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NORTH CAROLINA REGISTER Volume 19, Issue 06 Pages 585 - 655 September 15, 2004 This issue contains documents officially filed through August 24, 2004. Office of Administrative Hearings Rules Division 424 North Blount Street (27601) 6714 Mail Service Center Raleigh, NC 27699-6714 (919) 733-2678 FAX (919) 733-3462 Julian Mann III, Director Camille Winston, Deputy Director Molly Masich, Director of APA Services Linda Dupree, Editorial Assistant Dana Sholes, Editorial Assistant Julie Brincefield, Editorial Assistant IN THIS ISSUE I. EXECUTIVE ORDERS Executive Order No. 63 ...........................................585 Executive Order No. 64 ...........................................586 - 587 II. IN ADDITION Summary of Public Notice from the Division of .....588 – 589 Waste Management North Carolina Building Code Council....................590 – 591 Voting Rights Letter ................................................592 III. PROPOSED RULES Environment and Natural Resources Commission for Health Services ..........................608 - 616 Justice Sheriffs' Educ. & Trng. Stds. Comm....................593 - 608 Licensing Boards Cosmetic Art Examiners, Board of ......................616 – 617 Locksmith Licensing Board .................................617 - 619 Registration for Forestors, Board of .....................617 State Personnel State Personnel Commission ................................619 - 628 IV. TEMPORARY RULES Environment and Natural Resources Marine Fisheries Commission..............................629 - 630 Licensing Boards Examiners of Plumbing, Heating and Fire ...........630 – 631 Sprinkler Contractors, Board of V. APPROVED RULES.............................................632 - 638 Administration State Energy Office Commerce Banking Commission Environment and Natural Resources Marine Fisheries Environmental Health Insurance Consumer Services Division Licensing Boards Cosmetic Arts, Board of Real Estate Commission State Personnel State Personnel Commission VI. RULES REVIEW COMMISSION.......................639 - 652 VII. CONTESTED CASE DECISIONS Index to ALJ Decisions............................................653 - 655 For the CUMULATIVE INDEX to the NC Register go to: http://oahnt.oah.state.nc.us/register/CI.pdf North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC 27601. North Carolina Register (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register, 6714 Mail Service Center, Raleigh, NC 27699-6714. NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM The North Carolina Administrative Code (NCAC) has four major classifications of rules. Three of these, titles, chapters, and sections are mandatory. The major classification of the NCAC is the title. Each major department in the North Carolina executive branch of government has been assigned a title number. Titles are further broken down into chapters which shall be numerical in order. Subchapters are optional classifications to be used by agencies when appropriate. NCAC TITLES TITLE 21 LICENSING BOARDS TITLE 24 INDEPENDENT AGENCIES 1 ADMINISTRATION 2 AGRICULTURE & CONSUMER SERVICES 3 AUDITOR 4 COMMERCE 5 CORRECTION 6 COUNCIL OF STATE 7 CULTURAL RESOURCES 8 ELECTIONS 9 GOVERNOR 10A HEALTH AND HUMAN SERVICES 11 INSURANCE 12 JUSTICE 13 LABOR 14A CRIME CONTROL & PUBLIC SAFETY 15A ENVIRONMENT &NATURAL RESOURCES 16 PUBLIC EDUCATION 17 REVENUE 18 SECRETARY OF STATE 19A TRANSPORTATION 20 TREASURER 21* OCCUPATIONAL LICENSING BOARDS 22 ADMINISTRATIVE PROCEDURES (REPEALED) 23 COMMUNITY COLLEGES 24* INDEPENDENT AGENCIES 25 STATE PERSONNEL 26 ADMINISTRATIVE HEARINGS 27 NC STATE BAR 28 JUVENILE JUSTICE AND DELINQUENCY PREVENTION 1 Acupuncture 2 Architecture 3 Athletic Trainer Examiners 4 Auctioneers 6 Barber Examiners 8 Certified Public Accountant Examiners 10 Chiropractic Examiners 11 Employee Assistance Professionals 12 General Contractors 14 Cosmetic Art Examiners 16 Dental Examiners 17 Dietetics/Nutrition 18 Electrical Contractors 19 Electrolysis 20 Foresters 21 Geologists 22 Hearing Aid Dealers and Fitters 25 Interpreter/Transliterator 26 Landscape Architects 28 Landscape Contractors 29 Locksmith Licensing 30 Massage & Bodywork Therapy 31 Marital and Family Therapy 32 Medical Examiners 33 Midwifery Joint Committee 34 Funeral Service 36 Nursing 37 Nursing Home Administrators 38 Occupational Therapists 40 Opticians 42 Optometry 44 Osteopathic Examination (Repealed) 45 Pastoral Counselors, Fee-Based Practicing 46 Pharmacy 48 Physical Therapy Examiners 50 Plumbing, Heating & Fire Sprinkler Contractors 52 Podiatry Examiners 53 Professional Counselors 54 Psychology 56 Professional Engineers & Land Surveyors 57 Real Estate Appraisal 58 Real Estate Commission 60 Refrigeration Examiners 61 Respiratory Care 62 Sanitarian Examiners 63 Social Work Certification 64 Speech & Language Pathologists & Audiologists 65 Therapeutic Recreation Certification 66 Veterinary Medical 68 Substance Abuse Professionals 69 Soil Scientists 1 Housing Finance 2 Agricultural Finance Authority 3 Safety & Health Review Board 4 Reserved 5 State Health Plan Purchasing Alliance Board Note: Title 21 contains the chapters of the various occupational licensing boards and Title 24 contains the chapters of independent agencies. NORTH CAROLINA REGISTER Publication Schedule for January 2004 – December 2004 FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY RULES Volume & issue number Issue date Last day for filing Earliest date for public hearing End of required comment period Deadline to submit to RRC for review at next meeting Earliest Eff. Date of Permanent Rule Delayed Eff. Date of Permanent Rule (first legislative day of the next regular session) 270th day from publication in the Register 18:13 01/02/04 12/08/03 01/17/04 03/02/04 03/22/04 05/01/04 05/10/04 09/28/04 18:14 01/15/04 12/19/03 01/30/04 03/15/04 03/22/04 05/01/04 05/10/04 10/11/04 18:15 02/02/04 01/09/04 02/17/04 04/02/04 04/20/04 06/01/04 01/26/05 10/29/04 18:16 02/16/04 01/26/04 03/02/04 04/16/04 04/20/04 06/01/04 01/26/05 11/12/04 18:17 03/01/04 02/09/04 03/16/04 04/30/04 05/20/04 07/01/04 01/26/05 11/26/04 18:18 03/15/04 02/23/04 03/30/04 05/14/04 05/20/04 07/01/04 01/26/05 12/10/04 18:19 04/01/04 03/11/04 04/16/04 06/01/04 06/21/04 08/01/04 01/26/05 12/27/04 18:20 04/15/04 03/24/04 04/30/04 06/14/04 06/21/04 08/01/04 01/26/05 01/10/05 18:21 05/03/04 04/12/04 05/18/04 07/02/04 07/20/04 09/01/04 01/26/05 01/28/05 18:22 05/17/04 04/26/04 06/01/04 07/16/04 07/20/04 09/01/04 01/26/05 02/11/05 18:23 06/01/04 05/10/04 06/16/04 08/02/04 08/20/04 10/01/04 01/26/05 02/26/05 18:24 06/15/04 05/24/04 06/30/04 08/16/04 08/20/04 10/01/04 01/26/05 03/12/05 19:01 07/01/04 06/10/04 07/16/04 08/30/04 09/20/04 11/01/04 01/26/05 03/28/05 19:02 07/15/04 06/23/04 07/30/04 09/13/04 09/20/04 11/01/04 01/26/05 04/11/05 19:03 08/02/04 07/12/04 08/17/04 10/01/04 10/20/04 12/01/04 01/26/05 04/29/05 19:04 08/16/04 07/26/04 08/31/04 10/15/04 10/20/04 12/01/04 01/26/05 05/13/05 19:05 09/01/04 08/11/04 09/16/04 11/01/04 11/22/04 01/01/05 01/26/05 05/29/05 19:06 09/15/04 08/24/04 09/30/04 11/15/04 11/22/04 01/01/05 01/26/05 06/12/05 19:07 10/01/04 09/10/24 10/16/04 11/30/04 12/20/04 02/01/05 05/00/06 06/28/05 19:08 10/15/04 09/24/04 10/30/04 12/14/04 12/20/04 02/01/05 05/00/06 07/12/05 19:09 11/01/04 10/11/04 11/16/04 12/31/04 01/20/05 03/01/05 05/00/06 07/29/05 19:10 11/15/04 10/22//04 11/30/04 01/14/05 01/20/05 03/01/05 05/00/06 08/12/05 19:11 12/01/04 11/05/04 12/16/04 01/31/05 02/21/05 04/01/05 05/00/06 08/28/05 19:12 12/15/04 11/22/04 12/30/04 02/14/05 02/21/05 04/01/05 05/00/06 09/11/05 EXPLANATION OF THE PUBLICATION SCHEDULE This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling. Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6. GENERAL The North Carolina Register shall be published twice a month and contains the following information submitted for publication by a state agency: (1) temporary rules; (2) notices of rule-making proceedings; (3) text of proposed rules; (4) text of permanent rules approved by the Rules Review Commission; (5) notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165; (6) Executive Orders of the Governor; (7) final decision letters from the U.S. Attorney General concerning changes in laws affecting voting in a jurisdiction subject of Section 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H; (8) orders of the Tax Review Board issued under G.S. 105-241.2; and (9) other information the Codifier of Rules determines to be helpful to the public. COMPUTING TIME: In computing time in the schedule, the day of publication of the North Carolina Register is not included. The last day of the period so computed is included, unless it is a Saturday, Sunday, or State holiday, in which event the period runs until the preceding day which is not a Saturday, Sunday, or State holiday. FILING DEADLINES ISSUE DATE: The Register is published on the first and fifteen of each month if the first or fifteenth of the month is not a Saturday, Sunday, or State holiday for employees mandated by the State Personnel Commission. If the first or fifteenth of any month is a Saturday, Sunday, or a holiday for State employees, the North Carolina Register issue for that day will be published on the day of that month after the first or fifteenth that is not a Saturday, Sunday, or holiday for State employees. LAST DAY FOR FILING: The last day for filing for any issue is 15 days before the issue date excluding Saturdays, Sundays, and holidays for State employees. NOTICE OF TEXT EARLIEST DATE FOR PUBLIC HEARING: The hearing date shall be at least 15 days after the date a notice of the hearing is published. END OF REQUIRED COMMENT PERIOD An agency shall accept comments on the text of a proposed rule for at least 60 days after the text is published or until the date of any public hearings held on the proposed rule, whichever is longer. DEADLINE TO SUBMIT TO THE RULES REVIEW COMMISSION: The Commission shall review a rule submitted to it on or before the twentieth of a month by the last day of the next month. FIRST LEGISLATIVE DAY OF THE NEXT REGULAR SESSION OF THE GENERAL ASSEMBLY: This date is the first legislative day of the next regular session of the General Assembly following approval of the rule by the Rules Review Commission. See G.S. 150B- 21.3, Effective date of rules. EXECUTIVE ORDERS 19:06 NORTH CAROLINA REGISTER September 15, 2004 585 EXECUTIVE ORDER NO. 63 PROCLAMATION OF STATE OF DISASTER BY THE GOVERNOR OF THE STATE OF NORTH CAROLINA Section 1. I have determined that a state of disaster and state of emergency, as defined in G.S. 166A-4(3) and G.S. 14- 288.1(10), exists in the State of North Carolina, due to the approach and proximity of Tropical Storm Bonnie and Hurricane Charley, which began on August 12, 2004. Section 2. Pursuant to G.S. 166A-6 and 14-288.15, I, therefore, proclaim the existence of a state of disaster and a state of emergency in the State. Section 3. I hereby order all state and local government entities and agencies to cooperate in the implementation of the provisions of this proclamation and the provisions of the North Carolina Emergency Operations Plan. Section 4. I hereby delegate to Bryan E. Beatty, Secretary of Crime Control and Public Safety, and/or his designee, all power and authority granted to me and required of me by Chapter 166A, and Article 36A of Chapter 14 of the General Statutes for the purpose of implementing the said Emergency Operations Plan and to take such further action as is necessary to promote and secure the safety and protection of the populace in the State. Section 5. Further, Bryan E. Beatty, Secretary of Crime Control and Public Safety, as chief coordinating officer for the State of North Carolina, shall exercise the powers prescribed in G.S. 143B-476. Section 6. I hereby order this proclamation: (a) to be distributed to the news media and other organizations calculated to bring its contents to the attention of the general public; (b) unless the circumstances of the state of emergency or disaster prevent or impede, to be promptly filed with the Secretary of Crime Control and Public Safety, the Secretary of State, and the clerks of superior court in the counties to which it applies; and, (c) to be distributed to others as necessary to assure proper implementation of this proclamation. Section 7. This proclamation shall become effective immediately and shall continue until it is terminated in writing. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Great Seal of the State of North Carolina at the Capitol in Raleigh this 13th day of August in the year of our Lord two thousand and four, and of the Independence of the United States of America the two hundred and twenty-eighth. ___________________________________ MICHAEL F. EASLEY GOVERNOR ATTEST: ___________________________________ ELAINE MARSHALL SECRETARY OF STATE EXECUTIVE ORDERS 19:06 NORTH CAROLINA REGISTER September 15, 2004 586 EXECUTIVE ORDER NO. 64 EMERGENCY RELIEF FOR DAMAGE CAUSED BY HURRICANE CHARLEY WHEREAS, the Governor of Florida has proclaimed that a State of Emergency and State of Disaster exists in Florida due to Hurricane Charley and thereby, has requested that States, through which property carrying vehicles regulated by size and weight laws, allow exemptions of said laws when vehicles traveling through such states are bearing equipment and supplies to provide relief to the disaster stricken areas in the State of Florida; and WHEREAS, under the provisions of N.C.G.S. §§ 166A-4 and166A-6(c)(3), the Governor of North Carolina, with the concurrence of the Council of State, may regulate and control the flow of vehicular traffic and the operation of transportation services; and WHEREAS, with the concurrence of the Council of State, I have found that vehicles bearing equipment and supplies to relieve Florida’s grief stricken areas must adhere to the registration requirements of N.C.G.S. § 20-86.1 and N.C.G.S. § 20-382, fuel tax requirements of N.C.G.S. § 105-449.47, and the size and weight requirements of N.C.G.S. § 20-116 and N.C.G.S. § 20-118; I have further found that citizens in that state will likely suffer losses and, therefore suffer an imminent threat of widespread damage. NOW, THEREFORE, pursuant to the authority vested in me as Governor by the Constitution and the laws of the State of North Carolina, and with the concurrence of the Council of State, IT IS ORDERED: Section 1. The Department of Crime Control & Public Safety in conjunction with the N.C. Department of Transportation shall waive certain size and weight restrictions and penalties therefore arising under N.C.G.S. § 20-116 and N.C.G.S. § 20-118, and certain registration requirements and penalties therefore arising under N.C.G.S. §§ 20-86.1, 20-382, 105-449.47, 105-449.49, for the vehicles transporting equipment and supplies along North Carolina Interstate roadways, en route to Florida’s grief stricken areas. Section 2. Notwithstanding the waivers set forth above, size and weight restrictions and penalties have not been waived under the following conditions: (A) When the vehicle weight exceeds the maximum gross weight criteria established by the manufacturer (GVWR) or 95,000 pounds gross weight, whichever is less. (B) When the tandem axle weight exceeds 42,000 pounds and the single axle weight exceeds 22,000 pounds. (C) When a vehicle/vehicle combination exceeds 12 feet in width and a total overall vehicle combination length of 75 feet from bumper to bumper. Section 3. Vehicles referenced under Section 1 shall be exempt from the following registration requirements: (A) The $50.00 fee listed in N.C.G.S. § 105-449.49, for a temporary trip permit is waived for the vehicles described above. No quarterly fuel tax is required because the exception in N.C.G.S. § 105-449.45(a)(1), applies. (B) The registration requirements under N.C.G.S. § 20-382, concerning intrastate and interstate for-hire authority is waived; however, vehicles shall maintain the required limits of insurance as required. (C) Non-participants in North Carolina’s International Registration Plan will be permitted into North Carolina in accordance with the exemptions identified by this Executive Order. Section 4. The size and weight exemption for vehicles will be allowed on all North Carolina Interstate routes only. Section 5. The waiver of regulations under 49 CFR (Federal Motor Carrier Safety Regulations) issued by the State of Florida, does not apply to the CDL and Insurance Requirements. This waiver shall be in effect for 26 days from the date of this Order. Section 6. The North Carolina State Highway Patrol shall enforce the conditions set forth in Sections 1, 2, and 3, in a manner which would best accomplish the implementation of this rule without endangering motorists in North Carolina. Section 7. Upon request, exempted vehicles will be required to produce identification sufficient to establish that its load will be used for emergency relief efforts associated with Hurricane Charley. EXECUTIVE ORDERS 19:06 NORTH CAROLINA REGISTER September 15, 2004 587 This Executive Order is effective immediately and shall remain in effect for twenty-six (26) days. In witness whereof, I have hereunto set my hand and affixed the Great Seal of the State of North Carolina at the Capitol in the city of Raleigh this 18th day of August, 2004. ___________________________________ Michael F. Easley Governor ATTEST: ____________________________________ Elaine F. Marshall Secretary of State IN ADDITION 19:06 NORTH CAROLINA REGISTER September 15, 2004 588 SUMMARY OF PUBLIC NOTICE FROM THE DIVISION OF WASTE MANAGEMENT RECEIPT OF DOCUMENTS PERTAINING TO THE FORMER SEABOARD CHEMICAL CORPORATION Notice is hereby given of the Division of Waste Management’s receipt of the following documents which are available for public review. 1. The 2000 Supplemental Remedial Investigation and Annual Monitoring Report dated 2/14/01. 2. The Supplemental Groundwater Flow and Transport Modeling Report dated May 2000. 3. The Revised Feasibility Study dated 19 April 2001. 4. The Revised Draft Human Health and Ecological Risk Assessment dated April 2001. 5. The September 2001 Supplemental Remedial Investigation and Annual Monitoring Report dated 12/31/01 and Report on Geophysical Surveys by AG&E Schnabel dated October 23, 2001. 6. The August 2002 Report of Extraction Rate/Capture Zone Test. 7. The 2002 Annual Monitoring Report dated February 13, 2003. 8. The Final Report of Limited Groundwater Pump-and-Treat Modeling dated January 2004. 9. Seaboard Modeling and Stream Flows-Supplemental Report dated December 4, 2003. 10. Annual Monitoring Report--September-October 2003 dated January 15, 2004. 11. Description of Remedial Alternatives dated January 16, 2004. These documents pertain to activities conducted in and around the former Seaboard Chemical Corporation facility located at 5899 Riverdale Drive, Jamestown, Guilford County, North Carolina, and the adjacent closed City of High Point Riverdale Drive Landfill. The public comment period will extend for sixty (60) days following the publication of this notice. Comments regarding these reports should be addressed to: Robert Glaser, Unit Supervisor Hazardous Waste Section 401 Oberlin Road, Suite 150 Raleigh, NC 27605 All documents submitted by Seaboard Group II and the City of High Point are available as part of the administrative record. Copies of the record are available for review at the High Point Public Library and the North Carolina Hazardous Waste Section’s file room during the hours noted below: High Point Public Library 901 North Main Street High Point, North Carolina 27261 9:00 am to 9:00 pm Monday-Thursday, 9:00 am to 6:00 pm Friday and Saturday, and, beginning in September, 1:30-5:30 pm Sunday. No appointment is necessary to review the administrative record however if there are any questions please call Tamara Ruebel at (336) 883-3643. or Hazardous Waste Section File Room 401 Oberlin Road, Suite 150 Raleigh, NC 27605 9:00 a.m. to 4:00 p.m. Monday through Friday. Call (919) 733-2178, ext. 311 for an appointment to review the administrative record at this location. All comments received during the public comment period or at any public meeting that may be held will be considered in the formulation of a final decision on these documents. IN ADDITION 19:06 NORTH CAROLINA REGISTER September 15, 2004 589 NC DENR will provide auxiliary aids and services for disabled persons who wish to review the documents to comply with the Americans with Disabilities Act. To receive special services, please contact Robert Glaser at the address above, via email at robert.glaser@ncmail.net or by calling (919) 733-2178 extension 218 as early as possible so arrangements can be made. IN ADDITION 19:06 NORTH CAROLINA REGISTER September 15, 2004 590 NOTICE OF RULE MAKING PROCEEDINGS AND PUBLIC HEARING NORTH CAROLINA BUILDING CODE COUNCIL Notice of Rule-making Proceedings is hereby given by N.C. Building Code Council in accordance with G.S. 150B-21.5(d). Citation to Existing Rule Affected by this Rule-Making: North Carolina Building Code, North Carolina Energy Code, and North Carolina Residential Code Authority for Rule-making: G.S. 143-136; 143-138. Reason for Proposed Action: To incorporate changes in the NC Building Code as a result of rulemaking petitions filed with the NC Building Code Council and incorporate changes proposed by the Council. Public Hearing: December 13, 2004, 1:00PM, NC Department of Insurance,322 Chapanoke Road, Suite 200, Raleigh, NC 27603 Comment Procedures: Written comments may be sent to Barry Gupton, Secretary, N.C. Building Code Council, c/o NC Department of Insurance, 322 Chapanoke Road, Suite 200, Raleigh, NC 27603. Comment period expires on November 8, 2004. Statement of Subject Matter: 1. Request by Residential Committee to clarify the current code language dealing with waterproofing that is required for habitable basements as detailed in the Residential Code. R406.2 Concrete and masonry foundation basement waterproofing. In areas where a high water table or other severe soil water conditions are known to exist, Exterior foundation basement walls that retain earth and enclose habitable or usable spaces located below grade shall be waterproofed with a membrane extending from the top of the footing to the finished grade. Exception: Exterior basement walls that retain earth and enclose usable spaces located below grade may be dampproofed where a subsurface soil investigation is performed to determine that the existing ground-water table is not within 5 feet (1524 mm) below the lowest floor level. (remainder same) This code change is proposed to clarify the Code requirements for waterproofing. 2. Request by the Residential and Energy Conservation Code Committees to revise the requirements for vapor retarder to be consistent with the requirements in the International Energy Conservation Code. 1403.3 Vapor retarder. An approved interior noncorrodible vapor retarder shall be provided. Vapor retarders shall be tested in accordance with ASTM E 96. Vapor retarder requirements shall comply with the International Energy Code. Exceptions: 1. Where other approved means to avoid condensation and leakage of moisture are approved. 2. Plain and reinforced concrete or masonry exterior walls designed and constructed in accordance with Chapter 19 and Chapter 21, respectively. This code change is proposed to eliminate vapor retarders except where required by the IECC. 3. Request by the Residential and Energy Conservation Code Committees to revise the requirements for moisture control requirements to be consistent with the requirements in the International Energy Code. Delete section 502.1.1 and substitute the following: 502.1.1 Moisture Control. The building design shall not create conditions of accelerated deterioration from moisture condensation. Only in Zone 11, above grade shall frame walls, floors, and ceilings not ventilated to allow moisture to escape be required to have an approved vapor retarder. The vapor retarder shall be installed on the warm-in-winter side of the thermal insulation. Exceptions: IN ADDITION 19:06 NORTH CAROLINA REGISTER September 15, 2004 591 1. In construction where moisture or its freezing will not damage the materials. 2. Where other approved means to avoid condensation are provided. Delete section 802.1.2 and substitute the following: 802.1.2 Moisture Control. Only in Zone 11, shall all frame walls, floors, and ceilings not ventilated to allow moisture to escape be required to have an approved vapor retarder having maximum permeance rating of 1.0 perm (5.72x10-8 g/Pa-s-m2) when tested in accordance with Procedure A of ASTM E96, on the warm-in-winter side of the thermal insulation. Exceptions: 1. In construction where moisture or its freezing will not damage the materials. 2. Where other approved means to avoid condensation in unventilated frame wall, floor, roof, and ceiling cavities are provided. This code change is proposed to eliminate vapor retarders except where required by the IECC. 4. Request by the Residential Code and Energy Code Committees to revise section R322.1 dealing with Moisture Control in the Residential Code. Delete section R322.1 and substitute the following: R322.1 Moisture Control. Only in Zone 11 counties identified in Table N1101.2, above grade shall frame walls, floors and ceilings not ventilated to allow moisture to escape be required to have an approved vapor retarder. The vapor retarder shall be installed on the warm-in-winter side of the thermal insulation. Exceptions: 1. In construction where moisture or its freezing will not damage the materials. 2. Where the framed cavity or space is ventilated to allow moisture to escape. Delete the following without replacement: 1. Note “a” in Table N1101.2 without replacement. 2. Superscript “a” that appears beside certain counties in Table N1101.2 for the state of North Carolina. This code change is proposed to eliminate vapor retarders except where required by the IECC. IN ADDITION 19:06 NORTH CAROLINA REGISTER September 15, 2004 592 STATE BOARD OF ELECTIONS 6400 Mail Service Center—Raleigh, North Carolina 27699-6400 GARY O. BARTLETT Mailing Address: Executive Director P.O. Box 2169 Raleigh, NC 27602 (910) 733-7173 FAX (919) 715-0135 August 13, 2004 Easter Outdoor, Inc. P.O. Box 2267 Smithfield, NC 27577 RE: S.L. 2004-125 (H 737) and Billboard Advertising Dear Mr. Moore: Your letter of August 11, 2004 requests an advisory opinion pursuant to G.S. 163-278.23 regarding any restrictions placed on a Section 527 organization for billboard or outdoor advertising as it relates to the provisions of S.L. 2004-125 (H 737). S.L., 2004-125 does not include billboard or other outdoor advertising in the definitions of "electioneering communications" contained in Articles 22E or 22F of the General Statutes of North Carolina. Therefore any restrictions or disclosure requirements placed upon "electioneering communications" under these Articles, would not apply to billboards or other outdoor advertising. Sincerely, Gary O. Bartlett Executive Director Attachments: Your letter of August 11, 2004 PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 593 Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60 days. Statutory reference: G.S. 150B-21.2. TITLE 12 – DEPARTMENT OF JUSTICE Notice is hereby given in accordance with G.S. 150B-21.2 that the North Carolina Sheriffs' Education and Training Standards Commission intends to amend the rules cited as 12 NCAC 10B .0204, .0301, .0405-.0406, .0505, .0703-.0704, .0709, .0713, .0802, .0903-.0905, .0911, .0913-.0915, .0919. Proposed Effective Date: January 1, 2005 Public Hearing: Date: September 30, 2004 Time: 9:30 a.m. Location: 114 W. Edenton St., Room G01, Raleigh, NC Reason for Proposed Action: 12 NCAC 10B .0204 – Proposal to add the requirement/discretion to deny or revoke certification of an individual who has had certification denied or revoked by a similar North Carolina, out-of-state or federal approving, certifying or licensing agency. 12 NCAC 10B .0301 – Technical change to amend a case cited in the definition of good moral character. 12 NCAC 10B .0405 – Proposed amendment to language regarding the hiring agency's obligation to notify to the officer that he/she is being separated to be consistent with Division practice (i.e., that notice can be in the form of a letter rather than the signature of the officer on the form itself). 12 NCAC 10B .0406 – Proposed amendment to allow for reinstatement of certification with the same agency provided updated background materials are received and if the individual has not exceeded a 6-month break in-service. 12 NCAC 10B .0505 - Proposed amendment to the challenge option to parallel the provisions in place for initial BLET enrollees. Specifically, under the current rule, an individual can fail more than 2 unit examinations, and still be allowed to remediate in the corresponding blocks of instruction. New enrollees that fail more than 2 units at the end of BLET, must re-enroll in the entire course. 12 NCAC 10B .0703 - Technical amendment to change the word "certified" to "designated" to be consistent with past rule change. Additionally, proposed amendment to instructor-student ratio in the Physical Fitness block of instruction. 12 NCAC 10B .0704 and .0709 - Deletion of retention of records as it is redundant with the Department of Community College's retention schedule. 12 NCAC 10B .0713 - Proposed amendment to make rule consistent with state law. 12 NCAC 10B .0802 - Proposed amendment to accreditation process to require the submission of documents upon end of course delivery, rather than requiring Division to annually audit those records, and instead making accredited sites subject to unannounced inspections. 12 NCAC 10B .0903 and .0913 - Proposed amendment to delete Director's authority to grant a waiver of instructor requirements, so that such waiver requests are within the sole discretion of the Commission. 12 NCAC 10B .0904, .0911, .0914, and .0919 - Proposed amendment to allow for the denial/revocation of instructor certification if individual justice officer or other certification is denied/revoked for cause. 12 NCAC 10B .0905, .0915 - Proposed amendment to further simplify instructor renewal process as automation of databases now allows Division staff to verify status of general Instructor Certification issued through the Criminal Justice Commission. Procedure by which a person can object to the agency on a proposed rule: Objections shall be submitted in writing explaining the reasons for objection and specifying the portion of the rule to which the objection is being made. Such objections should be sent to Julia Lohman, Sheriffs' Standards Division, NC Department of Justice, PO Box 629, Raleigh, NC 27602. Written comments may be submitted to: Julia Lohman, Sheriffs' Standards Division, NC Department of Justice, PO Box 629, Raleigh, NC 27602, phone (919) 716-6460, fax (919) 716- 6753, and email jlohman@ncdoj.com. Comment period ends: November 15, 2004 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State 12 NCAC 10B .0703 PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 594 Local 12 NCAC 10B .0406, .0505, .0703 Substantive (>$3,000,000) None 12 NCAC 10B .0204, .0301, .0405, .0704, .0709, .0713, .0802, .0903-.0905, .0911, .0913- .0915, .0919 CHAPTER 10 - N.C. SHERIFFS' EDUCATION AND TRAINING STANDARDS COMMISSION SUBCHAPTER 10B - N.C. SHERIFFS' EDUCATION AND TRAINING STANDARDS COMMISSION SECTION .0200 - ENFORCEMENT RULES 12 NCAC 10B .0204 SUSPENSION: REVOCATION: OR DENIAL OF CERTIFICATION (a) The Commission shall revoke or deny the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer has committed or been convicted of: (1) a felony; or (2) a crime for which the authorized punishment could have been imprisonment for more than two years. (b) The Commission shall revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer: (1) has not enrolled in and satisfactorily completed the required basic training course in its entirety within a one year time period as specified by these Rules; or (2) fails to meet or maintain any of the minimum employment or certification standards required by 12 NCAC 10B .0300; or (3) fails to satisfactorily complete the minimum in-service training requirements as presented in 12 NCAC 10B .2000 and .2100; or (4) has refused to submit to the drug screen as required in 12 NCAC 10B .0301(6) or .0406(b)(4) or in connection with an application for or certification as a justice officer or a criminal justice officer as defined in 12 NCAC 9A .0103(6); or (5) has produced a positive result on any drug screen reported to the Commission as specified in 12 NCAC 10B .0410 or reported to any commission, agency, or board established to certify, pursuant to said commission, agency, or boards' standards, a person as a justice officer or a criminal justice officer as defined in 12 NCAC 9A .0103(6), unless the positive result is explained to the Commission's satisfaction. (c) The Commission may revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification or certified justice officer: (1) has knowingly made a material misrepresentation of any information required for certification or accreditation from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission. This Rule shall also apply to obtaining or attempting to obtain in-service firearms requalification as required by 12 NCAC 10B .2000 and .2100; or (2) has knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation or cheating whatsoever, obtained or attempted to obtain credit, training or certification from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission. This Rule shall also apply to obtaining or attempting to obtain in-service firearms requalification as required by 12 NCAC 10B .2000 and .2100; or (3) has knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation or cheating whatsoever, aided another in obtaining or attempting to obtain credit, training, or certification from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission. This Rule shall also apply to obtaining or attempting to obtain in-service firearms requalification as required by 12 NCAC 10B .2000 and .2100; or (4) has been removed from office by decree of the Superior Court in accordance with the provisions of G.S. 128-16 or has been removed from office by sentence of the court in accord with the provisions of G.S. 14-230; or (5) has been denied certification or had such certification suspended or revoked by the North Carolina Criminal Justice Education and Training Standards Commission. Commission, or a similar North Carolina, out-of- state or federal approving, certifying or licensing agency. (d) The Commission may revoke, suspend or deny the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer has committed or been convicted of: (1) a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor and which occurred after the date of initial certification; or (2) a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor within the five-year period prior to the date of appointment; or (3) four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(b) as Class B misdemeanors regardless of the date of commission or conviction; or (4) four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(a) as a Class A misdemeanor, each of which occurred after the date of initial certification; or PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 595 (5) four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(a) as a Class A misdemeanor except the applicant shall be certified if the last conviction or commission occurred more than two years prior to the date of appointment; or (6) any combination of four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(a) as a Class A misdemeanor or defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor regardless of the date of commission or conviction. (e) Without limiting the application of G.S. 17E, a person who has had his certification suspended or revoked may not exercise the authority or perform the duties of a justice officer during the period of suspension or revocation. (f) Without limiting the application of G.S. 17E, a person who has been denied certification may not be employed or appointed as a justice officer or exercise the authority or perform the duties of a justice officer. Authority G.S. 17E-7. SECTION .0300 – MINIMUM STANDARDS FOR EMPLOYMENT AND CERTIFICATION AS A JUSTICE OFFICER 12 NCAC 10B .0301 MINIMUM STANDARDS FOR JUSTICE OFFICERS (a) Every Justice Officer employed or certified in North Carolina shall: (1) be a citizen of the United States; (2) be at least 21 years of age; (3) be a high school graduate, or the equivalent (GED); (4) have been fingerprinted by the employing agency; (5) have had a medical examination by a licensed physician; (6) have produced a negative result on a drug screen administered according to the following specifications: (A) the drug screen shall be a urine test consisting of an initial screening test using an immunoassay method and a confirmatory test on an initial positive result using a gas chromatography/mass spectrometry (GC/MS) or other reliable initial and confirmatory tests as may, from time to time, be authorized or mandated by the Department of Health and Human Services for Federal Workplace Drug Testing Programs; and (B) a chain of custody shall be maintained on the specimen from collection to the eventual discarding of the specimen; and (C) the drugs whose use shall be tested for shall include at least cannabis, cocaine, phencyclidine (PCP), opiates and amphetamines or their metabolites; and (D) the test threshold values established by the Department of Health and Human Services for Federal Workplace Drug Testing Programs are hereby incorporated by reference, and shall automatically include any later amendments and editions of the referenced materials. Copies of this information may be obtained from the National Institute on Drug Abuse, 5600 Fisher Lane, Rockville, Maryland 20857 at no cost at the time of adoption of this Rule; and (E) the test conducted shall be not more than 60 days old, calculated from the time when the laboratory reports the results to the date of employment; and (F) the laboratory conducting the test must be certified for federal workplace drug testing programs, and must adhere to applicable federal rules, regulations and guidelines pertaining to the handling, testing, storage and preservation of samples, except that individual agencies may specify other drugs to be tested for in addition to those drugs set out in Part (C) of this Rule; (G) every agency head shall make arrangements for the services of a medical review officer (MRO) for the purpose of review of drug tests reported by the laboratory and such officer shall be a licensed physician; (7) within five working days notify the Standards Division and the appointing department head in writing of all criminal offenses with which the officer is charged and all Domestic Violence Orders (50B) which are issued by a judicial official and which provide an opportunity for both parties to be present; and shall also give notification, in writing, to the Standards Division and the appointing department head following the adjudication of these criminal charges and Domestic Violence Orders (50B). This shall include all criminal offenses except minor traffic offenses and shall specifically include any offense of Driving Under The Influence (DUI) or Driving While Impaired (DWI). A minor traffic offense is defined, for purposes of this Subparagraph, as an offense where the maximum punishment allowable is 60 days or PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 596 less. Other offenses under G.S. 20 (Motor Vehicles) or similar laws of other jurisdictions which shall be reported to the Division expressly include G.S. 20-139 (persons under the influence of drugs), G.S. 20-28(b) (driving while license revoked or permanently suspended) and G.S. 20-166 (duty to stop in event of accident). The initial notification required must specify the nature of the offense, the date of offense, and the arresting agency. The notifications of adjudication required must specify the nature of the offense, the court in which the case was handled and the date of disposition, and must include a certified copy of the final disposition from the Clerk of Court in the county of adjudication. The notifications of adjudication must be received by the Standards Division within 30 days of the date the case was disposed of in court. Officers required to notify the Standards Division under this Subparagraph shall also make the same notification to their employing or appointing department head within 20 days of the date the case was disposed of in court. The department head, provided he has knowledge of the officer's charge(s) and Domestic Violence Orders (50B) shall also notify the Division within 30 days of the date the case or order was disposed of in court. Receipt by the Standards Division of timely notification of the initial offenses charged and of adjudication of those offenses, from either the officer or the department head, is sufficient notice for compliance with this Subparagraph; (8) be of good moral as defined in: In re Willis, 299 N.C. 1, 215 S.E.2d 771 appeal dismissed 423 U.S. 976 (9175); (1975); State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940); In re Legg, 325 N.C. 658, 386 S.E.2d 174 (1989); In re Applicants for License, 143 N.C. 1, 55 S.E. 635 (1906); In re Dillingham, 188 N.C. 162, 124 S.E. 130 (1924); State v. Benbow, 309 N.C. 538, 308 S.E.2d 647 (1983); and their progeny; (9) have a background investigation conducted by the employing agency, to include a personal interview prior to employment; (10) not have committed or been convicted of a crime or crimes as specified in 12 NCAC 10B .0307. (b) The requirements of this Rule shall apply to all applications for certification and shall also be applicable at all times during which the justice officer is certified by the Commission. Authority G.S. 17E-7; 95-230; 95-231; 95-232; 95-233; 95-234; 95-235. SECTION .0400 – CERTIFICATION OF JUSTICE OFFICERS 12 NCAC 10B .0405 REPORT OF SEPARATION (a) An agency separating a person from employment or appointment as a justice officer shall, not later than 10 days after separation, forward to the Division a completed Report of Separation (F-5). (b) Although not presently required by these Rules, it is recommended by the Commission that the employing agency cancel the oath of office of a justice officer who has separated. (c) The employing agency shall notify the justice officer with appropriate notations on the Report of Separation (Form F-5), of the effective date of separation as reported to the Division. Division, and provide documentation of such notification at the time Report of Separation (Form F-5) is submitted to the Division. Where no such documentation is provided, the Division will mail a copy of the Report of Separation (Form F-5) to the justice officer's last known address. Authority G.S. 17E-4. 12 NCAC 10B .0406 LATERAL TRANSFER/REINSTATEMENTS (a) The General or Grandfather Certification of an officer meeting the requirements of 12 NCAC 10B .0103(9) may laterally transfer to an agency and be certified upon compliance with this Rule. (b) The employing agency shall verify the applicant's certification status with the Division prior to submission of the application for certification as a justice officer. (c) In order for an officer to be certified pursuant to this Rule, Paragraph (a) of this Rule, the employing agency shall submit to the Division, along with the Report of Appointment (F-4), (F-4 or F-4T),the documents required in 12 NCAC 10B .0408. (d) An officer whose certification has been suspended pursuant to 12 NCAC 10B .0204(b)(1) may have that certification reinstated provided that: (1) the period of suspension has been one yearsix months or less; and (2) the employing agency submits to the Division, along with a Report of Appointment, the documents required in 12 NCAC 10B .0305. (2)(3) the officer has successfully completed the basic training requirements as prescribed in 12 NCAC 10B .0500 or .0600 or .1300. (e) An officer for whom a Report of Separation (Form F-5) has been submitted to the Division, and who is re-appointed in the same agency, may be reinstated provided that: (1) the period of separation has been 6-months or less; and (2) the employing agency submits to the Division, along with a Report of Appointment, the documents required in 12 NCAC 10B .0305. (e)(f) Requirements of Paragraph (c) of this Rule are waived for officers whose certifications are reinstated pursuant to Paragraph (d) Paragraphs (d) and (e) of this Rule. (f)(g) All information maintained pursuant to the requirements of this Rule shall be subject to all state and federal laws governing confidentiality. PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 597 Authority G.S. 17E-4; 17E-7. SECTION .0500 – MINIMUM STANDARDS OF TRAINING FOR DEPUTY SHERIFFS 12 NCAC 10B .0505 EVALUATION FOR TRAINING WAIVER The Division staff shall evaluate each deputy's training and experience to determine if equivalent training has been satisfactorily completed as specified in 12 NCAC 10B .0504(a). The following rules shall be used by Division staff in evaluating an applicant's training and experience to determine eligibility for a waiver of training. (1) Persons who separated from a sworn law enforcement position during their probationary period after having completed a commission-accredited Basic Law Enforcement Training Course and who have been separated from a sworn law enforcement position for one year or less shall serve the remainder of the initial probationary period in accordance with G.S. 17E-7(b), but need not complete an additional training program. (2) Persons who separated from a sworn law enforcement position during their probationary period without having completed Basic Law Enforcement Training, or whose certification was suspended pursuant to 12 NCAC 10B .0204(b)(1), and who have remained separated or suspended for over one year shall complete a commission-accredited Basic Law Enforcement Training Course in its entirety and pass the State Comprehensive Examination, and shall be allowed a 12 month probationary period as prescribed in 12 NCAC 10B .0503(a). (3) Persons transferring to a Sheriff's Office from another law enforcement agency who held certification and who have previously completed a commission-accredited Basic Law Enforcement Training Course beginning on or after October 1, 1984, and continuing to July 1, 2000 and who have been separated from a sworn law enforcement position for no more than one year or who have had no break in service shall be required to complete the following enumerated topics of a commission-accredited Basic Law Enforcement Training Course and pass that portion of the State Comprehensive Examination which deals with those subjects within 12 months of the date of appointment as defined in 12 NCAC 10B .0103(1). (a) Civil Process 24 hours (b) Sheriffs' Responsibilities: Detention Duties 4 hours (c) Sheriffs' Responsibilities: Court Duties 6 hours UNIT TOTAL 34 hours (4) Persons who have training and experience as a military law enforcement officer and are appointed as a deputy sheriff in North Carolina shall be required to complete a commission-accredited Basic Law Enforcement Training Course in its entirety regardless of previous military training and experience and pass the State Comprehensive Examination within the 12 month probationary period as prescribed in 12 NCAC 10B .0503(a). (5) Persons transferring to a sheriff's office from another law enforcement agency who have previously completed a commission accredited Basic Law Enforcement Training Course beginning on or after January 1, 1996 and continuing to July 1, 1997, and who did not complete the Commission's Driver Training curriculum, and who have been separated from a sworn law enforcement position for no more than one year or who have had no break in service shall be required to complete the following enumerated topics of a commission - accredited Basic Law Enforcement Training Course within 12 months of the date of appointment as defined in 12 NCAC 10B .0103(1): Law Enforcement Driver Training 40 hours (6) North Carolina applicants shall: (a) have a minimum of two years full-time sworn law enforcement experience which occurred prior to their application; (b) have had a break in service exceeding one year; (c) have previously received General or Grandfather certification as a sworn law enforcement officer by either the Commission or the North Carolina Criminal Justice Education and Training Standards Commission, and such certification has not been denied, revoked or suspended by either Commission; and (d) have held general powers of arrest. (7) Out-of-state transferees shall: (a) have a minimum of two years full-time sworn law enforcement experience which occurred prior to their application; (b) have held certification in good standing as a sworn law enforcement officer from the appropriate Peace Officer's Standards and Training entity in the transferee's respective state; (c) have had general powers of arrest; and PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 598 (d) submit documentation verifying their qualified status. (8) Federal Transferees shall: (a) have a minimum of two years full-time sworn law enforcement experience which occurred prior to their application; experience; (b) have held certification or commissioning as a sworn law enforcement officer from the appropriate federal entity authorized to issue such sworn law enforcement officers certification or commission; (c) have held general powers of arrest; and (d) submit documentation verifying their qualified status. (9) North Carolina applicants; qualified out-of-state transferees; and qualified federal transferees shall be allowed to select one of the following two options for gaining North Carolina certification as a deputy sheriff: (a) Undertake and successfully complete Basic Law Enforcement Training in its entirety during a one year probationary period and successfully pass the State Comprehensive Examination; (b) Pass the following entry criteria: (i) Challenge the Basic Law Enforcement Training Comprehensive State Examination to be delivered at the end of an ongoing Basic Law Enforcement Training Course and successfully pass each unit examination of the comprehensive examination with a minimum score of 70%. Any applicant failing to pass any more than two unit examination examinations shall complete the Basic Law Enforcement Training Course in its entirety. Any applicant failing one or two unit examinations shall be required to enroll in each topic area which comprises that unit taught in a subsequent BLET course and submit to the unit examination at the end of the course and pass that unit examination; (ii) Each applicant shall demonstrate proficiency in the following skills related activities to the satisfaction of an appropriate instructor certified by the North Carolina Criminal Justice Education and Training Standards Commission. Successful completion of the skills related activities shall be documented on a Commission approved form by the certified instructor; (A) First Responder; (B) Firearms; (C) Law Enforcement Driver Training; (D) Physical Fitness; and (E) Subject Control Arrest Techniques. (iii) Any applicant failing to pass a test unit examination after remediation as referenced in Rule 12 NCAC 10B .0505(9)(B)(i) of a unit examination after remediation shall be required to complete Basic Law Enforcement Training in its entirety; and (iv) All criteria referenced in 12 NCAC 10B .0505(9)(B)(i) and (ii) must be successfully completed within the one-year probationary period. (10) Persons transferring to a sheriff’s office from another law enforcement agency who held certification and who have previously been granted a training waiver by the North Carolina Criminal Justice Commission and who have been separated from a sworn law enforcement position for no more than one year or who had no break in service shall not be required to complete the Basic Law Enforcement Training course, but shall have the waiver honored by this Commission. (11) Persons previously holding Grandfather law enforcement certification in accordance with G.S. 17C-10(a) or G.S. 17E-7(a) who have been separated from a sworn law enforcement position for less than one year or have had no break in service shall not be required to complete a commission-accredited Basic Law Enforcement Training Course. Authority G.S. 17E-4; 17E-7. PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 599 SECTION .0700 – MINIMUM STANDARDS FOR JUSTICE OFFICER SCHOOLS AND TRAINING PROGRAMS OR COURSES OF INSTRUCTION 12 NCAC 10B .0703 ADMINISTRATION OF DETENTION OFFICER CERTIFICATION COURSE (a) The executive officer or officers of the institution or agency sponsoring a Detention Officer Certification Course shall have primary responsibility for implementation of these rules and standards and for administration of the school. (b) The executive officers shall designate a compensated staff member who is certified by the Commission who may apply to the Commission to be the school director. No more than two school directors shall be certified designated at each accredited institution/agency to deliver a Detention Officer Certification Course. The school director shall have administrative responsibility for planning scheduling, presenting, coordinating, reporting, and generally managing each sponsored detention officer certification course and shall be readily available at all times during course delivery as specified in 12 NCAC 10B .0704(b). (c) The executive officers of the institution or agency sponsoring the Detention Officer Certification Course shall: (1) acquire and allocate sufficient financial resources to provide commission-certified instructors and to meet other necessary program expenses; (2) provide adequate secretarial, clerical, and other supportive staff assistance as required by the school director; (3) provide or make available suitable facilities, equipment, materials, and supplies for comprehensive and qualitative course delivery, as required in the "Detention Officer Certification Course Management Guide" and specifically including the following: (A) a comfortable, well-lighted and ventilated classroom with a seating capacity sufficient to accommodate all attending trainees; (B) audio-visual equipment and other instructional devices and aids necessary and beneficial to the delivery of effective training; (C) a library for trainees' use covering the subject matter areas relevant to the training course, maintained in current status and having sufficient copies for convenient trainee access; and (D) an area designated for instruction of subject control techniques which enables the safe execution of the basic detention officer subject control techniques topic area, with the following specifications: (i) 30 square feet of floor space per student during the practical exercise portion of this topic area and while testing trainees' proficiency in performing the required maneuvers; (ii) one instructor for every 10 students during the practical exercise portion of this topic area and while testing trainees' proficiency in performing the required maneuvers; (iii) restrooms and drinking water within 100 yards of the training site; and (iv) telephone or radio communication immediately available on site. (E) an area designated for use as a jail cell for performing the practical exercises in the topic area entitled "Contraband Searches". If a county jail cell is unavailable, a simulated jail cell is acceptable provided it is built to the same specifications required by the Department of Human Resources with regards to size; (F) an area designated for fire emergencies instruction which enables the safe execution of the lesson plan as follows: (i) a well-ventilated, open area which allows for the setting and putting out of a fire; (ii) restrooms and drinking water within 100 yards of the training site; (iii) telephone or radio communication immediately available on site; and (iv) one instructor for every 10 students during the practical exercise portion of this training. (G) an area designated for physical fitness for detention officer trainees to include: (i) an area for running, weight lifting and other exercises performed during the physical fitness topic area which provides a minimum of 20 square feet per trainee during the performance of the exercises required in the physical fitness topic area; (ii) restrooms and drinking water within 100 yards of the training site; PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 600 (iii) telephone or radio communication immediately available on site; (iv) shower facilities, if physical fitness is performed prior to classroom training; and (v) one instructor for every 10 students during the physical fitness topic area. Physical assessment portion of this block of instruction; and (vi) sufficient instructors as needed to maintain visual contact with students while performing any physical exercise. (H) an area designated for instruction in first aid and CPR techniques which provides a minimum of 20 square feet per trainee during the practical exercise portion and testing for proficiency in administering CPR. There must also be one instructor for every 10 students during the practical exercise portion and proficiency testing in administering CPR. (4) In the event that an institution or agency does not own a facility as required in this Section, written agreements with other entities must be made to assure use of and timely access to such facilities. A copy of such agreement must accompany the originating institution or agency "Pre-Delivery Report" (Form F7-A) when submitted to the Division. Authority G.S. 17E-4. 12 NCAC 10B .0704 RESPONSIBILITIES: SCHOOL DIRECTORS (a) In planning, developing, coordinating, and delivering each commission accredited Detention Officer Certification Course, the school director shall: (1) Formalize and schedule the course curriculum in accordance with the curriculum standards established by the rules in this Chapter. (A) The Detention Officer Certification Course shall be presented with a minimum of 40 hours of instruction each week during consecutive calendar weeks until course requirements are completed. (B) In the event of exceptional or emergency circumstances, the Director may, upon written finding of justification, grant a waiver of the minimum hours requirement. (2) Select and schedule instructors who are properly certified by the Commission. The selecting and scheduling of instructors is subject to special requirements as follows: (A) No single individual may be scheduled to instruct more than 35 percent of the total hours of the curriculum during any one delivery except as set forth in Part (a)(2)(B) of this Rule. (B) Where the school director shows exceptional or emergency circumstances and the school director documents that an instructor is properly certified to instruct more than 35 percent of the total hours of the curriculum, the Director of the Division may grant written approval for the expansion of the individual instructional limitation. (C) Schedule appropriate number of instructors for specific topic areas as required in 12 NCAC 10B .0703. (3) Provide each instructor with a commission-approved course outline and all necessary additional information concerning the instructor's duties and responsibilities. (4) Review each instructor's lesson plans and other instructional materials for conformance to the rules in this Chapter and to minimize repetition and duplication of subject matter. (5) Permanently maintain records of all Detention Officer Certification Courses sponsored or delivered by the school, reflecting: (A) Course title; (B) Delivery hours of course; (C) Course delivery dates; (D) Names and addresses of instructors utilized within designated subject-matter areas; (E) A roster of enrolled trainees, showing class attendance and designating whether each trainee's course participation was successful or unsuccessful including individual test scores indicating each trainee's proficiency in each topic area and methods or instruments; (F) Copies of all rules, regulations and guidelines developed by the school director; (G) Documentation of any changes in the initial course outline, including substitution of instructors; and (H) Documentation of make-up work achieved by each individual trainee, including test scores and methods or instruments. (6)(5) Arrange for the timely availability of appropriate audiovisual aids and materials, publications, facilities and equipment for PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 601 training in all topic areas as required in the "Detention Officer Certification Course Management Guide". (7)(6) Develop, adopt, reproduce, and distribute any supplemental rules, regulations, and requirements determined by the school to be necessary or appropriate for: (A) Effective course delivery; (B) Establishing responsibilities and obligations of agencies or departments employing course trainees; and (C) Regulating trainee participation and demeanor and ensuring trainee attendance and maintaining performance records. A copy of such rules, regulations and requirements shall be submitted to the Director as an attachment to the Pre-Delivery Report of Training Course Presentation, Form F-7A. A copy of such rules shall also be given to each trainee and to the sheriff of each trainee's employing agency at the time the trainee enrolls in the course. (8)(7) If appropriate, recommend housing and dining facilities for trainees. (9)(8) Not less than 30 days before commencing delivery of the course, submit to the Commission a Pre-Delivery Report of Training Course Presentation (Form F-7A) along with the following attachments: (A) A comprehensive course schedule showing arrangement of topical presentations and proposed instructional assignments; (B) A copy of any rules, regulations, and requirements for the school and, when appropriate, completed applications for certification of instructors. The Director shall review the submitted Pre-Delivery Report together with all attachments to ensure that the school is in compliance with all commission rules; if school's rules are found to be in violation, the Director shall notify the school director of deficiency, and approval will be withheld until all matters are in compliance with the Commissions' rules. (10)(9) Administer the course delivery in accordance with the rules in this Chapter and ensure that the training offered is as effective as possible. (11)(10) Monitor or designate a certified instructor to monitor the presentations of all probationary instructors during course delivery and prepare written evaluations on their performance and suitability for subsequent instructional assignments. These evaluations shall be prepared on commission forms and forwarded to the Division at the conclusion of each delivery. Based on this evaluation the school director shall recommend approval or denial of requests for Detention Officer Instructor Certification, Limited Lecturer Certification or Professional Lecturer Certification. (12)(11) Monitor or designate a certified instructor to monitor the presentations of all other instructors during course delivery and prepare written evaluations on their performance and suitability for subsequent instructional assignments. Instructor evaluations shall be prepared on commission forms in accordance with the rules in this Chapter. These evaluations shall be kept on file by the school for a period of three years and shall be made available for inspection by a representative of the Commission upon request. (13)(12) Ensure that any designated certified instructor who is evaluating the instructional presentation of another shall, at a minimum, hold certification in the same instructional topic area as that being taught. (14)(13) Administer or designate a person to administer appropriate tests as determined necessary at various intervals during course delivery. (15)(14) Maintain direct supervision, direction, and control over the performance of all persons to whom any portion of the planning, development, presentation, or administration of a course has been delegated. (16)(15) During a delivery of the Detention Officer Certification Course, make available to authorized representatives of the Commission three hours of scheduled class time and classroom facilities for the administration of a written examination to those trainees who have satisfactorily completed all course work. (17)(16) Not more than ten days after receiving from the Commission's representative the Report of Examination Scores, the school director shall submit to the Commission a Post-Delivery Report of Training Course Presentation (Form 7-B). (b) In addition to the requirements in 12 NCAC 10B .0704(a), the school director shall be readily available to students and Division staff at all times during course delivery by telephone, pager, or other means. The means, and applicable numbers, shall be filed with the accredited training delivery site and the Division prior to the beginning of a scheduled course delivery. Authority G.S. 17E-4. 12 NCAC 10B .0709 RESPONSIBILITIES: SCHOOL DIRECTORS, TELECOMMUNICATOR CERTIFICATION COURSE PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 602 (a) In planning, developing, coordinating, and delivering each commission accredited Telecommunicator Certification Course, the school director shall: (1) Formalize and schedule the course curriculum in accordance with the curriculum standards established by the rules in this Chapter; (2) Select and schedule instructors who are properly certified by the Commission; (3) Provide each instructor with a commission-approved course outline and all necessary additional information concerning the instructor's duties and responsibilities; (4) Review each instructor's lesson plans and other instructional materials for conformance to the rules in this Chapter and to minimize repetition and duplication of subject matter; (5) Permanently maintain records of all Telecommunicator Certification Courses sponsored or delivered by the school, reflecting: (A) Course title; (B) Delivery hours of course; (C) Course delivery dates; (D) Names and addresses of instructors utilized within designated subject-matter areas; (E) A roster of enrolled trainees, showing class attendance and designating whether each trainee's course participation was successful or unsuccessful including individual test scores indicating each trainee's proficiency in each topic area and methods or instruments; (F) Copies of all rules, regulations and guidelines developed by the school director; (G) Documentation of any changes in the initial course outline, including substitution of instructors; and (H) Documentation of make-up work achieved by each individual trainee, including test scores and methods or instruments, if applicable; (6)(5) Arrange for the timely availability of appropriate audiovisual aids and materials, publications, facilities and equipment for training in all topic areas as required in the "Telecommunicator Certification Course Management Guide"; (7)(6) Develop, adopt, reproduce, and distribute any supplemental rules, regulations, and requirements determined by the school to be necessary or appropriate for: (A) Effective course delivery; (B) Instruction on the responsibilities and obligations of agencies or departments employing course trainees; and (C) Regulating trainee participation and demeanor and ensuring trainee attendance and maintaining performance records. A copy of such rules, regulations and requirements shall be submitted to the Director as an attachment to the Pre-Delivery Report of Training Course Presentation, Form F-7A-T. A copy of such rules shall also be given to each trainee and to the sheriff or agency head of each trainee's employing agency at the time the trainee enrolls in the course; (8)(7) If appropriate, recommend housing and dining facilities for trainees; (9)(8) Not less than 30 days before commencing delivery of the course, submit to the Commission a Pre-Delivery Report of Training Course Presentation (Form F-7A-T) along with the following attachments: (A) A comprehensive course schedule showing arrangement of topical presentations and proposed instructional assignments; (B) A copy of any rules, regulations, and requirements for the school and, when appropriate, completed applications for certification of instructors. The Director shall review the submitted Pre-Delivery Report together with all attachments to ensure that the school is in compliance with all commission rules; if school's rules are found to be in violation, the Director shall notify the school director of deficiency, and approval will be withheld until all matters are in compliance with the Commissions' rules; (10)(9) Administer the course delivery in accordance with the rules in this Chapter and ensure that the training offered is as effective as possible; (11)(10) Monitor or designate a certified instructor to monitor the presentations of all probationary instructors during course delivery and prepare written evaluations on their performance and suitability for subsequent instructional assignments. These evaluations shall be prepared on commission forms and forwarded to the Division at the conclusion of each delivery. Based on this evaluation the school director shall recommend approval or denial of requests for Telecommunicator Instructor Certification or Professional Lecturer Certification; (12)(11) Monitor or designate a certified instructor to monitor the presentations of all other instructors during course delivery and prepare written evaluations on their performance and suitability for subsequent instructional PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 603 assignments. Instructor evaluations shall be prepared on commission-approved forms in accordance with the rules in this Chapter. These evaluations shall be kept on file by the school for a period of three years and shall be made available for inspection by a representative of the Commission upon request; (13)(12) Ensure that any designated certified instructor who is evaluating the instructional presentation of another shall, at a minimum, hold certification in the same instructional topic area as that being taught; (14)(13) Administer or designate a person to administer appropriate tests as determined necessary at various intervals during course delivery; (15)(14) Maintain direct supervision, direction, and control over the performance of all persons to whom any portion of the planning, development, presentation, or administration of a course has been delegated; (16)(15) During a delivery of the Telecommunicator Certification Course, make available to authorized representatives of the Commission two hours of scheduled class time and classroom facilities for the administration of a written examination to those trainees who have satisfactorily completed all course work; and (17)(16) Not more than 10 days after receiving from the Commission's representative the Report of Examination Scores, the school director shall submit to the Commission a Post-Delivery Report of Training Course Presentation (Form 7-B-T). (b) In addition to the requirements in 12 NCAC 10B .0708(a), the school director shall be readily available to students and Division staff at all times during course delivery by telephone, pager, or other means. The means, and applicable numbers, shall be filed with the accredited training delivery site and the Division prior to the beginning of a scheduled course delivery. Authority G.S. 17E-4. 12 NCAC 10B .0713 ADMISSION OF TRAINEES (a) The school may not admit any individual younger than 21 years of age as a trainee in any non-academic Commission-accredited basic training course without the prior written approval of the Director of the Standards Division for those individuals who will turn 21 years of age during the course, but prior to the ending date. (b) The school shall give priority admission in Commission-accredited basic training courses to individuals holding full-time employment with criminal justice agencies. (c) The school shall administer the reading component of a standardized test which reports a grade level for each trainee participating in the Detention Officer Certification Course. The specific type of test instrument shall be determined by the school director and shall be administered no later than by the end of the first two weeks of a presentation of the Detention Officer Certification Course. The grade level results on each trainee shall be submitted to the Commission on each trainee's Report of Student Course Completion (Form F-7d). (d) The school shall not admit any individual as a trainee in a presentation of the Detention Officer Certification Course or the Telecommunicator Certification Course unless as a prerequisite the individual has provided to the certified school director a Medical Examination Report Form (F-2) and the Medical History Statement Form (F-1) in compliance with 12 NCAC 10B .0304. .0304, properly completed by a physician licensed to practice medicine in North Carolina. The Medical Examination Report Form (F-2) and the Medical History Statement Form (F- 1) required by the North Carolina Criminal Justice Education and Training Standards Commission shall be recognized by the Commission for the purpose of complying with this Rule. Authority G.S. 17E-7. SECTION .0800 – ACCREDITATION OF JUSTICE OFFICER SCHOOLS AND TRAINING COURSES 12 NCAC 10B .0802 ACCREDITATION: DELIVERY/DETENTION OFFICER CERTIFICATION COURSE (a) An institution or agency must be accredited to deliver a Detention Officer Certification Course. (b) In order to obtain accreditation, an institution or agency shall meet or exceed the following minimum standards for overall course delivery: (1) the institution or agency shall conduct a minimum of one Detention Officer Certification Course each calendar year; (2) the executive officer shall comply with the requirements of 12 NCAC 10B .0703; and (3) the executive officer shall comply with the additional accreditation requirements as specified in the "Detention Officer Certification Course Management Guide". (c) An institution or agency meeting the requirements of 12 NCAC 10B .0802(b) may submit a "Request for Accreditation" (Form F-7) to the Division. Upon receipt of the request, the Division staff shall: (1) review the application for completeness; (2) contact the institution or agency executive officer or designated school director to schedule an on-site visit and tour of the proposed training facilities; (3) during the on-site visit note any deficiencies and attempt to provide assistance and recommendations in correcting those deficiencies; and (4) notify the applying institution or agency, in writing, of the approval or denial of the accreditation request. (d) In cases where the deficiencies prohibit the immediate accreditation of the institution or agency, the application shall be placed in a pending status: PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 604 (1) applications may remain in a pending status for no more than 30 days from the date of notification of any deficiencies; and (2) within or following the 30 day period, the Division shall: (A) issue accreditation; or (B) notify the institution or agency, in writing, that it must re-apply for accreditation. (e) Any existing commission-issued accreditations issued and valid on July 31, 1998 shall be automatically extended with an expiration date of December 31, 1999 at which time the previously issued accreditation shall be terminated. (f) All new applicants for accreditation shall meet the requirements of this Section after August 1, 1998. (g) The Division staff shall conduct an on-site accreditation audit once each calendar year which shall include, but is not limited to: (1) the review of all records maintained by the school director as required in 12 NCAC 10B .0704; and (2) the inspection of the institution or agency's training facilities to ensure continued compliance with accreditation standards as required in 12 NCAC 10B .0703 and .0802 (g) The accredited institution or agency will be subject to unannounced on-site accreditation audits to ensure compliance with these Rules. (h) Following the annual an on-site accreditation audit, the Division staff shall: (1) notify the institution or agency of the results of the audit; and (2) recommend to the Commission's Probable Cause Committee any action pursuant to 12 NCAC 10B .0802(i). (i) School accreditation shall remain effective until surrendered, suspended, or revoked. (j) The Commission may suspend or revoke the accreditation of a school when it finds that the school has failed to meet or to continuously maintain any requirement, standard or procedure for school accreditation or course delivery as required by Section .0700 of this Subchapter. Authority G.S. 17E-4. SECTION .0900 – MINIMUM STANDARDS FOR JUSTICE OFFICER INSTRUCTORS 12 NCAC 10B .0903 CERT: INSTRUCTORS FOR DETENTION OFFICER CERTIFICATION COURSE (a) Any person participating in a commission-accredited Detention Officer Certification Course as an instructor, teacher, professor, lecturer, or other participant making presentations to the class shall first be certified by the Commission as an instructor. A waiver may be granted by the Director upon receipt of a written application to teach in a designated school. (b) The Commission shall certify Detention Officer Certification Course instructors under the following categories: (1) Detention Officer Instructor Certification; (2) Professional Lecturer Certification; or (3) Limited Lecturer Certification as outlined in Rules .0904, .0906 and .0908 of this Section. (c) In addition to all other requirements of this Section, all instructors certified by the Commission to teach in a Commission-accredited Detention Officer Certification Course shall remain knowledgeable and attend and complete any instructor training updates related to curriculum content and delivery as may be offered by the curriculum developer and within the time period as specified by the curriculum developer. Authority G.S. 17E-4. 12 NCAC 10B .0904 DETENTION OFFICER INSTRUCTOR CERTIFICATION (a) An applicant for Detention Officer Instructor Certification shall:shall present documentary evidence demonstrating that the applicant: (1) not have had any type of certification issued from this Commission, from the North Carolina Criminal Justice Education and Training Standards Commission, or from any commission, agency, or board established to certify pursuant to said commission, agency or boards' standards, which was revoked, suspended or denied for cause and such period of sanction is still in effect at the time of designation; (1)(2) has have attended and successfully completed the North Carolina Sheriffs' Education and Training Standards Commission-approved Detention Officer Training Course; or holds hold a valid general or grandfather certification as a detention officer or correctional officer; and (2)(3) holds hold General Instructor certification issued by the North Carolina Criminal Justice Education and Standards Commission. (b) Persons holding Detention Officer Instructor Certification may teach any topical areas of instruction in the Commission-mandated course with the exception of those outlined in 12 NCAC 10B .0908(a)(1) through (5). Authority G.S. 17E-4. 12 NCAC 10B .0905 TERMS AND CONDITIONS OF DETENTION OFFICER INSTRUCTOR CERTIFICATION (a) An applicant meeting the requirements for certification as a Detention Officer Instructor shall serve a probationary period. The probationary period will be set to expire concurrently with the expiration of the instructors' General Instructor Certification issued by the North Carolina Criminal Justice Education and Training Standards Commission. As of August 1, 2002, the expiration dates of any existing commission-issued Probationary General Detention Officer Instructor Certifications will be amended to expire concurrently with the expiration of the instructors' General Instructor Certification issued by the North Carolina Criminal Justice Education and Training Standards Commission. If the time-period before the expiration date is less PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 605 than one year, then the eight hours of instruction shall be waived for this shortened term and Full General Detention Officer Instructor Certification will be issued provided all other conditions for Full status as set out in Paragraph (b) of this Section are met. (b) The probationary instructor shall be awarded full Detention Officer Instructor Certification at the end of the probationary period if the instructor, instructor's certification required in 12 NCAC 10B .0904(a)(2) remains valid, and that the instructor through application, submits to the Division documentation that certification required in 12 NCAC 10B .0904(a)(2) remains valid, and either: (1) a favorable recommendation from a school director accompanied by certification on a commission Instructor Evaluation Form that the instructor satisfactorily taught a minimum of eight hours as specified in Paragraph (e) of this Rule in a commission-accredited Detention Officer Certification Course during his/her probationary year; or (2) an acceptable written evaluation as specified in Paragraph (e) of this Rule by a commission member or staff member based on an on-site classroom evaluation of the probationary instructor in a commission-accredited Detention Officer Certification Course. Such evaluation shall be certified on a commission Instructor Evaluation Form. In addition, instructors evaluated by a commission or staff member must also teach a minimum of eight hours in a commission-accredited Detention Officer Certification Course during his/her probationary year. (c) As of August 1, 2002, the expiration dates of any existing commission-issued Full General Detention Officer Instructor Certifications will be amended to expire concurrently with the expiration of the instructors' General Instructor Certification issued by the North Carolina Criminal Justice Education and Training Standards Commission. If the time-period before the expiration date is less than two years, then the eight hours of instruction shall be waived for this shortened term and Full General Detention Officer Instructor Certification will be renewed. Full Detention Officer Instructor Certification is continuous so long as the instructor, instructor's certification required in 12 NCAC 10B .0904(a)(2) remains valid, and that the instructor submits to the Division every two years a renewal application to include documentation that certification required in 12 NCAC 10B .0904(a)(2) remains valid, and which includes either: (1) a favorable recommendation from a school director accompanied by certification on a commission Instructor Evaluation Form that the instructor satisfactorily taught a minimum of eight hours as specified in Paragraph (e) of this Rule in a commission-accredited Detention Officer Certification Course during the previous two year period. The date full Instructor Certification is originally issued is the anniversary date from which each two year period is figured; or (2) an acceptable written evaluation as specified in Paragraph (e) of this Rule by a commission member or staff member based on a minimum eight hours, on-site classroom observation of the instructor in a commission-accredited Detention Officer Certification Course. (d) In the event a General Detention Officer Instructor Certification (either Probationary or Full ) is terminated for failure to have been satisfactorily evaluated for eight hours of instruction in a Detention Officer Certification Course, the individual may re-apply for certification meeting the initial conditions for such certification, but must also provide documentation that he/she has audited eight hours of instruction in a delivery of an accredited Detention Officer Certification Course. (e) An Instructor Evaluation Form records a rating of the instructor's qualities, organization and presentation of materials consistent with the requirements for successfully completing the Criminal Justice Instructor Training as set out in 12 NCAC 09B .0209. Instructor qualities, organization and presentation are rated on a scale of 1 (poor), 2 (fair), 3 (good), 4 (excellent) and 5 (superior). Instructor qualities include, but may not be limited to appearance, gestures, verbal pauses, grammar, pronunciation, enunciation, voice, rate (too slow or too fast), eye contact, and enthusiasm. Organization and presentation include, but may not be limited to: (1) Major objectives of the course made clear; (2) Class Presentation planned and organized; (3) Important ideas clearly explained; (4) Instructor's mastery of the course content; (5) Class time well used; (6) Encouragement of critical thinking and analysis; (7) Encouragement of student involvement; (8) Reaction to student viewpoints different from instructors; (9) Student's attitude toward instructor; and (10) Instructors use of training aids. A rating of 1 or 2 is unacceptable or unsatisfactory; and a rating of 3, 4, or 5 is acceptable or satisfactory. Authority G.S. 17E-4. 12 NCAC 10B .0911 SUSPENSION: REVOCATION: DENIAL OF DETENTION OFFICER INSTRUCTOR CERTIFICATION (a) The Division may notify an applicant for instructor certification or a certified instructor that a deficiency appears to exist and attempt, in an advisory capacity, to assist the person in correcting the deficiency. (b) When any person certified as an instructor by the Commission is found to have knowingly and willfully violated any provision or requirement of these Rules, the Commission may take action to correct the violation and to ensure that the violation does not recur, including: (1) issuing an oral warning and request for compliance; PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 606 (2) issuing a written warning and request for compliance; (3) issuing an official written reprimand; (4) suspending the individual's certification for a specified period of time or until acceptable corrective action is taken by the individual; (5) revoking the individual's certification. (c) The Commission may deny, suspend, or revoke an instructor's certification when the Commission finds that the person: (1) has failed to meet and maintain any of the requirements for qualification; or (2) has failed to remain currently knowledgeable in the person's areas of expertise by failing to attend and successfully complete any instructor training updates pursuant to 12 NCAC 10B .0903(c); or (3) has failed to deliver training in a manner consistent with the instructor lesson plans; or (4) has failed to follow specific guidelines outlined in the "Detention Officer Certification Course Management Guide" which is hereby incorporated by reference and shall automatically include any later amendments and editions of the referenced materials. This publication is authored by and may be obtained from the North Carolina Justice Academy, Post Office Drawer 99, Salemburg, North Carolina 28385 at no cost at the time of adoption of this Rule; or (5) has demonstrated unprofessional personal conduct in the delivery of commission-mandated training; or (6) has otherwise demonstrated instructional incompetence; or (7) has knowingly and willfully obtained, or attempted to obtain instructor certification by deceit, fraud, or misrepresentation. misrepresentation; or (8) has had any type of certification issued from the Commission, from the North Carolina Criminal Justice Education and Training Standards Commission, or from any commission, agency, or board established to certify pursuant to said commission, agency or boards' standards, which was revoked, suspended or denied for cause. Authority G.S. 17E-4. 12 NCAC 10B .0913 CERT: INSTRUCTORS FOR TELECOMMUNICATOR CERTIFICATION COURSE (a) Any person participating in a commission-accredited Telecommunicator Certification Course as an instructor, teacher, professor, lecturer, or other participant making presentations to the class shall first be certified by the Commission as an instructor. A waiver may be granted by the Director upon receipt of a written application to teach in a designated school. (b) As of the effective date of this Rule, the Commission shall certify Telecommunicator Certification Course instructors under the following categories: (1) Telecommunicator Instructor Certification; or (2) Professional Lecturer Certification. (c) Individuals who have previously instructed in a commission-accredited Telecommunicator Certification Course as it existed prior to the effective date of this Rule are eligible to apply for a waiver of 12 NCAC 10B .0913(b), provided documentation is submitted showing the applicant taught a minimum of eight hours in the Telecommunicator Certification Course within the one-year period prior to the date of application. (d) In addition to all other requirements of this Section, all instructors certified by the Commission to teach in a Commission-accredited Telecommunicator Certification Course shall remain knowledgeable and attend and complete any instructor training updates related to curriculum content and delivery as may be offered by the curriculum developer and within the time period as specified by the curriculum developer. Authority G.S. 17E-4. 12 NCAC 10B .0914 TELECOMMUNICATOR INSTRUCTOR CERTIFICATION (a) An applicant for Telecommunicator Instructor Certification shall:shall present documentary evidence demonstrating that the applicant: (1) not have had any type of certification issued from this Commission, from the North Carolina Criminal Justice Education and Training Standards Commission, or from any commission, agency, or board established to certify pursuant to said commission, agency or boards' standards, which was revoked, suspended or denied for cause and such period of sanction is still in effect at the time of designation; (1)(2) has have attended and successfully completed the North Carolina Sheriffs' Education and Training Standards Commission-approved Telecommunicator Training Course, or holds hold a valid general or grandfather certification as a telecommunicator; and (2)(3) holds hold General Instructor certification issued by the North Carolina Criminal Justice Education and Standards Commission. (b) Persons holding Telecommunicator Instructor Certification may teach any topical areas of instruction in the Commission-mandated course. Authority G.S. 17E-4. 12 NCAC 10B .0915 TERMS AND CONDITIONS OF TELECOMMUNICATOR INSTRUCTOR CERTIFICATION (a) An applicant meeting the requirements for certification as a Telecommunicator Instructor shall serve a probationary period. The Telecommunicator Instructor Certification probationary period shall be set to automatically expire concurrently with the PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 607 expiration of the instructor's General Instructor Certification issued by the North Carolina Criminal Justice Education and Training Standards Commission. As of August 1, 2002, the expiration dates of any existing commission-issued Probationary General Telecommunicator Instructor Certifications will be amended to expire concurrently with the expiration of the instructors' General Instructor Certification issued by the North Carolina Criminal Justice Education and Training Standards Commission. If the time-period before the expiration date is less than one year, then the eight hours of instruction shall be waived for this shortened term and Full General Telecommunicator Instructor Certification will be issued provided all other conditions for Full status as set out in Paragraph (b) of this Rule are met. (b) The probationary instructor shall be awarded full Telecommunicator Instructor Certification at the end of the probationary period if the instructor instructor's certification required in 12 NCAC 10B .0914(a)(2) remains valid, and that the instructor through application, submits to the Division: Division documentation that certification required in 12 NCAC 10B .0914(a)(2) remains valid, and either: (1) a favorable recommendation from a school director accompanied by certification on a commission Instructor Evaluation Form that the instructor satisfactorily taught a minimum of eight hours as specified in Paragraph (e) of this Rule in a commission-accredited Telecommunicator Certification Course during his/her probationary year; or (2) an acceptable written evaluation as specified in Paragraph (e) of this Rule by a commission member or staff member based on an on-site classroom evaluation of the probationary instructor in a commission-accredited Telecommunicator Certification Course. Such evaluation shall be certified on a commission Instructor Evaluation Form. In addition, instructors evaluated by a commission or staff member must also teach a minimum of eight hours in a commission-accredited Telecommunicator Certification Course during his/her probationary year. (c) As of August 1, 2002, the expiration dates of any existing commission-issued Full General Telecommunicator Instructor Certifications will be amended to expire concurrently with the expiration of the instructors' General Instructor Certification issued by the North Carolina Criminal Justice Education and Training Standards Commission. If the time-period before the expiration date is less than two years, then the eight hours of instruction shall be waived for this shortened term and Full General Telecommunicator Instructor Certification will be renewed. Full Telecommunicator Instructor Certification is continuous so long as the instructor, instructor's certification required in 12 NCAC 10B .0904(a)(2) remains valid, and that the instructor submits to the Division every two years a renewal application to include documentation that certification required in 12 NCAC 10B .0914(a)(2) remains valid, and either: (1) a favorable recommendation from a school director accompanied by certification on a commission Instructor Evaluation Form that the instructor satisfactorily taught a minimum of eight hours as specified in Paragraph (e) of this Rule in a commission-accredited Telecommunicator Certification Course during the previous two pear period. The date full Instructor Certification is originally issued is the anniversary date from which each two year period is figured; or (2) an acceptable written evaluation as specified in Paragraph (e) of this Rule by a commission member or staff member based on a minimum eight hours, on-site classroom observation of the instructor in a commission-accredited Telecommunicator Certification Course. (d) In the event a General Telecommunicator Instructor Certification (either Probationary or Full) is terminated for failure to have been evaluated for eight hours of instruction in a Telecommunicator Certification Course, the individual may re-apply for certification meeting the initial conditions for such certification, but must also provide documentation that he/she has audited 8-hours of instruction in a delivery of an accredited Telecommunicator Certification Course. (e) An Instructor Evaluation Form records a rating of the instructor's qualities, organization and presentation of materials consistent with the requirements for successfully completing the Criminal Justice Instructor Training as set out in 12 NCAC 09B .0209. Instructor qualities, organization and presentation are rated on a scale of 1(poor), 2 (fair), 3 (good), 4 (excellent) and 5 (superior). Instructor qualities include, but may not be limited to appearance, gestures, verbal pauses, grammar, pronunciation, enunciation, voice, rate (too slow or too fast), eye contact, and enthusiasm. Organization and presentation include, but may not be limited to: (1) Major objectives of the course made clear; (2) Class presentation planned and organized; (3) Important ideas clearly explained; (4) Instructor's mastery of the course content; (6) Encouragement of critical thinking and analysis; (7) Encouragement of student involvement; (8) Reaction to student viewpoints different from instructors; (9) Students attitude toward instructor; and (10) Instructor's use of training aids. A rating of 1 or 2 is unacceptable or unsatisfactory; and a rating of 3, 4, or 5 are acceptable or satisfactory. Authority G.S. 17E-4. 12 NCAC 10B .0919 SUSPENSION: REVOCATION: DENIAL OF TELECOMMUNICATOR INSTRUCTOR CERTIFICATION (a) The Division may notify an applicant for instructor certification or a certified instructor that a deficiency appears to exist and attempt, in an advisory capacity, to assist the person in correcting the deficiency. (b) When any person certified as an instructor by the Commission is found to have knowingly and willfully violated PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 608 any provision or requirement of these Rules, the Commission may take action to correct the violation and to ensure that the violation does not recur, including: (1) issuing an oral warning and request for compliance; (2) issuing a written warning and request for compliance; (3) issuing an official written reprimand; (4) suspending the individual's certification for a specified period of time or until acceptable corrective action is taken by the individual; or (5) revoking the individual's certification. (c) The Commission may deny, suspend, or revoke an instructor's certification when the Commission finds that the person: (1) has failed to meet and maintain any of the requirements for qualification; or (2) has failed to remain currently knowledgeable in the person's areas of expertise by failing to attend and successfully complete any instructor training updates pursuant to 12 NCAC 10B .0913(d); or (3) has failed to deliver training in a manner consistent with the instructor lesson plans; or (4) has failed to follow specific guidelines outlined in the "Telecommunicator Certification Course Management Guide" which shall be used and shall automatically include any later amendments and editions of the referenced materials. This publication is authored by and may be obtained from the North Carolina Justice Academy, Post Office Drawer 99, Salemburg, North Carolina 28385 at no cost at the time of adoption of this Rule; or (5) has demonstrated unprofessional personal conduct in the delivery of commission-mandated training; or (6) has otherwise demonstrated instructional incompetence; or (7) has knowingly and willfully obtained, or attempted to obtain instructor certification by deceit, fraud, or misrepresentation. misrepresentation; or (8) has had any type of certification issued from this Commission, from the North Carolina Criminal Justice Education and Training Standards Commission, or from any commission, agency, or board established to certify pursuant to said commission, agency or boards' standards, which was revoked, suspended or denied for cause. Authority G.S. 17E-4. TITLE 15A – DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission for Health Services intends to amend the rule cited as 15A NCAC 18A .1969. Proposed Effective Date: January 1, 2005 Public Hearing: Date: October 6, 2004 Time: 10:00 a.m. Location: Room 1A244, Parker-Lincoln Building, 2728 Capital Blvd, Raleigh, NC Reason for Proposed Action: This Rule amendment provides clarifying procedures for the approval and permitting of "Accepted" wastewater systems that are a new category established by Session Law 2001-505. Procedure by which a person can object to the agency on a proposed rule: Written objections concerning these Rule changes may be submitted to Steve Steinbeck, 1642 Mail Service Center, Raleigh, NC 27699-1642, 919-715-3273, fax 919-715- 3227, and email steve.steinbeck@ncmail.net. Written comments may be submitted to: Steve Steinbeck, 1642 Mail Service Center, Raleigh, NC 27699-1642, 919-715- 3273, fax 919-715-3227, and email steve.steinbeck@ncmail.net. Comment period ends: November 15, 2004 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State Local Substantive (>$3,000,000) None CHAPTER 18 – ENVIRONMENTAL HEALTH SUBCHAPTER 18A – SANITATION SECTION .1900 - SEWAGE TREATMENT AND DISPOSAL SYSTEMS 15A NCAC 18A .1969 APPROVAL AND PERMITTING PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 609 OF ON-SITE SUBSURFACE WASTEWATER SYSTEMS, TECHNOLOGIES, COMPONENTS, OR DEVICES Experimental, controlled demonstration, and innovativeinnovative, and accepted wastewater systems (hereinafter referred to as E & I systems) are any wastewater systems, system components, or devices that are not specifically described in Rules .1955, .1956, .1957, or .1958 of this Section, including any system for which reductions are proposed in the minimum horizontal or vertical separation requirements or increases are proposed to the maximum long-term acceptance rates of this Section; or any E & I systems as defined by G.S. 130A-343(a) and approved pursuant to applicable Laws and this Rule. Accepted systems are as defined by G.S. 130A-343(a). This Rule shall provide for the approval and permitting of E & I and accepted systems. (1) APPLICATION: An application shall be submitted in writing to the State for an E & I system. The application shall include the information required by G.S. 130A-343 (d), (e), (f), and (g), and the following, as applicable: (a) specification of the type of approval requested as either innovative, controlled demonstration, experimental, accepted or a combination; (b) description of the system, including materials used in construction, and its proposed use; (c) summary of pertinent literature, published research, and previous experience and performance with the system; (d) results of any available testing, research or monitoring of pilot systems or full-scale operational systems conducted by a third party research or testing organization; (e) evaluation protocols shall be specified as either an approved and listed protocol by the State or submit an alternative protocol for the evaluation of the performance of the manufacturer's system; (e)(f) identity and qualifications of any proposed research or testing organization and the principal investigators, and an affidavit certifying that the organization and principal investigators have no conflict of interest and do not stand to gain financially from the sale of the E & I system; (f)(g) objectives, methodology, and duration of any proposed research or testing; (g)(h) specification of the number of systems proposed to be installed, the criteria for site selection, and system monitoring and reporting procedures; (h)(i) operation and maintenance procedures, system classification, proposed management entity and system operator; (i)(j) procedure to address system malfunction and replacement or premature termination of any proposed research or testing; (j)(k) notification of any proprietary or trade secret information, system, component, or device; and (l) a request for innovative system approval intended by the applicant to be reclassified from an innovative to an accepted system shall include monitoring, reporting and evaluation protocols to be followed by the manufacturer, the results of which shall be submitted in its future petition for accepted status; and (k)(m) Fee fee payment as required by G.S. 130A-343(k), by corporate check, money order or cashier's check made payable to: North Carolina On-Site Wastewater System Account or NC OSWW System Account, and mailed to the On-Site Wastewater Section, 1642 Mail Service Center, Raleigh, NC 27699-1642 or hand delivered to Rm. 1A-245, Parker Lincoln Building, 2728 Capital Blvd., Raleigh, NC. (2) REVIEW: The State shall review all applications submitted and evaluate at least the following: (a) the completeness of the application, and whether additional information is needed to continue the review; (b) whether the system meets the standards of an innovative system under G.S. 130A-343(a)(5), G.S. 130A-343(g), and Item (3) of this Rule, or whether the system meets the standards of an experimental or controlled demonstration system under G.S. 130A-343(e) or (f) and Item (4) of this Rule, as applicable. (3) INNOVATIVE SYSTEMS: Innovative systems, technologies, components, or devices shall be reviewed and approved by the State, and the local health department shall permit innovative systems in accordance with the following: (a) The State shall approve the system as an innovative system if the following standards have been met; PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 610 (i) The system, shall have been demonstrated to perform equal or superior to a system, which is described in Rules .1955, .1956, .1957, or .1958, of this Section, based upon controlled pilot-scale research studies or statistically-valid monitoring of full-scale operational systems. (ii) Materials used in construction shall be equal or superior in physical properties and chemical durability, compared to materials used for similar proposed systems, specifically described in Rules .1955, .1956, .1957, or .1958 of this Section. (b) When a system is approved as innovative by the State, the applicant shall be notified in writing. Such notice shall include any conditions for permitting, siting, installation, use, monitoring, and operation. Approved innovative systems shall be assigned a unique code for tracking purposes. Prior to making a request for reclassification of a system from innovative to accepted, the manufacturer shall have a system in place to keep track of the number and location of new system installations, and of any system installations it becomes aware of which were required to be repaired, and to provide this information to the State upon request and in any subsequent petition for accepted status. (c) A local health department shall issue an Improvement Permit and a Construction Authorization for any innovative system approved by the State upon a finding that the provisions of this Section including any conditions of the approval are met. Use of an innovative system and any conditions shall be described on the Improvement Permit, Construction Authorization, or Operation Permit. (4) EXPERIMENTAL AND CONTROLLED DEMONSTRATION SYSTEMS: A system may be approved for use as an experimental or controlled demonstration system as part of a research or testing program which has been approved by the State. The research or testing program shall be conducted by a third party research or testing organization which has knowledge and experience relevant to the proposed research or testing and has no conflict of interest and does not stand to gain financially from the sale of the proposed system. (a) To be approved by the State, the proposed research or testing program shall include the following: (i) The research program shall be designed such that, if the objectives were met, the system would satisfy the standards for approval as an innovative system under Item (3) of this Rule. (ii) Research design and testing methodology shall have a reasonable likelihood of meeting the objectives. (b) The State shall notify the applicant and the applicable local health departments when the proposed research or testing program has been approved for an experimental or controlled demonstration system. Such notice shall include, but not be limited to, conditions for permitting, siting, operation, monitoring and maintenance, and number of systems which can be installed. (c) A local health department shall issue an Improvement Permit and Construction Authorization for an experimental or controlled demonstration system when the following conditions are met: (i) There is an application for an Improvement Permit in accordance with Rule .1937(c) of this Section, with the proposed use of an experimental system specified. (ii) The proposed site is included as part of an approved research or testing program and any conditions specified for use of the system have been met. (iii) When an experimental or controlled demonstration system is proposed to serve a residence, place of business or place of public assembly, there shall be a repair area using a non-experimental or non-controlled PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 611 demonstration backup system in accordance with the provisions of Rule .1945(b) or an accepted system of this Rule, except: (A) When an existing and properly functioning wastewater system is available for immediate use, including connection to a public or community wastewater system; or (B) When the experimental or controlled demonstration system is used as a repair to an existing malfunctioning system; or (C) When for a controlled demonstration system sufficient available space shall be reserved for the installation of a replacement system at least equal to the initial controlled demonstration system, or the State or Local Health Department otherwise determines that the manufacturer can provide an acceptable alternative method for collection, treatment, and disposal of the wastewater. (iv)(iii) When an experimental or controlled demonstration system is proposed to serve a residence, place of business or place of public assembly, there shall be a repair system in accordance with the provisions of Rule .1945(b) or an innovative or accepted system of this Rule, except: (A) When an existing and properly functioning wastewater system is available for immediate use, including connection to a public or community wastewater system; or (B) When the experimental or controlled demonstration system is used as a repair to an existing malfunctioning system when there are no other approved or accepted repair options; or (C) As provided in G.S. 130A-343(f) for Controlled Demonstration Systems. (v)(iv) When an experimental or controlled demonstration system is proposed which shall not serve a residence, place of business, or place of public assembly, a repair area or backup system shall not be required. (vi)(v) The application for an experimental system shall include statements that the property owner is aware of its experimental nature, that the local health department and State do not guarantee or warrant that these systems will function in a satisfactory manner for any period of time, and that use of the system may need to be discontinued if the system research or testing program is prematurely terminated. Such statements shall be signed by the owner. (vii)(vi) The owner of the site on which an experimental system is proposed shall PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 612 execute an easement granting rights of access to the system at reasonable hours for monitoring and evaluation to the research or testing organization. This easement shall specify that it is granted for the purposes of researching and testing an experimental wastewater system and shall remain valid as long as the system is to be part of the proposed research or testing program. The easement shall be recorded with the county register of deeds. (viii)(vii) Provisions shall be made for operation and maintenance of the system. (ix)(viii) Any special conditions required for the installation of the experimental or controlled demonstration system shall be specified in the Improvement Permit and the Construction Authorization. Use of an experimental or controlled demonstration system and any conditions shall be described on the Improvement Permit, Construction Authorization and any subsequent operation permits, with provisions for a repair area and backup system specified. A condition of the Improvement Permit and Construction Authorization shall be that the installation be under the direct field supervision of the research or testing organization. (x)(ix) The proposed Improvement Permit, Construction Authorization and any subsequent operation permits for experimental or controlled demonstration systems shall be reviewed by the State and found to be consistent with the approved research or testing program prior to issuance by the local health department. (d) Upon completion of the installation and prior to use, an Experimental or Controlled Demonstration System Operation Permit (ESOP or CDSOP) shall be issued by the local health department. The ESOP (CDSOP) shall be valid for a specified period of time not to exceed five years. Special maintenance, monitoring and testing requirements shall be specified as permit conditions, in accordance with the approved research or testing program. Failure to carry out these conditions shall be grounds for permit suspension or revocation. (e) Prior to expiration of the ESOP (CDSOP) and based upon satisfactory system performance as determined during the research or testing program, the local health department shall issue an Operation Permit. Premature termination of the research or testing program shall be grounds for ESOP (CDSOP) suspension or revocation. (f) Upon completion of monitoring, research and testing, the research or testing organization shall prepare a final report including recommendations on future use of the system. If the State determines that the results indicate that the standards of Item (3) of this Rule are met, the State shall approve the use as an innovative system. (g) Any proposed changes or modifications in the E & I system shall be submitted for review and approval by the State. (5) ACCEPTED SYSTEMS: A petition to the Commission (CHS) for reclassification of a proprietary innovative system to an accepted system shall be submitted by the manufacturer for review to the State, accompanied by the fee payment as required by G.S. 130A-343(k) and as stipulated in Item (l) of this Rule. The State shall review all petitions submitted and evaluate the following: the completeness of the petition, and whether additional information is needed to continue the review; and whether the system meets the standards of an accepted system under G.S. 130A-343(a)(l), G.S. 130A- 343(h), and this Section. The State may also initiate a review of a nonproprietary innovative system pursuant to G.S. l30A-343(i)(2). The State shall submit to the CHS findings and recommendations based upon its review for final Commission action on system designation. The Commission shall designate a wastewater system technology, component or device as an accepted system when it finds PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 613 that the standards set forth by G.S. 130A- 343(a)(1) and G.S. l30A-343(h) have been met. The following factors shall be considered prior to granting accepted system status: (a) documentation provided that there are at last 300 systems installed statewide and the system has been in use as an approved innovative system for more than five years; (b) data and findings of all prior evaluations of the system performance shall be provided by the manufacturer; (c) results of prior performance surveys of innovative systems in use in North Carolina for at least the five year period immediately preceding the petition; (d) review(s) of records on system use and performance reported by local health departments and other information documenting the experiences with performance of the system in North Carolina, including information collected and reported pursuant to Items (3)(b) and (12) of this Rule; (e) for proprietary nitrification trench systems, a statistically valid survey of system performance shall be performed. The manufacturer shall provide a proposed survey plan pursuant to Sub-Items (5)(e)(i) or (5)(e)(ii) of this Rule for State concurrence prior to carrying out the survey. This plan shall specify number of systems to be evaluated, period of evaluation, method to randomly select systems to be evaluated, methods of field and data evaluation, and proposed survey team members, including proposed cooperative arrangements to be made with State and local health department on-site wastewater program staff. The State shall facilitate local health department participation with any performance review or survey. The State shall utilize the Division of Public Health's State Center for Health Statistics for assistance in evaluating the statistical validity of proposed evaluation protocols. (i) The survey shall include the field evaluation of at least 250 randomly selected innovative systems compared with 250 comparably-aged randomly selected conventional systems, with at least 100 of each type of surveyed system currently in use and in operation for at least five years. Systems surveyed shall be distributed throughout the three physiographic regions of the state in approximate proportion to the irrelative usage in the three regions. The survey shall determine comparative system failure rates, with field evaluations completed during a typical wet-weather season (February through early April), with matched innovative and conventional systems sampled during similar time periods in each region. The petitioner shall provide a statistical analysis of the survey results showing a "one-sided" test where, if the failure rate in the sample of 250 innovative systems is at least five percentage points higher than the failure rate in the sample of 250 conventional systems, there is only a five percent chance that a difference this large would occur by chance (95% confidence level). If a statistically significant higher failure rate in the innovative system is not detected, the Commission shall find that the innovative system performs the same as or better than the conventional system. (ii) Other surveys, including evaluations of different numbers of innovative and conventional systems, designed to verify equal or superior performance of the innovative system compared to a conventional system under actual field conditions in North Carolina may be proposed by the manufacturer for approval by the state when they are PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 614 demonstrated to have comparable statistical validity as described in Sub- Item (5)(e)(i) of this Rule. (f) The Commission may grant accepted status to an innovative system based upon a showing by the manufacturer that there have been at least 10,000 operational systems installed in the state, in more than one county of the state, over at least an eight year period with a total reported failure rate statewide based on records provided by the manufacturer and local health departments of less than one percent. However, the granting of accepted status based upon this criteria shall be conditioned on the manufacturer successfully completing an approved field survey pursuant to Items (5)(e)(i) or (5)(e)(ii) of this Rule within no more than 24 months of being granted accepted status; (g) Proprietary innovative systems which include an advanced pretreatment component designed to achieve specific effluent quality standards, the field survey shall be designed to verify effluent is in compliance with these established performance standards. Data evaluated shall be from sites where influent wastewater characteristics and flow meet design parameters. Compliance shall be achieved for all parameters by the arithmetic mean of all samples (geometric mean for fecal coliforms, where applicable). The percent of all samples exceeding performance standards shall not exceed 20% for any parameter. The percent of sites in violation of performance standards for one or more parameters shall not exceed 10%. (h) When a petition or recommendation for an accepted wastewater system designation is approved by the CHS, the State shall notify local health departments and publish a listing of accepted systems. The CHS shall impose any use, design, installation, operation, maintenance, monitoring, and management conditions it determines to be appropriate. (i) The local health department shall permit systems designated as accepted nitrification trench systems that meet the requirements of this Section, Laws, and conditions of its accepted system approval in an equivalent manner as a conventional system. The Owner may choose to substitute an accepted system for a conventional system or another accepted system without prior approval of the health department as long as no changes are necessary in the location of each nitrification line, trench depth, or effluent distribution method. The type of system installed shall be indicated on the Operation Permit, including designation of the manufacturer and model or unique code. (6) MODIFICATION OF APPROVED SYSTEMS: Where a manufacturer of an approved E & I or accepted system seeks to modify such system or its conditions of approval (including siting or sizing criteria) and retain it approved status, the manufacturer shall submit to the State a request for approval of the proposed modification. If the manufacturer demonstrates that
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Title | North Carolina register |
Date | 2004-09-15 |
Description | Volume 19, Issue 6, (September 15, 2004) |
Digital Characteristics-A | 524 KB; 75 p. |
Digital Format |
application/pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_borndigital\images_master\ |
Full Text | NORTH CAROLINA REGISTER Volume 19, Issue 06 Pages 585 - 655 September 15, 2004 This issue contains documents officially filed through August 24, 2004. Office of Administrative Hearings Rules Division 424 North Blount Street (27601) 6714 Mail Service Center Raleigh, NC 27699-6714 (919) 733-2678 FAX (919) 733-3462 Julian Mann III, Director Camille Winston, Deputy Director Molly Masich, Director of APA Services Linda Dupree, Editorial Assistant Dana Sholes, Editorial Assistant Julie Brincefield, Editorial Assistant IN THIS ISSUE I. EXECUTIVE ORDERS Executive Order No. 63 ...........................................585 Executive Order No. 64 ...........................................586 - 587 II. IN ADDITION Summary of Public Notice from the Division of .....588 – 589 Waste Management North Carolina Building Code Council....................590 – 591 Voting Rights Letter ................................................592 III. PROPOSED RULES Environment and Natural Resources Commission for Health Services ..........................608 - 616 Justice Sheriffs' Educ. & Trng. Stds. Comm....................593 - 608 Licensing Boards Cosmetic Art Examiners, Board of ......................616 – 617 Locksmith Licensing Board .................................617 - 619 Registration for Forestors, Board of .....................617 State Personnel State Personnel Commission ................................619 - 628 IV. TEMPORARY RULES Environment and Natural Resources Marine Fisheries Commission..............................629 - 630 Licensing Boards Examiners of Plumbing, Heating and Fire ...........630 – 631 Sprinkler Contractors, Board of V. APPROVED RULES.............................................632 - 638 Administration State Energy Office Commerce Banking Commission Environment and Natural Resources Marine Fisheries Environmental Health Insurance Consumer Services Division Licensing Boards Cosmetic Arts, Board of Real Estate Commission State Personnel State Personnel Commission VI. RULES REVIEW COMMISSION.......................639 - 652 VII. CONTESTED CASE DECISIONS Index to ALJ Decisions............................................653 - 655 For the CUMULATIVE INDEX to the NC Register go to: http://oahnt.oah.state.nc.us/register/CI.pdf North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC 27601. North Carolina Register (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register, 6714 Mail Service Center, Raleigh, NC 27699-6714. NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM The North Carolina Administrative Code (NCAC) has four major classifications of rules. Three of these, titles, chapters, and sections are mandatory. The major classification of the NCAC is the title. Each major department in the North Carolina executive branch of government has been assigned a title number. Titles are further broken down into chapters which shall be numerical in order. Subchapters are optional classifications to be used by agencies when appropriate. NCAC TITLES TITLE 21 LICENSING BOARDS TITLE 24 INDEPENDENT AGENCIES 1 ADMINISTRATION 2 AGRICULTURE & CONSUMER SERVICES 3 AUDITOR 4 COMMERCE 5 CORRECTION 6 COUNCIL OF STATE 7 CULTURAL RESOURCES 8 ELECTIONS 9 GOVERNOR 10A HEALTH AND HUMAN SERVICES 11 INSURANCE 12 JUSTICE 13 LABOR 14A CRIME CONTROL & PUBLIC SAFETY 15A ENVIRONMENT &NATURAL RESOURCES 16 PUBLIC EDUCATION 17 REVENUE 18 SECRETARY OF STATE 19A TRANSPORTATION 20 TREASURER 21* OCCUPATIONAL LICENSING BOARDS 22 ADMINISTRATIVE PROCEDURES (REPEALED) 23 COMMUNITY COLLEGES 24* INDEPENDENT AGENCIES 25 STATE PERSONNEL 26 ADMINISTRATIVE HEARINGS 27 NC STATE BAR 28 JUVENILE JUSTICE AND DELINQUENCY PREVENTION 1 Acupuncture 2 Architecture 3 Athletic Trainer Examiners 4 Auctioneers 6 Barber Examiners 8 Certified Public Accountant Examiners 10 Chiropractic Examiners 11 Employee Assistance Professionals 12 General Contractors 14 Cosmetic Art Examiners 16 Dental Examiners 17 Dietetics/Nutrition 18 Electrical Contractors 19 Electrolysis 20 Foresters 21 Geologists 22 Hearing Aid Dealers and Fitters 25 Interpreter/Transliterator 26 Landscape Architects 28 Landscape Contractors 29 Locksmith Licensing 30 Massage & Bodywork Therapy 31 Marital and Family Therapy 32 Medical Examiners 33 Midwifery Joint Committee 34 Funeral Service 36 Nursing 37 Nursing Home Administrators 38 Occupational Therapists 40 Opticians 42 Optometry 44 Osteopathic Examination (Repealed) 45 Pastoral Counselors, Fee-Based Practicing 46 Pharmacy 48 Physical Therapy Examiners 50 Plumbing, Heating & Fire Sprinkler Contractors 52 Podiatry Examiners 53 Professional Counselors 54 Psychology 56 Professional Engineers & Land Surveyors 57 Real Estate Appraisal 58 Real Estate Commission 60 Refrigeration Examiners 61 Respiratory Care 62 Sanitarian Examiners 63 Social Work Certification 64 Speech & Language Pathologists & Audiologists 65 Therapeutic Recreation Certification 66 Veterinary Medical 68 Substance Abuse Professionals 69 Soil Scientists 1 Housing Finance 2 Agricultural Finance Authority 3 Safety & Health Review Board 4 Reserved 5 State Health Plan Purchasing Alliance Board Note: Title 21 contains the chapters of the various occupational licensing boards and Title 24 contains the chapters of independent agencies. NORTH CAROLINA REGISTER Publication Schedule for January 2004 – December 2004 FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY RULES Volume & issue number Issue date Last day for filing Earliest date for public hearing End of required comment period Deadline to submit to RRC for review at next meeting Earliest Eff. Date of Permanent Rule Delayed Eff. Date of Permanent Rule (first legislative day of the next regular session) 270th day from publication in the Register 18:13 01/02/04 12/08/03 01/17/04 03/02/04 03/22/04 05/01/04 05/10/04 09/28/04 18:14 01/15/04 12/19/03 01/30/04 03/15/04 03/22/04 05/01/04 05/10/04 10/11/04 18:15 02/02/04 01/09/04 02/17/04 04/02/04 04/20/04 06/01/04 01/26/05 10/29/04 18:16 02/16/04 01/26/04 03/02/04 04/16/04 04/20/04 06/01/04 01/26/05 11/12/04 18:17 03/01/04 02/09/04 03/16/04 04/30/04 05/20/04 07/01/04 01/26/05 11/26/04 18:18 03/15/04 02/23/04 03/30/04 05/14/04 05/20/04 07/01/04 01/26/05 12/10/04 18:19 04/01/04 03/11/04 04/16/04 06/01/04 06/21/04 08/01/04 01/26/05 12/27/04 18:20 04/15/04 03/24/04 04/30/04 06/14/04 06/21/04 08/01/04 01/26/05 01/10/05 18:21 05/03/04 04/12/04 05/18/04 07/02/04 07/20/04 09/01/04 01/26/05 01/28/05 18:22 05/17/04 04/26/04 06/01/04 07/16/04 07/20/04 09/01/04 01/26/05 02/11/05 18:23 06/01/04 05/10/04 06/16/04 08/02/04 08/20/04 10/01/04 01/26/05 02/26/05 18:24 06/15/04 05/24/04 06/30/04 08/16/04 08/20/04 10/01/04 01/26/05 03/12/05 19:01 07/01/04 06/10/04 07/16/04 08/30/04 09/20/04 11/01/04 01/26/05 03/28/05 19:02 07/15/04 06/23/04 07/30/04 09/13/04 09/20/04 11/01/04 01/26/05 04/11/05 19:03 08/02/04 07/12/04 08/17/04 10/01/04 10/20/04 12/01/04 01/26/05 04/29/05 19:04 08/16/04 07/26/04 08/31/04 10/15/04 10/20/04 12/01/04 01/26/05 05/13/05 19:05 09/01/04 08/11/04 09/16/04 11/01/04 11/22/04 01/01/05 01/26/05 05/29/05 19:06 09/15/04 08/24/04 09/30/04 11/15/04 11/22/04 01/01/05 01/26/05 06/12/05 19:07 10/01/04 09/10/24 10/16/04 11/30/04 12/20/04 02/01/05 05/00/06 06/28/05 19:08 10/15/04 09/24/04 10/30/04 12/14/04 12/20/04 02/01/05 05/00/06 07/12/05 19:09 11/01/04 10/11/04 11/16/04 12/31/04 01/20/05 03/01/05 05/00/06 07/29/05 19:10 11/15/04 10/22//04 11/30/04 01/14/05 01/20/05 03/01/05 05/00/06 08/12/05 19:11 12/01/04 11/05/04 12/16/04 01/31/05 02/21/05 04/01/05 05/00/06 08/28/05 19:12 12/15/04 11/22/04 12/30/04 02/14/05 02/21/05 04/01/05 05/00/06 09/11/05 EXPLANATION OF THE PUBLICATION SCHEDULE This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling. Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6. GENERAL The North Carolina Register shall be published twice a month and contains the following information submitted for publication by a state agency: (1) temporary rules; (2) notices of rule-making proceedings; (3) text of proposed rules; (4) text of permanent rules approved by the Rules Review Commission; (5) notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165; (6) Executive Orders of the Governor; (7) final decision letters from the U.S. Attorney General concerning changes in laws affecting voting in a jurisdiction subject of Section 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H; (8) orders of the Tax Review Board issued under G.S. 105-241.2; and (9) other information the Codifier of Rules determines to be helpful to the public. COMPUTING TIME: In computing time in the schedule, the day of publication of the North Carolina Register is not included. The last day of the period so computed is included, unless it is a Saturday, Sunday, or State holiday, in which event the period runs until the preceding day which is not a Saturday, Sunday, or State holiday. FILING DEADLINES ISSUE DATE: The Register is published on the first and fifteen of each month if the first or fifteenth of the month is not a Saturday, Sunday, or State holiday for employees mandated by the State Personnel Commission. If the first or fifteenth of any month is a Saturday, Sunday, or a holiday for State employees, the North Carolina Register issue for that day will be published on the day of that month after the first or fifteenth that is not a Saturday, Sunday, or holiday for State employees. LAST DAY FOR FILING: The last day for filing for any issue is 15 days before the issue date excluding Saturdays, Sundays, and holidays for State employees. NOTICE OF TEXT EARLIEST DATE FOR PUBLIC HEARING: The hearing date shall be at least 15 days after the date a notice of the hearing is published. END OF REQUIRED COMMENT PERIOD An agency shall accept comments on the text of a proposed rule for at least 60 days after the text is published or until the date of any public hearings held on the proposed rule, whichever is longer. DEADLINE TO SUBMIT TO THE RULES REVIEW COMMISSION: The Commission shall review a rule submitted to it on or before the twentieth of a month by the last day of the next month. FIRST LEGISLATIVE DAY OF THE NEXT REGULAR SESSION OF THE GENERAL ASSEMBLY: This date is the first legislative day of the next regular session of the General Assembly following approval of the rule by the Rules Review Commission. See G.S. 150B- 21.3, Effective date of rules. EXECUTIVE ORDERS 19:06 NORTH CAROLINA REGISTER September 15, 2004 585 EXECUTIVE ORDER NO. 63 PROCLAMATION OF STATE OF DISASTER BY THE GOVERNOR OF THE STATE OF NORTH CAROLINA Section 1. I have determined that a state of disaster and state of emergency, as defined in G.S. 166A-4(3) and G.S. 14- 288.1(10), exists in the State of North Carolina, due to the approach and proximity of Tropical Storm Bonnie and Hurricane Charley, which began on August 12, 2004. Section 2. Pursuant to G.S. 166A-6 and 14-288.15, I, therefore, proclaim the existence of a state of disaster and a state of emergency in the State. Section 3. I hereby order all state and local government entities and agencies to cooperate in the implementation of the provisions of this proclamation and the provisions of the North Carolina Emergency Operations Plan. Section 4. I hereby delegate to Bryan E. Beatty, Secretary of Crime Control and Public Safety, and/or his designee, all power and authority granted to me and required of me by Chapter 166A, and Article 36A of Chapter 14 of the General Statutes for the purpose of implementing the said Emergency Operations Plan and to take such further action as is necessary to promote and secure the safety and protection of the populace in the State. Section 5. Further, Bryan E. Beatty, Secretary of Crime Control and Public Safety, as chief coordinating officer for the State of North Carolina, shall exercise the powers prescribed in G.S. 143B-476. Section 6. I hereby order this proclamation: (a) to be distributed to the news media and other organizations calculated to bring its contents to the attention of the general public; (b) unless the circumstances of the state of emergency or disaster prevent or impede, to be promptly filed with the Secretary of Crime Control and Public Safety, the Secretary of State, and the clerks of superior court in the counties to which it applies; and, (c) to be distributed to others as necessary to assure proper implementation of this proclamation. Section 7. This proclamation shall become effective immediately and shall continue until it is terminated in writing. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Great Seal of the State of North Carolina at the Capitol in Raleigh this 13th day of August in the year of our Lord two thousand and four, and of the Independence of the United States of America the two hundred and twenty-eighth. ___________________________________ MICHAEL F. EASLEY GOVERNOR ATTEST: ___________________________________ ELAINE MARSHALL SECRETARY OF STATE EXECUTIVE ORDERS 19:06 NORTH CAROLINA REGISTER September 15, 2004 586 EXECUTIVE ORDER NO. 64 EMERGENCY RELIEF FOR DAMAGE CAUSED BY HURRICANE CHARLEY WHEREAS, the Governor of Florida has proclaimed that a State of Emergency and State of Disaster exists in Florida due to Hurricane Charley and thereby, has requested that States, through which property carrying vehicles regulated by size and weight laws, allow exemptions of said laws when vehicles traveling through such states are bearing equipment and supplies to provide relief to the disaster stricken areas in the State of Florida; and WHEREAS, under the provisions of N.C.G.S. §§ 166A-4 and166A-6(c)(3), the Governor of North Carolina, with the concurrence of the Council of State, may regulate and control the flow of vehicular traffic and the operation of transportation services; and WHEREAS, with the concurrence of the Council of State, I have found that vehicles bearing equipment and supplies to relieve Florida’s grief stricken areas must adhere to the registration requirements of N.C.G.S. § 20-86.1 and N.C.G.S. § 20-382, fuel tax requirements of N.C.G.S. § 105-449.47, and the size and weight requirements of N.C.G.S. § 20-116 and N.C.G.S. § 20-118; I have further found that citizens in that state will likely suffer losses and, therefore suffer an imminent threat of widespread damage. NOW, THEREFORE, pursuant to the authority vested in me as Governor by the Constitution and the laws of the State of North Carolina, and with the concurrence of the Council of State, IT IS ORDERED: Section 1. The Department of Crime Control & Public Safety in conjunction with the N.C. Department of Transportation shall waive certain size and weight restrictions and penalties therefore arising under N.C.G.S. § 20-116 and N.C.G.S. § 20-118, and certain registration requirements and penalties therefore arising under N.C.G.S. §§ 20-86.1, 20-382, 105-449.47, 105-449.49, for the vehicles transporting equipment and supplies along North Carolina Interstate roadways, en route to Florida’s grief stricken areas. Section 2. Notwithstanding the waivers set forth above, size and weight restrictions and penalties have not been waived under the following conditions: (A) When the vehicle weight exceeds the maximum gross weight criteria established by the manufacturer (GVWR) or 95,000 pounds gross weight, whichever is less. (B) When the tandem axle weight exceeds 42,000 pounds and the single axle weight exceeds 22,000 pounds. (C) When a vehicle/vehicle combination exceeds 12 feet in width and a total overall vehicle combination length of 75 feet from bumper to bumper. Section 3. Vehicles referenced under Section 1 shall be exempt from the following registration requirements: (A) The $50.00 fee listed in N.C.G.S. § 105-449.49, for a temporary trip permit is waived for the vehicles described above. No quarterly fuel tax is required because the exception in N.C.G.S. § 105-449.45(a)(1), applies. (B) The registration requirements under N.C.G.S. § 20-382, concerning intrastate and interstate for-hire authority is waived; however, vehicles shall maintain the required limits of insurance as required. (C) Non-participants in North Carolina’s International Registration Plan will be permitted into North Carolina in accordance with the exemptions identified by this Executive Order. Section 4. The size and weight exemption for vehicles will be allowed on all North Carolina Interstate routes only. Section 5. The waiver of regulations under 49 CFR (Federal Motor Carrier Safety Regulations) issued by the State of Florida, does not apply to the CDL and Insurance Requirements. This waiver shall be in effect for 26 days from the date of this Order. Section 6. The North Carolina State Highway Patrol shall enforce the conditions set forth in Sections 1, 2, and 3, in a manner which would best accomplish the implementation of this rule without endangering motorists in North Carolina. Section 7. Upon request, exempted vehicles will be required to produce identification sufficient to establish that its load will be used for emergency relief efforts associated with Hurricane Charley. EXECUTIVE ORDERS 19:06 NORTH CAROLINA REGISTER September 15, 2004 587 This Executive Order is effective immediately and shall remain in effect for twenty-six (26) days. In witness whereof, I have hereunto set my hand and affixed the Great Seal of the State of North Carolina at the Capitol in the city of Raleigh this 18th day of August, 2004. ___________________________________ Michael F. Easley Governor ATTEST: ____________________________________ Elaine F. Marshall Secretary of State IN ADDITION 19:06 NORTH CAROLINA REGISTER September 15, 2004 588 SUMMARY OF PUBLIC NOTICE FROM THE DIVISION OF WASTE MANAGEMENT RECEIPT OF DOCUMENTS PERTAINING TO THE FORMER SEABOARD CHEMICAL CORPORATION Notice is hereby given of the Division of Waste Management’s receipt of the following documents which are available for public review. 1. The 2000 Supplemental Remedial Investigation and Annual Monitoring Report dated 2/14/01. 2. The Supplemental Groundwater Flow and Transport Modeling Report dated May 2000. 3. The Revised Feasibility Study dated 19 April 2001. 4. The Revised Draft Human Health and Ecological Risk Assessment dated April 2001. 5. The September 2001 Supplemental Remedial Investigation and Annual Monitoring Report dated 12/31/01 and Report on Geophysical Surveys by AG&E Schnabel dated October 23, 2001. 6. The August 2002 Report of Extraction Rate/Capture Zone Test. 7. The 2002 Annual Monitoring Report dated February 13, 2003. 8. The Final Report of Limited Groundwater Pump-and-Treat Modeling dated January 2004. 9. Seaboard Modeling and Stream Flows-Supplemental Report dated December 4, 2003. 10. Annual Monitoring Report--September-October 2003 dated January 15, 2004. 11. Description of Remedial Alternatives dated January 16, 2004. These documents pertain to activities conducted in and around the former Seaboard Chemical Corporation facility located at 5899 Riverdale Drive, Jamestown, Guilford County, North Carolina, and the adjacent closed City of High Point Riverdale Drive Landfill. The public comment period will extend for sixty (60) days following the publication of this notice. Comments regarding these reports should be addressed to: Robert Glaser, Unit Supervisor Hazardous Waste Section 401 Oberlin Road, Suite 150 Raleigh, NC 27605 All documents submitted by Seaboard Group II and the City of High Point are available as part of the administrative record. Copies of the record are available for review at the High Point Public Library and the North Carolina Hazardous Waste Section’s file room during the hours noted below: High Point Public Library 901 North Main Street High Point, North Carolina 27261 9:00 am to 9:00 pm Monday-Thursday, 9:00 am to 6:00 pm Friday and Saturday, and, beginning in September, 1:30-5:30 pm Sunday. No appointment is necessary to review the administrative record however if there are any questions please call Tamara Ruebel at (336) 883-3643. or Hazardous Waste Section File Room 401 Oberlin Road, Suite 150 Raleigh, NC 27605 9:00 a.m. to 4:00 p.m. Monday through Friday. Call (919) 733-2178, ext. 311 for an appointment to review the administrative record at this location. All comments received during the public comment period or at any public meeting that may be held will be considered in the formulation of a final decision on these documents. IN ADDITION 19:06 NORTH CAROLINA REGISTER September 15, 2004 589 NC DENR will provide auxiliary aids and services for disabled persons who wish to review the documents to comply with the Americans with Disabilities Act. To receive special services, please contact Robert Glaser at the address above, via email at robert.glaser@ncmail.net or by calling (919) 733-2178 extension 218 as early as possible so arrangements can be made. IN ADDITION 19:06 NORTH CAROLINA REGISTER September 15, 2004 590 NOTICE OF RULE MAKING PROCEEDINGS AND PUBLIC HEARING NORTH CAROLINA BUILDING CODE COUNCIL Notice of Rule-making Proceedings is hereby given by N.C. Building Code Council in accordance with G.S. 150B-21.5(d). Citation to Existing Rule Affected by this Rule-Making: North Carolina Building Code, North Carolina Energy Code, and North Carolina Residential Code Authority for Rule-making: G.S. 143-136; 143-138. Reason for Proposed Action: To incorporate changes in the NC Building Code as a result of rulemaking petitions filed with the NC Building Code Council and incorporate changes proposed by the Council. Public Hearing: December 13, 2004, 1:00PM, NC Department of Insurance,322 Chapanoke Road, Suite 200, Raleigh, NC 27603 Comment Procedures: Written comments may be sent to Barry Gupton, Secretary, N.C. Building Code Council, c/o NC Department of Insurance, 322 Chapanoke Road, Suite 200, Raleigh, NC 27603. Comment period expires on November 8, 2004. Statement of Subject Matter: 1. Request by Residential Committee to clarify the current code language dealing with waterproofing that is required for habitable basements as detailed in the Residential Code. R406.2 Concrete and masonry foundation basement waterproofing. In areas where a high water table or other severe soil water conditions are known to exist, Exterior foundation basement walls that retain earth and enclose habitable or usable spaces located below grade shall be waterproofed with a membrane extending from the top of the footing to the finished grade. Exception: Exterior basement walls that retain earth and enclose usable spaces located below grade may be dampproofed where a subsurface soil investigation is performed to determine that the existing ground-water table is not within 5 feet (1524 mm) below the lowest floor level. (remainder same) This code change is proposed to clarify the Code requirements for waterproofing. 2. Request by the Residential and Energy Conservation Code Committees to revise the requirements for vapor retarder to be consistent with the requirements in the International Energy Conservation Code. 1403.3 Vapor retarder. An approved interior noncorrodible vapor retarder shall be provided. Vapor retarders shall be tested in accordance with ASTM E 96. Vapor retarder requirements shall comply with the International Energy Code. Exceptions: 1. Where other approved means to avoid condensation and leakage of moisture are approved. 2. Plain and reinforced concrete or masonry exterior walls designed and constructed in accordance with Chapter 19 and Chapter 21, respectively. This code change is proposed to eliminate vapor retarders except where required by the IECC. 3. Request by the Residential and Energy Conservation Code Committees to revise the requirements for moisture control requirements to be consistent with the requirements in the International Energy Code. Delete section 502.1.1 and substitute the following: 502.1.1 Moisture Control. The building design shall not create conditions of accelerated deterioration from moisture condensation. Only in Zone 11, above grade shall frame walls, floors, and ceilings not ventilated to allow moisture to escape be required to have an approved vapor retarder. The vapor retarder shall be installed on the warm-in-winter side of the thermal insulation. Exceptions: IN ADDITION 19:06 NORTH CAROLINA REGISTER September 15, 2004 591 1. In construction where moisture or its freezing will not damage the materials. 2. Where other approved means to avoid condensation are provided. Delete section 802.1.2 and substitute the following: 802.1.2 Moisture Control. Only in Zone 11, shall all frame walls, floors, and ceilings not ventilated to allow moisture to escape be required to have an approved vapor retarder having maximum permeance rating of 1.0 perm (5.72x10-8 g/Pa-s-m2) when tested in accordance with Procedure A of ASTM E96, on the warm-in-winter side of the thermal insulation. Exceptions: 1. In construction where moisture or its freezing will not damage the materials. 2. Where other approved means to avoid condensation in unventilated frame wall, floor, roof, and ceiling cavities are provided. This code change is proposed to eliminate vapor retarders except where required by the IECC. 4. Request by the Residential Code and Energy Code Committees to revise section R322.1 dealing with Moisture Control in the Residential Code. Delete section R322.1 and substitute the following: R322.1 Moisture Control. Only in Zone 11 counties identified in Table N1101.2, above grade shall frame walls, floors and ceilings not ventilated to allow moisture to escape be required to have an approved vapor retarder. The vapor retarder shall be installed on the warm-in-winter side of the thermal insulation. Exceptions: 1. In construction where moisture or its freezing will not damage the materials. 2. Where the framed cavity or space is ventilated to allow moisture to escape. Delete the following without replacement: 1. Note “a” in Table N1101.2 without replacement. 2. Superscript “a” that appears beside certain counties in Table N1101.2 for the state of North Carolina. This code change is proposed to eliminate vapor retarders except where required by the IECC. IN ADDITION 19:06 NORTH CAROLINA REGISTER September 15, 2004 592 STATE BOARD OF ELECTIONS 6400 Mail Service Center—Raleigh, North Carolina 27699-6400 GARY O. BARTLETT Mailing Address: Executive Director P.O. Box 2169 Raleigh, NC 27602 (910) 733-7173 FAX (919) 715-0135 August 13, 2004 Easter Outdoor, Inc. P.O. Box 2267 Smithfield, NC 27577 RE: S.L. 2004-125 (H 737) and Billboard Advertising Dear Mr. Moore: Your letter of August 11, 2004 requests an advisory opinion pursuant to G.S. 163-278.23 regarding any restrictions placed on a Section 527 organization for billboard or outdoor advertising as it relates to the provisions of S.L. 2004-125 (H 737). S.L., 2004-125 does not include billboard or other outdoor advertising in the definitions of "electioneering communications" contained in Articles 22E or 22F of the General Statutes of North Carolina. Therefore any restrictions or disclosure requirements placed upon "electioneering communications" under these Articles, would not apply to billboards or other outdoor advertising. Sincerely, Gary O. Bartlett Executive Director Attachments: Your letter of August 11, 2004 PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 593 Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60 days. Statutory reference: G.S. 150B-21.2. TITLE 12 – DEPARTMENT OF JUSTICE Notice is hereby given in accordance with G.S. 150B-21.2 that the North Carolina Sheriffs' Education and Training Standards Commission intends to amend the rules cited as 12 NCAC 10B .0204, .0301, .0405-.0406, .0505, .0703-.0704, .0709, .0713, .0802, .0903-.0905, .0911, .0913-.0915, .0919. Proposed Effective Date: January 1, 2005 Public Hearing: Date: September 30, 2004 Time: 9:30 a.m. Location: 114 W. Edenton St., Room G01, Raleigh, NC Reason for Proposed Action: 12 NCAC 10B .0204 – Proposal to add the requirement/discretion to deny or revoke certification of an individual who has had certification denied or revoked by a similar North Carolina, out-of-state or federal approving, certifying or licensing agency. 12 NCAC 10B .0301 – Technical change to amend a case cited in the definition of good moral character. 12 NCAC 10B .0405 – Proposed amendment to language regarding the hiring agency's obligation to notify to the officer that he/she is being separated to be consistent with Division practice (i.e., that notice can be in the form of a letter rather than the signature of the officer on the form itself). 12 NCAC 10B .0406 – Proposed amendment to allow for reinstatement of certification with the same agency provided updated background materials are received and if the individual has not exceeded a 6-month break in-service. 12 NCAC 10B .0505 - Proposed amendment to the challenge option to parallel the provisions in place for initial BLET enrollees. Specifically, under the current rule, an individual can fail more than 2 unit examinations, and still be allowed to remediate in the corresponding blocks of instruction. New enrollees that fail more than 2 units at the end of BLET, must re-enroll in the entire course. 12 NCAC 10B .0703 - Technical amendment to change the word "certified" to "designated" to be consistent with past rule change. Additionally, proposed amendment to instructor-student ratio in the Physical Fitness block of instruction. 12 NCAC 10B .0704 and .0709 - Deletion of retention of records as it is redundant with the Department of Community College's retention schedule. 12 NCAC 10B .0713 - Proposed amendment to make rule consistent with state law. 12 NCAC 10B .0802 - Proposed amendment to accreditation process to require the submission of documents upon end of course delivery, rather than requiring Division to annually audit those records, and instead making accredited sites subject to unannounced inspections. 12 NCAC 10B .0903 and .0913 - Proposed amendment to delete Director's authority to grant a waiver of instructor requirements, so that such waiver requests are within the sole discretion of the Commission. 12 NCAC 10B .0904, .0911, .0914, and .0919 - Proposed amendment to allow for the denial/revocation of instructor certification if individual justice officer or other certification is denied/revoked for cause. 12 NCAC 10B .0905, .0915 - Proposed amendment to further simplify instructor renewal process as automation of databases now allows Division staff to verify status of general Instructor Certification issued through the Criminal Justice Commission. Procedure by which a person can object to the agency on a proposed rule: Objections shall be submitted in writing explaining the reasons for objection and specifying the portion of the rule to which the objection is being made. Such objections should be sent to Julia Lohman, Sheriffs' Standards Division, NC Department of Justice, PO Box 629, Raleigh, NC 27602. Written comments may be submitted to: Julia Lohman, Sheriffs' Standards Division, NC Department of Justice, PO Box 629, Raleigh, NC 27602, phone (919) 716-6460, fax (919) 716- 6753, and email jlohman@ncdoj.com. Comment period ends: November 15, 2004 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State 12 NCAC 10B .0703 PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 594 Local 12 NCAC 10B .0406, .0505, .0703 Substantive (>$3,000,000) None 12 NCAC 10B .0204, .0301, .0405, .0704, .0709, .0713, .0802, .0903-.0905, .0911, .0913- .0915, .0919 CHAPTER 10 - N.C. SHERIFFS' EDUCATION AND TRAINING STANDARDS COMMISSION SUBCHAPTER 10B - N.C. SHERIFFS' EDUCATION AND TRAINING STANDARDS COMMISSION SECTION .0200 - ENFORCEMENT RULES 12 NCAC 10B .0204 SUSPENSION: REVOCATION: OR DENIAL OF CERTIFICATION (a) The Commission shall revoke or deny the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer has committed or been convicted of: (1) a felony; or (2) a crime for which the authorized punishment could have been imprisonment for more than two years. (b) The Commission shall revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer: (1) has not enrolled in and satisfactorily completed the required basic training course in its entirety within a one year time period as specified by these Rules; or (2) fails to meet or maintain any of the minimum employment or certification standards required by 12 NCAC 10B .0300; or (3) fails to satisfactorily complete the minimum in-service training requirements as presented in 12 NCAC 10B .2000 and .2100; or (4) has refused to submit to the drug screen as required in 12 NCAC 10B .0301(6) or .0406(b)(4) or in connection with an application for or certification as a justice officer or a criminal justice officer as defined in 12 NCAC 9A .0103(6); or (5) has produced a positive result on any drug screen reported to the Commission as specified in 12 NCAC 10B .0410 or reported to any commission, agency, or board established to certify, pursuant to said commission, agency, or boards' standards, a person as a justice officer or a criminal justice officer as defined in 12 NCAC 9A .0103(6), unless the positive result is explained to the Commission's satisfaction. (c) The Commission may revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification or certified justice officer: (1) has knowingly made a material misrepresentation of any information required for certification or accreditation from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission. This Rule shall also apply to obtaining or attempting to obtain in-service firearms requalification as required by 12 NCAC 10B .2000 and .2100; or (2) has knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation or cheating whatsoever, obtained or attempted to obtain credit, training or certification from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission. This Rule shall also apply to obtaining or attempting to obtain in-service firearms requalification as required by 12 NCAC 10B .2000 and .2100; or (3) has knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation or cheating whatsoever, aided another in obtaining or attempting to obtain credit, training, or certification from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission. This Rule shall also apply to obtaining or attempting to obtain in-service firearms requalification as required by 12 NCAC 10B .2000 and .2100; or (4) has been removed from office by decree of the Superior Court in accordance with the provisions of G.S. 128-16 or has been removed from office by sentence of the court in accord with the provisions of G.S. 14-230; or (5) has been denied certification or had such certification suspended or revoked by the North Carolina Criminal Justice Education and Training Standards Commission. Commission, or a similar North Carolina, out-of- state or federal approving, certifying or licensing agency. (d) The Commission may revoke, suspend or deny the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer has committed or been convicted of: (1) a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor and which occurred after the date of initial certification; or (2) a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor within the five-year period prior to the date of appointment; or (3) four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(b) as Class B misdemeanors regardless of the date of commission or conviction; or (4) four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(a) as a Class A misdemeanor, each of which occurred after the date of initial certification; or PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 595 (5) four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(a) as a Class A misdemeanor except the applicant shall be certified if the last conviction or commission occurred more than two years prior to the date of appointment; or (6) any combination of four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(a) as a Class A misdemeanor or defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor regardless of the date of commission or conviction. (e) Without limiting the application of G.S. 17E, a person who has had his certification suspended or revoked may not exercise the authority or perform the duties of a justice officer during the period of suspension or revocation. (f) Without limiting the application of G.S. 17E, a person who has been denied certification may not be employed or appointed as a justice officer or exercise the authority or perform the duties of a justice officer. Authority G.S. 17E-7. SECTION .0300 – MINIMUM STANDARDS FOR EMPLOYMENT AND CERTIFICATION AS A JUSTICE OFFICER 12 NCAC 10B .0301 MINIMUM STANDARDS FOR JUSTICE OFFICERS (a) Every Justice Officer employed or certified in North Carolina shall: (1) be a citizen of the United States; (2) be at least 21 years of age; (3) be a high school graduate, or the equivalent (GED); (4) have been fingerprinted by the employing agency; (5) have had a medical examination by a licensed physician; (6) have produced a negative result on a drug screen administered according to the following specifications: (A) the drug screen shall be a urine test consisting of an initial screening test using an immunoassay method and a confirmatory test on an initial positive result using a gas chromatography/mass spectrometry (GC/MS) or other reliable initial and confirmatory tests as may, from time to time, be authorized or mandated by the Department of Health and Human Services for Federal Workplace Drug Testing Programs; and (B) a chain of custody shall be maintained on the specimen from collection to the eventual discarding of the specimen; and (C) the drugs whose use shall be tested for shall include at least cannabis, cocaine, phencyclidine (PCP), opiates and amphetamines or their metabolites; and (D) the test threshold values established by the Department of Health and Human Services for Federal Workplace Drug Testing Programs are hereby incorporated by reference, and shall automatically include any later amendments and editions of the referenced materials. Copies of this information may be obtained from the National Institute on Drug Abuse, 5600 Fisher Lane, Rockville, Maryland 20857 at no cost at the time of adoption of this Rule; and (E) the test conducted shall be not more than 60 days old, calculated from the time when the laboratory reports the results to the date of employment; and (F) the laboratory conducting the test must be certified for federal workplace drug testing programs, and must adhere to applicable federal rules, regulations and guidelines pertaining to the handling, testing, storage and preservation of samples, except that individual agencies may specify other drugs to be tested for in addition to those drugs set out in Part (C) of this Rule; (G) every agency head shall make arrangements for the services of a medical review officer (MRO) for the purpose of review of drug tests reported by the laboratory and such officer shall be a licensed physician; (7) within five working days notify the Standards Division and the appointing department head in writing of all criminal offenses with which the officer is charged and all Domestic Violence Orders (50B) which are issued by a judicial official and which provide an opportunity for both parties to be present; and shall also give notification, in writing, to the Standards Division and the appointing department head following the adjudication of these criminal charges and Domestic Violence Orders (50B). This shall include all criminal offenses except minor traffic offenses and shall specifically include any offense of Driving Under The Influence (DUI) or Driving While Impaired (DWI). A minor traffic offense is defined, for purposes of this Subparagraph, as an offense where the maximum punishment allowable is 60 days or PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 596 less. Other offenses under G.S. 20 (Motor Vehicles) or similar laws of other jurisdictions which shall be reported to the Division expressly include G.S. 20-139 (persons under the influence of drugs), G.S. 20-28(b) (driving while license revoked or permanently suspended) and G.S. 20-166 (duty to stop in event of accident). The initial notification required must specify the nature of the offense, the date of offense, and the arresting agency. The notifications of adjudication required must specify the nature of the offense, the court in which the case was handled and the date of disposition, and must include a certified copy of the final disposition from the Clerk of Court in the county of adjudication. The notifications of adjudication must be received by the Standards Division within 30 days of the date the case was disposed of in court. Officers required to notify the Standards Division under this Subparagraph shall also make the same notification to their employing or appointing department head within 20 days of the date the case was disposed of in court. The department head, provided he has knowledge of the officer's charge(s) and Domestic Violence Orders (50B) shall also notify the Division within 30 days of the date the case or order was disposed of in court. Receipt by the Standards Division of timely notification of the initial offenses charged and of adjudication of those offenses, from either the officer or the department head, is sufficient notice for compliance with this Subparagraph; (8) be of good moral as defined in: In re Willis, 299 N.C. 1, 215 S.E.2d 771 appeal dismissed 423 U.S. 976 (9175); (1975); State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940); In re Legg, 325 N.C. 658, 386 S.E.2d 174 (1989); In re Applicants for License, 143 N.C. 1, 55 S.E. 635 (1906); In re Dillingham, 188 N.C. 162, 124 S.E. 130 (1924); State v. Benbow, 309 N.C. 538, 308 S.E.2d 647 (1983); and their progeny; (9) have a background investigation conducted by the employing agency, to include a personal interview prior to employment; (10) not have committed or been convicted of a crime or crimes as specified in 12 NCAC 10B .0307. (b) The requirements of this Rule shall apply to all applications for certification and shall also be applicable at all times during which the justice officer is certified by the Commission. Authority G.S. 17E-7; 95-230; 95-231; 95-232; 95-233; 95-234; 95-235. SECTION .0400 – CERTIFICATION OF JUSTICE OFFICERS 12 NCAC 10B .0405 REPORT OF SEPARATION (a) An agency separating a person from employment or appointment as a justice officer shall, not later than 10 days after separation, forward to the Division a completed Report of Separation (F-5). (b) Although not presently required by these Rules, it is recommended by the Commission that the employing agency cancel the oath of office of a justice officer who has separated. (c) The employing agency shall notify the justice officer with appropriate notations on the Report of Separation (Form F-5), of the effective date of separation as reported to the Division. Division, and provide documentation of such notification at the time Report of Separation (Form F-5) is submitted to the Division. Where no such documentation is provided, the Division will mail a copy of the Report of Separation (Form F-5) to the justice officer's last known address. Authority G.S. 17E-4. 12 NCAC 10B .0406 LATERAL TRANSFER/REINSTATEMENTS (a) The General or Grandfather Certification of an officer meeting the requirements of 12 NCAC 10B .0103(9) may laterally transfer to an agency and be certified upon compliance with this Rule. (b) The employing agency shall verify the applicant's certification status with the Division prior to submission of the application for certification as a justice officer. (c) In order for an officer to be certified pursuant to this Rule, Paragraph (a) of this Rule, the employing agency shall submit to the Division, along with the Report of Appointment (F-4), (F-4 or F-4T),the documents required in 12 NCAC 10B .0408. (d) An officer whose certification has been suspended pursuant to 12 NCAC 10B .0204(b)(1) may have that certification reinstated provided that: (1) the period of suspension has been one yearsix months or less; and (2) the employing agency submits to the Division, along with a Report of Appointment, the documents required in 12 NCAC 10B .0305. (2)(3) the officer has successfully completed the basic training requirements as prescribed in 12 NCAC 10B .0500 or .0600 or .1300. (e) An officer for whom a Report of Separation (Form F-5) has been submitted to the Division, and who is re-appointed in the same agency, may be reinstated provided that: (1) the period of separation has been 6-months or less; and (2) the employing agency submits to the Division, along with a Report of Appointment, the documents required in 12 NCAC 10B .0305. (e)(f) Requirements of Paragraph (c) of this Rule are waived for officers whose certifications are reinstated pursuant to Paragraph (d) Paragraphs (d) and (e) of this Rule. (f)(g) All information maintained pursuant to the requirements of this Rule shall be subject to all state and federal laws governing confidentiality. PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 597 Authority G.S. 17E-4; 17E-7. SECTION .0500 – MINIMUM STANDARDS OF TRAINING FOR DEPUTY SHERIFFS 12 NCAC 10B .0505 EVALUATION FOR TRAINING WAIVER The Division staff shall evaluate each deputy's training and experience to determine if equivalent training has been satisfactorily completed as specified in 12 NCAC 10B .0504(a). The following rules shall be used by Division staff in evaluating an applicant's training and experience to determine eligibility for a waiver of training. (1) Persons who separated from a sworn law enforcement position during their probationary period after having completed a commission-accredited Basic Law Enforcement Training Course and who have been separated from a sworn law enforcement position for one year or less shall serve the remainder of the initial probationary period in accordance with G.S. 17E-7(b), but need not complete an additional training program. (2) Persons who separated from a sworn law enforcement position during their probationary period without having completed Basic Law Enforcement Training, or whose certification was suspended pursuant to 12 NCAC 10B .0204(b)(1), and who have remained separated or suspended for over one year shall complete a commission-accredited Basic Law Enforcement Training Course in its entirety and pass the State Comprehensive Examination, and shall be allowed a 12 month probationary period as prescribed in 12 NCAC 10B .0503(a). (3) Persons transferring to a Sheriff's Office from another law enforcement agency who held certification and who have previously completed a commission-accredited Basic Law Enforcement Training Course beginning on or after October 1, 1984, and continuing to July 1, 2000 and who have been separated from a sworn law enforcement position for no more than one year or who have had no break in service shall be required to complete the following enumerated topics of a commission-accredited Basic Law Enforcement Training Course and pass that portion of the State Comprehensive Examination which deals with those subjects within 12 months of the date of appointment as defined in 12 NCAC 10B .0103(1). (a) Civil Process 24 hours (b) Sheriffs' Responsibilities: Detention Duties 4 hours (c) Sheriffs' Responsibilities: Court Duties 6 hours UNIT TOTAL 34 hours (4) Persons who have training and experience as a military law enforcement officer and are appointed as a deputy sheriff in North Carolina shall be required to complete a commission-accredited Basic Law Enforcement Training Course in its entirety regardless of previous military training and experience and pass the State Comprehensive Examination within the 12 month probationary period as prescribed in 12 NCAC 10B .0503(a). (5) Persons transferring to a sheriff's office from another law enforcement agency who have previously completed a commission accredited Basic Law Enforcement Training Course beginning on or after January 1, 1996 and continuing to July 1, 1997, and who did not complete the Commission's Driver Training curriculum, and who have been separated from a sworn law enforcement position for no more than one year or who have had no break in service shall be required to complete the following enumerated topics of a commission - accredited Basic Law Enforcement Training Course within 12 months of the date of appointment as defined in 12 NCAC 10B .0103(1): Law Enforcement Driver Training 40 hours (6) North Carolina applicants shall: (a) have a minimum of two years full-time sworn law enforcement experience which occurred prior to their application; (b) have had a break in service exceeding one year; (c) have previously received General or Grandfather certification as a sworn law enforcement officer by either the Commission or the North Carolina Criminal Justice Education and Training Standards Commission, and such certification has not been denied, revoked or suspended by either Commission; and (d) have held general powers of arrest. (7) Out-of-state transferees shall: (a) have a minimum of two years full-time sworn law enforcement experience which occurred prior to their application; (b) have held certification in good standing as a sworn law enforcement officer from the appropriate Peace Officer's Standards and Training entity in the transferee's respective state; (c) have had general powers of arrest; and PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 598 (d) submit documentation verifying their qualified status. (8) Federal Transferees shall: (a) have a minimum of two years full-time sworn law enforcement experience which occurred prior to their application; experience; (b) have held certification or commissioning as a sworn law enforcement officer from the appropriate federal entity authorized to issue such sworn law enforcement officers certification or commission; (c) have held general powers of arrest; and (d) submit documentation verifying their qualified status. (9) North Carolina applicants; qualified out-of-state transferees; and qualified federal transferees shall be allowed to select one of the following two options for gaining North Carolina certification as a deputy sheriff: (a) Undertake and successfully complete Basic Law Enforcement Training in its entirety during a one year probationary period and successfully pass the State Comprehensive Examination; (b) Pass the following entry criteria: (i) Challenge the Basic Law Enforcement Training Comprehensive State Examination to be delivered at the end of an ongoing Basic Law Enforcement Training Course and successfully pass each unit examination of the comprehensive examination with a minimum score of 70%. Any applicant failing to pass any more than two unit examination examinations shall complete the Basic Law Enforcement Training Course in its entirety. Any applicant failing one or two unit examinations shall be required to enroll in each topic area which comprises that unit taught in a subsequent BLET course and submit to the unit examination at the end of the course and pass that unit examination; (ii) Each applicant shall demonstrate proficiency in the following skills related activities to the satisfaction of an appropriate instructor certified by the North Carolina Criminal Justice Education and Training Standards Commission. Successful completion of the skills related activities shall be documented on a Commission approved form by the certified instructor; (A) First Responder; (B) Firearms; (C) Law Enforcement Driver Training; (D) Physical Fitness; and (E) Subject Control Arrest Techniques. (iii) Any applicant failing to pass a test unit examination after remediation as referenced in Rule 12 NCAC 10B .0505(9)(B)(i) of a unit examination after remediation shall be required to complete Basic Law Enforcement Training in its entirety; and (iv) All criteria referenced in 12 NCAC 10B .0505(9)(B)(i) and (ii) must be successfully completed within the one-year probationary period. (10) Persons transferring to a sheriff’s office from another law enforcement agency who held certification and who have previously been granted a training waiver by the North Carolina Criminal Justice Commission and who have been separated from a sworn law enforcement position for no more than one year or who had no break in service shall not be required to complete the Basic Law Enforcement Training course, but shall have the waiver honored by this Commission. (11) Persons previously holding Grandfather law enforcement certification in accordance with G.S. 17C-10(a) or G.S. 17E-7(a) who have been separated from a sworn law enforcement position for less than one year or have had no break in service shall not be required to complete a commission-accredited Basic Law Enforcement Training Course. Authority G.S. 17E-4; 17E-7. PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 599 SECTION .0700 – MINIMUM STANDARDS FOR JUSTICE OFFICER SCHOOLS AND TRAINING PROGRAMS OR COURSES OF INSTRUCTION 12 NCAC 10B .0703 ADMINISTRATION OF DETENTION OFFICER CERTIFICATION COURSE (a) The executive officer or officers of the institution or agency sponsoring a Detention Officer Certification Course shall have primary responsibility for implementation of these rules and standards and for administration of the school. (b) The executive officers shall designate a compensated staff member who is certified by the Commission who may apply to the Commission to be the school director. No more than two school directors shall be certified designated at each accredited institution/agency to deliver a Detention Officer Certification Course. The school director shall have administrative responsibility for planning scheduling, presenting, coordinating, reporting, and generally managing each sponsored detention officer certification course and shall be readily available at all times during course delivery as specified in 12 NCAC 10B .0704(b). (c) The executive officers of the institution or agency sponsoring the Detention Officer Certification Course shall: (1) acquire and allocate sufficient financial resources to provide commission-certified instructors and to meet other necessary program expenses; (2) provide adequate secretarial, clerical, and other supportive staff assistance as required by the school director; (3) provide or make available suitable facilities, equipment, materials, and supplies for comprehensive and qualitative course delivery, as required in the "Detention Officer Certification Course Management Guide" and specifically including the following: (A) a comfortable, well-lighted and ventilated classroom with a seating capacity sufficient to accommodate all attending trainees; (B) audio-visual equipment and other instructional devices and aids necessary and beneficial to the delivery of effective training; (C) a library for trainees' use covering the subject matter areas relevant to the training course, maintained in current status and having sufficient copies for convenient trainee access; and (D) an area designated for instruction of subject control techniques which enables the safe execution of the basic detention officer subject control techniques topic area, with the following specifications: (i) 30 square feet of floor space per student during the practical exercise portion of this topic area and while testing trainees' proficiency in performing the required maneuvers; (ii) one instructor for every 10 students during the practical exercise portion of this topic area and while testing trainees' proficiency in performing the required maneuvers; (iii) restrooms and drinking water within 100 yards of the training site; and (iv) telephone or radio communication immediately available on site. (E) an area designated for use as a jail cell for performing the practical exercises in the topic area entitled "Contraband Searches". If a county jail cell is unavailable, a simulated jail cell is acceptable provided it is built to the same specifications required by the Department of Human Resources with regards to size; (F) an area designated for fire emergencies instruction which enables the safe execution of the lesson plan as follows: (i) a well-ventilated, open area which allows for the setting and putting out of a fire; (ii) restrooms and drinking water within 100 yards of the training site; (iii) telephone or radio communication immediately available on site; and (iv) one instructor for every 10 students during the practical exercise portion of this training. (G) an area designated for physical fitness for detention officer trainees to include: (i) an area for running, weight lifting and other exercises performed during the physical fitness topic area which provides a minimum of 20 square feet per trainee during the performance of the exercises required in the physical fitness topic area; (ii) restrooms and drinking water within 100 yards of the training site; PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 600 (iii) telephone or radio communication immediately available on site; (iv) shower facilities, if physical fitness is performed prior to classroom training; and (v) one instructor for every 10 students during the physical fitness topic area. Physical assessment portion of this block of instruction; and (vi) sufficient instructors as needed to maintain visual contact with students while performing any physical exercise. (H) an area designated for instruction in first aid and CPR techniques which provides a minimum of 20 square feet per trainee during the practical exercise portion and testing for proficiency in administering CPR. There must also be one instructor for every 10 students during the practical exercise portion and proficiency testing in administering CPR. (4) In the event that an institution or agency does not own a facility as required in this Section, written agreements with other entities must be made to assure use of and timely access to such facilities. A copy of such agreement must accompany the originating institution or agency "Pre-Delivery Report" (Form F7-A) when submitted to the Division. Authority G.S. 17E-4. 12 NCAC 10B .0704 RESPONSIBILITIES: SCHOOL DIRECTORS (a) In planning, developing, coordinating, and delivering each commission accredited Detention Officer Certification Course, the school director shall: (1) Formalize and schedule the course curriculum in accordance with the curriculum standards established by the rules in this Chapter. (A) The Detention Officer Certification Course shall be presented with a minimum of 40 hours of instruction each week during consecutive calendar weeks until course requirements are completed. (B) In the event of exceptional or emergency circumstances, the Director may, upon written finding of justification, grant a waiver of the minimum hours requirement. (2) Select and schedule instructors who are properly certified by the Commission. The selecting and scheduling of instructors is subject to special requirements as follows: (A) No single individual may be scheduled to instruct more than 35 percent of the total hours of the curriculum during any one delivery except as set forth in Part (a)(2)(B) of this Rule. (B) Where the school director shows exceptional or emergency circumstances and the school director documents that an instructor is properly certified to instruct more than 35 percent of the total hours of the curriculum, the Director of the Division may grant written approval for the expansion of the individual instructional limitation. (C) Schedule appropriate number of instructors for specific topic areas as required in 12 NCAC 10B .0703. (3) Provide each instructor with a commission-approved course outline and all necessary additional information concerning the instructor's duties and responsibilities. (4) Review each instructor's lesson plans and other instructional materials for conformance to the rules in this Chapter and to minimize repetition and duplication of subject matter. (5) Permanently maintain records of all Detention Officer Certification Courses sponsored or delivered by the school, reflecting: (A) Course title; (B) Delivery hours of course; (C) Course delivery dates; (D) Names and addresses of instructors utilized within designated subject-matter areas; (E) A roster of enrolled trainees, showing class attendance and designating whether each trainee's course participation was successful or unsuccessful including individual test scores indicating each trainee's proficiency in each topic area and methods or instruments; (F) Copies of all rules, regulations and guidelines developed by the school director; (G) Documentation of any changes in the initial course outline, including substitution of instructors; and (H) Documentation of make-up work achieved by each individual trainee, including test scores and methods or instruments. (6)(5) Arrange for the timely availability of appropriate audiovisual aids and materials, publications, facilities and equipment for PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 601 training in all topic areas as required in the "Detention Officer Certification Course Management Guide". (7)(6) Develop, adopt, reproduce, and distribute any supplemental rules, regulations, and requirements determined by the school to be necessary or appropriate for: (A) Effective course delivery; (B) Establishing responsibilities and obligations of agencies or departments employing course trainees; and (C) Regulating trainee participation and demeanor and ensuring trainee attendance and maintaining performance records. A copy of such rules, regulations and requirements shall be submitted to the Director as an attachment to the Pre-Delivery Report of Training Course Presentation, Form F-7A. A copy of such rules shall also be given to each trainee and to the sheriff of each trainee's employing agency at the time the trainee enrolls in the course. (8)(7) If appropriate, recommend housing and dining facilities for trainees. (9)(8) Not less than 30 days before commencing delivery of the course, submit to the Commission a Pre-Delivery Report of Training Course Presentation (Form F-7A) along with the following attachments: (A) A comprehensive course schedule showing arrangement of topical presentations and proposed instructional assignments; (B) A copy of any rules, regulations, and requirements for the school and, when appropriate, completed applications for certification of instructors. The Director shall review the submitted Pre-Delivery Report together with all attachments to ensure that the school is in compliance with all commission rules; if school's rules are found to be in violation, the Director shall notify the school director of deficiency, and approval will be withheld until all matters are in compliance with the Commissions' rules. (10)(9) Administer the course delivery in accordance with the rules in this Chapter and ensure that the training offered is as effective as possible. (11)(10) Monitor or designate a certified instructor to monitor the presentations of all probationary instructors during course delivery and prepare written evaluations on their performance and suitability for subsequent instructional assignments. These evaluations shall be prepared on commission forms and forwarded to the Division at the conclusion of each delivery. Based on this evaluation the school director shall recommend approval or denial of requests for Detention Officer Instructor Certification, Limited Lecturer Certification or Professional Lecturer Certification. (12)(11) Monitor or designate a certified instructor to monitor the presentations of all other instructors during course delivery and prepare written evaluations on their performance and suitability for subsequent instructional assignments. Instructor evaluations shall be prepared on commission forms in accordance with the rules in this Chapter. These evaluations shall be kept on file by the school for a period of three years and shall be made available for inspection by a representative of the Commission upon request. (13)(12) Ensure that any designated certified instructor who is evaluating the instructional presentation of another shall, at a minimum, hold certification in the same instructional topic area as that being taught. (14)(13) Administer or designate a person to administer appropriate tests as determined necessary at various intervals during course delivery. (15)(14) Maintain direct supervision, direction, and control over the performance of all persons to whom any portion of the planning, development, presentation, or administration of a course has been delegated. (16)(15) During a delivery of the Detention Officer Certification Course, make available to authorized representatives of the Commission three hours of scheduled class time and classroom facilities for the administration of a written examination to those trainees who have satisfactorily completed all course work. (17)(16) Not more than ten days after receiving from the Commission's representative the Report of Examination Scores, the school director shall submit to the Commission a Post-Delivery Report of Training Course Presentation (Form 7-B). (b) In addition to the requirements in 12 NCAC 10B .0704(a), the school director shall be readily available to students and Division staff at all times during course delivery by telephone, pager, or other means. The means, and applicable numbers, shall be filed with the accredited training delivery site and the Division prior to the beginning of a scheduled course delivery. Authority G.S. 17E-4. 12 NCAC 10B .0709 RESPONSIBILITIES: SCHOOL DIRECTORS, TELECOMMUNICATOR CERTIFICATION COURSE PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 602 (a) In planning, developing, coordinating, and delivering each commission accredited Telecommunicator Certification Course, the school director shall: (1) Formalize and schedule the course curriculum in accordance with the curriculum standards established by the rules in this Chapter; (2) Select and schedule instructors who are properly certified by the Commission; (3) Provide each instructor with a commission-approved course outline and all necessary additional information concerning the instructor's duties and responsibilities; (4) Review each instructor's lesson plans and other instructional materials for conformance to the rules in this Chapter and to minimize repetition and duplication of subject matter; (5) Permanently maintain records of all Telecommunicator Certification Courses sponsored or delivered by the school, reflecting: (A) Course title; (B) Delivery hours of course; (C) Course delivery dates; (D) Names and addresses of instructors utilized within designated subject-matter areas; (E) A roster of enrolled trainees, showing class attendance and designating whether each trainee's course participation was successful or unsuccessful including individual test scores indicating each trainee's proficiency in each topic area and methods or instruments; (F) Copies of all rules, regulations and guidelines developed by the school director; (G) Documentation of any changes in the initial course outline, including substitution of instructors; and (H) Documentation of make-up work achieved by each individual trainee, including test scores and methods or instruments, if applicable; (6)(5) Arrange for the timely availability of appropriate audiovisual aids and materials, publications, facilities and equipment for training in all topic areas as required in the "Telecommunicator Certification Course Management Guide"; (7)(6) Develop, adopt, reproduce, and distribute any supplemental rules, regulations, and requirements determined by the school to be necessary or appropriate for: (A) Effective course delivery; (B) Instruction on the responsibilities and obligations of agencies or departments employing course trainees; and (C) Regulating trainee participation and demeanor and ensuring trainee attendance and maintaining performance records. A copy of such rules, regulations and requirements shall be submitted to the Director as an attachment to the Pre-Delivery Report of Training Course Presentation, Form F-7A-T. A copy of such rules shall also be given to each trainee and to the sheriff or agency head of each trainee's employing agency at the time the trainee enrolls in the course; (8)(7) If appropriate, recommend housing and dining facilities for trainees; (9)(8) Not less than 30 days before commencing delivery of the course, submit to the Commission a Pre-Delivery Report of Training Course Presentation (Form F-7A-T) along with the following attachments: (A) A comprehensive course schedule showing arrangement of topical presentations and proposed instructional assignments; (B) A copy of any rules, regulations, and requirements for the school and, when appropriate, completed applications for certification of instructors. The Director shall review the submitted Pre-Delivery Report together with all attachments to ensure that the school is in compliance with all commission rules; if school's rules are found to be in violation, the Director shall notify the school director of deficiency, and approval will be withheld until all matters are in compliance with the Commissions' rules; (10)(9) Administer the course delivery in accordance with the rules in this Chapter and ensure that the training offered is as effective as possible; (11)(10) Monitor or designate a certified instructor to monitor the presentations of all probationary instructors during course delivery and prepare written evaluations on their performance and suitability for subsequent instructional assignments. These evaluations shall be prepared on commission forms and forwarded to the Division at the conclusion of each delivery. Based on this evaluation the school director shall recommend approval or denial of requests for Telecommunicator Instructor Certification or Professional Lecturer Certification; (12)(11) Monitor or designate a certified instructor to monitor the presentations of all other instructors during course delivery and prepare written evaluations on their performance and suitability for subsequent instructional PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 603 assignments. Instructor evaluations shall be prepared on commission-approved forms in accordance with the rules in this Chapter. These evaluations shall be kept on file by the school for a period of three years and shall be made available for inspection by a representative of the Commission upon request; (13)(12) Ensure that any designated certified instructor who is evaluating the instructional presentation of another shall, at a minimum, hold certification in the same instructional topic area as that being taught; (14)(13) Administer or designate a person to administer appropriate tests as determined necessary at various intervals during course delivery; (15)(14) Maintain direct supervision, direction, and control over the performance of all persons to whom any portion of the planning, development, presentation, or administration of a course has been delegated; (16)(15) During a delivery of the Telecommunicator Certification Course, make available to authorized representatives of the Commission two hours of scheduled class time and classroom facilities for the administration of a written examination to those trainees who have satisfactorily completed all course work; and (17)(16) Not more than 10 days after receiving from the Commission's representative the Report of Examination Scores, the school director shall submit to the Commission a Post-Delivery Report of Training Course Presentation (Form 7-B-T). (b) In addition to the requirements in 12 NCAC 10B .0708(a), the school director shall be readily available to students and Division staff at all times during course delivery by telephone, pager, or other means. The means, and applicable numbers, shall be filed with the accredited training delivery site and the Division prior to the beginning of a scheduled course delivery. Authority G.S. 17E-4. 12 NCAC 10B .0713 ADMISSION OF TRAINEES (a) The school may not admit any individual younger than 21 years of age as a trainee in any non-academic Commission-accredited basic training course without the prior written approval of the Director of the Standards Division for those individuals who will turn 21 years of age during the course, but prior to the ending date. (b) The school shall give priority admission in Commission-accredited basic training courses to individuals holding full-time employment with criminal justice agencies. (c) The school shall administer the reading component of a standardized test which reports a grade level for each trainee participating in the Detention Officer Certification Course. The specific type of test instrument shall be determined by the school director and shall be administered no later than by the end of the first two weeks of a presentation of the Detention Officer Certification Course. The grade level results on each trainee shall be submitted to the Commission on each trainee's Report of Student Course Completion (Form F-7d). (d) The school shall not admit any individual as a trainee in a presentation of the Detention Officer Certification Course or the Telecommunicator Certification Course unless as a prerequisite the individual has provided to the certified school director a Medical Examination Report Form (F-2) and the Medical History Statement Form (F-1) in compliance with 12 NCAC 10B .0304. .0304, properly completed by a physician licensed to practice medicine in North Carolina. The Medical Examination Report Form (F-2) and the Medical History Statement Form (F- 1) required by the North Carolina Criminal Justice Education and Training Standards Commission shall be recognized by the Commission for the purpose of complying with this Rule. Authority G.S. 17E-7. SECTION .0800 – ACCREDITATION OF JUSTICE OFFICER SCHOOLS AND TRAINING COURSES 12 NCAC 10B .0802 ACCREDITATION: DELIVERY/DETENTION OFFICER CERTIFICATION COURSE (a) An institution or agency must be accredited to deliver a Detention Officer Certification Course. (b) In order to obtain accreditation, an institution or agency shall meet or exceed the following minimum standards for overall course delivery: (1) the institution or agency shall conduct a minimum of one Detention Officer Certification Course each calendar year; (2) the executive officer shall comply with the requirements of 12 NCAC 10B .0703; and (3) the executive officer shall comply with the additional accreditation requirements as specified in the "Detention Officer Certification Course Management Guide". (c) An institution or agency meeting the requirements of 12 NCAC 10B .0802(b) may submit a "Request for Accreditation" (Form F-7) to the Division. Upon receipt of the request, the Division staff shall: (1) review the application for completeness; (2) contact the institution or agency executive officer or designated school director to schedule an on-site visit and tour of the proposed training facilities; (3) during the on-site visit note any deficiencies and attempt to provide assistance and recommendations in correcting those deficiencies; and (4) notify the applying institution or agency, in writing, of the approval or denial of the accreditation request. (d) In cases where the deficiencies prohibit the immediate accreditation of the institution or agency, the application shall be placed in a pending status: PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 604 (1) applications may remain in a pending status for no more than 30 days from the date of notification of any deficiencies; and (2) within or following the 30 day period, the Division shall: (A) issue accreditation; or (B) notify the institution or agency, in writing, that it must re-apply for accreditation. (e) Any existing commission-issued accreditations issued and valid on July 31, 1998 shall be automatically extended with an expiration date of December 31, 1999 at which time the previously issued accreditation shall be terminated. (f) All new applicants for accreditation shall meet the requirements of this Section after August 1, 1998. (g) The Division staff shall conduct an on-site accreditation audit once each calendar year which shall include, but is not limited to: (1) the review of all records maintained by the school director as required in 12 NCAC 10B .0704; and (2) the inspection of the institution or agency's training facilities to ensure continued compliance with accreditation standards as required in 12 NCAC 10B .0703 and .0802 (g) The accredited institution or agency will be subject to unannounced on-site accreditation audits to ensure compliance with these Rules. (h) Following the annual an on-site accreditation audit, the Division staff shall: (1) notify the institution or agency of the results of the audit; and (2) recommend to the Commission's Probable Cause Committee any action pursuant to 12 NCAC 10B .0802(i). (i) School accreditation shall remain effective until surrendered, suspended, or revoked. (j) The Commission may suspend or revoke the accreditation of a school when it finds that the school has failed to meet or to continuously maintain any requirement, standard or procedure for school accreditation or course delivery as required by Section .0700 of this Subchapter. Authority G.S. 17E-4. SECTION .0900 – MINIMUM STANDARDS FOR JUSTICE OFFICER INSTRUCTORS 12 NCAC 10B .0903 CERT: INSTRUCTORS FOR DETENTION OFFICER CERTIFICATION COURSE (a) Any person participating in a commission-accredited Detention Officer Certification Course as an instructor, teacher, professor, lecturer, or other participant making presentations to the class shall first be certified by the Commission as an instructor. A waiver may be granted by the Director upon receipt of a written application to teach in a designated school. (b) The Commission shall certify Detention Officer Certification Course instructors under the following categories: (1) Detention Officer Instructor Certification; (2) Professional Lecturer Certification; or (3) Limited Lecturer Certification as outlined in Rules .0904, .0906 and .0908 of this Section. (c) In addition to all other requirements of this Section, all instructors certified by the Commission to teach in a Commission-accredited Detention Officer Certification Course shall remain knowledgeable and attend and complete any instructor training updates related to curriculum content and delivery as may be offered by the curriculum developer and within the time period as specified by the curriculum developer. Authority G.S. 17E-4. 12 NCAC 10B .0904 DETENTION OFFICER INSTRUCTOR CERTIFICATION (a) An applicant for Detention Officer Instructor Certification shall:shall present documentary evidence demonstrating that the applicant: (1) not have had any type of certification issued from this Commission, from the North Carolina Criminal Justice Education and Training Standards Commission, or from any commission, agency, or board established to certify pursuant to said commission, agency or boards' standards, which was revoked, suspended or denied for cause and such period of sanction is still in effect at the time of designation; (1)(2) has have attended and successfully completed the North Carolina Sheriffs' Education and Training Standards Commission-approved Detention Officer Training Course; or holds hold a valid general or grandfather certification as a detention officer or correctional officer; and (2)(3) holds hold General Instructor certification issued by the North Carolina Criminal Justice Education and Standards Commission. (b) Persons holding Detention Officer Instructor Certification may teach any topical areas of instruction in the Commission-mandated course with the exception of those outlined in 12 NCAC 10B .0908(a)(1) through (5). Authority G.S. 17E-4. 12 NCAC 10B .0905 TERMS AND CONDITIONS OF DETENTION OFFICER INSTRUCTOR CERTIFICATION (a) An applicant meeting the requirements for certification as a Detention Officer Instructor shall serve a probationary period. The probationary period will be set to expire concurrently with the expiration of the instructors' General Instructor Certification issued by the North Carolina Criminal Justice Education and Training Standards Commission. As of August 1, 2002, the expiration dates of any existing commission-issued Probationary General Detention Officer Instructor Certifications will be amended to expire concurrently with the expiration of the instructors' General Instructor Certification issued by the North Carolina Criminal Justice Education and Training Standards Commission. If the time-period before the expiration date is less PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 605 than one year, then the eight hours of instruction shall be waived for this shortened term and Full General Detention Officer Instructor Certification will be issued provided all other conditions for Full status as set out in Paragraph (b) of this Section are met. (b) The probationary instructor shall be awarded full Detention Officer Instructor Certification at the end of the probationary period if the instructor, instructor's certification required in 12 NCAC 10B .0904(a)(2) remains valid, and that the instructor through application, submits to the Division documentation that certification required in 12 NCAC 10B .0904(a)(2) remains valid, and either: (1) a favorable recommendation from a school director accompanied by certification on a commission Instructor Evaluation Form that the instructor satisfactorily taught a minimum of eight hours as specified in Paragraph (e) of this Rule in a commission-accredited Detention Officer Certification Course during his/her probationary year; or (2) an acceptable written evaluation as specified in Paragraph (e) of this Rule by a commission member or staff member based on an on-site classroom evaluation of the probationary instructor in a commission-accredited Detention Officer Certification Course. Such evaluation shall be certified on a commission Instructor Evaluation Form. In addition, instructors evaluated by a commission or staff member must also teach a minimum of eight hours in a commission-accredited Detention Officer Certification Course during his/her probationary year. (c) As of August 1, 2002, the expiration dates of any existing commission-issued Full General Detention Officer Instructor Certifications will be amended to expire concurrently with the expiration of the instructors' General Instructor Certification issued by the North Carolina Criminal Justice Education and Training Standards Commission. If the time-period before the expiration date is less than two years, then the eight hours of instruction shall be waived for this shortened term and Full General Detention Officer Instructor Certification will be renewed. Full Detention Officer Instructor Certification is continuous so long as the instructor, instructor's certification required in 12 NCAC 10B .0904(a)(2) remains valid, and that the instructor submits to the Division every two years a renewal application to include documentation that certification required in 12 NCAC 10B .0904(a)(2) remains valid, and which includes either: (1) a favorable recommendation from a school director accompanied by certification on a commission Instructor Evaluation Form that the instructor satisfactorily taught a minimum of eight hours as specified in Paragraph (e) of this Rule in a commission-accredited Detention Officer Certification Course during the previous two year period. The date full Instructor Certification is originally issued is the anniversary date from which each two year period is figured; or (2) an acceptable written evaluation as specified in Paragraph (e) of this Rule by a commission member or staff member based on a minimum eight hours, on-site classroom observation of the instructor in a commission-accredited Detention Officer Certification Course. (d) In the event a General Detention Officer Instructor Certification (either Probationary or Full ) is terminated for failure to have been satisfactorily evaluated for eight hours of instruction in a Detention Officer Certification Course, the individual may re-apply for certification meeting the initial conditions for such certification, but must also provide documentation that he/she has audited eight hours of instruction in a delivery of an accredited Detention Officer Certification Course. (e) An Instructor Evaluation Form records a rating of the instructor's qualities, organization and presentation of materials consistent with the requirements for successfully completing the Criminal Justice Instructor Training as set out in 12 NCAC 09B .0209. Instructor qualities, organization and presentation are rated on a scale of 1 (poor), 2 (fair), 3 (good), 4 (excellent) and 5 (superior). Instructor qualities include, but may not be limited to appearance, gestures, verbal pauses, grammar, pronunciation, enunciation, voice, rate (too slow or too fast), eye contact, and enthusiasm. Organization and presentation include, but may not be limited to: (1) Major objectives of the course made clear; (2) Class Presentation planned and organized; (3) Important ideas clearly explained; (4) Instructor's mastery of the course content; (5) Class time well used; (6) Encouragement of critical thinking and analysis; (7) Encouragement of student involvement; (8) Reaction to student viewpoints different from instructors; (9) Student's attitude toward instructor; and (10) Instructors use of training aids. A rating of 1 or 2 is unacceptable or unsatisfactory; and a rating of 3, 4, or 5 is acceptable or satisfactory. Authority G.S. 17E-4. 12 NCAC 10B .0911 SUSPENSION: REVOCATION: DENIAL OF DETENTION OFFICER INSTRUCTOR CERTIFICATION (a) The Division may notify an applicant for instructor certification or a certified instructor that a deficiency appears to exist and attempt, in an advisory capacity, to assist the person in correcting the deficiency. (b) When any person certified as an instructor by the Commission is found to have knowingly and willfully violated any provision or requirement of these Rules, the Commission may take action to correct the violation and to ensure that the violation does not recur, including: (1) issuing an oral warning and request for compliance; PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 606 (2) issuing a written warning and request for compliance; (3) issuing an official written reprimand; (4) suspending the individual's certification for a specified period of time or until acceptable corrective action is taken by the individual; (5) revoking the individual's certification. (c) The Commission may deny, suspend, or revoke an instructor's certification when the Commission finds that the person: (1) has failed to meet and maintain any of the requirements for qualification; or (2) has failed to remain currently knowledgeable in the person's areas of expertise by failing to attend and successfully complete any instructor training updates pursuant to 12 NCAC 10B .0903(c); or (3) has failed to deliver training in a manner consistent with the instructor lesson plans; or (4) has failed to follow specific guidelines outlined in the "Detention Officer Certification Course Management Guide" which is hereby incorporated by reference and shall automatically include any later amendments and editions of the referenced materials. This publication is authored by and may be obtained from the North Carolina Justice Academy, Post Office Drawer 99, Salemburg, North Carolina 28385 at no cost at the time of adoption of this Rule; or (5) has demonstrated unprofessional personal conduct in the delivery of commission-mandated training; or (6) has otherwise demonstrated instructional incompetence; or (7) has knowingly and willfully obtained, or attempted to obtain instructor certification by deceit, fraud, or misrepresentation. misrepresentation; or (8) has had any type of certification issued from the Commission, from the North Carolina Criminal Justice Education and Training Standards Commission, or from any commission, agency, or board established to certify pursuant to said commission, agency or boards' standards, which was revoked, suspended or denied for cause. Authority G.S. 17E-4. 12 NCAC 10B .0913 CERT: INSTRUCTORS FOR TELECOMMUNICATOR CERTIFICATION COURSE (a) Any person participating in a commission-accredited Telecommunicator Certification Course as an instructor, teacher, professor, lecturer, or other participant making presentations to the class shall first be certified by the Commission as an instructor. A waiver may be granted by the Director upon receipt of a written application to teach in a designated school. (b) As of the effective date of this Rule, the Commission shall certify Telecommunicator Certification Course instructors under the following categories: (1) Telecommunicator Instructor Certification; or (2) Professional Lecturer Certification. (c) Individuals who have previously instructed in a commission-accredited Telecommunicator Certification Course as it existed prior to the effective date of this Rule are eligible to apply for a waiver of 12 NCAC 10B .0913(b), provided documentation is submitted showing the applicant taught a minimum of eight hours in the Telecommunicator Certification Course within the one-year period prior to the date of application. (d) In addition to all other requirements of this Section, all instructors certified by the Commission to teach in a Commission-accredited Telecommunicator Certification Course shall remain knowledgeable and attend and complete any instructor training updates related to curriculum content and delivery as may be offered by the curriculum developer and within the time period as specified by the curriculum developer. Authority G.S. 17E-4. 12 NCAC 10B .0914 TELECOMMUNICATOR INSTRUCTOR CERTIFICATION (a) An applicant for Telecommunicator Instructor Certification shall:shall present documentary evidence demonstrating that the applicant: (1) not have had any type of certification issued from this Commission, from the North Carolina Criminal Justice Education and Training Standards Commission, or from any commission, agency, or board established to certify pursuant to said commission, agency or boards' standards, which was revoked, suspended or denied for cause and such period of sanction is still in effect at the time of designation; (1)(2) has have attended and successfully completed the North Carolina Sheriffs' Education and Training Standards Commission-approved Telecommunicator Training Course, or holds hold a valid general or grandfather certification as a telecommunicator; and (2)(3) holds hold General Instructor certification issued by the North Carolina Criminal Justice Education and Standards Commission. (b) Persons holding Telecommunicator Instructor Certification may teach any topical areas of instruction in the Commission-mandated course. Authority G.S. 17E-4. 12 NCAC 10B .0915 TERMS AND CONDITIONS OF TELECOMMUNICATOR INSTRUCTOR CERTIFICATION (a) An applicant meeting the requirements for certification as a Telecommunicator Instructor shall serve a probationary period. The Telecommunicator Instructor Certification probationary period shall be set to automatically expire concurrently with the PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 607 expiration of the instructor's General Instructor Certification issued by the North Carolina Criminal Justice Education and Training Standards Commission. As of August 1, 2002, the expiration dates of any existing commission-issued Probationary General Telecommunicator Instructor Certifications will be amended to expire concurrently with the expiration of the instructors' General Instructor Certification issued by the North Carolina Criminal Justice Education and Training Standards Commission. If the time-period before the expiration date is less than one year, then the eight hours of instruction shall be waived for this shortened term and Full General Telecommunicator Instructor Certification will be issued provided all other conditions for Full status as set out in Paragraph (b) of this Rule are met. (b) The probationary instructor shall be awarded full Telecommunicator Instructor Certification at the end of the probationary period if the instructor instructor's certification required in 12 NCAC 10B .0914(a)(2) remains valid, and that the instructor through application, submits to the Division: Division documentation that certification required in 12 NCAC 10B .0914(a)(2) remains valid, and either: (1) a favorable recommendation from a school director accompanied by certification on a commission Instructor Evaluation Form that the instructor satisfactorily taught a minimum of eight hours as specified in Paragraph (e) of this Rule in a commission-accredited Telecommunicator Certification Course during his/her probationary year; or (2) an acceptable written evaluation as specified in Paragraph (e) of this Rule by a commission member or staff member based on an on-site classroom evaluation of the probationary instructor in a commission-accredited Telecommunicator Certification Course. Such evaluation shall be certified on a commission Instructor Evaluation Form. In addition, instructors evaluated by a commission or staff member must also teach a minimum of eight hours in a commission-accredited Telecommunicator Certification Course during his/her probationary year. (c) As of August 1, 2002, the expiration dates of any existing commission-issued Full General Telecommunicator Instructor Certifications will be amended to expire concurrently with the expiration of the instructors' General Instructor Certification issued by the North Carolina Criminal Justice Education and Training Standards Commission. If the time-period before the expiration date is less than two years, then the eight hours of instruction shall be waived for this shortened term and Full General Telecommunicator Instructor Certification will be renewed. Full Telecommunicator Instructor Certification is continuous so long as the instructor, instructor's certification required in 12 NCAC 10B .0904(a)(2) remains valid, and that the instructor submits to the Division every two years a renewal application to include documentation that certification required in 12 NCAC 10B .0914(a)(2) remains valid, and either: (1) a favorable recommendation from a school director accompanied by certification on a commission Instructor Evaluation Form that the instructor satisfactorily taught a minimum of eight hours as specified in Paragraph (e) of this Rule in a commission-accredited Telecommunicator Certification Course during the previous two pear period. The date full Instructor Certification is originally issued is the anniversary date from which each two year period is figured; or (2) an acceptable written evaluation as specified in Paragraph (e) of this Rule by a commission member or staff member based on a minimum eight hours, on-site classroom observation of the instructor in a commission-accredited Telecommunicator Certification Course. (d) In the event a General Telecommunicator Instructor Certification (either Probationary or Full) is terminated for failure to have been evaluated for eight hours of instruction in a Telecommunicator Certification Course, the individual may re-apply for certification meeting the initial conditions for such certification, but must also provide documentation that he/she has audited 8-hours of instruction in a delivery of an accredited Telecommunicator Certification Course. (e) An Instructor Evaluation Form records a rating of the instructor's qualities, organization and presentation of materials consistent with the requirements for successfully completing the Criminal Justice Instructor Training as set out in 12 NCAC 09B .0209. Instructor qualities, organization and presentation are rated on a scale of 1(poor), 2 (fair), 3 (good), 4 (excellent) and 5 (superior). Instructor qualities include, but may not be limited to appearance, gestures, verbal pauses, grammar, pronunciation, enunciation, voice, rate (too slow or too fast), eye contact, and enthusiasm. Organization and presentation include, but may not be limited to: (1) Major objectives of the course made clear; (2) Class presentation planned and organized; (3) Important ideas clearly explained; (4) Instructor's mastery of the course content; (6) Encouragement of critical thinking and analysis; (7) Encouragement of student involvement; (8) Reaction to student viewpoints different from instructors; (9) Students attitude toward instructor; and (10) Instructor's use of training aids. A rating of 1 or 2 is unacceptable or unsatisfactory; and a rating of 3, 4, or 5 are acceptable or satisfactory. Authority G.S. 17E-4. 12 NCAC 10B .0919 SUSPENSION: REVOCATION: DENIAL OF TELECOMMUNICATOR INSTRUCTOR CERTIFICATION (a) The Division may notify an applicant for instructor certification or a certified instructor that a deficiency appears to exist and attempt, in an advisory capacity, to assist the person in correcting the deficiency. (b) When any person certified as an instructor by the Commission is found to have knowingly and willfully violated PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 608 any provision or requirement of these Rules, the Commission may take action to correct the violation and to ensure that the violation does not recur, including: (1) issuing an oral warning and request for compliance; (2) issuing a written warning and request for compliance; (3) issuing an official written reprimand; (4) suspending the individual's certification for a specified period of time or until acceptable corrective action is taken by the individual; or (5) revoking the individual's certification. (c) The Commission may deny, suspend, or revoke an instructor's certification when the Commission finds that the person: (1) has failed to meet and maintain any of the requirements for qualification; or (2) has failed to remain currently knowledgeable in the person's areas of expertise by failing to attend and successfully complete any instructor training updates pursuant to 12 NCAC 10B .0913(d); or (3) has failed to deliver training in a manner consistent with the instructor lesson plans; or (4) has failed to follow specific guidelines outlined in the "Telecommunicator Certification Course Management Guide" which shall be used and shall automatically include any later amendments and editions of the referenced materials. This publication is authored by and may be obtained from the North Carolina Justice Academy, Post Office Drawer 99, Salemburg, North Carolina 28385 at no cost at the time of adoption of this Rule; or (5) has demonstrated unprofessional personal conduct in the delivery of commission-mandated training; or (6) has otherwise demonstrated instructional incompetence; or (7) has knowingly and willfully obtained, or attempted to obtain instructor certification by deceit, fraud, or misrepresentation. misrepresentation; or (8) has had any type of certification issued from this Commission, from the North Carolina Criminal Justice Education and Training Standards Commission, or from any commission, agency, or board established to certify pursuant to said commission, agency or boards' standards, which was revoked, suspended or denied for cause. Authority G.S. 17E-4. TITLE 15A – DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission for Health Services intends to amend the rule cited as 15A NCAC 18A .1969. Proposed Effective Date: January 1, 2005 Public Hearing: Date: October 6, 2004 Time: 10:00 a.m. Location: Room 1A244, Parker-Lincoln Building, 2728 Capital Blvd, Raleigh, NC Reason for Proposed Action: This Rule amendment provides clarifying procedures for the approval and permitting of "Accepted" wastewater systems that are a new category established by Session Law 2001-505. Procedure by which a person can object to the agency on a proposed rule: Written objections concerning these Rule changes may be submitted to Steve Steinbeck, 1642 Mail Service Center, Raleigh, NC 27699-1642, 919-715-3273, fax 919-715- 3227, and email steve.steinbeck@ncmail.net. Written comments may be submitted to: Steve Steinbeck, 1642 Mail Service Center, Raleigh, NC 27699-1642, 919-715- 3273, fax 919-715-3227, and email steve.steinbeck@ncmail.net. Comment period ends: November 15, 2004 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State Local Substantive (>$3,000,000) None CHAPTER 18 – ENVIRONMENTAL HEALTH SUBCHAPTER 18A – SANITATION SECTION .1900 - SEWAGE TREATMENT AND DISPOSAL SYSTEMS 15A NCAC 18A .1969 APPROVAL AND PERMITTING PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 609 OF ON-SITE SUBSURFACE WASTEWATER SYSTEMS, TECHNOLOGIES, COMPONENTS, OR DEVICES Experimental, controlled demonstration, and innovativeinnovative, and accepted wastewater systems (hereinafter referred to as E & I systems) are any wastewater systems, system components, or devices that are not specifically described in Rules .1955, .1956, .1957, or .1958 of this Section, including any system for which reductions are proposed in the minimum horizontal or vertical separation requirements or increases are proposed to the maximum long-term acceptance rates of this Section; or any E & I systems as defined by G.S. 130A-343(a) and approved pursuant to applicable Laws and this Rule. Accepted systems are as defined by G.S. 130A-343(a). This Rule shall provide for the approval and permitting of E & I and accepted systems. (1) APPLICATION: An application shall be submitted in writing to the State for an E & I system. The application shall include the information required by G.S. 130A-343 (d), (e), (f), and (g), and the following, as applicable: (a) specification of the type of approval requested as either innovative, controlled demonstration, experimental, accepted or a combination; (b) description of the system, including materials used in construction, and its proposed use; (c) summary of pertinent literature, published research, and previous experience and performance with the system; (d) results of any available testing, research or monitoring of pilot systems or full-scale operational systems conducted by a third party research or testing organization; (e) evaluation protocols shall be specified as either an approved and listed protocol by the State or submit an alternative protocol for the evaluation of the performance of the manufacturer's system; (e)(f) identity and qualifications of any proposed research or testing organization and the principal investigators, and an affidavit certifying that the organization and principal investigators have no conflict of interest and do not stand to gain financially from the sale of the E & I system; (f)(g) objectives, methodology, and duration of any proposed research or testing; (g)(h) specification of the number of systems proposed to be installed, the criteria for site selection, and system monitoring and reporting procedures; (h)(i) operation and maintenance procedures, system classification, proposed management entity and system operator; (i)(j) procedure to address system malfunction and replacement or premature termination of any proposed research or testing; (j)(k) notification of any proprietary or trade secret information, system, component, or device; and (l) a request for innovative system approval intended by the applicant to be reclassified from an innovative to an accepted system shall include monitoring, reporting and evaluation protocols to be followed by the manufacturer, the results of which shall be submitted in its future petition for accepted status; and (k)(m) Fee fee payment as required by G.S. 130A-343(k), by corporate check, money order or cashier's check made payable to: North Carolina On-Site Wastewater System Account or NC OSWW System Account, and mailed to the On-Site Wastewater Section, 1642 Mail Service Center, Raleigh, NC 27699-1642 or hand delivered to Rm. 1A-245, Parker Lincoln Building, 2728 Capital Blvd., Raleigh, NC. (2) REVIEW: The State shall review all applications submitted and evaluate at least the following: (a) the completeness of the application, and whether additional information is needed to continue the review; (b) whether the system meets the standards of an innovative system under G.S. 130A-343(a)(5), G.S. 130A-343(g), and Item (3) of this Rule, or whether the system meets the standards of an experimental or controlled demonstration system under G.S. 130A-343(e) or (f) and Item (4) of this Rule, as applicable. (3) INNOVATIVE SYSTEMS: Innovative systems, technologies, components, or devices shall be reviewed and approved by the State, and the local health department shall permit innovative systems in accordance with the following: (a) The State shall approve the system as an innovative system if the following standards have been met; PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 610 (i) The system, shall have been demonstrated to perform equal or superior to a system, which is described in Rules .1955, .1956, .1957, or .1958, of this Section, based upon controlled pilot-scale research studies or statistically-valid monitoring of full-scale operational systems. (ii) Materials used in construction shall be equal or superior in physical properties and chemical durability, compared to materials used for similar proposed systems, specifically described in Rules .1955, .1956, .1957, or .1958 of this Section. (b) When a system is approved as innovative by the State, the applicant shall be notified in writing. Such notice shall include any conditions for permitting, siting, installation, use, monitoring, and operation. Approved innovative systems shall be assigned a unique code for tracking purposes. Prior to making a request for reclassification of a system from innovative to accepted, the manufacturer shall have a system in place to keep track of the number and location of new system installations, and of any system installations it becomes aware of which were required to be repaired, and to provide this information to the State upon request and in any subsequent petition for accepted status. (c) A local health department shall issue an Improvement Permit and a Construction Authorization for any innovative system approved by the State upon a finding that the provisions of this Section including any conditions of the approval are met. Use of an innovative system and any conditions shall be described on the Improvement Permit, Construction Authorization, or Operation Permit. (4) EXPERIMENTAL AND CONTROLLED DEMONSTRATION SYSTEMS: A system may be approved for use as an experimental or controlled demonstration system as part of a research or testing program which has been approved by the State. The research or testing program shall be conducted by a third party research or testing organization which has knowledge and experience relevant to the proposed research or testing and has no conflict of interest and does not stand to gain financially from the sale of the proposed system. (a) To be approved by the State, the proposed research or testing program shall include the following: (i) The research program shall be designed such that, if the objectives were met, the system would satisfy the standards for approval as an innovative system under Item (3) of this Rule. (ii) Research design and testing methodology shall have a reasonable likelihood of meeting the objectives. (b) The State shall notify the applicant and the applicable local health departments when the proposed research or testing program has been approved for an experimental or controlled demonstration system. Such notice shall include, but not be limited to, conditions for permitting, siting, operation, monitoring and maintenance, and number of systems which can be installed. (c) A local health department shall issue an Improvement Permit and Construction Authorization for an experimental or controlled demonstration system when the following conditions are met: (i) There is an application for an Improvement Permit in accordance with Rule .1937(c) of this Section, with the proposed use of an experimental system specified. (ii) The proposed site is included as part of an approved research or testing program and any conditions specified for use of the system have been met. (iii) When an experimental or controlled demonstration system is proposed to serve a residence, place of business or place of public assembly, there shall be a repair area using a non-experimental or non-controlled PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 611 demonstration backup system in accordance with the provisions of Rule .1945(b) or an accepted system of this Rule, except: (A) When an existing and properly functioning wastewater system is available for immediate use, including connection to a public or community wastewater system; or (B) When the experimental or controlled demonstration system is used as a repair to an existing malfunctioning system; or (C) When for a controlled demonstration system sufficient available space shall be reserved for the installation of a replacement system at least equal to the initial controlled demonstration system, or the State or Local Health Department otherwise determines that the manufacturer can provide an acceptable alternative method for collection, treatment, and disposal of the wastewater. (iv)(iii) When an experimental or controlled demonstration system is proposed to serve a residence, place of business or place of public assembly, there shall be a repair system in accordance with the provisions of Rule .1945(b) or an innovative or accepted system of this Rule, except: (A) When an existing and properly functioning wastewater system is available for immediate use, including connection to a public or community wastewater system; or (B) When the experimental or controlled demonstration system is used as a repair to an existing malfunctioning system when there are no other approved or accepted repair options; or (C) As provided in G.S. 130A-343(f) for Controlled Demonstration Systems. (v)(iv) When an experimental or controlled demonstration system is proposed which shall not serve a residence, place of business, or place of public assembly, a repair area or backup system shall not be required. (vi)(v) The application for an experimental system shall include statements that the property owner is aware of its experimental nature, that the local health department and State do not guarantee or warrant that these systems will function in a satisfactory manner for any period of time, and that use of the system may need to be discontinued if the system research or testing program is prematurely terminated. Such statements shall be signed by the owner. (vii)(vi) The owner of the site on which an experimental system is proposed shall PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 612 execute an easement granting rights of access to the system at reasonable hours for monitoring and evaluation to the research or testing organization. This easement shall specify that it is granted for the purposes of researching and testing an experimental wastewater system and shall remain valid as long as the system is to be part of the proposed research or testing program. The easement shall be recorded with the county register of deeds. (viii)(vii) Provisions shall be made for operation and maintenance of the system. (ix)(viii) Any special conditions required for the installation of the experimental or controlled demonstration system shall be specified in the Improvement Permit and the Construction Authorization. Use of an experimental or controlled demonstration system and any conditions shall be described on the Improvement Permit, Construction Authorization and any subsequent operation permits, with provisions for a repair area and backup system specified. A condition of the Improvement Permit and Construction Authorization shall be that the installation be under the direct field supervision of the research or testing organization. (x)(ix) The proposed Improvement Permit, Construction Authorization and any subsequent operation permits for experimental or controlled demonstration systems shall be reviewed by the State and found to be consistent with the approved research or testing program prior to issuance by the local health department. (d) Upon completion of the installation and prior to use, an Experimental or Controlled Demonstration System Operation Permit (ESOP or CDSOP) shall be issued by the local health department. The ESOP (CDSOP) shall be valid for a specified period of time not to exceed five years. Special maintenance, monitoring and testing requirements shall be specified as permit conditions, in accordance with the approved research or testing program. Failure to carry out these conditions shall be grounds for permit suspension or revocation. (e) Prior to expiration of the ESOP (CDSOP) and based upon satisfactory system performance as determined during the research or testing program, the local health department shall issue an Operation Permit. Premature termination of the research or testing program shall be grounds for ESOP (CDSOP) suspension or revocation. (f) Upon completion of monitoring, research and testing, the research or testing organization shall prepare a final report including recommendations on future use of the system. If the State determines that the results indicate that the standards of Item (3) of this Rule are met, the State shall approve the use as an innovative system. (g) Any proposed changes or modifications in the E & I system shall be submitted for review and approval by the State. (5) ACCEPTED SYSTEMS: A petition to the Commission (CHS) for reclassification of a proprietary innovative system to an accepted system shall be submitted by the manufacturer for review to the State, accompanied by the fee payment as required by G.S. 130A-343(k) and as stipulated in Item (l) of this Rule. The State shall review all petitions submitted and evaluate the following: the completeness of the petition, and whether additional information is needed to continue the review; and whether the system meets the standards of an accepted system under G.S. 130A-343(a)(l), G.S. 130A- 343(h), and this Section. The State may also initiate a review of a nonproprietary innovative system pursuant to G.S. l30A-343(i)(2). The State shall submit to the CHS findings and recommendations based upon its review for final Commission action on system designation. The Commission shall designate a wastewater system technology, component or device as an accepted system when it finds PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 613 that the standards set forth by G.S. 130A- 343(a)(1) and G.S. l30A-343(h) have been met. The following factors shall be considered prior to granting accepted system status: (a) documentation provided that there are at last 300 systems installed statewide and the system has been in use as an approved innovative system for more than five years; (b) data and findings of all prior evaluations of the system performance shall be provided by the manufacturer; (c) results of prior performance surveys of innovative systems in use in North Carolina for at least the five year period immediately preceding the petition; (d) review(s) of records on system use and performance reported by local health departments and other information documenting the experiences with performance of the system in North Carolina, including information collected and reported pursuant to Items (3)(b) and (12) of this Rule; (e) for proprietary nitrification trench systems, a statistically valid survey of system performance shall be performed. The manufacturer shall provide a proposed survey plan pursuant to Sub-Items (5)(e)(i) or (5)(e)(ii) of this Rule for State concurrence prior to carrying out the survey. This plan shall specify number of systems to be evaluated, period of evaluation, method to randomly select systems to be evaluated, methods of field and data evaluation, and proposed survey team members, including proposed cooperative arrangements to be made with State and local health department on-site wastewater program staff. The State shall facilitate local health department participation with any performance review or survey. The State shall utilize the Division of Public Health's State Center for Health Statistics for assistance in evaluating the statistical validity of proposed evaluation protocols. (i) The survey shall include the field evaluation of at least 250 randomly selected innovative systems compared with 250 comparably-aged randomly selected conventional systems, with at least 100 of each type of surveyed system currently in use and in operation for at least five years. Systems surveyed shall be distributed throughout the three physiographic regions of the state in approximate proportion to the irrelative usage in the three regions. The survey shall determine comparative system failure rates, with field evaluations completed during a typical wet-weather season (February through early April), with matched innovative and conventional systems sampled during similar time periods in each region. The petitioner shall provide a statistical analysis of the survey results showing a "one-sided" test where, if the failure rate in the sample of 250 innovative systems is at least five percentage points higher than the failure rate in the sample of 250 conventional systems, there is only a five percent chance that a difference this large would occur by chance (95% confidence level). If a statistically significant higher failure rate in the innovative system is not detected, the Commission shall find that the innovative system performs the same as or better than the conventional system. (ii) Other surveys, including evaluations of different numbers of innovative and conventional systems, designed to verify equal or superior performance of the innovative system compared to a conventional system under actual field conditions in North Carolina may be proposed by the manufacturer for approval by the state when they are PROPOSED RULES 19:06 NORTH CAROLINA REGISTER September 15, 2004 614 demonstrated to have comparable statistical validity as described in Sub- Item (5)(e)(i) of this Rule. (f) The Commission may grant accepted status to an innovative system based upon a showing by the manufacturer that there have been at least 10,000 operational systems installed in the state, in more than one county of the state, over at least an eight year period with a total reported failure rate statewide based on records provided by the manufacturer and local health departments of less than one percent. However, the granting of accepted status based upon this criteria shall be conditioned on the manufacturer successfully completing an approved field survey pursuant to Items (5)(e)(i) or (5)(e)(ii) of this Rule within no more than 24 months of being granted accepted status; (g) Proprietary innovative systems which include an advanced pretreatment component designed to achieve specific effluent quality standards, the field survey shall be designed to verify effluent is in compliance with these established performance standards. Data evaluated shall be from sites where influent wastewater characteristics and flow meet design parameters. Compliance shall be achieved for all parameters by the arithmetic mean of all samples (geometric mean for fecal coliforms, where applicable). The percent of all samples exceeding performance standards shall not exceed 20% for any parameter. The percent of sites in violation of performance standards for one or more parameters shall not exceed 10%. (h) When a petition or recommendation for an accepted wastewater system designation is approved by the CHS, the State shall notify local health departments and publish a listing of accepted systems. The CHS shall impose any use, design, installation, operation, maintenance, monitoring, and management conditions it determines to be appropriate. (i) The local health department shall permit systems designated as accepted nitrification trench systems that meet the requirements of this Section, Laws, and conditions of its accepted system approval in an equivalent manner as a conventional system. The Owner may choose to substitute an accepted system for a conventional system or another accepted system without prior approval of the health department as long as no changes are necessary in the location of each nitrification line, trench depth, or effluent distribution method. The type of system installed shall be indicated on the Operation Permit, including designation of the manufacturer and model or unique code. (6) MODIFICATION OF APPROVED SYSTEMS: Where a manufacturer of an approved E & I or accepted system seeks to modify such system or its conditions of approval (including siting or sizing criteria) and retain it approved status, the manufacturer shall submit to the State a request for approval of the proposed modification. If the manufacturer demonstrates that |
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