requirements
under Subparagraphs (b) and (c) of this Rule until such time
the written notice can be submitted. The notice shall include
at least the following information:
(1) Reporting facility: Name, address, county,
license number (if applicable),
Medicare/Medicaid provider number (if
applicable), facility administrator and
telephone number, name and title of person
preparing report, first person to learn of
death and first staff to receive report of
death, and date and time report prepared;
(2) Resident information: Name, Medicaid
number (if applicable), date of birth, age,
sex, race, primary admitting diagnoses, and
date of most recent admission to an acute
care hospital;
(3) Circumstances of death: place and address
where resident died, date and time death was
discovered, physical location decedent was
found, cause of death (if known), whether or
not decedent was restrained at the time of
death or within seven days of death and if
so, a description of the type of restraint and
its usage, and a description of events
surrounding the death.; and
(4) Other information: list of other authorities
such as law enforcement or the County
Department of Social Services that have
been notified, have investigated or are in the
process of investigating the death or events
related to the death.
(e) The facility shall submit a written report, using a form
pursuant to G.S. 131D-34.1(e). The facility shall provide,
fully and accurately, all information sought on the form. If the
facility is unable to obtain any information sought on the form,
or if any such information is not yet available, the facility shall
so explain on the form.
(f) In addition, the facility shall:
(1) Notify the Division of Facility Services
immediately whenever it has reason to
believe that information provided may be
erroneous, misleading, or otherwise
unreliable;
(2) Submit to the Division of Facility Services,
immediately after it becomes available, any
information required by this Rule that was
previously unavailable; and
(3) Provide, upon request by the Division of
Facility Services, other information the
facility obtains regarding the death,
including, but not limited to, death
certificates, autopsy reports, and reports by
other authorities.
(g) With regard to any resident death under circumstances
described in G.S. 130A-383, a facility shall notify the
appropriate law enforcement authorities so the medical
examiner of the county in which the body is found can be
notified. Documentation of such notification shall be
maintained by the facility and be made available for review by
the Division upon request.
(h) In deaths not under the jurisdiction of the medical
examiner, the facility shall notify the decedent's next -of-kin,
or other individual authorized according to G.S. 130A-398,
that an autopsy may be requested as designated in G.S. 130A-
389.
History Note: Authority G.S. 131D-2;
Temporary Adoption Eff. May 1, 2001.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
Rule-making Agency: Environmental Management
Commission
Rule Citation: 15A NCAC 02S .0102-.0103; .0202; .0301-
.0302; .0401
Effect