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
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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
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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