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^^f'/Kf^N In'-lS'^/./^?^ NORTHCAROLINA REGISTE RECEIVED APR 1 8 2000 M-irtiNc |5., eVcRETT LAV* LIBRARY VOLUME 14 • ISSUE 20 • Pages 1808 - 1861 Ck AprU 17, 2000 \ IN THIS ISSUE r^ Environment and Natural Resources 1/ ,^^ Health and Human Services // j^^ Labor //^ State Personnel // /ia. Z; Transportation j^ '*'*^^ J Rules Review Commission i^ Contested Case Decisions PUBLISHED BY The Office ofAdministrative Hearings Rules Division 6714 Mail Service Center Raleigh, NC 27699-6714 Telephone (919) 733-2678 Fax (919) 733-3462 m ILEC5I115US SALUS This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 For those persons that have questions or concerns regarding the Administrative Procedure Act or any of it? components, consult with the agencies below. The bolded headings are typical issues which the given agency can address, but are not inclusive. Rule Notices. Filings, Register. Deadlines. Copies of Proposed Rules, etc. t Office of Administrative Hearings Rules Division Capehart-Crocker House 424 North Blount Street Raleigh, North Carolina 27601-2817 contact: Molly Masich, Director APA Services Ruby Creech, Publications Coordinator 1 §»Ji ^if^ (919) 733-2678 (919) 733-3462 FAX nimasich@oah. state rcreech@oah.state Fiscal Notes & Economic Analysis . Office of State Budget and Management I 116 West Jones Street li Raleigh, North Carolina 27603-8005 ^. contact: Warren Plonk, Economist III Rule Review and Legal Issues ,l Rules Review Commission ll 1307 Glenwood Ave., Suite 159 \ Raleigh, North Carolina 27605 (919) 733-7061 (919) 733-0640 FAX \vplonk@osbm.state (919) 733-2721 (919) 733-9415 FAX contact: Joe DeLuca Jr., Staff Director Counsel \\\ ' ^"^^^ ^'^^"' ^^^Attorney ^^^^^^-'^m ' ""--=--"^ Legislative Process Concerning Rule-making Joint Legislative Administrative Procedure Oversight Committee 545 Legislative Office Building 300 North Salisbury Street ' ""^^^.^Sr^----. (919)733-2578 Raleigh, North Carolina 2761 1 " - ^**^-«.^.: (919) 715-5460 FAX contact: MaiyShuping, Staff Liaison marys@ms.ncga.state.nc.u& County and Municipality Government Questions or Notification NC Association of County Commissioners 215 North Dawson Street (919)715-2893 Raleigh, North Carolina 27603 contact: Jim Blackburn or Rebecca Troutman NC League of Municipalities 215 North Dawson Street Raleigh, North Carolina 27603 contact: Paula Thomas (919)715-4000 This publication is printed on permanent, acid-free paper in compliance y\/iih G.S. 125-11.13 NORTH CAROLINA REGISTER IN THIS ISSUE Volume 14, Issue 20 Pages 1808 - 1861 April 17, 2000 RULE-MAKING PROCEEDINGS Environment and Natural Resources Environmental Management 1808 Health Services, Commission of 1808-1809 Health and Human Services Facility Services 1 808 II. PROPOSED RULES Environment and Natural Resources Marine Fisheries 1810 - 1814 Wildlife Resources 1814 - 1815 Health and Human Services Health Services, Commission for 1815 - 1824 State Personnel State Personnel Commission 1824 - 1828 Transportation Motor Vehicles, Division of 1824 This issue contains documents officially filed through March 27, 2000. 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 m. TEMPORARY RULES Environment and Natural Resources Marine Fisheries Commission 1830 - 1840 Labor Occupational Safety & Health 1829-1830 IV. RULES REVIEW COMMISSION 1841-1850 V. CONTESTED CASE DECISIONS Index to ALJ Decisions 1851-1861 Julian Mann III, Director Camille Winston, Deputy Director Molly Masich, Director of APA Services Ruby Creech, Publications Coordinator Linda Dupree, Editorial Assistant Jessica Flowers, Editorial Assistant Dana Sholes, Editorial Assistant VI. CUMULATIVE INDEX 1-108 North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC 27601 . (ISSN 1 5200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register, PC Drawer 27447, Raleigh. NC 2761 1-7447. NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM The North Carolina Administrative Code (NCAC) hasfour major subdivisions ofrules. Two ofthese, 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 Administration Acupuncture I 2 Agriculture Architecture 2 3 Auditor Athletic Trainer Examiners 3 4 Commerce Auctioneers 4 5 Correction Barber Examiners 6 6 Council of State Certified Public Accountant Examiners 8 7 Cultural Resources Chiropractic Examiners 10 8 Elections Employee Assistance Professionals 11 9 Governor General Contractors 12 10 Health and Human Services Cosmetic Art Examiners 14 11 Insurance Dental Examiners 16 12 Justice Dietetics/Nutrition 17 13 Labor Electrical Contractors 18 14A Crime Control & Public Safety Electrolysis 19 15A Environment and Natural Resources Foresters 20 16 Public Education Geologists 21 17 Revenue Hearing Aid Dealers and Fitters 22 18 Secretary of State Landscape Architects 26 19A Transportation Landscape Contractors 28 20 Treasurer Massage & Bodywork Therapy 30 *21 Occupational Licensing Boards Marital and Family Therapy 31 22 Administrative Procedures (Repealed) Medical Examiners 32 23 Community Colleges Midwifery Joint Committee 33 24 Independent Agencies Mortuary Science 34 25 State Personnel Nursing 36 26 Administrative Hearings Nursing Home Administrators 37 27 NC State Bar Occupational Therapists 38 Opticians 40 Optometry 42 Osteopathic Examination & Reg. (Repealed) 44 Pastoral Counselors, Fee-Based Practicing 45 Pharmacy 46 Physical Therapy Examiners 48 Plumbing, Heating & Fire Sprinkler Contractors 50 Podiatry Examiners 52 Professional Counselors 53 Psychology Board 54 Professional Engineers & Land Surveyors 56 Real Estate Appraisal Board 57 Real Estate Commission 58 Refrigeration Examiners 60 Sanitarian Examiners 62 Social Work Certification 63 Soil Scientists 69 Speech & Language Pathologists & Audiologists 64 Substance Abuse Professionals 68 Therapeutic Recreation Certification 65 Veterinary Medical Board 66 Note: Title 21 contains the chapters of the various occupational licensing boards. o > a 3 (-, (-, O o o o o ^ _^ __ _^ ^ ^ « « „ „ ^ „ ^ __ __ ^ __ ^ bd ^-3 o o o o o g o o g o o g o o o o o ii ^ •—- -^ •— —- -~ --^ ^ =; o o ao o ON tN ON m oo fN a^ rNi o^ m ON fN oo m IN (N (N fN ^o f^N rn tN rN fN fN -fN^ O^ o O (N fN fN (N m r^ ^ § m r- r- 00 OO On o " ^ O O O O O O o O o o ^ o o o o O u r- H <s ^ u -B a ^ > tt o - =1 oo g O o o o O O o 3 g g g g g g g g fN O o s tN O tN O tN O al Z s 3 NO -S NO NO NO ^ ^o •o NO NO NO NO NO io o o o o o O o (N tN (N (N (N fN tN (N (N tN tN tN tN tN fN fN c? 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E u 3 C 3 C/3 en a ^ u T3 cfl •c 0) Ji 3 '5b £ g ^ T3 "3 U5 U T3 ° s ta o 3 O. ca X c« ? •- C >. c'f"l ca ;a c "o 3 XI ca C/2 c r/1 X >1 In X 13 :S >. X ca QJ r) ca c c/5 t^ ca O. T3 ^ § •5 C/2 RULE-MAKING PROCEEDINGS A Notice ofRule-making Proceedings is a statement ofsubject matter ofthe 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 ofa temporary rule serves as a Notice ofRule-making Proceedings and can befound in the Register under the section heading ofTemporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings and can befound in the Register under the section heading ofRule-making Agendas. Statutory reference: G.S. 150B-2I.2. TITLE 10 - DEPARTMENT OF HEALTH AND HUMAN SERVICES CHAPTER 3 - FACILITY SERVICES course ofthe rule-making process. Authority for the rule-making: G.S. 143-215(a)(15); 143B- 282(2)(h); 150B-14(c) "X Jotice ofRule-making Proceedings is hereby given by the 1 V DHHS/Division ofFacility Services in accordance with G.S. 1503-21. 2. The agency shall subsequently publish in the Register the text ofthe rule(s) itproposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: 10 NCAC 3R . 6300 - Other rules may beproposed in the course of the rule-making process. Authority for the rule-making: 177(1), 131E-183(b) G.S. 131E-1 76(25); 131E-Statement of the Subject Matter: The Agency plans to adopt new temporary rules which will include policies and need determinations from the 2001 State Medical Facilities Plan. SMFP rules for previous years may also be repealed under temporary rule-making. Reason for Proposed Action: The need determinations and policies contained therein are incorporated into administrative rules. Because permanent rules cannot be adopted in time to become effective by January 1, 2001, it will be necessary to adopt new temporary rules. Comment Procedures: Written comments concerning the rule-making action must be submitted to Jackie R. Shepard, Rule-making Coordinator, Division ofFacility Services, 2701 Mail Service Center, Raleigh, NC 27699-2701. TITLE ISA - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES Statement of the Subject Matter: Amendment of UST requirements in close proximity to water supply wells and surface waters. Reason for Proposed Action: The UST Section is requesting that a temporary rule be enacted to immediately mitigate a serious and unforeseen threat to public health, safety and welfare. Widespread non-compliance by UST owners and operators with existing secondary containment requirements is an unforeseen threat to public health, safety and welfare. The regulated community as well as the regulators did not clearly understand until recently that water supply wells at most convenience store and service station locations are considered public water supplies. The existing rules clearly intendedfor more stringent requirements to apply to those situations where public water supplies were present because of the greater potential health risk. Widespread non-compliance with existing secondary containment requirements is also a serious threat to public health, safety and welfare. We now know that drinking water supplies at about 4800 locations across North Carolina are at risk of being contaminated if leaks from UST systems occur at those location. Secondary containment will provide early notice that a leak has occurred and will contain that leak BEFORE it reaches the environment and water supplies. To achieve the necessary level of compliance, enhanced leak detection must be implemented immediatelyfor early detection of releases, and secondary containment deadlines mut be extended to give the regulated community enough time to comply with this requirement. Comment Procedures: Comments should be submitted to Ruth Strauss, DENR, Division of Waste Management, UST Section, 1637 Mail Service Center, Raleigh, NC 27699-1637, Telephone (919) 733-1330. CHAPTER 2 - ENVIRONMENTAL MANAGEMENT ******************** TV Totice ofRule-making Proceedings is hereby given by the 1 1 Environmental Management Commission in accordance with G.S. 1503-21. 2. The agency shall subsequently publish in the Resister the text ofthe rule(s) itproposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: 15A NCAC 2N .0304 - Other rules may be proposed in the CHAPTER 18 - ENVIRONMENTAL HEALTH 'K Totice ofRule-making Proceedings is hereby given by the 1 y Commission for Health Services in accordance with G.S. 1503-21.2. The agency shall subsequently publish in the Resister the text ofthe rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. 14:20 NORTH CAROLINA REGISTER April 17, 2000 1808 RULE-MAKING PROCEEDINGS Citation to Existing Rules Affected by this Rule-Making: 15A NCAC 18A .3300 - Other rules may be proposed in the course ofthe rule-making process. Authority for the rule-making: G.S. 130A-235 Statement of the Subject Matter: Rules Governing Sanitation ofAdult Day Service Facilities Reason for Proposed Action: The new rules 15A NCAC 18A .3300 will be proposed to develop standards for sanitation inspections of adult day service facilities by local health departments. The new rules will keep adult day servicefacilities from having to meet the more stringent requirements developed for health care institutions. They will providefor reporting to the Department of Health and Human Services, Division of Aging and Division ofMental Health on the sanitary conditions{ at adult day care facilities, adult day health facilities, and psychosocial rehabilitation program facilities which provide community-based day services including meals to adults. Comment Procedures: Send comments to Jim Hayes, Environmental Health Services Section, 1632 Mail Service Center, Raleigh, NC 27699-1632 or e-mail to jim.hayes@ncmail.net. i I «; 1809 NORTH CAROLINA REGISTER April 17,2000 14:20 PROPOSED RULES \ This Section contains the text ofproposed rules. At least 60 days prior to the publication oftext, the agencypublished a Notice ofRule-making Proceedings. The agency must accept comments on the proposed rulefor at least 30 daysfrom the publication date, or until thepublic hearing, or a later date ifspecified in the notice by the agency. The required commentperiod is 60 days for a rule that has a substantial economic impact ofat leastfive million dollars ($5, 000, 000). Statutory reference: G.S. 150B- 21.2. TITLE ISA - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES Notice is hereby given in accordance with G.S. 150B-21.2 that theNCMarine Fisheries Commission intends to amend the rules cited as 15A NCAC 3J .0103; 3L .0205; 3M .0301. .0506, .0515. Notice ofRule-making Proceedings waspublished in the Register on November 1, 1999for 15A NCAC 3J .0103; 3L . 0205. Notice ofRule-making Proceedings was published in the Register on December 15, 1999for 15A NCAC 3M .0301. .0506. .0515. Proposed Effective Date: April 1, 2001 Public Hearings will be conducted at 7:00p.m. on May 3, 2000 at the Comfort Inn South Oceanfront, 8031 Old Oregon Road, Nags Head, NC; May 15, 2000 at the Department of Environment and Natural Resources, 127 Cardinal Drive Ext., Wilmington. NC; May 16, 2000 at the Duke University Marine Lab Auditorium. Pivers Island, Beaufort, NC; May 25, 2000 at the Gateway Convention Center. Rocky Mount. NC. eason for Proposed Action: ISA NCAC 3J.0103; 3L .0205 - The Fisheries Reform Act of 1997 and its amendments (House Bill 1448) required a complete review ofthe proceduresfor management offisheries in North Carolina. Included were requirementsfor Fishery Management Plans. The amendments are necessary management measures to ensure the viability ofred drum while thefishery management plan is being developed and was identified as a necessary management measure for the viability of blue crabs in the completed Blue Crab Fishery Management Plan. Section 5. 3 of House Bill 1448 states "This act constitutes a recent act ofthe General Assembly within the meaning of G.S. 150B-21. 1 ". ISA NCAC 3M .0301, .0506, .0515 - Recent action by the National Marine Fisheries Service (effective 9/20/99) increased the size limitfor king mackerel to 24 inches. In addition, recent action by the National Marine Fisheries Service (effective 9/8/99) prohibits the harvest andpossession ofredporgy in the EEZ in order to protect the red porgy resource which is overfished. G.S. 143B-289. 52(e) authorizes the Marine Fisheries Commission to adopt rules to implement or comply with a fisheries management plan adopted pursuant to Magnuson-Stevens Fishery Conservation andManagementAct. In the temporary adoption of 15A NCAC 3M .0515 effective July 1, 1999, the taking ofdolphin commercially was authorized through a federal permit. This commercial take should be (authorized by the holding of the new licenses which were first fiade available through a rewrite of the licensing system effective July 1, 1999. The amendment to this Rule authorizes the take ofdolphin commercially by the new license system. Comment Procedures: Written comments are encouraged and may be submitted to the MFC, Juanita Gaskill, PO Box 769. Morehead City, NC2855 7. Oral comments may bepresented at thefour scheduled public hearings. Oral presentation lengths may be limited, depending on the number ofpeople that wish to speak at the public hearings. The public comment period will end on June 15. 2000. State Fiscal Impact Local Sub. None CHAPTER 3 - MARINE FISHERIES SUBCHAPTER 3J - NETS, POTS, DREDGES, AND OTHER FISHING DEVICES SECTION .0100 - NET RULES, GENERAL .0103 GILL NETS, SEINES, IDENTIFICATION, RESTRICTIONS (a) It is unlawful to use a gill net with a mesh length less than 2 1/2 inches. (b) The Fisheries Director may, by proclamation, limit or prohibit the use of gill nets or seines in coastal waters, or any portion thereof, or impose any or all ofthe following restrictions on the use of gill nets or seines: (1) Specify area. (2) Specify season. (3) Specify gill net mesh length. (4) Specify means/methods. (5) Specify net number and length. (c) It is unlawful to use fixed or stationary gill nets in the Atlantic Ocean, drift gill nets in the Atlantic Ocean for recreational purposes, or any gill nets in internal waters unless nets are marked by attaching to them at each end two separate yellow buoys which shall be of solid foam or other solid buoyant material no less than five inches in diameter and no less than five inches in length. Gill nets which are not connected together at the top line shall be considered as individual nets, requiring two buoys at the end of each individual net. Gill nets connected together at the top line shall be considered as a continuous net requiring two buoys at each end of the continuous net. Any other marking buoys on gill nets used for recreational purposes shall be yellow except one additional buoy, any shade of hot pink in color, constructed as specified in Paragraph (c) of this Rule, shall be added at each end of each individual net. Any other marking buoys on gill nets used in commercial fishing operations shall be yellow except that one additional identification buoy of any color or any combination of colors, except any shade of hot pink, may be used at either or both ends. 14:20 NORTH CAROLINA REGISTER April 17,2000 1810 PROPOSED RULES The owner shall always be identified on a buoy on each end either by using engraved buoys or by attaching engraved metal or plastic tags to the buoys. Such identification shall include owner's last name and initials and if a vessel is used, one of the following: ( 1 ) Owner's N.C. motor boat registration number, or (2) Owner's U.S. vessel documentation name. (d) It is unlawful to use gill nets: (1) Within 200 yards of any pound net with lead and pound or heart in use; (2) From March 1 through October 3 1 in the Intracoastal Waterway within 150 yards of any railroad or highway bridge. (e) It is unlawful to use gill nets within 100 feet either side of the center line of the Intracoastal Waterway Channel south of Quick Flasher No. 54 in Alligator River at the southern entrance to the Intracoastal Waterway to the South Carolina line, unless such net is used in accordance with the following conditions: (1) No more than two gill nets per boat may be used at any one time; (2) Any net used must be attended by the fisherman from a boat who shall at no time be more than 100 yards from either net; and (3) Any individual setting such nets shall remove them, when necessary, in sufficient time to permit unrestricted boat navigation. (f) It is unlawful to use drift gill nets in violation of 15A NCAC 3 J .0101(2) and Paragraph (e) of this Rule. (g) It is unlawful to use unattended gill nets with a mesh length less than five inches in a commercial fishing operation in the following areas: gill nets from May 1 through October 3 of less than five inches in internal coastal waters (including joint waters) unless attended. In order to be considered attended, the fishennen must be within 100 yards of any net employed by that fisherman. (1) Pamlico River, west of a line beginning at a point on Mauls Point at 35° 26' 56" N - 76° 55' 33" W: running 066° (M) to a point on Ragged Point at 35 ° 27' 33" N- 76° 54' 23" W; (2) Within 200 yards of anv shoreline in Pamlico River and its tributaries east of the line from Mauls Point at 35° 26' 56" N - 76° 55' 33" W; running 066° (M) to Ragged Point at 35° 27' 33" N - 76° 54' 23" W and west of a line beginning at a point on Pamlico Point at 35° 22' 18" N - 76° 29' 00" W ; running 018° (M) through Marker # 1 to a point on Roos Point at 35 ° 18' 48"N-76° 28' 16" W; Pungo River, east of a line beginning at a point on Durants Point at 35° 30' 30" N - 76° 35' 12" W; running 319° (M) to the northern side of the breakwater at 35° 31' 48" N - 76° 36' 53" W; Within 200 vards of any shoreline in Pungo River and its tributaries west of the line from Durants Point at 35° 30' 30" N- 76° 35' 12" W; running 319° (M) to the northern side of the breakwater at 35 ° 31' 48" N - m £4} £5} £6} m Roos Point at 35° 18' 48" N - 76° 28' 16" W: Neuse River and its tributaries northwest of the Highway 17 highrise bridge: Trent River and its tributaries: / Within 200 yards of any shoreline in Neuse River and its tributaries east of a line from the Highway 17 highrise bridge and west of a line beginning at a point on Wilkinson Point at 34° 57' 53" N - 76° 48' 15" W; running 203° (M) to a point on Cherry Point at 34 °56'27" N-76°48'42" W. (h) It is unlawful to use unattended gill nets with a mesh length less than five inches in a commercial fishing operation from May 1 through October 3 1 in the following internal coastal and joint waters of the state south of a line beginning at a point on Roanoke Marshes Point at 35° 48' 12" N - 75° 43' 06" W; running 122° (M) to a point on Eagle Nest Bay at 35° 44' 12"N - 75° 31' 09" W to the South Carolina State Line: (1) All primary nursery areas described in 15A NCAC 3R .0103, all permanent secondary nursery areas described in 1 5A NCAC 3R .01 04. and no trawl areas described in 1 5A NCAC 3R .0 1 06 (3).(4).(6). and (7); In the area along the Outer Banks, beginning at a point on Core Banks at 34° 58' 49" N - 76° 09' 59" W; running 292 ° (M) to a point on Wainwright Island at 34° 59' 28" N - 76° 12' 28" W; running 026° (M) to a point at 35° 00' 16" N - 76° 12' 12" W; running 034° (M) to apoint at 35° 01' 35" N - 76° 1 1' 27" W; running 059 ° (M) to a point at 35 ° 06' 24" N - 76° 04' 20" W; running 044° (M) to a point at 35° 08' 26" N- 76° 02' 30" W; running 090° (M) to a point at 35° 09'! 1 8" N - 75 ° 54' 49" W; running 063 ° (M) to a point 35° 19' 02" N - 75° 36' 19" W: running 038° (M) to a point at 35° 22' 48" N - 75° 33' 36" W; running 026° (M) to a point at 35 ° 28' 27" N - 75 ° 3 1 ' 2 1 " W; running010° toapointat35°35'59"N-75°31'12" W; running 355 °(M) to a point 35 ° 45' 1 1 " N - 75 ° 34' 06" W; running 1 22 ° (M) to a point at 35 ° 44' 1 1 " N ; 751 3r 05;i W, Thence running south along the shoreline across the inlets to the point of beginning; In Back and Core sounds, beginning at a point on Shackleford Banks at 34° 39' 59" N - 76° 34' 16" W; running 004°(M) to a point at Marker #3 at 34° 41' 19" N - 76° 33' 50" W; thence running 103° (M) to a point at 34° 40' 27" N - 76° 30' 41" W; thence £2} £3} running 019° (M) to a point near Marker "A37" at 34° 43' 35" N - 76° 28' 35" W; thence running 350° (M) to a point at 34° 43' 45" N - 76° 28' 36" W; thence running 025 ° (M) to a point at 34 ° 48' 09" N - 76° 24' 47" W; thence running 042° (M) to a point near Drum Inlet at 34° 51' 03" N - 76° 20' 18" W; thence running 034° (M) to a point at 34° 53' 25" N - 76 ° 1 7' 2 1 " W; thence running 008 ° (M) to a point at 34° 53' 55" N - 76° 17' 07" W; thence running 1 10° (M) to a point at 34° 53' 33" N - 76° 16' 25" W: thence running 026 ° (M) to a point at 34° 56' 33" N - 76° 36' 53" W. and west of a line beginning at a point 76° 13' 37" W; thence running 094° (M) to a point af on Pamlico Point at 35° 22' 18"N-76° 29' 00" W; - 34° 56' 29" N- 76° 13' 17" W; thence running 013° running 018° (M) through Marker #1 to a point on (M) to a point at 34° 58' 11" N - 76° 12' 18" W; 1811 NORTH CAROLINA REGISTER April 1 7, 2000 14:20 PROPOSED RULES £4} thence running 330° (M) to a point at 34° 58' 48" N - 76 ° 1 2' 3 1 " W; thence running OOP ° (M) to a point on Wainwright Island at 34° 59' 26" N - 76° 12' 22" W; thence running 096° (TVl) to a point on Core Banks at 34° 58' 49" N - 76° 09' 59" W; thence following the shoreline south across Drum and Barden inlets to the point of beginning; Within 200 yards of any shoreline, except from October X through October 31. south and east of Highway 12 in Carteret County and south of a line from a point on Core Banks at 34° 58' 49" N - 76° 09' 59" W; running 292° (M) to Camp Point at 35° 00' 05" N - 76° Line. 14' 48" W to the South Carolina State Authority G.S. 289.52. 113-134; 113-173; 113-182; 113-221; 143B-SUBCHAPTER 3L - SHRIMP, CRABS, AND LOBSTER SECTION .0200 - CRABS .0205 CRAB SPAWNING SANCTUARIES (a) It is unlawful to set or use trawls, pots, and mechanical methods for oysters or clams a trawl net or take crabs with the use of commercial fishing equipment from the crab spawning sanctuaries described in 15A NCAC 3R .0110 from March 1 through August 3 1 (b) From September 1 through February 28, the Fisheries )irector may, by proclamation, close the crab spawning 'sanctuaries and may impose any or all of the following restrictions: (1) Specify number of days; (2) Specify areas; (3) Specify means and methods which may be employed in the taking; (4) Specify time period; (5) Limit the quantity. Authority G.S. 113-134; 113-182; 113-221; 143B-289.52. SUBCHAPTER 3M - FINFISH SECTION .0300 - SPANISH AND KING MACKEREL Specify means/methods; ^S^ SPANISH AND KilJua-^iUffli^Bfilif statistical and biological d^. inches fork length. (2) It is unlawful to possess more than three king mackerel per person per day. (3) It is unlawful to possess Spanish mackerel less than 12 inches fork length. (4) It is unlawful to possess more than 10 Spanish mackerel per person per day. (c) King mackerel and Spanish mackerel taken by commercial fishing operations, exclusive of hook and line: (1) It is unlawful to possess king mackerel less than 20 inches fork length. (2) It is unlawful to possess Spanish mackerel less than 12 inches fork length. (d) Persons in possession ofa yalid National Marine Fisheries Service Coastal Migratory Pelagic (Mackerel) Permit to fish on the commercial mackerel quotas are exempt from the mackerel creel restrictions established in Paragraph (b) of this Rule. (e) Persons in possession ofa valid National Marine Fisheries Service Federal Coastal Migratory Pelagic (Mackerel) Permit must comply with the mackerel creel restrictions established in Paragraph (b) of this Rule when fishing with more than three persons (including the captain and mate) on board. (f) It is unlawful to possess aboard or land from a vessel, or combination of vessels that form a single operation, more than 3,500 pounds of Spanish or king mackerel, in the aggregate, in any one day. Authority G.S. 113-134; 113-182; 113-221; 143B-289.52. SECTION .0500 - OTHER FINFISH .0506 SNAPPER-GROUPER (a) The Fisheries Director may, by proclamation, impose any or all of the following restrictions in the fisheries for species of the snapper-grouper complex and black sea bass in order to comply with the management requirements incorporated in the Fishery Management Plan Plans for Snapper-Grouper and Sea Bass developed by the South Atlantic Fishery Management Council or Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission: Specify si^ Specify seaso^ Specify ar^3^ Specify quant(^; .0301 (a) The Fisheries Director may, by proclamation, impose any or all of the following restrictions on the taking of Spanish or king mackerel: (1) Specify areas. (2) Specify seasons. (3) Specify commercial quantity. (4) Specify means/methods. (5) Specify size for fish taken by commercial fishing ^ operations. P (b) King mackerel and Spanish mackerel taken for recreational purposes or by hook and line: (1 ) It is unlawful to possess king mackerel less than 24 20 The species of the snapper-grouper complex listed in the South Atlantic Fishery Management Council Fishery Management Plan for the Snapper-Grouper Fishery ofthe South Atlantic Region are hereby incorporated by reference and copies are available via the Federal Register posted on the Internet at www.access.gpo.gov and at the Division of Marine Fisheries, P.O. Box 769, Morehead City, North Carolina 28557 at no cost, (b) Black sea bass: (1) It is unlawful to possess black sea bass less than ten inches total length. (2) It is unlawful to take or possess more than 20 black 14:20 NORTH CAROLINA REGISTER April 17, 2000 1812 PROPOSED RULES (2) (3) (4) (2) (3) (4) sea bass per person per day south of Cape Hatteras without a valid Federal Commercial Snapper- Grouper permit. (c) Gag grouper: (1) It is unlawful to possess gag grouper (gray grouper) less than 24 inches total length. It is unlawful to possess more than two gag grouper (gray grouper) per person per day without a valid Federal Commercial Snapper-Grouper Permit. It is unlawful to possess more than two gag grouper (gray grouper) per person per day during the months of March and April. It is unlawful to sell or purchase gag grouper (gray grouper) taken from waters under the jurisdiction of North Carolina or the South Atlantic Fishery Management Council during the months ofMarch and April. (d) Black grouper: (I) It is unlawful to possess black grouper less than 24 inches total length. It is unlawful to possess more than two black grouper per person per day without a valid Federal Commercial Snapper-Grouper Permit. It is unlawful to take or possess more than two black grouper per person per day during the months of March and April. It is unlawfiil to sell or purchase black grouper taken from waters under the jurisdiction of North Carolina or the South Atlantic Fishery Management Council during the months of March and April. (e) It is unlawful to possess red grouper less than 20 inches total length. (f) It is unlawful to possess yellowfm grouper (fu^eback grouper) less than 20 inches total length. (g) It is unlawful to possess scamp less than 20 inches total length. (h) It is unlawful to possess yellowmouth grouper less than 20 inches total length, (i) Speckled hind (kitty mitchell) and Warsaw grouper: (1) It is unlawful to sell or purchase speckled hind or Warsaw grouper. (2) It is unlawful to possess more than one speckled hind or one Warsaw grouper per vessel per trip. (j) Greater amberjack: (1) For recreational purposes: (A) It is unlawful to possess greater amberjack less than 28 inches fork length. (B) It is unlawfiil to possess more than one greater amberjack per person per day. It is unlawtul to sell or purchase greater amberjack less than 36 inches fork length. It is unlawful to possess more than one greater amberjack per person per day without a valid Federal Commercial Snapper-Grouper Permit. It is unlawful to possess more than one greater amberjack per person per day during the month of April. It is unlawful to sell or purchase greater amberjack (2) (3) (4) (5) (2) during any closed season, (k) Red Snapper: (1) It is unlawful to possess red snapper less than 20 inches total length. | (2) It is unlawful to possess more than two red snapper per person per day without a valid Federal Commercial Snapper-Grouper permit. (I) Vermilion Snapper: (1 ) For recreational purposes: (A) It is unlawful to possess vermilion snapper (beeliner) less than 1 1 inches total length. (B) It is unlawful to possess more than 10 vermilion snapper per person per day. It is unlawful to possess or sell vermilion snapper (beeliner) less than 1 2 inches total length with a valid Federal Commercial Snapper-Grouper permit. (m) It is unlawful to possess silk snapper (yelloweye snapper) less than 12 inches total length. (n) It is unlawfiil to possess blackfin snapper (hambone snapper) less than 1 2 inches total length. (o) Red Porgy: (i) It is unlawful to possess red porgy (Pasrus pasnis) in North Carolina, porgy (pink or silver snapper) less than 14 inches total length. I t is unlawful to possess more than Five red porgy per person per day without a valid Federal Commercial Snapper-Grouper permit. I t is unlawful to possess more than Five red porgy per person per day during the months ofMarch and Apr il. I t is unlawful to s ell or purchase red porgy taken from' waters under the jurisdiction ofNorth Carolina or the I m (3) (4) \' South Atlantic Fishery Management Council during the months of March and April. (p) Combined Bag Limits: (1) It is unlawful to possess more than 10 vermilion snapper and 1 other snappers per person per day of which no more than two may be red snapper without a valid Federal Commercial Snapper-Grouper permit. (2) It is unlawful to possess more than five grouper without a valid Federal Commercial Snapper-Grouper permit of which: (A) no more than two may be gag or black grouper (individually or in combination) per person per day; (B) no more than one may be speckled hind or one Warsaw grouper per vessel per trip. (3) It is unlawful to possess more than 20 fish in the aggregate per person per day of the following species without a valid Federal Commercial Snapper-Grouper permit: whitebone porgy, jolthead porgy, knobbed porgy, longspine porgy, sheepshead, gray triggerFish, queen triggerFish, yellowjack, crevalle jack, bar jack, almaco jack, lesser amberjack, banded rudderFish, white grunt, margates, spadeFish, and hogFish. (q) It is unlawful to possess any species of the Snapper- Grouper complex except snowy, warsaw, yellowedge, and misty groupers; blueline, golden and sand tilefishes; while having longline gear aboard a vessel. 1813 NORTH CAROLINA REGISTER April 17,2000 14:20 i PROPOSED RULES (r) It is unlawful to possess Nassau grouper or jewfish. (s) Fish Traps/Pots: (1) It is unlawful to use or have on board a vessel fish traps for taking snappers and groupers except sea bass pots as allowed in Subparagraph (2) ofthis Paragraph. (2) Sea bass may be taken with pots that confonn with the federal rule requirements for mesh sizes and pot size as specified in 50 CFR Part 646.2, openings and degradable fasteners specified in 50 CFR Part 646.22(c)(2)(i), and escape vents and degradable materials as specified in 50 CFR Part 622.40 (b)(3)(i) and rules published in 50 CFR pertaining to sea bass north of Cape Hatteras (35° 15' N Latitude). Copies of these rules are available via the Federal Register posted on the Internet at wfww.access.gpo.gov and at the Division of Marine Fisheries, P.O. Box 769, Morehead City, North Carolina 28557 at no cost. (t) It is unlawful for persons in possession of a valid National Marine Fisheries Service Snapper-Grouper Permit for Charter Vessels to exceed the creel restrictions established in Paragraphs (b), (j)' (o); and (p) of this Rule when fishing with more than three persons (including the captain and mate) on board. (u) In the Atlantic Ocean, it is unlawful for an individual fishing under a Recreational Commercial Gear License with seines, shrimp trawls, pots, trotlines or gill nets to take any species of the Snapper- Grouper complex. Authority G.S. 113-134; 113-182; 113-221; 143B-289.52. A Public Hearing will be conducted at 7:00 p.m. on May 25, 2000 at the Gateway Convention Center, 651 Winstead Ave., Rocky Mount, NC 27804. Reason for Proposed Action: To set/amend inland fishing regulations in joint waters to conform with changes in marine fisheries rules. Comment Procedures: The NC Wildlife Resources Commission is holding apublic hearingjointly with the Division of Marine Fisheries, which is considering adoption of an identical rule. Interestedpersons maypresent their views either orally or in writing at the hearing. In addition, the record of hearing will be openfor receipt ofwritten comments until June 15, 2000. Such written comments must be delivered or mailed to the NC Wildlife Resources Commission, 1701 Mail Service Center. Raleigh, NC 27699-1701. Fiscal Impact State Local Sub. None / All bolded text was approved by the Rules Review Commission on April 15, 1999 and is waiting review by the 2000 session of the Legislative Oversight Committee. CHAPTER 10 - WILDLIFE RESOURCES AND WATER SAFETY iflSlS DOLPHIN (a) It is unlawful to possess more than 10 dolphin per person per day taken by hook and line for recreational purposes except charter except: (l)Charter vessels with a valid National Marine Fisheries Service Charter Vessel Coastal Migratory Pelagic Permit and licensed by the U.S. Coast Guard to carry six or less passengers for hire, may possess a maximum of 60 dolphin per day regardless of the number of people on board. (b) Vessels, including charterboats when fishing with three or less persons (including captain and mate) on board, with a valid Standard or Retired Standard Commercial Fishing License or a Land or Sell License, may possess more than 60 dolphin per dav. (2)Vessels with a valid conunercial National Marine Fisheries Service Federal Coastal Migi-atoiy Pelagic Permit including charterboats when fishing with tlu-ee or less persons (mcluding captain and mate) on board. Authority G.S. 113-134; 113-182; 143B-289.52. ******************** Notice is hereby given in accordance with G.S. 150B-21.2 that the North Carolina Wildlife Resources Commission intends to amend the rule cited as 15A NCAC IOC .0107. Notice of Rule-making Proceedings was published in the Register on November 1, 1999. Proposed Effective Date: July 1, 2001 SUBCHAPTER IOC - INLAND FISHING REGULATIONS SECTION .0100 - JURISDICTION OF AGENCIES: CLASSIFICATION OF WATERS .0107 SPECIAL REGULATIONS: JOINT WATERS In order to effectively manage all fisheries resources in joint waters and in order to confer enforcement powers on both fisheries enforcement officers and wildlife enforcement officers with respect to certain rules; the Marine Fisheries Commission and the Wildlife Resources Commission deem it necessary to adopt special rules for joint waters. Such rules supersede any inconsistent rules of the Marine Fisheries Commission or the Wildlife Resources Commission that would otherwise be applicable in joint waters under the provisions of 15A NCAC IOC .0106: (1) Striped Bass (a) It shall be unlawful to possess any striped bass or striped bass hybrid taken by any means which is less than 1 8 inches long (total length). (b) It shall be unlawful to possess more than three striped bass or their striped bass hybrids taken by hook and line or with gear authorized by a Recreational Commercial Gear License in any one day from joint waters. (c) It shall be unlawful to engage in net fishing for striped bass or their hybrids in joint waters except as authorized by duly adopted 14:20 NORTH CAROLINA REGISTER April 17, 2000 1814 PROPOSED RULES rules of the Marine Fisheries Commission. (d) It is unlawful to possess striped bass or striped bass hybrids in the joint waters of Albemarle, Currituck, Roanoke and Croatan Sounds and their tributaries, excluding the Roanoke River, except during seasons as authorized by duly adopted rules of the Marine Fisheries Commission. (e) In the joint waters ofthe Roanoke River and its tributaries, including Cashie, Middle and Eastmost Rivers, striped bass and hybrid striped bass fishing season, size limits and creel limits shall be the same as those established by authorized by duly adopted rules of the Wildlife Resources Commission for adjacent inland fishing waters. (2) Lake Mattamuskeet (a) It shall be unlawful to set or attempt to set any gill net in Lake Mattamuskeet canals designated as joint waters. (b) It shall be unlawful to use or attempt to use any trawl net or seines in Lake Mattamuskeet canals designated as joint waters. (3) Cape Fear River. It shall be unlawful to use or attempt to use any net or net stakes within 800 feet of the dam at Lock No. 1 on Cape Fear River. (4) Shad: It is unlawful to possess more than 10 American shad or hickory shad, in the aggregate, per person per day taken by hook-and-Iine. Authority G.S. 113-132; 113-134; 113-138; 113-292. ******************** Notice is hereby given in accordance with G.S. 150B-21.2 that the Commissionfor Health Services intends to amend the rule cited as 15A NCAC 19A .0406. Notice ofRule-making Proceedings waspublished in the Register on February 1, 2000. Proposed Effective Date: April 1, 2001 A Public Hearing will be conducted at 9:00 a.m. on May 4, 2000 at the Ground Floor Hearing Room, Archdale Bldg, 512 Salisbury Street, Raleigh, NC. Reason for Proposed Action: The other organizations listed under ISA NCAC 19A .0406 (schools K-12, licensed and registered day care facilities. Head Start and colleges and universities) require access to immunization information to fulfill their role in enforcing state immunization laws (G.S. 130A-155 and 155. 1). The mobility ofour country 's population has led to the need for local and state health departments in other states to have access to specific person 's immunization records upon request. Health Maintenance Organizations need access to this data to fulfill state insurance laws, specifically G.S 58-67-50(e). Under North Carolina G.S. 58-67-50(e), every Health Maintenance Organization, for group contracts of 1,000 or more members, is required to provide certain information, including outcomes data, collected in accordance with the latest edition of the Health Plan Employer Data ancti, Information Set (HEDIS) guidelines to the State Insurance Commissioner. Measurement of the age-appropriate immunization ratefor two year-olds is included in the HEDIS guidelines. In addition, HMOs have the authority to obtain this information based on the contractual relationships they maintain both with members and with physicians who administer care to their members. These contracts outline the plans ' rights to access medical information about their members and the plans ' responsibilities to maintain the confidentiality of members ' medical information. Comment Procedures: Comments, statements, data and other information may be submitted in writing within 30 days after the date ofpublication of this issue in the NC Register. Copies of proposed rules and information may be obtained by contacting the Immunization Branch at (919)715-6764. Send written comments to Barbara Laymon, Immunization Branch, 1330 St. Mary's St, 1916 Mail Service Center, Raleigh, NC 27699-1916. Comments will be received through May 1 7, 2000. Fiscal Impact State Local Sub. None • CHAPTER 1 9 - HEALTH: EPIDEMIOLOGY \ SUBCHAPTER 19A - COMMUNICABLE DISEASE CONTROL SECTION .0400 - IMMUNIZATION NOTE: Text in bold was previously approved by Rules Review Commission and are pending an effective day of August 1, 2000: .0406 ACCESS TO IMMUNIZATION INFORMATION (a) Physicians, local health departments and the Department shall, upon request and without consent release the immunization information specified in Paragraph (b) ofthis Rule to the following organizations: ( 1 ) schools K-12, whether public, private or religious; (2) licensed and registered daycar e childcare facilities as defmed in G.S. 1 10-86(3) and G.S. 1 10-101; (3) Head Start; and (4) colleges and universities, whether public, private or religious:; (5) Health Maintenance Organizations: and (6) Other state and local health departments outside of North Carolina. (b) The following is the immunization information to be,p released to the organizations specified in Paragraph (a) of this Rule: I ' 1815 NORTH CAROLINA REGISTER April 17,2000 14:20 PROPOSED RULES (1) name and address; (2) name of the parent, guardian, or person standing in loco parentis; I (3) date of birth; " (4) gender; (5) race and ethnicity; (6) vaccine type, date and dose number administered; (7) the name and address of the physician or local health department that administered each dose; and (8) the existence of a medical or religious exemption determined by the Immunization Section to meet the requirements of G.S. 130A-156and 15ANCAC 19A .0404orG.S. 130A-157. If such a determination has not been made by the Immunization Section, the person shall have access to the certification ofmedical and religious exemptions required by G.S. 130A-156 or G.S. 130A-157and 15ANCAC 19A .0404. Authority G.S. 130A-153. ******************* Notice is hereby given in accordance with G.S. 150B-21.2 that the Commissionfor Health Services intends to amend rules cited as 15A NCAC 19B .0101. .0301 - .0302. .0304. .0309, .0311. .0313. .0320 - .0322. .0502 - .0503. Notice of Rule-making Proceedings was published in the Register on February 1. 2000. proposed Effecrive Date: April 1, 2001 A Public Hearing will be conducted at 9:00 a.m. on May 4. 2000 at the Ground Floor Hearing Room. Archdale Building, 512 Salisbury Street. Raleigh, NC. Reason for Proposed Action: The Forensic Tests for Alcohol Branch is responsible for the training, operation and maintenance of the statewide breath/blood alcohol testing program. The proposed changes reflect the experience and information gathered over the past several years. Proposed rules will allowfor new technology, enhance the Branch 's ability to operate and maintain the statewide program, clarifyforms utilized in breath alcohol testing and clarify operational procedures when conducting breath alcohol tests. Comment Procedures: Comments may be submitted to Al EiesleJr.. Head. Forensic Testsfor Alcohol Branch. 1922 Mail Service Center. Raleigh. NC 27699-1922 within 30 days after the date ofpublication ofthe NC Register. Copies ofpublished rules and information may be obtained by contacting Al Eiesle Jr.. (919) 733-3225. Comments will be received through May 17.2000. Fiscal Impact .State Local Sub. None CHAPTER 19 - HEALTH: EPmEMIOLOGY SUBCHAPTER 19B - INJURY CONTROL SECTION .0100 - GENERAL POLICIES .0101 DEFINITIONS The definitions in G.S. 18B- 101, G.S. 20-4.01, G.S. 130A-3and the following shall apply throughout this Subchapter: (1) "Alcoholic Breath Simulator" shall mean a specially designed constant temperature water-alcohol solution bath instrument devised for the purpose of providing a standard alcohol-air mixture; (2) "Breath-testing Instrument" shall mean an instrument for making a chemical analysis of breath and giving the resultant alcohol concentration in grams ofalcohol per 210 liters of breath; (3) "Controlled Drinking Program" shall mean a bona fide scientific, experimental, educational, or demonstration program in which tests of a person's breath or blood are made for the purpose of determining his alcohol concentration when such person has consumed controlled amounts of alcohol; (4) "Director" shall mean the Director of the Division of Epidemiology Public Health of the Department; (5) "Handling Alcoholic Beverages" shall mean the acquisition, transportation, keeping in possession or custody, storage, administration, and disposition of alcoholic beverages done in connection with a controlled-drinking program; (6) "Observation Period" means a period during which a chemical analyst observes the person or persons to be tested to determine that he the person or persons has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen; the chemical analyst may observe while conducting the operational procedures in using a breath-testing instrument; (7) "Permittee" shall mean a chemical analyst currently possessing a valid permit from the Department to perform chemical analyses, ofthe type set forth within the permit; (8) "Simulator Solution" shall mean a water-alcohol solution made by preparing a stock solution of distilled or American Society for Testing and Materials Tvpe I water and eithe r 60.5 or 48.4 grams of alcohol per liter of solution. Each 10 ml. of this stock solution is fiirther diluted to 500 ml. by adding distilled or American Society for Testing and Materials Type I water. The resulting simulator solution corresponds to the equivalent alcohol concentration o f 0.10 or respectively. 0.08. (9) "Verify Instrument Calibration" shall mean verification of instrumental accuracy of an approved breath testing instrument or approved alcohol screening test device by employment of a control sample from an alcoholic breath simulator using simulator solution and obtaining the expected result or 0.01 less than the expected result as specified in Item 14:20 NORTH CAROLINA REGISTER April 17,2000 1816 PROPOSED RULES (8) of this Rtrfc: Rule; or by employment of a control sample as specified in Item (10) of this Rule. When the procedures set forth for approved breath testing instruments in Section .0300 of this Subchapter and for approved alcohol screening test devices in Section .0500 of this Subchapter are followed and the result specified herein is obtained, the instrument shall be deemed properly calibrated. "Ethanol Gas Canister" shall mean a dry gas calibrator producing an alcohol-in-inert gas sample at an accurately known concentration from a compressed gas cylinder. The resulting alcohol-in-inert gas sample corresponds to the equivalent concentration of 0.08. Authority G.S. 20-139.1(b): 20-139.1(g). SECTION .0300 - BREATH ALCOHOL TEST REGULATIONS .0301 APPLICATION FOR INITIAL PERMIT (a) Application for an initial permit to perform chemical analysis of a person's breath to determine his alcohol concentration shall be made in writing to the Director. The applicant shall have the endorsement of his appropriate supervisor, or his designated representative. The Director shall issue, deny, terminate, and revoke permits for individuals to perform chemical analyses. (b) Permits shall be granted to individuals who: (1 ) demonstrate the ability to perform chemical analyses accurately and reliably in accordance with a method or methods approved by the Commission; (2) can satisfactorily explain the method of operation of the breath-testing instrument for which he is applying for a permit to operate; (3) provide a statement on the application from the applicant's supervisor attesting to the good character of the applicant; and (4) are employed by a law enforcement agency, the ftrpiry Control S ection or members of i ts instructional staff Forensic Tests for Alcohol Branch, or by some other federal, state, county or municipal agency with the responsibility of administering chemical analyses to drivers charged with implied consent offenses. (c) Individuals successfully completing a minimum of 35 course hours as specified in the application on forensic tests for alcohol conducted by the Injury Control Section Forensic Tests for Alcohol Branch shall be deemed to have met the requirements of Subparagraphs (b)(1) and (2) of this Rule. Authority G.S. 20-139. 1(b). .0302 LIMITATION OF PERMIT (a) Permits may be limited in scope to the methods or instruments for performing chemical analyses in which the individual applying for a permit has demonstrated competence. This limitation may be upon the basis of the methods or instruments that received primary emphasis in the particular course of instruction attended by the applicant in the event that successful completion ofthe course is offered as proof of ability to perform chemical analyses. Initial and renewal permits shall state the date upon which they are to become effective and the( date upon which they are to expire. The expiration date shall be no more than 24 months after the effective date. (b) Permits granted under this Section, initial and renewals, shall be valid only during the period the permittee is employed by a law enforcement agency, the Injury Control Section Forensic Tests for Alcohol Branch or a member of its instructional staff, or by some other federal, state, county or mimicipal agency with the responsibility of administering chemical analyses to drivers charged with implied consent offenses. Authority G.S. 20-139. 1(b). .0304 CONDITIONS FOR RENEWAL OF PERMIT (a) Permits shall be subject to renewal at expiration, or at such time prior to expiration as is convenient for the Director, upon demonstration by the permittee of: (1) continuing ability to perform accurate and reliable chemical analyses; (2) ability to satisfactorily explain the method of operation of the breath-testing instrument for which he is applying for a renewal permit to operate; (3) continued employment by a law enforcement agency, the Injury Control Section or a member of its instructional staff Forensic Tests for Alcohol Branch \ or by some other federal, state, county or municipal agency with the responsibility of administering chemical analyses to drivers charged with implied consent offenses; and (4) provide a statement on the application from the applicant's supervisor attesting to the good character of the applicant. (b) Individuals successfully completing a forensic test for alcohol recertification course conducted by the Injury Control Sect ion Forensic Tests for Alcohol Branch shall be deemed to have met the requirements of Subparagraphs (a)(1) and (2) of this Rule for the first and subsequent renewal of permits. (c) Individuals desiring first and subsequent renewal permits, after expiration of their permits, shall successfully complete the following Injury Control Section Forensic Tests for Alcohol Jlli Branch course requirements prior to the granting of renewal permits, unless an exception is granted by the Director: (1) Forensic Tests for Alcohol Recertification Course if the permit has been expired less than six months; (2) Forensic Tests for Alcohol Operators Course if the permit has been expired six months or longer. Authority G.S 20-139.1(b). .0309 QUALIFICATIONS OF MAINTENANCE PERSONNEL (a) Preventive maintenance on all breath-testing instruments shall be performed by a chemical analyst memberofthe Forensic Tests for Alcohol Branch who has successfully completed the 1817 NORTH CAROLINA REGISTER April 17, 2000 14:201 PROPOSED RULES mi ^1 IS re. forensic tests for alcohol technical supervisor's school or a maintenance course for a specific instrument, as conducted by the Injury Control Section Forensic Tests for Alcohol Branch. (b) Chemical analysts qualifying under this Rule shall be anted certificates by the Director authorizing the performance of preventive maintenance on specific models of breath-testing instruments. (1) Certificates shall be granted for an indefinite period but shall be valid only during the period that the chemical analyst possesses a current valid permit to perform chemical analyses of the breath on the specific models of breath-testing instruments for which preventive maintenance is being performed. (2) Certificates shall be subject to revocation under the same provisions specified under Rule .0308 of this Section for revocation ofpermits to perform chemical analyses. (3) The Director shall have the same evaluation authority over holders of certificates as he possesses over permittees under Rule .0307 of this Section. Authority G.S. 20-1 39.1(b). .0311 LOG (a) Logs shall be kept on forms provided by the Department. Each permittee shall keep a monthly log identifying each individual who submits to or refiises a chemical analysis by completing all identifying information. If no chemical analysis is performed during the month, the permittee shall enter name, ermit number, agency, month and write "NONE" across the form. All monthly logs shall be forwarded to the Director and are due by the end of the following month unless otherwise specified in Paragraph (b) of this Rule. However, any log identifying a blood analysis shall not be submitted until the result is recorded. (b) A permittee who performs chemical analyses of the breath utilizing an automated breath-test instrument placed in service for the statewide program administered by the Injury Control Section Forensic Tests for Alcohol Branch of the Department shall not be required to comply with Paragraph (a) of this Rule. Authority G.S. 20-16.50); 20-139. 1(b). .0313 BREATH-TESTING INSTRUMENTS (a) The standards for the approval of breath-testing instruments are as follows: ( 1 ) The Commission approves the method of performing chemical analyses through the use of breath-testing instruments of a design and of a model specifically approved by the Commission as meeting, to its satisfaction, standards of accuracy, reliabilify, convenience and efficiency of operation. (2) The Injury Control Section Forensic Tests for Alcohol Branch shall evaluate and recommend to the Commission only those breath-testing instruments I which meet the minimum requirements as set forth in the current state purchase and contract bid specifications for automated evidential breath alcohol testing instruments. (3) The succeeding rules of this Section establish operational and preventive maintenance procedures for breath-testing instruments approved by the Commission. (b) The standards for the reporting of sequential tests are as follows: (2) In recording the results of a chemical analysis under G.S. 20-139.1(e) and in reporting results for use in court or in an administrative proceeding, the chemical analyst shall report the results of all tests of breath performed in conducting the chemical analysis. These resul ts may be used for all relevant purposes, but these results may not be used to prove a person's particular alcohol concentration unless a pair of consecutively administered tests do not differ from each other by an alcohol concentration ofgreater than U.Uz. In proceedings in court and before administrative agencies, the state may use all breath-test procedures and results for all relevant purposes, but when there is a difference in readings, the state may use only the lower of the two consecutive readings that meet the requirements of Paragraph (b) to prove a person's particular alcohol concentration. "Particular alcohol concentration" is an alcohol concentration that has legal — significance—under—CrS: — 20-138. 1(a)(2), 20- 1 6.5(b)(4), 20- 1 79(d)(1), and 20-179(m). Authority G.S. 20-16.50); 20-139.1(b). .0320 INTOXILYZER: MODEL 5000 The operational procedures to be followed in using the Intoxilyzer, Model 5000 are: (1) Insure instrument displays time and date; (2) Insure observation period requirements have been met; (3) Press "START TEST"; when "INSERT CARD" appears, insert test record; (4) Enter appropriate information; (5) Verify instrument calibration; (6) When "PLEASE BLOW" appears, collect breath sample; (7) When "PLEASE BLOW" appears, collect breath sample; (8) When test record ejects, remove. If the alcohol concentrations differ by more than 0.02, a third or subsequent test breath sample shall be administered collected when "PLEASE BLOW" appears. Ifnecessarv. subsequent tests shall be administered as soon as feasible by repeating steps (1) through (8), as applicable. Authority G.S. 20-139.1(b); .0321 PREVENTIVE MAINTENANCE: INTOXILYZER: MODEL 5000 The preventive maintenance procedures for the Intoxilyzer Model 5000 to be followed at least once every four months are: 14:20 NORTH CAROLINA REGISTER April 17, 2000 1818 PROPOSED RULES ( 1 ) Verify alcoholic breath simulator thermometer shows 34 degrees, plus or minus .2 degree centigrade; (2) Verify instrument displays time and date; (3) Press "START TEST"; when "INSERT CARD" (2) appears, insert test record; (4) Enter appropriate information; (5) Verify instrument calibration; (6) When "PLEASE BLOW" appears, collect breath sample; (7) When "PLEASE BLOW" appears, collect breath sample; (8) When test record ejects, remove; (9) Verify Diagnostic Program; (10) Verify alcoholic breath simulator solution is being changed every four months or after 125 Alcoholic (3) Breath Simulator tests, whichever occurs first. A signed original ofthe preventive maintenance checklist record shall be kept on file for at least three years. Authority G.S. 20-139. 1(b) (b4). .0322 REPORTING OF ALCOHOL (4) CONCENTRATIONS When perfornung chemical analyses of breath under the authorify of G.S. 20-139.1 and the provisions of these rules, chemical analysts shall report alcohol concentrations on the basis of grams of alcohol per 210 liters of breath. All results shall be reported to hundredths. Any result between hundredths shall be reported to the next lower hundredth. The Intoxilvzer 5000 is an automated breath test instrument which prints the results of the analysis. Authority G.S. 20-1 39. 1(b). SECTION .0500 - ALCOHOL SCREENING TEST DEVICES Permanent—dental Dental devices that—arc—of | non-porous material and /or oral jewelry need not be removed. Unless the driver volunteers the information that hi has consumed an alcoholic beverage within the previous 15 minutes, the officer shall administer a screening test as soon as feasible. If a test made without observing a waiting period results in an alcohol concentration reading of 0.08 or more, the officer shall wait five minutes and administer an additional test. If the results of the additional test show an alcohol concentration reading more than 0.02 under the first reading, the officer shall disregard the first reading. If an officer has any question concerning any screening test results, to help him determine whethei there is probable cause for believing the driver to be impaired by an impairing substance the The officer may request that the driver submit to one or more additional screening tests and, if appropriate, wait a reasonable period between tests. In administering any screening test, the officer shall use an alcohol screening test device approved under Rule .0503 of this Section in accordance with the operational instructions supplied with or listed on the device, except that the waiting periods set out in this Rule supersede any period specified by the manufacturer of the device. Authority G.S. 20-16.3. .0503 (5)(3} .0502 APPROVAL: ALCOHOL SCREENING TEST DEVICES: USE (a) Alcohol screening test devices that measure alcohol concentration through testing the breath of individuals are approved on the basis of results of evaluations by the Injuiy Control Section Forensic Tests for Alcohol Branch. Devices shall meet the minimum requirements as set forth in the current state purchase and contract bid specifications for Alcohol Screening Test Devices. Evaluations are not limited in scope and may include any factors deemed appropriate to insure the accuracy, reliability, stability, cost, and ease of operation and durability of the device being evaluated. On the basis of evaluations to date, approved devices are listed in Rule .0503 of this Section. (b) When the validity of an alcohol screening test of the breath of a driver administered by a law enforcement officer depends upon approval by the Commission ofthe test device and its manner of use, the test shall be administered as follows: (1) The officer shall determine that the driver has removed all food, drink, tobacco products, chewing gum and other substances and objects from his mouth. (2} APPROVED ALCOHOL SCREENING TEST DEVICES: CALIBRATION (a) The following breath alcohol screening test devices are approved as to type and make: ALCO-SENSOR (with two-digit display), made by Intoximeters, Inc. ALCO-SENSOR III (with three-digit display), made by Intoximeters, Inc. BREATH-ALCOHOL TESTER MODEL BT-3, l« ( (1) (2) (3) (4) made by RepCo., Ltd. ALCOTEC BREATH-TESTER, made by RepCo., Ltd. ALCO-SENSOR IV, manufactured by Intoximeters, Inc. (6){4} PBA 3000, manufactured by Life Loc, Inc. f7)£5) SD-2, manufactured by CMI, Inc. (b) The agency or operator shall verify instrument calibration of each alcohol screening test device at least once during each 30 day period of use. The verification shall be performed by employment of an alcoholic breath simulator using simulator solution in accordance with these Rules or an ethanol gas canister. (1) Alcoholic breath simulators used exclusively to verify instrument calibration of alcohol screening test devices shall have the solution changed every 30 days or after 25 calibration tests, whichever occurs first. Ethanol gas canisters used exclusively to verify I K 1819 NORTH CAROLINA REGISTER April 17,2000 14:20 PROPOSED RULES instrument calibration of alcohol screening test devices shall not be utilized beyond the expiration date on the canister. 1^(2) 0} Requirements of Paragraph (b) and Subparagraph (b)(l)(2} of this Rule shall be recorded on an alcoholic breath simulator log or an ethanol gas canister log designed by the Injury Control Section Forensic Tests for Alcohol Branch and maintained by the user agency. Authority G.S. 20-16.3. ******************** Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission for Health Services intends to adopt the rule 15A NCAC26B .0109, amend rules cited as 15A NCAC 26B .0101 - .0106, .0108 and repeal rule cited as ISA NCAC 26B .0107. Notice ofRule-making Proceedings was published in the Register on February 1, 2000. Proposed Effective Date: April 1, 2001 A Public Hearing will be conducted at 9:00 a.m. on May 4, 2000 at the Ground Floor Hearing Room, Archdale Building, 512 Salisbury Street, Raleigh, NC Reason for Proposed Action: Legislation enacted on May 7, 1999 changed the reporting requirementfor cancer cases and imposed afinancialpenaltyforfailure to report. Theproposed Khanges in the rules address implementation ofthis legislative action. An update was needed to reflect changes in the mailing address and to remove redundant language and inconsistencies between the rules related to the cancer registry and those related to the State Centerfor Health Statistics. Comment Procedures: Written comments may be submitted to Dr. John Booker, Director, State Centerfor Health Statistics, 1903 Mail Service Center, Raleigh, NC 27699-1903, within 30 days after the date of publication of this issue of the NC Register. Copies of the proposed rules may be obtained by contacting Dr. John Booker at (919) 715-4499. Comments will be received through May 1 7, 2000. Fiscal Impact State Local Sub. None • CHAPTER 26 - INFORMATION SERVICES SUBCHAPTER 26B - CANCER REGISTRY SECTION .0100 - SCOPE 0101 GENERAL »(a) The purpose ofthe central cancer registry is to receive and o compile, tabulate, and preserve statistical, clinical, and other reports and records relating to the incidence, treatment and cure of cancer, and to provide assistance and consultation for public health work. The statistical reports and records, and the assistance rendered to hospitals health care facilities, health plarming agencies and research facilities are intended to improve cancer treatment, extend the life of the cancer patient, identify high risk groups or areas of the state and attempt to lower the morbidity and mortality of cancer in North Carolina. (b) The central cancer registry is administered by the Division of Stat istics—and — Information—Services,—North — Carolina Depaitment of Environment, Health, and Natural Resources, P.O. Box 27687, Raleigh, North Carolina 27611-7687 State Center for Health Statistics, Division of Public Health. North Carolina Department of Health and Human Services. 1 908 Mail Service Center, Raleigh. North Carolina 27699-1908. Authority G.S 130A-205; 130A-208 through 130A-213; S.L 1999-33 s. 1. .0102 DEFINITIONS The following definitions shall apply throughout this Section: (1) "Abstract" refers to a document or documents, including electronic documents and files , containing information drawn from a cancer patient's medical record. (2) "Cancer registrar" is a registrar who abstracts information from the medical records of cancer patients. (3) "Death match" refers to the procedure of comparing registry cases with death certificate information, for confirmation of the reported death of any cancer patient, and to determine if the cancer constituted the cause of death, and for identification of cases missed in routine reporting procedures. (4) "Definitive treatment" refers to all methods of treatment anticipated—for complete— r emoval—or destruction of a malignancy intended to modify or control the cancer including no treatment, palliative care, and follow-up care. (5) "Follow-up information" is a request sent to a physician for current information on the post-treatment status of a cancer patient whose abstract was submitted to the registry in the past previously. (6) "Identifying information" is any portion of any abstract or incidence report that might reveal the personal identity of a cancer patient. "Incidence report" refers to a document or document s containing informat ion reporting the diagnosis of a case of cancer to the registiy by a physician. (7) "Morphologic information" refers to pathology, or cytology, tumor markers, or laboratory tests that identify readings ident i fying cell types of malignant neoplasms. (8) "Palliative treatment" refers to treatment that is not intended to effect a cure, but the treatment procedure is expected to improve "quality of life" by temporarily relieving distressing symptoms. (9) "Participating hospital facility" is a medical health care facility which that submits abstracts to the registry. 14:20 NORTH CAROLINA REGISTER April 17,2000 1820 PROPOSED RULES (10) (11) (12) (13) (14) "Pathology report" is the written report generated by a pathologist, stating the diagnostic interpretation of tissue samples or cellular material examined by the pathologist. "Personnel" means persons who are employees of the Department of Human Resources Health and Human Services, or who are persons who provide services to the central cancer registry through a written contract. "Positive pathology report" is a pathology report confirming the presence of cancer. "Registrar" is an employee of a medical health care facility who prepares abstracts of medical records. "Registry" is the central cancer registry. The registry is administratively assigned to the Division of Statis tics and Information Services, Depai Unent o f Environment, Health, and Natural Resources State Center for Health Statistics, Department ofHealth and Human Services. (15) "Statistical report" refers to a report generated by the registry for informational or educational purposes. A statistical report contains aggregated data and does not contain identifying information. "Tumor registrar" is a registrar who abstracts infui nialioi i fi oui the medical records of cancer patients. Authority G.S. 1999-33 s. 1. 130A-205; 130A-208 through 130A-213; S.L. .0103 CONFIDENTIALITY (a) The clinical records of individual patients submitted to the registry shall be confidential and shall not be public records open to inspection. Only personnel authorized by the head of the cancer control program director of the State Center for Health Statistics and other individuals authorized by the head of the cancer control program director of the State Center for Health Statistics or his his/her designee pursuant to Paragraph (c) of this Rule shall have access to the records. (b) The information contained in the clinical records of individual patients submitted to the registry may be transferred to computer-compatible means of data entry. Only personnel authorized by the head of the cancer conti'ol program director of the State Center for Health Statistics to use computers, terminals, programs, data files, and other computer hardware or software involved in maintaining patient information shall have access to them. (c) Clinical information in possession of the registiy may be disclosed in the following circumstances when authorized by the head of th e cancer control program director of the State Center for Health Statistics or his his/her designee: ( 1 ) A patient shall have access to review or obtain copies of his his/her records; (2) A person who submit s a valid authorization for rel eas e shall have access to review or obtain copie s of the infonnation de scribed in tlie authorization for re l ease; (2) Information may be disclosed in response to a valid court order; (3) Information may be disclosed as provided in Rule (4) (d) ^mOb .0106 of this Section; Information contained in death certificates on file with the division (but not actual copies of death certificates) may be released to a participating hospital facility when the hospital facility requests a death match for confirmation of the reported or suspected deaths of cancer patients treated at that hospital facility. Death match information released by the registry shall include only that information contained in the death certificates. The cancer control program State Center for Health Statistics may release statistical information and data based on client information so long as no information identifying individual patients is released. (e) Photocopying or other reproduction ofany clinical records or reports containing identifying information, except as may be required in the conduct of the official business of the registry, is prohibited. (f) Any legible documents other than the original incidence report s and abstracts, such as computer printouts or photocopies of any documents containing identifying information, shall also be considered confidential material while in active use, and shall be destroyed immediately upon termination of their use by the registry. (g) Original copies of reports and abstracts, and follow-up information received thereunto, shall be retained for 5 years by the registry. (h) The head of the cancer control program director of the State Center for Health Statistics shall make knovra to all individuals with access to patient information submitted to the\ cancer control program registry the privileged and confidential nature of such information. Authority G.S. 1999-33 s. 1. 130A-205; 130A-208 through 130A-213; S.L. .0104 REPORTING OF CANCER (a) Any report of cancer required by G.S. 130A-209 to be reported to the registry shall contain at l east tlie following information: f¥) name, addi'ess, zip code, and county of residence of the pat ient ; (2) date of birth, race and sex of the pat i ent ; (3^ pathologic diagnosis; and (4) th e name of the physician submitting the report. (a) Health care facilities and providers are required to submit a complete abstract for each cancer case that is screened. diagnosed, treated, or followed by its staff and that was initially diagnosed with cancer subsequent to January l^ 1990. A complete abstract is defined as one that adheres to the current standards and definitions of the North American Association of Central Cancer Registries' Standards for Cancer Resistries, the International Classification ofDiseases for Oncolozv, and the current version of the registry's Operations Manual. (b) A physician health care provider or facility may delegate the cl er i c al tasks of incidence reporting of cancer cases to office or hospital staff but the physician provider or facility cannot delegate the legal responsibility for the incidence reporting of I' 1821 NORTH CAROLINA REGISTER April 17,2000 14:20 PROPOSED RULES cancer to others. (c) A report of cancer shall be submitted to the registry by either health care facilities and providers by one ofthe following ethods: (1) by submission of a positive pathology report an electronic file containing the information required in Paragraph (a) of this Rule; to beretained for Five years by the registry; or (2) for pathology laboratories, by submission ofa hospital computer billing tape positive electronic pathology report containing the information required in Paragraph (a) of this Rule; Rule;or The tape shall be copied by the registry and returned to the hospital. (3) facilities or providers that have fewer than 30 reportable cases per year may submit photocopies of the medical record sufficient to complete a fiill abstract of the case. (d) Because in some circumstances it is difficult to obtain complete residence information required in Subparagraph (a)(1) of this Rule, the incidence report shall be conditionally acceptable for submission provided reasonable steps are taken to obtain the missing information. The physician submitting tlie report shall forward this information to the registry when i t become s available. (d) (c) The following documents shall not constitute an incidence a report of cancer: (1) an absti 'act submitted to tlie registry by a participating hospital a death certificate; (2) a request for authorization submitted to the Cancer I program requesting third party reimbursement for treatment of cancer, although a positive pathology report is required by 10 NCAC 8A .0408(f). (e) (f) Reports shall be forwarded to the following address: Central Cancer Registry, Division of Statis tics and Information Services, Depai tment of Environment , Health, and Natural Resources, P.O. Box 27687, State Center for Health Statistics, 222 N Dawson Street, 1908 Mail Service Center, Raleigh, North Carolina 276 11-7687 27699-1908. Authority G.S. 130A-205; 130A-208 through J30A-213; S.L. 1999-33 s. 1. .0105 COOPERATION OF THE CENTRAL CANCER REGISTRY WITH HEALTH FACILITIES (a) Any hospital or other medical health care facility that is staffed and equipped for the diagnosis, treatment or follow-up care of cancer patients may participate with the registry in the exchange of information regarding the referral, treatment, maintenance or cure of cancer. (b) The registry shall cooperate and consult with participating hospitals and medical health care facilities and providers to the end that tumor cancer registries in such facilities may provide the most accurate data available and may otherwise operate in the best interest of the cancer patients being treated therein. The registry will provide: f (1) Quality control reports to assure the that computerized data utilized for statistical information and data compilation is are correct; (2) The most accurate and effective treatment, survival and comparative information available; (3) Educational information available from registry, morbidity and mortality statistics upon request of a professional staff; (4) Assistance to medic al health care facilities by providing appropriate data and consultation to help the facilities meet the requirements for accreditation as a cancer treatment center, and to assist in the maintenance of such accreditation; (5) Confirmation of the reported or presumed deaths (including such causes of deaths) of cancer patients to assist medical health care facilities to more accurately assess patient survival and to conduct more efficient long-term follow-up of cancer patients. (6) Other information for the purpose of follow-up of a patient. This information is limited to the name of another facility or physician providing services to the patient, the date of last contact with the patient, and the vital status. A medical facility may provide to the registry abstracts on all cancer inpatient records and those cancer outpatient records the medical s taff deems appropriate. Tlie abstracts shall contain at least the following information : (:¥)—Name, address, zip code, and county of residence of the pat ient; Date of birth, race, and sex of the patient ; Date of original diagnosi s; (2^ (4) Diagnoses, including primary si te, extent of disease, basis of diagnosis and morphologic information; (5) Date of hospital admission, or fu' s t date of treatment as applies to outpat i ent treatment; (6) Date of hospital discharge or date of last contact with medical staff or date of death if deatli occurs during the abstracted inpatient stay; (7) Selected pertinent treatment iufoi uiation, including : (A) — dates of treatment ; (B) definit ive and palliative surgical procedure s ; (C)— r adiation tieatment, including total radiat ion dosage , dosage (rads) per tieatnient, and sites of body treated; (B) chemotherapy—or — hormone—tl ^eatlnellts, including names of drugs administered, ideal dosage and schedule of treatment ; (E) if iiu UeaUiient given, the abstract shall indicate why no treatment was administere d. Absti -acts shall be foi-warded to the following addj ess: Cential Cancer Registiy, N.C. Division of Stat istics and Infoiiiiation Servi ces, P.O. Box 27687, Rale igh, N.C. 2761 1-7687. Authority G.S. 130A-205; 130A-208 through 130A-213: S.L. 1999-33 s. 1. .0106 RELEASE OF CENTRAL CANCER REGISTRY DATA FOR RESEARCH (a) The registry may release statistical data to any person or agency for the following purposes: (1) medical research or education; 14:20 NORTH CAROLINA REGISTER April 17, 2000 1822 PROPOSED RULES (2) epidemiological studies; (3) health education; (4) health planning or administration; (5) required statistical reports; and (6) other statistical reports bywritten request for research, information or education. (b) A medical researcher may request the release of clinical medical records from the registry by the submission of a written research proposal, to tlie registry containing the following information: This request must adhere to the requirements pertaining to release of medical records by the State Center for Health Statistics as defined by NCAC 26A .0002. ft^ — purpose of the research; (2)— r esearch design; (3) proposed benefits to be derived from such research; (4) a statement ofcompliance with all applicable s tate and federal requirements regarding the confidentiality of patient records; and (5) if the research is to be credited toward a degree to the researcher, or if the research is being otherwise conducted by an institution of higher learning, the proposal shall contain a statement, signed by the dean of the school, or his designee, declaring that the proposed research is in compliance with all applicable research criteria of the institution. (c) The clinical medical records or reports of the individual patients may be disclosed to research staff for the purpose of medical research, provided that the registry has determined that: ( 1 ) disclosure of this information is deemed necessary to accomplish the purposes of the research; (2) the research warrants the risk to individual patients of the potential disclosure of their medical records; and (3) adequate safeguards to protect the clinical medical records or identifying information are established or maintained. (d) The registry shall provide regular reports of research activity and data released to the cancer committee of the North Carolina Medical Society. Where there exists the potential for direct patient contact, the regi stry shall consult with the chairman of the Committee on Cancer of the North Carolina Medical Society in before determining whether to release information for research as provided in Paragraphs (b) and(c) of this Rule. The registry shall forward the research proposal to the chairman for review. The chairman may forward the proposal to any or all members of the committee for comment. (e) Any copies of reports or records provided to the reseai'cher by the registry shall be desti'oyed upon terminat ion of the research. ( f) Upon completion of the study, the reseai^cher shall submit one copy of the completed re s earch paper to the registry. The registry shall ti 'ansmit the paper to the chaii'man of the cancer comntittee of the North Carolina Medical Society for review, to be returned to the registiy for File. If the chaii'man deems the reseai 'ch to be of importance to the practicing physicians of the s tate, then the chairman may recommend with the concurrence of the re s earcher, the research agency or institut ion, that the abstract of the research paper be published in the "North Carolina Medi cal Journal." Authority G.S. 130A-205; 130A-208 through 130A-213; S.L. 1999-33 s. 1. .0107 CODING OF INCIDENCE REPORTS AND ABSTRACTS !• The registry shall code the information contained in uicidence report s, and shall accept abstracts that have been coded according—to—the—current— of the—International r evision Classification of Diseases (clinical modification) Authority G.S. 130A-205: 130A-208 through 130A-213. .0108 ASSISTANCE AND CONSULTATION FOR PUBLIC HEALTH WORK (a) The registry shall provide assistance and consultation for public health work. (b) The registry shall accept requests for assistance and consultation for any agency, facility or organization actively engaged in the effort to reduce the incidence of cancer, whether through direct service to or the education of cancer patients and their families, the public, or the medical health care professions. (c) The registry may accept requests firom students requesting assistance with research projects in accordance wath the provisions of .&866 .0106 ofthis Subchapter and the availability of staff time and resources. Authority G.S. 130A-205; 130A-208 through 130A-213; S.L. 1999-33 s. 1. ,0109 FAILURE TO REPORT (a) The registry shall monitor the reporting of health care facilities and providers on a quarterly basis. If a health care facility or provider has failed to report at least 90 percent of its cases within six months of diagnosis, the registry shall notify the facility or provider in writing of that fact and the facility or provider shall be given another 30 days to fiilfill its reporting requirement. (b) If a facility or provider is out of compliance for two consecutive quarters and is not demonstrating progress toward becoming compliant, then the State Health Director shall direct the registry to collect the data and shall direct the facility or provider to reimburse the registry for all actual costs expended in order to obtain the data up to $100 per case abstracted. The amount of the reimbursement shall include both travel expenses and the full cost of personnel time. (c) Facilities or providers may request the director of the registry for abstracting assistance at no cost to them. The decision as to what assistance will be provided shall be based on the following: (1) Size of the facility. Any facility whose annual caseload exceeds 70 cases per year shall reimburse the (21 £3} (4} 15} registry for such assistance. Consistency of non-compliance. Staffing of the registry. Duration of needed assistance. The registry shall not provide long term abstracting assistance to any facility that has greater than 1 00 cases per year. The potential for compromising the registry's data 1823 NORTH CAROLINA REGISTER April 17, 2000 14:20 PROPOSED RULES quality. (6) Plans of the facility to reach compliance. uthority G.S. 130A-205; 130A-208 through 130A-213; S.L. 1999-33 s. 1. TITLE 19A - DEPARTMENT OF TRANSPORTATION Notice is hereby given in accordance with G.S. 15OB-2}. 2 that the NC Department of Transportation - Division of Motor Vehicles intends to amend the rule cited as 19A NCAC 03D . 0802. Notice ofRule-making Proceedings was published in the Register on January 14, 2000. Proposed Effective Date: April 1, 2001 Instructions on How to Demand a Public Hearing (must be requested in writing within 15 days ofnotice): A Demandfor a Public Hearing must be made in writing and mailed to Emily Lee, NCDOT, 1501 Mail Service Center, Raleigh, NC 27699- 1501. Reason for Proposed Action: This Rule is proposed for amendment to correct U.S. Code of Federal Regulations citations and to add more explicit terminology to the existing rule. kL^omment Procedures: Any interested person may submit yi^ritten comments on theproposed rule by mailing the comments to Emily Lee, NCDOT, 1501 Mail Service Center, Raleigh, NC 27699-1501. by May 15, 2000. Fiscal Impact State Local Sub. None / CHAPTER 3 - DIVISION OF MOTOR VEHICLES SUBCHAPTER 3D - ENFORCEMENT SECTION SECTION .0800 - SAFETY RULES AND REGULATIONS .0802 HAZARDOUS MATERIALS (a) The rules and regulations adopted by the U.S. Department of Transportation and the rules and regulations adopted by the U.S. Department of Transportation relating to hazardous materials (49 CFR Parts 170-185 170-190 - fonnerly Parts 71-79 - and amendments thereto) shall apply to all for-hire and all private motor carrier vehicles engaged in interstate commerce and or intrastate commerce over the highways of the State of North Carolina, whether common carriers, contract carriers or exempt caiiieis. Carolina. ^(b) The rules and regulations adopted by the U.S. Department of Transportation and the transportation of hazardous materials (49 CFR 170-185 170-190 and amendments thereto) shall also apply to all for-hire motor carriers and all private motor carriers engaged in the transportation ofhazardous waste and radioactive waste materials in interstate and or intrastate commerce over the highways of the State of North Carolina. (c) The rules and regulations adopted by the U.S. Depai tineiit of Transportation and the rul es and regulations adopted by the U.S. Depaitment of Transportation relating to hazardous materials (49 CFR Parts 170-190 and amendments thereto) shall apply to all private motor carrier vehicles on the highways of the State of North Carol ina used in commerce to transport passengers or cargo: (f) if such vehicle has a gross vehicle weight rating of ten thousand pounds or more; (2) i f such vehicle is designed to ti "ansport more than ten passengers, including the driver; or (3) if such vehicle is used in the transportation of materials found to be hazai-dous in accordance with the Hazardous Materials Transportation Act as amended in Tit le 49, Code of Federal Regulations. (d)(c} All Code of Federal Regulations (CFR) Parts cited in this Section are incorporated herein by reference including any subsequent amendments. A copy of the CFR is available from the Office of Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402 at a cost set by that office. Authority G.S. 20-2; 20-381. TITLE 25 - DEPARTMENT OF STATE PERSONNEL Notice is hereby given in accordance with G.S. 150B-21.2 that the State Personnel Commission intends to adopt rule(s) cited as25 NCAC IC .0801 -.0813. Notice of Rule-making Proceedings was published in the Register on February 15, 2000. Proposed Effective Date: April 1, 2001 A Public Hearing will be conducted at 9:00 a.m. on May 10, 2000 at the Administration Building, Third Floor Conference Room, 116 West Jones St, Raleigh, NC 27603. Reason for Proposed Action: Pursuant to Executive Order No. 155 and S.L. 1999-328 the above referenced rules were proposed to be adopted as temporary rules and were adopted as temporary rules effective January 19, 2000. These rules will demonstrate the State's leadership in reducing ground-ozone and motor vehicles emissions through policies and guidelines. This program would allow employees to workfrom their homes instead of driving to the traditional office, and could be an essential part of a plan to control the growth in vehicle miles traveled, reduce gasoline consumed and air pollution emitted. Comment Procedures: Written comments may be submitted to Ms. Judith Bell, Office of State Personnel, 1333 Mail Service Center, Raleigh, NC 27699-1333. Oral comments will be received at the public hearing. Written comments must be 14:20 NORTH CAROLINA REGISTER April 17, 2000 1824 PROPOSED RULES received no later than June 16, 2000. Fiscal Impact State Local / Sub. None • CHAPTER 1 - OFFICE OF STATE PERSONNEL SUBCHAPTER IC - PERSONNEL ADMINISTRATION SECTION .0800 - REQUIREMENTS FOR TELEWORKING PROGRAMS .0801 PURPOSE Pursuant to the mandate contained in G.S. 126- to apply the best methods ofpersonnel administration as evolved in business and industry, the Office of State Personnel has established the following rules to provide guidance to agencies in developing teleworkingprograms. Given the widespread use ofteleworking programs in the private sector, and the increasing frequency of teleworking programs in the public sector, it is necessary that guidelines be established by the Office of State Personnel so that teleworking may be offered by state agencies as a work options to ensure competitive advantages with other employers and to meet the environmental and budgetary challenges of the fiiture as directed by the legislature and governor. Authority G.S. 126-4; S.L. 1999-328. .0802 COVERED EMPLOYEES Teleworking is available as a work option in every agency and for every type of appointment, including permanent, temporary, contract, or time limited and whether full time or part time- However, the decision whether to allow a position or an employee to telework is wholly within management discretion and is not appealable to the State Personnel Commission. Authority G.S. 126-4; S.L. 1999-328. .0803 DEFINITIONS OF TERMS For purposes ofthis rule, the terms below mean the following. (1) Teleworking: a flexible work arrangement that allows an employee to work at home, on the road, or from another satellite location for all or part of their work week. If job responsibilities require it. the teleworker may be connected to the regular work location via computer or may simply maintain contact via phone or fax. (2) Teleworker: an employee who performs all or part of his job responsibilities away from the primary workstation pursuant to a teleworking arrangement. (3) Telecommutable Jobs: jobs, which have one or more responsibilities, which are location independent and measurable and could be performed from the primary workstation, home, or another work location. £4} Telework: those responsibilities which are performed from home or some other work location away from the primary workstation. Authority G.S 126-4; S.L. 1999-328. .0804 OFFICE OF STATE PERSONNEL RESPONSIBILITIES The Office of State Personnel will administer an office to provide guidance to State agencies developing teleworking 1' programs and to monitorthe savings provided by such programs. The Office shall: (1) Provide coordination for the programs; £2] Provide staff to the Teleworking Advisory Ql (4] (5} £6) Committee: Conduct orientation for agency coordinators; Train agency coordinators; Review and approve any reports on the teleworking programs; and Compile, analyze, and report the impact of teleworking programs in the State report. Authority G.S 126-4; S.L. 1999-328. .0805 DESIGNATION OF TELEWORK JOBS AND TASKS Each agency shall establish general agency policies and procedures which provide for the definition of telecommutable jobs/tasks. (1) Each agency must identify jobs that are designated as telecommutable and be responsible for providing documentation, evaluation, and analysis to support the selection of these jobs. A job should not be considered for teleworking if other positions are negatively impacted. However, a job may be considered if the incumbent employee is able to: (a) Meet internal agency and client needs while teleworking; (h) Set clear work objectives, with timelines and clear expectations; (c) Control and schedule work flow; £d} m Set clearly defined tasks for teleworking days; Benefit from quiet or uninterrupted time; and £2) Schedule face-to-face meetings on specified days, to leave the other days free for teleworking. Possible teleworking tasks may include but are not limited to the following: Analysis, auditing reports, batch work, calculating, computer programming, conducting business by phone, data entry, design work, dictating, drafting, editing, evaluations, field visits, graphics, maintaining data bases, preparing budgets, preparing/monitoring contracts, project management, reading, record keepin g, research, sending/receiving E-mail, spreadsheet analysis, typing, word processing, writing, etc. Authority G.S 126-4; S.L. 1999-328 .0806 DESIGNATION OF EXPECTED RESULTS OF TELEWORKING ARRANGEMENTS 1825 NORTH CAROLINA REGISTER April 17,2000 14:20 PROPOSED RULES (a) Each agency shall establish agency policies and procedures that provide for the definition of expected results under a teleworking arrangement; \ £b) The agency shall follow the following guidelines when defining expected results of a teleworking arrangement: (1) Each agency shall establish measurable performance standards which are results-oriented and which describe quantity and quality of work. (2) Each employee selected for participation in the teleworking program will be expected to meet the established responsibilities of the position. Teleworking does not affect the established responsibilities of the position. (3) The manager, in approving the teleworking arrangement, is responsible for determining the expected results for the agreed upon work arrangement. These results should be discussed and agreed to by the teleworker. supervisor, and manager prior to the dates for the teleworking and should be put in writing for the teleworker and the manager. The teleworker' s direct supervisor should be involved in the decision process since any work done by the teleworker must be within the framework of the current assignment. Authority G.S. 126-4; S.L. 1999-328. .0807 DESIGNATION OF AN AGENCY TELEWORKING COORDINATOR I Each participating agency will select an Agency Teleworking Coordinator to be responsible for overall program organization and analysis. The Agency Coordinator shall: (1) Provide oversight for the agency teleworking program. (2) Arrange briefing to educate management about the teleworking program. The Office of State Personnel will provide a briefing about teleworking in general. if desired. (3) Work with agency management to determine the parameters of the agency teleworking programs. (4") Distribute survey before telecommuting is implemented to participating supervisors and teleworkers to be completed and returned to the AgencyTeleworkingCoordinatorprior to the training. (5) Provide training of teleworker/supervisor teams. During the training, teleworkers and their supervisors will develop the terms of the teleworking arrangement which will be in writing and signed by both the employee and the supervisors. (6) Meet with teleworkings participants in periodic focus groups to learn of their experiences and to address problems and suggest resolutions if necessary. (7) After a position has been designated teleworking for six months, issue a survey to supervisors, teleworkers and related non-teleworkers. (8) Meet with upper management to discuss survey results, recommend program revision, and identify program expansion opportunities within the agency. Authority G.S. 126-4; S.L. 1999-328. .0808 DESIGNATION OF EMPLOYEES FOR TELEWORK ARRANGEMENT Each participating agency will identify selection criteria for employees. Each agency has the authority to determine which employees under its supervision meet the agency standard for selection. These standards, which are necessary for a successful teleworking arrangement, shall include that the employee: (T) Is able to work independently; requires minimal supervision; (2) Requires minimal face-to-face interaction while teleworking; (3) Has a high level of job knowledge and skill; £4} Is results oriented; comfortable setting priorities and deadlines; (5) Has demonstrated a high level of productivity; (6) Has a history of reliability; £7} Has a Ml understanding of the operations of the office and the specific requirements of the telecommutable job; (8) Keeps supervisor informed of progress and/or problems; £9} Knows who can make what decisions; (10) Trusts the supervisor; (11) Functions at good or above level; (12) Has a safe and adequate work site free from interruptions and secure; (13) Prefers the home environment at least some of the time; and (14) Understands that teleworking is a work option granted by management; and is willing to sign a written summary of the terms of teleworking arrangement. Authority G.S 126-4; S.L. 1999-328. .0809 DESIGNATION OF EMPLOYEES FOR TELEWORK ARRANGEMENT Each participating agency will identify selection criteria for supervisors. Each agency has the authority to determine which employees under its supervision meet the agency standard for selection. These standards, which are necessary for a successful teleworking arrangement, shall include that the supervisor: Trusts employees to do their jobs without constant face-to-face supervision; Has a results-oriented management style and establishes clear, measurable objectives and desired results; Is flexible, allowing new approaches and solutions, and is open to ideas from employees; Keeps an open, positive attitude toward teleworking; Provides timely and constructive feedback; and Facilitates open communication among the members of the team, including the supervisor, teleworker, co-workers and support staff ill £2) 0} £4} (5} £6} Authority G.S 126-4; S L. 1999-328. 14:20 NORTH CAROLINA REGISTER April 17,2000 1826 PROPOSED RULES .0810 DESIGNATION OF EMPLOYEES FOR TELEWORK ARRANGEMENT Each participating agency will provide for the orientation and training of all teleworkers and supervisors. All participants in a teleworking arrangement will attend orientation and training sessions provided by the State and the agency. The orientation sessions will introduce them to teleworking and instruct them on factors that will assure the success of this effort. Training will be provided to enhance the teleworking experience by preparing teleworkers and supervisors to discern and resolve the key issues which may be involved in their new working relationship. Authority G.S. 126-4; S.L. 1999-328. .0811 TERMS OF AGENCY TELEWORKING POLICY OR GUIDELINES Each agency shall develop a policy or set of guidelines, which are reflective of agency-specific policies and include them, in addition to the State policies. An agency's teleworking policy will address these areas, in addition to any areas which are of specific concern to the agency: (1) Management Option - Offering the opportunity to work at home is a management option; teleworking is not a universal employee benefit. Any teleworking situation is voluntary for the employee and at the discretion of management and/or the employee's supervisor. (2) Conditions of Employment ; The teleworker's conditions of employment with the State remain the same as for non-teleworking employees. (3) Salaries ; Benefits, leaves and state sponsored insurance will not change as a result of teleworking. (4) Safety and Liability - Since the employee's home work space is an extension of the agency work space. the State's liability for job-related accidents will continue to exist during the employee's approved work hours and the employee's designated work location. It is the employee's responsibility to maintain a safe, ergonomically correct home workplace. The agency should be satisfied that the employee's home work site conforms to its safety standards. This may include inspections by the agency of the employee's home work site as necessary. The agency's teleworking policy should also consider issues such as insurance coverage of equipment located away from the office. (5) Office Supplies - Office supplies will be provided by the State and should be obtained during the teleworker's in-office work period. Out-of-pocket expenses for supplies normally available in the office will not be reimbursed. The State will not provide office flimiture. (6) Security - To insure hardware and software security, all software used for teleworking must be approved by the supervisor and manager before installation. Restricted-access or confidential information shall not be taken out of the office or accessed through the computer unless approved in the teleworking agreement. (7) Work Hours z The teleworking agreement shall establish working hours. Any existing policies ^ covering flexible hours can be extended tot teleworkers. Any changes to the employee's approved work hours shall be reviewed and approved by the supervisor and manager in advance. While teleworking. the employee should stay reasonably available via telephone during agreed-upon work hours. (8) Equipment and Software- The agency's teleworking policy or the individual teleworking arrangement shall define what equipment/software, if any, will be provided by the State, and how this will be determined. The agency policy or the individual teleworking arrangement shall define liability, technical support availability and the procedure for servicing equipment. It should also specify any requirements for number of phone lines, voice mail, business lines and address long distance calls. If the teleworker supplies the equipment/sofhvare. the State does not assume liability for loss, damage or wear unless otherwise agreed to in writing. Any State equipment/software used in the home office may not be used for personal purposes, and must be returned immediately upon termination of the teleworking agreement. (9) Dependent Care - Teleworking is not a substitute for dependent care. The teleworking arrangement shalL define expectations regarding care of dependents on* teleworking days. It should be noted that having a dependent in the home while teleworking on any given occasion may or may not affect an employee's ability to work, but the expectations regarding the presence of dependents shall be clearly addressed in the agency policy or the individual teleworking arrangement. (10) Measures - All teleworkers and their supervisors shall participate in studies and surveys when necessary to evaluate the effectiveness and efficiency of the teleworking program. (in Training ; All potential teleworkers and their supervisors shall attend a training session covering the State's and agency's teleworking policies, as well as the benefits and drawbacks of teleworking. This training shall take place prior to the implementation of a teleworking agreement. Authority G.S. 126-4; S.L. 1999-328. .081 2 DESIGNATION OF TERMS OF TELEWORKING ARRANGEMENTS All teleworking arrangements shall memorialize in writing the mutual teleworking responsibilities of the participants in the arrangement. Each participant in a teleworking arrangement. ^ employees, supervisors and managers, must sign the document * which contains the terms of the teleworking arrangement. At a 1827 NORTH CAROLINA REGISTER April 17, 2000 14:20 PROPOSED RULES minimum, the document shall define the parameters of the teleworking arrangement and shall include and address all policy areas listed in 25 NCAC 1H.0811 m £2} Emploveesparticipating ina teleworkingarrangement shall agree to: (a) Be evaluated according to clear and measurable performance standards; rb) Attend training; (c) Abide by written summary of the teleworking arrangement: and (d) Participate in surveys and focus groups. Supervisors participating in a teleworking arrangement shall : (a) Attend orientation sessions for managers and supervisors; (b) Establish clear and measurable performance standards; (c) Attend training sessions; (d) Abide by a Teleworking Agreement; and (e) Participate in surveys, focus groups, and evaluation. Authority G.S. 126-4; S.L. 1999-328. .0813 CANCELLATION OF TELEWORKING ARRANGEMENT (a) Due to the voluntary nature of the program, teleworkers and/or management have the right to terminate the teleworking arrangement at any time. Although teleworking is not an employee entitlement or right, termination of employees from a teleworking program must be done in writing and with appropriate notice except in emergency situations. (b) Termination ofa teleworkingarrangement by management is not a grievable issue under personnel policies. An employee who terminates a teleworking arrangement cannot be subjected to disciplinary action. Authority G.S. 126-4; S.L 1999-328. 14:20 NORTH CAROLINA REGISTER April 17, 2000 1828 TEMPORARY RULES This Section includes temporary rules reviewed by the Codifier ofRules and entered in the North Carolina Administrative Code and includes, from time to time, a listing oftemporary rules that have expired. See G.S. 150B-21.1 and 26 NCAC 2C .0500 for adoption andfiling 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 13 - DEPARTMENT OF LABOR Rule-making Agency: North Carolina Department ofLabor Rule Citation: 13 NCAC 7A .0302 Effective Date: March 30, 2000 Findings Reviewed and Disapproved by: Beecher R. Gray - Insufficient evidence to demonstrate that temporary rule is justified to meet a serious and unforseen threat to public health, safety, or welfare. Authority for the rule-making: G.S. 95-126; 95-131 Reason for Proposed Action: RRCstajfhas indicated that it will recommend that the RRC object to the amendments to the blasting standard unless: (1) included within the blasting standard text itself is the information regarding location and costs ofobtaining copies ofmaterials incorporated by reference, or (2) there is a separate rule-making with notice andpublic hearing with regard to inclusion of the location and cost information in the OSH "copies of incorporated materials" rule, 13 NCAC 7A. 0302, or (3) the location and cost information has been included in 13 NCAC 7A. 0302 pursuant to Chapter 150B prior to the RRC's consideration of the blasting standard amendments. OAH stajfhas concurred. RRC staff and OAH staff are in agreement that a technical correction pursuant to G.S. 150B-21.5 is not permissible. This temporary rule is being adopted, therefore, in order to ensure that the location and cost information is included in 13 NCAC 7A. 0302 prior to consideration ofthe blasting standard amendments by RRC. Adoption ofthe blasting standard amendments now is critical because experience and changes in technology, terminology, , safetypractices andprocedures have reached a point at whichfailure to act could result in serious injury or death ofworkers, seriou^ property damage or injury to members ofthe public. Comment Procedures: Written comments may be submitted to Angela S. Waldorfat North Carolina Department ofLabor, 4 West Edenton St., Raleigh, NC 27601. CHAPTER 7 - OFFICE OF OCCUPATIONAL SAFETY AND HEALTH SUBCHAPTER 7A - GENERAL RULES AND OPERATIONAL PROCEDURES SECTION .0300 - PROCEDURES .0302 COPIES AVAILABLE Copies of the applicable Code of Federal Regulations (CFR) Parts or sections and industry standards referred to in this Chapter are available for public inspection by contacting the North Carolina Department of Labor (NCDOL), Division of Occupational Safety and Health or the NCDOL Library. The following table provides acquisition locations and the costs of the applicable materials on the date this Rule was adopted: Referenced Materials Available for Purchase From Cost 29 CFR 1903; 29 CFR 1904; 29 CFR 1905; 29 CFR 1908; 29 CFR 1913.10 Division of Occupational Safety & Health http://www.dol.state.nc.us/ $1 /page requested 29 CFR 1910 Division of Occupational Safety & Health http://www.dol.state.nc.us/ $15.90 each \ 1829 NORTH CAROLINA REGISTER April 17,2000 14:20 TEMPORARY RULES 29CFR1915;29CFR1917 Division of Occupational Safety & Health http://www.dol.state.nc.us/ Single copy: Free 29CFR1926 Division of Occupational Safety & Health http://www.dol.state.nc.us/ $12.72 each 29CFR1928 Division of Occupational Safety & Health http://www.dol.state.nc.us/ Single copy: Free The above CFR Parts and other CFR U.S. Government Printing Office $34.00/Part Parts Washington, D.C. 20402 (202)512-1800 http://www.gpo.eov/ ANSI/NFPA 101-1991 National Fire Protection Association 1 Batterymarch Park Quincy, Massachusetts 02269 (617)770-3000 http://www.nfpa.org/ $44.50 each ANSI standards American National Standards Institute B30.9: $100 1 1 West 42"" Street Z9.2: $ 55 New York, New York 10036 Z41.1 $ 40 (212)642-4900 Z87.1 $ 35 http://www.ansi.org/ Z88.2 $ 50 Z89.2 $ 35 Z229.1:$45 Federal Specification QQ-P-416 Federal Supply Services Specification Section 470 East L'Enfant Plaza SW, Suite 8100 Washington, DC 20407 (202)619-8925 http://www.gsa.gov/fssintro.htm $ 7.00 each Schedule 30 Bureau of Mines 24 FR 245 pages 10210-10204, December 17, 1959 $1.00/page or Division of Occupational Safety & Health requested http://www.msha.gov/ Institute of Makers of Explosives (IME) 1 120 Nineteenth St. NW, Suite 310 No. 17 $9.00 Publications Washington, DC 20036 No. 20 $4.50 (202) 429-9280 No. 22 $6.00 http://www.ime.org History Note: Authority G.S. 95-133; 150B-21.6; Eff. August!, 1993; Amended Eff. July 1, 1998; June 1, 1994; Codifier determined that agency'sfindings ofneed did not meet criteria for temporary rule on March 20, 2000; Temporary Amendment Efi^. March 30, 2000. TITLE ISA - DEPARTMENT OF ENVTRONMENT AND NATURAL RESOURCES Rule-making Agency: NC Marine Fisheries Commission -Jlule Citation: ISA NCAC 31 .0101, .0112; 3J .0209; 3M ^0201, .0503. .0513; 30 .0501-.0506; 3Q .0107 Temporary Effective Date: May 1, 2000 Findings Reviewed and Approved by: Beecher R. Gray Authority for the rule-making: G.S. 113-132; 113-134; 113- 182; 113-221; 1438-289.52 Proposed Effective Date for Permanent Rule: April 1, 2001 Public Hearings will be conducted at 7.00p.m. on May 3, 2000 at the Comfort Inn South Oceanfront, 8031 Old Oregon Inlet Road, Nags Head; May 15, 2000 at the Dept ofEnvironment & 14:20 NORTH CAROLINA REGISTER Aprill7,2000 1830 TEMPORARYRULES Natural Resources, 127 Cardinal Drive Ext., Wilmington; May 16, 2000 at the Duke University Marine Lab Auditorium, Pivers Island, Beaufort: May 25, 2000 at the Gateway Convention Center, Rocky Mount. Oralpresentation lengths may be limited, depending on the number ofpeople that wish to speak at the public hearings. Reason for Proposed Action: ISA NCAC31.0101, .0112; 3M. 0201,. 0503; 3O.0501-.0506 - The Fisheries Reform Act of 1997 and its amendments (House Bill 1448) requires a complete review of the Marine Fisheries Laws. G.S. 113-169.1, as adopted, authorizes the Marine Fisheries Commission to adopt permits and establish fees. ISA NCAC 3J. 0209; 3M.0S13 - The Fisheries Reform Act of 1 997 and its amendments (House Bill 1448) required a complete review ofthe procedures for management offisheries in North Carolina. Included were requirementsfor Fishery Management Plans. This amendment is a necessary temporary management measurefor the completed River Herring Fishery Management Plan. Section 5.3 states "This act constitutes a recent act ofthe General Assembly within the meaning of G.S. 150B-21. 1 ". ISA NCAC3Q.0107- The Fisheries Reform Act of1997 and its amendments (House Bill 1448) requires a complete review and in most cases, a rewrite of the Marine Fisheries Laws. These revisions include separation ofgear and limitsfor commercial license holders and recreational commercial gear license holders. Comment Procedures: Written comments are encouragedand may be submitted to the MFC, Juanita Gaskill, PO Box 769, Morehead City, NC2855 7. Oral comments may bepresented at thefour scheduledpublic hearings The public commentperiod will end on June 15, 2000. Fiscal Impact State Local Sub. None / CHAPTER 3 - MARINE FISHERIES SUBCHAPTER 31 - GENERAL RULES SECTION .0100 - GENERAL RULES .0101 DEFINITIONS (a) All definitions set out in G.S. 113, Subchapter IV apply to this Chapter. (b) The following additional terms are hereby defined: ( 1 ) Commercial Fishing Equipment or Gear. All fishing equipment used in coastal fishing waters except: (A) Seines less than 30 feet in length; (B) Collapsible crab traps, a trap used for taking crabs with the largest open dimension no larger than 1 8 inches and that by design is collapsed at all times when in the water, except when it is being retrieved from or lowered to the bottom; (C) Spears, Hawaiian slings or similar devices (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (D) (E) (F) (G) (H) (I) which propel pointed implements by mechanical means, including elastic tubing or bands, pressurized gas or similar means; A dip net having a handle not more than eight| feet in length and a hoop or frame to which the net is attached not exceeding 60 inches along the perimeter; Hook-and-line and bait-and-line equipment other than multiple-hook or multiple-bait trotline; A landing net used to assist in taking fish when the initial and primary method of taking is by the use of hook and line; and Cast Nets; Gigs or other pointed implements which are propelled by hand, whether or not the implement remains in the hand; and Up to two minnow traps. Fixed or stationary net. A net anchored or staked to the bottom, or some structure attached to the bottom, at both ends of the net. Mesh Length. The diagonal distance from the inside of one knot to the outside of the other knot, when the net is stretched hand-tight. Possess. Any actual or constructive holding whether under claim of ownership or not. Transport. Ship, carry, or cause to be carried or moved by public or private carrier by land, sea, or air. Use. Employ, set, operate, or permit to be operated or >^->|k employed. \ 'D Purse Gill Nets. Any gill net used to encircle fish when the net is closed by the use of a purse line through rings located along the top or bottom line or elsewhere on such net. Gill Net. A net set vertically in the water to capture fish by entanglement by the gills in its mesh as a result of net design, construction, mesh size, webbing diameter or method in which it is used. Seine. A net set vertically in the water and pulled by hand or power to capture fish by encirclement and confining fish within itself or against another net, the shore or bank as a result of net design, construction, mesh size, webbing diameter, or method in which it is used. Internal Coastal Waters or Internal Waters. All coastal fishing waters except the Atlantic Ocean. Channel Net. A net used to take shrimp which is anchored or attached to the bottom at both ends or with one end anchored or attached to the bottom and the other end attached to a boat. Dredge. A device towed by engine power consisting of a frame, tooth bar or smooth bar, and catchbag used in the harvest of oysters, clams, crabs, scallops, or conchs. Mechanical methods for clamming. Includes, but not i limited to, dredges, hydraulic clam dredges, stick' rakes and other rakes when towed by engine power, patent tongs, kicking with propellers or deflector ^ 1831 NORTH CAROLINA REGISTER April 17,2000 14:20 TEMPORARY RULES plates with or without trawls, and any other method that utilizes mechanical means to harvest clams. (14) Mechanical methods for oystering. Includes, but not limited to, dredges, patent tongs, stick rakes and other rakes when towed by engine power and any other method that utilizes mechanical means to harvest oysters. (15) Depuration. Purification or the removal of adulteration from live oysters, clams, and mussels by any natural or artificially controlled means. (16) Peeler Crab. A blue crab that has a soft shell developing under a hard shell and having a definite pink, white, or red line or rim on the outer edge of the back fin or flipper. (17) Length of finfish. (A) Total length is determined by measuring along a straight line the distance from the tip of the snout with the mouth closed to the tip of the compressed caudal (tail) fin. (B) Fork length is determined by measuring along a straight line the distance from the tip of the snout wdth the mouth closed to the middle of the fork in the caudal (tail) fin. (C) Fork length for billfish is measured from the tip of the lowerjaw to the middle of the fork of the caudal (tail) fin. Licensee. Any person holding a valid license from the Department to take or deal in marine fisheries resources. Aquaculture operation. An operation that produces artificially propagated stocks of marine or estuarine resources or obtains such stocks from authorized sources for the purpose of rearing in a controlled environment. A controlled envirormient provides and maintains throughout the rearing process one or more of the following: predator protection, food, water circulation, salinity, or temperature controls utilizing proven technology not found in the natural environment. (20) Critical habitat areas. The fragile estuarine and marine areas that support juvenile and adult populations of economically important seafood species, as well as forage species important in the food chain. Critical habitats include nursery areas, beds of submerged aquatic vegetation, shellfish producing areas, anadromous fish spawning and anadromous fish nursery areas, in all coastal fishing waters as determined through marine and estuarine survey sampling. Critical habitats are vital for portions, or the entire life cycle, including the early growth and development of important seafood species. (A) Beds ofsubmerged aquatic vegetation are those habitats in public trust and estuarine waters vegetated with one or more species of submerged vegetation such as eelgrass (Zostera marina), shoalgrass (Halodule wrightii) and widgeongrass (Ruppia maritima). Th
Object Description
Description
Title | North Carolina register |
Date | 2000-04-17 |
Description | Vol. 14, issue 20 (April 17, 2000) |
Digital Characteristics-A | 170 p.; 8.67 MB |
Digital Format | application/pdf |
Pres File Name-M | pubs_serial_ncregister20000417.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_serial_ncregister\images_master |
Full Text |
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NORTHCAROLINA
REGISTE RECEIVED
APR 1 8 2000
M-irtiNc |5., eVcRETT
LAV* LIBRARY
VOLUME 14 • ISSUE 20 • Pages 1808 - 1861
Ck
AprU 17, 2000
\ IN THIS ISSUE r^
Environment and Natural Resources 1/ ,^^
Health and Human Services // j^^
Labor //^ State Personnel // /ia. Z;
Transportation j^ '*'*^^ J
Rules Review Commission
i^ Contested Case Decisions
PUBLISHED BY
The Office ofAdministrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 733-2678
Fax (919) 733-3462
m ILEC5I115US
SALUS
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
For those persons that have questions or concerns regarding the Administrative Procedure Act or any of it?
components, consult with the agencies below. The bolded headings are typical issues which the given
agency can address, but are not inclusive.
Rule Notices. Filings, Register. Deadlines. Copies of Proposed Rules, etc.
t
Office of Administrative Hearings
Rules Division
Capehart-Crocker House
424 North Blount Street
Raleigh, North Carolina 27601-2817
contact: Molly Masich, Director APA Services
Ruby Creech, Publications Coordinator
1 §»Ji ^if^
(919) 733-2678
(919) 733-3462 FAX
nimasich@oah. state
rcreech@oah.state
Fiscal Notes & Economic Analysis
. Office of State Budget and Management
I 116 West Jones Street
li Raleigh, North Carolina 27603-8005 ^.
contact: Warren Plonk, Economist III
Rule Review and Legal Issues
,l
Rules Review Commission
ll 1307 Glenwood Ave., Suite 159
\ Raleigh, North Carolina 27605
(919) 733-7061
(919) 733-0640 FAX
\vplonk@osbm.state
(919) 733-2721
(919) 733-9415 FAX
contact: Joe DeLuca Jr., Staff Director Counsel
\\\ ' ^"^^^ ^'^^"' ^^^Attorney ^^^^^^-'^m ' ""--=--"^
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street '
""^^^.^Sr^----.
(919)733-2578
Raleigh, North Carolina 2761 1 " - ^**^-«.^.: (919) 715-5460 FAX
contact: MaiyShuping, Staff Liaison marys@ms.ncga.state.nc.u&
County and Municipality Government Questions or Notification
NC Association of County Commissioners
215 North Dawson Street (919)715-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn or Rebecca Troutman
NC League of Municipalities
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Paula Thomas
(919)715-4000
This publication is printed on permanent, acid-free paper in compliance y\/iih G.S. 125-11.13
NORTH CAROLINA
REGISTER
IN THIS ISSUE
Volume 14, Issue 20
Pages 1808 - 1861
April 17, 2000
RULE-MAKING PROCEEDINGS
Environment and Natural Resources
Environmental Management 1808
Health Services, Commission of 1808-1809
Health and Human Services
Facility Services 1 808
II. PROPOSED RULES
Environment and Natural Resources
Marine Fisheries 1810 - 1814
Wildlife Resources 1814 - 1815
Health and Human Services
Health Services, Commission for 1815 - 1824
State Personnel
State Personnel Commission 1824 - 1828
Transportation
Motor Vehicles, Division of 1824
This issue contains documents officially filed
through March 27, 2000.
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
m. TEMPORARY RULES
Environment and Natural Resources
Marine Fisheries Commission 1830 - 1840
Labor
Occupational Safety & Health 1829-1830
IV. RULES REVIEW COMMISSION 1841-1850
V. CONTESTED CASE DECISIONS
Index to ALJ Decisions 1851-1861
Julian Mann III, Director
Camille Winston, Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Linda Dupree, Editorial Assistant
Jessica Flowers, Editorial Assistant
Dana Sholes, Editorial Assistant
VI. CUMULATIVE INDEX 1-108
North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC
27601 . (ISSN 1 5200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register,
PC Drawer 27447, Raleigh. NC 2761 1-7447.
NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM
The North Carolina Administrative Code (NCAC) hasfour major subdivisions ofrules. Two ofthese, 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 Administration Acupuncture I
2 Agriculture Architecture 2
3 Auditor Athletic Trainer Examiners 3
4 Commerce Auctioneers 4
5 Correction Barber Examiners 6
6 Council of State Certified Public Accountant Examiners 8
7 Cultural Resources Chiropractic Examiners 10
8 Elections Employee Assistance Professionals 11
9 Governor General Contractors 12
10 Health and Human Services Cosmetic Art Examiners 14
11 Insurance Dental Examiners 16
12 Justice Dietetics/Nutrition 17
13 Labor Electrical Contractors 18
14A Crime Control & Public Safety Electrolysis 19
15A Environment and Natural Resources Foresters 20
16 Public Education Geologists 21
17 Revenue Hearing Aid Dealers and Fitters 22
18 Secretary of State Landscape Architects 26
19A Transportation Landscape Contractors 28
20 Treasurer Massage & Bodywork Therapy 30
*21 Occupational Licensing Boards Marital and Family Therapy 31
22 Administrative Procedures (Repealed) Medical Examiners 32
23 Community Colleges Midwifery Joint Committee 33
24 Independent Agencies Mortuary Science 34
25 State Personnel Nursing 36
26 Administrative Hearings Nursing Home Administrators 37
27 NC State Bar Occupational Therapists 38
Opticians 40
Optometry 42
Osteopathic Examination & Reg. (Repealed) 44
Pastoral Counselors, Fee-Based Practicing 45
Pharmacy 46
Physical Therapy Examiners 48
Plumbing, Heating & Fire Sprinkler Contractors 50
Podiatry Examiners 52
Professional Counselors 53
Psychology Board 54
Professional Engineers & Land Surveyors 56
Real Estate Appraisal Board 57
Real Estate Commission 58
Refrigeration Examiners 60
Sanitarian Examiners 62
Social Work Certification 63
Soil Scientists 69
Speech & Language Pathologists & Audiologists 64
Substance Abuse Professionals 68
Therapeutic Recreation Certification 65
Veterinary Medical Board 66
Note: Title 21 contains the chapters of the various occupational licensing boards.
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