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t(>t\ \i^N NORTH CAROLINA REGISTER VOLUME 11 > ISSUE 13 • Pages October 1, 1996 OCT 4 1996 fi|§imW#ft= EVERETT IN THIS ISSUE Final Decision Letter Administrative Hearings, Office of Commerce Environment, Health, and Natural Resources Human Resources State Personnel Rules Review Commission Contested Case Decisions PUBLISHED BY The Office ofAdministrative Hearings Rules Division PO Drawer 27447 Raleigh, NC27611-7447 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 I North Carolina Register Binder Order Form North Carolina Register binders come in a set of two. To order, please complete this form and return with payment to the address given below Binders are mailed immediately upon receipt of payment. I would like to order set(s) of the North Carohita Register binders at $20.00 per set. For binders mailed within NC, add $1 20 per set for sales tax. If tax exempt, enter tax exempt number Mailing; No. of sets of binders X $4.00 Name Total Enclosed $ Organization Street Address {Physical address for UPS dehveryi City Phone Number State Zip FaxNumber For more information, call or write: North Carolina Office of Administrative Hearings PO Drawer 27447 Raleigh, NC 27611-7447 (919)733-2678 FAX (919) 733-3462 i NORTH CAROLINA ili IN THIS ISSUE Volume 1 1 , Issue 1 3 Pages 1 038 - 1 1 OO I, IN ADDITION Voting Rights Letter . 1038 II. RULE-MAKING PROCEEDINGS Environmental, Health, and Natural Resources Wildlife Resources and Water Safety 1039 III. PROPOSED RULES Administrative Hearings, Office of Rules Division 1058 - 1060 Commerce NC State Ports Authority 1040 - 1050 Environment, Health, and Natural Resources Health Services 1055 - 1058 Human Resources Vocational Rehabilitation Services 1051 - 1055 October 1 , 1 996 This issue contains documents officially filed through September 10, 1996. 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 James R. Scarcella Sr., Deputy Director Molly Masich, Director of APA Services Ruby Creech, Publications Coordinator Teresa Kilpatrick, Editorial Assistant Jean Shirley, Editorial Assistant Linda Richardson, Editorial Assistant IV. TEMPORARY RULES Human Resources Medical Assistance 1061 - 1062 State Personnel State Personnel Commission 1062 - 1066 V. RULES REVIEW COMMISSION 1067 - 1074 VI. CONTESTED CASE DECISIONS Index to AU Decisions 1075 - 1084 Text of Selected Decisions 96 ABC 0447 1085 - 1086 95 OSP 0203 1087- 1091 95 OSP 1084 1092-1094 96 OSP 0955 1095 - 1099 VII. CUMULATIVE INDEX 1-29 i i i > II J I - 4) 5 = 1 1 S I B 1 0< Ed H W -a (J >« H as OZ 3 R; R S S R R $ * § i s s 3 > i s s en s '3 _c lo B a; Es Oi 13 (U .a o -4-» 4^ os Vu A a _o o^ 0) E '5 b>O S .2 '*j 33 Q. u E J o 3 V Q <u JS X D ^ U S 1- t/3 « — 3 z g ai o '^ u ^ H £ u y 1/1 3 — o J ^ O o^a It t^ cs ."= ;/! .2; Mo u. O 11 (U 3 z I ai o a; <u .- 5 < « -a z i: c < (/: cd J 'C ro Is. 'o^ 1. u oz (U vo j: <n ^j _. o ?-> -" = M D .E ^"2 n o a. u 0^ o 1- a a. a Vl 4J —O 3a. 3 P ^ 5 U Wl c« •" v §.§ ••= H cs u •J M .£1 C 3 '= 0- o <« i '^2 •• m 2 <A Xu E-Ouu < — « r ) u u — ~ •£ ^ ^ C! 5 u o P J= o Q -J O < " 5 D. < O ^^ z Q ooJg ^ -S ^ S S :£ ^ < rC <S 3 U (— c« Q. Uu O Cl. az I Ouo OZ C/5 < ooz "3 a: Ed z O Z a "= -r td £ c ac J O "^ o -g o >, 2 t> rt r: -^ - ii D. J *^ TO — . o >- u « oj -s u 03 -a o " m — CO 3 o Cu o < < H 1/2 oa I «i >> o Q. O 1- -a a- jO 1- ^ - E co 1/3 § o .2 o E - = .92 D. 03 S o g)Uj 00 o ii c I? '5b < - (^ • • u U - € < c Q. O C 2 H O O '" — X) •"= 2 C/3 O. 00 C u cs ^ ^ O iJ tu « 5 3 D d; o « ^ CO O I f ^ o -a o 3p « S ^ — M ts ^1 = z -2 u P ^ — :* > Q W ^ *^ > ^ c o ii -g » Q a -s i^ -o E- J X < Z td Su Q O M Z ^ O -1 bd c/5 to a ft! S td u. ai ^ o c/: d 5 .2 ° i a n. ti S M fc ii :§ ^ aa j; D tu < q: 6 c/5 g o 2 - c 00 I-S "" a. -o o td oU o o -g Q F " Z^^ td E- f- 73 U C X) o -o c .2 B -a o w - 5 <*- 00 2. « = ii g o 00 c« s _ 1) O T3 w a >, u aj u -a ^ c en 00 cs c V ^ rt E — u s o td C/!l c EEoo bd .. H H ^ X bd H T3 c <0 C < a •£ D. c 3 Q. U bd Oi t-bd Id < td 00 C O T3 O Q. cS k^ a XI U B3 C/5 en (U en a >> _o k« Q. 3 E O u. > <a e- 00 < ;= (Jo " C S •-3 1^ T3 ii -g a "o <u -^ D. X) .5 _ =* 1 I Si en rt '00 XI 3 D. eS -o T3 OO c O [;/] u v: &-£ u 3 ^ 3 ^ S ,0 u ? 2 •7; P D MCO 1- en O <V C o E •= a en O D. O § a: E en o o u u 00 >^ o " C X3 Z -a ^ c u <u 5 o j= — •- ob >< >< " c u « _g< oc CO ^o O O "^ -00 9. -° .> '3ej "O 3 S ii " .i: <u 5 3 >< E CT-i-u C/0 00 c = £ E 8 p o a > c/: 00 e4_ S o e 15 1; 1^ ^ g .2 'vi ^< O- JO.^ O CQ 14- O O (Tl ^ en . OC 00 XJ c i: o 3 — "O (U •* o x: >q u XI 2 £ o c/^ o o '-g h E p x: en •3 T3 X) ,n 3 o .i£ o a: i r-eS^ O rt — (Ni en -^ o •—- ^- ^ c 1) en - -0 CO .E -a _3 0 3 •a c3 D. C c a. C/0 eU • 00 _0 3 E x: x: ^ ^_^ >. '"' a 3 n. c CO s IE "0 x: E !S en en 3 > 3 Q. T3 M ^ u <j u _o IjO x; a S _c e4- en 10 IE 00 ^ .. >^ "ob Q. en S c bd 2 CO T3 0^ x: .t; c •S V >> en 1) CO P ^ CO c e^. >, CO en C -a a3 Z — "0 3 £ 00 a. 3s x: CO u x: u -o to CO -a a _3 u 3 00 C/l CO -0 u 3 u z eS c ^ 00 IN ADDITION This Section contains public notices that are required to be published in the Register or have been approved by the Codifier of Rules for publication. U.S. Department of Justice Civil Rights Division DLP:JG:TGL:jdp:tlb Voting Section DJ 166-012-3 P.O. Box 66128 96-2875 Washington, D.C. 20035-6128 September 3, 1996 Robert C. Cogswell, Jr., Esq. City Attorney P.O. Box 1513 Fayetteville, North Carolina 28302-1513 Dear Mr. Cogswell: This refers to the increase in the compensation for the mayor and councilmembers of the City of Fayetteville in Cumberland County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on July 3, 1996. The Attorney General does not interpose any objection to the specified change. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). Sincerely, Deval L. Patrick Assistant Attorney General Civil Rights Division By: for Elizabeth Johnson Acting Chief, Voting Section 11:13 NORTH CAROLINA REGISTER October 1, 1996 1038 RULE-MAKING PROCEEDINGS A Notice of Rule-making Proceedings is a statement ofsuhject matter of the agency 's proposed rule making. The agency must publish a notice of the subject matterfor public comment at least 60 days prior to publishing the proposed text of a rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. J50B-21.2. TITLE 15A - DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES CHAPTER 10 - WILDLIFE RESOURCES AND WATER SAFETY SUBCHAPTER lOF - MOTORBOATS AND WATER SAFETY '\Tbtice of Rule-making Proceedings is hereby given by the North Carolina Wildlife Commission in accordance with 1 y/ G.S. 150B-21.2. Tfie agency sliall siibsequently publish in the Register the text of the nde(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: proposed in the course of the rule-making process. 15A NCAC lOF .0317, .0339 Other rules may be Authority for the rule-making: G.S. 75A-3; 75A-I5 Statement of the Subject Matter: 15A NCAC lOF .0317 - Proposed no wake zone on Lake Tillery. ISA NCAC lOF .0339 - Proposed no wake zone on Lake James. Reason for Proposed Action: To regulate boat speed in congested area. Comment Procedures: Tlie record will be open for receipt of written comments from October 1, 1996 through December 2, 1996. Such written comments must be delivered or mailed to the North Carolina Wildlife Resources Commission, 512 N. Salisbury Street, Raleigh, NC 27604-1188. { 1039 NORTH CAROLINA REGISTER October 1, 1996 11:13 PROPOSED RULES This 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. The agency must accept convnents on the proposed rule for at least 30 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 days for a rule that has a substantial economic impact of at leastfive million dollars ($5,000,000). Statutory reference: G.S. 1508-21. 2. TITLE 4 - DEPARTMENT OF COMMERCE Notice is hereby given in accordance with G.S. 150B-21.2 that the North Carolina State Ports Author-ity intends to repeal rules cited as 4 NCAC 13A .0101- .0102, .0105, .0202-.0204; 13B .0001 -.0005; 13C .0001; 13D .0101; 13E .0101-.0103, .0201-.0202, .0301-.0302, .0401 -.0405, .0501 - .0502, .0601- .0603, .0701 - .0702, .0801, .0803, .0901 -.0902; 13F .0301 -.0302. Notice of Rule-making Proceedings was published in the Register on March 15, 1996. Proposed Effective Date: April 1, 1997 Instructions on How to Demand a Public Hearing {must be requested in writing within 15 days of notice): Public Hearing may be requested in writing to Thomas J. Green, Jr., North Carolina State Ports Authority, P.O. Box 9002, Wilmington, NC 28402 on or before October 16, 1996. Reason for Proposed Action: Rules to be repealed relate to internal management of the agency or restate State law. Rules not required. Comment Procedures: Comments may be made in writing to Thomas J. Green, Jr. , N. C. State Ports Authority, P. O. Box 9002, Wilmington, N.C. on or before October 31, 1996. Fiscal Note: These Rules do not affect the expenditures or revenues of state or local governmentfinds. These Rules do not have a substantial economic impact of at least five million dollars ($5,000,000) in a 12-month period. CHAPTER 13 - STATE PORTS AUTHORITY SUBCHAPTER 13A - DEPARTMENTAL RULES AND GENERAL PROVISIONS .0102 FUNCTIONS Tho State Ports Authority promotes, develops, oonstruots, equips , maintains and operates tho harbors and seaports of North Carolina. Authority G.S. 143B-453. .0105 ADMINISTRATION OF THE AUTHORITY In order for the Porto Authority to aooompliob the purposes set forth in Rule .0102 of this Section, the Ports Authority from time to time creates certain administrative and operating sections as it dooms necessary to promote and operate its terminals at Morehead Cit)' and Wilmington. Authority G.S. 143B-454(7). SECTION .0200 - GENERAL PROVISIONS .0202 EXECUTION OF CONTRACTS All contracts and instruments of conveyance having boon duly approved shall bo signed by the Chairman of the Board of tho State Ports Authority or the chairman may delegate the signing to the executive director.—Tho Secretary of tho Board of the State Ports Authority signs with the ohairman all oontraots and inotrumento of conveyance authorized by the Ports Authority and ho affixes tho seal of tho Ports Authority' as authorized to such documents.—If the chairman has delegat ed to the executive director the signing of contracts and instruments of conveyance.—the assistant secretary Vi iU sign with tho executive director such contracts and instruments of convoyance and he affixes the seal of the Ports Authority.—In the absence of the seoretar)',—tfee assistant oocretar>' will sign with the chairman ouch contracts and instruments of conveyance and affix tho seal of tho Ports Authority as authorized. SECTION .0100 - ORGANIZATION OF STATE PORTS AUTHORITY Authority G.S. 143B-454. .0203 REAL PROPERTY AND CONSTRUCTION .0101 IDENTIFYING INFORMATION (a) The Ports Authority owns real property- in its own The principal office of tho State Porta Authority is located name and may with the approval of the Governor and etf North Carolina Stat e Ports Authority 2202 Bumotte Boulevard P.O. Box 9002 Wilmington, North Carolina 28'102 Authority G.S. 1438-454(6). Council of State acquire or dispose of real proport)' as it deems proper to carr^' out its purposes.—It may acquire prope rty by purchase , negotiation, by the exercise of the right of eminent domain, such condemnation proooodings to bo maintained by and in the name of the Ports Authority, (b) Construction funded by capital improvement appropri ations of the State of North Carolina ohall be subj ect to 11:13 NORTH CAROLINA REGISTER October 1, 1996 1040 PROPOSED RULES applicable state laws as administered by the Department of Adminictration. Office of State Prope rty and CooGtruction. (o) Construotion projects, the required fundmg of which is no more than Fift) thousand dollars (550,000). may bo bid on an informal basis by the director of engineering. Reque sts for bids on on informal basis shall bo by l e tt e r to parti e s likely to bo int e re sted in construotion of the proj ect and the letter shall give adequate instructions as to bidding proceodings. date of bid opening, and sufficient information aad — specifications—necessaPi '—te — enable—a — biddor—te—be properl) informed prior to submission of his bid. Authonn- G.S. 143-129; 143B-454; 143B-455: 143B-457. .0204 VTNDCSG SERVICES In an>' building or facility owned, leased, or otherwise controlled b\ this Ports Authorit)' in vshich there is located a '.ending facility operated b)' the ' . isually handicapped or one or more coin ope rated vending innchine s operated unde r contract w ith the Department of Human Resources for the support of said ' . ending facilities, all pursuant to Article 3 of Chapter 111 of the Gene ral Statutes, no pe rson. Firm, or corporation shall be permitted to se ll, or solicit for the sal e of. anv t\pe of item which is generally available from such vending facility or machine located on the premises or to othep. ' . ise engage in direct compe tition th e re' .vith.—During those occasional periods in which thoro is a substantial increase—in demand—for ' . ending services—on any—such premises, mobile vending facilities ' ' . hieh are operating unde r contract with Department of Human Resourc es as an e xt ension of th e coin operated '. ending machine ope ration may be permitted to operate, all subject to the discretion and control of the director of tho facility. Authorin- G.S. 111-41: 1438-454(1}. SUBCHAPTER 13B - PURCHASING PROCEDLHES .0001 LAWS AND RUXES G0\ ERMNG Since the Port Authority' s purchasing procedures are subject to the provisions of Article 3 of Chapter 1 4 3 of the G e ne ral—Statut es re lating to the purchase of suppli e s, mat e rial and equipme nt by s tate gosemme nt,—th e Ports Authority i s governed by the rule s and regulations of the divi sion of purchase and contract. Department of Adminis tration. as set forth in the State Purchasing Manual.—A copy of thi s manual i s locat ed in the offic e of th e Department of Administration. Division of Purchase and Contract.—i44 West Jones Street. Raleigh. N.C.. and at 2202 Burne tt Boule ' . ard. NN'ilmington. N.C.. in th e offic e of th e purchas Lng offic e r of th e State Ports Authority.—A cop) is also on file in tho operations manager's office. 1 13 Arendell Street. Morehead City. N.C. Authorm G.S. 143B-453: 143B-454: 143B-465. .0002 PURCHASES EXCEEDING $5,000 Purchases amounting to five thousand dollars (£5.000) or more , for it ems not on contract certification are roquisi tion ed through the Division of fhirchase and Contract in accordance—W' ith that division's prescribed—procedures. Purchase orders are issued directly to the supplier for items authorized by contract c e rtification.—The Ports Authority' may effect purchases through the division of purchase and contract—fer — amounts—lees—than—five — thousand—dollars (S5.000). at it s di scretion. Authority- G.S. 143-52: 143B-453: 143B-454: 143B-465. .0003 PUTiCHASES NOT EXCEEDING $5,000: CERTIFICATION CONTRACTS Procedure s for e ffecting purchases , for ite rrus W' hich are available on contract certification, v. hioh are in amounts loss than five thousand dollars (£5.000) aro as follows: (4^ A purchase order w ill be issued by the purchasing officer v. hen availabl e it ems or their functional equivalent may bo obtained in accordance v. ith on established contract certification. f3-) TTi e purchase orde r s of th e Ports Authority are s e riall) numbered and cl e arly indicate that tho North Carolina State Ports Authority is the issuer of the purchase order.—It gives the date and tho comple t e addre ss of th e suppli e r to whom it is be ing s ent.—It requests de liv e r)' to the North Carolina State Ports Authority at whichever port is appropriate. .Morehead Citv . or Wilmington, and to the person who is to rece iv e the goods or se r. ic e s ordered at th e appropriate port.—Instruc tions v. ill state tho address to which the invoice will bo directed—Tho purchase order provides spac e for th e quantity of th e it ems orde red, the deocnption. the unit price and th e total price.— A spaco is provided to show reference to the con tract certification number, if applicable. The purchasing offic e r signs th e purchase order or it ma) be signed b> a de signat ed person in the Morehead City office. Authority G.S. 143B-453: 143B-454: 143B-465. .0004 PURCHASES NOT EXCEEDING $5,000: INFORMAL QUOTATIONS If a contract c e rtification is not in e ffect for a particular it e m, prior to the issuanc e of a purchase orde r, informal quotations for purchases v. hich aro loss than five thousand dollars (£5.000) are obtained, whene'er possible.—Tliis may be don e in sev e ral ' .' . ays: fH A ' . ' . ritt en reque st for quotations may be made using a quotation form.—The request for quotation will clearly indicate that the agency requesting tho quotation is the North Carolina Stat e Ports Au thoritv'.—It will give the number of th e reque st for quotation and the date i ssued, clearly indicating that it i s not an order.—The quotation form has 1041 \ORTH CAROLINA REGISTER October 1, 1996 11:13 PROPOSED RULES room to indicato tho Port Authority's dolivor>' roquiromont. quantity and deocription of items . Proopootive vondoro have spaoo to ohow th eir dolivcr)' date, tcrmo and prioo. (3) If it oppoars in tho judgomont of tho purchaaing offioor that the roquoct for quotation oan better be handled by oorroopondenoo, a l ettor will bo writ ton to proopoctivo auppliors roquosting quotations. Tho rosponooa from tho suppliors bocomo a mattor of rooord. (g) Whon timo does not permit the use of tho infor meA—quotation—form—ef—the — corroapondonce method, quotoa may be roccivcd by the purchas ing offic er malting telephone oallo to several supplioro in order to seouro tho desired item or items at tho boat possiblo prico. Tho results of tho tolophono calls arc tabulated by tho purchasing officer and are retained as a matter of record. ^4) After quotations are roooived, they are tabulated to dotormino tho best available prico and if the quotationfl aro consistent with tho roquiromonts of the Porta Authority and meet th e requirements of tho Department of Administration, Division of Purchase and Contract, a purchase order is is Authority G.S. 143B-453; 143B-454; 143B-465. .0005 PURCHASES NOT EXCEEDING $5,000: MONTHLY ACCOUNT ORDERS In tho diocrotion of tho Porto Authority purchasing officer monthly account purchase orders may bo issued to various suppliors for specified items.—Tho supor>'i3or of the parts department of the appropriate port torminal authorized to make telephone calls to the various suppliers to secure the desired items for inventory at tho most advantageous price consistent with prompt delivery in accordance with tho monthly account purchase order. Deliver)' tickets indicating receipt of goodo ao ordered under this method are signed by tho supor^'isor of tho appropriate parts department or his dosignoo.—Invoices for goods or services rondorod aro mailed monthly to the comptroller. Authority G.S 143B-453; 143B-454; 143B-465. SUBCHAPTER 13C - SOUTHPORT BOAT HARBOR .0001 LEASE OF SOUTHPORT BOAT HARBOR (e^ — The Southport Boat Harbor is owned by the Ports Authority. It—is — located—afe—6-1-3 — West—West—Strcot, Southport. North Carolina 28 461. (b) The harbor is l eased to a private operator.—A copy of this lease is on file with the Executive Director of the Porta Authority at its Wilmington office and also is on file with the State Property Officer at Administration Building, 116 West Jones Stroot, Raleigh, North Carolina 27602 . Authority G.S. 143B-454(3); 143B-455. SUBCHAPTER 13D - PORT CHARGES TARIFF SECTION .0100 - GENERAL PROVISIONS .0101 PUBLICATION OF PORT CHARGES TARIFF The port charges tariff of tho Porto Authority' sots forth the charges for services rendered at its terminalo and tho rules and regulations to bo foUowod by users of tho torminals:—fe aooordanco with General Order No.—15 of the Federal Maritime Comminoion, the tariff is fil ed with tho Federal Maritime Commission as a public document.—A public copy of tho tariff is on file at tho following address:—Federal Maritime Commission, Bureau of Compliance,—1 100 L Street, NW, Washington, D.C. 20573.—A copy is also on file at tho North Carolina Stato Ports Authority, North Carolina Maritime Building Wilmington, 2202 Burnett Boulevard, Wilmington, North Carolina 28 101.—The tariff is adopted by reference pursuant to G.S. 150B 11(0) and shall include any later amendments and editions thereof. Authority G.S. 143B-453; 143B-454; 150B-14. SUBCHAPTER 13E - SECURITY AND SAFETY SECTION .0100 - TITLE AND ADOPTION: REGULATIONS .0101 TITLE Thi s Subchapter relates to regulations governing traffic, parking and the registration of motor vehicles and other ordinances relating to tho safety and welfare of persons using the profwrty of the North Carolina State Ports Author ity at its Morehead City and Wilmington Terminalsr Authority G.S. 143B-461. .0102 ADOPTION Be it resolved that pursuant to the authority vested in it by G.S. 1 43B 461, tho Board of tho North Carolina Stato Ports Authority adopts and records in its procoodings tho follow ing regulations of this Subchapter governing traffic, parking, and the registration of motor vehicl es and other ordinances relating to tho safety and welfare of persons using tho property' of tho North Carolina State Ports Authority at its Morehead City and Wilmington Terminals—From the date of filing a copy of these regulations and ordinances in tho offices of the Secretary of State and Attorney General, and providing the appropriate signs, thoy shall apply to and bo in effect on property owned or l eased by the Ports Authority at its Morehead City and Wilmington Terminals. Authority G.S. I43B-461. 11:13 NORTH CAROLINA REGISTER October 1, 1996 1042 PROPOSED RULES .0103 ORDINATION Tho provioiong of thio Subohaptor aro in aooordanoe with G.S. H3B 461. and oatoblioh an ordinanco rogulating traffic upon tho strocto of tho tcrminala of tho North Carolina Stato Porto Authority at Morohoad City and Wilmington and set forth oth er ordinancoo relating to tho oafoty and welfare of poraona using tho property of tho Ports Authority, and repeal all othor ordinancoo and ooctions of ordinanoos in conflict herewith. Authority G.S. 143B-461. SECTION .0200 - DEFINmONS .0201 STATUTORY DEFINmONS The dofinitiono of all tormo used in thcoo ordinanoos ahall bo thoGO provid ed in G.S. 20 -1.01 and other applicabl e sootiono of the General Statuteo of North Carolina insofar as they arc provided. Authority G.S. 143B-461. .0202 DEFINmONS: AUTHORITY ORDINANCES Other terms used shall be oonotrued as followo. unless another meaning io cloarly apparent from th e language or context: f4-) Authorized Emergency Vehicle—Vehicles of fire departments, police vehiolos. and such ambulanoeo and omergenoy—vehicl es as are designated or authorized by tho Executive Director of the North Carolina State Ports Authority; (3^ Crosswalk: -fa^ that part of a roadway at an int e roeotion included—within tho connections—of tho lateral linos of the sidovi'alks on oppooito sides of the highway measured from the curbs, or in the absence of curbs from th e edges of tho traversable roadway; -(fe) any portion of a roadv^ay at an intersection or olsowhere distinctly indicated for pedes trian crossing by linos or othe r markings on the surface; ^ Freight Lx)ading Zone.—A space adjacent to a transit shod or a warehouse, rail tracks, open storage areas, as designated from time to time by the executive director; f4) Official Traffic Control Devices. All signs, signals, markings and devices not inconsistent with thio ordinance placed or orooted by the Ports Authority for tho purpose of rogulating, warning or guiding traffic; (5^ Park or Parking.—The standing of a vehicle, wheth er occupi ed or not. othenvise than tempo rarily for the purpose of and while actually en gaged in loading or unloading merchandise or passengers; {%>) Passenger Loading Zone.—A place adjacent to a transit shed, warehouse, hardotand, or designated parking area for the exclusive uso of vohicles during the loading or unloading of passengers; Pedestrian.—j\ny person afoot; (9>- -fW)- -(-1-H-im-im- -H4)- -et^ a^ -fw>- -f+«)- Police Offic e r. Every officer of the Port Author ity's Terminal Police Departments as authorized by G.S. 1 43B 461, or any officer authorized to direct or regulate traffic or to make arrests for violations of traffic or other regulations publi shed heroin; Railroad.—A carrier of persons or property upon cars, other than streetcars, operat ed upon station ary rails; Railroad Train. A steam engine, electric or othor motor, with or without oars coupled thereto, operated upon rails, except street cars; Sidewalk.—That portion of a street between the curb lines, or tho lateral lines of a roadway, and the adjacent property lines, intended for uso of pedes trian s ; Stand or Standing.—Tlie halting of a vehicle. whether occupied or not, otherwise than for tho purp>oso of and while actually engaged in rocoiv ing or di scharging passengers ; Stop.—When required, means complete c essation of movement. When prohibited.—means any stopping of a vohicle except when nocessar)' to avoid conflict with other traffic or in compliance with th e direction of on officer or traffic control sign or s ignal; TTi rough Street.—Every street or portion thereof on which vehicular traffic io given preferential right of way, and at the entrances to which vehio ular traffic from intersecting streets is required by law to yield right of way to vehicles on such through street in obedience to either a stop sign or a yi eld sign, when such signs are erected as provided in this ordinance; Traffic.—Pedestrian s , ridden or horded animals, vehicles, and other conveyances either singly or together while using any street for purposes of travel ; Traffic Control Signal. i'Vny device, whether manually, electrically or mechanically operated, by which traffic is alternately directed to stop and permitted to proceed; Traffic District. All strccto and jxjrtions of streets within—the area— s hown on—the — maps — of the Morehead City and Wilmington Terminals, copies of which maps are incorporated herein and made a part of these ordinances ; Traffic—Division. The traffic division of the police — departments—ef—the — Wilmington—e* Morehead City Terminal s of tho Ports Authority, or in tho ovont a traffic division is not established. 1043 NORTH CAROLINA REGISTER October 1, 1996 11:13 PROPOSED RULES thon said torm whcnovor used horoin shall bo doomed to re fer to th e polioe dopartmonts of the Wilmington or Morohoad Cit)' Torminalo -e^-tha Ports Authority; -fi^) Vohiclo. Evor>' dovico in, upon or by which any poroon or property ia or may be transported or drowna upon a highway, oxoopting devioee moved by human posvor or used exclusively upon station ary rails or tracks.—In addition, the term vehicle for the purpose of thio ordinance shall be deemed to include all motor vohioles such oo industrial forklifto and tractors and trailers boing towod by such tractors. Authority G.S. 143B-461. SECTION .0300 - TRAFFIC ADMINISTRATION .0301 DUTIES OF POLICE DEPARTMENTS {ft)—The police departments of the Wilmington and Morohoad City Terminals of tho North Carolina State Ports Authority' shall be directly rooponsible for the administration of traffic. (b) — It shall bo tho duty of tho police departments to onforco tho traffic regulations of tho tw»'o torminals, to malco arrostfl for traffic violations, to investigate aooidents and to oooperato with tho terminal traffic engineer and other administrative officials of tho Ports Authority in tho admin istration of tho traffic laws and in developing ways and means to improve traffic oonditiono, and to oarr)' out those duties specially imposed upon the departments by this ordinance. (c) Record Keeping; General (i) The poUoe departments shall keep a record of all violations of traffic ordinances of the two termi nals together with a rocord of tho final disposition of all such alleged offenses.—Such rocord shall be so maintained as to show all types of violations and the total of each.—Said record shall acoumu late during at least a five year period and from that time on tho record shall bo maintained com plete for at least the most reoent five year period. (3^ All forms for records of violations and notices of violations shall be serially numbered.—For oach month and year a written rocord shall bo kept available to the public showing th e disposal of all such formo. (3) All such records and reports shall bo public records. (d) It shall be the duty of the police departments to investigate traffic accidents, to arrest and to assist in the prosecution of those persons charged with violations of law causing or contributing to such accidents. ^—Whenever the accidents at any particular location become numerous, the polioe dopartmonts shall cooperate with the terminal traffic engineer in conducting studios of such accidents and determining remedial measures. ff) — Tho police dopartmonts shall file traffic accident reports in acoordxmco with the provisions of G.S. 20 166.1. Accident reports or cards re ferring to them shall be filed alphabetically by location.—Such reports shall be available for the use and information of tho terminal traffic onginoor. (g) Rocord Keeping; Accidents, Warnings, i\rrooto, and Convictions (4^ Tlio police departments shall maintain a suitable rocord of all traffic accidents, warnings, arrests, convictions,—and complaints reported for each driver, which shall be filed alphabetically under tho name of the driver concerned. (3) The police departments shall study the coses of all the drivers charged with frequent or serious violations of the traffic laws or involved in fre quont traffic accidents or any serious accident, and shall attempt to discover the reasons therefor, and may recommend to the executive director suspension of the privilege of operating a vehicle on tho torminals.—Tho executive director may suspend such privilege for any poriod of time ho considers appropriato. (3) Such records shall accumulate during at least a fivo year poriod and from that time on such records shall bo maintainod comploto for at least the most recent fivo year period, (h) i\nnual Tmffio Report. The polioe departments shall annually prepare a traffic report which shall bo filed with tho executive director and tho torminol traffic onginoor. Suoh report shall contain information on traffic matters on the terminal as follows; {^ tho number of traffic accidents, the number of persons killed, the number of jxarsons injured, and other pertinent traffic accident data; (3) the number of traffic accidents investigated and other portinont data on tho safety activities of tho police; and (3) the plans and recommendations of tho department for future traffic safety activiti es. Authority G.S. 143B-461. .0302 DUTIES OF PORT MANAGERS It shall bo the general duty of the Port Managers to determine tho installation and proper timing and maintenance of tmffio control deviooo, to initiate engineering analyses of traffic accidents and to devise remedial measures, to initiate engineoring investigation of traffic conditions, to plan the operation of traffic on tho streets and roadways of tho two terminals^—aad — to cooperate — with other administrative officials of the North Carolina State Ports Authority in the development of ways and moans to improve traffic condi tions and to carr)' out tho additional powers and duties imposed by this ordinance . Authority G.S. 143B-461. 11:13 NORTH CAROLINA REGISTER October 1, 1996 1044 PROPOSED RULES SECTION .0400 - ENFORCEMENT OF AND OBEDIENCE TO TRAFFIC REGULATIONS .0401 ENFORCEMENT BY POLICE OFFICERS In accordance ' ' ith tho pro'i isiono of G.S. M3B '161. it Ghall be thj dut> of th e polic e departma nto or ouch offic e rs as aro a3signcd by tho chiefs of police to enforce all street traffic laws of the W\o terminals and all of the state vehicle laws gpplioabl g to street traffic in th e tsvo terminals. Authority- G.S. 143B-461. .0402 DIRECTION OF TRAFFIC BY POLICE OFFICERS Officers of the police departments or such officers as arc assigned b^ the chiefs of police are hereby authorized to direct all traffic b) voic e , hand or signal in conformanc e with traffic laws, provided that, in tho event of a fire or other emergency or to expedite — traffic or to safeguard pedestrians, officers of the police department may direct traffic—as — conditions—fsay — require — notwithstanding—the provisions of th e traffic laws. Authorin- G.S. 143B-461. .0403 OPERATION OF EMERGENCY VEHICLE (a) The driver of an authorized emergency vehicle, when responding to an emergency call or '.'. h en in the pursuit of an actual or suspected violator of th e law or when respond ing to but not upon returning from a fire alarm.—may exercise the privileges set forth in this Rule, but subject to th e conditions here in stat ed. ("b) The drive r of on authorized emergency vehicl e may: H-) park or stand, irrespective of the provisions of this ordinance: (3^ proceed past a red or stop signal or stop sign, but only afte r slowing down as may be nec essar)' for safe operation: (3) oxoecd the maximum sp>ocd limits so long as he does not endange r life or property: (4^ disregard—regulations — go'. ' eming—direction—&f movement or turning in specified directions. fe^ — The exemptions herein granted to on authorized emergenc) vehicl e shall apply only v. hen the driver of any said vehicle v. hil e in motion sounds audible s ignal by be ll. siren, or exhaust whistle as may be reasonably necessary. and when the vehicle is equipped with at least one lighted lamp di s playing a red or blue light visibl e under normal atmospheric conditions from a distxmce as defined in tho state statutes to the front of such vehicle: except that an authorized emergency vehicle operated as a police vehicle n eed not be equipped Vi ith or display a red or blue light visibl e from in front of th e vehic le . (d) The foregoing provisions s hall not roliovo the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect th e driver from the consequence s of bio reckl ess disregard for th e safety of others. Authority G.S. 143B-461. .0404 RIGHT OF WAY: EMERGENCY NTHICLE W^ — Upon tho immediate approach of an authorized eme rgency vehicl e maldng use of audible and visual oignalo mooting th e requirements of th e laws of this state , or of a police vehicle properly and lasvfully making use of on audible signal only, the driver of every other vehicle shall yi e ld th e right of si. ay and shall immediate ly drive to a position—parall el—te^—and — as close—as — possible—te^—tbe right hand edge or curb of the roadway clear of any inter section and shall stop and remain in such position until the authorized e mergency v ehicl e has passed, except when othe p.'. ise directed by a polic e officer. (b) This rule shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway. Authority- G.S. 1438-461. .0405 COLLISIONS: REPORTS ANT) ENVTSTIGATIONS Reports and investigations are required in the event of collision. Reports and notices of accidents by tho driver of a vehicl e involved in a collision shall be fil ed ao proscribed b) G.S. 20 166.1.—Copies of such reports may be obtained from the Commissioner of Motor Vehicles. Raleigh. North Carolina. Authority G.S. 143B-461. SECTION .0500 - TRAFTIC CONTROL DEVICES .0501 PLACEMENT AND MAINTENANCE Tlie port managers shall place and maintain traffic control signs, signals, and devices '.'. hen and as required under the traffic ordinances of the tw o terminals to moke e ffective tho provisions of said ordinances, and may place and maintain such additional traffic control devices as they may doom nec e ssaiy to regulate traffic under th e traffic ordinances of th e t'. ' . o terminals or under state law, or to guido or worn traffic. Authorit\' G.S. 143B-461. .0502 STANDARDS ANT) SPECIFICATIONS M\—traffic control— s igns .—signals.—aftd — devices—shall conform—te—the — specifications—approved—by—the — North Carolina State Highway Commission or resolution adopted by the governing body of tho Ports Authority.—All signs and signals required hereunder for a particular purpose, not 1045 NORTH CAROLINA REGISTER October 1, 1996 11:13 PROPOSED RULES dofinod by tho North Carolina State Highway Commioaion Bpooifioationo, ohall do far go praotioable bo uniform-as-te typo and looation throughout tho torminalo. All traf fie control dovicos so oroctod and not inconsistont with tho provioions of otato lasv or this ordinonco shall bo official traffic control dovioeo. Authority G.S. 143B-46L SECTION .0600 - OPERATION OF MOTOR VEHICLES .0601 SPEED LIMTTS Tho Dtato traffic lav^'o regulating the opood of vohioloo ohall bo applioablo upon all Dtroots within the two terminalo. oxcopt as this ordinanco, as authorized by atnto law, hereby doclaroa and dctcrmineo upon the basis of engineering and traffic investigation that c ertain speod regulationo reducing state wide speed limito shall be applicable upon opeoifi ed strooto or in certain areas, in which event it shall bo unlaw fill for any person to drive a vehicle at a speed in excess of any speed so declared in this ordinanco when signs are in a place giving notioo the reof.—Based upon a traffic and onginooring investigation, speed limits are established on streets, alloys, and driveways located on each of tho tv^'o terminals and tho speed limit, as indicated in Rules .0901(a) and .0903(a) of this Subchapter, is hereby Fixed for the designated streets, alleys, and driveways, and such speed Umits shall bo enforceable when approprioto signs havo boon posted to indicate the maximum speed. Authority G.S. 143B-461. .0602 VEfflCLES WTTH LUGS RESTRICTED No poroon shall operate any tractor, crawler tractor, or other vehicle with wheels, tho treads of which have lugs attached thereto, at any time upon any paved area of either terminal without the express permission of the operations manager of tho terminal. Authority G.S. 143B-461. .0603 ERECTION OF TRAFFIC CONTROL SIGNS Tho port managers are hereby authorizod and shall be responsible for erecting signs called for by Rul es .0901(a) to (g) and .0902(a) to (g) of this Subchapter.—The erection, placement, and size and color of signs shall be in accor danco with the provisions of manual on "Uniform Traffic Control Devices for Streets and Highways. " Tho port managers—may — designate areas—of tho two terminals where smoking i s prohibited.—Upon such official designation, signs shall bo erected clearly defming ouch areas.—Areas wherein smoking is prohibited are listed in Rules .090101) and .0902(h) of this Subchapter. Authority G.S. 1433-461. .0702 FIRE ARMS PROHIBITED It shall be unlawful for any person to possess, or carr>', whether openly or concealed, any gun, rifl e , pi stol, dyna mito cartridge, bomb, grenade, mine, powerful explosive as defined in G.S.—1 4 284 .1, bowie Icnife, dirk, dagger, slingshot,—leaded—cone ,—switch blade—knife,—blackjack, metallic knuckles or any other weapon of like kind on either tho Morehoad City or Wilmington Terminals of the Ports Authority'. For the purpose of this Section a self opening or sv.'itch blade knife is defined as a knife containing a blade or blades which open automatically by the release of a spring or a similar contrivance.—and tho above phrase "weapon of like kind" includes razors and razor blades (except sol ely for personal shaving) and any sharp pointed or edged instrument except unaltered nail files and clips and tools used solely for the performance of one's dut)' or occupation on the terminals . This Section shall not apply to tho following persons:—Officers and enlisted personnel of tho armed forces of the United States when in discharge of their official duties as such and acting under orders roquir ing them to carr)' arms or weapons, civil officers of tho United States while in the discharge of their official duties, officers and soldi ers of the militia and the national guard when called into actual service, officers of tho state, or of any county, city, or town, including duly sworn special policemen in the employment of the Ports Authority' at the two terminals, charged with the execution of the laws of the state, when acting in the discharge of their official duties. Authority G.S. 1438-461. SECTION .0800 - PENALTIES AND PROCEDURE .0801 PENALTIES UPON CONVICTION In accordxmco with G.S. 1 43B 461, any person convicted of a violation of any provision of this ordinanco shall be punished by a fine of not more than fifty dollars ($50.00) or by — imprisonment—not to exceed—30 days.—Any person convicted of a violation of any provision of Chapter 20 of tho General Statutes appl icable to tho two terminals shall be punished as therein prescribed. Authority G.S. 1438-461. Authority G.S. 1438-461. SECTION .0700 - CONTROL OF FIRE ARMS AND SMOKING .0701 SMOKING RESTRICTIONS .0803 REGISTRATION OF VEHICLES AND GATE PROCEDURE Every vehicle entering the premises of tho North Carolina State Ports Authority must be registered by tho Ports 11:13 NORTH CAROLINA REGISTER October 1, 1996 1046 PROPOSED RULES Authority' Polioo Dopartmont.—Ports Authority' otnployocs. longshoring emplo)ooo and tanantp" employees will rece iv s and display rogiptration stiokorH sv ith the proper IdentiFica tion, to bo mounted on the left side of the front bumper of their vehicle. j\ll other vehioles entering the premiseo. '.' ith the exception of emergency ' .'ehicles. will stop at the entranc e guflrdhouse .—Cargo carriers will be re gist e red and visitors ' ' ill be issued temporary gate passes.—Upon lea'. Lng the terminals, ' . ehioles ' ' ill again stop, for processing out in the case of cargo carri e rs and to return th e t e mporary gate passes in the case of visitors.—Stopping areas will be clearly marked at each port entrance and exist. Authority G.S. 143B-461. SECTION .0900 - SCHEDULES .0901 WILMINGTON ORDINANCE SCHEDLXES (a^ — The foUo'i^ ing schedule lists maximum speed limits for the U'ilmington Terminal: All Streets 15 MPH Inside all Transit and Storage Buildings—10 MPH All Open Berth Areas 15 MPH (fe) — The following schedule lists the locations of stop signs in the Wilmington Terminal: Myers Boul evard at North Gate House . Northeast comer of Warehouse Road and First Street. Northwest comer of Warehouse Road and Fourth Street. Southeast comer of Maritime Boulevard and Transit Road. Northwest comer of Maritime Boulevard and Fifth Street. Southeast comer of Maritime Boulevard and Commerce Street. Maritime Boulevard at Gate House . Northeast comer of Industrial Road and Sixth Street. South'i^ 'ost comer of Commerce Street and Sixth Street. South^'^est come r of Industrial Road and Seventh Street. Southeast comer of Warehouse Road and So'^ enth Street. Northeast comer of Warehouse Road and Eighth Street. South't'^ est comer of Indus trial Road and Eighth Street. Northeast comer of Indus trial Road and Crese nt Street. Northeast come r of Warehouse Road and Ninth Street. Southwe s t comer of Industrial Road and Ninth Street. Northeast comer of Industrial Road and Tenth Street. Northwest comer of Cre sent Street and Tenth Street. Southwe st come r of Comme rc e Stree t and Tenth Street. Northeast comer of Warehouse Road and Eleventh Street. Southwest comer of Industrial Road and Eleventh Street. Northeast comer of Sixth Street and Industrial Road. Southeast comer of Eleventh Street and Industrial Road. Northeast—comer—of Industnal—Road—and — Commerce Street. Northeast come r of Industrial Road and Maritime Blvd. Southwest come r of Industrial Road and Maritime Blvd. Northeast comer of Fourth Street and Industrial Road. Southwest comer of Fourth Street and Industrial Road. North'.' ! est comer of South Warohouac Road and Maritime Southeast come r of South Warehouse Road and Fourth Street. Northwest comer of Warehouse Road and Third Street. Southeast comer of Warehouse Road and TTiird Street. Northw est comer of Woodbine Street and Transit Road. Northeast comer of Indus trial Road and Fifth Street. Southeast comer of Warehouse Road and Transit Road. fe^ — TTie following schedule lists the locations of yi e ld signs in th e Wilmington Terminal: Southeast comer of Trans it Road and RR Scale Road. Southwest comer of Trans it Road and No. 1 Ramp. Southwest comer of Transit Road and No. 2 Ramp. Northeast come r of Transit Road and Second Street. Southwest comer of Warehouse Road mid Second Street. Southwest comer of Trans it Road and No. 3 Ramp. Northeast come r of Transit Road and Third Street. Northwe st comer of Industrial Road and Third Street. Southvi es t comer of Transit Road and No. 4 Ramp. Northeast comer of Transit Road and Fourth Street. Southviest come r of Transit Road and No. 5 Romp. South'^ve st come r of Transit Road and No. 6 Ramp. Northeast comer of Transit Road and Maritime Boulo vard. West Exit of Parking Lot at Maritime Boulevard and Industrial Road. Southwest comer of Transit Road and No. 7 Ramp. Northeast comer of Transit Road and Seventh Street. Northwes t comer of Warehouse Road and Commerce Street. Northwest comer of Industnal—Road and Commorco Street. Southeast come r of Fifth Street and Industrial Road. Southeast come r of Industrial Road and Twelfth Street. (d) The following schedule lists the locations of railroad waming signs in the Wilmington TerminalT North sid e of Transit Road and North Gate Crossing- South side of Transit Road at North Gate Crossing- North side of Transit Road at intersection of Warehouse Road. South sid e of Transit Road at intersection of Warehouse Road. East side of Warehouse Road at intersection of Transit Readr Northw est comer of Third Street and Induotrial Road. Southe ast come r of Third Street and Warehouse Road. Northwest comer of Fourth Street and Industrial Road. South side of Fourth Street south of Cargo Shelter No. 1. West sid e of Transit Road at Lumber Ramp Crossing. East sid e of Transit Road at Lumber Ramp Crossing. North s ide of Maritime Boulevard at East Lumber Yard Crossing . South s id e of Maritime Boul evard at East Lumbe r Yard Crossing. South side of Maritime Boulevard at Main Gate Crossing. North side of Maritime Boulevard at Mam Gate Crossing. 1047 i\ORTH CAROLINA REGISTER October 1, 1996 11:13 PROPOSED RULES South oido of Induatriol Road at Tv.'olfth Stroot Croaaing . North oido of Induotrial Road at Twelfth Street Croooing. (o) The following oohodulo lioto tho looationo of no thru traffic oigno in tho Wilmington Tormfflatr Southwoot comor of Warohouao Road and Firat Stroot. Northoaot oomor of Warohouoe Road and Fourth Street. Warohouoo Road. Insido all tronoit and otorago buildings. (0 Tho follosving schodulo liota the locations of do not ontor oigno in the Wilmington Termiftak- Southwoot oomor of Tranoit Road and RR Scale Road. (g) Tho foUo'i 'i'ing schedule liota parlcing ordinancos in tho Wilmington Torminal: ft) Tho following oohodul e lists the looationo of no parking between oigno aroao: Southwest comor of Tronoit Road and Ramp No. 1 to woot oido of Transit Road oppoaito loading door No. 6 of Tranoit Shod No. 1. Weot oido of Tranoit Road opposite loading door No. 4 of Tranoit Shod No. 2. to Northwest comor of Transit Road and Ramp No. 2. East side of Transit Road from North end of Warohouoo No. 3 to North oide of Peroonnol Offico. East oido of Transit Road from South side of Personnel Offioo to Northeast oomor of Tranoit Road and Second Street. Southeast comor of Transit Road and Second Stroot to East side of Transit Road oppooito loading door No. 1 in Warehouse No.l. Southeast comer of Transit Road and Third Street to Northeast comor of Transit Road and Fourth Stroot. Southeaot comer of Transit Road and Maritime Boul evard to Northeast comer of Tranoit Road and Seventh Street. Southwest comer of Warehouse Road and Third Stroot to Northwest comor of Warehouse Road and Fourth Street. Southeast comer of Warehouse Road and Third Stroot to Northeast oomor of Warehouse Road and Fourth Street. (2) The following schedule li s ts th e areas in which parlcing is prohibited and no parking signs will be oroctod: Northwest oomer of Eleventh Street. Northweot oomor of Ninth Street. South comer of Transit Shod Number 4 . Northwest oomor of Maritime Boulevard. Open Berths 1, 2, 3, 4, 5, 6, 7. 8 and 9. Tranoit Shedo T 2, T 3. T 4. T 5, T 6 and T 7. Storage Sheds W 3, W 4 and W 5. (b) — Tho following schedule lists tho areas in which smoking is prohibited in the Wilmington Terminal: (4) Smoking io prohibited in all areas west of the railroad tracks along Transit Road and on tho South Open Berth.—Smoking will bo pcrmittod only within designated smoking areas. (3) Smoking is also prohibited in Storage Warohouooo 1, 2, 3, and 4 and Cargo Shelter 1 and signs are posted in tho following locations: North and South ends of East and West sides of Tranoit Shed 1. North and South ends of East and West sides of Transit Shed 2. North and South ends of East and West sides of Transit Shed 3. North and South ends of East and Weot sides of Transit Shed 4 . North and South ends of East and Woot sides of Warehouse I . North and South ends of East and Weot oidoo of Warehouse 2. North and South ends of East and West sides of Warehouse 3. North and South ends of Eaot and Weot sides of Warehouse 1. North and South onds of Cargo Sholtor 1. (i) The following schedule listo streoto in the Wilmington Terminal whioh are one way: T^'olfth Stroot is limited to one way traffic with such traffic moving from Industrial Road castbound to Pennsylvania Avenue- Tenth Street is limited to one way traffic weot bound from Commerce Stroot to Industrial Road. Commerce Street is limited to one way traffic east bound from Industrial Road to Tenth Street. Inbound traffic on the couth gate access road is Iknitod to one way traffic west bound from tho south gate to Industrial Road. The south gate exit road is limited to one way traffic east bound from Induotrial Road to the River Road. fj) — The following schedule lists parking regulations in effect—en—the — North—Carolina—Maritime—Building Wilmington facility: fi) The three parking areas adjacent to the North Carolina Maritime Building, 2202 Bumott Boule vard, Wilmington, N.C., and identified as parking areas one . two and three are restricted as follows: (A) Parking area number one immediately north of the North Carolina Maritime Building shall bo by assignment only.—Tho oxocutivo director is hereby authorized to make as signments to individuals or companies for the parking of automobiles in this aroa. (B) Parking area number two paralleling tho driveway immediately east of the North Carolina Maritime Building io restricted to visitors to tho North Carolina Maritime Building. (G) Parking area number throo to tho oouth of the North Carolina Maritime Building is rostrictod to employees of tho Ports Author ity or employees of tonants on the Port 11:13 NORTH CAROLINA REGISTER October 1, 1996 1048 PROPOSED RULES Authorit>''a prominoo or viaitors and guosta of the Porto Authority or its tenants. ^ Vohioleo parked in violation of tho foregoing regulations may bo towod away at tho osvnor's oxpenoc. Authority G.S- 143B-461. .0902 MOREHEAD CITY ORDINANCE SCHEDULES a) Tho following oohedulo lieto maximum opood limito for specified otrocts in tho Morehcad City Terminal: NAME OF STREET /MAXIMUM SPEED UMff Arondell Street 20 MPH Terminal Road 20 MPH Warehouse Road 20 MPH Lumbar Road 20 MPH Garage Road North Gate Road 20 MPH 20 MPH Storage Road 20 MPH Barge Terminal North 20 MPH Barge Terminal East 20 MPH First Street Second Strcot 20 MPH 20 MPH Third Street 20 MPH Fourth Street to Garage Street Fifth Street 20 MPH 20 MPH First Street North 20 MPH Second Street North 20 MPH Fourth Street North 20 MPH fb^ — The following sohedulo lists the locations of stop signs in the Morehead City TcnHHW^r Arendell Street at Main Gate House (2 signs). South east corner of Arendell Street and Terminal- Road. Southwest comor of Warehouse Road and Terminal Road. Northwest oomer of First Street and Warehouse Road. Southwest comor of Old Transit Road and Terminal Road. Northv%'ost comer of Old Transit Road and Second Street. Southeast comor of Old Trans it Road and Second Street. Northeas t oomer of Warehouse Road and Second Street. Southwest comer of Warehouse Road and Second Strcot Southeast comer of Second Street and Garage Road. Southeast comer of Third Street and Garage Road. Northwest comor of Third Street and Warehouse Road. Northeast oome r of Garage Road and Fourth Street. Northeast comor of Fourth Street and Warehouse Road. Northwest comor of Fourth Street and Old Transit Road. Southeast corner of Fourth Street and Old Transit Road. Southwest comor of Fifth Street and Fourth Street. Southwest comer of Lumber Road and Fourth Street- North Gate Road at Gate House (2 signs). Southeast comor of Fourth Stroot N and North Gato Road. Northsvest oomer of Fourth Street N and North Gate Road. Southwest comor of Second Stroot and North Gate Road. Northwest oomer of Second Street and North Gate Road. Northeast comor of Bargo Terminal N and Second Street N. Northeast comer of Arendell—Street and Fourth Street. Southeast comer of Arondell Street and Fourth Street. fe-) — The following schedule lists tho locations of yiold signs in the Morehead Git)' TermiHak- Southwest oomor of First Street and Garage Road. Northwest comer of North Gate Road and Highway Tot Southeast oomer of Terminal Road and Barge Termi nal Road East. Northeast—comer of Arendell—Stroot—and — Fourth Street. Southwest comer of Arendell Street and Fourth Street. (d) The following sohodule lists the locations of railroad waming signs in tho Morehead City TormiRah- East side of Fourth Street at intersection of ArondoU Street. North side of Arondell Stroot at intersection of Fourth Street. fiftst—side — of Termiflftl — Road—at — intorsootion—ei Arondell Stroot. North side of Barge Terminal East at intersection of Arondell Street. West side of First Street N at intersection of Arondell Stroot. North side of Fifth Street at Northwest comer of West side of Fifth Street opposite west side of center of Warehouse 8. North side of Lumber Road at intersection of Fifth Street. Southeast comer of Fourth Street and Old Transit Road. Northwest comor of Fourth Street and Old Transit Road. (e) TTie following schedule lists th e locations of no thru traffic signs in the Morehead City Terminal: Northeast comor of Terminal Road and Arondell Street. 1049 NORTH CAROLINA REGISTER October 1, 1996 11:13 PROPOSED RULES \ ) Southwoot oomor of North Gate Road and Socond Stroot North. (f) At tho preBont, do not ontor signs are not applioabl e to the Morohoad Cit^' Tormina). (g) The foUos^'ing oohodulo lists parking ordinaneos in tho Morehead C\V,' Torminal: f4) Tho following oohcxiulo lists th e location of no parlcing between signs aroao: East sido of Transit Shod 3 between Pier and Old Transit Road. Wost sido of Warehouse 10 botsvoon Old Transit Road and Northwest comer of Building. Wost oido of Torminal Road botvi oen Old Transit Road and Pi er. East sido of Terminal Road between Old Transit Road and Pier. North sido of Phosphate Drive House between Terminal Road and Pier- North sid e of Old Transit Road at Tank Area botwoon Fourth Street and Fifth Street. Refueling area oast of Warehouse 9 betvi'oon Terminal Road and Fourth Street. ^3) The following rules id entify' parking areas eotab liohod for uoo by employees: (A) The following areas are designated parking areas for vchieles owned by employees of the Porto Authority and employees of the Port Authorit)''s tenants on the Morehead City Terminal: (i^ That—ftfea — immediately— s outh—ef Lumber Road, bounded on th e west by 5th Street, on th e oast by '1th Street and on tho south by the gl)'col storage tonics; -(4t) The area immediately north of the truck— s cal es — fronting—en — Garage Road. (B) Both of tho foregoing areas are to bo ado quatoly marked with signs which signs will state the parking restrictions. Oi) Tho following schedule lists tho no smoking rootrie tions at the Morehead City Terminal: f4^ Smoking is prohibited in all areas south of the railroad tracks along Transit Road and on th e Open Berth Areas.—Smoking will be permitted only within designated smoking areas. (3) Smoking is also prohibited within Storage Ware houses A, 5, 6, 7, 8 , 9, and 10 and signs are posted in the following locations : East and West ends of North and South sides of Transit Shed 1. East and West enda of South side of Transit Shed 3t East and West ends of North and South sides of Transit Shed 3. East and West ends of North side of Warehouse East and Wost ends of North side of Warehouse North and South ends of East and West sides of Warehouse 6. North and South ends of East and Wost sides of Warehouse 7. North and South ends of East and West sides of Warehouse 8 . North and South ends of East and Wost sides of Warehouse 9. East and West ends of North and South sides of Warehouse 10. East and West sides and North and South ends of Transit Shod 4 . Authority G.S. 143B-461. SUBCHAPTER 13F - PERSONNEL SECTION .0300 - GENERAL EMPLOYMENT POLICIES .0301 GENERAL (a) The State Porto Authority' Personnel Manual sets forth the policies and regulations concoming personnel manage ment at tho North Carolina State Ports Authority.—ks purpose is to assure faimeoa and equality' in the handling of all personnel matters.—Should changes or additions in policies bo required, now supplements will bo issuod for inclusion in the manual. (b) Major sections of the manual ore: ^ Equal Employment Opportunity' Policy Statement and Sexual Harassment Policy Statement, (3) general employment policies, ^ pay plan. f4-) leave and separation, (5) employee relations, (6) drug testing program. fe) — Copies of th e manual will be issued to each depart ment head and to each first lino supervisor. Authority G.S. 1438-454(5); 150B-14. .0302 PERSONNEL QUESTIONS Any questions concerning personnel matters should bo diroctod to tho Personnel Officer of tho Ports Authority at the following address: Personnel Officer North Carolina State Ports Authority P.O. Box 9002 Wilmington, North Carolina 28 ^102 Authority G.S. ] 438-454(5). 11:13 NORTH CAROLINA REGISTER October 1, 1996 1050 PROPOSED RULES TITLE 10 - DEPARTMENT OF HUMAN RESOURCES Notice is hereby given in accordance with G.S. 150B-21.2 that the Department of Human Resources, Division of Vocational Rehabilitation Services intends to amend rules cited as 10 NCAC 20B .0204, .0205, .0206, .0208, .0209, .0210, .0214, .0218, .0222, .0224. .0226, .0227; 20C .0603. Notice of Rule-making Proceedings was published in the Register on July 15, 1996. Proposed Effective Date: April 1, 1997 A Public Hearing will be conducted at 6:00 p.m. on October 16, 1996 at the Main Conference Room, Division of Vocational Rehabilitation Services, 805 Ruggles Drive, Dorothea Dix Campus, Raleigh, NC. Reason for Proposed Action: 10 NCAC 20B .0204, .0205, .0206, .0208, .0209, .0210, .0214, .0218, .0222, .0224, .0226, and .0227- are being amended to clarify' that the state plan includes the State Plan for Independent Living Services and to indicate that certain duties related to the appeals process, which were previously performed by the Division 's Deputy Director, will now be performed by the Chief of Operations as the Division no longer has a Deputy Director position, to clarify language, and to remove reference to subpoenas in .0214 as the Division does not have authority to issue subpoenas. 10 NCAC 20C .0603 - is being amended because the rule does not meet all the requirements of the final federal regulation on the order of selection for service process. The current priority No. Three for "individuals being served by a program designed to help individuals transition from school to work" does not meet the requirement that priority be based on sex'erity of disability. Comment Procedures: Comments may be presented orally or in writing at the hearing. Oral statements may be limited at the discretion of the hearing officer. Written comments may also be submitted until October 31, 1996 to Jackie Stalnaker, Division of Vocational Rehabilitation Services, P.O. Box 26053. Raleigh, NC 27611. To obtain additional information or indicate need for alternative communication format contact Ms. Stalnaker in writing or by phone (919) 733-3364 or TDD (919) 733-5924. In addition, a fiscal note is available upon written request from the same address. Fiscal Note: These Rules do not affect the expenditures or rexenues of state or local governmentfunds. These Rules do not have a substantial economic impact of at least five million dollars ($5,000,000) in a 12-month period. CHAPTER 20 - VOCATIONAL REHABILITATION SUBCHAPTER 20B - PROCEDURE SECTION .0200 - CONTESTED CASES: ADMINISTRATIVE REVIEWS: APPEALS HEARINGS .0204 DIVISION ACTIONS IN RESPONSE TO REQUEST (a) Upon receipt of a request for an appeals hearing, the regional director shall immediately forward the original request to the division's dcput>' director Chief of Operations for appointment of a hearing officer to conduct the appeals hearing. (b) If the individual has requested an administrative review in addition to an appeals hearing, the regional director shall: (1) make a decision to conduct the administrative review or appoint a designee to conduct the administrative review who: (A) has had no previous involvement in the issues currently in controversy; (B) can conduct the administrative review in an unbiased way; and (C) has a broad working knowledge of the division's policies and procedures and the State Plan for Vocational Rehabilitation Services or Independent Living Services (as appropriate); and (otato plan); and (2) proceed with, or direct the designee to proceed with an administrative review according to the provisions of Rules .0205, .0208, and .0209 of this Section. (c) The regional director shall send the applicant or client written acknowledgment of receipt of the request and inform the individual that additional information will be sent regarding the administrative review and/or appealo hearing. and appeals hearing or only the appeals hearing. (d) The regional director shall provide the Client Assis-tance Program with a copy of the request and the response to the request. Authority G.S. 143-545A; 150B-1: 34 C.F.R. 361.48. .0205 SCHEDULING AND NOTICE OF ADMINISTRATIVE REVIEW (a) If an administrative review is to be conducted, the regional director or designee shall: (1) set a date, time and place for the administrative review; (2) send written notification by certified mail to the applicant or client and the individual's parent, guardian or representative, as appropriate, of the date, time and place for the administrative review; (3) advise the applicant or client in the written notice that a hearing officer will be appointed by the deputy director Chief of Operations to conduct a hearing if the matter is not resolved in the admin-istrative review and that the applicant or client will also receive a written notice from the hearing 1051 NORTH CAROLINA REGISTER October 1, 1996 11:13 PROPOSED RULES officer regarding the formal appeals hearing which will be held after the administrative review; and (4) notify the Director of the Client Assistance Pro-gram (CAP) and other individuals to be involved in the administrative review of the request and the date, time and place for the administrative review. This notification may be by phone or in writing, (b) Prior to the administrative review, the regional director or designee shall review all previous decisions and casework related to the applicant or client and seek whatever consultation, explanation, documentation, or other informa-tion that is deemed necessary, utilizing the division's CAP Director as appropriate. Authority G.S. 143-5454; 150B-1; 34 C.F.R. 361.48. .0206 APPOINTMENT OF HEARING OFFICER Upon receipt of the applicant's or client's request for an appeals hearing from the regional director, the dopufy dircKjtor Chief of Operations shall arrange for the appoint-ment of an impartial hearing officer who is in the pool of persons qualified as defined in P.L. 102-569, Section 7(28) and who is mutually agreed upon by the Director and the individual or the individual's representative. Authority G.S. 143-545A; 1508-1; P.L. 102-569. .0208 ADMINISTRATIVE REVIEW (a) Within 15 days of the original request for an adminis-trative review by the applicant or client, the regional director or designee shall hold the administrative review with the applicant or client; the individual's parent, guardian or representative, as appropriate; the CAP Director, as appropriate; and other individuals deemed necessary by the regional director or designee. (b) Within five working days of the administrative review, the regional director or designee shall make a decision and notify the applicant or client and others using the following procedures: (1) compile a written report of the administrative review outlining the proposes of the administrative review, the participants, the decision that was reached, and the rationale for the decision. (2) send the written report containing the decision to the applicant or client by certified mail with return receipt requested, with a copy being placed in the individual's official case record, and copies being forwarded to the deputy director Chief of Operations and the CAP director; and (3) provide instructions to the applicant or client of steps that may be taken in response to the decision and the deadline for the responses. A form indicating agreement with the decision and re-questing that the appeals hearing be cancelled shall be included for the applicant's or client's signature if the individual agrees with the deci-sion. Authority G.S. 143-545A; 150B-1; 34 C.F.R. 361.48. .0209 RESPONSE TO ADMINISTRATIVE REVIEW DECISION (a) If the applicant or client is satisfied with the decision resulting from the administrative review, the individual shall sign the form described in Rule .0208(l5)(3) of this Section and submit it to the regional director within five days of receipt of the decision. The regional director shall inform the dopufy director Chief of Operations of the request to cancel the appeals hearing immediately and forward the form to the deputy director Chief of Operations who shall submit it to the hearing officer. (b) If the hearing officer does not receive a written request from the applicant or client that the hearing be cancelled, the hearing shall be conducted as scheduled unless negotiations produce a settlement that is satisfactory to both parties prior to the hearing. (c) If the hearing is cancelled, the hearing officer shall send the applicant or client and the division written notice of the cancellation in the same manner as required for notice of the hearing in Rule .0207(d) of this Section. A copy of the notice of cancellation shall be sent to the Client Assis-tance Program. Authority G.S. 143-545A; 150B-1; 34 C.F.R. 361.48. .0210 ADMINISTRATIVE REVIEW BY CHIEF OF OPERATIONS In situations where the issue currently in controversy involves action taken by the central office of the division, the depufy director Chief of Operations or a designee of the deputy' director Chief of Operations shall be responsible for the duties prescribed for the regional director in these rules. Authority G.S. 143-545A; 150B-1; 34 C.F.R. 361.48. .0214 PRE-HEAREMG CONFERENCE (a) Upon notice to all parties, the hearing officer may instruct the parties to participate in a pre-hearing confer-ence. (b) The conference shall be informal in nature. (c) The conference shall be noted in the notice of hearing or in a subsequent notice if a conference is later determined to be necessary by the hearing officer. (d) The purpose of the conference will be to discuss: (1) the possibility of simplification of issues, (2) stipulation of facts or findings, (3) identification of areas where evidence will be needed, (4) Indication of discovery, and discover)' or subpoo nao noodod, and (5) any other matters which will reduce costs or save time or otherwise aid expeditious disposition of the case. 11:13 NORTH CAROLINA REGISTER October 1, 1996 1052 PROPOSED RULES Authority G.S. 143-545A; 150B-1; 34 C.F.R. 361.48. Authority G.S. 143-545A; 150B-1; 34 C.F.R. 361.48. .0218 DISQUALIFICATION OF HEARING OFFICER (a) If at any time the hearing officer believes he or she cannot conduct the appeals hearing in a fair and impartial manner, the hearing officer shall submit to the deput)' director Chief of Operations a written statement indicating why he or she should be disquaUfied from the case. Submis-sion of the statement shall disqualify the hearing officer. The doput)' director Chief of Operations shall inform all parties of the disqualification and the reasons therefor. (b) If a party to the case believes that the hearing officer of record cannot conduct the hearing in a fair and impartial manner, the party shall submit an affidavit to the hearing officer for consideration. The hearing officer shall deter-mine the matter as part of the record in the case, oqso, and this dotormination shall bo oubjoot to judicial revi ew at the oonoluoion of tho proceeding. (c) When a hearing officer is disqualified or it is imprac-ticable for the hearing officer to proceed with the hearing, another hearing officer shall be assigned by the deput>' dire ctor Chief of Operations to proceed with the case. However, if it is shown to the dcput)' director Chief of Operations or the newly assigned hearing officer that substantial prejudice to any party will result from continua-tion of the case then either: (1) the case shall be dismissed without prejudice; or (2) all or part of the case shall be repeated as neces-sary to substantially prevent or substantially remove the prejudice. The deputy director Chief of Operations shall promptly inform all parties of the decision to assign a new hearing officer, that the case has been dismissed without prejudice, or that all or part of the case is to be repeated. Such notification shall include a statement of the rea-sons for the decision. Authority G.S. 143-545A; 150B-1: 34 C.F.R. 361.48. .0222 FAILURE TO APPEAR (a) If the applicant or cUent fails to appear at the hearing and does not have a representative present, the hearing officer shall cancel the hearing. (b) The appUcant or client may submit a written request for rescheduling of the hearing to the deputy director Chief of Operations . The request shall provide an explanation of the individual's failure to app)ear at the hearing or to have a representative present. The deputy director Chief of Operations may instruct the hearing officer to reschedule the hearing upon a showing of good cause by the applicant or client. "Good cause" may include death or incapacitating illness of the party or an immediate family member of the party, the party's representative, or the party's attorney; involvement in an accident that prevents timely notification of the hearing officer; or failure to receive proper notice of the hearing. .0224 DIVISION DIRECTOR'S REVIEW AND FINAL DECISION (a) The division director may review the hearing officer's decision and render the final decision. (b) The division director's decision to review the hearing officer's decision shall be based on the following standards of review: (1) Is the hearing officer's decision arbitrary, capri-cious, an abuse of discretion, or otherwise unrea-sonable? (2) Is the hearing officer's decision supported by substantial evidence, i.e., consistent with facts and applicable federal and state policy? (3) In reaching the decision, has the hearing officer given appropriate and adequate interpretation to such factors as: (A) the federal statute and regulations as they apply to specific issue(s) in question; (B) the state plan as it applies to the specific issue(s) in question; (C) division procedure rules as they apply to the specific issue(s) In question; (D) key portions of conflicting testimony; (E) division options in the delivery of services where such options are permissible under the federal statute; and (F) restrictions in the federal statute with re-gard to such supf)ortive services as mainte-nance and transportation, transportation; fG) approved federal or division policy as it relates to the iooue(D) in quootion. (c) If the division director decides to review the hearing officer's decision, the director shall send the written notification and allow the submission of additional evidence as required by 34 C.F.R. 361.48(c)(2)(iv) and (vii). The written notification shall be given to the applicant or client personally or by certified mail. If given by certified mail, it shall be deemed to have been given on the delivery date appearing on the return receipt. 'd) Upon a determination to review the hearing officer's decision, the division director shall make the fmal decision and provide the written report thereof as required by 34 C.F.R. 361.48(c)(2)(viii) and (ix). The division director shall not overturn or modify a decision, or part of a deci-sion, of an impartial hearing officer that supports the position of the individual except as allowed under P.L. 102-569, Section 102(d)(3)(C). The fmal decision shall be given to the applicant or client personally or by certified mail. If given by certified mail, it shall be deemed to have been given on the delivery date appearing on the return receipt. (e) TTie hearing officer's decision shall be the final decision under the conditions specified in 34 C.F.R. 361.48(c)(2)(v). 1053 NORTH CAROLINA REGISTER October 1, 1996 11:13 PROPOSED RULES (f) The division director shall forward a copy of the final decision, whether issued under (d) or (e) of this Rule, to the doput)' director Chief of Operations , the CAP director, the regional director, and the applicant's or client's representa-tive, as appropriate. A copy shall also be included in the individual's official case record. Authority G.S. 143-545A; 150B-1; P.L. 102-569, s. 102(d); 34 C.F.R. 361.48. mie RECORD (a) The official records of appeals hearings shall be maintained in the central office of the division. (b) Any person wishing to examine a hearing record shall submit a written request to the deputy director Chief of Operations in sufficient time to allo'iv who shall have the record to be prepared for inspection, including the removal of any confidential material. Authority G.S. 143-545A; 150B-1; 34 C.F.R. 361.48. Mil TRANSCRIPTS Any person desiring a transcript of all or part of an appeals hearing shall contact the office of the deputy director. Chief of Operations. A fee to cover the cost of preparing the transcript shall be charged, and the party may be required to pay the fee in advance of receipt of the transcript. The transcript may be edited to remove confi-dential material. Authority G.S. 143-545A; 150B-1; 34 C.F.R. 361.48. SUBCHAPTER 20C - PROGRAM RULES SECTION .0600 - ORDER OF SELECTION FOR SERVICES .0603 PRIORITY CATEGORIES (a) The priority categories for the order of selection for services for eligible individuals are as follows: (1) Category One. Individuals who have the most severe disabilities; (2) Category Two. Individuals with severe disabili-ties; {^ Category Three.—Individuals with a non severe pommnent disability' (ioD) who would bo sopi ' ed by a program dooigned to help th e individual tranoi tion from school to work; (3) (4)Category Few^Three. Individuals with a non-severe and permanent disability dioQbility(i es) who will need multiple vocational rehabilitation ser-vices to attain a suitable employment outcome; and (4) (§)Category Five Four . Any eligible individual who does not qualify for placement in a higher priority category. (b) The Division shall follow the provisions of P.L. 102- 569. Section 101(a)(13)(B) which is incorporated by reference regarding pubhc safety officers when applicable In its order of selection. This incorporation by reference shall automatically include any later amendments to the cited section of the public law as allowed by G.S. 150B-21.6 A copy of the cited section of the public law may be obtained at no cost from the Division. (c) An individual's priority category is determined when eligibility is determined as outlined in Rule .0203 of this Subchapter. Authority G.S. 143-545A; 143-546A; P.L. 102-569, Section 101(a)(5)(A); 34 C.F.R. 361.36. Notice is hereby given in accordance with G.S. 150P-21.2 that the Department of Human Resources, Division of Vocational Rehabilitation Services intends to ameiui rule cited as 10 NCAC 20D .0204. Notice of Rule-making Proceedings was published in the Register on July 15, 1996. Proposed Effective Date: July 1, 1997 A Public Hearing will be conducted at 6:00 p.m. on October 16, 1996 at the Main Conference Room, Division of Vocational Rehabilitation Services, 805 Ruggles Drive, Dorothea Dux Campus, Raleigh, NC. Reason for Proposed Action: Due to a reduction in force of staff within the Division of Vocational Rehabilitation Services directly responsible for administering the standards of client services delivery review process within Community Rehabilitation Programs, the Division must pursue alterna-tive measures to ensure that expected levels of client service delivery standards are met. The acceptance of National standards and accreditation process or the acceptance of Division of Mental Health/Developmental Disabili-ties/ Substance Abuse Services standards and accreditation process will enable the Division to document through third parties that acceptable standards of service delivery are in place at Community Rehabilitation Programs contracting with the Division of Vocational Rehabilitation Services to provide Vocational Evaluation/Vocational Work Adjustment Services and/or Supported Employment Services. This rule change is also in response to requests from Community Rehabilitation Programs that the Division allow them to avoid undergoing National Accreditation if they currently are accredited by the Division of Mental Health/Developmental Disabilities/Substance Abuse Services. The initiation of this rule change will also further enhance State Government's efforts to contract work to private enterprise. Comment Procedures: Comments may be presented orally or in writing at the hearing. Oral statements may be limited at the discretion of the hearing officer. Written comments 11:13 NORTH CAROLINA REGISTER October 1, 1996 1054 PROPOSED RULES max also be submitted until October 31, 1996 to Jackie Stalnaker, Division of Vocational Rehabilitation Services, P.O. Box 26053, Raleigh. NC 27611. To obtain additional information or indicate need for alternative communication format contact Ms. Stalnaker in writing or by phone (919) 733-3364 or TDD (919) 733-5924. In addition, a fiscal note is available upon written request from the same address. Fiscal Note: Tliis Rule does not affect the expenditures or revenues of state or local governmentfinds. This Rule does not have a substantial economic impact of at least five million dollars ($5,000,000) in a 12-month period. SUBCHAPTER 20D - STANDARDS FOR FACILITIES AND PROVIDERS SECTION .0200 - STANDARDS FOR FACILITIES .0204 COMMUNITY REHABILITATION PROGRAM STANDARDS {e^—The Divioion of Vocational Rehabilitation Sorvicca prcscntlv utilizes thoso community sheltered vi orkahops and rehabilitxition faoilitios which have boon dev eloped through cooperative working relationships with th e Division and have demonstratod an ability through agency reviews to provide a comprehensive range of quality rehabilitation oorvice s.—In addition to th e aforementioned conditions of dovoloping and maintaining coope rativ e working re lation ' ships, the Division will require that by January 1. 1982. all Authority G.S. 143-545A: 34 C.F.R. 361.45. community sheltered workshops and rehabilitation facilities providing servic es to cli ents of the Division to bo aocredit ed ^^^^^^^"'"'"'^"^"^^^^^^^^^^^^^~ by th e Commission on Accreditation of Rehabilitation Facilities (CARF). (\e>)—Community sheltered workshops and rehabilitation faciliti es ootabliohod after Jonuap, ' 1. 1980 for the purpose of providing se rvices to clients of the Division must apply for and receive accreditation—from the Commission on Accreditation of Rehabilitation Facilities (CARF) no later than the end of the fourth year of operation.—TTio establish ment dat e for purposes of this Rule ^ ill be established in writing to the community she l tered workshop or rehabilita Proposed Effective Date: Aprd 1, 1997 tion facility by the Director of the Division of V^ocational is identified and the program is reimbursed based on the number of hours of actual ser-vices provided. (2) "Fixed-level annual reimbursement process" means a funding method in which the Division reimburses the program for expenditures monthly at a rate of one-twelfth (1/12) of a negotiated annual budget. (c) Community rehabilitation programs that apply for a fixed-level annual reimbursement process shall be accredited by the Commission on Accreditation of Rehabilitation Facilities (CARF), the Accreditation Council, or the International Center for Clubhouse Development. (d) Community rehabilitation programs providing evaluation, adiustment. or supported employment services which are not accredited by any of the accreditation bodies specified m Paragraph (c) of this Rule may apply for fee for service funding i_f they are accredited by the Division of Mental Health. Developmental Disabilities, and Substance Abuse Services. (e) Any program accredited by one of the specified accrediting bodies shall submit to the Division a copy of its accreditation report within 30 days after the program receives its report each time it is surveyed by the accrediting body. The program shall notify the Division of any action taken that affects its accreditation status, either temporarily of permanently. The Division may conduct annual valida-tion surveys to assure compliance. TITLE ISA - DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES Notice IS hereby given in accordance with G.S. 150B-21.2 that the EHNR - Commission for Health Services intends to amend rule cited as 15A NCAC 13B .1627. Notice of Rule-making Proceedings was published in the Register on July 15. 1996. Rehabilitation Servic es . (e) — As of Januar>' 1. 1983. except for those exceptions noted in .0207(b) of thi s Rule, a community workshop or rehabilitation facility must be accredited by the Commission on Accreditation of Rehabilitation Facilities in order to provide servic es to cli e nts of the Division. (a) The Division shall utilize only those community rehabilitation programs that are accredited according to the provisions of this Rule. (b) The following definitions apply to the terms as used in this Rule: ( 1) "Fee for service funding" means an hourly rate, fee for service method of funding in A Public Hearing will be conducted at 6:00 p.m. on October 16, 1996 at the Ground Floor Hearing Room, Archdale Building, 512 N. Salisbury Street, Raleigh. NC. Reason for Proposed Action: Tlie purpose of this Rule amendment is to require owners and operators of unlined landfills to provide a more environmentally sound cap system than is currently required for unlined landfills at closure. Further the amendment avoids fiscal impact to the regulated comirumity by providing that the increased cost of a superior cap system may be covered by appropriate delay of that landfill's closure. which an hourly cost of providing the service Comment Procedures: All persons interested in these 1055 NORTH CAROLINA REGISTER October 1, 1996 11:13 PROPOSED RULES matters are invited to attend the public hearing. Written comments may be presented at the public hearing or submit-ted to Ms. Joan Troy, Division of Waste Management, Solid Waste Section, 401 Oberlin Road, Suite 150, Raleigh, NC 27605. All written comments must be received by October 31, 1996. Persons who wish to speak at the hearing should contact Ms. Troy at (919) 733-0692 (extension 271). Persons who call in advance of the hearing will be given priority on the speaker 's list. Oral presentation lengths may be limited depending on the number ofpeople that wish to speak at the public hearing. Only persons who have made comments at a public hearing or who have submitted written comments will be allowed to speak at the Commission meeting. Comments made at the Commission meeting must either clarify previous comments or proposed changes from staff pursuant to comments made during the public hearing process. IT IS VERY IMPORTANT THAT ALL INTERESTED AND POTENTIALLY AFFECTED PERSONS, GROUPS, BUSINESSES. ASSOCIATIONS, INSTITUTIONS OR AGENCIES MAKE THEIR VIEWS AND OPINIONS KNOWN TO THE COMMISSION FOR HEALTH SER-VICES THROUGH THE PUBUC HEARING AND COMMENT PROCESS, WHETHER THEY SUPPORT OR OPPOSE ANY OR ALL PROVISIONS OF THE PRO-POSED RULES. THE COMMISSION MAY MAKE CHANGES TO THE RULES AT THE COMMISSION MEETING IF THE CHANGES COMPLY WITH G.S. 150B-2L2(f). Fiscal Note: This Rule does not affect the expenditures or revenues of state or local governmentfunds. This Rule does not have a substantial economic impact of at least five million dollars ($5,000,000) in a 12-month period. CHAPTER 13 - SOLID WASTE MANAGEMENT SUBCHAPTER 13B - SOLID WASTE MANAGEMENT SECTION .1600 - REQUIREMENTS FOR MUNICIPAL SOLID WASTE LANDFILL FACILmES (MS\\'LFs) .1627 CLOSURE AND POST-CLOSURE REQUIREMENTS FOR MSWLF FACILITIES (a) Purpose. This Rule establishes criteria for the closure of all MSWLF units and subsequent requirements for post-closure compliance. The owner or operator is required to develop specific plans for the MSWLF facility under Rule .1629. .1629 of this Section. (b) Scope. (1) Closure. Standards are established for the sched-uling and documenting closure of all MSWLF units, and designing the cap system. Construction requirements for the cap system incorporate specific requirements from Rule .1624 of this Section. (2) Post-closure. Standards are established for the monitoring and maintenance of the MSWLF unit(s) following closure, (c) Closure criteria. (1) New and existing MSWLF units and lateral expansions shall install a cap system that is de-signed to minimize infiltration and erosion. The cap system shall be designed and constructed to: (A) Have a permeability less than or equal to the permeabiUty of any base liner system or the in-situ subsoils underlaying the landfill, or the permeability specified for the fmal cover in the effective permit, or a perme-ability no greater than 1 x 10' cm/sec, whichever is less; (B) Minimize infiltration through the closed MSWLF by the use of a low-permeability barrier that contains a minimum 18 inches of earthen material; and (C) Minimize erosion of the cap system and protect the low-permeability barrier from root penetration by use of an erosion layer that contains a minimum of six inches of earthen material that is capable of sustain-ing native plant growth. (2) The Division may approve an alternative cap system if the owner or operator can adequately demonstrate the following: (A) The alternative cap system will achieve an equivalent or greater reduction in infiltra-tion as the low-permeability barrier speci-fied in Subparagraph (1) of this Paragraph; and (B) The erosion layer will provide equivalent or improved protection as the erosion layer specified in Subparagraph (3) of this Para-graph. (3) Construction of the cap system for all MSWLF units shall conform to the requirements set forth in Subparagraphs (b)(8), fb)(9) and (b)(15) of Rule .1624 and the following requirements: (A) Post-settlement surface slopes shall be a minimum of five percent and a maximum of 25 percent; and (B) A gas venting or collection system shall be installed below the low-permeability barrier to minimize pressures exerted on the bar-rier. (4) Prior to beginning closure of each MSWLF unit as specified in Subparagraph (5) of this Para-graph, an owner or operator shall notify the Division that a notice of the intent to close the unit has been placed in the operating record. (5) The owner or operator shall begin closure activi-ties of each MSWLF unit no later than 30 days 11:13 NORTH CAROLINA REGISTER October 1, 1996 1056 PROPOSED RULES after the date on which the MSWLF unit receives the known final receipt of wastes or, if the MSWLF unit has remaining capacity and there is a reasonable Ukelihood that the MSWLF unit will receive additional wastes, no later than one year after the most recent receipt of wastes. Exten-sions beyond the one-year deadline for beginning closure may be granted by the Division if the owner or operator demonstrates that the MSWLF unit has the capacity to receive additional wastes and the owner or operator has taken and will continue to take all steps necessary to prevent tiireats to human health and the environment from the unclosed MSWLF unit. (6) The owner or operator of all MSWLF units shall complete closure activities of each MSWLF unit in accordance with the closure plan within 180 days following the beginning of closure as speci-fied in Subparagraph (5) of this Paragraph. Extensions of the closure period may be granted by the Division if the owner or operator demon-strates that closure will, of necessity, take longer than 180 days and they have taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed MSWLF unit. (7) Following closure of each MSWLF unit, the owner or operator shall notify the Division that a certification, signed by the project engineer verifying that closure has been completed in accordance with the closure plan, has been placed in the operating record. (8) Recordation. (A) Following closure of all MSWLF units, the owner or operator shall record a notation on the deed to the landfill facility property, or some other instrument that is normally examined during tide search, and notify the Division that the notation has been re-corded and a copy has been placed in the operating record. (B) The notation on the deed shall in perpetuity notify any potential purchaser of the prop-erty that: (i) The land has been used as a landfill facility; and (ii) Its use IS restricted under the closure plan approved by the Division. (9) The owner or operator may request permission from the Division to remove the notation from the deed if all wastes are removed from the facility. (10) Existing MSWLF units. TTie following criteria shall apply to existing MSWLF units not designed and constructed with a base liner system permitted by the Division. (A) The existing—MSWLF unit shall—ccoso roociving solid waste on or before January' 1, 1998. The permittee of a MSWLF unit receiving municipal solid waste on the effective date of this Rule shall submit an amended transition plan by April \^ 1997. TTie amended transition plan shall include the following: (i) A cap system designed in accordance with Rule .1624(b)f8), (9) and (15) of this Section and the following requirements: (I) On slopes less than or equal to 8 percent, the cap system shall consist of a composite liner with a geomembrane liner and either a compacted clay layer of j_8 inches of soil with a permeabiUty no greater than i X 10 - cm/sec or a geosynthetic clay liner: (II) On slopes greater than 8 per-cent, the cap system shall consist of either a compacted clay layer of 18 inches of soil with a permeability of 1 x 10; - cm/sec or a geosynthetic clay liner or a geomembrane liner; and (irn Other components of the cap system shall be required as necessary to protect the liner system, sustain vegetation, promote drainage, minimize soil loss due to erosion and provide slope stability, (ii) An analysis of the costs of the pro-posed design in comparison to the cap design specified in Subparagraph (c)(1) of this Paragraph; (iii) The current costs of operation of the MSWLF unit on a tonnage basis; and (iv) A proposed closure date based on the amount of time after January \^ 1998, not to exceed five years, nec-essary to fund the difference be-tween the proposed design and the cap design specified in Subparagraph (c)(1) of this Paragraph. The pro-posed closure date shall be deter-mined by the following calculations: Ol SACT - CPTO= RG/T where SACT is the state average cost per ton for disposal in a lined MSWLF r$30.4n; CPTO is the cost per ton to operate the MSWLF unit, and RG/T is the revenue to be 1057 NORTH CAROLINA REGISTER October 1, 1996 11:13 PROPOSED RULES ) OD am OYl generated per ton for funding the proposed design. RG/T X T/DD = RG/D where RG/T is revenue gen-erated per ton; T/DD is tons per day disposed at the MSWLF unit, and RG/D is revenue generated per day. CPD ; CI 627 = RN where CPD is the cost of the pro-posed design: C1627 is the cost of the design under 1627(c)(n. and RN is reve-nue needed. RN £B1 RG/D = D98 where RN is revenue needed: RG/D is revenue generated per day and D98 is the days past Jan-uary 1, 1998. If an amended transition plan is approved but revenues that are projected to be gener-ated within five years of January \^ 1998 do not offset the costs of the proposed design, a municipal solid waste landfill unit shall stop receiving municipal solid waste on or before January \^ 1998, and install a cap system that, at a minimum, meets the requirements of Subparagraph (c)(n of this Rule, unless the permittee agrees to fund the remaining costs of the proposed design of the amended transition plan. The cap system designed under Subpart (c)(10)(A)(i) of this Paragraph shall cover all areas of contiguous waste of the existing MSWLF unit, and contiguous areas where waste was placed prior to October 9_^ 1991. An amended transition plan submitted under this Section shall be subject to the permitting and public information proce-dures of Rule .1603(c) of this Section. fB)The Division shall schedule closure of the existing MSWLF unit based on its review of the applioation—oubmitted in accordance with Paragraph (d) of Rule .1617 and roviowod—in accordanco—with Subparagraph (d) of Rule .1603. amended transition plan and in accordance with Part (c)(10)(A) of this Paragraph. Final contours for the cxiating MSWLF unit ohall be consistent with the capacity requirement!] neoeooar>' to close the unit m accordanco with the requirements of this Subparagraph. (d) Post-closure criteria. (1) Following closure of each MSWLF unit, the owner or operator shall conduct p)ost-closure care. Post-closure care shall be conducted for 30 years. £C1 £m mi (€)- (2) (3) except as provided under Subparagraph (2) of this Paragraph, and consist of at least the following: (A) Maintaining the integrity and effectiveness of any cap system, including making re-pairs to the cover as necessary to correct the effects of settlement, subsidence, ero-sion, or other events, and preventing run-on and run-off from eroding or other-wise damaging the cap system; (B) Maintaining and operating the leachate collection system in accordance with the requirements in Rules .1624 and . 1626. . 1626 of this Section. The Division may allow the owner or operator to stop manag-ing leachate if the owner or operator dem-onstrates that leachate no longer poses a threat to human health and the environ-ment; (C) Monitoring the ground water and surface water in accordance with the requirements of Rules .1631 through .1637 of this Sec-tion and maintaining the ground-water monitoring system, if appUcable; and moni-toring the surface water in accordance with the requirements of Rule .0602; .0602 of this Section; and (D) Maintaining and operating the gas monitor-ing system in accordance with the require-ments of Rule . 1626 of this Section. The length of the post-closure care period may be: (A) Decreased by the Division if the owner or operator demonstrates that the reduced period is sufficient to protect human health and the envirormient and this demonstration is approved by the Division; or (B) Increased by the Division if the Division determines that the lengthened period is necessary to protect human health and the environment. Following completion of the post-closure care period for each MSWLF unit, the owner or operator shall notify the Division that a certifica-tion, signed by a registered professional engineer, verifying that post-closure care has been com-pleted in accordance with the post-closure plan, has been placed in the operating record. Authority G.S. 130A-294. TITLE 26 - OFFICE OF ADMINISTRATIVE HEARINGS Notice is hereby given in accordance with G.S. 150B-21.2 that the Office of Administrative Hearings intends to adopt rules cited as 26 NCAC 2C .0111, .0307, amend rules .0102-. 0103, .0401, and .0502. Notice of 11:13 NORTH CAROLINA REGISTER October 1, 1996 1058 PROPOSED RULES Rule-making Proceedings was published in the Register on August 1. 1996. Proposed Effective Date: April 1. 1997 A Public Hearing will be conducted at 10:00 a.m. on November 1. 1996 at the Lee House, Hearing Room ffl , 422 North Blount Street, Raleigh, NC. Reason for Proposed Action: To correct inconsistencies with the rules and to make technical corrections identified after the April 1, 1996 effective date. To adopt a rule that sets out the criteria to waive a publication submission requirement contained in an OAH rule. To adopt a rule that establishes standards and a fee for agencies who request publication of discretionary notices in the Register under G.S. 150B-21. 17(a)(6). To adopt a definition to interpret a "recent act " and "recent change " cis- tlwse terms are in G. S. 150B-21. 1(a)(2) and (a)(3) in the temporary rule rexie^v procedure under G.S. 150B-21.1. Comment Procedures: Comments and statements, both written and oral, may be presented at the hearing. Any other written comments may be directed to: Anna Baird, Rule-making Coordinator. Office of Admifiistrative Hearings, PO Drawer 27447, Raleigh, NC 27611-7447. Comments must be received by 5:00 p. m. on November 1 , 1996. Fiscal Note: These Rules do not affect the expenditures or revenues of state or local governmentfunds. These Rules do not have a substantial economic impact of at least five million dollars ($5,000,000) in a 12-month period. CHAPTER 2 - RULES DIVISION SUBCHAPTER 2C - SUBMISSION PROCEDURES FOR RULES AND OTHER DOCUMENTS TO BE PUBLISHED IN THE NORTH CAROLINA REGISTER AND THE NORTH CAROLINA ADMINISTRATIVE CODE SECTION .0100 - GENERAL .0102 DEFINITIONS The following definitions shall apply throughout this Chapter and to all forms prescribed pursuant to this Chapter unless the context indicates otherwise: "Action" means the adoption, amendment, or repeal of a rule. "Adoption" means a new rule with a new rule number. "Adoption by agency" means the date that an agency takes final action on a rule. "Amendment" means an existing rule with a deletion, addition or other change to that existing rule. (5) "Citation" means a reference to a rule by Title, (1) (2) (3) (4) Chapter or Subchapter, and Section or Rule number. (6) "Code" means the North Carolina Administrative Code. (7) "Commission" means the Rules Review Commis-sion. (8) "Form" means an original form provided by OAH; a computer generated form from a diskette provided by OAH; a clear legible photocopy of an original OAH form; or an agency generated form identical to the OAH form. (9) "OAH" means the Codifier of Rules at the Office of Administrative Hearings. (10) "Original" means a printed copy of the document, not a photocopy. (11) "Recent Act" or "Recent change" as used in G.S. 150B-21. 1(a)(2) and (a)(3) means an act or change that was effective no more than 180 days before the submission date of the temporary rule to OAH. (12) (4+) "Register" means the North Carolina Regis-ter. (13) f44) "Repeal" means the deletion of the entire text of a rule. When a rule is repealed, that rule number shall not be used again. The number, rule name, and final history note shall remain in the Code permanently for publication and refer-ence purposes. Authority G.S. 150B-21.17: 150B-21.18. .0103 ORIGINAL AND DUPLICATE COPY (a) The agency shall submit an original and one copy of any document and form for publication in the Register or Code. (b) The agency shall include an additional copy of the rule and a copy of the fiscal note and attachments with any permanent rule that is submitted to the Commission. (c) The original and form shall each be permanently marked as the original. Note: Rules Review Commission requests that documents be submitted in the following order: (1) the original submission form; the copy or copies of the submission form; the original of the rule; the copy, highlighted if required by Rule .0405 of this Subchapter; the agency return copy of the rule, if any; the copy of the fiscal note and attachments; f&) the remaining copy for RRC. (2) (3) (4) (5) 16) m Authority G.S. 150B-21.17; 150B-21.18: 150B-21.19. .0111 WAIVER OAH may waive any rule in this Subchapter that is not statutorily required if an agency submits a written request. Factors OAH shall use in determining whether to grant the 1059 NORTH CAROLINA REGISTER October 1, 1996 11:13 PROPOSED RULES waiver are: (1) degree of disruption to OAH publication and work schedule; (2) cost to OAH; (3) degree of benefit to the public; (4) whether the agency had control over the circum-stances that required the requested waiver; (5) notice to and opposition by the public; (6) need for the waiver; and (7) previous requests for waivers submitted from the agency. (b) the body of the rule (Rule .0405 of this Subchapter); (c) the history note (Rule .0406 of this Sub-chapter). (3) A return copy, if desired (Rule .0104 of this Subchapter). (4) An original Notice of Text or Notice of Text and Hearing form and copy if publication in the Register shall serve as Notice of Text. Authority G.S. 150B-21.19. Authority G.S. 150B-21.19. SECTION .0300 - THE NORTH CAROLINA REGISTER .0307 OTHER NOTICES FOR PUBLICATION (a) OAH may publish any document or notice that is not statutorily required if an agency submits a written request. Factors OAH shall use in determining whether to grant the request are: (1) degree of disruption to OAH publication and work schedule; and (2) degree of benefit to the public. (b) OAH shall invoice the agency for the publication cost of thirty dollars ($30.00) per published page. Authority G.S. 1508-21.17(6); 150B-19(5)(a): 1508-21.25. SECTION .0400 - NORTH CAROLINA ADMINISTRATIVE CODE .0401 SCOPE (a) The rules in this Section set forth the requirements for submitting rules for inclusion in the Code. The agency shall also comply with the requirements in Sections .0100 - .0200 of this Subchapter. (b) These Rules apply to agencies subject to G.S. I SOB as well as those agencies subject to G.S. 150B-21.2Ua) and Authority G.S. 1508-21.17; 1508-21.18; 1508-21.19. SECTION .0500 - TEMPORARY RULES .0502 PUBLICATION OF A TEMPORARY RULE The agency shall submit a temporary rule for review by OAH and publication in the Code with the following: (1) An original Temporary Rule Certification form and copy (Rule .0503 of this Section). (2) An original and copies of the temporary rule (Rule .0103 of this Subchapter) prepared in accordance with Rule .0108 of this Subchapter, containing: (a) an introductory statement (Rule .0404 of this Subchapter); 11:13 NORTH CAROLINA REGISTER October 1, 1996 1060 TEMPORARY RULES The Codifier ofRules 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 pre\'iously published by the agency. TITLE 10 DEPARTMENT OF HUMAN RESOURCES Rule-making Agency: DHR - Division of Medical Assis-tance Rule Citation: 10 NCAC 26H .0602 Effective Date: October 4, 1996 Notice of Rule-making Proceedings was published in the Register on August 1, 1996. Findings Reviewed and approved by Beecher R. Gray Authority for the rule-making: G.S. 108A-25(b): 108A- 54; lOSA-55: S.L. 1985, c. 479. s. 86; 42 C.F.R. 440.70 Reason for Proposed Action: This action is based on a home health study conducted by the Division of Medical Assistance and results in the home health prospective rates being more nearly aligned to average industry cost. The proposed change will result in annual savings of approxi-mately 1. 7 million dollars to the Medicaid program. A Public Hearing will be conducted at 1:30 p.m. on October 31, 1996 at the Division of Medical Assistance, 1985 Umstead Dr. - Kirby Bldg. - Room 132, Raleigh, NC 27603. Comment Procedures: Written comments concerning this rule-making action must be submitted by October 31, 1996 to Portia Rochelle, APA Coordinator, Division of Medical Assistance, 1985 Umstead Drive . Raleigh, NC 27603. Fiscal Note: This Rule qffeas the expenditures or revenues of local governmentfunds. This Rule affects the expenditure or distribution of State funds subject to the Executive Budget Act, Article 1 of Chapter 143. This Rule does not have a substantial economic impact of at least five million dollars ($5,000,000) in a 12-month period. CHAPTER 26 - MEDICAL ASSISTANCE SUBCHAPTER 26H - REIMBURSEMENT PLANS SECTION .0600 - HOME HEALTH PROSPECTIVE REIMBURSEMENT .0602 REIMBURSEMENT METHODS (a) A maximum rate per visit is established annually for each of the following services: (1) Registered or Licensed Practical Nursing Visit; (2) Physical Therapy Visit; (3) Speech Therapy Visit; (4) Occupational Tlierapy Visit; (5) Home Health Aide Visit. (b) The maximum rates for the services identified in Sootion Paragraph (a) above of this Rule are computed and applied as follows: (1) Payment of claims for visits is based on the lower of the billed customary charges or the maximum rate of the particular service. Governmental providers with nominal charges may bill at cost. For this purpose, a charge that is less than 50 percent of cost is considered a nominal charge. For such governmental providers, the payment amount is equal to the lower of the cost as billed or the applicable maximum rate. (2) Tho maximum mtes are derived from a base yoar s e l e ct ed by the stat e .—The base year maximum rates aro set at 90 percent of the median chargo per visit for each scr- ioo. Maximum per visit rates effective July \^ 1996, for Registered or Licensed Practical Nursing, Physical Therapy, Speech Therapy, Occupational Therapy and Home Health Aide shall be equal to the rates in effect on July 1, 1995. (3) To compute the annual maximum rates, th e base year median rate s per vi s it are adjus ted as do scribed in Sections ( 4 ), (5) and (6). rates effective each July \ subsequent to July j_^ 1996, the maximum rates per visit are adjusted as described in Subparagraphs (4), (5), and (6) of this Para-graphs (4) Base Each year maximum rates are adjusted by an annual cost index factor. The cost mdex has a labor component with a relative weight of 75 piercent and a non-labor component with a relative weight of 25 percent. The relative weights are derived from the Medicare Home Health Agency Input Price Index and — adopted—by — referonoo pursuant to N.C.G.S. 150B l 'Ha)(2)(e) as spcoi fted — m—15QB 21.6. published in the Federal Register dated May 30. 1986. Labor cost changes are measured by the annual percentage change in the average hourly earnings of North Carolina service wages per worker. Non-labor cost changes are measured by the annual percent-age change in the GNP Implicit Price Deflator. (5) The annual cost index equals the sum of the products of multiplying the forecasted labor cost percentage change by 75 percent and multiplying 1061 NORTH CAROLINA REGISTER October 1, 1996 11:13 TEMPORARY RULES the forecasted non-labor cost percentage change by 25 percent. The baso )'ear July l^ 1996 effective rates are multiplied by the cost index factor for each year subsequent from the baso year ug to the year in which the rates apply. (6) Other adjustments may be necessary for home health services to comply with federal or state laws or rules. (c) Medical supplies except those related to provision and use of Durable Medical Equipment are reimbursed at the lower of a provider's billed customary charges or a maxi-mum amount determined for each supply item. Fees will be established based on average, reasonable charges if a Medicare allowable amount cannot be obtained for a particular supply item. Estimates of reasonable cost will be used if a Medicare allowable amount cannot be obtained for a particular supply or equipment item. The Medicare allowable amounts will be those amounts available to the Division of Medical Assistance as of July 1 of each year. (d) These changes to the Payment for Services Prospec-tive Reimbursement Plan for Home Health Agencies will become effective when the Health Care Financing Adminis-tration, US Department Health and Human Services. approves amendment submitted to HCFA by the Director of the Division of Medical Assistance on or about July J^ 1996 as >yMA96-03 wherein the Director proposes amendments of the State Plan to amend Payment for Services ; Prospective Reimbursement Plan for Home Health Agencies. History Note: Authority G.S. 108A-25(b): 108A-54: 108A- 55: S.L. 1985, C.479, s. 86; 42 C.F.R. 440. 70; Ejf. October 1, 1987, Amended Ejf. October 1, 1992; May 1, 1990; Temporary Amendment Ejf. October 4, 1996. TITLE 25 - OFFICE OF STATE PERSONNEL Rule-making Agency: State Personnel Commission Rule Citation: 25 NCAC ID .2501, .2503 - .2505. .2507 - .2509, .2511, .2513, .2514, .2516 Effective Date: September 1 , 1996 Findings Reviewed by Beecher R. Gray: Approved Authority for the rule-making: G.S. 126-4. 126-7, S.L. 1995. c. 507, s. 7. 14 Reason for Proposed Action: These rules are proposed to be adopted and amended in order to provide clarification to the state agencies in administering the legislative salary increases enacted by the General Assembly in HB 53 in the 1995 Session. Comment Procedures: Written or oral comments may be submitted to: Ms. Patsy Smith Morgan, 116 West Jones Street, Raleigh, NC 27603. (919) 733-7112 within 60 days after the date of this publication in the Register. CHAPTER 1 - OFFICE OF STATE PERSONNEL SUBCHAPTER ID - COMPENSATION SECTION .2500 - COMPREHENSIVE COMPENSATION SYSTEM .2501 CAREER GROWTH RECOGNITION AWARD Career Growth Recognition Award is an annual salary increase awarded to an employee whose final overall summary rating is at or above level three of the rating scale and who does not have an unresolved final written warning disciplinap' procedure, that involvoo poroonal conduct. This is the primary method by which an employee progresses through the salary range. In the event that an employee does not receive a cost-of-living increase, the salary may fall below the minimum of the salary range. This factor alone shall not be justification for any type of salary adjustment. History Note: Authority G.S. 126-7; Eff. June 1, 1994; Temporary Amendment Ejf. September 1 , 1996 .2503 EMPLOYEES ELIGIBLE FOR CAREER GROWTH RECOGNITION AWARD (a) An employee having a permanent or time- limited full-time or part-time (half-time or more) appointment whose salary is below the maximum of the range and whose overall summary rating is at or above level three after completing a work cycle based on a work plan shall receive a career growth recognition award unless the employee has an unresolved final written warning disciplinary procedure that involveo personal conduct. For an employee who otherwise qualifies for a career growth recognition award, a final written warning is the only justification for not granting this increase. (b) An employee who has been denied the career growth recognition award because of an unresolved final written warning disciplinary procedure, shall receive the award on a current basis at the time that final written warning disci-plinary procedure is resolved. (See 25 NCAC ID .2514 of this Section) For purpose of calculating the career growth recognition award, only the most recently awarded increase shall be utilized (i.e., the last increase that was funded). (c) An employee having a probationary or trainee appointment on the date increases are effective is not eligible for a career growth recognition award. Tliese employees become eligible when increases are effective for the next cycle after: (1) receiving a permanent appointment, (2) completing a work cycle, and 11:13 NORTH CAROLINA REGISTER October 1, 1996 1062 TEMPORARY RULES (3) receiving a summary rating that is at or above level three. (d) An employee who is on leave without pay on the date career growth recognition awards are granted shall receive the increase on the date of reinstatement if the work cycle has been completed and a summary rating given. If the work cycle and summary rating have not been completed, the employee shall receive the career growth recognition award at the time when both are completed. (e) An employee who separates from State service prior to the effective date career growth increases are effective is not eligible for the increase. History Note: Authority G.S. 126-7: Ejf. June 1, 1994; Temporary Amendment Ejf. September 1 , 1996. .2504 EFFECTIVE DATE OF CAREER GROWTH RECOGNITION AWARD Career growth recognition awards shall be effective on the first day of July unless otherwise specified by the General Assembly or because they are delayed due to leave without pay or an unresolved final written warning disciplinary procedure . History Note: Authority G.S. 126-7; Ejf. June 1, 1994; Temporary Amendment Ejf. September 1, 1996. .2505 COST-OF-LIVEVG ADJUSTMENT Cost-of-Living Adjustment is a general salary increase in response to inflation and labor market factors awarded to an employee whose final overall summary rating is at or above level two of the rating scale, and who does not have an unresolved final written warning, disciplinary procedure. History Note: Authority G.S. 126-7; Ejf. June 1, 1994; Temporary Amendment Ejf. September 1, .2507 1996. EMPLOYEES ELIGIBLE FOR COST-OF-LIVING ADJUSTMENT (a) An employee having a permanent, time-limited probationary, or trainee full-time or part-time (half timo or more) appointment whose overall summary rating is at or above level two, or a rating based on Paragraph (h) of this Rule that is not unsatisfactory, except employees who have an unresolved final written warning disciplinary procedure involving personal conduct on the date that increases are given is eligible for a cost-of-living increase. Tliis applies to all employees regardless of where their salary is in the salary range, including those above the maximum. (b) For the purpose of granting the cost-of-living adjust-ment to employees who have not completed a full perfor-mance management cycle and received an overall summary rating, the following shall apply: (1) Prior to July 1 , oach Each employee's perfor-mance shall be reviewed. (2) If the review indicates unsatisfactory performance, the employee shall not receive the cost-of-living adjustment until the performance level is above the unsatisfactory level. The actual results of the review shall be documented with the employee. (3) If the review indicates that the performance is above unsatisfactory, the employee shall be granted the cost-of-living adjustment. (4) If the supervisor feels that the employee has not worked long enough for a determination of per-formance level to be made, a review shall be made each month for the purpose of determining whether the performance is above unsatisfactory and the cost-of-living adjustment should be granted. (5) If the cost-of-living adjustment has not been granted during the probationary period, it shall be granted at the time the employee is given a per-manent appointment since the employee's perfor-mance must be satisfactory to move from a probationary to a permanent appointment. (c) An employee who has been denied the cost-of-living adjustment because of an unresolved final written warning disciplinary procedure involving personal conduct shall receive the adjustment on a current basis when that final written warning disciplinary procedure is resolved. (See 25 NCAC ID .2514 of this Section) (d) An employee who is on leave without pay on the date a cost-of-living adjustment is effective shall receive the increase on the date of reinstatement if the employee's performance has been determined to be above the unsatisfac-tory level, or at such time as the employee's performance is determined to be above the unsatisfactory level. History Note: Authority G.S. 126-7; Ejf. June 1, 1994; Temporary Amendment Ejf. September 1 , 1996. .2508 EFFECTIVE DATE OF COST-OF-LIVING ADJUSTMENT Cost-of-living adjustments shall be effective on the first day of July unless otherwise specified by the General Assembly or because they have been delayed due to leave without pay or an unresolved final written warning, disci-plinary procedure. History Note: Authority G.S. 126-7; Eff. June 1, 1994; Temporary Amendment Eff. September 1 , 1996. .2509 PERFORMANCE BONUS Performance Bonus is a lump sum award to an employee whose final overall summary rating is at or above level four of the rating scale and who does not have an unresolved final written warning, disciplinary procedure. 1063 NORTH CAROLINA REGISTER October 1, 1996 11:13 TEMPORARY RULES History Note: Authority G.S. 126-7; Eff. June I, 1994; Temporary Amendment Eff. September 1, 1996. .2511 EMPLOYEES ELIGIBLE FOR PERFORMANCE BONUS (a) An employee having a permanent or time-limited full-time or part-time (half-time or more) appointment whose overall summary rating is at or above level four after completing a work cycle based on a work plan shall be eligible to receive a performance bonus unless the employee has an unresolved final written warning that involvoa porsonal conduct, disciplinary procedure. (b) An employee who has been denied a performance bonus because of an unresolved final written warning disciplinary procedure involving fx>rsonal conduct shall not be eligible for a performance bonus during the current cycle. The employee will be eligible for a bonus in the next cycle based on the porformonco evaluation overall summary rating. (c) An employee having a probationary or trainee appointment on the date bonuses are effective is not eligible for a performance bonus. These employees become eligible when increases are effective for the next cycle after: (1) receiving a permanent appointment, (2) completing a work cycle, and (3) receiving a summary rating at or above level four. (d) An employee who is on leave without pay on the date performance bonuses are effective shall receive the bonus effective on the date of reinstatement if the work cycle has been completed and an overall summaiy rating given. If the work cycle and overall summary rating have not been completed, the employee shall receive the bonus at the time when both have been completed. (e) An employee whose salary is at the maximum of the salary range is eligible for a performance bonus. (f) An employee whose salary is above the maximum of the salary range is eligible for a performance bonus only to the extent that the base salary paid the employee plus the performance bonus allocated according to the employee's performance rating does not exceed the maximum salary paid on the adopted pay schedule for the applicable pay grade plus the allocated performance bonus calculated on the maximum salary on the pay schedule. This performance bonus shall be calculated as follows: Line Item Calculation 1 Maximum of salary range -1 % bonus due according to performance rating 3 Dollar amount of performance bonus [Line 1 x Line 2] 4 Maximum annual salary allowed [Line 1 -1- Line 3] 5 Salary of employee paid above maximum of range 6 Maximum performance bonus for employee paid above the range [Line 4 - Line 5] If Line 5 is greater than Line 4, the employee cannot receive a bonus. (g) An employee who separates from State service prior to the effective date performance bonuses are effective is not eligible to receive the increase. History Note: Authority G.S. 126-7; Eff. June 1. 1994; Temporary Amendment Eff. September 1, 1996. .2513 BASES FOR AWARDING INCREASES (a) Each agency shall have an operative Performance Management System which has been approved by the Office of State Persormel using the North Carolina Performance Rating Scale. The complete requirements for an operative performance management system are defined in 25 NCAC 10 - Performance Management System. (b) Eligibility for increases will be based on the most recent work cycle completed and overall summary rating received during the previous 12-month period. (c) The performance management system of each agency shall ensure that salary increases are distributed fairly, consistent with internal equity and with the Performance Management System. The State Personnel Director shall 11:13 NORTH CAROLINA REGISTER October 1, 1996 1064 TEMPORARY RULES rescind any career growth recognition award or performance bonus that does not meet the intent of the provisions of the performance management rules and require the originating agency to reconsider or justify the increase. An increase or bonus does not meet the intent of the provisions of the performance management rules in the event that increases or bonuses are distributed: (1) in an arbitrary or capricious maimer; (2) in a manner that violates laws prohibiting discrim-ination; or (3) to managers or superv'isors whose failure to comply with the performance management rules resulted in the loss of an increase or a bonus by employees under their supervision. (d) No agency shall set limits so as to preclude an eligible employee from receiving a career growth recogni-tion award, cost-of-living adjustment, or performance bonus: or to initiate written disciplinary procedures for the purpose of precluding an eligible employee from receiving a cost-of-living adjustment. (e) When a work cycle has been completed but an overall summary rating has not been given, the State Personnel Director has the authority to order the agency to give an accurate rating. If the agency fails to give a rating, the employee shall be given a rating of no less than level 3^ Once a rating is given for work performed during a cycle for which the General Assembly has allocated funds for an increase under the Comprehensive Compensation System, the employee shall, if allowed by law and the Administrative Code, be ehgible for the increase retroactive to the date that other increases were awarded. (D Final Disciplinary Procedure Defined: For purposes of eligibility for salary increases, an employee in final disciplinary procedure is an employee whose personnel file includes: (1) two active disciplinary actions of any type; or (2) a suspension without pay or demotion. History Note: Filed as a Temporary Amendment Ejf. July 1, 1994for a period of 180 days or until the permanent rule becomes effective, whichever is sooner; Authority G.S. 126-4; 126-7; Ejf. June 1, 1994; Temporary Amendment