North Carolina register

              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
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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
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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
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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
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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:
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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