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> NORTH CAROLINA REGISTER VOLUME 12 • ISSUE 17 • Pages 1606 - 1691 March 2, 1998 IN THIS ISSU5 Executive Orders Administration Agriculture Commerce General Contractors ; : ' Environment and Natural Resources Health and Human Services Insurance Justice Labor Medical Examiners Nursing, Board of Public Education Revenue Rules Review Commission Contested Case Decisions \ PUBLISHED BY The Office ofAdministrative Hearings Rules Division PO Drawer 27447 Raleigh, NC 2 761 1- 7447 Telephone (919) 733-2678 Fax (919) 733-3462 This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1.13 For those persons that ha\-e questions or concerns regarding the Administrative Procedure Act or any of its components, consult with the agencies below; The bolded headings are t>pical issues which the given agency can address, but are not inclusive. i Rule Notices. Filings. Register. Deadlines. Copies of Proposed Rules, etc. Office of Ad.mmisirame Hearings Rules DiMSion -,.,;•--.,,-•.., Capehart-Crocker House (919) 733-2678:r"\ ^^^-C;X>. 424 North Blount Street _^,,..-. ;; <919).73^ Raleieh. North Carolina 2 "60 1 -28 17 :::-;"--""""" '-;:;.::;••-...... contact NfoUy Masich. Director .APA Services Rubv Creech. Pubhcations Coordinator Fiscal Notes «& Economic Analysis Office of State Budget and Management . 1 16 West Jones Street :' ' Raleigh. North Carolina 2^603-8005 . contact: Nfark Sisak. Economist III ; ? Anna Tefft. Economist II mmasich a oah. state ncus rcreech a oah. state, ncus -;" (919> 733-7061 (919) 733-0640 F.AX msisakSosbm statenc.us atefft.a osbm. state. nc.us Rule Review and Legal Issues ;| Rules Re\ lew Commission % ,1 :;i W30^ Glemvood Ave. Suite 159 \\ ; Raleigh. North Carolina 2"605 \\ contact: Joe DeLuca Jr . Staff Director Counsel \\\ T' Bobbv Brsan. Staff Attorney C919')"33-2"21 (919) 735-9415 FAX Legislative Process Concerning Rule Making Joint Legislati\"e .Admmistraiuc Procedure Oersight Committee 545 Legislati\e Office Building 300 North SaUsbur. Street (919) "733-2578 Raleigh. North Carolina 276 II (919) 715-5460 FAX contact Man Shuping, Staff Liaison mars s a ms ncea state nc us County and Municipality Go\ernment Questions or Notification NC .Association of Count} Commissioners 215 Nonh Dawson Street (919) "15-2893 Raleigh. Nonh Carolina 2"603 contact: Jim Blackburn or Rebecca Troutman NC League of Municipalities 2 1 5 North Da%\ son Street Raleigh. North Carolina 2"603 contact: Paula Thomas (919) "15-4000 This publication is primed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER IN THIS ISSUE ) Volume 12, Issue 17 Pages 1606 - 1691 March 2, 1998 This issue contains documents officially filed through February 9, 1998. Office of Administrative Hearings Rules Division 424 North Blount Street (27601) PO Drawer 27447 Raleigh, NC 27611-7447 (919) 733-2678 FAX (919) 733-3462 Julian Mann III, Director Bradley Buie, Acting Deputy Director Molly Masich, Director of APA Services Ruby Creech, Publications Coordinator Jean Shirley, Editorial Assistant Linda Richardson, Editorial Assistant I. EXECUTIVE ORDERS Executive Orders 128-129 1606 - 1607 II. PROPOSED RULES Environment and Natural Resources Wildlife Resources Commission 1608 - 1610 Revenue Individual Income Tax 1610 Motor Fuels Tax 1610 III. TEMPORARY RULES Administration Purchase and Contract 161 1 - 1616 Environment and Natural Resources Departmental Rules 1617 - 1619 Health and Human Services Governor Morehead School 1616 - 1617 IV. APPROVED RULES 1620 - 1661 Agriculture Plant Industry Veterinary Division Commerce Community Assistance Environment and Natural Resources Coastal Management Environmental Management Health Services Soil and Water Conservation Commission Water Pollution Control Systems Operators Certification Health and Human Services Commission for Mental Health, Developmental Disabilities and Substance Abuse Services Facility Services Insurance Life and Health Division Justice Sheriffs' Education and Training Standards Commission Labor Migrant Housing Licensing Boards General Contractors Medical Examiners Nursing Board Public Education Elementary and Secondary Education V. RULES REVIEW COMMISSION 1662 - 1665 VI. CONTESTED CASE DECISIONS Index to ALJ Decisions 1666 - 1676 Text of Selected Decisions 96 OS? 1 157 1677 - 1681 97 DHR 0552 1682 - 1684 97 OSP 0594 1685 - 1690 VH. CUMULATIVE INDEX 1-79 i The North Carolina Register is published semi-monthly lor $195 per year by the Office of Admmistrative Heanngs. 424 North Blount Street, Raleigh. NC 27601. Application to mail at Penodicals Rates is pending at Raleigh. NC. NC POSTMASTER: Send Address changes to the OAWNorth Carolina Register. PO Drawer 27447. Raleigh. NC 27611-7447 ( UH O -Si §; U = - « ^ >. <« -S S J S t^ n -2 o^ <5 -ci;i t^^ ^ § ? S a. = oZ > i^ :£ £ i- ^s 33 X, tJC X, X =C 3C X X 00 OC oc oc 00 3- zr cr n 3v CT 3- zr 3^ 3- 3- 3- 3^ ^ ^ 3- 3- ^ 2l ^ & 3 3- o* a'"' -- 30 DC oc ? a-- ? 3 •D rj r^^ ''J (-J r-j s ai 3 c ^ r; ^ 5 2; 2 ^ ^ -^ " ~' " " ^ _ " " ~ ~ ~ ~' H ^'^'"^"^^ ^^ >^ u n 3 •= 3 i. 5£ *.-' — X. X, 3C X. X, =C X, 3C 3: X 3- 3- 3- a- ^ ^ ^ ^ 3- ^ 3^ > ^ O" 3; 21 3; 3^ 3^ 3; 3; ^ i; ? ^ ? r^ r^ r^ c rj <N .£ i" /; W 6f = S !£? c !C' —' t' i? t' C' C' ij «;. 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T3 r, 3 C CO 3 13 £ Z H .E CO E EXECUTIVE ORDERS EXECUTIVE ORDER NO. 128 DESIGNATING THE YEAR OF THE VOLUNTEER WHEREAS, North Carolina's volunteers are among the state's most valuable assets; and WHEREAS, North Carolina's volunteers g^'eatly enhance the quality of life for the people of North Carolina, especially children and youth; and WHEREAS, North Carolina's volunteers merit praise for their efforts to address the state's unmet educational, social, environmental and public safety needs; and WHEREAS, the immense value of connecting communities and various groups within communities through volunteerism and community service deserves recognition; and WHEREAS, partnerships involving businesses, civic groups, non-profit organizations, religious organizations and governmental agencies are continually needed to meet new and ongoing challenges facing communities today; and WHEREAS, young people need mentors to offer guidance and encouragement and to assist children and youth in developing the skills to successful in all walks of life; and WHEREAS, increased citizen involvement and a greater diversity of volunteers is necessary to solve community problems; and WHEREAS, it is important that the objectives of the Presidents' Summit for America's Future and the Governor's Summit on America's Promise and Volunteerism be met. NOW, THEREFORE, by the power vested in me as Governor by the laws and Constitution of North Carolina, IT IS ORDERED: 1998 is hereby designated as the Year of the Volimteer. The Governor's Office of Citizen and Community Services and the North Carolina Commission on National and Community Service shall be designated to assist communities in developing and strengthening volunteer initiatives. This Order shall be effective immediately and expire on December 3 1 , 1998. Done in Greensboro, North Carolina, this 21st day of January, 1998. EXECUTIVE ORDER NO. 129 GOVERNOR'S TASK FORCE ON DRIVING WHILE IMPAIRED WHEREAS, the operation of motor vehicles on our highways by persons while impaired constitutes a serious threat to the health and safety of our citizens; and WHEREAS, a large portion of the fatal accidents on our highways are alcohol related; and WHEREAS, the Governor's Highway Safety Initiative through the "Booze It and Lose It" program has made driving while impaired a major area of emphasis; and WHEREAS, the State of North Carolina must consider strong measures designed to deter and prevent the operation of motor vehicles by persons while impaired; NOW, THEREFORE, by the power vested in me as Governor by the laws and Constitution of North Carolina, IT IS ORDERED: Section L Establishment. The Governor's Task Force on Driving While Impaired is reestablished. The Task Force shall be an ad hoc committee of the Governor's Highway Safety Commission. The Task Force shall be composed of not more than thirty-five members appointed by the Governor to serve at the pleasure of the Governor. The Governor shall designate one of the members as Chair and one as Vice Chair. The members of the Governor's Highway Safety Commission shall be ex officio, voting members of the Task Force. Additional members shall include, but not be limited to representatives of law enforcement, the judicial system and the General Assembly. Section 2^ Meetings. The Task Force shall meet regularly at the call of the Chair and may hold special meetings at any time at the call of the Chair, or the Governor. The Task Force is authorized to conduct public hearings. .Section 3. Expenses. Members of the Task Force shall be reimbursed for such necessary travel and subsistence expenses as are authorized by N.C.G.S. 138-5. Funds for reimbursement of such expenses shall be made available from funds authorized by the Governor's Highway Safety Program. Section 4^ Duties. The Task Force shall have the following duties: (a) (b) (c) (d) Review the General Statutes of North Carolina applicable to driving while impaired; Review proposals in other states designed to deter driving while impaired; Consider proposals for North Carolina; Recommend actions to reduce driving while impaired; and 12:17 NORTH CAROLINA REGISTER March 2, 1998 1606 EXECUTIVE ORDERS (e) Other such duties as assigned by the Chair or the Governor. Section 5^ Reports. The Task Force shall present an interim repon to the Governor no later than May 1 1, 1998 and a final report no later than January 10, 1999. The Task Force shall be dissolved when its final report is presented to the Governor. This Order shall be effective immediately. Done in the Capital City of Raleigh, Nonh Carolina, this 4th day of February, 1998. 1607 NORTH CAROLINA REGISTER March 2, 1998 12:17 PROPOSED RULES Tills Section contains the text ofproposed rules. At least 60 days prior to the publication of text, the agency published a Notice of Rule-making Proceedings. TJie agency must accept comments on the proposed rule for at least 30 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. Tiie required comment period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory reference: G.S. 150B-21.2. TITLE 15A - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES economic impact of at least five million dollars ($5,000,000) in a 12-month period. Notice is hereby given in accordance with G.S. 150B-21.2 that the North Carolina Wildlife Resources Commission intends to amend rules cited as 15A NCAC lOF .0311, .0317 and .0327. Notice of Rule-making Proceedings was published in the Register on December 1, 1997. CHAPTER 10 - WILDLIFE RESOURCES AND WATER SAFETY SUBCHAPTER lOF - MOTORBOATS AND WATER SAFETY Proposed Effective Date: April 1, 1999 A Public Hearing will be conducted at 10:00 on March 18, 1998 at the Archdale Building. Room 332, 512 N. Salisbury Street. Raleigh, NC 27603. Reason for Proposed Action: 15 NCAC lOF .0311 - The Vance Count}' Board of Commissioners initiated the no-wake zone pursuant to G.S. 75A-15, to protect public safety in the area by restricting vessel speed. The Wildlife Resources Commission may adopt this as a temporary rule pursuant to S.L. 1997-0403 following the public hearing and public comment period as indicated in this notice. 15 NCAC IOF .0317 - The Stanly County Board of Commissioners initiated the no-wake zone pursuant to G. S. 75A-15, to protect public safety in the area by restricting vessel speed. The Wildlife Resources Commission may adopt this as a temporary rule pursuant to S.L. 1997-0403 following the public hearing and public comment period as indicated in this notice. 15 NCAC lOF .0327 - The Montgomery County Board of Commissioners initiated the no-wake zone pursuant to G. S. 75A-15, to protect public safen,' in the area by restricting vessel speed. The Wildlife Resources Commission mcry adopt this as a temporary rule pursuant to S.L. 1997-0403 following the public hearing and public comment period as indicated in this notice. Comment Procedures: Interested persons may present their views either orally or in writing at the hearing. In addition, the record of hearing will be open for receipt of written commentsfrom March 2, 1998 to April 1, 1998. Such written comments must be delivered or mailed to the North Carolina Wildlife Resources Commission, 512 N. Salisbury Street, Raleigh, NC 27604-1188. Fiscal Note: 15 NCAC lOF .0311, .0317 and .0327 do affect the expenditures or revenues of local government funds, but do not affect state funds. These Rules do not have a substantial SECTION .0300 - LOCAL WATER SAFETY REGULATIONS .0311 GRANVILLE: VANCE AND WARREN COUNTIES (trt — Definitions.—In addition to the definitions se t forth in Parag raph (b) of Rule .0301 of this Section, the following de finitions shall apply in this Rule : Hi Corps. Corps of Engineers. United State s Aimy, t2-) Reservoi r .—John II. Kerr Reservoi r in Granville. Vance and Warren Counties. (a) Regulated Areas. This Rule applies to the following waters of John H. Kerr Reservoir in Granville. Vance and Warren Counties: (1) Kimball Point - Within 50 yards of the shoreline in the northernmost cove of the Kimball Point Recreation Area located at the western end of SR 1204 in Warren County. (2) Kerr Lake Methodist Campground z Beginning 50 yards north and ending 50 yards east of the Kerr Lake Methodist Campground. (3) Lower Mill Creek z Beginning at a point on the eastern side of Lower Mill Creek where it intersects the North Carolina ; Virginia state line, running across the creek with said state line and then running in a southerly direction on both the east and west sides of the creek to the head waters and including all waters of tfie creek south of tlie state line. £4J Flat Creek at NC Highway 39 Bridge - Within 50 yards on either side of the NC Highway 39 Bridge. (b) Speed Limit Near Ramps. No person shall operate a vessel at greater than no-wake speed within 50 yards of any concrete boat launching ramp located on the reservoir in said countie s, reservoir. (c) Speed Limit in Mooring Areas. No person shall operate a vessel at greater than no-wake speed while within a designated mooring area established by or with the approval of the US Army Corps of Engineers on the waters of the re se rvoi r in said count ies, reservoir. (d) Speed Limit. No person shall operate a vessel at greater than no-wake speed within any regulated area of tlie reservoir 12:17 NORTH CAROLINA REGISTER March 2, 1998 1608 PROPOSED RULES described in Paragraph (a) of this Rule. ftfXe) Restricted Swimming Areas. No person operating or responsible for the operation of a vessel shall permit it to enter any designated swimming area established by or with the approval of the US Army Corps of Engineers on the waters of th e rese rvoir m said counties, reservoir. (e) Speed Limit at Kimball Point. No pe rson shall ope rate a vessel at g reat e r than no-wake speed within 50 yards of the shtr7rre nne in th e northernmost cove of t he Kimball Pomt Rec reation Area in the reservoir, such rec reation area being at the weste rn e nd of 5R 1204 in Warren Count v. tf) -shatt — S peed Limi t at Lowe r Mill Cree k.—No person ope rate a vessel at gre ate r than no-wake speed beginning at a po in t on t he east e rn sid e of Lower Mill Creek where it in t e rsects the North Carolina - Vi rginia stal e lin e , running across the c reek with said state line and th e n running in a southe rly di rec tion on both the east and west sides of the c reek t o t he head waters and including all wate rs of th e c reek south of the stat e line. (g) Speed Limi t at Ke r r Lake Me thodist Campground. No pe rson shall ope rat e a vessel at g re at er than no-wake speed beginning 50 yards north and ending 50 yards east of the Ken- Lake Methodist Campground. thillj Placement and Maintenance of Markers. The Corps is designated a suitable agency fo r placement and maintenance of markers implement ing this Rule . — The pe rimete r s of desMiggnnaatte dq sswwiimming are as must be marrkkeedd withn ftiloat iliirnes which, in conjunct ion with th e shore line , form completely enclos e d areas.—In addit ion, supplementan' s t andards as se t fo rt h in Rule .0301(g)(2) to (7) and ( 9 ) of this Section shall app ly. Each of the boards of Commissioners of the above-named counties is designated a suitable agency for placement and maintenance of markers implementing this Rule for regulated areas within their territorial jurisdiction in accordance with the Uniform System, subject to the approval of tlie US Army Corps of Engineers. Authority G.S. 75A-3: 75A-15. .0317 STANLY COUNTY (a) Regulated Areas. This Rule applies to the following waters and portions of waters : waters described as follows: (1) that po rtion of Narrows Reservoir (Dadin Lake) which lies within th e boundaries of Stanly County: (Badin Lake): t hat portion of Lake Tille r\' which lies within the boundaries of Stanly County: Tillerv: (A) Turner Beach Cove as delineated by (2) appropriate markers: (B) Mountain Creek Cove appropriate markers: as delineated b^ t^i Turner Beach Cove on Lake Till e r,' as delineated by appropriat e markers. (3) Harper Heme Lake - Harper Heme Lake Subdivision Cove as delineated by appropriate markers. (b) Speed Limit Near Ramps. No person shall operate a vessel at greater than no-wake speed within 50 yards of any public boat launching ramp while on the waters of a regulated area described in Paragraph (a) of this Rule. (c) Restricted Swimming Areas. No person operating or responsible for the operation of a vessel shall permit it to enter any marked public swimming area established with the approval of the Executive Director, or his representative, on the waters of a regulated area described in Paragraph (a) of this Rule. (d) Speed Limit. Limit in Specific Zone s. No person shall operate a vessel at greater than no-v. ake speed within any 50 yards of the following marked zone located on any regulated area described in Paragraph (a) of ihis Rule : Rule. Hi Mountain Creek Cove. Lake Tillery. (e) Placement and Maintenance of Markers. The Board of Commissioners of Stanly County is hereby designated a suitable agency for placement and maintenance of the markers hereby aut horized, subject to the approval of the United States Coast Guard and th e United States Army Coips of Engineers. implementing this Rule in accordance with the Uniform System. With regard to marking the regulated areas described in Paragraph (a) of this Rule, supp lementan' standards as set fo rth in Rule .0301(g)( 1) to (8) of this Section shall apply. Authority G.S. 75A-3; 75A-15. .0327 MONTGOMERY COUNTY (a) Regulated Areas. This Rule applies to the waters and portions of waters described as follows: (1) Badin Lake. Lake ; Lakeshore Drive Cove as delineated by appropriate markers. (2) Lake Tillery. (A) Woodmn Cove as delineated by appropriate markers. (B) Carolina Cove as delineated by appropriate markers. tSl Woodrun Cove. Those waters within 50 yards of the mouth of Woodrun Cove located on Lake Till ery as deline at e d by appropriate marke r s and within 50 yards of the boat ramp located at the head of Woodrun Cove. f4-)(^ Tuckertown Reservoir. t5l Carolina Fore st Cove. The mouth of Cai-olina Forest Cove located on Lake Tille ry as delineated by appropriate marke r s. (b) Speed Limit Near Shore Facilities. No person shall operate a vessel at greater than no-wake speed within 50 yards of any marked boat launching area, dock, pier, bridge, marina, boat storage stmcnjre, or boat service area on the waters of the regulated areas described in Paragraph (a) of this Rule. (c) Speed Limit. No person shall operate a vessel at greater than no-wake speed within any regulated area described in Paragraph (a) of this Rule. tO(d) Restricted Swimming Areas. No person operating or responsible for the operation of a vessel shall permit it to enter any marked public swimming area established with the approval of the Wildlife Resources Commission on the waters of the regulated areas described in Paragraph (a) of this Rule. tdl(e) Placement and Maintenance of Markers. The Board 1609 NORTH CAROLINA REGISTER March 2, 1998 12:17 PROPOSED RULES of Commissioners of Montgomery County is hereby designated a suitable agency for placement and maintenance of the markers hereby authorized, subject to the app roval of th e United States Coast Guard and the United St ates Aiinv Coips of Engineers. With regard to marking the regulated are as de scribed in Pdiagraph (a) of diis Rule, supplementary standards as se t forth iu Rule .0301(g)(1) to (8) of this Section shall apply. implementing this Rule in accordance with the Unjform System. .0302. you may call Ms. Slusser at 919-733-4629. Fiscal Note: These Rules do not affect the e.xpenditures or revenues of slate or local governrneni funds . These Rules do not have a substantial economic impact of at least five million dollars ($5,000,000) in a 12-month period. CHAPTER 6 - INDIVIDUAL INCOME TAX DIVISION Authority G.S. 75A-3; 75A-15. TITLE 17 - DEPARTMENT OF REVENUE Notice is hereby given in accordance with G.S. 150B-21.2 that the North Carolina Department of Revenue intends to amend nde cited as 17NCAC 6B .3204 and to repeal 1 7 NCAC 9L .0302. Proposed Effective Date: August 1, 1998 Instructions on How to Demand a Public Hearing: TTie Department ofRe\'enue is not subject to the notice and hearing requirements of the APA. Nevertheless, the Department publishes notice ofproposed text in the Register and will hold a public hearing if there is sufficient interest in a public hearing. The Department does this because it believes that notice and hearing sene good public policy. A request for a public hearing for Rule 17 NCAC 6B .3204 must be in writing and be submitted to Mr. Sam McEwen, Personal Taxes Division at P.O. Box 871. Raleigh. NC 27602, by March 16, 1998. A request for a public hearing for Ride 1 7 NCAC 9L .0302 must be in writing and be submitted to Ms. Jan Slusser, Motor Fuel TaxDi\ision, P.O. Box 871, Raleigh, NC 27602. by March 16. 1998. Notice of any public hearing scheduled on this proposed rule change will be published in the Register. Reason for Proposed Action: 17 NCAC 6B .3204 - The federal income tax negligence penalty has changed and is now an acmracy penalty rather than a 5 percent negligence penally. This rule is amended to reflect the change in the federal law. 17 NCAC 9L .0302 - Effective July 1, 1998, federal law will tax kerosene in accordance with the procedure now used for clear diesel. When this occurs, clear kerosene will be taxed by the State as a motor fuel rather than an alternative fuel. Comment Procedures: Written comments for 17 NCAC 6B .3204 may be submitted to Mr. Sam McEwen at North Carolina Department of Revenue, Personal Taxes Division, P.O. Box 871, Raleigh, NC 27602. Written comments for 1 7 NCAC 9L .0302 may be submitted to Ms. Jan Slusser, at NC Department ofRe\'enue, Motor Fuels Tax Division, P.O. Box 871. Raleigh. NC 27602. Comments received will be taken into consideration in adopting the permanent rule. If you have questions regarding 17 NCAC 6B .3204. you may call Mr. McEwen at 919-733-3565. If you have questions regarding 17 NCAC 9L SUBCHAPTER 6B - INDIVIDUAL INCOME TAX SECTION .3200 - PENALTIES: INDIVIDUAL INCOME TAX .3204 NEGLIGENCE PENALTIES fa^ When the 5 percent negligence federal accuracy penalty has been assessed for federal income tax purposes, purposes under Section 6662 of the Internal Revenue Code, the 10 percent negligence penalty will be assessed for state income tax purposes unless the 25 percent negligence penalty applies. (b) — A negligence penalty cannot be assessed when the fraud penalty has been assessed with respect to the same deficiency. There is no minimum dollar amount of negligence penalty. 8n combined remms the negligence penal ty will be assessed based on the addi t ional tax due on the spouse's return to which the negligence penalty is being applied afte r being offset by any ove rpayment due to the othe r spouse . Authority G.S. 105-236(5): 105-236(6): 105-262. CHAPTER 9 MOTOR FUELS TAX DIVISION SUBCHAPTER 9L - ALTERNATIVE FUEL SECTION .0300 - TAX AND LIABILITY .0302 UNBLENDED KEROSENE AS ALTERNATIVE FUEL Unble nded kerosene is an alternative fuel. Authority- G.S. 105-262: 105-449.130. 12:17 NORTH CAROLINA REGISTER March 2, 1998 1610 TEMPORARY RULES Die Codifier of Rules has entered the following temporary rule(s) in the North Carolina Administrative Code. 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 1 - DEPARTMENT OF ADMINISTRATION Rule-making Agency: Department of Administration Rule Citation: / NCAC 5B .0301 - .0302. .0310. .0316. .0401. .0801 - .0802. .1301. .1519, .1604, .1906 Effective Date: February 15, 1998 Findings Reviewed and Approved by: Beecher R. Gray Authority for the rule-making: G.S. 143-52: 143-53(a) Reason for Proposed Action: Session Law 1997-412 amended State procurement laws, increasing benchmarks for universities and State agencies, and also mandated the Secretary of Administration to make ndes in certain areas of procurement as a result of the benchmark changes. These include advertising of solicitations handled by the Division of Purchase & Contract, universities and State agencies as well as contract language consistency and protest procedures. Tliese rule changes clarify the process for all State procurement, which was altered significantly by S.L. 1997-412. Comment Procedures: Any person interested in making written or verbal comment to these temporary ndes should submit such comment to R. Glen Peterson, General Counsel. N.C. Department of Administration. 116 West Jones Street, Raleigh. NC 27603-8003; telephone: (919) 733-7232: fax: (919) 733-9571: e-mail: glen_peterson@mail. doa. state. nc. us CHAPTER 5 - PURCHASE AND CONTRACT SUBCHAPTER 5B - PURCHASE PROCEDURES SECTION .0300 - PROCUREMENT AUTHORIZATION AND PROCEDURES .0301 CONTRACTING REQUIREMENTS (a) Whe re the total requirements fo r any give n commodity or se rvice involve an expend i tu re m excess of th e e xpe nditu re benchmark established under the provisions of G.S. 143-53. 1. and whe re competition is solici te d, scaled offe r s shall be solici ted by di rect mailing. Rule s applying to s ervic e contracts do not apply to local school administrative units or community colleges. rtr) — In addition to Parag raph (a) of this Rule , fo r the procu re ment of equipment , mate r ials, and supplies, scaled offe r s shall be solicited by this Division by direct mail and by advertisement in a newspaper of statewide circulation or by elect ronic media when deemed more advantageous fo r certain items o r commodities at least 10 days p r ior to the date de signat ed fo r opening of the bids. td — In addition to Paragraph (a) of this Rule, for the procurement of services, the following shall apply: Hi The Final decision-maki ng authority in regard to any phase of procurement or perfonnance of any service cont ract is with the SPG.—In addition to sci-vice contracts delegated under Rul e s .0401 and .1301 of this Subchapt er , the SPG may delegate agencies the authority—to — handle—the—solicitation— p hase—for contracts over the benchmark established under G.S. 143-53.1. t?1 For each se rvice contract , -shaH the using agency prepare a task descri ption of the se rvices and desi red re sults. For statewide or multiagcncy term contracts this Division will establish the task description of services and desired re sults. Task descriptions shall cont ain all of the following : tAi the date(s) of service (The contract shall not be—for — more—than th ree ye ars—including e xt ensions and renewals, without the pr ior approval of the SPG.); (&) dettaaiilieeda sppeecciifiiiccaattiions or type and level of work requi red: (€) what the Stat e will fu rnish; (Bi what the contracto r will fu rnish: t&) the method, schedule, and procedures for billing and payments: i¥i other terms and condi t ions, specifications o r procedures bearing on the conduct of the work. (31 Upon completion of the task descr i ption and desi red re sults.—competi t ion—shaH—be — solicited.—where available, utilizing a RFP o r IFD. which shall contain the task de scri pt ion and de si red results, and specify or provide fo r all of the following : tAl—th e laws of North Carolina shall gove rn the contract : (fil the contract shall—be cancelable—upon—a specified writ ten notice at any time by the State for unsatisfacto ry performance or fo r the convenience of the St at e: (€1 provide—for—the — option—to—requi re — a performance bond or other sui t able me ans of ensuing faithful pe rformance when deemed by the State to be necessary : t^l that the contrac t is ente red into in compliance with State and Federal ant i trust laws ; (E) the contrac toi—shaH — furnish all worke r 's compensation, liabili ty insurance, and other insurance as may be required to protect 1611 NORTH CAROLINA REGISTER March 2, 1998 12:17 TEMPORARY RULES > himself and the Stat e from claims which may arise ; payment schedule : price adjust ment provisions, if any : fff) id ent ify the agency liaison pe rsonnel and any other agency resources that wil the cont racto r : (t) the c rite ria for evaluation: be available to (*1 recprcst—a-qualifications ajid refere nce s de sc r iption—of—the — offeror 's I tj^—have the cost of the service broken down by components : ffci have—the—offeroi ide nt ify—the—proposed methodology fo r accomplishing the work (if not fu rnished in the RFP). An exception to Parag raph (c) of this Rule is where an emergency condition exists. (4^ After opening, and comple t ion of the evaluat ion, the using agency shall prepare a written recommendation fo r award, and if ove r the benchmark established unde r G.S. 143-53.1. shall submit a copy of all offers received and thei r recommendation to this Division fo r award of contract or othe i — action deemed—nec essaiy—by — tlrc—SP6—(Examples: cancellat ion, negotiation, etc.). Notice of the Division's decision shall be sent to the using age ncy. Except where a waiver, special delegation, exemption, or an emergency purchase is permitted by Rule, all purchases involving the expenditure of public funds made by universities and other agencies for commodities, services and printing, not covered by statewide term contracts, shall comply with the following delegations and procedures: (1) Small Purchases: A small purchase is defined as the purchase of commodities, services or printing, not covered by a term contract, involving an expenditure of public funds of five thousand dollars ($5.000) or less. The executive officer or his designee, of each agency shall set forth, in writing, purchasing procedures for making small purchases. The awarding of contracts for small purchases shall be the responsibility of the using agency. The SPO may require a copy of the small purchase procedures be sent to the Division of Purchase and Contract. (2) Purchases Governed by General Delegation or Statute: (a) For purchases made by a university or agency involving an expenditure of public funds over five thousand dollars ($5.000). up to the benchmark established for a university under the provisions of G.S. 1 16-31.10. and ug to the general delegation limit for agencies established by the SPO under the provisions of G.S. 143-53(a)(2): (il Competition shall be solicited: (ii) Solicitation documents requesting or inviting offers shall be issued: (iii) Solicitation documents shall include 13] standard language, including tenns and conditions issued by the Division of Purchase and Contract, unless prior written approval is obtained from the Division. If additional terms and conditions are used, they shall not conflict with Division's standard terms and conditions, unless prior written approval is obtained from the Division: and (iv) Mailing lists, if still maintained by the Division of Purchase and Contract, may be requested and used in addition to mailing lists maintained by the university or agency for the purpose of soliciting competition. (b) In addition, agencies and universities shall advertise their solicitations through the Division of Purchase and Contract, effective September E, 1998. for the following purchases: £ij Agencies: For purchases involving an expenditure of public funds exceeding ten thousand dollars ($10.000). up to the general delegation limit for an agency established by the SPO under the provisions of G.S. 143-53(a)(2): (ii) Universities: For purchases involving an expenditure of public funds exceeding twenty five thousand dollars ($25.000). up to the benchmark established for a university under the provisions of G.S. 116-31.10. Agencies and universities may advertise sooner than the effective date and may also advertise solicitations on smaller dollar purchases through the Division of Purchase and Contract. (c) The awarding of contracts under the statutory limit for universities and the general delegation for all other agencies, shall be the responsibility of the using agency. Competitive Bidding Procedure: Where the total requirements for commodities, services or printing jobs involve an expendimre of public funds in excess of the expenditure benchmark established under the provisions of G.S. 1 16-31.10 or the general delegations established by the SPO under the provisions of G.S. 143-53(a)(2). the competitive bidding procedure as defined in G.S. 143-52 shall be utilized as follows: (a) Sealed offers for commodities and printing shall be solicited by the Division of Purchase and Contract via advertisement: (b) For service contracts, the SPO delegates to the universities and other agencies the authority to solicit sealed offers for their university/agency 12:17 NORTH CAROLINA REGISTER March 2, 1998 1612 TEMPORARY RULES (4J m m accordance mth the rules established for Subitems (2)(a) and (b) of this Rule. After opening and completing the evaluation of offers recei\ed. the agenc\- shall prepare a written recommendation for award, and if o\er the benchmark established under G.S. 1 16-31.10 or tlie general delegations established b^; the SPO. shall submit a cop\' of all offers received and their recommendation of award or other action to tlie Division of Purchase and Contract for approval or other action deemed necessary by the SPO (Examples: cancellation, negotiation, etc.). Notice of tlie Division of Purchase and Contract's decision shall be sent to the agency. The awarding of contracts for ser\'ices shall be the responsibility of tlie using agency. (c) Sealed offers for statewide term contracts for commodities, printing and sen'ices shall be solicited by the Division of Purchase and Contract via advenisement. For each service contract handled bv the agency, the agency shall prepare a task description of the services and desired results. Task descriptions shall contain ali of tlie following: (a) The date(s) of service (The contract shall not be for more than three years including extensions and renewals, without the prior appro\aJ of the SPO.): fb) Detailed specifications or type and level of work required: (c) What the State shall furnish: (d) What the contractor shall furnish: (e) The method, schedule, and procedures for billing and pa\ments: and (f) Other subject matters bearing on the conduct of the work. Rules apphing to service and printing contracts do not apply to local school administrative units or community colleges. Histon Note: Aulhonn- G.S. 143-49: 143-52; 143-53: 143- 53.1;' Eff. February 1. 1976: Readopted Ejf. Febniar.- 27. 1979: Amended Ejf. February 1. 1996: Januar.- 1. 1985; Temporarx Amendmetv. Eff. February 15. 1998. .0302 MAILEVG LISTS (a) The Division of Purchase and Cont ract shall maint ain maiiiliiinngg lliiss t s ftorr the pu rpose ot SQiiciting otte rs on various cat ego r ies of commodities and sendees.—'\ foiiii shall be available upon request as an application to be included on an appropriate lis t . (b) Companie s may be added to or removed from th e se lists after—taking—mtt) — consideration—Financial—standing—and res ponsibility,—facilities—for—produc t ion.—dist ribution—and se r vices.—length—of—frmc — successfully—m — busine ss, r esp onsi%'eness. pcrfoniiancc as a supplier, the need for competition, the budgeted amounts fo r maintaining the lists and fo r duplicating and mailing and othe r such factors as may be pe rtinent and reasonable.—Only companies responsive to solicitat ions shall be retained on mailing lists. tci — VV' hen i t is not economically feasible o r otherwise practicable to use the enti re mailing lis t , the Division may use th ose companies who may reasonably and practically be e xpect ed to reply. History Note: Authority G.S. 143-49; 143-52; Eff. February 1. 1976; Readopted Eff. February 27, 1979; Amended Eff. February 1. 1996; Temporary Repeal Eff. February 15. 1998. .0310 NOTinCATION OF AWARD If a solicitation is required to be advenised through the Division of Purchase and Contract, then notice of the resulting contract award shall be posted via the Division of Purchase and Contract's home page by the agency issuing the solicitation document in accordance with Rule .0316 of this Section. In addition. Aft e r after contracts are awarded, successful companies and age nci e s shall be notified in writing or elect ronically, electronically by the agency issuing the solicitation document. History Note: Authority G.S. 143-49; 143-52; 143-53; Eff. February 1. 1976; Readopted Eff. February 27. 1979; .Amended Eff. February 1. 1996; May 1. 1988; July 1. 1987; Temporarx Amendment Eff. Februarx 15. 1998. .0316 ADVERTISEMENT REQUIREMENTS (a) Unless already required by statute, effective September L, 1998 all advertisements required by Rule shall be through the Division of I\irchase and Contract via the Division's home page on the internet. If advertisement is required by Rule, the solicitation shall be advertised at least once and at least 10 days prior to the date designated for opening. This Rule does not pre\ent solicitation of offers by additional direct mailings or additional ad\ertisement by an agencv. (b> -Agencies required by Rule to ad\ertise their solicitations shall electronicallv transmit the required data directly to the Di\'ision's home page. The required data shall include, the complete solicitation document (specifications, requirements, terms and conditions, etc), with agenc\' name, buyer name, phone number and address for accessing hard copies of the solicitation, solicitation identification number, title la short description of the commodity', service or printing requirement), and the opening date, time and place. If the solicitation requires potential offerors to attend a mandators' conference or mandator,' site visit, this information shall also be furnished with the advertisement, to include date and time, location, and contact person and phone number. (c) Within three agency working days from award of 1613 NORTH CAROLINA REGISTER March 2, 1998 12:17 TEMPORARY RULES contract that has been advertised through the Division, agencies shall be required to electronically transmit an award notice directly to the Division's home page on the internet. The award notice shall be posted for at least 30 consecutive calendar days. This award notice shall identify the contract and award information. (d) The exact format and instructions for submitting the advertisement, summary notice, and award notice will be furnished to all agencies by the Division. (e) Exceptions to this Rule are as follows: (1) When it is deemed by the agency's executive officer or his designee that there is a valid reason for the agency not to transmit the advertisement or award notice electronically, that agency may submit the data to tlie Division, so the Division may transmit k electronically: or. the agency may place the advertisement (excluding the complete solicitation document) via newspaper. If advertised via newspaper, the agency which issued the solicitation document shall be responsible for the advertisement and the award notice shall not be required . Some valid reasons include computer equipment failure or networking difficulties, or insufficient copies of samples for a printing job. (2) If there is an attachment to a solicitation that the agency determines will not be electronically transmitted, then the solicitation document, when electronically transmitted, shall include instructions to contact the agency which issued the solicitation to obtain the attachment. (3) If an agency determines that it is not feasible to electronically transmit a particular solicitation document through the Division's home page, then the agency shall electronically transmit a summary notice, the same way as if they had electronically transmitted the solicitation document, which will instruct someone inquiring on tlig Division's home page about the solicitation, to contact the agency for a hard copy. History Note: Authority G.S. 143-52; 143-53; Temporary Adoption Eff. February 15. 1998. SECTION .0400 - INFORMAL PROPOSALS (QUOTATION) PROCEDURE .0401 GENERAL DELEGATION ftt^ In maki ng purchases of commoditi es and se rvices not General—Delegat ion, which cove r s expenditure s over two thousand—ftvc — hundred—dollars—(S2.500)—btrt—nrrder—the expenditure benchmark, shall be acquired as follows: Hi Compc'.i t ion must be solicited, where available: and (^ All purchase t ransactions shall be documented. This include s a record of all quot es received, wr itten and vcrbal. and wri tten quote. re ason fo r award to othe r than Written— r easons—for—warvei—and emergency pu rchases shall also be made a matter of record: and t^j All purchasing files must be retained fo r a perniod of five year s afte r exp i ration.—This include s purchase orders (term contract and non-term contrac t ), quotes (verbal—and — wr itten).—waiver s.—and — emergency p u rchases.—All supporting documentat ion must be kept—in—the—frlc—dtrrrng—tlrts— r etent ion— p e riod ( Exampl e -aH — quotes— r eceived.—tampics : re ason—for contracting with other than low quote or with sole sou rce(s). is a waive r or an emergency purchase, copy of purchase order and any corresponde nce): and Hi In addit ion, for purchases over five thousand dollars ($5.000)—bttt—strH—less—than—the — expenditure benchmark, agencies shall do the following : tA) Agencies are requi red to issue their own solicitation document s. This shall also apply to a waiver or emergency purchase, if time pe rmits, and fB^—The — solici tation—docume nts—sent—otrt—by agencies shall include terms and conditions applicable to the requi rement . td — Awarding of contracts under the general delegation of this Section shall be the responsibility of the age ncy's e xecutive office r . (d) Additional rules applying to se rvice contracts are in Rule .0301 of this Subchapter . History Note: Authority G.S. 143-52; 143-53; 143-53.1; Eff. February 1, 1976; ReadoptedEff. February 27. 1979; Amended Eff. February 1, 1996; January 1, 1985; Temporary Repeal Eff. Februar\ 15. 1998. SECTION .0800 - PRINTING .0801 GENERAL POLICY The Division of Purchase and Contract shall make provisions for o r cont racts fo r the printing requi rement s of, all agencies, with the except ion of community colleges and local school covered by state term contiact s and estimated to be l e ss than the administrative units, eithe r through the use of applicable state facili t ie s, de l e gat ion, waive r , or by seeking compet ition in the open market . expenditure benchmark established under the provisions of G.S. 143-53.1, the SPG may authorize agencies unde r a gene ral delegation to make those purchases.—Rul e s for print ing requirements are covered by Section .0800 of t his Subchapte r . Rules applying to se rvice contracts do not apply to local school administrat ive unit s or community colleges. (b) — Small purchase s are gove rned by Rule .1301 of this Subchapt er . Purchases of commodities and services under the History Note; Authority G.S. 143-49; 143-53; Eff. February 1. 1976; ReadoptedEff. February 27, 1979; Amended Eff. February 1, 1996; Temporary Repeal Eff. February 15. 1998. 12:17 NORTH CAROLINA REGISTER March 2, 1998 1614 TEMPORARY RULES .0802 PROCEDURE (a) The dollar limits for handling contracts for printing shall be as follows : (4-) Gener al State government agencies and de partments may handle p rinting cont racts up to five hund red dollar s <S500) pe r job. (5^ The universities and institutions may handle printing contracts up to ten thousand dollar s (SIO.OOO) pe r job. (3^ All print ing contracts over dncse dollar limits shall be handled by the Division of Purchase and Cont ract. (b) All printing cont rac t s over five hund red dollars (5500) which cannot be sat isfied by the Department of Correction in accordance with G.S. 148-70. shall be handled as follows : ("H Competition must be solicited, where available; and (5^ All purchase transac t ions shall be documented. This includes a record of all quotes received, written and ve rbal, and written reason fo r award to other than krw — quote. Writt en—re asons—for — waive r—and emerge ncy pu rchases shall also be made a matter of record : and (3^ All purchasing files must be retained fo r a pe riod of five year s afte r expi ration.—This include s purchase of this Subchapter . Rules applying to printing contracts do not app ly to local school administrative units or community colleges. The Executive Officer of each agency shall set foith. in writing, purchasing procedures fo r making small purchases. Awarding of contracts fo r small purchases shall be the responsibility of the agency's executive office r . The SPO may requi re a copy of the small purchase procedures be sent to the Division of Purchase and Contract. History Note: Authority G.S. 143-53; Eff. February 1, 1976; Readopted Eff. February 27, 1979; Amended Eff. February 1, 1996; Temporary Repeal Eff. February 15. 1998. SECTION .1500 - MISCELLANEOUS PROVISIONS .1519 PROTEST PROCEDURES A party wanting to prot est a contract award handled by the Division of Purchase and Contract must submit a wr itten request fo r a prot est meeting to the SPO which must be received in the Division of Purchase and Contract within 30 orde r s, quotes (verbal and wr itten), waive r s, and consecutive cal e ndar days from the date of the protested emergency purchases. All supporting documentation must be kept in the fil e du ring t his retention pe riod (Example t4i tcsi ati — quot es— r eceived.— r eason—tot contracting wi th othe r than low quote or with sole source(s), is a waive r or an eme rgency purchaser copy of purchase orde r and any corresponde nce ): and In addition, for printing contracts ove r five thousand l e tt er .—If not, the SPO will schedule a meeting with the dollar s ($ 5 ,000) but still within the limits specified contract award. 1 nis lette r must contain specific sound reasons and any supporting docume ntation for why the party is p rotesting the award or the protes t will be promptly reject e d. If the SPO can render a de cision based on th e facts without a mee ting, a wr itten response with a decision will be rende red within 10 consecutive calendar days of the receipt of th e prot es t rr — wil protesting party to hear thei r complaint. This meeting will be in Paragraph (a) of this Rul e , th e se guidelines shall held within 30 consecutive calendar days afte r recei pt of the be followed : wr itte n protest. The SPO will respond to the prote s t ing party documents shall be issued.—This in writing with a decision within 30 consecutive calendar days from the date of the protest meeting. All decisions of the SPO shall be the final administrat ive review. (a) To insure fairness to all offerors and to promote open competition, agencies and the Division of Purchase and Contract shall actively follow-up and be consistent in responding to an offeror's protest over contract awards. (b) This Rule applies only to contracts with an actual or estimated dollar value over ten thousand dollars (SIO.OOO). h is recommended that agencies establish procedures to handle an offeror's concerns for contracts with less dollar value. (c) When an offeror wants to protest a contract awarded by an agency over ten thousand dollars (SIO.OOO). the agency and the offeror shall comply with the following: (1) The offeror shall submit a written request for a protest meeting to the agency's executive officer which shall be received by the agency's executive officer's office within 30 consecutive calendar days from the date of the contract award. The executive officer shall furnish a copy of this letter to the SPO within 5 consecutive calendar days of receipt. The offeror's letter shall contain specific sound reasons and any supporting documentation for why they have tA) Solicitation shall also apply to a waive r o r emergency purchase, if time permits, ajid (ftl — The solicitation documents sent out shall include te nns and conditions applicabl e to the requi rement, (c) TTie award of contracts within the dollar limits specified in Subparag raphs (a)(1) and (2) of this Rule shall be the responsibility of the agency's executive offic er . History Note: Authority G.S. 143-49; 143-53; Eff. Febman,' 1. 1976; Readopted Eff. February 27. 1979; Amended Eff. February f 1996: January 1. 1985: Temporal,- Repeal Eff. February 15. 1998. SECTION .1300 - SMALL PURCHASES .1301 PROCEDURES A small purchase is defined as the purchase of commodities or se rvices, not covered by a term cont ract, and the e x pe nditu re IS fo r two thousand five hund red dollars (S2.500) or less. Rules fo r printing requi rements are cove red by Section .0800 1615 NORTH CAROLINA REGISTER March 2, 1998 12:17 TEMPORARY RULES a concern with the award. If the letter does not contain this information, or if the executive officer determines that a meeting would serve no purpose, then he may, within 10 consecutive calendar days from the date of receipt of the letter, respond in writing to the offeror and refuse the protest meeting request. A copy of the executive officer's letter shall be forwarded to the SPO. (2) If the protest meeting is granted, the executive officer shall attempt to schedule the meeting within 30 consecutive calendar days after receipt of the letter, or as soon as possible thereafter. Within 10 consecutive calendar days from the date of tlie protest meeting, the executive officer shall respond to the offeror in writing with his decision. A copy of the executive officer's letter shall be forwarded to the SPO. (3) The agency shall notify the SPO. in writing, of any further administrative or judicial review of the contract award. (4) The executive officer may appoint a designee to act on his behalf under this Rule. (d> When an offeror wants to protest a contract awarded by the Secretary over ten thousand dollars ($10.000). the SPO and the offeror shall comply with the following: (1) The offeror shall submit a written request for a protest meeting to the SPO which shall be received by the Division within 30 consecutive calendar days from the date of the contract award. The offeror's letter shall contain specific sound reasons and any supporting documentation for why they have a concern with the award. If the letter does not contain this information, or if the SPO determines that a meeting would serve no purpose, then he may, within 10 consecutive calendar days from the date of receipt of the letter, respond in writing to the offeror and refuse the protest meeting request. (2} If the protest meeting is granted, the SPO shall attempt to schedule the meeting within 30 consecutive calendar days after receipt of the letter. or as soon as possible thereafter. Within 10 consecutive calendar days from the date of the protest meeting, the SPO shall respond to tlie offeror in writing with his decision. History Note: Authority G.S. 143-53; I50B-2; 150B-22; 150B-23: EJf. February 1, 1996: Temporary Amendment Eff. February 15. 1998. SECTION .1600 - EXEMPTIONS, EMERGENCIES AND SPECIAL DELEGATIONS .1604 GENERAL DELEGATIONS The general purchasing delegation for agencies (except the universities) shall be not more than ten thousand dollars ($10.000). The SPO may lower or raise this general delegation for a specific agency, up to Lhe amount established by G.S. 143-53.1. after consultation with the State Budget Officer and the State Auditor for State agencies, and upon consideration of the agency's (except the universities) overall capabilities, including staff resources, organizational structure, training, purchasing compliance reviews, electronic communication capabilities, and audit reports. If an agency wishes to obtain an increase in their general delegation, they shall submit a request in writing, outlining their overall capabilities, to tlie SPO for his consideration. History Note: Authority G.S. 143-53: Temporary Adoption Eff. February 15. 1998. SECTION .1900 - RECORDS OF THE DIVISION OF PURCHASE AND CONTRACT .1906 APPLICATIONS FOR ADDITION TO MAILING LIST Applications for inclusion on mailing lists are ret ained fo r two years. History Note: Authority G.S. 143B-10(f); Eff. February 1. 1976: Readopted Eff. Febmary 27. 1979; Amended Eff. February 1, 1996: Temporary Repeal Eff. February 15. 1998. TITLE 10 - DEPARTMENT OF HEALTH AND HUMAN SERVICES Rule-making Agency: Human Serxices Secretary of Department of Health and Rule Citation: 10 NCAC 21B .01 17 Effective Date: March 9. 1998 Findings Reviewed and Approved by: Beecher R. Gray Authority for the rule-making: G.S. 143-116.7 Reason for Proposed Action: On November 6, 1997, Fire Inspector conducted an inspection of the streets on The Governor Morehead School Campus. Several fire safety hazards and/or violations of the local/state codes were noted. An Order To Comply was issued requiring GMS to correct these infractions as soon as possible. Failure to comply with the order may render the state liable to the penalties provided by law for these violations. More importantly, these violations couldjeopardize the safety and welfare of students and staff on the GMS Campus. Comment Procedures: Any interested persons may present written comments to Patricia D. Purser, Division of Serxices for the Blind, 309 Ashe Avenue, Raleigh, NC 27606. 12:17 NORTH CAROLINA REGISTER March 2, 1998 1616 TEMPOKARY RULES CH.\PTER 21 - THE GOVERNOR MOREHEAD SCHOOL SL^BCHAPTER 21B - CAMPUS REGLXATIONS SECTION .0100 - ABSENCES FROM CAMPUS .01 17 THE GOVERNOR MOREHEAD SCHOOL CAMPUS PARKING Parking on The Go\emor Morehead School Campus shall be in conformity with the following requirements: (1) Vehicles shall be parked onl\- in designated parking spaces. Parkmg spaces are defined by painted lines in the surfaced areas and by wheel-stops in non-surfaced areas. (2) No parking is allowed on any streets. (3) No stopping to load or unload is allowed on anv streets. (4) Signs shall be erected in specific areas indicating No Parking and Tow-away Zones. (5) The school may ha\'e remo\ed to a place of storage. at the owner's expense. an\' unattended vehicle illegalh' parked in a designated tow-awa\' zone. (6) No parking is allowed in any manner that would block or prohibit access to a designated crosswalk. Hisron- Note: Auihoniy G.S. 143-116.7; Temporan Adoption Eff. March £. 1998. TITLE 15A - DEPARTMENT OF EN"V IRON^IENT AND NATLHAL RESOURCES Rule-making Agency: Department of Environment and Natural Resources Rule Citation: 15A .VC4C OlO .0101 - .0109 Effective Date: March 1. 1998 Findings Reviewed and Approved by: Beecher R. Grax Authority for the rule-making: G.S. 130A-4 Reason for Proposed Action: Tliese Rules \\ere originally adopted by the Conunission for Health Senices (November 14. 1997). The NC .-Rules Revie^v Commission found that the Commission for Health Senices did not hare statutory authority to adopt the rules. In addition, the RRC has indicated that they intend to invalidate the current ndes codified as 15.4 NCAC 18A .2300 at the Febmary meeting of the RRC. Because there must be rules in effect to be used to determine who is delegated authority to enforce ndes of the Conunission for Health Senices. it is essential that these Rules be adopted as temporary ndes. Without these Rules, there will not be any defendable or rational basis for granting or denying delegations to local health depanment environmental health specialists to enforce CHS ndes as an agent of the state. Comment Procedures: Comments may be made to Malcolm Blalock. PO Box 29596. Raleigh. NC 27626-0596 or E-Mail at Malcolm_Blalock@mail.ehnr. state. nc. us. CHAPTER 1 - DEPARTMENTAL RULES SUBCHAPTER lO - ENVIRONMENTAL HEALTH SECTION .0100 - DELEGATION OF AUTHORITY TO ENFORCE THE CONLMISSION FOR HEALTH SERVTCES SANTTATION RULES .0101 SCOPE OF DELEGATED AUTHORITY No person shall act as an authorized agent of the state in enforcing the provisions of G.S. 130A and the rules of the Commission for Health Services who is not a current emplo^^ee of a local health department, registered with the North Carolina State Board of Sanitarian E.xaminers as a Registered Sanitarian or Sanitarian Intern and authorized pursuant to these Rules. E.xcept as provided in Rule .0105 of this Section, an authorization shall be valid only in the count)' or district served b\- the local health department which emplo\ s the agent. There shall be seven areas of authorization to enforce the provisions of G.S. BOA and the rules of the Commission for Health Services found in 15A NCAC 18A as follows: ( 1 ) Food. Lodging, and Institution Sanitation including the following: (a) .1000 Sanitation of Summer Camps. (b) .1300 Sanitation of Hospitals: .Nursing and Rest Homes: Sanitariums. Sanitoriums: Educational and other Institutions. . 1500 Sanitation of Local Confinement Facilities. .1600 Sanitation of Residential Care Facilities. .1800 Sanitation of Lodging Establishments. .2100 Rules Governing the Sanitation & Safetv of Migrant Housing. .2200 Samtation of Bed and Breakfast Homes. .2400 Sanitation of Public. Private, and Religious Schools. .2600 Sanitation of Restaurants and Other Foodhandling Establishments. til .2700 Sanitation of Meat Markets, and Ikj .3000 Bed and Breakfast Inns. On-Site Wastewater, including the following: (a) .1900 Sewage Treatment and Disposal S\stems. .1603 and .1606. .1611(a> and (b) and .1613 Care Facilities ici (di m lili Hi 01 Ibj Sanitation of Residential (Famil\- Foster Homes), and (c) .2100 Rules Governing the Sanitation and Safety of Migrant Housing. (3) .2800 Sanitation of Child Care Centers. (4) .3100 Lead Poisoning Prevention in Children 1617 SORTH CAROLISA REGISTER March 2, 1998 12:17 TEMPORARY RULES Program. (5) .2500 Public Swimming Pools. £6} .3200 Tattooing. ill .1603. .1606. .1611(a) and (b), .1613 Sanitation of Residential Care Facilities (Family Foster Homes) and .2100 Rules Governing the Sanitation and Safety of Migrant Housing. History Note: Authority G.S. 130A-4; Temporary' Adoption Eff. March L. 1998. .0102 ELIGIBILITY FOR DELEGATION OF AUTHORITY (a) The applicant shall successfully complete a centralized training course approved by the Division. (b) The applicant shall successfully complete all required orientation, preliminary activities and field practice and review established by the Division. (c) When the supervisor determines that the applicant has progressed sufficientlv to work independently, the health director may request the applicant be evaluated for authorization. Documentation of the satisfactory completion of all preliminary activities and field practice, including any inspection or evaluation forms completed by the applicant and comments of the supervisor shall be forwarded to the regional specialist. (d) If. upon reviewing the File, the regional specialist fmds that the applicant needs additional study or field practice, the evaluation for authorization may be postponed until that study or practice has been completed. (e) Upon satisfactory completion of the requirements in Paragraphs iai ; IdJ of this Rule, the regional specialist shall coordinate the administration of a written test which the applicant must pass by a score of 70 percent or more. The test may be repeated if necessary. (f) An applicant only requesting authorization for 15A NCAC 18A .3100 Lead Poisoning Prevention in Children Program, in lieu of the requirements set out in Paragraphs (a) -_ (e) of this Rule, shall be required to take and successfully complete the North Carolina State of Practice course entitled "Lead Investigation and Abatement" and shall pass the written test provided by that course. (g) After the applicant has successfully completed the written test, the regional specialist shall conduct a field evaluation of the applicant's knowledge, skills, and ability to enforce the provisions of G.S. 130 A and the rules of the Commission. Following the field evaluation, the regional specialist shall make a recommendation to issue or deny the authorization to the Director of the Division of Environmental Health. History Note: Authority 130A-4; Temporary Adoption Eff. March L. 1998. .0103 DELEGATION OF AUTHORITY Upon determination that the criteria in Rules .0101 and .0102 of this Section have been met and none of the reasons for denial listed in Rule .0107 of tliis Section exist, and upon a review of the recommendation of the regional specialist, the Director. Division of Environmental Health, shall rule on the request for authorization. An Identification Card shall be issued by the Division to each person authorized to enforce provisions of G.S. 130A and the rules of the Commission. The card shall be carried by the agent at aU times when on duty. The card is the property of tfie Division and shall be returned to the Division upon separation of employment, suspension, or revocation of authorization or failure to maintain registration with the NC Board of Sanitarian Examiners. History Note: Authority G.S. 130A-4; Temporary Adoption Eff. March l^ 1998. .0104 LAPSED DELEGATIONS The local health director shall request authorization for an individual whose authorization in one or more areas of authorization has lapsed. (1) An individual whose authorization in m area of authorization has lapsed for a period of up to three years shall be required to receive training as determined by the regional specialist after a field evaluation of the applicant's knowledge, skills, and ability to enforce the rules. 01 An individual whose authorization in an area of authorization has lapsed for a period of three years to five years shall be required to meet all of the requirements which apply to new applicants, except that the individual shall be required to attend only the portions of tlie centralized training course which are directly applicable to the area of authorization requested. An individual whose authorization in an area of authorization has lapsed for a period longer than five years shall be required to meet all requirements which apply to new applicants. History Note: Authority G.S. 130A-4; Temporary Adoption Eff. March L^ 1998. 01 .0105 AGENTS SERVING AS CONTRACTORS The Division may allow an agent who is authorized in a specific local health department to contract with another local health department to provide services to the other local health department. When a local health department contracts for such services, the contractin g department shall provide a statement to tlie Division on progress made to employ an individual who may be considered for authorization. (1) A contract shall be created between the contracting local health department and the agent (contractor) to include at least the following provisions: (a) Names and addresses of each party. Scope of work to be performed. A requirement that the original public records remain in the local health department in which the work is performed. The public records shall be left at tfie local health department or ic) 72./ 7 NORTH CAROLINA REGISTER March 2, 1998 1618 TEMPORARY RULES with an individual employed by the local health department who shall be responsible for returning said records to the local health depanment within two business days of the service provided. (d) Designation of the party responsible for maintaining public records created by the agent. (e) A requirement that the contracting agent be available for consultation to the public being served during usual business hours. (f) A requirement that the contracting agent be available for any hearing or other legal proceeding which may ensue from activities conducted by the agent. (2) The contracting agent shall maintain a list of each activity and the date performed for review in accordance with Item (3) of this Rule. (3) Each public record created by the contracting agent shall be reviewed, dated, and initialed by an authorized agent of the contracting local health department. In addition, at least K) percent of the activities performed by the agent shall be reviewed in the field by an authorized agent employed by the contracting local health department. If the contracting local health department has no authorized employee, the Division shall conduct a review of each public record created by the contracting agent. In addition, at least 10 percent of the activities performed by the agent shall be reviewed on-site in the field by the Division. The review shall be conducted each month and shall cover the previous month's activities conducted by the agent. History Note: Authority G.S. 130A-4: Temporary Adoption Eff. March L. 1998. (6) incompetency or unprofessionalism in performing authorized duties: (7) neglect of duty: or (8) failure to properly interpret and enforce laws, rules, and policies. (b) Alternatively, the Director. Division of Environmental Health may place an individual on conditional status for a period not to exceed six months if tlie individual's failure to properly enforce laws, rules and policies may be corrected with additional education and oversight. The Director may suspend or revoke the authorization anytime during the conditional period if satisfactory progress is not made and the Director shall suspend or revoke the authorization after the conditional period if the individual does not demonstrate the necessary knowledge, skills and ability to warrant an unconditional authorization. History Note: Authority G.S. 130A-4; Temporary Adoption Eff. March I_^ 1998. .0108 RE-AUTHORIZATION If an individual's authorization has been suspended, the authorization shall be reinstated upon determination by the Division that the reasons for suspension no longer exist. If an agent's authorization has been revoked for failure to comply with the requirements found in Rule .0107(a)(2) or [Si of this Section, the agent may apply for reinstatement five years after the revocation becomes effective. If an individual's authorization has been revoked for reasons other than those found in Rule .0107(a)(2) or (5) of this Section, the agent may reapply for authorization after six months from the date the revocation becomes effective by satisfying the requirements of Rules .0102 and .0103 of this Section. The Division may refuse to re-authorize an individual if the Division determines that the actions which were the basis for the revocation or suspension are likely to reoccur. .0106 EVALUATION The regional specialist may, at aiiy time, evaluate the performance of an authorized agent and recommend that the Director. Division of Environmental Health, take corrective action. History Note: Authority G.S. 130A-4: Temporary Adoption Eff. March 1. 1998. History Note: Authority G.S. 130A-4: Temporary Adoption Eff. March L. 1998. .0107 DENIAL, SUSPENSION AND REVOCATION (a) The Director. Division of Environmental Health, may deny, suspend, or revoke the authorization to act as an agent of the State for any of the following: ( 1 ) failure to satisfy the requirements for authorization in Rules .2302. .2303 and .2306 of this Section: fraud, deceit, dishonesty, or perjury in obtaining authorization or m performing authorized duties: abuse of controlled substances: drug or alcohol induced intoxication on duty: defrauding the public or attempting to do so; 01 ill til 111 .0109 APPEALS PROCEDURES Appeals concerning denials, suspensions and revocations of authorization under these Rules shall be made in accordance with G.S. 150B. An individual whose authorization has been suspended or revoked and who timely requests an appeal may continue to work as aii authorized agent until a final agency decision is made pursuant to G.S. 150B-36: however, all inspection forms and permits completed by the agent during that period must be countersigned by another authorized agent who concurs with the findings and conclusions reflected on the inspection forms and permits. History Note: Authority G.S. 130A-4: Temporar\ Adoption Eff. March L. 1998. 1619 NORTH CAROLINA REGISTER March 2, 1998 12:17 APPROVED RULES Tins Section includes the Register Notice citation to Rules approved by the Rides Review Commission (RRC) at its meeting of December 18. 1997 pursuant to G. S. 150B-21.1 7(a) (1) and reported to the Joint Legislative Administrative Procedure Oversight Committee pursuant to G.S. 150B-21.16. The full text of rules are published below when the rules have been approved by RRC in a form different from that originally noticed in the Register or when no notice was required to be published in the Register. The rules published in full text are identified by an * in the listing of approved rules. Statutory Reference: G.S. 150B-21. 17. These rules unless othern'ise noted, will become effective on the 31st legislative day of the 1998 Short Session of the General Assembly or a later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the bill receives an unfavorable final action or the day the General Assembly adjourns. Statutory reference: G.S. 1508-21. 3. APPROVED RULE CITATION REGISTER CITATION TO THE NOTICE OF TEXT 2 NCAC 48D .0103*Amended Eff. 1-1-98 2 NCAC 52A .0104* 2 NCAC 52A .0105 2 NCAC 52A .0106- .0109* 2 NCAC 52D .0101* 4 NCAC 19L .0401* 4 NCAC 19L .0404* 4 NCAC 19L .0505* 4 NCAC 19L .0707 - .0708* 4 NCAC 19L .0911* 4 NCAC 19L .1009* 4 NCAC 19L .1011* 4 NCAC 19L .1303* 4 NCAC 19L .1703* 4 NCAC 19L .1804- .1805* 10 NCAC 03R .3073 - .3074* 10 NCAC 03R .3081* 10 NCAC 45H .0203* 11 NCAC 12 .1703*Amended Eff. 1-1-98 12 NCAC lOB .0101 12 NCAC lOB .0107* 12 NCAC lOB .0202* 12 NCAC lOB .0204* 12 NCAC lOB .0206 12 NCAC lOB .0505* 12 NCAC lOB .0601* 12 NCAC lOB .0603* 12 NCAC lOB .0605* 12 NCAC lOB .0702 12 NCAC lOB .0703 - .0704* 12 NCAC lOB .0705 - .0706 12 NCAC lOB .0707* 12 NCAC lOB .0801 12 NCAC lOB .0802* 12 NCAC lOB .0903* 12 NCAC lOB .0908 12 NCAC lOB .0909* 12 NCAC lOB .0910-. 0911 12 NCAC lOB .1002* 12 NCAC lOB .1004- .1005 12 NCAC lOB .1006* not required, G.S. 150B-21.5(1)(5) 12 03 NCR 169 12 03 NCR 169 12 03 NCR 169 12 03 NCR 170 11 14 NCR 1113 11 14 NCR 1113 11 14 NCR 1113 11 14 NCR 1113 11 14 NCR 1113 11 14 NCR 1113 11 14 NCR 1113 11 14 NCR 1113 11 14 NCR 1113 11 14 NCR 1113 12 04 NCR 260 12 04 NCR 266 11 29 NCR 2208 not required, G.S. 150B-2 1.5(5) 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:17 NORTH CAROLINA REGISTER March 2, 1998 1620 APPROVED RULES 12 NCAC lOB .1202* 12 NCAC lOB .1204 - .1205 12 NCAC lOB .1206* 13 NCAC 16 .0101* 13 NCAC 16 .0102* - .0103 13 NCAC 16 .0201* 13 NCAC 16 .0202 - .0208 13 NCAC 16 .0301 - .0303* 13 NCAC 16 .0401 13 NCAC 16 .0402* 13 NCAC 16 .0501* 13 NCAC 16 .0502 15A NCAC 02L .0106* 15A NCAC 02N .0701* 15A NCAC 02 P .0402 15A NCAC 06E .0104- .01 05*Amended Eff. 1-1-98 15A NCAC 07M .0303*Amended Eff. 1-1-98 15A NCAC 08F .0203* 15A NCAC 24A .0202 16 NCAC 06C .0307*Amended Eff. 1-1-98 16 NCAC 06D .0103*Amended Eff. 1-1-98 16 NCAC 06D .0301*Amended Eff. 1-1-98 16 NCAC 06G .0305 - .0308*Amended Eff. 1-1-98 21 NCAC 12 .0202 21 NCAC 32H .0102* 21 NCAC 32H .0201* 21 NCAC 32H .0202 - .0203 21 NCAC 32H .0301 - .0303 21 NCAC 32H .0401 21 NCAC 32H .0402 - .0404* 21 NCAC 32H .0405 - .0408 21 NCAC 32H .0409* 21 NCAC 32H .0501 - .0506 21 NCAC 32H .0507* 21 NCAC 32H .0508 21 NCAC 32H .0601 - .0602 21 NCAC 32H .0801* 21 NCAC 32H .0901 21 NCAC 32H .1004 21 NCAC 36 .0109 12:08 NCR 624 12:08 NCR 624 12:08 NCR 624 12:05 NCR 412 12:05 NCR 412 12:05 NCR 412 12:05 NCR 412 12:05 NCR 414 12:05 NCR 414 12:05 NCR 414 12:05 NCR 414 12:05 NCR 414 11:21 NCR 1640 11:21 NCR 1649 11:21 NCR 1650 not required, G.S. 11 11 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 11 11 NCR 927 28 NCR 2125 07 NCR 523 01 NCR 19 01 NCR 19 01 NCR 19 01 NCR 19 07 NCR 525 04 NCR 295 04 NCR 295 04 NCR 297 04 NCR 298 04 NCR 299 04 NCR 300 04 NCR 303 04 NCR 305 04 NCR 305 04 NCR 309 04 NCR 310 04 NCR 310 04 NCR 311 04 NCR 311 04 NCR 312 28 NCR 2130 1503-21. 5 TITLE 2 - DEPARTMENT OF AGRICULTURE CHAPTER 48 - PLANT INDUSTRY SUBCHAPTER 48D - LIMING MATERIALS AND LANDPLASTER SECTION .0100 - LEVIING MATERIALS AND LANDPLASTER .0103 LABELING (a) Limestone labels shall give the following infonnation: ( 1 ) net weight; (2) brand name truly descriptive of product: (3) euaranteed analysis in form and order as follows: Percent: Percent; (A) Calcium (B) Magnesium (C) Calcium Carbonate Equivalent Percent; (D) Percent passing 20 mesh screen; (E) Percent passing 100 mesh screen; (4) pounds of this material equals one ton of standard agricultural liming material; (5) manufacturer or registrant's name and address. (b) Landplaster labels shall give the following information: (1) net weight; (2) brand name; (3) guaranteed analysis Calcium Sulfate Percent; (4) manufacturer or registrant's name and address. (c) Suspension limestone labels shall give the following 1621 NORTH CAROLINA REGISTER March 2, 1998 12:17 APPROVED RULES information: (1) net weight (total mixture); (2) brand name truly descriptive of product; (3) guaranteed analysis (total mixture) as follows: (A) (B) (C) (D) (E) Calcium Magnesium Calcium Carbonate Percent; Percent; Percent; Equivalent Percent passing a 20 mesh screen; Percent passing a 100 mesh screen; (4) pounds of this material equals one ton of standard liming material; (5) manufacturer or registrant's name and address. Note (1): (The following example pertains to Paragraph (a) of this Rule.) If the product is 28 percent calcium, 6 percent magnesium, 70 percent calcium carbonate equivalent, 90 percent passes a 20 mesh screen and 35 percent passes a 100 mesh screen, the limestone label should read: XYZ Ground Dolomitic Limestone Guaranteed Analysis Calcium 28 Percent Magnesium 6 Percent Calcium Carbonate Equivalent 70 Percent 90 Percent passing 20 mesh screen 35 Percent passing 100 mesh screen 2571 pounds of this material equals one ton of standard liming material (9/7 x 2000 lbs.) Manufacturer or registrant's name and address Note (2): (The following example pertains to Paragraph (c) of this Rule.) If 50 percent of mixture is limestone with 30 percent calcium, 12 percent magnesium, 100 percent passing a 20 mesh screen and 80 percent passing a 100 mesh screen; 50 percent of mixture is carrier; calcium carbonate equivalent is 100 percent, the suspension limestone label should read: Suspension Dolomitic Limestone Guaranteed Analysis Calcium 15 Percent Magnesium 6 Percent Calcium Carbonate Equivalent 50 Percent 100 Percent passing a 20 mesh screen 80 Percent passing a 100 mesh screen 3600 pounds of this product equals one ton of standard liming material Manufacturer or registrant's name and address, (d) Pelletized lime (to be sold in bags only not to exceed 100 pounds): (1) net weight; (2) brand name truly descriptive of the product; (3) a statement in letters at least one half as large as the (4) letters in the brand name or three-eighths inch in height, whichever is less, as follows: "For incorporation-after application, wet thoroughly 30 minutes before tilling"; guaranteed analysis: (A) Calcium Percent; (B) Magnesium Percent; (C) Calcium Carbonate Equivalent Percent; (D) Percent passing a screen; (E) Percent passing a 20 mesh 100 mesh screen; manufacturer's or registrant's name and address. (e) Fine granular lime (to be sold in bags only not to exceed 100 pounds): (1) net weight; brand name truly descriptive of the product; a statement in letters at least one half as large as the letters in the brand name or one inch in height, whichever is less, as follows: "For use on existing turf only"; guaranteed analysis: (5) (2) (3) (4) (A) (B) (C) (D) (E) Calcium Magnesium Percent; Percent; Calcium Carbonate Equivalent Percent; Percent passing a 20 mesh screen; (5) (0 2 Percent passing a 100 mesh screen; manufacturer's or registrant's name and address. NCAC 48D .0103(d) shall be effective July 1, 1985. History Note: Authority G.S. 106-92.16; EJf. My 1. 1980: Amended Eff. September 1, 1984; Transferred from T02.11D Eff. January 1. 1985; Amended Eff. Januan L. 1998: July 1. 1986. CHAPTER 52 - VETERINARY DIVISION SUBCHAPTER 52A - RULES AND REGULATIONS ADOPTED BY REFERENCE SECTION .0100 - ADOPTIONS BY REFERENCE .0104 MEAT FACILITIES REQUIREMENTS The "Federal Facilities Requirements for Existing Meat Plants," as published by the United States Department of Agriculture, Food Safety and Inspection Service, including subsequent amendments and editions, are hereby incorporated by reference. Copies of this material may be obtained from the Meat and Poultry Inspection Service at no cost. History Note: Authority G.S. 106-549.22; Eff. April 1, 1984; 12:17 NORTH CAROLINA REGISTER March 2, 1998 1622 APPROVED RULES Amended Eff. July 1 . 1998. SECTION .0100 - STANDARDS: OFFICIAL MARK .0106 CONSTRUCTION OF MEAT PLANTS The volume entitled "United States Meatpacking Plants: A Guide to Constmction, Equipment and Layout," Agriculture Handbook No. 570, as published by the United States Department of Agriculture, Food Safety and Inspection Service, including subsequent amendments and editions, are hereby incorporated by reference. Copies of this material may be obtained from the Meat and Poultry Inspection Sen/ice at no cost. History Note: Authority G.S. 106-549.22; Eff. April 1. 1984; Amended Eff. July 7. 1998. .0 1 07 LABELING MEAT AND POULTRY PRODUCTS The volume entitled "Standards and Labeling Policy Book," as published by the United States Department of Agriculture, Food Safety Inspection Service, Standards and Labeling Division, including subsequent amendments and editions, are hereby incorporated by reference. Copies of this material may be obtained from the Superintendent of Documents, U.S. Government Printing Office. Washington, D.C. 20402, at a cost of ninety-eight dollars (S98.00). History Note: Authority G.S. 106-549.22; Eff. Apr!I 1. 1984; Amended Eff. July 1. 1998. .0108 SANITATION HANDBOOK The "FSIS Directive 11.000.2 - Plant Sanitation," published by the United States Department of Agriculture, Food Safety and Inspection Service, Science and Technology Branch, Facilities, Equipment and Sanitation Division, including subsequent amendments and editions, are hereby incorporated by reference. Copies of this material may be obtained from the Meat and Poultry Inspection Ser\'ice at no cost. History Note: Authority G.S. 106-549.22; Eff. April 1, 1984; Amended Eff Julx 1. 1998. .0109 INSPECTION MANUAL The "Meat and Poultry Inspection Manual," published by the United States Department of Agriculture. Food Safety and Inspection Service, Inspection Operations, including subsequent amendments, are hereby incorporated by reference. Copies of this material may be obtained from the Meat and Poultry Inspection Service at no cost. History Note: Authority G.S. 106-549.22; Eff. April 1. 1984; Amended Eff Jul\ 1. 1998. SUBCHAPTER 52D - MEAT AND POULTRY LNSPECTION .0101 CERTAIN STANDARDS ADOPTED: EXCEPTIONS The Rules, Regulations, Definitions and Standards of the United States Department of Agriculture governing meat and meat products inspection, poultry products inspection, voluntary inspection of poultry and humane methods for slaughtering animals. Subchapters A, B, C, and D, Title 9, Part 301 et. seq.. Code of Federal Regulations, are hereby incorporated by reference, including subsequent amendments and editions, subject to the following exceptions: (1) Conformity of Federal Regulations to North Carolina Authority is Assumed. To conform federal regulations to North Carolina Authority, references in the federal regulations to the "Secretary of Agriculture," the "United States Department of Agriculture," the "Food Safety and Inspection Service," its "Administrator" and "Officer in Charge" shall be deemed to refer to the corresponding North Carolina authority, the "Commissioner of Agriculture," the "North Carolina Department of Agriculture and Consumer Services," the "Meat and Poultry Inspection Service" and its "Director for Meat and Poultry Inspection Service" and the "Area Supervisors." References to "interstate commerce" shall be deemed to refer to "intrastate commerce" within North Carolina. (2) Statutory references to the "Federal Meat Inspection Act" shall be deemed to refer to the corresponding provisions of the "North Carolina Meat Inspection Law," Article 49B and Anicle 49C of Chapter 106 of the North Carolina General Statutes. (3) Stamtory references to the "Federal Poultry Products Inspection Act" shall be deemed to refer to the corresponding provisions of the "North Carolina Poultry Products Inspection Act," Article 49D of G.S. 106. (4) References to federal marks of inspection, forms, overtime rates and charges shall be deemed to refer to the corresponding North Carolina marks of inspection, forms, and overtime rates and charges. These rates are established by the Commissioner pursuant to G.S. 106-549.69 to cover the cost of providing the service. Standards of the Federal Food, Drug and Cosmetic Act incorporated in the federal regulations are applicable to these articles. Copies of the above are available for inspection in the Office of the Director of the State Meat and Poultry Inspection Service and may be obtained at a cost of one hundred and eighteen dollars (SI 18.00) per copy by contacting the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. History Note: Authority G.S. 106-549.21; 106-549.22; 106-549.28; Eff. April 1, 1984; 1623 NORTH CAROLINA REGISTER March 2, 1998 12:17 APPROVED RULES Amended EJf. My_ L 1998: July 1, 1986; April 1, 1985; Januar\ 1, 1985. TITLE 4 - DEPARTMENT OF COMMERCE CHAPTER 19 - DIVISION OF COMMUNITY ASSISTANCE SUBCHAPTER 19L - NORTH CAROLINA COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM SECTION .0400 - DISTRIBUTION OF FUNDS .0401 GENERAL (a) The Division shall designate specific due dates or open periods of time for submission of grant applications under each category, based on the amount of funds available and coordination with other federal program funding cycles. Urgent Needs applications may be submitted at any time. (b) In cases where the Division makes a procedural error in the application selection process that, when corrected, would result in awarding a score sufficient to warrant a grant award, the Division may compensate that applicant at the earliest time sufficient funds become available or with a grant in the next funding cycle. (c) Applicants may apply for funding under the grant categories of Community Revitalization, Housing Development, Community Empowerment, Demonstration and Urgent Needs. Applicants shall not apply for Contingency funding. Contingency awards may be made to eligible applicants in any category. History Note: Authority G.S. 143B-10; 143B-431; 24 C.F.R. 570.483; Eff. July 1, 1982; Amended Eff. August L 1998: March 1. 1986; October 1. 1984; March 1, 1984. .0404 GRANT CATEGORY ALLOCATION Each program year, funds shall be reserved for each grant category. When authorized by the General Assembly the Division may set aside up to two percent for demonstration grants. The remaining funds shall be distributed by the Division to Community Revitalization grant applications unless otherwise specified in the General Assembly. History Note: Authoritx G.S. 143B-10; 143B-431; 42 U.S. C. 5304; 24 C.F.R. 570.482; 24 C.F.R. 570.4831; Eff. July 1. 1982; Amended Eff. August L 1998; June 1, 1994; June 1, 1993; May 1. 1992; April /, 1990. SECTION .0500 - COMMUNITY REVITALIZATION PROJECTS .0505 SELECTION CRITERIA Projects shall be evaluated and rated in accordance with the following rating factors: (1) benefit to low and moderate income persons, (2) project severity of need, (3) project treatment of need, (4) appropriateness and feasibility of proposed project activities, and (5) local commitment of funds and community efforts. History Note: Authority G.S. 143B-10; 143B-431; 42 U.S.C.A. 5304(a)(1); 24 C.F.R. 570.483; Eff. July 1. 1982; Amended Eff. August L. 1998: March 1. 1995; June 1, 1993; March 1, 1986; March 1, 1984. SECTION .0700 - DEMONSTRATION PROJECTS .0707 ELIGIBILITY REQUIREMENTS (a) Applications for Demonstration Projects must show that: (1) the proposed project meets a national objective in accordance with 24 CFR 570.483; and (2) the proposed project meets the specific purpose and priorities adopted by the General Assembly. Applicants that do not meet these eligibility requirements shall not be considered for funding. (b) Applicants shall have the capacity to administer a CDBG program. The Division may examine the following areas to determine capacity: (1) audit and monitoring findings on previously funded Community Development Block Grant programs, and the applicant's fiscal accountability as demonstrated in other state and federal programs or local government financial reports; and (2) the rate of expenditure of funds and accomplishments in previously funded CDBG programs. Applicants that show a lack of capacity shall not be considered for funding. History Note: Authority G.S. 143-323; U.S.C.A. 5301; 24 C.F.R. 570.489; Eff August 1. 1998. 143B-10; 42 .0708 SELECTION CRITERIA Selection criteria for demonstration grants shall be: ( 1 ) Benefit to low and moderate income people. (2) Eligibility of activities. (3) Project feasibility. History Note: Authority G.S. 143-323; U.S.C.A. 5301; 24 C.F.R. 570.489; Eff. August 1. 1998. 143B-10; 42 SECTION .0900 - GRANT ADMINISTRATION .091 1 RECORDKEEPING (a) The Secretary of the Department of Commerce, the 72:77 NORTH CAROLINA REGISTER March 2, 1998 1624 APPROVED RULES Secretary of the Department of Housing and Urban Development, or any of their duly authorized representatives shall have access to all books, accounts, records, reports, files, and other papers or property of recipients or their subgrantees and contractors pertaining to funds provided under this Subchapter for the purpose of making surveys, audits, examinations, excerpts and transcripts. (b) All Community Development Program records that are public under G.S. 132 shall be made accessible to interested individuals and groups during normal working hours, and shall be maintained at all times at the recipient's local government office. (c) Financial records, supporting documents and all other reports and records required under this Subchapter, and all other records pertinent to the Community Development Program shall be retained by the recipient for a period of three years from the date of the closeout of the program, except as follows: (1) Records that are the subject of audit findings shall be retained for three years or until such audit findings have been resolved, whichever is later; (2) Records for nonexpendable property which was acquired with Federal grant funds shall be retained for three years after its final disposition; (3) Records for any displaced person shall be retained for three years after he/she has received final payment; (4) Records pertaining to each real property acquisition shall be retained for three years after settlement of the acquisition, or until disposition of the applicable relocation records in accordance with Subparagraph (3) of this Section, whichever is later; and (5) If a litigation, claim or audit is started before the expiration of the three year period, the records shall be retained until all litigations, claims, or audit findings involving the records have been resolved. (d) All records shall be sufficient to determine compliance with the requirements and primary objectives of the Community Development Block Grant Program and all other applicable laws and regulations. All accounting records shall be supported by source documentation and shall be in compliance with Rule .0906 of this Section. dwelling; (1) shall contain a room or defined area for the safe, sanitary storage and preparation of food. (2) shall contain a bathroom with permanently affixed and properly operating fixtures. (3) shall have a one time treatment for insects and pests. (4) shall have a structurally sound building foundation system. (5) shall have structurally sound flooring systems. (6) shall have structurally sound wall systems. (7) shall have a structurally sound roofing system. (8) shall have at least two remotely located doors for means of egress. (9) shall have electrical wiring and fixtures that are safe and operating properly. (10) shall have plumbing fixtures and piping that are safe and operating properly. (11) shall have a heating source capable of heating the entire dwelling unit to 70 degrees Fahrenheit when the outside temperature is degrees. (12) shall contain a U.L. approved smoke detector wired directly to the electrical panel with battery back up. (c) Construction or rehabilitation work on all dwelling units, assisted entirely or partially with CDBG funds, shall comply with the North Carolina State Building Code, Volumes I-X, as applicable. (d) Section 8 Housing Quality Standards shall not be applicable when work is funded under Local Option Activities as described in Rule .0403(c) of this Subchapter. (e) Housing rehabilitation activities must comply with the following standards required under this Subchapter: ( 1 ) Lead-based paint (Rule .1011); and (2) Equal opportunity (Rule .1001). (f) The recipient shall provide for benefits to any person involuntarily and permanently displaced as a result of the use of CDBG assistance to substantially rehabilitate property in accordance with 49 CFR Part 24. (g) Homes inhabited by disabled or elderly persons must be analyzed as to the physical needs of such persons. Improvements such as widened doorways, ramps, level entry and doorways, and grab bars in bath areas must be installed if appropriate. History Note: Authority G.S. 143B-10: 143B-431: 42 U.S.C.A. 5304(d)(2), (e): 24 C.F.R. 570.490; Ejf. July 1. 1982: Amended Eff. August L 1998: June 1, 1993: September 1, 1990: May 1, 1988: April 1, 1983. History Note: Authority G.S. 143B-10; 1438-431; 24 C.F.R. 570.487; 42 U.S.C.A. 5305(a); Eff. July 1. 1982; Amended Eff. August L 1998; May 1. 1988; March 1, 1984; April 1, 1983. SECTION .1000 - COMPLIANCE REQUIREMENTS .1009 HOUSING REHABILITATION (a) Grant assistance may be used for housing rehabilitation activities eligible under Rule .0301 of this Subchapter. (b) The local government shall provide a work write up which precisely defmes the rehabilitation work to be undertaken to bring the dwelling up to the following standards. The .1011 LEAD-BASED PAINT (a) The recipient must comply with the Lead-Based Paint Poisoning Prevention Act [42 U.S. C. 4831(b)], 24 CFR Part 570.608, and 24 CFR Pan 35, including provisions and subsequent amendments of the above: ( 1 ) prohibiting the use of lead-based paint; (2) requiring elimination of lead-based paint hazards; and 7625 NORTH CAROLINA REGISTER March 2, 1998 12:17 APPROVED RULES (3) requiring notification of the hazards of lead-based paint poisoning to purchasers, owners and tenants of housing constructed prior to 1978 which was acquired or rehabilitated with CDBG assistance. (b) All construction contracts as described in this Rule shall contain a provision prohibiting the use of lead based paint. (c) In lieu of the testing procedures set forth in the 1996 HUD Guidelines, the recipient may forego testing and abate all applicable surfaces in accordance with the methods set out in the HUD regulations. (d) Lead-based paint hazard evaluation and abatement activities financed with CDBG funds must be conducted by individuals and firms that are certified in accordance with the applicable EPA and HUD requirements for Lead Based Paint activities. History Note: Authority G.S. 143B-10: 143B-431; 42 U.S.C.A. 5304(bj(4): 42 U.S.C.A. 4821 through 4846: EJf. July 1, 1982: Amended EJf. August L 1998: June 1, 1994; June 1, 1993: May 1, 1988. SECTION .1300 HOUSING DEVELOPMENT PROJECTS (2) (3) (4) community impact, project design, and financial feasibility. History Note: Authority G.S. 143B-10; 1438-431: 24 C.F.R. 570.489: Eff. March 1. 1995; Amended EJf. August 1. 1998. SECTION .1800 - NORTH CAROLINA DEVELOPMENT LOAN FUND .1804 SIZE OF LOAN APPROVALS (a) Maximum and minimum loan amounts as set by the General Assembly shall be published by the Division in the annual CDBG Consolidated Plan Action Plan, part of the North Carolina Consolidated Plan. (b) Development Loan Funds approved shall not count toward a community's receipt of CDBG funds in any program year as outlined in Rule .0403 of this Subchapter. History Note: Subpart M; Eff. August L. Authority G.S. 1438-431; 24 C.F.R. 570 1998. .1303 SELECTION CRITERIA (a) The Division may accept applications at any time after the beginning of the program year. (b) Housing Development projects shall be rated by the Division against the following specific criteria: (1) 85% of the project rating shall be based upon the project design including the feasibility of the project, its financial design, the capacity and experience of the applicant and other parties involved, the amount of leveraging other funds, the suitability of the site and surroimding amenities, and the demand from the marked; and (2) 15% of the project rating shall be based upon the benefit to low and moderate income persons both immediate and long-term. History Note: Authority G.S. 1438-10: 1438-431; 24 C.F.R. 570.489; Eff. March 1. 1986; Amended Eff. August L 1998: June 1, 1994; June 1. 1993; April 1, 1990. SECTION .1700 - COMMUNITY EMPOWERMENT PROJECTS . 1 703 SELECTION CRITERIA Localities that have Community Empowerment grants that are open may not apply for additional funds under this category until the grant is closed. In addition, local governments may have only one Community Empowerment application under review at one time. Criteria for awards are: (1) community need. .1805 SELECTION CRITERIA Projects will be evaluated and maybe approved in accordance with the following selection factors: (1) Public benefit, (2) Project feasibility, (3) Cash flow of the project, (4) Collateral of the project. History Note: Authority G.S. 1438-431; 24 C.F.R. 570 Subpart M; Eff. August 1. 1998. TITLE 10 - DEPARTMENT OF HUMAN RESOURCES CHAPTER 3 - FACILITY SERVICES SUBCHAPTER 3R - CERTmCATE OF NEED REGULATIONS SECTION .3000 - PLANNING POLICIES AND NEED DETERMINATIONS .3073 DEMONSTRATION PROJECT ON PEDIATRIC NURSING CARE NEED DETERMINATON (REVIEW CATEGORY G) (a) It is determined that nine nursing facility beds are needed to demonstrate the efficacy of short-term (less than 30 days) care of medically fragile infants and children. This demonstration project shall provide services to support medically fragile children who are primarily cared for at home and shall provide data to assist in determining if these children 12:17 NORTH CAROLINA REGISTER March 2, 1998 1626 APPROVED RULES can be successfully cared for at home over the long-term with intermittent inpatient nursing facility admission. Because of improved medical procedures and care, more infants with complex medical needs are surviving and are being discharged from hospitals. The medical equipment and care needed by these children in the home is quite sophisticated. Pediatric patients suffering from acquired brain injury or from major trauma with significant orthopaedic problems may also require continued services, which include intermittent inpatient nursing care services, after discharge from rehabilitation hospitals. The proposed project shall be designed to ease the transition from the hospital environment to care at home for these patient groups. It shall also offer respite care and other services to low birth-weight children, to children with serious chronic conditions, and to children with rehabilitation needs. (b) An applicant for the project shall demonstrate that home health services shall be provided through a home health agency. Furthermore, an applicant shall demonstrate coordination with other health services, including a hospice provider, an acute care provider, and an inpatient rehabilitation provider. Project oversight shall include at least one Pediatrician who is willing to serve as medical advisor and willing to assist in evaluation of the demonstration project's effectiveness. The goal of the services provided shall be for long-term maintenance of the pediatric patient at home. (c) The demonstration project shall provide data to evaluate the effectiveness of this type of program in at least these ways: (1) Enhanced parent confidence/willingness to care for the child at home; Reduced length of stay for hospitalization episodes; Reduced hospitalizations/rehospitalizations; Reduced incidence of institutionalization of children to long-term care facilities; Outcomes of care - especially relative to rehabilitation, chronic disease care; Cost data - cost efficiencies, expense, reimbursement issues. (d) The demonstration project shall provide data to evaluate if additional programs in North Carolina would benefit the medically fragile pediatric population. Data shall be provided to the NC State Health Coordinating Council at the end of each of the project's first five operating years. (2) (3) (4) (5) (6) Number of Nursing Geographic Area Beds Needed for the Pediatnc Demonstration Project Statewide 9 Histon- Note: Authority' G.S. 131 £-176(25); 131E-177(1); 131E-183(b): Temporary Adoption EJf. Janitar\- 2, 1997; Eff. August 1. 1998. .3074 HOME HEALTH AGENCY OFnCE NEED DETERMINATION (REVIEW CATEGORY F) (a) It is determined that the Health Service Areas identified in 10 NCAC 3R .3054(a) and listed in this Rule may have a need for additional home health agency offices. (b) Applications for certificates of need for home health agency offices filed pursuant to these adjusted need determinations shall demonstrate: (1) (2) (3) that the applicant proposes to address the needs of at least one of the following special needs groups: (A) racial minorities, (B) nursing home patients in transition to the community, (C) HIV/AIDS patients, (D) Alzheimer's Disease/senile dementia patients, or (E) underserved patients in rural counties; and that the applicant proposes to serve, during its first operating year, at least 50 patients who are members of the special groups identified in Subparagraph (1), of this Rule; and that either: (A) home health agencies currently serving the geographic area are not meeting the needs of the groups the applicant proposes to serve; or (B) the proposed home health agency office will offer new or innovative services not currently being offered by home health agencies that serve the geographic area the applicant proposes to serve. HSA Number of Agencies or Offices Needed History Note: Authority G.S. 131E-176(25); 131E-177(1); 131E-183(b); Temporary Adoption Eff. January 2. 1997; Eff. August 1. 1998. .3081 POLICIES FOR INPATIENT REHABILITATION SERVICES (a) Distribution of Inpatient Rehabilitation Beds. After applying other required criteria, when superiority among two or more competing rehabilitation facility certificate of need applications is uncertain, favorable consideration shall be given to proposals that make rehabilitation services more accessible to patients and their families or are part of a comprehensive 1627 NORTH CAROLINA REGISTER March 2, 1998 12:17 APPROVED RULES regional rehabilitation networlc. (b) Outpatient and Home Care. Reliabilitation care which can be provided in an outpatient or home setting shall be provided in these settings. All new inpatient rehabilitation programs are required to provide comprehensive outpatient rehabilitation services as part of their service delivery programs. History Note: Authority G.S. 1 31 E- 1 76(25); 131E-177(1); 13JE-183(b); Temporary Adoption Ejf. January 2, 1997: Eff. August 1. 1998. CHAPTER 45 - COMMISSION FOR MENTAL HEALTH, DEVELOPMENTAL DISABILITIES AND SUBSTANCE ABUSE SERVICES SUBCHAPTER 45H - DRUG TREATMENT FACILITIES SECTION .0200 SCHEDULES OF CONTROLLED SUBSTANCES .0203 SCHEDULE II (a) Schedule II shall consist of the drugs and other substances by whatever official name, common or usual name, chemical name or brand name and designated listed in this Rule. Each drug or substance has been assigned the Drug Enforcement Administration controlled substances code number set forth opposite it. (b) Substances, Vegetable Origin or Chemical Synthesis. Unless specifically excepted or unless listed in another schedule, any of the following substances whether produced directly or indirectly by extraction from the substances of vegetable origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, is a Schedule II drug: (1) opium and opiate, and any salt, compound, derivative or preparation of opium or opiate, excluding aponiorphine, thebaine-derived butorphanol, nalbuphine, dextrorphan, naloxone, naltrexone, and nalmefene and their respective salts but including the following: (A) Raw opium 9600 (B) Opium extracts 9610 (C) Opium fluid extracts 9620 (D) Powdered opium 9639 (E) Granulated opium 9640 (F) Tincture of opium 9630 (G) Codeine 9050 (H) Ethylmorphine 9190 (I) Hydrocodone 9193 (J) Hydromorphine 9150 (K) Metopon 9260 (L) Morphine 9300 (M) Oxycodone 9143 (N) Oxymorphone 9652 (O) Thebaine 9333 (P) Etorphine hydrochloride 9059 (2) any salt, compound, derivative or preparation thereof which is chemically equivalent or identical with any of the substances referred to in Subparagraph ( 1 ) of this Paragraph (b), except that these substances shall not include isoquinoline alkaloids of opium; (3) opium poppy and poppy straw 9650 (4) coca leaves (9040) and any salts, compound, derivative or preparation of coca leaves and any salt, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine (9041) or ecgonine (9180); (5) concentrate of poppy straw (the crude extract of poppy straw in either liquid, solid or powder form which contains the phenanthrine alkaloids of the opium poppy) (9670). (c) Opiates. Unless specifically excepted or unless in another schedule any of the following opiates, including its isomers, esters, ethers, salts and salts of isomers, esters and ethers whenever the existence of such isomers, esters, ethers and salts is possible within the specific chemical designation, is a Schedule II drug, dextrorphan excepted: (1) Alfentanil 9737 (2) Alphaprodine 9010 (3) Anileridine 9020 (4) Benzitramide 9800 (5) Carfentanil 9743 (6) Dihydrocodeine 9120 (7) Diphenoxylate 9170 (8) Fentanyl 9801 (9) Isomethadone 9226 (10) Levomethorphan 9210 (11) Levo-alphacetylmethadol [Some other names: levo-alpha-acetylmethadol, 9648 levomethadyl acetate, LAAM] (12) Levorphanol 9220 (13) Metazocine 9240 (14) Methadone 9250 (15) Methadone-Intermediate, 4-cyano-2- dimethylamino-4,4-diphenyl butane 9254 (16) Moramide-Intermediate,2-methyl-3-morpholino-I, 1-diphenylpropane-carboxylic acid 9802 (17) Pethidine(meperidine) 9230 (18) Pethidine-Intermediate- A,4-cyano- 1 -methyl-4-phen ylpiperidine 9232 (19) Pethidine-Intermediate-B, ethyl-4- phenyIpipendine-4-carboxylaie 9233 (20) Pethidine-Intermediate-C,l-methyl-4-phenylpiperid ine-4-carboxylic acid 9234 (21) Phenazocine 9715 (22) Piminodine 9730 (23) Racemethorphan 9732 (24) Racemorphan 9733 12:17 NORTH CAROLINA REGISTER March 2, 1998 1628 APPROVED RULES (3) (4) (5) (6) (25) Remifentanil 9739 (26) Sufentanil 9740 (d) Stimulants. Unless specifically excepted or unless listed in another schedule any material, compound, mixture or preparation which contains an> quantity of the following substances having a stimulant effect on the central nervous system: (1 ) Amphetamine, its salts, optical isomers, and salts of its optical isomers 1 100 (2) Methamphetamine, its salts, isomers and salts of its isomers 1105 Phenmetrazine and its salts 1631 Methylphenidate 1724 Phen\lacetone Some trade or other names: Phenyl-2-propanone; P2P; benzyl methyl Ketone; meth\l benzyl Ketone; 8501 Phencyclidine 7471 (Al 1-Phenylcyclohexylamine 7460 (B ) 1 -Piperidinocyclohexanecarbonitrile (PCC) 8603 (e) Depressants. Unless specifically excepted or unless listed in another schedule, any material, compound, mi.xture or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers and salts of isomers whenever the existence of such salts, isomers and salts of isomers is possible within the specific chemical designation: (1) Amobarbital 2125 (2) Glutethimide 2250 (3) Pentobarbital 2270 (4) Secobarbital 2315 (f) Hallucinogenic Substances. Unless specificalh- excepted or unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances ha\'mg a hallucinogenic effect on the central nervous system, including its salts, isomers and salts of isomers whenever the existence of such salts, isomers and salts of isomers is possible within the specific chemical designation, is a Schedule II drug: (1) Dronabinol (s\nthetic) in sesame oil and encapsulated in a soft gelatin capsule in a U.S. Food and Drug Administration approved drug produ2669 [Some other names for dronabinol: [(6aR-trans)-6a,7.8,10a-tetrahydro-6,6,9-trimethyl- 3-pent>l-6H-dibenzo [b,d]pyran-l-olJ,or(-)-delta-9-(trans)-tetrahydrocan nabinol] (2) Nabilone [Another name for nabilone: 7369 ( + )-trans-3-( 1 , l-dimethylheptyl)-6.6a,7.8, 10, 10a-hexahydro- l-hydroxy-6,6-dimethyl-9H-dibenzo[ b,d]pyran-9-one] . Histon Sole: Authonn G.S. 90-88: 90-90: 143B-147: Eff. June 30. 1978: Amended Eff. January 1. 1994: April 1, 1993: August 1. 1991: August 1. 1989: Temporary- Amendment Eff. May 13, 1997: Amended Eff. Jul\ L 1998. TITLE 1 1 - DEPARTMENT OF INSURAjNCE CIL\PTER 12 - LIFE AND HEALTH DIVISION SECTION .1700 - VL^TICAL SETTLEMENTS . 1 703 VIATICAL SETTLEMENT BROKERS (a) No person shall act as a broker without first registering with the Agent Services Division. (b) The Commissioner shall suspend, revoke, or refuse to renew the registration of any broker if the Commissioner finds that: (1) There was any misrepresentation in the application for registration; (2) The broker has been found guilty of fraudulent or dishonest practices, has been found guilty of a felony or any misdemeanor of which criminal fraud is an element, or is otherwise shown to be financially irresponsible; or (3) The broker has placed or attempted to place a contract with an unregistered provider. fc) In the absence of a written agreement between a viator and a broker making the broker the viator's agent, a broker is presumed to be an agent of the provider. (d) A broker shall not, without the written agreement of the viator obtained before performing an)' services in connection with a viatical settlement, seek or obtain any compensation from the viator. (e) A power of attorney designating the Commissioner as the broker's agent for service of legal process shall be filed by every broker. History Note: Auihorin G.S. 58-2-40: 58-16-30: 58-58-42: Eff. February 1. 1996: Amended Eff. Januan.- 1. 1998. TITLE 12 - DEPARTMENT OF JUSTICE CHAPTER 10 - N.C. SHERIFFS' EDUCATION ANT) TR.ALNLNG STANDARDS COMMISSION SUBCH.\PTER lOB - N.C. SHERIFFS' EDUCATION ANT) TRAINLNG STANDARDS COMMISSION SECTION .0100 - COMMISSION ORGANIZATION AND PROCEDLHES .0107 PROCEDLHES FOR PETITIONS FOR DECLARATORY RLUINGS (a) In addition to the procedures set out in G.S. 150B-4, Petitions for Declaratory Rulings shall be submitted to the Commission and shall contain: 1629 NORTH CAROLINA REGISTER March 2, 1998 12:17 APPROVED RULES (b) Ruling (1) (2) (1) petitioner's name, address and telephone number; (2) the statute(s), rule(s) or both to which the request relates; (3) all facts and information which are relevant to the request; (4) a concise statement of the manner in which petitioner has been aggrieved; (5) a draft of the Declaratory Ruling sought by petitioner (if specified outcome is sought by petitioner); (6) practices likely to be affected by the Declaratory Ruling; (7) a list or description of persons likely to be affected by the Declaratory Ruling; and (8) a statement as to whether the petitioner desires to present oral argument (not to exceed 30 minutes) to the Commission prior to its decision. The Commission may refuse to issue a Declaratory when: the petition does not comply with Paragraph (a) of this Rule; the Commission has previously issued a Declaratory Ruling on substantially similar facts; (3) the Commission has previously issued a Final Agency Decision in a contested case on substantially similar facts; (4) the facts underlying the request for a Declaratory Ruling were specifically considered at the time of the adoption of the rule in question; or (5) the subject matter of the request is involved in pending litigation. History Note: Authority G.S. 1508-4; Ejf. January 1, 1990; Amended Eff. August I. 1998. SECTION .0200 - ENFORCEMENT RULES .0202 SANCTIONS FOR VIOLATIONS BY AGENCIES OR SCHOOLS If the Commission finds that a violation has been committed by an agency or school, the Commission may: (1) issue an oral warning and request for compliance; (2) issue a written warning and request for compliance; (3) issue an official written reprimand; (4) suspend, revoke, or deny accreditation to any school or program or course of instruction until corrective measures have been taken to bring the agency or school into compliance with these Rules and verification of such compliance has been made by the Commission; or (5) suspend, revoke, or deny accreditation to any school or program or course of instruction for a specific period of time to be determined by the Commission's Probable Cause Committee; however, not to exceed one year. History Note: Authority G.S. 17E-4; Eff. January 1. 1991; Recodified from 12 NCAC lOB .0205 Eff. January 1, 1992; Amended Eff. August 1. 1998. .0204 SUSPENSION: REVOCATION: OR DENIAL OF CERTIFICATION (a) The Commission shall revoke or deny the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer has committed or been convicted of: (1) a felony; or (2) a crime for which the authorized punishment could have been imprisonment for more than two years. (b) The Commission shall revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer: (1) has not enrolled in and satisfactorily completed the required basic training course in its entirety within a one year time period as specified by these Rules; or (2) fails to meet or maintain any of the minimum employment or certification standards required by 1 2 NCAC lOB .0300; or (3) fails to satisfactorily complete the minimum in-service training requirements as presented in 12 NCAC lOB .2000 and .2100; or (4) has refused to submit to the drug screen as required in 12 NCAC lOB .0301(6) or .0406(b)(4) or in connection with an application for or certification as a justice officer or a criminal justice officer as defined in 12 NCAC 9A .0103(6); or (5) has produced a positive result on any drug screen reported to the Commission as specified in 1 2 NCAC 108 .0410 or reported to any commission, agency, or board established to certify, pursuant to said commission, agency, or boards' standards, a person as a justice officer or a criminal justice officer as defmed in 12 NCAC 9A .0103(6), unless the positive result is explained to the Commission's satisfaction. (c) The Commission may revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification or certified justice officer: (1) has knowingly made a material misrepresentation of any information required for certification or accreditation from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission. This Rule shall also apply to obtaining or attempting to obtain in-service firearms requalification as required by 12 NCAC lOB .2000 and .2100; or (2) has knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation or cheating whatsoever, obtained or attempted to obtain credit, training or certification from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission. This Rule shall also apply to obtaining or attempting to obtain in-service firearms requalification as required by 12 12:17 NORTH CAROLINA REGISTER March 2, 1998 1630 APPROVED RULES NCAC lOB .2000 and .2100; or (3) has knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation or cheating whatsoever, aided another in obtaining or attempting to obtain credit, training, or certification from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission. This Rule shall also apply to obtaining or attempting to obtain in-service firearms requalification as required by 12 NCAC lOB .2000 and .2100; or (4) has been removed from office by decree of the Superior Court in accordance with the provisions of G.S. 128-16 or has been removed from office by sentence of the court in accord with the provisions of G.S. 14-230; or (5) has been denied certification or had such certification suspended or revoked by the North Carolina Criminal Justice Education and Training Standards Commission. (d) The Commission may revoke, suspend or deny the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer has committed or been convicted of: (1) a crime or unlawful act defined in 12 NCAC lOB .0103(T0)(b) as a Class B misdemeanor and which occurred after the date of initial certification; or (2) a crime or unlawful act defined in 12 NCAC lOB .0103(10)(b) as a Class B misdemeanor within the five-year period prior to the date of appointment; or (3) four or more crimes or unlawful acts defined in 12 NCAC lOB .0103(10)(b) as Class B misdemeanors regardless of the date of commission or conviction; or (4) four or more crimes or unlawful acts defined in 12 NCAC lOB .0103(10)(a) as a Class A misdemeanor, each of which occurred after the date of initial certification; or (5) four or more crimes or unlawful acts defined in 12 NCAC lOB .0103(10)(a) as a Class A misdemeanor except the applicant shall be certified if the last conviction or commission occurred more than two years prior to the date of appointment; or (6) any combination of four or more crimes or unlawful acts defined in 12 NCAC lOB .0103(10){a) as a Class A misdemeanor or defined in 12 NCAC lOB .0103(10)(b) as a Class B misdemeanor regardless of the date of commission or conviction. (e) Without limiting the application of G.S. 17E, a person who has had his certification suspended or revoked may not exercise the authority or perform the duties of a justice officer during the period of suspension or revocation. (f) Without limiting the application of G.S. 17E, a person who has been denied certification may not be employed or appointed as a justice officer or exercise the authority or perform the duties of a justice officer. History Note: Authority G.S. 17E-7; Eff. Jamiarx 1. 1990; Amended Eff. My 1, 1990; Recodified from 12 NCAC lOB .0204 Eff. January 1, 1991; Amended Eff. April 1, 1991; Jamiary 1, 1991; Recodifiedfrom 12 NCAC lOB .0207 Eff. January 1, 1992; Amended Eff. August L. 1998; January 1. 1996; January 1, 1995; January 1, 1994; January 1, 1993. SECTION .0500 - MINIMUM STANDARDS OF TRAINING FOR DEPUTY SHERIFFS .0505 EVALUATION FOR TRAINING WATVER (a) The Division staff shall evaluate each deputy's training and experience to determine if equivalent training has been satisfactorily completed as specified in 12 NCAC lOB .0504(a). Applicants for certification with prior law enforcement experience shall have been employed and certified in a sworn law enforcement position in order to be considered for training evaluation under this Rule. The following rules shall be used by Division staff in evaluating a deputy's training and experience to determine eligibility for a waiver of training. (1) Persons who separated from a sworn law enforcement position during their probationary period after having completed a commission-accredited Basic Law Enforcement Training Course and who have been separated from a sworn law enforcement position for one year or less shall serve the remainder of the initial probationary period in accordance with G.S. 17E-7(b), but need not complete an additional training program. (2) Persons who separated from a sworn law enforcement position during their probationary period without having completed Basic Law Enforcement Training, or whose certification was suspended pursuant to 12 NCAC lOB .0204(b)(1), and who have remained separated or suspended for over one year shall complete a commission-accredited Basic Law Enforcement Training Course in its entirety and pass the State Comprehensive Examination, and shall be allowed a 12 month probationary period as prescribed in 12 NCAC lOB .0503(a). (3) Out-of-state transferees shall be evaluated to determine the amount and quality of their training and experience. Out-of-state transferees: (A) shall have a minimum of two years full-time sworn law enforcement experience; (B) shall not have a break in service exceeding two years; and (C) shall have completed the Basic Law Enforcement Training Course accredited by the state from which he/she is transferring. Out-of-state transferees meeting these requirements shall complete a commission-accredited Basic Law Enforcement Training Course which includes 1631 NORTH CAROLINA REGISTER March 2, 1998 12:17 APPROVED RULES ' ) the following topics of N
Object Description
Description
Title | North Carolina register |
Date | 1998-03-02 |
Description | Vol. 12, issue 17 (March 2, 1998) |
Publisher | Raleigh, N.C. : Office of Administrative Hearings |
Digital Characteristics-A | 176 p.; 10.73 MB |
Digital Format | application/pdf |
Pres File Name-M | pubs_serial_ncregister19980302.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_serial_ncregister\images_master |
Full Text |
> NORTH CAROLINA
REGISTER
VOLUME 12 • ISSUE 17 • Pages 1606 - 1691
March 2, 1998
IN THIS ISSU5
Executive Orders
Administration
Agriculture
Commerce
General Contractors ;
:
'
Environment and Natural Resources
Health and Human Services
Insurance
Justice
Labor
Medical Examiners
Nursing, Board of
Public Education
Revenue
Rules Review Commission
Contested Case Decisions
\
PUBLISHED BY
The Office ofAdministrative Hearings
Rules Division
PO Drawer 27447
Raleigh, NC 2 761 1- 7447
Telephone (919) 733-2678
Fax (919) 733-3462
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1.13
For those persons that ha\-e questions or concerns regarding the Administrative Procedure Act or any of its
components, consult with the agencies below; The bolded headings are t>pical issues which the given agency
can address, but are not inclusive.
i
Rule Notices. Filings. Register. Deadlines. Copies of Proposed Rules, etc.
Office of Ad.mmisirame Hearings
Rules DiMSion -,.,;•--.,,-•..,
Capehart-Crocker House (919) 733-2678:r"\ ^^^-C;X>.
424 North Blount Street _^,,..-. ;; <919).73^
Raleieh. North Carolina 2 "60 1 -28 17 :::-;"--"""""
'-;:;.::;••-......
contact NfoUy Masich. Director .APA Services
Rubv Creech. Pubhcations Coordinator
Fiscal Notes «& Economic Analysis
Office of State Budget and Management
. 1 16 West Jones Street
:' ' Raleigh. North Carolina 2^603-8005
. contact: Nfark Sisak. Economist III
; ? Anna Tefft. Economist II
mmasich a oah. state ncus
rcreech a oah. state, ncus -;"
(919> 733-7061
(919) 733-0640 F.AX
msisakSosbm statenc.us
atefft.a osbm. state. nc.us
Rule Review and Legal Issues ;|
Rules Re\ lew Commission % ,1
:;i W30^ Glemvood Ave. Suite 159
\\ ; Raleigh. North Carolina 2"605
\\ contact: Joe DeLuca Jr . Staff Director Counsel
\\\ T' Bobbv Brsan. Staff Attorney
C919')"33-2"21
(919) 735-9415 FAX
Legislative Process Concerning Rule Making
Joint Legislati\"e .Admmistraiuc Procedure Oersight Committee
545 Legislati\e Office Building
300 North SaUsbur. Street (919) "733-2578
Raleigh. North Carolina 276 II (919) 715-5460 FAX
contact Man Shuping, Staff Liaison mars s a ms ncea state nc us
County and Municipality Go\ernment Questions or Notification
NC .Association of Count} Commissioners
215 Nonh Dawson Street (919) "15-2893
Raleigh. Nonh Carolina 2"603
contact: Jim Blackburn or Rebecca Troutman
NC League of Municipalities
2 1 5 North Da%\ son Street
Raleigh. North Carolina 2"603
contact: Paula Thomas
(919) "15-4000
This publication is primed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
IN THIS ISSUE
)
Volume 12, Issue 17
Pages 1606 - 1691
March 2, 1998
This issue contains documents officially filed
through February 9, 1998.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
PO Drawer 27447
Raleigh, NC 27611-7447
(919) 733-2678
FAX (919) 733-3462
Julian Mann III, Director
Bradley Buie, Acting Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Jean Shirley, Editorial Assistant
Linda Richardson, Editorial Assistant
I. EXECUTIVE ORDERS
Executive Orders 128-129 1606 - 1607
II. PROPOSED RULES
Environment and Natural Resources
Wildlife Resources Commission 1608 - 1610
Revenue
Individual Income Tax 1610
Motor Fuels Tax 1610
III. TEMPORARY RULES
Administration
Purchase and Contract 161 1 - 1616
Environment and Natural Resources
Departmental Rules 1617 - 1619
Health and Human Services
Governor Morehead School 1616 - 1617
IV. APPROVED RULES 1620 - 1661
Agriculture
Plant Industry
Veterinary Division
Commerce
Community Assistance
Environment and Natural Resources
Coastal Management
Environmental Management
Health Services
Soil and Water Conservation Commission
Water Pollution Control Systems Operators Certification
Health and Human Services
Commission for Mental Health, Developmental
Disabilities and Substance Abuse Services
Facility Services
Insurance
Life and Health Division
Justice
Sheriffs' Education and Training Standards Commission
Labor
Migrant Housing
Licensing Boards
General Contractors
Medical Examiners
Nursing Board
Public Education
Elementary and Secondary Education
V. RULES REVIEW COMMISSION 1662 - 1665
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions 1666 - 1676
Text of Selected Decisions
96 OS? 1 157 1677 - 1681
97 DHR 0552 1682 - 1684
97 OSP 0594 1685 - 1690
VH. CUMULATIVE INDEX 1-79
i
The North Carolina Register is published semi-monthly lor $195 per year by the Office of Admmistrative Heanngs. 424 North Blount Street, Raleigh.
NC 27601. Application to mail at Penodicals Rates is pending at Raleigh. NC. NC POSTMASTER: Send Address changes to the OAWNorth
Carolina Register. PO Drawer 27447. Raleigh. NC 27611-7447
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