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This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER VOLUME 25 ● ISSUE 02 ● Pages 119 - 171 July 15, 2010 I. PROPOSED RULES Commerce, Department of Alcoholic Beverage Control Commission....................................................... 119 – 125 Labor, Department of Department...................................................................................................... 125 – 147 Occupational Licensing Boards and Commissions Nursing, Board of............................................................................................ 148 – 151 Onsite Wastewater Contractors and Inspectors Certification Board ............... 151 – 155 State Personnel, Office of State Personnel Commission........................................................................... 156 – 160 II. RULES REVIEW COMMISSION ................................................................. 161 – 169 III. CONTESTED CASE DECISIONS Index to ALJ Decisions ...................................................................................... 170 – 171 PUBLISHED BY The Office of Administrative Hearings Rules Division 6714 Mail Service Center Raleigh, NC 27699-6714 Telephone (919) 431-3000 Fax (919) 431-3104 Julian Mann, III, Director Camille Winston, Deputy Director Molly Masich, Codifier of Rules Dana Vojtko, Publications Coordinator Julie Edwards, Editorial Assistant Tammara Chalmers, Editorial Assistant This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 Contact List for Rulemaking Questions or Concerns For questions or concerns regarding the Administrative Procedure Act or any of its components, consult with the agencies below. The bolded headings are typical issues which the given agency can address, but are not inclusive. Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc. Office of Administrative Hearings Rules Division 1711 New Hope Church Road (919) 431-3000 Raleigh, North Carolina 27609 (919) 431-3104 FAX contact: Molly Masich, Codifier of Rules molly.masich@oah.nc.gov (919) 431-3071 Dana Vojtko, Publications Coordinator dana.vojtko@oah.nc.gov (919) 431-3075 Julie Edwards, Editorial Assistant julie.edwards@oah.nc.gov (919) 431-3073 Tammara Chalmers, Editorial Assistant tammara.chalmers@oah.nc.gov (919) 431-3083 Rule Review and Legal Issues Rules Review Commission 1711 New Hope Church Road (919) 431-3000 Raleigh, North Carolina 27609 (919) 431-3104 FAX contact: Joe DeLuca Jr., Commission Counsel joe.deluca@oah.nc.gov (919) 431-3081 Bobby Bryan, Commission Counsel bobby.bryan@oah.nc.gov (919) 431-3079 Fiscal Notes & Economic Analysis Office of State Budget and Management 116 West Jones Street (919) 807-4700 Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX Contact: Anca Grozav, Economic Analyst osbmruleanalysis@osbm.nc.gov (919)807-4740 NC Association of County Commissioners 215 North Dawson Street (919) 715-2893 Raleigh, North Carolina 27603 contact: Jim Blackburn jim.blackburn@ncacc.org Rebecca Troutman rebecca.troutman@ncacc.org NC League of Municipalities (919) 715-4000 215 North Dawson Street Raleigh, North Carolina 27603 contact: Erin L. Wynia ewynia@nclm.org Governor’s Review Edwin M. Speas, Jr. edwin.speas@nc.gov General Counsel to the Governor (919) 733-5811 116 West Jones Street 20301 Mail Service Center Raleigh, North Carolina 27699-0301 Legislative Process Concerning Rule-making Joint Legislative Administrative Procedure Oversight Committee 545 Legislative Office Building 300 North Salisbury Street (919) 733-2578 Raleigh, North Carolina 27611 (919) 715-5460 FAX contact: Karen Cochrane-Brown, Staff Attorney Karen.cochrane-brown@ncleg.net Jeff Hudson, Staff Attorney Jeffrey.hudson@ncleg.net This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER Publication Schedule for January 2010 – December 2010 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 31st legislative day of the session beginning: 270th day from publication in the Register 24:13 01/04/10 12/09/09 01/19/10 03/05/10 03/22/10 05/01/10 05/12/10 10/01/10 24:14 01/15/10 12/22/09 01/30/10 03/16/10 03/22/10 05/01/10 05/12/10 10/12/10 24:15 02/01/10 01/08/10 02/16/10 04/05/10 04/20/10 06/01/10 01/26/11 10/29/10 24:16 02/15/10 01/25/10 03/02/10 04/16/10 04/20/10 06/01/10 01/26/11 11/12/10 24:17 03/01/10 02/08/10 03/16/10 04/30/10 05/20/10 07/01/10 01/26/11 11/26109 24:18 03/15/10 02/22/10 03/30/10 05/14/10 05/20/10 07/01/10 01/26/11 12/10/10 24:19 04/01/10 03/11/10 04/16/10 06/01/10 06/21/10 08/01/10 01/26/11 12/27/10 24:20 04/15/10 03/24/10 04/30/10 06/14/10 06/21/10 08/01/10 01/26/11 01/10/11 24:21 05/03/10 04/12/10 05/18/10 07/02/10 07/20/10 09/01/10 01/26/11 01/28/11 24:22 05/17/10 04/26/10 06/01/10 07/16/10 07/20/10 09/01/10 01/26/11 02/11/11 24:23 06/01/10 05/10/10 06/16/10 08/02/10 08/20/10 10/01/10 01/26/11 02/26/11 24:24 06/15/10 05/24/10 06/30/10 08/16/10 08/20/10 10/01/10 01/26/11 03/12/11 25:01 07/01/10 06/10/10 07/16/10 08/30/10 09/20/10 11/01/10 01/26/11 03/28/11 25:02 07/15/10 06/23/10 07/30/10 09/13/10 09/20/10 11/01/10 01/26/11 04/11/11 25:03 08/02/10 07/12/10 08/17/10 10/01/10 10/20/10 12/01/10 01/26/11 04/29/11 25:04 08/16/10 07/26/10 08/31/10 10/15/10 10/20/10 12/01/10 01/26/11 05/13/11 25:05 09/01/10 08/11/10 09/16/10 11/01/10 11/22/10 01/01/11 01/26/11 05/29/11 25:06 09/15/10 08/24/10 09/30/10 11/15/10 11/22/10 01/01/11 01/26/11 06/12/11 25:07 10/01/10 09/10/10 10/16/10 11/30/10 12/20/10 02/01/11 05/2012 06/28/11 25:08 10/15/10 09/24/10 10/30/10 12/14/10 12/20/10 02/01/11 05/2012 07/12/11 25:09 11/01/10 10/11/10 11/16/10 01/03/11 01/20/11 03/01/11 05/2012 07/29/11 25:10 11/15/10 10/22/10 11/30/10 01/14/11 01/20/11 03/01/11 05/2012 08/12/11 25:11 12/01/10 11/05/10 12/16/10 01/31/11 02/21/11 04/01/11 05/2012 08/28/11 25:12 12/15/10 11/22/10 12/30/10 02/14/11 02/21/11 04/01/11 05/2012 09/11/11 This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 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. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 119 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 04 – DEPARTMENT OF COMMERCE Notice is hereby given in accordance with G.S. 150B-21.2 that the Alcoholic Beverage Control Commission intends to amend the rules cited as 04 NCAC 02R .0103, .0303-.0304, .0603, .0701, .0905, .0907, .1005, .1008, .1203, .1405, .1407, .1502, .1701, .1708, .1801-.1803 and repeal the rules cited as 04 NCAC 02R .0601, .1103, .1301, .1710, .1902. Proposed Effective Date: November 1, 2010 Public Hearing: Date: August 19, 2010 Time: 10:00 a.m. Location: NC ABC Commission's Office, 3322 Garner Road, Raleigh, NC 27610 Reason for Proposed Action: The NC Alcoholic Beverage Control Commission proposes this action will address both the Legislation that has been enacted by the General Assembly previously and needed technical changes. Procedure by which a person can object to the agency on a proposed rule: Interested persons may present oral or written comments at the Rule-Making Hearing. In addition, the record will be open for receipt of written comments from July 15, 2010, to September 13, 2010. Written comments not presented at the hearing should be directed to Robert Hamilton. The proposed rules are available for public inspection and copies may be obtained at the Commission's office at: 3322 Garner Road, Raleigh, NC 27610. Comments may be submitted to: Robert A. Hamilton, 4307 Mail Service Center, Raleigh, NC 27699-4307, phone (919)779- 0700 x 436, fax (919)661-6165, email bob@adminrule.com. Comment period ends: September 13, 2010 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 after the adoption of the Rule. If the Rules Review Commission receives written and signed objections after the adoption of the Rule 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 919-431-3000. Fiscal Impact: A copy of the fiscal note can be obtained from the agency. State 04 NCAC 02R .0203, .0304, .1502 Local 04 NCAC 02R .0203, .0304, .1502 Substantial Economic Impact (>$3,000,000) None CHAPTER 02 - BOARD OF ALCOHOLIC CONTROL SUBCHAPTER 02R - ORGANIZATIONAL RULES: POLICIES AND PROCEDURES SECTION .0100 - GENERAL PROVISIONS 04 NCAC 02R .0103 DEFINITIONS (a) As used throughout this Chapter: (1) "ABC Law" or "ABC Laws" means any statute or statutes in Chapter 18B or in Article 2C of Chapter 105, and the rules issued by the Commission under the authority of Chapter 18B. (2)(1) "Administrator" means the principal administrative officer of the Commission. (3)(2) "Agent," "alcohol law enforcement agent," or "ALE agent" means an enforcement agent of the Alcohol Law Enforcement Division, North Carolina Department of Crime Control and Public Safety. (3) "Aggrieved party" means any person substantially affected by any statute or rule administered or adopted by the Commission. (4) "Applicant" means any person who requests the issuance of a permit from the Commission. (5) "Chairman" means the chairman of the Commission. (6) "Commission" means the North Carolina Alcoholic Beverage Control Commission. (6) "Contract carrier" means the carriers operated by the contractor on behalf of the state for the purpose of distributing spirituous liquors. (7) "Distressed liquor" means liquor which is not saleable due to adulteration, or damage to the bottle, label or tax seal. (7)(8) "Industry Member" means any manufacturer, bottler, importer, vendor, representative or wholesaler of alcoholic beverages. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 120 (9) "Operator" or "Contractor" means the person or persons responsible for carrying out the storage and distribution of spirituous liquors at the state ABC warehouse. (8)(10) "Permit" means a written or printed authorization to engage in some phase of the alcoholic beverage industry that may be issued by the Commission. (9)(11) "Permittee" means a person to whom a permit has been issued by the Commission. (12) "State ABC warehouse" means the contractor-operated facility or facilities storing spirituous liquors on behalf of the Commission pursuant to G.S. 18B-204, or, in cases of emergency, the facility or facilities operated by the state for the purpose of storing spirituous liquors. (b) The definitions in Chapter 18B apply to these Rules. the rules in this Chapter. Authority G.S. 18B-207; 150B-4. SECTION .0300 - PUBLICATIONS: RECORDS: COPIES 04 NCAC 02R .0303 DISTRIBUTION, INSPECTION AND COPIES OF ABC LAWS (a) Distribution of Rules and Statutes. A copy of the Commission's Rules and Chapter 18B of the General Statutes will be distributed The Commission shall distribute at no charge a copy of Chapter 18B of the General Statutes and the Commission's Rules to each local ABC board, each ALE agent, ABC officer and local law enforcement officer employed by a contracting agency pursuant to G.S. 18B-501(f), and to each employee of the Commission. (b) Purchasing Copies of the ABC Laws. Documents. Copies of the following documents are available from the Commission: (1) Chapter 18B of the General Statutes and the Commission's Rules; (2) Individual sections of Chapter 18B of the General Statutes; (3) Individual Commission Rules; (4) ABC Retail Guide; and (5) Public records retained by the Commission. ABC laws are available to any interested person who contacts the Commission at the following address or phone number: North Carolina Alcoholic Beverage Control Commission 3322 Garner Road P.O. Box 26687 Raleigh, NC 27611-6687 (919) 779-0700 The following items are available and should be purchased together for complete access to the ABC laws of this State: (1) Chapter 18B of the North Carolina General Statutes, at a cost of seven dollars ($7.00). (2) Title 4, Chapter 2 of the North Carolina Administrative Code, containing all the rules of the Commission, at a cost of seven dollars and fifty cents ($7.50). Payment by check or cash must be made prior to receiving copies of either publication. (c) Copies of Individual Rules or Statutes. For a fee of twenty-five cents ($0.25) per page, copies of rules, amendments and general statutes are available to any person contacting the Commission at the address and phone number in Paragraph (b) of this Rule. Copies of the above documents are available at the "actual cost" as defined in G.S. 132-6.2(b) for making the copies and the mailing cost if applicable. The Commission shall provide its "actual cost" on the Commission's website. Persons requesting copies of the above documents shall make payment by certified check, cashier's check or money order to the Commission prior to receiving any copies of the above documents. (d) Public Inspection of Records. Inspection of records and documents in the possession and custody of the Commission is governed by the provisions of Chapter 132 of the North Carolina General Statutes. Fees for copying public records shall be twenty-five cents ($0.25) per page. Authority G.S. 12-3.1; 18B-207; 132-1; 132-1.1; 132-1.2; 132- 1.3; 132-6. 04 NCAC 02R .0304 FEE FOR COMPUTER SERVICES (a) Lists. For a fee of seven cents ($0.07) per name, the Commission will provide to any interested person a list of permittees by county or by types of permits issued. Orders for a permittee list should be placed at least 72 hours in advance. The purchaser of the list will be notified of the total cost, including postage, and will be required to remit the total cost plus postage, by check or money order, before receiving a copy of the list. (b) Other Data Processing Services. The Upon request, the Commission will shall attempt to provide data processing services related to the Commission's powers and duties upon request. public information maintained by the Commission. Fees for such services will be determined are based on the actual cost to the Commission and shall be required to be paid in advance. advance by certified check, cashier's check or money order. Authority 18B-207; 150B-19(5)(e). SECTION .0600 - DECLARATORY RULINGS 04 NCAC 02R .0601 DEFINITION "Aggrieved party" means any person substantially affected by any statute or rule administered or adopted by the Commission. Authority G.S. 18B-207; 150B-11; 150B-17. 04 NCAC 02R .0603 REQUEST FOR DECLARATORY RULING (a) All requests for a declaratory ruling to contest the validity of a rule previously adopted by the Commission shall supply the following information: (1) name and address of aggrieved party; (2) statute or rule to which the request relates; PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 121 (3) a brief statement of the manner in which the aggrieved party is affected or may be affected by the statute or rule; (4) names and addresses of additional third parties known to the aggrieved party who may possibly be affected by the requested ruling; (5) complete and accurate statement of all material facts; (6) statement whether or not the aggrieved party is aware of any pending Commission action or court action that may bear on the applicability of the statute or rule to the party's particular situation; (7) brief statement of the arguments and legal authority supporting the party's position on the applicability of this statute or rule; and (8) statement of whether or not a conference is desired and reasons for requesting conference. The aggrieved party shall sign and verify the request before an officer qualified to administer oaths that the information supplied in the request form is true and accurate. (b) The request and any supporting materials relevant to the request shall be sent to the North Carolina Alcoholic Beverage Control Commission, 3322 Garner Road, Post Office Box 26687, 4307 Mail Service Center, Raleigh, North Carolina 27611-6687. 27699-4307. (c) The Commission shall either deny the request, stating the reasons therefore, or issue a declaratory ruling. The Commission shall deny a request for a declaratory ruling when the Commission determines that: (1) the request does not comply with the procedural guidelines within Paragraphs (a) and (b) of this Rule; (2) the Commission has previously issued a declaratory ruling on substantially similar facts; (3) the Commission has previously issued a final agency decision in a contested case on substantially similar facts; (4) the facts underlying the request for a declaratory ruling were considered at the time of the adoption of the rule in question; or (5) the subject matter is one concerning which the Commission is without authority to make a decision binding the Commission or the petitioner; (6) the petitioner is not aggrieved by the rule or statute in question or otherwise has no interest in the subject matter of the request; (7) there is reason to believe that the petitioner or some other person or entity materially connected to the subject matter of the request is acting in violation of the G.S. 18B or the rules adopted by the Commission; or (8) the subject matter of the request is involved in pending litigation, legislation, or rulemaking. (d) The Commission shall not issue a declaratory ruling when the petitioner or his or her request is the subject of, or materially related to, an investigation by the Commission or contested case before the Commission. Authority G.S. 18B-207; 150B-4. SECTION .0700 - PERSONNEL POLICIES: COMMISSION 04 NCAC 02R .0701 STANDARDS FOR COMMISSION AND EMPLOYEES (a) Financial Interests Prohibited. No member or employee of the Commission shall have or acquire any financial interest in the business, equipment or premises operated by any person, firm or corporation engaged in the production, sale or distribution of alcoholic beverages. (b) Relations. No member or employee of the Commission shall be related by blood, to the degree of first cousin or closer, to any person engaged or employed in the production, sale or distribution of alcoholic beverages in this State. (c) Gifts. No employee or Commission member shall accept any gift or other thing of value from any person, firm or corporation engaged in the production, sale or distribution of alcoholic beverages that would result in a violation of any general statute or Executive Order. (d) Entertainment. Except as prohibited elsewhere in these Rules reasonable entertainment of members or employees by a permittee or his representative is proper when that member or employee is entertained in an official capacity as a representative of the Commission, such as reasonable entertainment at state or national conventions or similar events, or at any time for good and proper reason that will not tend to influence the member or employee in the discharge of his duties with the Commission. Authority G.S. 18B-201; 18B-207. SECTION .0900 - FISCAL RULES FOR LOCAL BOARDS 04 NCAC 02R .0905 DAILY DEPOSITS (a) Each officer whose duty it is to collect or receive moneys of the local board shall deposit into an official depository the collections and receipts daily. If the local board gives its approval, deposits shall be required only when the moneys on hand amount to as much as are equal to or are greater than two hundred fifty dollars ($250.00), but in any event a deposit shall be made on the last business day of the month. All deposits shall be made in an official depository. Deposits in an official depository shall be reported to the finance officer by means of a duplicate deposit ticket. (b) A change fund necessary for daily operation of an ABC store shall be established by each local board and maintained in a secure place on the store's premises and shall not be subject to the daily deposit rule. Each change fund shall be maintained in the amount and place established by the local board. (c) The finance officer may at any time audit the records maintained by any employee collecting sales revenue and may prescribe the form and detail of these records. (d) The Commission shall waive or alter the daily deposit requirement for any local board for good cause shown and where adequate security for the funds involved is demonstrated. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 122 Authority G.S. 18B-702(d),(e). 04 NCAC 02R .0907 ANNUAL INDEPENDENT FINANCIAL AUDIT (a) Each local board shall have its accounts audited as soon as possible after the close of each fiscal year by an independent certified public accountant. The auditor shall be selected by and report directly to the local board. The audit contract shall be of a standard form approved provided by the Commission. The audit report is due to the Commission ninety days after the end of the fiscal year, when the year. The financial officer shall file two copies one unbound copy of the audit report and management letter with the Commission. (b) Each officer and employee of the local board having custody of public money or responsibility for keeping records of financial or fiscal affairs shall produce books and records requested by the auditor or the Commission and shall divulge any information relating to fiscal affairs that they request. If any member of the local board or any employee conceals, falsifies or refuses to deliver or divulge any books, records, or information with intent to mislead the auditor or impede or interfere with the audit, he is subject to removal for cause pursuant to G.S. 18B-203(a)(8). (c) Disclosure of the distribution of profits shall include every element that is applicable under G.S. 18B-805 in a schedule prepared for inclusion with the annual audited financial statements. In addition the schedule shall be supported by a listing of each person who receives moneys from the local board, the date of payment and, if applicable, the purpose for which the payment was made and restrictions on use of the payment. The listing shall be so designated to provide the same totals as were used in the schedule for each type of distribution. Authority G.S. 18B-702(c), (e). SECTION .1000 - LOCAL ABC BOARD: PERSONNEL POLICIES 04 NCAC 02R .1005 WAREHOUSE: PRESENCE OF UNAUTHORIZED PERSON PROHIBITED Personnel Only personnel employed by a local board shall be the only persons permitted to may enter the a local board's warehouse, except for: (1) truck drivers who need to enter in order to verify the amount of merchandise delivered; (2) members of the Commission and its representatives; and (3) local board members, the local board supervisor, and their duly authorized representatives. members; and (4) persons with approval from the local board or general manager; provided, they are accompanied by a board member or employee of the local board. Authority G.S. 18B-207; 18B-807. 04 NCAC 02R .1008 CONFLICTS OF INTEREST (a) Financial Interest Prohibited. No local board member or employee shall have any direct or indirect interest in any manner whatsoever in any firm, corporation, company or enterprise that manufactures, produces, buys, mixes, bottles, sells, stores or transports spirituous liquor. (b) Employment of Relatives. No local board shall employ in any capacity any person related to a local board member or member of any other authority that appoints members of the local board by blood to a degree of first cousin or closer, nor shall the spouse of any board member be employed by the board. (c) Employment of Board Members. No member of a local board shall be employed in any capacity by the board, nor be paid or receive any compensation of any kind from the board, except for compensation as a member thereof, which compensation has been established by the appointing authority. No local board member nor member of the local governing authority that appoints members of the local board shall be appointed as manager of a store, or manager, supervisor, director or administrator of the local system. No member of a board or other appointing authority that appoints members of a local board shall be employed in any capacity by that local board. The local board shall carry out its powers and duties as a board and shall not delegate the operation of the system to individual members. (d) Contracts Prohibited. Members of a local board, acting on behalf of the board, shall not enter into any contracts or agreements or be in any manner interested in any contract or agreement for their own benefit or in the profits thereof, whether privately, openly, singly, or jointly with another member of a local board. Local boards shall not, on behalf of the board, enter into any contract or agreement of any kind with: (1) any member of any other authority that appoints members of the local board; (2) any person who is related by blood to any member of the board to a degree of first cousin or closer; or (3) any spouse of a board member. (e) Membership on Appointing Board Prohibited. No member of the local board shall be a member of the appointing authority that appoints the local board while serving as a member of that local board. (f) Exceptions. Notwithstanding the provisions of this Section, the Commission may grant exceptions from this Rule pursuant to G.S. 18B-201 in cases of extreme hardship and where the public interest would not be placed in jeopardy. Authority G.S. 18B-201; 18B-207; 18B-700(g). SECTION .1100 - LOCAL ABC BOARDS: RELATIONSHIP WITH STATE COMMISSION 04 NCAC 02R .1103 AUDITS TO BE FORWARDED TO COMMISSION Two copies of the audit of the accounts and conditions of each local board shall be forwarded to the Commission by the auditing firm employed to make said audit. Authority G.S. 18B-205; 18B-207; 18B-702(c). PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 123 SECTION .1200 - OPENING AND DISCONTINUANCE OF STORES 04 NCAC 02R .1203 APPROVAL OF NEW STORES (a) Notice to Commission. The opening of any new ABC stores will shall not be approved by the Commission unless at least a 30 days day notice is given to the Chairman as to the intended location of such the store and until a public notice of the intention to open such ABC store has been posted for 30 days at such location. (b) Sign Requirements. In order to meet the public notice requirements of Paragraph (a) of this Rule, the local board shall post at least one sign at the proposed new store site in accordance with all the following requirements: (1) Dimensions of the sign shall total at least three nine square feet; (2) The board shall state on the sign its intention to open an ABC store on the site; site and shall state the entity and its phone number to provide public comments; (3) Lettering shall be at least four inches in height and background colors shall be of sufficient contrast, contrast and lettering shall be of sufficient size, so that the notice will shall be legible to passersby; passersby; and (4) The sign shall be posted within three 10 feet of the property line that is parallel to the public road or sidewalk that will run be in front of the proposed store, or if the proposed store will be in a an existing shopping center, the sign shall be posted on the front exterior of the existing storefront or building. Lettering on the sign shall face the public road or sidewalk, or if within an existing shopping center, the lettering shall face the exterior of the existing storefront or building. Authority G.S. 18B-207; 18B-801. SECTION .1300 - STORAGE AND DISTRIBUTION OF SPIRITUOUS LIQUORS: COMMERCIAL TRANSPORTATION 04 NCAC 02R .1301 DEFINITIONS As used in this Subchapter: (1) "Contract carrier" means the carriers operated by the contractor on behalf of the state for the purpose of distributing spirituous liquors. (2) "Distressed liquor" means liquor which is not saleable due to adulteration, or damage to the bottle, label or tax seal. (3) "Operator" or "Contractor" means the person or persons responsible for carrying out the storage and distribution of spirituous liquors at the state ABC warehouse. (4) "State ABC warehouse" means the contractor-operated facility or facilities storing spirituous liquors on behalf of the Commission pursuant to G.S. 18B-204, or, in cases of emergency, the facility or facilities operated by the state for the purpose of storing spirituous liquors. Authority G.S. 18B-101; 18B-207. SECTION .1400 - PURCHASE OF ALCOHOLIC BEVERAGES BY LOCAL BOARDS 04 NCAC 02R .1405 COMMEMORATIVE BOTTLES The Commission may shall approve local boards' orders and sales of specially designed bottles commemorating particular events, occasions, or ceremonies, provided the following requirements are complied with: provided: (1) local ABC systems procure Commission approval prior to ordering commemorative bottles; (2) advertising borne upon commemorative bottles is limited to eleemosynary commemorating historical events of the local board and non-profit, charitable enterprises only (i.e., ordinary profit-oriented businesses will not be are not permitted to advertise themselves or their products via commemorative bottles); bottles); and (3) except as otherwise expressly authorized by the Commission in the case of the smaller local boards, a local board orders a minimum of 3,000 bottles for any specific commemorative occasion; and occasion. (4) alcoholic beverages contained in the bottles are bona fide brands listed and approved by the Commission. Authority G.S. 18B-207; 18B-807. 04 NCAC .02R .1407 PAYMENT (a) Local boards shall remit full payment of the contractor's statement of account pertaining to the bailment fee within 30 days of receipt of the statement. (b) Local boards shall remit full payment of the contractor's statement of account pertaining to the bailment surcharge within 15 days of receipt of the statement. (c) Local boards shall remit full payment of the distiller's invoice within 30 days of delivery of the liquor. (d) Local boards that obtain spirituous liquor from another local board pursuant to 04 NCAC 02R .1302(e) shall remit full payment within 15 days of the transaction. Authority G.S. 18B-207; 18B-702(e); SECTION .1500 - PRICING OF SPIRITUOUS LIQUOR 04 NCAC 02R .1502 MARKUP FORMULA (a) On every delivered case of spirituous liquors, there is to shall be an added a 78.8400 percent markup, which is derived by the following formula: (x) equals the base price of the case, including freight and bailment charges.as determined by the Commission. The current markup formula shall be published on PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 124 the Commission's web site, www.ncabc.com. Thirty-six hundredths percent equals the markup allowed local boards; therefore, 1.3600(x) equals the delivered case cost plus the 36.00 percent local markup, or the "retail price," excluding all taxes. Example: .360000(x) local markup .380800(x) state tax [28% of 1.3600(x)] state tax retained locally [3.5% of 1.3600(x)] .788400(x) total markup (b) The selling price of spirituous liquor, which includes the cost of goods, local markup and all taxes, is derived by following these steps: (1) Determine the subtotal case cost by adding base case cost, freight and bailment together; (2) Multiply the subtotal case cost by 1.788400, to four decimals; (3) Add the bailment surcharge as determined by the commission; (4) Divide the result by the number of bottles in the case; (5) Add five cents ($.05) rehabilitation tax [Add one cent ($.01) for bottles 50 ml. or less]; (6) Add five cents ($.05) for the local board charge [Add one cent ($.01) for bottles 50 ml. or less]; (7) Round the result to an integer evenly divisible by five cents ($.05). The breaking point is one cent ($.01), 1 mill; the mill is underlined. (A) If cent equals $ .00, it remains $ .00; (B) If cent equals $ .05, it remains $ .05; (C) If cent equals $ .010, (if mill is 0), round downward to $ .00; (D) If cent equals $ .011, (if mill is 1-9), round upward to $ .05; (E) If cent equals $ .060, (if mill is 0), round downward to $ .05; (F) If cent equals $ .061, (if mill is 1-9), round upward to $ .10; (G) If cent equals $ .411, .42, .43, .44, round upward to $ .45; (H) If cent equals $ .461, .47, .48, .49, round upward to $ .50; (8) The result is the retail selling price per bottle. Authority G.S. 18B-203(a)(3); 18B-207; 18B-804. SECTION .1700 - RETAIL SALES OF ALCOHOLIC BEVERAGES 04 NCAC 02R .1701 REMOVAL OF BEVERAGES FROM ABC STORES (a) Spirituous liquor, either distressed or otherwise, shall not leave the custody of a local board after receipt unless: (1) The spirituous liquor is sold at retail; or (2) The liquor is returned to the state ABC warehouse.warehouse; or (3) The liquor is purchased, exchanged, or otherwise obtained by another local board as provided by 04 NCAC 02R .1302(e). Any spirituous liquor otherwise leaving the local board without being sold at retail or returned to the state ABC warehouse constitutes is nontaxpaid spirituous liquor. (b) Distressed Liquor. Distressed liquor shall be given to a public or private hospital for medicinal purposes only or destroyed and the destruction witnessed by the manager or his designed designee and a distiller representative. A Destruction of Unsalable Merchandise Report shall be completed and signed by the witnessing parties. Copies A written copy of the report shall be sent to the distiller and the Commission.a written or electronic copy shall be sent quarterly to the Commission. The original shall be retained by the local board for a period of three years. (c) No sales of alcoholic beverages shall be made to employees, board members or other retail customers on credit. This Rule shall does not prohibit purchases made by the use of credit cards where such sales are permitted by the Commission. cards. Authority G.S. 18B-806; 18B-807. 04 NCAC 02R .1708 PURCHASE-TRANSPORTATION PERMITS Employees of local boards are expressly prohibited from selling more than five liters of fortified wine or spirituous liquor or more than five liters of the two combined to a person at any one time, except as authorized under G.S. 18B-403 and G.S. 18B-404. A copy of all Purchase/Transportation Purchase-Transportation Permits shall be maintained by local boards for a period of one year following issuance. A copy of all Mixed Beverages Purchase/Transportation Purchase-Transportation Permit/Invoice forms shall be retained by the local board for a period of at least three years. Authority G.S. 18B-207; 18B-303; 18B-403; 18B-404; 18B-807. 04 NCAC 02R .1710 CREDIT CARD SALES A local board may allow customers to purchase alcoholic beverages with credit cards so long as all the following conditions are met: (1) The local board files with the Commission a written request for approval to implement the use of credit cards, and furnishes in that request the following: (a) proposed date of implementation; (b) proposed bank or institution for clearing; (c) proposed discount rate; and (d) whether instant verification equipment will be used; (2) The local board must receive written authorization from the Commission to allow credit card sales; and (3) The minimum alcoholic beverage purchase that may be charged to a credit card is twenty dollars ($20.00). Authority G.S. 18B-203(b); 18B-702(e); 18B-807. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 125 SECTION .1800 - PURCHASE-TRANSPORTATION PERMITS FOR INDIVIDUALS AND MIXED BEVERAGES PERMITTEES 04 NCAC 02R .1801 PURCHASE-TRANSPORTATION PERMITS: WINE: LIQUOR: (a) Local Board to Issue. Whenever a person desiring to purchase more than 20 liters of unfortified wine, or more than five liters of either fortified wine or spirituous liquor or five liters of the two combined, applies to a local board for a Purchase-Transportation Permit, the local board shall issue the purchaser such a permit, following the guidelines of G.S. 18B-403. (b)(a) Form. The Purchase-Transportation Permit shall be issued on a printed three-part form and shall specify the following information on the face of the permit: (1) the name and location of the store from which the purchase is to be made; (2) whether the purchase is for unfortified wine, fortified wine or spirituous liquor; (3) destination of the alcoholic beverages including name and address of location; (4) Special Occasions Permit number of a location, if alcoholic beverages are purchased for a special occasion; (5) time and date of commencement and conclusion of special occasion, if any; (6) quantity and type of alcoholic beverages purchased; (7) signature of local ABC official issuing the permit; (8) name, address and driver's license number of purchaser. The form shall contain a statement that the permit is valid for only one purchase on the date shown and will expire at 9:30 p.m. on the date of purchase and a further statement that the permit shall accompany the beverages during transport and storage and be exhibited to any law enforcement officer upon request. (c)(b) A local board issuing a Purchase-Transportation Permit shall retain one copy of the permit in its files for a period of one year and give the purchaser two copies, one of which the purchaser will shall give the store from which the alcoholic beverages are purchased. Authority G.S. 18B-207; 18B-303(a); 18B-403. 04 NCAC 02R .1802 MIXED BEVERAGE PERMIT/INVOICE FORM (a) Providing Form. A local board in a jurisdiction in which the sale of mixed beverages is lawful shall provide to a mixed beverages permittee ordering and purchasing spirituous liquor for resale in mixed beverages a Purchase-Transportation Permit/Invoice Form for every purchase of liquor by the permittee. (b) Contents of Form; Copies. Each Purchase-Transportation Permit/Invoice Form shall be printed in triplicate duplicate and shall show on the face of the form the information required by S .0502 04 NCAC 02S .0502. of these Rules. The local board shall retain one copy in its permanent records for a period of three years and shall give one copy of the permit/invoice to the mixed beverages permittee or designated employee to accompany the liquor during transport. Authority G.S. 18B-205; 18B-207; 18B-404(b). 04 NCAC 02R .1803 CABINET PERMITTEES; PURCHASE-TRANSPORTATION PERMITS (a) Approved Container Sizes; Sizes. Authorized Jurisdictions. Local ABC Boards in the following counties may sell 50 milliliter, 100 milliliter, 200 milliliter, 355 milliliter, and 375 milliliter containers of liquor to a hotel that has been issued a Guest Room Cabinet Permit: Buncombe, Cumberland, Durham, Forsyth, Gaston, Guilford, Mecklenburg, Moore and Wake. Permit. (b) Purchase-Transportation Permits. A local board receiving an order from a guest room cabinet permittee for liquor intended for resale from guest room cabinets shall provide a separate Purchase-Transportation Permit/Invoice form for the permittee in the same manner as for sales of liquor for mixed beverages permittees, as specified in Rule .1802 of this Section. The Purchase-Transportation Permit/Invoice shall contain all the information required by 4 NCAC S .0502(b) 04 NCAC 02S .0502(b), of this Chapter, and in addition, shall show on the face of the form the permittee's Guest Room Cabinet Permit number. One copy of the Purchase-Transportation Permit/Invoice form for guest room cabinet permittees shall be retained by the local board for a period of three years. (c) Minimum Orders. A local board may require a guest room cabinet permittee to make a minimum purchase of multi-bottle packages or "sleeves" packaged by the manufacturer or bottler, but may not require minimum purchases in case quantities except as authorized by Rule .1404 of this Subchapter. Authority G.S. 18B-205; 18B-207; 18B-404(d); 18B-1001. SECTION .1900 - SALES OF LIQUOR TO MIXED BEVERAGES PERMITTEES 04 NCAC 02R .1902 DESIGNATION OF STORE The Commission may authorize a local board that sells liquor to mixed beverages permittees to designate more than one store for this purpose if the volume of sales or the size of the area being served is sufficiently large enough to warrant more than one store. Authority G.S. 18B-207; 18B-404(c). TITLE 13 – DEPARTMENT OF LABOR Notice is hereby given in accordance with G.S. 150B-21.2 that the Department of Labor intends to adopt the rules cited as13 NCAC 14B .0203 and .0616; amend the rules cited as 13 NCAC 14B .0101-.0104, .0201-.0202, .0204-.0205, .0208-.0209, .0211- .0213, .0301-.0303, .0305-.0306, .0308-.0309, .0401-.0407, .0503, .0604, .0610-.0612, and .0701; and repeal the rules cited as 13 NCAC 14A .0103, .0105 and .0108. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 126 Proposed Effective Date: November 1, 2010 Public Hearing: Date: August 3, 2010 Time: 10:00 a.m. Location: 4 West Edenton Street, 2nd Floor, Room 205, Raleigh, NC 27601 Reason for Proposed Action: 13 NCAC 14A .0103, .0105, .0108; 14B .0101-.0104, .0201- .0205, .0208, .0211-.0212, .0301-.0303, .0305-.0306, .0308- .0309, .0401-.0406, .0503, .0604, .0610-.0612, .0616 - Pursuant to National Apprenticeship Act of 1977, the NC Department of Labor's Apprenticeship and Training Bureau must remain in compliance with the federal requirements promulgated by the U.S. Department of Labor in order to continue to be recognized under 29 CFR 29.13(c). The U.S. Department of Labor promulgated updates to labor standards, policies and procedures for the registration, cancellation and deregistration of apprenticeship programs, apprenticeship agreements, and administration of the national Apprenticeship Program effective December 29, 2008. States were given up to a two-year period in which to make the changes to State law, regulation and/or policy needed to come into compliance before having to apply for continued recognition under 29 CFR 29.13(c). Therefore, in order to remain in compliance with federal requirements and continue to be recognized under 29 CFR 29.13(c), it is necessary for the NC Department of Labor to repeal, amend and adopt certain rules as proposed. 13 NCAC 14B .0209, .0213, .0407, .0701 - On August 5, 2009, the NC General Assembly enacted S.L. 2009-451, which reduced funding to the NC Department of Labor's Apprenticeship Bureau by twenty-five percent. S.L. 2009-451 was signed by the Governor on August 7, 2009. In order to supplement this large budgetary loss and to avoid an operating expense shortfall by the Bureau, Section 12.1 of S.L. 2009-451 created a new section of Chapter 94, G.S. 94-12, to establish a fee for new and current apprenticeships. Effective August 15, 2009, this new statute imposed fees in the total amount of fifty dollars ($50.00) on each apprentice who is covered by a written apprenticeship agreement under Chapter 94. Subsequently, the NC Department of Labor adopted emergency rules effective August 27, 2009 and temporary rules effective October 29, 2009 in order to establish the new fees. Therefore, the proposed permanent rules are being proposed to replace the temporary rules currently in effect, including additional changes required for the program to remain in compliance with federal requirements and to continue to be recognized under 29 CFR 29.13(c). Note: Chapter 14 was re-codified effective March 15, 2010. The original citations to the proposed rules were 13 NCAC 14 .0303, .0309, .0508 and .0901. The re-codified citations are listed 13 NCAC 14B .0209, .0213, .0407 and .0701. Procedure by which a person can object to the agency on a proposed rule: Objections to the proposed rules may be submitted, in writing, to Erin T. Gould, Assistant Rulemaking Coordinator, via United States mail at the following address: 1101 Mail Service Center, Raleigh, NC 27699-1101; or via facsimile at (919) 733-4235. Objections may also be submitted during the public hearings conducted on these rules, which are noticed above. Objections shall include the specific rule citation(s) for the objectionable rule(s), the nature of the objection(s), and the complete name(s) and contact information for the individual(s) submitting the objection. Objections must be received by 5:00 p.m. on September 13, 2010. Comments may be submitted to: Erin T. Gould, 1101 Mail Service Center, Raleigh, NC 27699-1101; phone (919) 733- 7885; fax (919) 733-4235; email erin.gould@labor.nc.gov Comment period ends: September 13, 2010 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 after the adoption of the Rule. If the Rules Review Commission receives written and signed objections after the adoption of the Rule 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 919-431-3000. Fiscal Impact: State Local Substantial Economic Impact (>$3,000,000) None CHAPTER 14 - APPRENTICESHIP AND TRAINING DIVISION SUBCHAPTER 14A - RULES EFFECTIVE FEBRUARY 1, 1984 THROUGH MARCH 14, 2010 SECTION .0100 - GENERAL PROVISIONS 13 NCAC 14A .0103 APPRENTICESHIP COUNCIL (a) The apprenticeship council advises the commissioner and the director regarding board policy for the apprenticeship system in North Carolina. (b) Council members are appointed, serve their terms, vote, and are reimbursed as provided by G.S. 94-2. The director serves as secretary to the council. (c) The council meets at the call of the commissioner. The commissioner shall give 60 days' notice to council members of the time and place of meeting, unless circumstances require shorter notice. (d) Any council member may present an item for consideration by the council by submitting to the commissioner the item in brief outline form, together with any technical or statistical documents relative to the subject matter, at least 30 days prior to PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 127 the scheduled meeting, unless waived by the commissioner. The commissioner or director shall issue an agenda to council members at least five days prior to a scheduled meeting. (e) The secretary to the council shall prepare minutes of the meeting and shall provide each member of the council with a copy of the minutes. Authority G.S. 94-1; 94-2. 13 NCAC 14A .0105 CERTIFICATION Upon written request to the director by a sponsor or governmental agency or upon such occasions as agreed to by prior arrangement with a governmental agency, the director shall provide the requesting party, governmental agency, or designee of the requesting party or governmental agency an appropriate statement of certification, if the records of the division so indicate and circumstances verify the accuracy of the records. Authority G.S. 94-1; 94-2; 94-4; 94-8. 13 NCAC 14A .0108 PUBLIC ACCESS TO RECORDS (a) The director is custodian of the records of the division. (b) Any person wishing to inspect the public records of the division shall write to the director specifying with as much particularity as possible the records to be inspected and indicating the preferred times and dates for making inspection. The preferred times must be between 9:00 a.m. and 5:00 p.m. on a weekday not including holidays unless special arrangements are requested and approved by the director. (c) The director shall promptly respond to a written request, indicating the time and date the records will be available for inspection. The director shall not refuse to allow inspection of public records at a preferred time and date indicated in a written request unless the director can show good cause why the public records cannot be made available at that time and date, except that the director, at his discretion, may refuse to allow inspection of public records for a period of three working days following the director's receipt of a written request. (d) The inspection shall be conducted at the office of the division, or in such other place as the public records are kept, under the supervision of the director. Upon request of the person making inspection and payment of twenty-five cents ($.25) per page, the director shall make and provide copies of the public records. If the copies are to be certified, the director shall require additional payment of one dollar ($1.00) for each lot requiring certification. "Certification" of copies under this Rule means a statement that the copies are true copies of the public records of the division, which statement shall be personally signed by the director and embossed with the department seal. Authority G.S. 132-1; 132-2; 132-6. SUBCHAPTER 14B - RULES EFFECTIVE MARCH 15, 2010 SECTION .0100 - GENERAL PROVISIONS 13 NCAC 14B .0101 NAME: ADDRESS (a) The Apprenticeship and Training Division headquarters are located in the North Carolina Department of Labor Building, Raleigh, North Carolina. The mailing address physical address for the division and for the Director of Apprenticeship director of apprenticeship is as follows: Apprenticeship and Training Division (or Director of Apprenticeship) North Carolina Department of Labor Four West Edenton Street Raleigh, North Carolina 27601 N.C. Department of Labor Apprenticeship and Training Bureau Labor Building 4 W. Edenton Street Raleigh, N.C. 27601 (b) All correspondence shall be addressed to the following mailing address: N.C. Department of Labor Apprenticeship and Training Bureau 1101 Mail Service Center Raleigh, N.C. 27699-1101 Authority G.S. 94-1; 94-2. 13 NCAC 14B .0102 REGISTRATION AGENCY (a) The department functions as the State Apprenticeship Agency with authority to determine whether apprenticeship programs operating in this State conform to the provisions of Chapter 94 of the North Carolina General Statutes and the standards published by the U.S. Secretary of Labor, 29 C.F.R. Part 29 (February 18, 1977). (December 29, 2008). The director, under the supervision of the commissioner, administers the functions of the State Apprenticeship Agency through the division and has authority to register and deregister apprentices and apprenticeship programs and agreements. (b) As the State Apprenticeship Agency, the department has undertaken undertaken, by adoption of a State Plan Plan, the responsibility for implementing equal opportunity standards relating to apprenticeship, which conform to the regulations published by the U.S. Secretary of Labor, 29 C.F.R. Part 30 (June 12, 1978). This The equal opportunity standards for apprenticeship are contained in Section .0600 of this Subchapter. fully sets forth the requirements of the State Plan so that compliance with this Section constitutes compliance with the State Plan. The director, under the supervision of the commissioner, administers through the division the requirements of this Section. the requirements of Section .0600 through the division. Authority G.S. 94-1; 94-2; 94-4; 94-8. 13 NCAC 14B .0103 VETERANS TRAINING ASSISTANCE ALLOWANCES (a) The department has been designated, pursuant to 38 U.S.C. 1771(a), 3671(a), as the State Approving Agency for this state with authority to approve programs of apprenticeship and other on-the-job training, in accordance with 38 U.S.C. 1787, 3687, as suitable for the participation of people eligible to receive VA PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 128 training assistance allowances. allowances from the U.S. Department of Veterans Affairs. As executive head of the department, the commissioner has appointed the director to administer the functions of the State Approving Agency. (b) The director shall approve all apprenticeship and on-the-job training programs registered pursuant to Section .0200 of this Chapter Subchapter and on-the-job training programs approved pursuant to Section .0300 of this Subchapter, as suitable for the participation of eligible veterans and other people eligible persons to receive VA training assistance allowances. allowances whenever the sponsor submits to the director a written request for approval and a Designation of Certifying Official(s) form. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0104 DEFINITIONS The following definitions apply throughout this Chapter: (1) "Commissioner" means the Commissioner of Labor for the State of North Carolina. The commissioner may authorize a representative to administer the duties and responsibilities prescribed for him by this Chapter. (2) "Department" means the North Carolina Department of Labor. (3) "Director" means the Director of Apprenticeship for the State of North Carolina. The director or commissioner may authorize a representative to administer the duties and responsibilities prescribed for the director by this Chapter. (4) "Division" means the Apprenticeship and Training Division within the department. (5) "Apprentice" means a worker at least 16 years old, except when a higher minimum age is otherwise fixed by law, who is employed to learn a skilled trade in a registered apprenticeship program. (6) "Apprenticeable Occupation" means an occupation having the characteristics set forth in Rule .0201 of this Chapter. (7) "Apprenticeship Agreement" means a written agreement between an apprentice and his sponsor, which agreement satisfies the requirements of Rule .0208 of this Chapter. (8) "Apprenticeship Committee" means those persons designated by a sponsor to act for the sponsor in the administration of an apprenticeship program; "Joint Apprenticeship Committee" means an apprenticeship committee composed of an equal number of representatives of the employer(s) and of the employees represented by a bona fide collective bargaining agent(s), which committee was established to operate an apprenticeship program and enter into apprenticeship agreements; and apprenticeship committee in which a collective bargaining agent is not a participant is "unilateral" or "non-joint." (9) "Apprenticeship Program" means a program providing for the qualification, recruitment, selection, employment, and training on the job or apprentices. (10) "Apprenticeship Association" means an association of employers who operate or participate in apprenticeship or OJT programs where the programs are operated in a manner similar to the programs operated by other members of the association, the purpose of the association being to assist the members in designing, registering, operating, and participating in an apprenticeship or OJT program. (11) "Approval" means the recognition by the director and the recording with the division of an apprenticeship or OJT program, signifying that the program is suitable for participation of veterans or other people eligible to receive training allowances from the Veteran's Administration. (12) "Certification" means written acknowledgment by the director that an individual is a registered apprentice, probationary apprentice in a registered apprenticeship program, or trainee in an approved OJT program, that an employer is participating in a registered apprenticeship program or approved apprenticeship or OJT program, that a sponsor is operating a registered apprenticeship program or approved apprenticeship or OJT program, or that an apprenticeship program is registered or approved or an OJT program approved. Certification may acknowledge any combination in this Paragraph as appropriate. (13) "Completer" means an individual who has completed the normal term of elementary and secondary education but has not been awarded a diploma because of not passing the state's educational competency examination. (14) "Employer" means any person or organization employing an apprentice or trainee, whether or not the employer is a party to the apprenticeship or OJT agreement with the apprentice or trainee; "Participating Employer" means an employer which is not itself a sponsor, although a participating employer may be a member of an employers' group or association. (15) "Employers' Group or Association" means an organization composed of employers who employ apprentices or trainees, the purpose of such group being, at least in part, to act as the sponsor of an apprenticeship or OJT program. (16) "Fully Qualified Worker" means a worker who is fully qualified by experience, training, or PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 129 skills to undertake the tasks necessary for his employment. (17) "Group Program" means an apprenticeship or OJT program including or designed to include more than one employer. (18) "Journeyman" means a fully qualified worker in an apprenticeable occupation, without regard to gender. (19) "OJT Agreement" means a written agreement between a trainee and his sponsor, which agreement satisfies the requirements of Rule .0305 of this Chapter. (20) "OJT Program" means a program providing for the qualification, recruitment, selection, employment, and training on the job of people other than apprentices. (21) "Probationary Apprentice" or "Summer Apprentice" means an apprentice who complies with all the provisions of this Chapter except that neither the individual nor the individual's apprenticeship agreement is registered and the individual is not employed as a probationary apprentice for more than four months in any calendar year. (22) "Registration" means the recognition by the director and the recording with the division of an apprenticeship program, apprenticeship agreement, or apprentice, signifying that the program, agreement, or individual complies with the rules, requirements, criteria, and standards of this Chapter regarding apprenticeship. (23) "Related Instruction" means an organized and systematic form of instruction designed to provide the apprentice or trainee with knowledge of the theoretical and technical subjects related to his trade or occupation. (24) "Revision" means any substantive modification or change of the program standards of apprenticeship (including an affirmative action plan and a written description of the selection procedure), of the program standards for OJT, or of an apprenticeship or OJT agreement. (25) "Sponsor" means any person or organization endeavoring to establish and operate a registered apprenticeship program or an approved OJT program, entering into an apprenticeship or OJT agreement with an apprentice or trainee, and in whose name the program is registered. Note: A sponsor may authorize a representative, including but not limited to an apprenticeship committee, to administer the duties and responsibilities prescribed for it under this Chapter. (26) "Standards" means the program standards of apprenticeship as set forth in Rule .0202 of this Chapter or the program standards for OJT as set forth in Rule .0301 of this Chapter. (27) "Trainee" means a worker, other than an apprentice, who is employed to learn an occupation in an OJT program. (28) "VA" means the Veterans' Administration of the United States. (29) "He," "His," or "Him" means such individual as is indicated without regard to gender. In addition to the definitions contained in G.S. 94-5, the following definitions apply throughout this Subchapter: (1) "Apprenticeable Occupation" means an occupation having the characteristics set forth in Rule .0201 of this Subchapter. (2) "Apprenticeship Association" means an association of employers who operate or participate in apprenticeship or OJT programs where the programs are operated in a manner similar to the programs operated by other members of the association, the purpose of the association being to assist the members in designing, registering, operating, and participating in an apprenticeship or OJT program. (3) "Approval" means the recognition by the director and the recording with the division of an apprenticeship or OJT program, signifying that the program is suitable for participation of veterans or other people eligible to receive training allowances from the U.S. Department of Veterans Affairs. (4) "Cancellation" means the termination of the registration of a program at the request of the sponsor, or termination of an Apprenticeship Agreement at the request of the apprentice, in accordance with Section .0400 of this Subchapter. (5) "Certification" means written acknowledgment by the director that: (a) An individual is a registered apprentice in a registered apprenticeship program or a registered trainee in a registered OJT program; and (b) That an employer is participating in a registered apprenticeship program or OJT program, that a sponsor is operating a registered apprenticeship program or OJT program, or that an apprenticeship program or an OJT program is registered. Certification may acknowledge any combination in this Paragraph as appropriate. (6) "Commissioner" means the Commissioner of Labor for the State of North Carolina. The commissioner may authorize a representative to administer the duties and responsibilities prescribed by this Subchapter. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 130 (7) "Competency" means the attainment of manual, mechanical or technical skills and knowledge, as specified by an occupational standard and demonstrated by appropriate written and hands-on proficiency measurements. (8) "Completer" means an individual who has completed the normal term of elementary and secondary education but has not been awarded a diploma because of not passing the state's educational competency examination. (9) "Completion rate" means the percentage of an apprenticeship cohort who receive a certificate of apprenticeship completion within one year of the projected completion date. An apprenticeship cohort is the group of individual apprentices registered to a specific program during a one year time frame, except that a cohort does not include the apprentices whose apprenticeship agreement has been cancelled during the probationary period. (10) "Department" means the North Carolina Department of Labor. (11) "Director" means the director of apprenticeship for the State of North Carolina. The director or commissioner may authorize a representative to administer the duties and responsibilities prescribed for the director by this Subchapter. (12) "Division" means the Apprenticeship and Training Division within the department. (13) "Electronic Media" means media that utilize electronics or electromechanical energy for the end user (audience) to access the content; and includes electronic storage media, transmission media, the Internet, extranet, lease lines, dial-up lines, private networks, and the physical movement or removable/transportable electronic media and interactive distance learning. (14) "Employers' Group or Association" means an organization composed of employers who employ apprentices or trainees, the purpose of such group being, at least in part, to act as the sponsor of an apprenticeship or OJT program. (15) "Fully Qualified Worker" means a worker has attained a level of skill, abilities and competencies recognized within an industry as having mastered the skills and competencies required for the occupation. (16) "Group Program" means an apprenticeship or OJT program including or designed to include more than one employer. (17) "Journeyman" means a fully qualified worker in an apprenticeable occupation. Use of the term may also refer to a mentor, technician, specialist or other skilled worker who has documented sufficient skills and knowledge of an occupation, either through formal apprenticeship or through practical on-the-job experience and formal training. (18) "OJT Agreement" means a written agreement between a trainee and his sponsor, which agreement satisfies the requirements of Rule .0305 of this Subchapter. (19) "OJT Program" means a program providing for the qualification, recruitment, selection, employment, and training on the job of people other than apprentices. (20) "Provisional registration" means the one year initial provisional approval of newly registered apprenticeship programs that meet the required standards for program registration, after which program approval may be made permanent, continued as provisional, or rescinded following a review by the department. (21) "Quality Assurance Assessment" means a comprehensive review conducted by the department regarding all aspects of an apprenticeship program's performance, including determining if apprentices are receiving: on-the-job learning in all phases of the apprenticeable occupation; scheduled wage increases consistent with the registered standards; related instruction through appropriate curriculum and delivery systems; and that the department is receiving notification of all new registrations, cancellations, and completions as required by this Subchapter. (22) "Registration" means the recognition by the director and the recording with the division of an apprenticeship or OJT program, apprenticeship or OJT agreement, or apprentice or trainee, signifying that the program, agreement, or individual complies with the rules, requirements, criteria, and standards of this Subchapter regarding apprenticeship or OJT. (23) "Related Instruction" means an organized and systematic form of instruction designed to provide the apprentice or trainee with knowledge of the theoretical and technical subjects related to his trade or occupation. Such instruction may be given in a classroom, through occupational or industrial courses, by correspondence courses of equivalent value, through electronic media, or through other forms of self-study approved by the department. (24) "Revision" means any substantive modification or change of the program standards of apprenticeship (including an affirmative action plan and a written description of the selection procedure), of the program standards for OJT, or of an apprenticeship or OJT agreement. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 131 (25) "Standards" means the program standards of apprenticeship as set forth in Rule .0202 of this Subchapter or the program standards for OJT as set forth in Rule .0301 of this Subchapter. (26) "Technical Assistance" means guidance provided by the division staff in the development, revision, amendment, or processing of a potential or current program sponsor's Standards of Apprenticeship, Apprenticeship Agreements, or advice or consultation with a program sponsor to further compliance with this Subchapter or guidance from the department on how to remedy nonconformity with this Subchapter. (27) "Trainee" means a worker, other than an apprentice, who is employed to learn an occupation in an OJT program. (28) "Transfer" means a shift of apprenticeship registration from one program to another or from one employer within a program to another employer within that same program, where there is agreement between the apprentice and the affected apprenticeship committees or program sponsors. Authority G.S. 94-1; 94-2. SECTION .0200 - APPRENTICESHIP PROGRAMS 13 NCAC 14B .0201 CRITERIA FOR APPRENTICEABLE OCCUPATIONS An apprenticeable occupation possesses all of the following characteristics: (1) It is in a skilled trade; (2)(1) It is customarily learned in a practical way through a structured, systematic program of on-the-job supervised training; learning; (3)(2) It is clearly identified and commonly recognized by an industry; (4)(3) It involves manual, mechanical, or technical skills and knowledge which normally require not less than 2,000 hours of reasonably continuous on-the-job work experience; learning; and (5)(4) It normally requires not less than 144 hours of related instruction for every 2,000 hours of on-the- job work experience learning to supplement the on-the-job supervised training. learning. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0202 STANDARDS OF APPRENTICESHIP (a) An apprenticeship program must conform to the following minimum requirements in order to obtain and maintain registration: (1) The sponsor must operate and administer the apprenticeship program in accordance with the program standards of apprenticeship, with the provisions of this Chapter, and with all applicable state and federal statutes and regulations, including but not limited to the provisions of occupational safety and health standards and regulations; (2) The apprentice must meet the minimum qualifications for an apprentice, as provided in Rule .0207 of this Section; (3) The apprenticeship program must be in an apprenticeable occupation, as provided in Rule .0201 of this Section; (4) Every individual to be trained in the registered program must be a registered apprentice or probationary apprentice; (5) The (a) In order to be eligible for registration by the department, an apprenticeship program must shall be set forth in a written document, signed by the sponsor, document signed by the sponsor containing the terms and conditions of employment, training, and supervision of one or more apprentices in an apprenticeable occupation. The written document shall denominate the program standards of apprenticeship and which includes include the following provisions and is denominated the program standards of apprenticeship: provisions: (A)(1) The nature of the skilled trade occupation for which the apprentice is to be trained; (B)(2) The term of apprenticeship consistent with training requirements commonly recognized by the industry, where the term of apprenticeship is not less than at least 2,000 hours of reasonably continuous on-the-job work experience, learning (time-based approach), the attainment of competence (competency-based approach), or a blend of the time-based and competency based approaches (hybrid approach). unless the commissioner expressly gives written approval for fewer hours; (A) The time-based approach measures skill acquisition through the individual apprentice's completing of at least 2,000 hours of on-the-job learning as described in a work process schedule. (B) The competency-based approach measures skill acquisition through the individual apprentice's successful demonstration of acquired skills and knowledge, as verified by the program sponsor. Programs utilizing this approach shall still require apprentices to complete an on-the-job learning component. The program standards shall address how on-the-job learning will be integrated into the program, describe competencies, and identify an appropriate means of PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 132 testing and evaluation for such competencies. (C) The hybrid approach measures the individual apprentice's skill acquisition through a combination of specified minimum number of hours of on-the-job learning and the successful demonstration of competency as described in a work process schedule. (D) The determination of the appropriate approach for the program standards is made by the program sponsor, subject to approval by the department of the determination as appropriate to the apprenticeable occupation for which the program standards are registered. (C)(3) An outline of the work processes in which the apprentice will receive supervised work experience and training on the job, and the approximate allocation of time to be spent in each major process; (D)(4) An outline of the related instruction to be provided the apprentice, normally not less than 144 hours for every 2,000 hours of on-the-job work experience or according to the same proportion for programs of fewer or more hours and a provision that the sponsor will promptly notify the director whenever an apprentice completes a course of study indicated in the outline of related instruction; apprentice in technical subjects related to the occupation. A minimum of 144 hours for each year of apprenticeship is recommended. This instruction may be accomplished through media such as classroom, occupational or industry courses, electronic media, or other instruction approved by the department. Every apprenticeship instructor shall: (A) Meet one of the following requirements: (i) Be qualified as a vocational-technical instructor through the N.C. Department of Public Instruction, the N.C. Community College System or an accredited college or university in the state; or (ii) Be a subject matter expert. For purposes of this Rule, a subject matter expert is an individual who is recognized within an industry as having expertise in a specific occupation, such as a journeyman; and (B) Have training in teaching techniques and adult learning styles, which may occur before or after the apprenticeship instructor has started to provide the related technical instruction. (E)(5) A schedule of progressively increasing wages to be paid the apprentice consistent with the skill required and based upon the prevailing journeyman rate for the trade and geographic region: (A) The entry wage for apprentices must shall be no less than the amount prescribed by the State Minimum Wage Law (G.S. 95-25.1 et seq.), unless a higher wage is required by the Fair Labor Standards Act of 1938, as amended, by other applicable federal law, or by collective bargaining agreement; (B) Unless otherwise established by collective bargaining agreement, the entry wage for apprentices shall normally be no less than 50 percent and shall normally reach at least 85 percent of the journeyman rate by the last period of training; (F) A statement whether the required related instruction will be compensated; (G) A statement that the apprentices will be eligible for and will be paid overtime under the same rules or policies as apply to journeymen employed in the same trade by the apprentices' employer; (H)(6) A provision requiring periodic review and evaluation of the apprentice's progress in job performance and related instruction and instruction, identifying the person(s) responsible for such review, and further requiring maintenance of appropriate progress records; (I)(7) An assurance that qualified training personnel and adequate supervision on the job will be provided; (J)(8) A provision requiring that the ratio of apprentices to journeymen will not exceed two to one at each job site, work force, department, or plant, except as follows: (i)(A) In the building and construction trades, the ratio of apprentices to journeymen shall not exceed one to one at each job site, work force, department, or plant; (ii)(B) No such specific ratios are required where expressly prohibited or otherwise provided for by an applicable collective bargaining agreement; (K)(9) A provision requiring a period of probation of not more than 500 hours of employment and PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 133 instruction extending over not more than four months, 25% of the length of the program, or one year, whichever is shorter, unless the director approves a longer period at the request of a joint apprenticeship committee, during which probationary period either party to the apprenticeship agreement may cause the agreement to be de-registered by the director upon the request in writing of either party; A provision requiring a probationary period not to exceed 25 percent of the length of the program, or one year, whichever is shorter, with full credit given for such period toward completion of apprenticeship. During the probationary period, either party may unilaterally submit a written request to the director requesting that the agreement be deregistered. Cancellation during the probationary period will not have an adverse impact on the sponsor's completion rate. (L) A provision requiring that after the probationary period an apprenticeship agreement can be deregistered by the director only upon written request of the apprentice, written request showing mutual agreement of the parties, written request of the sponsor showing reasonable cause, or upon deregistration of the apprenticeship program. Where a program is deregistered, apprenticeship agreements which are therefore also subject to being deregistered shall be placed in a status of "inactive" for a period of not more than one year, during which time the party or parties that initiated the deregistration of the program will exercise due diligence in seeking to place said apprentices in employment that will reactivate such agreements and provide the apprentice with the opportunity to complete his apprenticeship training; (M)(10) An assurance that adequate and safe equipment and facilities for training and supervision will be provided and that apprentices will be provided safety training on the job and in related instruction; (N)(11) A provision that an apprentice will be given credit toward completion of on-the-job training, including a reduction of the term of the apprenticeship and placement on the schedule of wages at a commensurate level, for previously acquired experience, training, or skills, such reduction and placement to be determined by the sponsor with the approval of the director; The granting of advanced standing or credit for demonstrated competency, acquired experience, training, or skills for all applicants equally, with commensurate wages for any progression step so granted; (O)(12) A statement that an employer who is unable to fulfill its obligation under the apprenticeship agreement may, with the approval of the director, transfer the agreement to another employer under the same program who agrees to assume the obligations of the agreement, if both the apprentice and the sponsor both sponsors consent to the transfer; transfer and comply with the following provisions: (A) The transferring apprentice shall be provided a transcript of related instruction and on-the-job learning by the program sponsor; (B) The transfer shall be to the same occupation; and (C) A new apprenticeship agreement shall be executed when the transfer is to occur between program sponsors. (P)(13) A provision that the sponsor will promptly submit to the director any proposed revision of the apprenticeship program or agreement for the director's approval; for the registration, cancellation and deregistration of the program, and for the submission of any program standard modification or amendment to the department for approval; (Q)(14) A provision that the sponsor will promptly notify the director of individuals who have signed an apprenticeship agreement, of apprentices who have left the program before completion, and of apprentices who have successfully completed an apprenticeship and that the sponsor will request from the director a certificate of completion for apprentices who have successfully completed an apprenticeship; for the registration, modification and amendment of apprenticeship agreements, and for giving notice to the department of transfers, suspensions, and cancellations of apprenticeship agreements, including a statement of the reasons therefore, and of persons who have successfully completed apprenticeship programs; (R)(15) A provision that the sponsor will maintain all records of an apprenticeship program including but not limited to payroll records, for a period of five years and will make them available for review to department personnel or their authorized representative at the request of the department personnel or, whenever the records pertain to a program with apprentices who have received or are receiving VA training allowances, to VA personnel upon their request; the location of the records shall be specified; PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 134 (S)(16) A provision that the sponsor will notify in writing the director and the VA Regional Office in writing whenever an apprentice receiving a VA training allowance is paid wages in an amount equal to or more than the amount paid to journeymen in the trade and geographic region, as established in Part (E) of by Subparagraph (a)(5) of this Rule; (T)(17) A statement of the titles or names and addresses of Contact information, including name, title, address, telephone number and e-mail address, if appropriate, of the appropriate people with authority under the program to receive, process, and resolve complaints arising under the apprenticeship program, including the person(s) or organization designated by the sponsor, if any, and the director as head of the State Apprenticeship Agency, complaints, and the appropriate person(s) or organization for complaints concerning equal employment opportunity in apprenticeship (Section .0600 of this Chapter); Subchapter); (U)(18) A statement of the minimum qualifications for apprentices which the sponsor may require in addition to the minimum qualifications set forth in Rule .0207 of this Section. Subchapter. This statement may be satisfied by submission of the written description of the sponsor's selection procedure, as required under Part (W) of (a)(5) Subparagraph (a)(20) of this Rule, if the written description includes all additional minimum requirements; (V)(19) The following pledge: "The recruitment, selection, employment, and training of apprentices during their apprenticeship shall be without discrimination because of race, color, religion, national origin, or sex. The sponsor will take affirmative action to provide equal opportunity in apprenticeship and will operate the apprenticeship program as required by Section .0600 of 13 NCAC 14"; of this Subchapter and Title 29 of the Code of Federal Regulations, Part 30." (W)(20) The sponsor's affirmative action plan and written description of its selection procedure, unless exempted, as provided in Section .0600 of this Chapter; Subchapter; (X)(21) An assurance that all apprentices in the program will be provided the same training and instruction and will in all respects be treated the same under the program; (Y)(22) A provision that each apprentice in the apprenticeship program will be a party to a registered apprenticeship agreement meeting the requirements of Rule .0208 of this Section Subchapter, and each probationary apprentice will be a party to an apprenticeship agreement meeting the requirements of that rule and that the sponsor will provide each apprentice or probationary apprentice with a copy of his the agreement. (b) The program standards of apprenticeship must shall constitute a statement of the actual program operating or to be operated and not a statement of the goals, objectives, or aspirations of the sponsor, except for the equal opportunity goals and timetables. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0203 PROGRAM PERFORMANCE STANDARDS (a) Programs shall have at least one registered apprentice in order to retain registration, except for the following periods of time which may not exceed one year: (1) Between the date when a program is registered and the date of registration for its first apprentice(s); or (2) Between the date that a program graduates an apprentice and the date of registration for the next apprentice(s) in the program. (b) The department shall evaluate performance of registered apprenticeship programs as follows: (1) The tools and factors to be used shall include: (A) Quality assurance assessments; (B) Equal Employment Opportunity (EEO) Compliance Reviews; and (C) Completion rates. (2) Any additional tools and factors used by the department in evaluating program performance shall adhere to the goals and policies of the department articulated in this Subchapter and in guidance issued by the U.S. Department of Labor's Office of Apprenticeship. (c) In order to evaluate completion rates, the department shall review a program's completion rates in comparison to the national average for completion rates. Based on the review, the department shall provide technical assistance to programs with completion rates lower than the national average. (d) Cancellation of apprenticeship agreements during the probationary period will not have an adverse impact on a sponsor's completion rate. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0204 REGISTRATION REQUEST PROCEDURE (a) Upon request by a prospective sponsor to an official of the department, or upon the initiative of an official of the department, a representative of the division shall arrange, or upon the initiative of an official of the department may arrange, arrange a meeting or series of meetings between a representative of the division and the prospective sponsor for the purpose of discussing the requirements for registration and the procedures necessary to register and operate an apprenticeship program. (b) If the prospective sponsor elects to request registration of an apprenticeship program, it shall complete and submit to the PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 135 director the forms required by the director, including but not limited to the following: (1) A written request, signed by the prospective sponsor, for registration of an apprenticeship program meeting the requirements of Rule .0202 of this Subchapter; (2) An original of the program standards of apprenticeship required under Rule .0202(a)(4) of this Subchapter, including an affirmative action plan according to Rule .0607 of this Chapter Subchapter and a written description of the selection procedure according to Rule .0608 of this Chapter, Subchapter, unless exempted; (3) Any written agreement to comply with the program standards by a participating employer as provided by Rule .0106(b) of this Subchapter; and (4) One of the following: (A) A written acknowledgment of union agreement or "no objection" to the registration when the program standards, collective bargaining agreement, or other instrument provides for participation by a union in any manner in the operation of the substantive matters of the apprenticeship program and such participation is exercised; or (B) A written acknowledgment of a union's receipt of a copy of the completed application forms when the union represents employees in the trade which is an objective of the apprenticeship training, unless an acknowledgment under this Part preceding is required; or (C) A signed statement by the sponsor that no unions represent employees of the sponsor or participating employers in the trade which is an objective of the apprenticeship training. (c) If the director has received the completed application forms in proper form and has determined that the requirements for an apprenticeship program, as set forth in Rule .0202 of this Subchapter, are met, the program shall be approved and registered with the division. The sponsor shall be notified in writing of the registration. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0205 ELIGIBILITY AND PROCEDURE FOR REGISTRATION OF AN APPRENTICESHIP PROGRAM (a) Upon receipt by the director of the forms required from a prospective sponsor for the registration of an apprenticeship program, the director shall review the forms to determine whether they are complete and in conformance with the requirements for apprenticeship set forth in Rule .0202 of this Chapter and shall make such investigation as he deems necessary. For the purposes of this Rule, receipt by a representative of the division does not constitute receipt by the director. (b) If the director finds that the forms are complete and the proposed apprenticeship program conforms to the requirements for apprenticeship, he shall approve the request for registration, subject to Paragraph (c) of this Rule. (c) When a union has been furnished a copy of the request according to Part (b)(4)(B) of Rule .0204 of this Section, the director shall not approve a request for registration until 30 days after receipt of the completed application forms in order that the union may comment upon the request. When notice to a union is required but not provided, the director shall not approve the request until 30 days after notice is provided. (d) After the director has approved a request for registration, he shall cause the apprenticeship program to be recorded by the division, which constitutes registration of the program, and shall provide the sponsor with evidence of the registration in the form of a certificate or other written indicia. (e) Notwithstanding any other provision of this Chapter, an apprenticeship program jointly sponsored on a multistate basis by employers and unions in an industry other than the building and construction industry and registered pursuant to the requirements of the federal Bureau of Apprenticeship and Training by the Bureau or any recognized state apprenticeship agency or council shall be accorded registration by the director upon the sponsor's submission to the director of a written request together with satisfactory documentation of registration and a copy of the program standards of apprenticeship. An apprenticeship program registered by the division under this Rule is subject to all other requirements of this Chapter, including but not limited to the registration of apprenticeship agreements and individuals, compliance with equal opportunity provisions, procedures for processing complaints, compliance reviews, and de-registration. (a) Eligibility for registration of an apprenticeship program is conditioned upon a program's conformity with the apprenticeship program standards published in this Subchapter. For a program to be determined by the director as being in conformity with this Subchapter, the program shall apply for registration and be registered with the department. The determination by the director that the program meets the apprenticeship program standards is effectuated only through such registration. (b) Only an apprenticeship program or agreement that meets the following criteria is eligible for registration: (1) It is in conformity with the requirements of Chapter 94 of the North Carolina General Statutes and the rules of this Subchapter, and the training is in an apprenticeable occupation having the characteristics set forth in 13 NCAC 14B .0203; and (2) It is in conformity with the requirements of the department's regulation on Equal Employment Opportunity in Apprenticeship and Training in Section .0600 of this Subchapter. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 136 (c) Except as provided under Paragraph (d) of this Rule, apprentices shall be individually registered under a registered program. Such individual registration may be affected: (1) By filing copies of each individual apprenticeship agreement with the department; or (2) Subject to prior approval by the department, by filing a master copy of such agreement followed by a listing of the name, and other required data, of each individual when apprenticed. (d) The names of persons in probationary employment as an apprentice under an apprenticeship program registered by the department, if not individually registered under such program, shall be submitted within 45 days of employment to the department for certification to establish the apprentice as eligible for such probationary employment. (e) The department shall be notified within 45 days of persons who have successfully completed apprenticeship programs; and of transfers, suspensions, and cancellations of apprenticeship agreements and a statement of the reasons therefore. (f) Operating apprenticeship programs, when registered by the department, are accorded registration evidenced by a Certificate of Registration. Programs registered by the department shall be accorded registration evidenced by a similar certificate or other written indicia. (g) Applications for new programs that the department determines meet the required standards for program registration shall be given provisional registration for a period of one year. The department shall review all new programs for quality and for conformity with the requirements of Chapter 94 of the North Carolina General Statutes and the rules of this Subchapter at the end of the first year after registration. At that time: (1) a program that conforms with the requirements may either be made permanent, or may continue to be provisionally registered through the first full training cycle. (2) a program not in operation or not conforming to the requirements during the provisional registration period shall be recommended for deregistration procedures. (h) The department shall review all programs for quality and for conformity with the requirements of Chapter 94 of the North Carolina General Statutes and the rules of this Subchapter at the end of the first full training cycle. A satisfactory review of a provisionally registered program will result in conversion of provisional registration to permanent registration. Subsequent reviews shall be conducted no less frequently than every five years. Programs not in operation or not conforming to the regulations shall be recommended for deregistration procedures. (i) Any sponsor proposals or applications for modification(s) or change(s) to registered programs or standards shall be submitted to the department in accordance with Rule .0211 of this Subchapter. (j) Under a program proposed for registration by an employer or employers' association, where the standards, collective bargaining agreement or other instrument provides for participation by a union in any manner in the operation of the substantive matters of the apprenticeship program, and such participation is exercised, written acknowledgement of union agreement or no objection to the registration is required. Where no such participation is evidenced and practiced, the employer or employers' association shall simultaneously furnish to an existing union, which is the collective bargaining agent of the employees to be trained, a copy of its application for registration and of the apprenticeship program. The department shall provide for receipt of union comments, if any, within 45 days before final action on the application for registration. (k) Where the employees to be trained have no collective bargaining agreement, an apprenticeship program may be proposed for registration by an employer or group of employers, or an employer association. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0208 APPRENTICESHIP AGREEMENT An In addition to the requirements of G.S. 94-7 and G.S. 94-8, an apprenticeship agreement shall contain the following in order to be registered: (1) The contact information, including names, addresses, telephone numbers, and e-mail addresses, if appropriate, and signatures of the contracting parties and, if the apprentice is a minor, the signature of his parent or guardian; of the program sponsor or employer, and their signatures; (2) The name and signature of the apprentice, and if the apprentice is a minor, the signature of the apprentice's parent or guardian; (2) The date of birth of the apprentice; (3) The name, address, and telephone number of the registration agency; (4) The dates on which the apprenticeship will begin and end; (5) The schedule of wages for the apprentice, either expressly or by specific reference to the apprentice's place on the schedule set forth in the program standards of apprenticeship; (6) The particular craft for which the apprentice is to be trained; (7)(3) The number of hours to be spent by the apprentice in work on the job, the number of hours to be spent in related instruction, and the rate or amount of compensation, if any, for time spent in related instruction; A statement showing: (a) The number of hours to be spent by the apprentice in work on the job in a time-based program; or a description of the skill sets to be attained by completion of a competence-based program, including the on-the-job learning component; or the minimum number of hours to be spent by the apprentice and a description of the skill sets to be attained by completion of a hybrid program; and PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 137 (b) The number of hours to be spent in related instruction in technical subjects related to the occupation, which is recommended to be not less than 144 hours per year; (8)(4) The number of hours of probation; Statements providing that the apprenticeship agreement may be de-registered in accordance with Rule .0407 of this Subchapter; (9)(5) A statement that a complaint procedure is provided, that details of the procedure are set out in the program standards of apprenticeship, and that the program standards may be obtained or inspected in a certain (specified) location; Contact information, including name, address, and e-mail if appropriate, of the appropriate authority designated under the program to receive, process and resolve controversies or differences arising out of the apprenticeship agreement when the controversies or differences cannot be adjusted locally or resolved in accordance with the established procedure or applicable collective bargaining provisions; (10)(6) A statement that the apprentice will be afforded equal opportunity in employment and training without discrimination because of race, color, religion, national origin, or sex; (11)(7) The A reference incorporating as part of the agreement the program standards of apprenticeship, either directly or by reference, apprenticeship as they exist on the date the agreement is executed and as they may be revised or amended during the period of the agreement; agreement; and (12) Such further, specific information as may be necessary to apply the relatively broad provisions of the program standards of apprenticeship to the particular situation of the apprentice in the apprenticeship program; and (13)(8) Such other terms of agreement between the parties as are consistent with these Rules and the purposes of apprenticeship in general. Authority G.S. 94-2; 94-4; 94-7; 94-8. 13 NCAC 14B .0209 REGISTRATION OF APPRENTICE AND AGREEMENT (a) A sponsor or an individual, or a person or organization on behalf of the individual, shall request that an apprenticeship agreement between the individual and his sponsor be registered by submitting to the director a copy of the apprenticeship agreement. (b) If the director finds that: If the following requirements are met, then the director shall approve the apprenticeship agreement and cause it to be recorded by the division, which constitutes registration of the agreement: (1) The agreement is complete and applies to a registered apprenticeship program; (2) The agreement meets the requirements of Rule .0208 of this Chapter; Subchapter; and (3) The individual meets the minimum qualifications for an apprentice; then apprentice. The director shall approve the apprenticeship agreement and cause it to be recorded by the division, which constitutes registration of the agreement. (c) If the director approves the apprenticeship agreement, he shall also and simultaneously cause the name of the individual who is to be trained under the agreement to be recorded by the division, which constitutes registration of the individual. (d) The sponsor shall submit to the director the apprenticeship agreement of a probationary apprentice, although the agreement will not be registered. (e)(d) All apprenticeship registrations are subject to a registration fee and an annual fee in accordance with G.S. 94-12 and Rule .0701 of this Chapter. Subchapter. Authority G.S. 94-1; 94-2; 94-4; 94-8; 94-12. 13 NCAC 14B .0211 REVISION OF APPRENTICESHIP STANDARDS OR AGREEMENT (a) Any proposed revision of program standards of apprenticeship or an apprenticeship agreement shall be submitted in writing by the sponsor to the director for his approval. (b) The revision becomes effective 90 days after the director's receipt of the sponsor's proposed revision unless the director, in writing, either approves or disallows the revision within that time, stating the reason(s) for disallowance. time. The director may disallow part of the proposed revision and allow part, but in such event the sponsor may withdraw the entire proposed revision. If the revision is not approved, the director shall notify the sponsor of the reasons for the disapproval, and provide the sponsor with technical assistance. (c) The sponsor may appeal the director's decision to disallow a proposed revision or part of a proposed revision in accordance with Chapter 150B of the North Carolina General Statutes and 13 NCAC 1B within 30 days of the sponsor's receipt of the director's decision. (d) When a revision becomes effective, the division shall record the revision so that it amends the program standards or agreement recorded by the division. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0212 TERMINATION AND EXTENSION OF AGREEMENTS (a) An apprenticeship agreement terminates when the period of the apprenticeship identified by the terms of the agreement (see Rule .0208(4) of this Chapter) expires. (b) The agreement may be extended for a specified period by agreement of the apprentice and sponsor with the approval of the director. The sponsor shall obtain the director's approval of an extension in the manner provided in Rule .0211 of this Section Subchapter for revision of program standards of apprenticeship or an apprenticeship agreement, except that an extension becomes fully effective within 30 days of the director's receipt of PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 138 the proposed extension unless earlier approved or disallowed. the director, in writing, disallows the revision within that time, stating the reason(s) for disallowance. Note: The director's approval of an extension does not indicate whether the extension will affect the apprentice's eligibility for a VA training allowance; in some cases an extension, although approved, may disqualify an apprentice for VA purposes. (c) Nothing in this Rule shall be construed to prevent a sponsor and an individual meeting the minimum qualifications of an apprentice, as set forth in Rule .0207 of this Chapter, Subchapter from executing an apprenticeship agreement. Authority G.S. 94-1; 94-2; 94-4; 94-6. 13 NCAC 14B .0213 CERTIFICATION OR CERTIFICATE OF COMPLETION (a) Upon notification from a sponsor that an individual has completed his apprenticeship in the sponsor's registered apprenticeship program, the director shall issue to the individual, or to the sponsor for the individual, a certificate of completion or other written indicia signifying that the individual has completed his training and instruction in a registered apprenticeship program in a certain, identified trade and the date the training was completed. (b) Notwithstanding Paragraph (a) of this Rule, the director shall not issue the certificate of completion if he decides upon satisfactory evidence that the apprentice is not fully trained because he did not complete the apprenticeship or because the apprenticeship program did not comply with the rules of this Chapter. Subchapter. In addition, the director shall not issue the certificate of completion if he determines that the fees authorized by G.S. 94-12 and Rule .0701 of this Chapter Subchapter have not been paid. The director shall promptly give written notification to the sponsor and individual of his decision not to issue the certificate of completion and the reason(s) therefor. for the decision. (c) The sponsor or individual may appeal the director's decision within 30 days or receipt of notification in accordance with Article 3 of Chapter 150B of the N.C. North Carolina General Statutes. (d) Upon request of a sponsor, the director may issue an honorary certificate of completion to recognize an individual who by training and experience was fully qualified as a journeyman prior to the registration of the sponsor's apprenticeship program. Authority G.S. 94-1; 94-2; 94-4; 94-12. SECTION .0300 - ON-THE-JOB TRAINING (OJT) PROGRAMS 13 NCAC 14B .0301 STANDARDS FOR OJT PROGRAMS (a) The In order to be eligible for registration by the department, an OJT program must shall be set forth in a written document, signed by the sponsor, document signed by the sponsor containing the terms and conditions of employment, training, and supervision of one or more trainees in the trainable occupation, which includes the following provisions and is denominated the programs program standards for OJT: (1) The nature of the occupation which is the objective of the training; (2) The term of the course of training consistent with the criteria for OJT programs; programs where the term of training is for a period of not less than six months (1,000 hours) and not more than two years (4,000 hours) of reasonably continuous work experience. The length of the program shall not be longer than the time customarily required by training establishments in the community, or if there are no other training establishments in the community, then not longer than is reasonably necessary, to provide a trainee with the skills, knowledge, technical information, and other facts which the trainee needs to learn in order to become competent in the occupation which is the objective of the training; (3) An outline of the work processes in which the trainees are to receive supervised work experience and training on the job,and the approximate allocation of time to be spent in each major process, and the specific location of the training site(s); (4) An outline of related instruction to be provided the trainees, if any is to be provided; required; (5) A schedule of progressively increasing wages to be paid the trainees, established by the sponsor with the approval of the director as follows: (A) The prevailing rate in the geographic area for fully qualified workers in the occupation which is the objective of the training will be determined; (B) A rate for fully qualified workers applicable to the OJT program will be established based upon the determination made in Part (a)(5)(A) of this Rule; (C) The trainees' wages will be no less than 50 percent of the applicable rate for fully qualified workers established in Part (a)(5)(B) of this Rule and will increase in regular periodic increments until, not later than the last full month of the training period, they are at least 85 percent of the applicable rate; provided that in any event the wages are no less than the applicable state or federal minimum wage; (6) A statement whether the related instruction, if any, is to be compensated; (7)(6) An assurance that all trainees in the program, regardless of whether they receive VA training allowances, will be provided the same training and instruction and will in all respects be PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 139 treated the same under the program, in accordance with the criteria for OJT programs; (8)(7) A provision requiring periodic review and evaluation of the trainees' progress in job performance and related instruction, if any, and identifying the person(s) responsible for evaluation; such review, and further requiring maintenance of progress records; (9)(8) A provision requiring that the ratio of trainees to fully qualified workers will not exceed two to one at each job site, work force, department, or plant; plant except as follows: (A) In the building and construction trades, the ratio of trainees to fully qualified workers shall not exceed one to one at each job site, work force, department, or plant; (B) No such specific ratios are required where expressly prohibited or otherwise provided for by an applicable collective bargaining agreement; (10)(9) A provision requiring a period of probation of not more than 500 hours of on-the-job training, during which probationary period either party to the OJT agreement may cause the agreement to be terminated by the director upon the request in writing of either party; A provision requiring a probationary period not to exceed 25 percent of the length of the program, or one year, whichever is shorter, with full credit given for such period toward completion of OJT. During the probationary period, either party may unilaterally submit a written request to the director requesting that the agreement be de-registered. (11) A provision requiring that after the probationary period an OJT agreement can be terminated by the director only upon written request of the trainee, upon mutual agreement of the parties, for reasonable cause, or upon the withdrawal of approval from the program; (12)(10) An assurance that trainees will be provided safety training and instruction as needed to prevent injury to themselves and other workers; adequate and safe equipment and facilities for training and supervision will be provided and that trainees will be provided safe training on the job and in any related instruction; (13)(11) A provision that trainees will be given credit toward the completion of on-the-job training, including a reduction of the term of the OJT course of training and placement on the schedule of wages at a commensurate level, for previously acquired experience, training, or skills, such reduction and placement to be determined by the sponsor with the approval of the director; The granting of advanced standing or credit for demonstrated competence, acquired experience, training, or skills for all applicants equally, with commensurate wages for any progression step so granted; (14)(12) A statement that an employer who is unable to fulfill its obligation under the OJT agreement may, with the written approval of the director, transfer the agreement to another employer under the same program who agrees to assume the obligations of the agreement, if both the trainee and the sponsor consent to the transfer; transfer and comply with the following provisions: (A) The transferring trainee will be provided a transcript of related instruction, if applicable, and on-the-job training by the program sponsor; (B) The transfer shall be to the same occupation; and (C) A new OJT agreement shall be executed when the transfer is to occur between program sponsors. (15)(13) A provision that the sponsor will promptly submit to the director any proposed revision to the OJT program for the director's approval; for the registration and cancellation of the program, and for the submission of any program standard modification or amendment to the department for approval; (16)(14) A provision that the sponsor will promptly notify the director of individuals who have signed an OJT agreement, of trainees who have left the program before completion, and of trainees who have successfully completed the OJT course of training and that the sponsor will request from the director a certificate of completion for trainees who have successfully completed the OJT course of training; for the registration, modification and amendment of OJT agreements, and for giving notice to the department of transfers, suspensions and cancellations of OJT agreements, including a statement of the reasons therefore, and of persons who have successfully completed OJT programs; (17)(15) A provision that the sponsor will maintain all records of the OJT program, including but not limited to payroll records, for a period of three five years and shall make them available for review to department personnel or their authorized representative upon the request of the department personnel or, whenever the records pertain to a program with trainees who have received or are receiving VA training allowances, to VA personnel upon their request; the location of the records shall be specified; PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 140 (18)(16) A provision that the sponsor will notify in writing the director and the VA Regional Office in writing whenever a trainee receiving a VA training allowance is paid wages in an amount equal to or more than the applicable rate for fully qualified workers as established in the program standards for OJT; Subparagraph (a)(5) of this Rule; (19)(17) A statement of the names of titles and addresses of Contact information, including name, title, address, telephone number and e-mail address, if appropriate of the appropriate people with authority under the program to receive, process, and resolve complaints arising under the OJT agreement, including both the person(s) or organization designated by the sponsor, if any, and the director as administrator of the State Approving Agency; complaints; (20)(18) A statement of the minimum qualifications for trainees which the sponsor may require; (21)(19) An assurance that the OJT program complies with the criteria set forth in Rule .0403 of this Section; Subchapter; (22)(20) A pledge that all trainees will be accorded equal opportunity in all phases of OJT employment and training without discrimination because of race, color, religion, national origin, or sex; The following pledge: "The recruitment, selection, employment, and training of trainees during OJT shall be without discrimination because of race, color, religion, national origin, or sex;" and (23)(22) A provision that each trainee in the OJT program will be a party to an OJT agreement meeting the requirements of Rule .0305 of this Section Subchapter, and that the sponsor will provide each trainee with a copy of the agreement. (b) The program standards for OJT must shall constitute a statement of the actual program operating or to be operated and not a statement of the goals, objectives, or aspirations of the sponsor. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0302 REGISTRATION REQUEST PROCEDURE FOR OJT PROGRAMS (a) Upon request by a prospective sponsor to an official of the department, or upon the initiative of an official of the department, a representative of the division shall arrange, or on the initiative of an official of the department may arrange, arrange a meeting or series of meetings between a representative of the division and the prospective sponsor for the purpose of discussing the relevant criteria and standards and the procedures necessary to obtain approval register and to operate an approved OJT program. (b) If the prospective sponsor elects to request that a training program be approved, registered, it shall complete and submit to the director the forms required by the director, including the following: (1) A written request request, signed by the prospective sponsor, for approval registration of a training program; program meeting the requirements of Rule .0301 of this Subchapter; (2) An original copy of the program standards for OJT; (3) Any written agreement to comply with the program standards by a participating employer as provided by Rule .0106(b) of this Chapter; Subchapter; and (4) A Designation of Certifying Official(s) form. (c) If the director has received the completed application forms in proper form and has determined that the requirements for an OJT program, as set forth in Rule .0303 of this Section, Subchapter, are met, he shall approve the program, cause the approval to be recorded by the division, and acknowledge the approval in writing to the sponsor. the program shall be registered with the division. The sponsor shall be notified in writing of the registration. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0303 ELIGIBILITY AND PROCEDURE FOR REGISTRATION OF OJT PROGRAMS The director may approve register an OJT program only when: (1) The sponsor offering the training has submitted to the director the forms required in Rule .0302(b) of this Section; Subchapter; and (2) The director finds upon investigation that the following criteria are met: (a) The nature of the occupation which is the objective of the training is one in which progression and appointment to the next higher classification are based upon skills learned through organized and supervised training on the job and not upon such factors as length of service and normal turnover; (b) The training content of the program is adequate to qualify the trainee for a job in the occupation which is the objective of the training; (c) The occupation which is the objective of the training normally requires full-time training for a period of not less than six months and not more than two years, which the director shall interpret as not less than 1,000 hours and not more than 4,000 hours of reasonably continuous work experience; (d) The length of the program is not longer than the time customarily required by training establishments in the community -- or if there are no PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 141 other training establishments in the community, then not longer than is reasonably necessary -- to provide a trainee with the skills, knowledge, technical information, and other facts which the trainee needs to learn in order to become competent in the occupation which is the objective of the training; (e) Related instruction is provided for the individual trainee(s) who may need it; (f)(c) The sponsor provides adequate space, equipment, instructional material, and instructor personnel for safe and satisfactory on-the-job training; (g) The sponsor has the capacity to keep and keeps adequate records for at least three years showing the progress of each trainee in the OJT program; (h)(d) The OJT program does not provide training for people already qualified by training and experience for the occupation which is the objective of the training; (i)(e) Each trainee's wages are paid according to the schedule set out in the program standards for OJT but in no event are less than the applicable state or federal minimum wage; (j)(f) There is a reasonable certainty that a job in the occupation which is the objective of the training will be available to the trainee at the end of the OJT course of training; and (k) All trainees in the OJT program, regardless of whether they receive a VA training allowance, are in all respects treated the same under the program. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0305 OJT AGREEMENT An OJT agreement shall contain the following: following in order to be registered: (1) The contact information, including names, addresses, telephone numbers, and e-mail addresses, if appropriate, signatures of the contracting parties and, if the trainee is a minor, the signature of his parent or guardian; of the program sponsor or employer, and their signatures; (2) The date of birth of the trainee; (3) The name and signature of the trainee, and if the trainee is a minor, the signature of the trainee's parent or guardian; (3) The name, address, and telephone number of the division, as the State Approving Agency; (4) The dates on which the OJT course of training will begin and end; (5)(4) The particular nature of the occupation which is the objective of the trainee's training; (6)(5) The schedule of wages for the trainee, either expressly or by specific reference to the trainee's place on the schedule set forth in the program standards for OJT; (7)(6) The number of hours to be spent by the trainee in work on the job, job and the number of hours to be spent in related instruction, if any, and the rate or amount of compensation, if any, for related instruction; (8)(7) The number of hours of probation; Statements providing that the OJT agreement may be cancelled in accordance with Rule .0407 of this Subchapter. (9)(8) A statement that a complaint procedure is provided, that details of the procedure are set out in the program standards for OJT, and that the program standards may be obtained or inspected in a certain (specified) location; Contact information, including name, address, and e-mail if appropriate, of the appropriate authority designated under the program to receive, process and resolve controversies or differences arising out of the OJT agreement when the controversies cannot be adjusted or resolved in accordance with the established procedure; (10)(9) A statement that the trainee will be afforded equal opportunity in employment and training without discrimination because of race, color, religion, national origin, or sex; (11)(10) The A reference incorporating as a part of the agreement the program standards for OJT, either directly or by reference, OJT as they exist on the date the agreement is executed and as they may be revised or amended during the period of the agreement; and (12) Such further, specific information as may be necessary to apply the relatively broad provisions of the program standards for OJT to the particular situation of the trainee in the OJT program; and (13)(11) Such other terms of agreement between the parties as are consistent with these Rules and the purposes of on-the-job OJT training in general. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0306 REGISTRATION OF OJT AGREEMENTS (a) The sponsor shall promptly submit to the director a copy of all OJT agreements under its program. request that an OJT agreement between the individual and sponsor be registered by submitting to the director a copy of the OJT agreement. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 142 (b) If upon receiving an OJT agreement the director finds that: If the following
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Title | North Carolina register |
Date | 2010-07-15 |
Description | Vol. 25, Issue 2 (July 15, 2010) |
Digital Characteristics-A | 633 KB; 57 p. |
Digital Format | application/pdf |
Full Text | This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER VOLUME 25 ● ISSUE 02 ● Pages 119 - 171 July 15, 2010 I. PROPOSED RULES Commerce, Department of Alcoholic Beverage Control Commission....................................................... 119 – 125 Labor, Department of Department...................................................................................................... 125 – 147 Occupational Licensing Boards and Commissions Nursing, Board of............................................................................................ 148 – 151 Onsite Wastewater Contractors and Inspectors Certification Board ............... 151 – 155 State Personnel, Office of State Personnel Commission........................................................................... 156 – 160 II. RULES REVIEW COMMISSION ................................................................. 161 – 169 III. CONTESTED CASE DECISIONS Index to ALJ Decisions ...................................................................................... 170 – 171 PUBLISHED BY The Office of Administrative Hearings Rules Division 6714 Mail Service Center Raleigh, NC 27699-6714 Telephone (919) 431-3000 Fax (919) 431-3104 Julian Mann, III, Director Camille Winston, Deputy Director Molly Masich, Codifier of Rules Dana Vojtko, Publications Coordinator Julie Edwards, Editorial Assistant Tammara Chalmers, Editorial Assistant This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 Contact List for Rulemaking Questions or Concerns For questions or concerns regarding the Administrative Procedure Act or any of its components, consult with the agencies below. The bolded headings are typical issues which the given agency can address, but are not inclusive. Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc. Office of Administrative Hearings Rules Division 1711 New Hope Church Road (919) 431-3000 Raleigh, North Carolina 27609 (919) 431-3104 FAX contact: Molly Masich, Codifier of Rules molly.masich@oah.nc.gov (919) 431-3071 Dana Vojtko, Publications Coordinator dana.vojtko@oah.nc.gov (919) 431-3075 Julie Edwards, Editorial Assistant julie.edwards@oah.nc.gov (919) 431-3073 Tammara Chalmers, Editorial Assistant tammara.chalmers@oah.nc.gov (919) 431-3083 Rule Review and Legal Issues Rules Review Commission 1711 New Hope Church Road (919) 431-3000 Raleigh, North Carolina 27609 (919) 431-3104 FAX contact: Joe DeLuca Jr., Commission Counsel joe.deluca@oah.nc.gov (919) 431-3081 Bobby Bryan, Commission Counsel bobby.bryan@oah.nc.gov (919) 431-3079 Fiscal Notes & Economic Analysis Office of State Budget and Management 116 West Jones Street (919) 807-4700 Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX Contact: Anca Grozav, Economic Analyst osbmruleanalysis@osbm.nc.gov (919)807-4740 NC Association of County Commissioners 215 North Dawson Street (919) 715-2893 Raleigh, North Carolina 27603 contact: Jim Blackburn jim.blackburn@ncacc.org Rebecca Troutman rebecca.troutman@ncacc.org NC League of Municipalities (919) 715-4000 215 North Dawson Street Raleigh, North Carolina 27603 contact: Erin L. Wynia ewynia@nclm.org Governor’s Review Edwin M. Speas, Jr. edwin.speas@nc.gov General Counsel to the Governor (919) 733-5811 116 West Jones Street 20301 Mail Service Center Raleigh, North Carolina 27699-0301 Legislative Process Concerning Rule-making Joint Legislative Administrative Procedure Oversight Committee 545 Legislative Office Building 300 North Salisbury Street (919) 733-2578 Raleigh, North Carolina 27611 (919) 715-5460 FAX contact: Karen Cochrane-Brown, Staff Attorney Karen.cochrane-brown@ncleg.net Jeff Hudson, Staff Attorney Jeffrey.hudson@ncleg.net This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER Publication Schedule for January 2010 – December 2010 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 31st legislative day of the session beginning: 270th day from publication in the Register 24:13 01/04/10 12/09/09 01/19/10 03/05/10 03/22/10 05/01/10 05/12/10 10/01/10 24:14 01/15/10 12/22/09 01/30/10 03/16/10 03/22/10 05/01/10 05/12/10 10/12/10 24:15 02/01/10 01/08/10 02/16/10 04/05/10 04/20/10 06/01/10 01/26/11 10/29/10 24:16 02/15/10 01/25/10 03/02/10 04/16/10 04/20/10 06/01/10 01/26/11 11/12/10 24:17 03/01/10 02/08/10 03/16/10 04/30/10 05/20/10 07/01/10 01/26/11 11/26109 24:18 03/15/10 02/22/10 03/30/10 05/14/10 05/20/10 07/01/10 01/26/11 12/10/10 24:19 04/01/10 03/11/10 04/16/10 06/01/10 06/21/10 08/01/10 01/26/11 12/27/10 24:20 04/15/10 03/24/10 04/30/10 06/14/10 06/21/10 08/01/10 01/26/11 01/10/11 24:21 05/03/10 04/12/10 05/18/10 07/02/10 07/20/10 09/01/10 01/26/11 01/28/11 24:22 05/17/10 04/26/10 06/01/10 07/16/10 07/20/10 09/01/10 01/26/11 02/11/11 24:23 06/01/10 05/10/10 06/16/10 08/02/10 08/20/10 10/01/10 01/26/11 02/26/11 24:24 06/15/10 05/24/10 06/30/10 08/16/10 08/20/10 10/01/10 01/26/11 03/12/11 25:01 07/01/10 06/10/10 07/16/10 08/30/10 09/20/10 11/01/10 01/26/11 03/28/11 25:02 07/15/10 06/23/10 07/30/10 09/13/10 09/20/10 11/01/10 01/26/11 04/11/11 25:03 08/02/10 07/12/10 08/17/10 10/01/10 10/20/10 12/01/10 01/26/11 04/29/11 25:04 08/16/10 07/26/10 08/31/10 10/15/10 10/20/10 12/01/10 01/26/11 05/13/11 25:05 09/01/10 08/11/10 09/16/10 11/01/10 11/22/10 01/01/11 01/26/11 05/29/11 25:06 09/15/10 08/24/10 09/30/10 11/15/10 11/22/10 01/01/11 01/26/11 06/12/11 25:07 10/01/10 09/10/10 10/16/10 11/30/10 12/20/10 02/01/11 05/2012 06/28/11 25:08 10/15/10 09/24/10 10/30/10 12/14/10 12/20/10 02/01/11 05/2012 07/12/11 25:09 11/01/10 10/11/10 11/16/10 01/03/11 01/20/11 03/01/11 05/2012 07/29/11 25:10 11/15/10 10/22/10 11/30/10 01/14/11 01/20/11 03/01/11 05/2012 08/12/11 25:11 12/01/10 11/05/10 12/16/10 01/31/11 02/21/11 04/01/11 05/2012 08/28/11 25:12 12/15/10 11/22/10 12/30/10 02/14/11 02/21/11 04/01/11 05/2012 09/11/11 This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 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. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 119 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 04 – DEPARTMENT OF COMMERCE Notice is hereby given in accordance with G.S. 150B-21.2 that the Alcoholic Beverage Control Commission intends to amend the rules cited as 04 NCAC 02R .0103, .0303-.0304, .0603, .0701, .0905, .0907, .1005, .1008, .1203, .1405, .1407, .1502, .1701, .1708, .1801-.1803 and repeal the rules cited as 04 NCAC 02R .0601, .1103, .1301, .1710, .1902. Proposed Effective Date: November 1, 2010 Public Hearing: Date: August 19, 2010 Time: 10:00 a.m. Location: NC ABC Commission's Office, 3322 Garner Road, Raleigh, NC 27610 Reason for Proposed Action: The NC Alcoholic Beverage Control Commission proposes this action will address both the Legislation that has been enacted by the General Assembly previously and needed technical changes. Procedure by which a person can object to the agency on a proposed rule: Interested persons may present oral or written comments at the Rule-Making Hearing. In addition, the record will be open for receipt of written comments from July 15, 2010, to September 13, 2010. Written comments not presented at the hearing should be directed to Robert Hamilton. The proposed rules are available for public inspection and copies may be obtained at the Commission's office at: 3322 Garner Road, Raleigh, NC 27610. Comments may be submitted to: Robert A. Hamilton, 4307 Mail Service Center, Raleigh, NC 27699-4307, phone (919)779- 0700 x 436, fax (919)661-6165, email bob@adminrule.com. Comment period ends: September 13, 2010 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 after the adoption of the Rule. If the Rules Review Commission receives written and signed objections after the adoption of the Rule 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 919-431-3000. Fiscal Impact: A copy of the fiscal note can be obtained from the agency. State 04 NCAC 02R .0203, .0304, .1502 Local 04 NCAC 02R .0203, .0304, .1502 Substantial Economic Impact (>$3,000,000) None CHAPTER 02 - BOARD OF ALCOHOLIC CONTROL SUBCHAPTER 02R - ORGANIZATIONAL RULES: POLICIES AND PROCEDURES SECTION .0100 - GENERAL PROVISIONS 04 NCAC 02R .0103 DEFINITIONS (a) As used throughout this Chapter: (1) "ABC Law" or "ABC Laws" means any statute or statutes in Chapter 18B or in Article 2C of Chapter 105, and the rules issued by the Commission under the authority of Chapter 18B. (2)(1) "Administrator" means the principal administrative officer of the Commission. (3)(2) "Agent," "alcohol law enforcement agent," or "ALE agent" means an enforcement agent of the Alcohol Law Enforcement Division, North Carolina Department of Crime Control and Public Safety. (3) "Aggrieved party" means any person substantially affected by any statute or rule administered or adopted by the Commission. (4) "Applicant" means any person who requests the issuance of a permit from the Commission. (5) "Chairman" means the chairman of the Commission. (6) "Commission" means the North Carolina Alcoholic Beverage Control Commission. (6) "Contract carrier" means the carriers operated by the contractor on behalf of the state for the purpose of distributing spirituous liquors. (7) "Distressed liquor" means liquor which is not saleable due to adulteration, or damage to the bottle, label or tax seal. (7)(8) "Industry Member" means any manufacturer, bottler, importer, vendor, representative or wholesaler of alcoholic beverages. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 120 (9) "Operator" or "Contractor" means the person or persons responsible for carrying out the storage and distribution of spirituous liquors at the state ABC warehouse. (8)(10) "Permit" means a written or printed authorization to engage in some phase of the alcoholic beverage industry that may be issued by the Commission. (9)(11) "Permittee" means a person to whom a permit has been issued by the Commission. (12) "State ABC warehouse" means the contractor-operated facility or facilities storing spirituous liquors on behalf of the Commission pursuant to G.S. 18B-204, or, in cases of emergency, the facility or facilities operated by the state for the purpose of storing spirituous liquors. (b) The definitions in Chapter 18B apply to these Rules. the rules in this Chapter. Authority G.S. 18B-207; 150B-4. SECTION .0300 - PUBLICATIONS: RECORDS: COPIES 04 NCAC 02R .0303 DISTRIBUTION, INSPECTION AND COPIES OF ABC LAWS (a) Distribution of Rules and Statutes. A copy of the Commission's Rules and Chapter 18B of the General Statutes will be distributed The Commission shall distribute at no charge a copy of Chapter 18B of the General Statutes and the Commission's Rules to each local ABC board, each ALE agent, ABC officer and local law enforcement officer employed by a contracting agency pursuant to G.S. 18B-501(f), and to each employee of the Commission. (b) Purchasing Copies of the ABC Laws. Documents. Copies of the following documents are available from the Commission: (1) Chapter 18B of the General Statutes and the Commission's Rules; (2) Individual sections of Chapter 18B of the General Statutes; (3) Individual Commission Rules; (4) ABC Retail Guide; and (5) Public records retained by the Commission. ABC laws are available to any interested person who contacts the Commission at the following address or phone number: North Carolina Alcoholic Beverage Control Commission 3322 Garner Road P.O. Box 26687 Raleigh, NC 27611-6687 (919) 779-0700 The following items are available and should be purchased together for complete access to the ABC laws of this State: (1) Chapter 18B of the North Carolina General Statutes, at a cost of seven dollars ($7.00). (2) Title 4, Chapter 2 of the North Carolina Administrative Code, containing all the rules of the Commission, at a cost of seven dollars and fifty cents ($7.50). Payment by check or cash must be made prior to receiving copies of either publication. (c) Copies of Individual Rules or Statutes. For a fee of twenty-five cents ($0.25) per page, copies of rules, amendments and general statutes are available to any person contacting the Commission at the address and phone number in Paragraph (b) of this Rule. Copies of the above documents are available at the "actual cost" as defined in G.S. 132-6.2(b) for making the copies and the mailing cost if applicable. The Commission shall provide its "actual cost" on the Commission's website. Persons requesting copies of the above documents shall make payment by certified check, cashier's check or money order to the Commission prior to receiving any copies of the above documents. (d) Public Inspection of Records. Inspection of records and documents in the possession and custody of the Commission is governed by the provisions of Chapter 132 of the North Carolina General Statutes. Fees for copying public records shall be twenty-five cents ($0.25) per page. Authority G.S. 12-3.1; 18B-207; 132-1; 132-1.1; 132-1.2; 132- 1.3; 132-6. 04 NCAC 02R .0304 FEE FOR COMPUTER SERVICES (a) Lists. For a fee of seven cents ($0.07) per name, the Commission will provide to any interested person a list of permittees by county or by types of permits issued. Orders for a permittee list should be placed at least 72 hours in advance. The purchaser of the list will be notified of the total cost, including postage, and will be required to remit the total cost plus postage, by check or money order, before receiving a copy of the list. (b) Other Data Processing Services. The Upon request, the Commission will shall attempt to provide data processing services related to the Commission's powers and duties upon request. public information maintained by the Commission. Fees for such services will be determined are based on the actual cost to the Commission and shall be required to be paid in advance. advance by certified check, cashier's check or money order. Authority 18B-207; 150B-19(5)(e). SECTION .0600 - DECLARATORY RULINGS 04 NCAC 02R .0601 DEFINITION "Aggrieved party" means any person substantially affected by any statute or rule administered or adopted by the Commission. Authority G.S. 18B-207; 150B-11; 150B-17. 04 NCAC 02R .0603 REQUEST FOR DECLARATORY RULING (a) All requests for a declaratory ruling to contest the validity of a rule previously adopted by the Commission shall supply the following information: (1) name and address of aggrieved party; (2) statute or rule to which the request relates; PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 121 (3) a brief statement of the manner in which the aggrieved party is affected or may be affected by the statute or rule; (4) names and addresses of additional third parties known to the aggrieved party who may possibly be affected by the requested ruling; (5) complete and accurate statement of all material facts; (6) statement whether or not the aggrieved party is aware of any pending Commission action or court action that may bear on the applicability of the statute or rule to the party's particular situation; (7) brief statement of the arguments and legal authority supporting the party's position on the applicability of this statute or rule; and (8) statement of whether or not a conference is desired and reasons for requesting conference. The aggrieved party shall sign and verify the request before an officer qualified to administer oaths that the information supplied in the request form is true and accurate. (b) The request and any supporting materials relevant to the request shall be sent to the North Carolina Alcoholic Beverage Control Commission, 3322 Garner Road, Post Office Box 26687, 4307 Mail Service Center, Raleigh, North Carolina 27611-6687. 27699-4307. (c) The Commission shall either deny the request, stating the reasons therefore, or issue a declaratory ruling. The Commission shall deny a request for a declaratory ruling when the Commission determines that: (1) the request does not comply with the procedural guidelines within Paragraphs (a) and (b) of this Rule; (2) the Commission has previously issued a declaratory ruling on substantially similar facts; (3) the Commission has previously issued a final agency decision in a contested case on substantially similar facts; (4) the facts underlying the request for a declaratory ruling were considered at the time of the adoption of the rule in question; or (5) the subject matter is one concerning which the Commission is without authority to make a decision binding the Commission or the petitioner; (6) the petitioner is not aggrieved by the rule or statute in question or otherwise has no interest in the subject matter of the request; (7) there is reason to believe that the petitioner or some other person or entity materially connected to the subject matter of the request is acting in violation of the G.S. 18B or the rules adopted by the Commission; or (8) the subject matter of the request is involved in pending litigation, legislation, or rulemaking. (d) The Commission shall not issue a declaratory ruling when the petitioner or his or her request is the subject of, or materially related to, an investigation by the Commission or contested case before the Commission. Authority G.S. 18B-207; 150B-4. SECTION .0700 - PERSONNEL POLICIES: COMMISSION 04 NCAC 02R .0701 STANDARDS FOR COMMISSION AND EMPLOYEES (a) Financial Interests Prohibited. No member or employee of the Commission shall have or acquire any financial interest in the business, equipment or premises operated by any person, firm or corporation engaged in the production, sale or distribution of alcoholic beverages. (b) Relations. No member or employee of the Commission shall be related by blood, to the degree of first cousin or closer, to any person engaged or employed in the production, sale or distribution of alcoholic beverages in this State. (c) Gifts. No employee or Commission member shall accept any gift or other thing of value from any person, firm or corporation engaged in the production, sale or distribution of alcoholic beverages that would result in a violation of any general statute or Executive Order. (d) Entertainment. Except as prohibited elsewhere in these Rules reasonable entertainment of members or employees by a permittee or his representative is proper when that member or employee is entertained in an official capacity as a representative of the Commission, such as reasonable entertainment at state or national conventions or similar events, or at any time for good and proper reason that will not tend to influence the member or employee in the discharge of his duties with the Commission. Authority G.S. 18B-201; 18B-207. SECTION .0900 - FISCAL RULES FOR LOCAL BOARDS 04 NCAC 02R .0905 DAILY DEPOSITS (a) Each officer whose duty it is to collect or receive moneys of the local board shall deposit into an official depository the collections and receipts daily. If the local board gives its approval, deposits shall be required only when the moneys on hand amount to as much as are equal to or are greater than two hundred fifty dollars ($250.00), but in any event a deposit shall be made on the last business day of the month. All deposits shall be made in an official depository. Deposits in an official depository shall be reported to the finance officer by means of a duplicate deposit ticket. (b) A change fund necessary for daily operation of an ABC store shall be established by each local board and maintained in a secure place on the store's premises and shall not be subject to the daily deposit rule. Each change fund shall be maintained in the amount and place established by the local board. (c) The finance officer may at any time audit the records maintained by any employee collecting sales revenue and may prescribe the form and detail of these records. (d) The Commission shall waive or alter the daily deposit requirement for any local board for good cause shown and where adequate security for the funds involved is demonstrated. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 122 Authority G.S. 18B-702(d),(e). 04 NCAC 02R .0907 ANNUAL INDEPENDENT FINANCIAL AUDIT (a) Each local board shall have its accounts audited as soon as possible after the close of each fiscal year by an independent certified public accountant. The auditor shall be selected by and report directly to the local board. The audit contract shall be of a standard form approved provided by the Commission. The audit report is due to the Commission ninety days after the end of the fiscal year, when the year. The financial officer shall file two copies one unbound copy of the audit report and management letter with the Commission. (b) Each officer and employee of the local board having custody of public money or responsibility for keeping records of financial or fiscal affairs shall produce books and records requested by the auditor or the Commission and shall divulge any information relating to fiscal affairs that they request. If any member of the local board or any employee conceals, falsifies or refuses to deliver or divulge any books, records, or information with intent to mislead the auditor or impede or interfere with the audit, he is subject to removal for cause pursuant to G.S. 18B-203(a)(8). (c) Disclosure of the distribution of profits shall include every element that is applicable under G.S. 18B-805 in a schedule prepared for inclusion with the annual audited financial statements. In addition the schedule shall be supported by a listing of each person who receives moneys from the local board, the date of payment and, if applicable, the purpose for which the payment was made and restrictions on use of the payment. The listing shall be so designated to provide the same totals as were used in the schedule for each type of distribution. Authority G.S. 18B-702(c), (e). SECTION .1000 - LOCAL ABC BOARD: PERSONNEL POLICIES 04 NCAC 02R .1005 WAREHOUSE: PRESENCE OF UNAUTHORIZED PERSON PROHIBITED Personnel Only personnel employed by a local board shall be the only persons permitted to may enter the a local board's warehouse, except for: (1) truck drivers who need to enter in order to verify the amount of merchandise delivered; (2) members of the Commission and its representatives; and (3) local board members, the local board supervisor, and their duly authorized representatives. members; and (4) persons with approval from the local board or general manager; provided, they are accompanied by a board member or employee of the local board. Authority G.S. 18B-207; 18B-807. 04 NCAC 02R .1008 CONFLICTS OF INTEREST (a) Financial Interest Prohibited. No local board member or employee shall have any direct or indirect interest in any manner whatsoever in any firm, corporation, company or enterprise that manufactures, produces, buys, mixes, bottles, sells, stores or transports spirituous liquor. (b) Employment of Relatives. No local board shall employ in any capacity any person related to a local board member or member of any other authority that appoints members of the local board by blood to a degree of first cousin or closer, nor shall the spouse of any board member be employed by the board. (c) Employment of Board Members. No member of a local board shall be employed in any capacity by the board, nor be paid or receive any compensation of any kind from the board, except for compensation as a member thereof, which compensation has been established by the appointing authority. No local board member nor member of the local governing authority that appoints members of the local board shall be appointed as manager of a store, or manager, supervisor, director or administrator of the local system. No member of a board or other appointing authority that appoints members of a local board shall be employed in any capacity by that local board. The local board shall carry out its powers and duties as a board and shall not delegate the operation of the system to individual members. (d) Contracts Prohibited. Members of a local board, acting on behalf of the board, shall not enter into any contracts or agreements or be in any manner interested in any contract or agreement for their own benefit or in the profits thereof, whether privately, openly, singly, or jointly with another member of a local board. Local boards shall not, on behalf of the board, enter into any contract or agreement of any kind with: (1) any member of any other authority that appoints members of the local board; (2) any person who is related by blood to any member of the board to a degree of first cousin or closer; or (3) any spouse of a board member. (e) Membership on Appointing Board Prohibited. No member of the local board shall be a member of the appointing authority that appoints the local board while serving as a member of that local board. (f) Exceptions. Notwithstanding the provisions of this Section, the Commission may grant exceptions from this Rule pursuant to G.S. 18B-201 in cases of extreme hardship and where the public interest would not be placed in jeopardy. Authority G.S. 18B-201; 18B-207; 18B-700(g). SECTION .1100 - LOCAL ABC BOARDS: RELATIONSHIP WITH STATE COMMISSION 04 NCAC 02R .1103 AUDITS TO BE FORWARDED TO COMMISSION Two copies of the audit of the accounts and conditions of each local board shall be forwarded to the Commission by the auditing firm employed to make said audit. Authority G.S. 18B-205; 18B-207; 18B-702(c). PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 123 SECTION .1200 - OPENING AND DISCONTINUANCE OF STORES 04 NCAC 02R .1203 APPROVAL OF NEW STORES (a) Notice to Commission. The opening of any new ABC stores will shall not be approved by the Commission unless at least a 30 days day notice is given to the Chairman as to the intended location of such the store and until a public notice of the intention to open such ABC store has been posted for 30 days at such location. (b) Sign Requirements. In order to meet the public notice requirements of Paragraph (a) of this Rule, the local board shall post at least one sign at the proposed new store site in accordance with all the following requirements: (1) Dimensions of the sign shall total at least three nine square feet; (2) The board shall state on the sign its intention to open an ABC store on the site; site and shall state the entity and its phone number to provide public comments; (3) Lettering shall be at least four inches in height and background colors shall be of sufficient contrast, contrast and lettering shall be of sufficient size, so that the notice will shall be legible to passersby; passersby; and (4) The sign shall be posted within three 10 feet of the property line that is parallel to the public road or sidewalk that will run be in front of the proposed store, or if the proposed store will be in a an existing shopping center, the sign shall be posted on the front exterior of the existing storefront or building. Lettering on the sign shall face the public road or sidewalk, or if within an existing shopping center, the lettering shall face the exterior of the existing storefront or building. Authority G.S. 18B-207; 18B-801. SECTION .1300 - STORAGE AND DISTRIBUTION OF SPIRITUOUS LIQUORS: COMMERCIAL TRANSPORTATION 04 NCAC 02R .1301 DEFINITIONS As used in this Subchapter: (1) "Contract carrier" means the carriers operated by the contractor on behalf of the state for the purpose of distributing spirituous liquors. (2) "Distressed liquor" means liquor which is not saleable due to adulteration, or damage to the bottle, label or tax seal. (3) "Operator" or "Contractor" means the person or persons responsible for carrying out the storage and distribution of spirituous liquors at the state ABC warehouse. (4) "State ABC warehouse" means the contractor-operated facility or facilities storing spirituous liquors on behalf of the Commission pursuant to G.S. 18B-204, or, in cases of emergency, the facility or facilities operated by the state for the purpose of storing spirituous liquors. Authority G.S. 18B-101; 18B-207. SECTION .1400 - PURCHASE OF ALCOHOLIC BEVERAGES BY LOCAL BOARDS 04 NCAC 02R .1405 COMMEMORATIVE BOTTLES The Commission may shall approve local boards' orders and sales of specially designed bottles commemorating particular events, occasions, or ceremonies, provided the following requirements are complied with: provided: (1) local ABC systems procure Commission approval prior to ordering commemorative bottles; (2) advertising borne upon commemorative bottles is limited to eleemosynary commemorating historical events of the local board and non-profit, charitable enterprises only (i.e., ordinary profit-oriented businesses will not be are not permitted to advertise themselves or their products via commemorative bottles); bottles); and (3) except as otherwise expressly authorized by the Commission in the case of the smaller local boards, a local board orders a minimum of 3,000 bottles for any specific commemorative occasion; and occasion. (4) alcoholic beverages contained in the bottles are bona fide brands listed and approved by the Commission. Authority G.S. 18B-207; 18B-807. 04 NCAC .02R .1407 PAYMENT (a) Local boards shall remit full payment of the contractor's statement of account pertaining to the bailment fee within 30 days of receipt of the statement. (b) Local boards shall remit full payment of the contractor's statement of account pertaining to the bailment surcharge within 15 days of receipt of the statement. (c) Local boards shall remit full payment of the distiller's invoice within 30 days of delivery of the liquor. (d) Local boards that obtain spirituous liquor from another local board pursuant to 04 NCAC 02R .1302(e) shall remit full payment within 15 days of the transaction. Authority G.S. 18B-207; 18B-702(e); SECTION .1500 - PRICING OF SPIRITUOUS LIQUOR 04 NCAC 02R .1502 MARKUP FORMULA (a) On every delivered case of spirituous liquors, there is to shall be an added a 78.8400 percent markup, which is derived by the following formula: (x) equals the base price of the case, including freight and bailment charges.as determined by the Commission. The current markup formula shall be published on PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 124 the Commission's web site, www.ncabc.com. Thirty-six hundredths percent equals the markup allowed local boards; therefore, 1.3600(x) equals the delivered case cost plus the 36.00 percent local markup, or the "retail price," excluding all taxes. Example: .360000(x) local markup .380800(x) state tax [28% of 1.3600(x)] state tax retained locally [3.5% of 1.3600(x)] .788400(x) total markup (b) The selling price of spirituous liquor, which includes the cost of goods, local markup and all taxes, is derived by following these steps: (1) Determine the subtotal case cost by adding base case cost, freight and bailment together; (2) Multiply the subtotal case cost by 1.788400, to four decimals; (3) Add the bailment surcharge as determined by the commission; (4) Divide the result by the number of bottles in the case; (5) Add five cents ($.05) rehabilitation tax [Add one cent ($.01) for bottles 50 ml. or less]; (6) Add five cents ($.05) for the local board charge [Add one cent ($.01) for bottles 50 ml. or less]; (7) Round the result to an integer evenly divisible by five cents ($.05). The breaking point is one cent ($.01), 1 mill; the mill is underlined. (A) If cent equals $ .00, it remains $ .00; (B) If cent equals $ .05, it remains $ .05; (C) If cent equals $ .010, (if mill is 0), round downward to $ .00; (D) If cent equals $ .011, (if mill is 1-9), round upward to $ .05; (E) If cent equals $ .060, (if mill is 0), round downward to $ .05; (F) If cent equals $ .061, (if mill is 1-9), round upward to $ .10; (G) If cent equals $ .411, .42, .43, .44, round upward to $ .45; (H) If cent equals $ .461, .47, .48, .49, round upward to $ .50; (8) The result is the retail selling price per bottle. Authority G.S. 18B-203(a)(3); 18B-207; 18B-804. SECTION .1700 - RETAIL SALES OF ALCOHOLIC BEVERAGES 04 NCAC 02R .1701 REMOVAL OF BEVERAGES FROM ABC STORES (a) Spirituous liquor, either distressed or otherwise, shall not leave the custody of a local board after receipt unless: (1) The spirituous liquor is sold at retail; or (2) The liquor is returned to the state ABC warehouse.warehouse; or (3) The liquor is purchased, exchanged, or otherwise obtained by another local board as provided by 04 NCAC 02R .1302(e). Any spirituous liquor otherwise leaving the local board without being sold at retail or returned to the state ABC warehouse constitutes is nontaxpaid spirituous liquor. (b) Distressed Liquor. Distressed liquor shall be given to a public or private hospital for medicinal purposes only or destroyed and the destruction witnessed by the manager or his designed designee and a distiller representative. A Destruction of Unsalable Merchandise Report shall be completed and signed by the witnessing parties. Copies A written copy of the report shall be sent to the distiller and the Commission.a written or electronic copy shall be sent quarterly to the Commission. The original shall be retained by the local board for a period of three years. (c) No sales of alcoholic beverages shall be made to employees, board members or other retail customers on credit. This Rule shall does not prohibit purchases made by the use of credit cards where such sales are permitted by the Commission. cards. Authority G.S. 18B-806; 18B-807. 04 NCAC 02R .1708 PURCHASE-TRANSPORTATION PERMITS Employees of local boards are expressly prohibited from selling more than five liters of fortified wine or spirituous liquor or more than five liters of the two combined to a person at any one time, except as authorized under G.S. 18B-403 and G.S. 18B-404. A copy of all Purchase/Transportation Purchase-Transportation Permits shall be maintained by local boards for a period of one year following issuance. A copy of all Mixed Beverages Purchase/Transportation Purchase-Transportation Permit/Invoice forms shall be retained by the local board for a period of at least three years. Authority G.S. 18B-207; 18B-303; 18B-403; 18B-404; 18B-807. 04 NCAC 02R .1710 CREDIT CARD SALES A local board may allow customers to purchase alcoholic beverages with credit cards so long as all the following conditions are met: (1) The local board files with the Commission a written request for approval to implement the use of credit cards, and furnishes in that request the following: (a) proposed date of implementation; (b) proposed bank or institution for clearing; (c) proposed discount rate; and (d) whether instant verification equipment will be used; (2) The local board must receive written authorization from the Commission to allow credit card sales; and (3) The minimum alcoholic beverage purchase that may be charged to a credit card is twenty dollars ($20.00). Authority G.S. 18B-203(b); 18B-702(e); 18B-807. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 125 SECTION .1800 - PURCHASE-TRANSPORTATION PERMITS FOR INDIVIDUALS AND MIXED BEVERAGES PERMITTEES 04 NCAC 02R .1801 PURCHASE-TRANSPORTATION PERMITS: WINE: LIQUOR: (a) Local Board to Issue. Whenever a person desiring to purchase more than 20 liters of unfortified wine, or more than five liters of either fortified wine or spirituous liquor or five liters of the two combined, applies to a local board for a Purchase-Transportation Permit, the local board shall issue the purchaser such a permit, following the guidelines of G.S. 18B-403. (b)(a) Form. The Purchase-Transportation Permit shall be issued on a printed three-part form and shall specify the following information on the face of the permit: (1) the name and location of the store from which the purchase is to be made; (2) whether the purchase is for unfortified wine, fortified wine or spirituous liquor; (3) destination of the alcoholic beverages including name and address of location; (4) Special Occasions Permit number of a location, if alcoholic beverages are purchased for a special occasion; (5) time and date of commencement and conclusion of special occasion, if any; (6) quantity and type of alcoholic beverages purchased; (7) signature of local ABC official issuing the permit; (8) name, address and driver's license number of purchaser. The form shall contain a statement that the permit is valid for only one purchase on the date shown and will expire at 9:30 p.m. on the date of purchase and a further statement that the permit shall accompany the beverages during transport and storage and be exhibited to any law enforcement officer upon request. (c)(b) A local board issuing a Purchase-Transportation Permit shall retain one copy of the permit in its files for a period of one year and give the purchaser two copies, one of which the purchaser will shall give the store from which the alcoholic beverages are purchased. Authority G.S. 18B-207; 18B-303(a); 18B-403. 04 NCAC 02R .1802 MIXED BEVERAGE PERMIT/INVOICE FORM (a) Providing Form. A local board in a jurisdiction in which the sale of mixed beverages is lawful shall provide to a mixed beverages permittee ordering and purchasing spirituous liquor for resale in mixed beverages a Purchase-Transportation Permit/Invoice Form for every purchase of liquor by the permittee. (b) Contents of Form; Copies. Each Purchase-Transportation Permit/Invoice Form shall be printed in triplicate duplicate and shall show on the face of the form the information required by S .0502 04 NCAC 02S .0502. of these Rules. The local board shall retain one copy in its permanent records for a period of three years and shall give one copy of the permit/invoice to the mixed beverages permittee or designated employee to accompany the liquor during transport. Authority G.S. 18B-205; 18B-207; 18B-404(b). 04 NCAC 02R .1803 CABINET PERMITTEES; PURCHASE-TRANSPORTATION PERMITS (a) Approved Container Sizes; Sizes. Authorized Jurisdictions. Local ABC Boards in the following counties may sell 50 milliliter, 100 milliliter, 200 milliliter, 355 milliliter, and 375 milliliter containers of liquor to a hotel that has been issued a Guest Room Cabinet Permit: Buncombe, Cumberland, Durham, Forsyth, Gaston, Guilford, Mecklenburg, Moore and Wake. Permit. (b) Purchase-Transportation Permits. A local board receiving an order from a guest room cabinet permittee for liquor intended for resale from guest room cabinets shall provide a separate Purchase-Transportation Permit/Invoice form for the permittee in the same manner as for sales of liquor for mixed beverages permittees, as specified in Rule .1802 of this Section. The Purchase-Transportation Permit/Invoice shall contain all the information required by 4 NCAC S .0502(b) 04 NCAC 02S .0502(b), of this Chapter, and in addition, shall show on the face of the form the permittee's Guest Room Cabinet Permit number. One copy of the Purchase-Transportation Permit/Invoice form for guest room cabinet permittees shall be retained by the local board for a period of three years. (c) Minimum Orders. A local board may require a guest room cabinet permittee to make a minimum purchase of multi-bottle packages or "sleeves" packaged by the manufacturer or bottler, but may not require minimum purchases in case quantities except as authorized by Rule .1404 of this Subchapter. Authority G.S. 18B-205; 18B-207; 18B-404(d); 18B-1001. SECTION .1900 - SALES OF LIQUOR TO MIXED BEVERAGES PERMITTEES 04 NCAC 02R .1902 DESIGNATION OF STORE The Commission may authorize a local board that sells liquor to mixed beverages permittees to designate more than one store for this purpose if the volume of sales or the size of the area being served is sufficiently large enough to warrant more than one store. Authority G.S. 18B-207; 18B-404(c). TITLE 13 – DEPARTMENT OF LABOR Notice is hereby given in accordance with G.S. 150B-21.2 that the Department of Labor intends to adopt the rules cited as13 NCAC 14B .0203 and .0616; amend the rules cited as 13 NCAC 14B .0101-.0104, .0201-.0202, .0204-.0205, .0208-.0209, .0211- .0213, .0301-.0303, .0305-.0306, .0308-.0309, .0401-.0407, .0503, .0604, .0610-.0612, and .0701; and repeal the rules cited as 13 NCAC 14A .0103, .0105 and .0108. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 126 Proposed Effective Date: November 1, 2010 Public Hearing: Date: August 3, 2010 Time: 10:00 a.m. Location: 4 West Edenton Street, 2nd Floor, Room 205, Raleigh, NC 27601 Reason for Proposed Action: 13 NCAC 14A .0103, .0105, .0108; 14B .0101-.0104, .0201- .0205, .0208, .0211-.0212, .0301-.0303, .0305-.0306, .0308- .0309, .0401-.0406, .0503, .0604, .0610-.0612, .0616 - Pursuant to National Apprenticeship Act of 1977, the NC Department of Labor's Apprenticeship and Training Bureau must remain in compliance with the federal requirements promulgated by the U.S. Department of Labor in order to continue to be recognized under 29 CFR 29.13(c). The U.S. Department of Labor promulgated updates to labor standards, policies and procedures for the registration, cancellation and deregistration of apprenticeship programs, apprenticeship agreements, and administration of the national Apprenticeship Program effective December 29, 2008. States were given up to a two-year period in which to make the changes to State law, regulation and/or policy needed to come into compliance before having to apply for continued recognition under 29 CFR 29.13(c). Therefore, in order to remain in compliance with federal requirements and continue to be recognized under 29 CFR 29.13(c), it is necessary for the NC Department of Labor to repeal, amend and adopt certain rules as proposed. 13 NCAC 14B .0209, .0213, .0407, .0701 - On August 5, 2009, the NC General Assembly enacted S.L. 2009-451, which reduced funding to the NC Department of Labor's Apprenticeship Bureau by twenty-five percent. S.L. 2009-451 was signed by the Governor on August 7, 2009. In order to supplement this large budgetary loss and to avoid an operating expense shortfall by the Bureau, Section 12.1 of S.L. 2009-451 created a new section of Chapter 94, G.S. 94-12, to establish a fee for new and current apprenticeships. Effective August 15, 2009, this new statute imposed fees in the total amount of fifty dollars ($50.00) on each apprentice who is covered by a written apprenticeship agreement under Chapter 94. Subsequently, the NC Department of Labor adopted emergency rules effective August 27, 2009 and temporary rules effective October 29, 2009 in order to establish the new fees. Therefore, the proposed permanent rules are being proposed to replace the temporary rules currently in effect, including additional changes required for the program to remain in compliance with federal requirements and to continue to be recognized under 29 CFR 29.13(c). Note: Chapter 14 was re-codified effective March 15, 2010. The original citations to the proposed rules were 13 NCAC 14 .0303, .0309, .0508 and .0901. The re-codified citations are listed 13 NCAC 14B .0209, .0213, .0407 and .0701. Procedure by which a person can object to the agency on a proposed rule: Objections to the proposed rules may be submitted, in writing, to Erin T. Gould, Assistant Rulemaking Coordinator, via United States mail at the following address: 1101 Mail Service Center, Raleigh, NC 27699-1101; or via facsimile at (919) 733-4235. Objections may also be submitted during the public hearings conducted on these rules, which are noticed above. Objections shall include the specific rule citation(s) for the objectionable rule(s), the nature of the objection(s), and the complete name(s) and contact information for the individual(s) submitting the objection. Objections must be received by 5:00 p.m. on September 13, 2010. Comments may be submitted to: Erin T. Gould, 1101 Mail Service Center, Raleigh, NC 27699-1101; phone (919) 733- 7885; fax (919) 733-4235; email erin.gould@labor.nc.gov Comment period ends: September 13, 2010 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 after the adoption of the Rule. If the Rules Review Commission receives written and signed objections after the adoption of the Rule 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 919-431-3000. Fiscal Impact: State Local Substantial Economic Impact (>$3,000,000) None CHAPTER 14 - APPRENTICESHIP AND TRAINING DIVISION SUBCHAPTER 14A - RULES EFFECTIVE FEBRUARY 1, 1984 THROUGH MARCH 14, 2010 SECTION .0100 - GENERAL PROVISIONS 13 NCAC 14A .0103 APPRENTICESHIP COUNCIL (a) The apprenticeship council advises the commissioner and the director regarding board policy for the apprenticeship system in North Carolina. (b) Council members are appointed, serve their terms, vote, and are reimbursed as provided by G.S. 94-2. The director serves as secretary to the council. (c) The council meets at the call of the commissioner. The commissioner shall give 60 days' notice to council members of the time and place of meeting, unless circumstances require shorter notice. (d) Any council member may present an item for consideration by the council by submitting to the commissioner the item in brief outline form, together with any technical or statistical documents relative to the subject matter, at least 30 days prior to PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 127 the scheduled meeting, unless waived by the commissioner. The commissioner or director shall issue an agenda to council members at least five days prior to a scheduled meeting. (e) The secretary to the council shall prepare minutes of the meeting and shall provide each member of the council with a copy of the minutes. Authority G.S. 94-1; 94-2. 13 NCAC 14A .0105 CERTIFICATION Upon written request to the director by a sponsor or governmental agency or upon such occasions as agreed to by prior arrangement with a governmental agency, the director shall provide the requesting party, governmental agency, or designee of the requesting party or governmental agency an appropriate statement of certification, if the records of the division so indicate and circumstances verify the accuracy of the records. Authority G.S. 94-1; 94-2; 94-4; 94-8. 13 NCAC 14A .0108 PUBLIC ACCESS TO RECORDS (a) The director is custodian of the records of the division. (b) Any person wishing to inspect the public records of the division shall write to the director specifying with as much particularity as possible the records to be inspected and indicating the preferred times and dates for making inspection. The preferred times must be between 9:00 a.m. and 5:00 p.m. on a weekday not including holidays unless special arrangements are requested and approved by the director. (c) The director shall promptly respond to a written request, indicating the time and date the records will be available for inspection. The director shall not refuse to allow inspection of public records at a preferred time and date indicated in a written request unless the director can show good cause why the public records cannot be made available at that time and date, except that the director, at his discretion, may refuse to allow inspection of public records for a period of three working days following the director's receipt of a written request. (d) The inspection shall be conducted at the office of the division, or in such other place as the public records are kept, under the supervision of the director. Upon request of the person making inspection and payment of twenty-five cents ($.25) per page, the director shall make and provide copies of the public records. If the copies are to be certified, the director shall require additional payment of one dollar ($1.00) for each lot requiring certification. "Certification" of copies under this Rule means a statement that the copies are true copies of the public records of the division, which statement shall be personally signed by the director and embossed with the department seal. Authority G.S. 132-1; 132-2; 132-6. SUBCHAPTER 14B - RULES EFFECTIVE MARCH 15, 2010 SECTION .0100 - GENERAL PROVISIONS 13 NCAC 14B .0101 NAME: ADDRESS (a) The Apprenticeship and Training Division headquarters are located in the North Carolina Department of Labor Building, Raleigh, North Carolina. The mailing address physical address for the division and for the Director of Apprenticeship director of apprenticeship is as follows: Apprenticeship and Training Division (or Director of Apprenticeship) North Carolina Department of Labor Four West Edenton Street Raleigh, North Carolina 27601 N.C. Department of Labor Apprenticeship and Training Bureau Labor Building 4 W. Edenton Street Raleigh, N.C. 27601 (b) All correspondence shall be addressed to the following mailing address: N.C. Department of Labor Apprenticeship and Training Bureau 1101 Mail Service Center Raleigh, N.C. 27699-1101 Authority G.S. 94-1; 94-2. 13 NCAC 14B .0102 REGISTRATION AGENCY (a) The department functions as the State Apprenticeship Agency with authority to determine whether apprenticeship programs operating in this State conform to the provisions of Chapter 94 of the North Carolina General Statutes and the standards published by the U.S. Secretary of Labor, 29 C.F.R. Part 29 (February 18, 1977). (December 29, 2008). The director, under the supervision of the commissioner, administers the functions of the State Apprenticeship Agency through the division and has authority to register and deregister apprentices and apprenticeship programs and agreements. (b) As the State Apprenticeship Agency, the department has undertaken undertaken, by adoption of a State Plan Plan, the responsibility for implementing equal opportunity standards relating to apprenticeship, which conform to the regulations published by the U.S. Secretary of Labor, 29 C.F.R. Part 30 (June 12, 1978). This The equal opportunity standards for apprenticeship are contained in Section .0600 of this Subchapter. fully sets forth the requirements of the State Plan so that compliance with this Section constitutes compliance with the State Plan. The director, under the supervision of the commissioner, administers through the division the requirements of this Section. the requirements of Section .0600 through the division. Authority G.S. 94-1; 94-2; 94-4; 94-8. 13 NCAC 14B .0103 VETERANS TRAINING ASSISTANCE ALLOWANCES (a) The department has been designated, pursuant to 38 U.S.C. 1771(a), 3671(a), as the State Approving Agency for this state with authority to approve programs of apprenticeship and other on-the-job training, in accordance with 38 U.S.C. 1787, 3687, as suitable for the participation of people eligible to receive VA PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 128 training assistance allowances. allowances from the U.S. Department of Veterans Affairs. As executive head of the department, the commissioner has appointed the director to administer the functions of the State Approving Agency. (b) The director shall approve all apprenticeship and on-the-job training programs registered pursuant to Section .0200 of this Chapter Subchapter and on-the-job training programs approved pursuant to Section .0300 of this Subchapter, as suitable for the participation of eligible veterans and other people eligible persons to receive VA training assistance allowances. allowances whenever the sponsor submits to the director a written request for approval and a Designation of Certifying Official(s) form. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0104 DEFINITIONS The following definitions apply throughout this Chapter: (1) "Commissioner" means the Commissioner of Labor for the State of North Carolina. The commissioner may authorize a representative to administer the duties and responsibilities prescribed for him by this Chapter. (2) "Department" means the North Carolina Department of Labor. (3) "Director" means the Director of Apprenticeship for the State of North Carolina. The director or commissioner may authorize a representative to administer the duties and responsibilities prescribed for the director by this Chapter. (4) "Division" means the Apprenticeship and Training Division within the department. (5) "Apprentice" means a worker at least 16 years old, except when a higher minimum age is otherwise fixed by law, who is employed to learn a skilled trade in a registered apprenticeship program. (6) "Apprenticeable Occupation" means an occupation having the characteristics set forth in Rule .0201 of this Chapter. (7) "Apprenticeship Agreement" means a written agreement between an apprentice and his sponsor, which agreement satisfies the requirements of Rule .0208 of this Chapter. (8) "Apprenticeship Committee" means those persons designated by a sponsor to act for the sponsor in the administration of an apprenticeship program; "Joint Apprenticeship Committee" means an apprenticeship committee composed of an equal number of representatives of the employer(s) and of the employees represented by a bona fide collective bargaining agent(s), which committee was established to operate an apprenticeship program and enter into apprenticeship agreements; and apprenticeship committee in which a collective bargaining agent is not a participant is "unilateral" or "non-joint." (9) "Apprenticeship Program" means a program providing for the qualification, recruitment, selection, employment, and training on the job or apprentices. (10) "Apprenticeship Association" means an association of employers who operate or participate in apprenticeship or OJT programs where the programs are operated in a manner similar to the programs operated by other members of the association, the purpose of the association being to assist the members in designing, registering, operating, and participating in an apprenticeship or OJT program. (11) "Approval" means the recognition by the director and the recording with the division of an apprenticeship or OJT program, signifying that the program is suitable for participation of veterans or other people eligible to receive training allowances from the Veteran's Administration. (12) "Certification" means written acknowledgment by the director that an individual is a registered apprentice, probationary apprentice in a registered apprenticeship program, or trainee in an approved OJT program, that an employer is participating in a registered apprenticeship program or approved apprenticeship or OJT program, that a sponsor is operating a registered apprenticeship program or approved apprenticeship or OJT program, or that an apprenticeship program is registered or approved or an OJT program approved. Certification may acknowledge any combination in this Paragraph as appropriate. (13) "Completer" means an individual who has completed the normal term of elementary and secondary education but has not been awarded a diploma because of not passing the state's educational competency examination. (14) "Employer" means any person or organization employing an apprentice or trainee, whether or not the employer is a party to the apprenticeship or OJT agreement with the apprentice or trainee; "Participating Employer" means an employer which is not itself a sponsor, although a participating employer may be a member of an employers' group or association. (15) "Employers' Group or Association" means an organization composed of employers who employ apprentices or trainees, the purpose of such group being, at least in part, to act as the sponsor of an apprenticeship or OJT program. (16) "Fully Qualified Worker" means a worker who is fully qualified by experience, training, or PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 129 skills to undertake the tasks necessary for his employment. (17) "Group Program" means an apprenticeship or OJT program including or designed to include more than one employer. (18) "Journeyman" means a fully qualified worker in an apprenticeable occupation, without regard to gender. (19) "OJT Agreement" means a written agreement between a trainee and his sponsor, which agreement satisfies the requirements of Rule .0305 of this Chapter. (20) "OJT Program" means a program providing for the qualification, recruitment, selection, employment, and training on the job of people other than apprentices. (21) "Probationary Apprentice" or "Summer Apprentice" means an apprentice who complies with all the provisions of this Chapter except that neither the individual nor the individual's apprenticeship agreement is registered and the individual is not employed as a probationary apprentice for more than four months in any calendar year. (22) "Registration" means the recognition by the director and the recording with the division of an apprenticeship program, apprenticeship agreement, or apprentice, signifying that the program, agreement, or individual complies with the rules, requirements, criteria, and standards of this Chapter regarding apprenticeship. (23) "Related Instruction" means an organized and systematic form of instruction designed to provide the apprentice or trainee with knowledge of the theoretical and technical subjects related to his trade or occupation. (24) "Revision" means any substantive modification or change of the program standards of apprenticeship (including an affirmative action plan and a written description of the selection procedure), of the program standards for OJT, or of an apprenticeship or OJT agreement. (25) "Sponsor" means any person or organization endeavoring to establish and operate a registered apprenticeship program or an approved OJT program, entering into an apprenticeship or OJT agreement with an apprentice or trainee, and in whose name the program is registered. Note: A sponsor may authorize a representative, including but not limited to an apprenticeship committee, to administer the duties and responsibilities prescribed for it under this Chapter. (26) "Standards" means the program standards of apprenticeship as set forth in Rule .0202 of this Chapter or the program standards for OJT as set forth in Rule .0301 of this Chapter. (27) "Trainee" means a worker, other than an apprentice, who is employed to learn an occupation in an OJT program. (28) "VA" means the Veterans' Administration of the United States. (29) "He," "His," or "Him" means such individual as is indicated without regard to gender. In addition to the definitions contained in G.S. 94-5, the following definitions apply throughout this Subchapter: (1) "Apprenticeable Occupation" means an occupation having the characteristics set forth in Rule .0201 of this Subchapter. (2) "Apprenticeship Association" means an association of employers who operate or participate in apprenticeship or OJT programs where the programs are operated in a manner similar to the programs operated by other members of the association, the purpose of the association being to assist the members in designing, registering, operating, and participating in an apprenticeship or OJT program. (3) "Approval" means the recognition by the director and the recording with the division of an apprenticeship or OJT program, signifying that the program is suitable for participation of veterans or other people eligible to receive training allowances from the U.S. Department of Veterans Affairs. (4) "Cancellation" means the termination of the registration of a program at the request of the sponsor, or termination of an Apprenticeship Agreement at the request of the apprentice, in accordance with Section .0400 of this Subchapter. (5) "Certification" means written acknowledgment by the director that: (a) An individual is a registered apprentice in a registered apprenticeship program or a registered trainee in a registered OJT program; and (b) That an employer is participating in a registered apprenticeship program or OJT program, that a sponsor is operating a registered apprenticeship program or OJT program, or that an apprenticeship program or an OJT program is registered. Certification may acknowledge any combination in this Paragraph as appropriate. (6) "Commissioner" means the Commissioner of Labor for the State of North Carolina. The commissioner may authorize a representative to administer the duties and responsibilities prescribed by this Subchapter. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 130 (7) "Competency" means the attainment of manual, mechanical or technical skills and knowledge, as specified by an occupational standard and demonstrated by appropriate written and hands-on proficiency measurements. (8) "Completer" means an individual who has completed the normal term of elementary and secondary education but has not been awarded a diploma because of not passing the state's educational competency examination. (9) "Completion rate" means the percentage of an apprenticeship cohort who receive a certificate of apprenticeship completion within one year of the projected completion date. An apprenticeship cohort is the group of individual apprentices registered to a specific program during a one year time frame, except that a cohort does not include the apprentices whose apprenticeship agreement has been cancelled during the probationary period. (10) "Department" means the North Carolina Department of Labor. (11) "Director" means the director of apprenticeship for the State of North Carolina. The director or commissioner may authorize a representative to administer the duties and responsibilities prescribed for the director by this Subchapter. (12) "Division" means the Apprenticeship and Training Division within the department. (13) "Electronic Media" means media that utilize electronics or electromechanical energy for the end user (audience) to access the content; and includes electronic storage media, transmission media, the Internet, extranet, lease lines, dial-up lines, private networks, and the physical movement or removable/transportable electronic media and interactive distance learning. (14) "Employers' Group or Association" means an organization composed of employers who employ apprentices or trainees, the purpose of such group being, at least in part, to act as the sponsor of an apprenticeship or OJT program. (15) "Fully Qualified Worker" means a worker has attained a level of skill, abilities and competencies recognized within an industry as having mastered the skills and competencies required for the occupation. (16) "Group Program" means an apprenticeship or OJT program including or designed to include more than one employer. (17) "Journeyman" means a fully qualified worker in an apprenticeable occupation. Use of the term may also refer to a mentor, technician, specialist or other skilled worker who has documented sufficient skills and knowledge of an occupation, either through formal apprenticeship or through practical on-the-job experience and formal training. (18) "OJT Agreement" means a written agreement between a trainee and his sponsor, which agreement satisfies the requirements of Rule .0305 of this Subchapter. (19) "OJT Program" means a program providing for the qualification, recruitment, selection, employment, and training on the job of people other than apprentices. (20) "Provisional registration" means the one year initial provisional approval of newly registered apprenticeship programs that meet the required standards for program registration, after which program approval may be made permanent, continued as provisional, or rescinded following a review by the department. (21) "Quality Assurance Assessment" means a comprehensive review conducted by the department regarding all aspects of an apprenticeship program's performance, including determining if apprentices are receiving: on-the-job learning in all phases of the apprenticeable occupation; scheduled wage increases consistent with the registered standards; related instruction through appropriate curriculum and delivery systems; and that the department is receiving notification of all new registrations, cancellations, and completions as required by this Subchapter. (22) "Registration" means the recognition by the director and the recording with the division of an apprenticeship or OJT program, apprenticeship or OJT agreement, or apprentice or trainee, signifying that the program, agreement, or individual complies with the rules, requirements, criteria, and standards of this Subchapter regarding apprenticeship or OJT. (23) "Related Instruction" means an organized and systematic form of instruction designed to provide the apprentice or trainee with knowledge of the theoretical and technical subjects related to his trade or occupation. Such instruction may be given in a classroom, through occupational or industrial courses, by correspondence courses of equivalent value, through electronic media, or through other forms of self-study approved by the department. (24) "Revision" means any substantive modification or change of the program standards of apprenticeship (including an affirmative action plan and a written description of the selection procedure), of the program standards for OJT, or of an apprenticeship or OJT agreement. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 131 (25) "Standards" means the program standards of apprenticeship as set forth in Rule .0202 of this Subchapter or the program standards for OJT as set forth in Rule .0301 of this Subchapter. (26) "Technical Assistance" means guidance provided by the division staff in the development, revision, amendment, or processing of a potential or current program sponsor's Standards of Apprenticeship, Apprenticeship Agreements, or advice or consultation with a program sponsor to further compliance with this Subchapter or guidance from the department on how to remedy nonconformity with this Subchapter. (27) "Trainee" means a worker, other than an apprentice, who is employed to learn an occupation in an OJT program. (28) "Transfer" means a shift of apprenticeship registration from one program to another or from one employer within a program to another employer within that same program, where there is agreement between the apprentice and the affected apprenticeship committees or program sponsors. Authority G.S. 94-1; 94-2. SECTION .0200 - APPRENTICESHIP PROGRAMS 13 NCAC 14B .0201 CRITERIA FOR APPRENTICEABLE OCCUPATIONS An apprenticeable occupation possesses all of the following characteristics: (1) It is in a skilled trade; (2)(1) It is customarily learned in a practical way through a structured, systematic program of on-the-job supervised training; learning; (3)(2) It is clearly identified and commonly recognized by an industry; (4)(3) It involves manual, mechanical, or technical skills and knowledge which normally require not less than 2,000 hours of reasonably continuous on-the-job work experience; learning; and (5)(4) It normally requires not less than 144 hours of related instruction for every 2,000 hours of on-the- job work experience learning to supplement the on-the-job supervised training. learning. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0202 STANDARDS OF APPRENTICESHIP (a) An apprenticeship program must conform to the following minimum requirements in order to obtain and maintain registration: (1) The sponsor must operate and administer the apprenticeship program in accordance with the program standards of apprenticeship, with the provisions of this Chapter, and with all applicable state and federal statutes and regulations, including but not limited to the provisions of occupational safety and health standards and regulations; (2) The apprentice must meet the minimum qualifications for an apprentice, as provided in Rule .0207 of this Section; (3) The apprenticeship program must be in an apprenticeable occupation, as provided in Rule .0201 of this Section; (4) Every individual to be trained in the registered program must be a registered apprentice or probationary apprentice; (5) The (a) In order to be eligible for registration by the department, an apprenticeship program must shall be set forth in a written document, signed by the sponsor, document signed by the sponsor containing the terms and conditions of employment, training, and supervision of one or more apprentices in an apprenticeable occupation. The written document shall denominate the program standards of apprenticeship and which includes include the following provisions and is denominated the program standards of apprenticeship: provisions: (A)(1) The nature of the skilled trade occupation for which the apprentice is to be trained; (B)(2) The term of apprenticeship consistent with training requirements commonly recognized by the industry, where the term of apprenticeship is not less than at least 2,000 hours of reasonably continuous on-the-job work experience, learning (time-based approach), the attainment of competence (competency-based approach), or a blend of the time-based and competency based approaches (hybrid approach). unless the commissioner expressly gives written approval for fewer hours; (A) The time-based approach measures skill acquisition through the individual apprentice's completing of at least 2,000 hours of on-the-job learning as described in a work process schedule. (B) The competency-based approach measures skill acquisition through the individual apprentice's successful demonstration of acquired skills and knowledge, as verified by the program sponsor. Programs utilizing this approach shall still require apprentices to complete an on-the-job learning component. The program standards shall address how on-the-job learning will be integrated into the program, describe competencies, and identify an appropriate means of PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 132 testing and evaluation for such competencies. (C) The hybrid approach measures the individual apprentice's skill acquisition through a combination of specified minimum number of hours of on-the-job learning and the successful demonstration of competency as described in a work process schedule. (D) The determination of the appropriate approach for the program standards is made by the program sponsor, subject to approval by the department of the determination as appropriate to the apprenticeable occupation for which the program standards are registered. (C)(3) An outline of the work processes in which the apprentice will receive supervised work experience and training on the job, and the approximate allocation of time to be spent in each major process; (D)(4) An outline of the related instruction to be provided the apprentice, normally not less than 144 hours for every 2,000 hours of on-the-job work experience or according to the same proportion for programs of fewer or more hours and a provision that the sponsor will promptly notify the director whenever an apprentice completes a course of study indicated in the outline of related instruction; apprentice in technical subjects related to the occupation. A minimum of 144 hours for each year of apprenticeship is recommended. This instruction may be accomplished through media such as classroom, occupational or industry courses, electronic media, or other instruction approved by the department. Every apprenticeship instructor shall: (A) Meet one of the following requirements: (i) Be qualified as a vocational-technical instructor through the N.C. Department of Public Instruction, the N.C. Community College System or an accredited college or university in the state; or (ii) Be a subject matter expert. For purposes of this Rule, a subject matter expert is an individual who is recognized within an industry as having expertise in a specific occupation, such as a journeyman; and (B) Have training in teaching techniques and adult learning styles, which may occur before or after the apprenticeship instructor has started to provide the related technical instruction. (E)(5) A schedule of progressively increasing wages to be paid the apprentice consistent with the skill required and based upon the prevailing journeyman rate for the trade and geographic region: (A) The entry wage for apprentices must shall be no less than the amount prescribed by the State Minimum Wage Law (G.S. 95-25.1 et seq.), unless a higher wage is required by the Fair Labor Standards Act of 1938, as amended, by other applicable federal law, or by collective bargaining agreement; (B) Unless otherwise established by collective bargaining agreement, the entry wage for apprentices shall normally be no less than 50 percent and shall normally reach at least 85 percent of the journeyman rate by the last period of training; (F) A statement whether the required related instruction will be compensated; (G) A statement that the apprentices will be eligible for and will be paid overtime under the same rules or policies as apply to journeymen employed in the same trade by the apprentices' employer; (H)(6) A provision requiring periodic review and evaluation of the apprentice's progress in job performance and related instruction and instruction, identifying the person(s) responsible for such review, and further requiring maintenance of appropriate progress records; (I)(7) An assurance that qualified training personnel and adequate supervision on the job will be provided; (J)(8) A provision requiring that the ratio of apprentices to journeymen will not exceed two to one at each job site, work force, department, or plant, except as follows: (i)(A) In the building and construction trades, the ratio of apprentices to journeymen shall not exceed one to one at each job site, work force, department, or plant; (ii)(B) No such specific ratios are required where expressly prohibited or otherwise provided for by an applicable collective bargaining agreement; (K)(9) A provision requiring a period of probation of not more than 500 hours of employment and PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 133 instruction extending over not more than four months, 25% of the length of the program, or one year, whichever is shorter, unless the director approves a longer period at the request of a joint apprenticeship committee, during which probationary period either party to the apprenticeship agreement may cause the agreement to be de-registered by the director upon the request in writing of either party; A provision requiring a probationary period not to exceed 25 percent of the length of the program, or one year, whichever is shorter, with full credit given for such period toward completion of apprenticeship. During the probationary period, either party may unilaterally submit a written request to the director requesting that the agreement be deregistered. Cancellation during the probationary period will not have an adverse impact on the sponsor's completion rate. (L) A provision requiring that after the probationary period an apprenticeship agreement can be deregistered by the director only upon written request of the apprentice, written request showing mutual agreement of the parties, written request of the sponsor showing reasonable cause, or upon deregistration of the apprenticeship program. Where a program is deregistered, apprenticeship agreements which are therefore also subject to being deregistered shall be placed in a status of "inactive" for a period of not more than one year, during which time the party or parties that initiated the deregistration of the program will exercise due diligence in seeking to place said apprentices in employment that will reactivate such agreements and provide the apprentice with the opportunity to complete his apprenticeship training; (M)(10) An assurance that adequate and safe equipment and facilities for training and supervision will be provided and that apprentices will be provided safety training on the job and in related instruction; (N)(11) A provision that an apprentice will be given credit toward completion of on-the-job training, including a reduction of the term of the apprenticeship and placement on the schedule of wages at a commensurate level, for previously acquired experience, training, or skills, such reduction and placement to be determined by the sponsor with the approval of the director; The granting of advanced standing or credit for demonstrated competency, acquired experience, training, or skills for all applicants equally, with commensurate wages for any progression step so granted; (O)(12) A statement that an employer who is unable to fulfill its obligation under the apprenticeship agreement may, with the approval of the director, transfer the agreement to another employer under the same program who agrees to assume the obligations of the agreement, if both the apprentice and the sponsor both sponsors consent to the transfer; transfer and comply with the following provisions: (A) The transferring apprentice shall be provided a transcript of related instruction and on-the-job learning by the program sponsor; (B) The transfer shall be to the same occupation; and (C) A new apprenticeship agreement shall be executed when the transfer is to occur between program sponsors. (P)(13) A provision that the sponsor will promptly submit to the director any proposed revision of the apprenticeship program or agreement for the director's approval; for the registration, cancellation and deregistration of the program, and for the submission of any program standard modification or amendment to the department for approval; (Q)(14) A provision that the sponsor will promptly notify the director of individuals who have signed an apprenticeship agreement, of apprentices who have left the program before completion, and of apprentices who have successfully completed an apprenticeship and that the sponsor will request from the director a certificate of completion for apprentices who have successfully completed an apprenticeship; for the registration, modification and amendment of apprenticeship agreements, and for giving notice to the department of transfers, suspensions, and cancellations of apprenticeship agreements, including a statement of the reasons therefore, and of persons who have successfully completed apprenticeship programs; (R)(15) A provision that the sponsor will maintain all records of an apprenticeship program including but not limited to payroll records, for a period of five years and will make them available for review to department personnel or their authorized representative at the request of the department personnel or, whenever the records pertain to a program with apprentices who have received or are receiving VA training allowances, to VA personnel upon their request; the location of the records shall be specified; PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 134 (S)(16) A provision that the sponsor will notify in writing the director and the VA Regional Office in writing whenever an apprentice receiving a VA training allowance is paid wages in an amount equal to or more than the amount paid to journeymen in the trade and geographic region, as established in Part (E) of by Subparagraph (a)(5) of this Rule; (T)(17) A statement of the titles or names and addresses of Contact information, including name, title, address, telephone number and e-mail address, if appropriate, of the appropriate people with authority under the program to receive, process, and resolve complaints arising under the apprenticeship program, including the person(s) or organization designated by the sponsor, if any, and the director as head of the State Apprenticeship Agency, complaints, and the appropriate person(s) or organization for complaints concerning equal employment opportunity in apprenticeship (Section .0600 of this Chapter); Subchapter); (U)(18) A statement of the minimum qualifications for apprentices which the sponsor may require in addition to the minimum qualifications set forth in Rule .0207 of this Section. Subchapter. This statement may be satisfied by submission of the written description of the sponsor's selection procedure, as required under Part (W) of (a)(5) Subparagraph (a)(20) of this Rule, if the written description includes all additional minimum requirements; (V)(19) The following pledge: "The recruitment, selection, employment, and training of apprentices during their apprenticeship shall be without discrimination because of race, color, religion, national origin, or sex. The sponsor will take affirmative action to provide equal opportunity in apprenticeship and will operate the apprenticeship program as required by Section .0600 of 13 NCAC 14"; of this Subchapter and Title 29 of the Code of Federal Regulations, Part 30." (W)(20) The sponsor's affirmative action plan and written description of its selection procedure, unless exempted, as provided in Section .0600 of this Chapter; Subchapter; (X)(21) An assurance that all apprentices in the program will be provided the same training and instruction and will in all respects be treated the same under the program; (Y)(22) A provision that each apprentice in the apprenticeship program will be a party to a registered apprenticeship agreement meeting the requirements of Rule .0208 of this Section Subchapter, and each probationary apprentice will be a party to an apprenticeship agreement meeting the requirements of that rule and that the sponsor will provide each apprentice or probationary apprentice with a copy of his the agreement. (b) The program standards of apprenticeship must shall constitute a statement of the actual program operating or to be operated and not a statement of the goals, objectives, or aspirations of the sponsor, except for the equal opportunity goals and timetables. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0203 PROGRAM PERFORMANCE STANDARDS (a) Programs shall have at least one registered apprentice in order to retain registration, except for the following periods of time which may not exceed one year: (1) Between the date when a program is registered and the date of registration for its first apprentice(s); or (2) Between the date that a program graduates an apprentice and the date of registration for the next apprentice(s) in the program. (b) The department shall evaluate performance of registered apprenticeship programs as follows: (1) The tools and factors to be used shall include: (A) Quality assurance assessments; (B) Equal Employment Opportunity (EEO) Compliance Reviews; and (C) Completion rates. (2) Any additional tools and factors used by the department in evaluating program performance shall adhere to the goals and policies of the department articulated in this Subchapter and in guidance issued by the U.S. Department of Labor's Office of Apprenticeship. (c) In order to evaluate completion rates, the department shall review a program's completion rates in comparison to the national average for completion rates. Based on the review, the department shall provide technical assistance to programs with completion rates lower than the national average. (d) Cancellation of apprenticeship agreements during the probationary period will not have an adverse impact on a sponsor's completion rate. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0204 REGISTRATION REQUEST PROCEDURE (a) Upon request by a prospective sponsor to an official of the department, or upon the initiative of an official of the department, a representative of the division shall arrange, or upon the initiative of an official of the department may arrange, arrange a meeting or series of meetings between a representative of the division and the prospective sponsor for the purpose of discussing the requirements for registration and the procedures necessary to register and operate an apprenticeship program. (b) If the prospective sponsor elects to request registration of an apprenticeship program, it shall complete and submit to the PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 135 director the forms required by the director, including but not limited to the following: (1) A written request, signed by the prospective sponsor, for registration of an apprenticeship program meeting the requirements of Rule .0202 of this Subchapter; (2) An original of the program standards of apprenticeship required under Rule .0202(a)(4) of this Subchapter, including an affirmative action plan according to Rule .0607 of this Chapter Subchapter and a written description of the selection procedure according to Rule .0608 of this Chapter, Subchapter, unless exempted; (3) Any written agreement to comply with the program standards by a participating employer as provided by Rule .0106(b) of this Subchapter; and (4) One of the following: (A) A written acknowledgment of union agreement or "no objection" to the registration when the program standards, collective bargaining agreement, or other instrument provides for participation by a union in any manner in the operation of the substantive matters of the apprenticeship program and such participation is exercised; or (B) A written acknowledgment of a union's receipt of a copy of the completed application forms when the union represents employees in the trade which is an objective of the apprenticeship training, unless an acknowledgment under this Part preceding is required; or (C) A signed statement by the sponsor that no unions represent employees of the sponsor or participating employers in the trade which is an objective of the apprenticeship training. (c) If the director has received the completed application forms in proper form and has determined that the requirements for an apprenticeship program, as set forth in Rule .0202 of this Subchapter, are met, the program shall be approved and registered with the division. The sponsor shall be notified in writing of the registration. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0205 ELIGIBILITY AND PROCEDURE FOR REGISTRATION OF AN APPRENTICESHIP PROGRAM (a) Upon receipt by the director of the forms required from a prospective sponsor for the registration of an apprenticeship program, the director shall review the forms to determine whether they are complete and in conformance with the requirements for apprenticeship set forth in Rule .0202 of this Chapter and shall make such investigation as he deems necessary. For the purposes of this Rule, receipt by a representative of the division does not constitute receipt by the director. (b) If the director finds that the forms are complete and the proposed apprenticeship program conforms to the requirements for apprenticeship, he shall approve the request for registration, subject to Paragraph (c) of this Rule. (c) When a union has been furnished a copy of the request according to Part (b)(4)(B) of Rule .0204 of this Section, the director shall not approve a request for registration until 30 days after receipt of the completed application forms in order that the union may comment upon the request. When notice to a union is required but not provided, the director shall not approve the request until 30 days after notice is provided. (d) After the director has approved a request for registration, he shall cause the apprenticeship program to be recorded by the division, which constitutes registration of the program, and shall provide the sponsor with evidence of the registration in the form of a certificate or other written indicia. (e) Notwithstanding any other provision of this Chapter, an apprenticeship program jointly sponsored on a multistate basis by employers and unions in an industry other than the building and construction industry and registered pursuant to the requirements of the federal Bureau of Apprenticeship and Training by the Bureau or any recognized state apprenticeship agency or council shall be accorded registration by the director upon the sponsor's submission to the director of a written request together with satisfactory documentation of registration and a copy of the program standards of apprenticeship. An apprenticeship program registered by the division under this Rule is subject to all other requirements of this Chapter, including but not limited to the registration of apprenticeship agreements and individuals, compliance with equal opportunity provisions, procedures for processing complaints, compliance reviews, and de-registration. (a) Eligibility for registration of an apprenticeship program is conditioned upon a program's conformity with the apprenticeship program standards published in this Subchapter. For a program to be determined by the director as being in conformity with this Subchapter, the program shall apply for registration and be registered with the department. The determination by the director that the program meets the apprenticeship program standards is effectuated only through such registration. (b) Only an apprenticeship program or agreement that meets the following criteria is eligible for registration: (1) It is in conformity with the requirements of Chapter 94 of the North Carolina General Statutes and the rules of this Subchapter, and the training is in an apprenticeable occupation having the characteristics set forth in 13 NCAC 14B .0203; and (2) It is in conformity with the requirements of the department's regulation on Equal Employment Opportunity in Apprenticeship and Training in Section .0600 of this Subchapter. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 136 (c) Except as provided under Paragraph (d) of this Rule, apprentices shall be individually registered under a registered program. Such individual registration may be affected: (1) By filing copies of each individual apprenticeship agreement with the department; or (2) Subject to prior approval by the department, by filing a master copy of such agreement followed by a listing of the name, and other required data, of each individual when apprenticed. (d) The names of persons in probationary employment as an apprentice under an apprenticeship program registered by the department, if not individually registered under such program, shall be submitted within 45 days of employment to the department for certification to establish the apprentice as eligible for such probationary employment. (e) The department shall be notified within 45 days of persons who have successfully completed apprenticeship programs; and of transfers, suspensions, and cancellations of apprenticeship agreements and a statement of the reasons therefore. (f) Operating apprenticeship programs, when registered by the department, are accorded registration evidenced by a Certificate of Registration. Programs registered by the department shall be accorded registration evidenced by a similar certificate or other written indicia. (g) Applications for new programs that the department determines meet the required standards for program registration shall be given provisional registration for a period of one year. The department shall review all new programs for quality and for conformity with the requirements of Chapter 94 of the North Carolina General Statutes and the rules of this Subchapter at the end of the first year after registration. At that time: (1) a program that conforms with the requirements may either be made permanent, or may continue to be provisionally registered through the first full training cycle. (2) a program not in operation or not conforming to the requirements during the provisional registration period shall be recommended for deregistration procedures. (h) The department shall review all programs for quality and for conformity with the requirements of Chapter 94 of the North Carolina General Statutes and the rules of this Subchapter at the end of the first full training cycle. A satisfactory review of a provisionally registered program will result in conversion of provisional registration to permanent registration. Subsequent reviews shall be conducted no less frequently than every five years. Programs not in operation or not conforming to the regulations shall be recommended for deregistration procedures. (i) Any sponsor proposals or applications for modification(s) or change(s) to registered programs or standards shall be submitted to the department in accordance with Rule .0211 of this Subchapter. (j) Under a program proposed for registration by an employer or employers' association, where the standards, collective bargaining agreement or other instrument provides for participation by a union in any manner in the operation of the substantive matters of the apprenticeship program, and such participation is exercised, written acknowledgement of union agreement or no objection to the registration is required. Where no such participation is evidenced and practiced, the employer or employers' association shall simultaneously furnish to an existing union, which is the collective bargaining agent of the employees to be trained, a copy of its application for registration and of the apprenticeship program. The department shall provide for receipt of union comments, if any, within 45 days before final action on the application for registration. (k) Where the employees to be trained have no collective bargaining agreement, an apprenticeship program may be proposed for registration by an employer or group of employers, or an employer association. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0208 APPRENTICESHIP AGREEMENT An In addition to the requirements of G.S. 94-7 and G.S. 94-8, an apprenticeship agreement shall contain the following in order to be registered: (1) The contact information, including names, addresses, telephone numbers, and e-mail addresses, if appropriate, and signatures of the contracting parties and, if the apprentice is a minor, the signature of his parent or guardian; of the program sponsor or employer, and their signatures; (2) The name and signature of the apprentice, and if the apprentice is a minor, the signature of the apprentice's parent or guardian; (2) The date of birth of the apprentice; (3) The name, address, and telephone number of the registration agency; (4) The dates on which the apprenticeship will begin and end; (5) The schedule of wages for the apprentice, either expressly or by specific reference to the apprentice's place on the schedule set forth in the program standards of apprenticeship; (6) The particular craft for which the apprentice is to be trained; (7)(3) The number of hours to be spent by the apprentice in work on the job, the number of hours to be spent in related instruction, and the rate or amount of compensation, if any, for time spent in related instruction; A statement showing: (a) The number of hours to be spent by the apprentice in work on the job in a time-based program; or a description of the skill sets to be attained by completion of a competence-based program, including the on-the-job learning component; or the minimum number of hours to be spent by the apprentice and a description of the skill sets to be attained by completion of a hybrid program; and PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 137 (b) The number of hours to be spent in related instruction in technical subjects related to the occupation, which is recommended to be not less than 144 hours per year; (8)(4) The number of hours of probation; Statements providing that the apprenticeship agreement may be de-registered in accordance with Rule .0407 of this Subchapter; (9)(5) A statement that a complaint procedure is provided, that details of the procedure are set out in the program standards of apprenticeship, and that the program standards may be obtained or inspected in a certain (specified) location; Contact information, including name, address, and e-mail if appropriate, of the appropriate authority designated under the program to receive, process and resolve controversies or differences arising out of the apprenticeship agreement when the controversies or differences cannot be adjusted locally or resolved in accordance with the established procedure or applicable collective bargaining provisions; (10)(6) A statement that the apprentice will be afforded equal opportunity in employment and training without discrimination because of race, color, religion, national origin, or sex; (11)(7) The A reference incorporating as part of the agreement the program standards of apprenticeship, either directly or by reference, apprenticeship as they exist on the date the agreement is executed and as they may be revised or amended during the period of the agreement; agreement; and (12) Such further, specific information as may be necessary to apply the relatively broad provisions of the program standards of apprenticeship to the particular situation of the apprentice in the apprenticeship program; and (13)(8) Such other terms of agreement between the parties as are consistent with these Rules and the purposes of apprenticeship in general. Authority G.S. 94-2; 94-4; 94-7; 94-8. 13 NCAC 14B .0209 REGISTRATION OF APPRENTICE AND AGREEMENT (a) A sponsor or an individual, or a person or organization on behalf of the individual, shall request that an apprenticeship agreement between the individual and his sponsor be registered by submitting to the director a copy of the apprenticeship agreement. (b) If the director finds that: If the following requirements are met, then the director shall approve the apprenticeship agreement and cause it to be recorded by the division, which constitutes registration of the agreement: (1) The agreement is complete and applies to a registered apprenticeship program; (2) The agreement meets the requirements of Rule .0208 of this Chapter; Subchapter; and (3) The individual meets the minimum qualifications for an apprentice; then apprentice. The director shall approve the apprenticeship agreement and cause it to be recorded by the division, which constitutes registration of the agreement. (c) If the director approves the apprenticeship agreement, he shall also and simultaneously cause the name of the individual who is to be trained under the agreement to be recorded by the division, which constitutes registration of the individual. (d) The sponsor shall submit to the director the apprenticeship agreement of a probationary apprentice, although the agreement will not be registered. (e)(d) All apprenticeship registrations are subject to a registration fee and an annual fee in accordance with G.S. 94-12 and Rule .0701 of this Chapter. Subchapter. Authority G.S. 94-1; 94-2; 94-4; 94-8; 94-12. 13 NCAC 14B .0211 REVISION OF APPRENTICESHIP STANDARDS OR AGREEMENT (a) Any proposed revision of program standards of apprenticeship or an apprenticeship agreement shall be submitted in writing by the sponsor to the director for his approval. (b) The revision becomes effective 90 days after the director's receipt of the sponsor's proposed revision unless the director, in writing, either approves or disallows the revision within that time, stating the reason(s) for disallowance. time. The director may disallow part of the proposed revision and allow part, but in such event the sponsor may withdraw the entire proposed revision. If the revision is not approved, the director shall notify the sponsor of the reasons for the disapproval, and provide the sponsor with technical assistance. (c) The sponsor may appeal the director's decision to disallow a proposed revision or part of a proposed revision in accordance with Chapter 150B of the North Carolina General Statutes and 13 NCAC 1B within 30 days of the sponsor's receipt of the director's decision. (d) When a revision becomes effective, the division shall record the revision so that it amends the program standards or agreement recorded by the division. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0212 TERMINATION AND EXTENSION OF AGREEMENTS (a) An apprenticeship agreement terminates when the period of the apprenticeship identified by the terms of the agreement (see Rule .0208(4) of this Chapter) expires. (b) The agreement may be extended for a specified period by agreement of the apprentice and sponsor with the approval of the director. The sponsor shall obtain the director's approval of an extension in the manner provided in Rule .0211 of this Section Subchapter for revision of program standards of apprenticeship or an apprenticeship agreement, except that an extension becomes fully effective within 30 days of the director's receipt of PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 138 the proposed extension unless earlier approved or disallowed. the director, in writing, disallows the revision within that time, stating the reason(s) for disallowance. Note: The director's approval of an extension does not indicate whether the extension will affect the apprentice's eligibility for a VA training allowance; in some cases an extension, although approved, may disqualify an apprentice for VA purposes. (c) Nothing in this Rule shall be construed to prevent a sponsor and an individual meeting the minimum qualifications of an apprentice, as set forth in Rule .0207 of this Chapter, Subchapter from executing an apprenticeship agreement. Authority G.S. 94-1; 94-2; 94-4; 94-6. 13 NCAC 14B .0213 CERTIFICATION OR CERTIFICATE OF COMPLETION (a) Upon notification from a sponsor that an individual has completed his apprenticeship in the sponsor's registered apprenticeship program, the director shall issue to the individual, or to the sponsor for the individual, a certificate of completion or other written indicia signifying that the individual has completed his training and instruction in a registered apprenticeship program in a certain, identified trade and the date the training was completed. (b) Notwithstanding Paragraph (a) of this Rule, the director shall not issue the certificate of completion if he decides upon satisfactory evidence that the apprentice is not fully trained because he did not complete the apprenticeship or because the apprenticeship program did not comply with the rules of this Chapter. Subchapter. In addition, the director shall not issue the certificate of completion if he determines that the fees authorized by G.S. 94-12 and Rule .0701 of this Chapter Subchapter have not been paid. The director shall promptly give written notification to the sponsor and individual of his decision not to issue the certificate of completion and the reason(s) therefor. for the decision. (c) The sponsor or individual may appeal the director's decision within 30 days or receipt of notification in accordance with Article 3 of Chapter 150B of the N.C. North Carolina General Statutes. (d) Upon request of a sponsor, the director may issue an honorary certificate of completion to recognize an individual who by training and experience was fully qualified as a journeyman prior to the registration of the sponsor's apprenticeship program. Authority G.S. 94-1; 94-2; 94-4; 94-12. SECTION .0300 - ON-THE-JOB TRAINING (OJT) PROGRAMS 13 NCAC 14B .0301 STANDARDS FOR OJT PROGRAMS (a) The In order to be eligible for registration by the department, an OJT program must shall be set forth in a written document, signed by the sponsor, document signed by the sponsor containing the terms and conditions of employment, training, and supervision of one or more trainees in the trainable occupation, which includes the following provisions and is denominated the programs program standards for OJT: (1) The nature of the occupation which is the objective of the training; (2) The term of the course of training consistent with the criteria for OJT programs; programs where the term of training is for a period of not less than six months (1,000 hours) and not more than two years (4,000 hours) of reasonably continuous work experience. The length of the program shall not be longer than the time customarily required by training establishments in the community, or if there are no other training establishments in the community, then not longer than is reasonably necessary, to provide a trainee with the skills, knowledge, technical information, and other facts which the trainee needs to learn in order to become competent in the occupation which is the objective of the training; (3) An outline of the work processes in which the trainees are to receive supervised work experience and training on the job,and the approximate allocation of time to be spent in each major process, and the specific location of the training site(s); (4) An outline of related instruction to be provided the trainees, if any is to be provided; required; (5) A schedule of progressively increasing wages to be paid the trainees, established by the sponsor with the approval of the director as follows: (A) The prevailing rate in the geographic area for fully qualified workers in the occupation which is the objective of the training will be determined; (B) A rate for fully qualified workers applicable to the OJT program will be established based upon the determination made in Part (a)(5)(A) of this Rule; (C) The trainees' wages will be no less than 50 percent of the applicable rate for fully qualified workers established in Part (a)(5)(B) of this Rule and will increase in regular periodic increments until, not later than the last full month of the training period, they are at least 85 percent of the applicable rate; provided that in any event the wages are no less than the applicable state or federal minimum wage; (6) A statement whether the related instruction, if any, is to be compensated; (7)(6) An assurance that all trainees in the program, regardless of whether they receive VA training allowances, will be provided the same training and instruction and will in all respects be PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 139 treated the same under the program, in accordance with the criteria for OJT programs; (8)(7) A provision requiring periodic review and evaluation of the trainees' progress in job performance and related instruction, if any, and identifying the person(s) responsible for evaluation; such review, and further requiring maintenance of progress records; (9)(8) A provision requiring that the ratio of trainees to fully qualified workers will not exceed two to one at each job site, work force, department, or plant; plant except as follows: (A) In the building and construction trades, the ratio of trainees to fully qualified workers shall not exceed one to one at each job site, work force, department, or plant; (B) No such specific ratios are required where expressly prohibited or otherwise provided for by an applicable collective bargaining agreement; (10)(9) A provision requiring a period of probation of not more than 500 hours of on-the-job training, during which probationary period either party to the OJT agreement may cause the agreement to be terminated by the director upon the request in writing of either party; A provision requiring a probationary period not to exceed 25 percent of the length of the program, or one year, whichever is shorter, with full credit given for such period toward completion of OJT. During the probationary period, either party may unilaterally submit a written request to the director requesting that the agreement be de-registered. (11) A provision requiring that after the probationary period an OJT agreement can be terminated by the director only upon written request of the trainee, upon mutual agreement of the parties, for reasonable cause, or upon the withdrawal of approval from the program; (12)(10) An assurance that trainees will be provided safety training and instruction as needed to prevent injury to themselves and other workers; adequate and safe equipment and facilities for training and supervision will be provided and that trainees will be provided safe training on the job and in any related instruction; (13)(11) A provision that trainees will be given credit toward the completion of on-the-job training, including a reduction of the term of the OJT course of training and placement on the schedule of wages at a commensurate level, for previously acquired experience, training, or skills, such reduction and placement to be determined by the sponsor with the approval of the director; The granting of advanced standing or credit for demonstrated competence, acquired experience, training, or skills for all applicants equally, with commensurate wages for any progression step so granted; (14)(12) A statement that an employer who is unable to fulfill its obligation under the OJT agreement may, with the written approval of the director, transfer the agreement to another employer under the same program who agrees to assume the obligations of the agreement, if both the trainee and the sponsor consent to the transfer; transfer and comply with the following provisions: (A) The transferring trainee will be provided a transcript of related instruction, if applicable, and on-the-job training by the program sponsor; (B) The transfer shall be to the same occupation; and (C) A new OJT agreement shall be executed when the transfer is to occur between program sponsors. (15)(13) A provision that the sponsor will promptly submit to the director any proposed revision to the OJT program for the director's approval; for the registration and cancellation of the program, and for the submission of any program standard modification or amendment to the department for approval; (16)(14) A provision that the sponsor will promptly notify the director of individuals who have signed an OJT agreement, of trainees who have left the program before completion, and of trainees who have successfully completed the OJT course of training and that the sponsor will request from the director a certificate of completion for trainees who have successfully completed the OJT course of training; for the registration, modification and amendment of OJT agreements, and for giving notice to the department of transfers, suspensions and cancellations of OJT agreements, including a statement of the reasons therefore, and of persons who have successfully completed OJT programs; (17)(15) A provision that the sponsor will maintain all records of the OJT program, including but not limited to payroll records, for a period of three five years and shall make them available for review to department personnel or their authorized representative upon the request of the department personnel or, whenever the records pertain to a program with trainees who have received or are receiving VA training allowances, to VA personnel upon their request; the location of the records shall be specified; PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 140 (18)(16) A provision that the sponsor will notify in writing the director and the VA Regional Office in writing whenever a trainee receiving a VA training allowance is paid wages in an amount equal to or more than the applicable rate for fully qualified workers as established in the program standards for OJT; Subparagraph (a)(5) of this Rule; (19)(17) A statement of the names of titles and addresses of Contact information, including name, title, address, telephone number and e-mail address, if appropriate of the appropriate people with authority under the program to receive, process, and resolve complaints arising under the OJT agreement, including both the person(s) or organization designated by the sponsor, if any, and the director as administrator of the State Approving Agency; complaints; (20)(18) A statement of the minimum qualifications for trainees which the sponsor may require; (21)(19) An assurance that the OJT program complies with the criteria set forth in Rule .0403 of this Section; Subchapter; (22)(20) A pledge that all trainees will be accorded equal opportunity in all phases of OJT employment and training without discrimination because of race, color, religion, national origin, or sex; The following pledge: "The recruitment, selection, employment, and training of trainees during OJT shall be without discrimination because of race, color, religion, national origin, or sex;" and (23)(22) A provision that each trainee in the OJT program will be a party to an OJT agreement meeting the requirements of Rule .0305 of this Section Subchapter, and that the sponsor will provide each trainee with a copy of the agreement. (b) The program standards for OJT must shall constitute a statement of the actual program operating or to be operated and not a statement of the goals, objectives, or aspirations of the sponsor. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0302 REGISTRATION REQUEST PROCEDURE FOR OJT PROGRAMS (a) Upon request by a prospective sponsor to an official of the department, or upon the initiative of an official of the department, a representative of the division shall arrange, or on the initiative of an official of the department may arrange, arrange a meeting or series of meetings between a representative of the division and the prospective sponsor for the purpose of discussing the relevant criteria and standards and the procedures necessary to obtain approval register and to operate an approved OJT program. (b) If the prospective sponsor elects to request that a training program be approved, registered, it shall complete and submit to the director the forms required by the director, including the following: (1) A written request request, signed by the prospective sponsor, for approval registration of a training program; program meeting the requirements of Rule .0301 of this Subchapter; (2) An original copy of the program standards for OJT; (3) Any written agreement to comply with the program standards by a participating employer as provided by Rule .0106(b) of this Chapter; Subchapter; and (4) A Designation of Certifying Official(s) form. (c) If the director has received the completed application forms in proper form and has determined that the requirements for an OJT program, as set forth in Rule .0303 of this Section, Subchapter, are met, he shall approve the program, cause the approval to be recorded by the division, and acknowledge the approval in writing to the sponsor. the program shall be registered with the division. The sponsor shall be notified in writing of the registration. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0303 ELIGIBILITY AND PROCEDURE FOR REGISTRATION OF OJT PROGRAMS The director may approve register an OJT program only when: (1) The sponsor offering the training has submitted to the director the forms required in Rule .0302(b) of this Section; Subchapter; and (2) The director finds upon investigation that the following criteria are met: (a) The nature of the occupation which is the objective of the training is one in which progression and appointment to the next higher classification are based upon skills learned through organized and supervised training on the job and not upon such factors as length of service and normal turnover; (b) The training content of the program is adequate to qualify the trainee for a job in the occupation which is the objective of the training; (c) The occupation which is the objective of the training normally requires full-time training for a period of not less than six months and not more than two years, which the director shall interpret as not less than 1,000 hours and not more than 4,000 hours of reasonably continuous work experience; (d) The length of the program is not longer than the time customarily required by training establishments in the community -- or if there are no PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 141 other training establishments in the community, then not longer than is reasonably necessary -- to provide a trainee with the skills, knowledge, technical information, and other facts which the trainee needs to learn in order to become competent in the occupation which is the objective of the training; (e) Related instruction is provided for the individual trainee(s) who may need it; (f)(c) The sponsor provides adequate space, equipment, instructional material, and instructor personnel for safe and satisfactory on-the-job training; (g) The sponsor has the capacity to keep and keeps adequate records for at least three years showing the progress of each trainee in the OJT program; (h)(d) The OJT program does not provide training for people already qualified by training and experience for the occupation which is the objective of the training; (i)(e) Each trainee's wages are paid according to the schedule set out in the program standards for OJT but in no event are less than the applicable state or federal minimum wage; (j)(f) There is a reasonable certainty that a job in the occupation which is the objective of the training will be available to the trainee at the end of the OJT course of training; and (k) All trainees in the OJT program, regardless of whether they receive a VA training allowance, are in all respects treated the same under the program. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0305 OJT AGREEMENT An OJT agreement shall contain the following: following in order to be registered: (1) The contact information, including names, addresses, telephone numbers, and e-mail addresses, if appropriate, signatures of the contracting parties and, if the trainee is a minor, the signature of his parent or guardian; of the program sponsor or employer, and their signatures; (2) The date of birth of the trainee; (3) The name and signature of the trainee, and if the trainee is a minor, the signature of the trainee's parent or guardian; (3) The name, address, and telephone number of the division, as the State Approving Agency; (4) The dates on which the OJT course of training will begin and end; (5)(4) The particular nature of the occupation which is the objective of the trainee's training; (6)(5) The schedule of wages for the trainee, either expressly or by specific reference to the trainee's place on the schedule set forth in the program standards for OJT; (7)(6) The number of hours to be spent by the trainee in work on the job, job and the number of hours to be spent in related instruction, if any, and the rate or amount of compensation, if any, for related instruction; (8)(7) The number of hours of probation; Statements providing that the OJT agreement may be cancelled in accordance with Rule .0407 of this Subchapter. (9)(8) A statement that a complaint procedure is provided, that details of the procedure are set out in the program standards for OJT, and that the program standards may be obtained or inspected in a certain (specified) location; Contact information, including name, address, and e-mail if appropriate, of the appropriate authority designated under the program to receive, process and resolve controversies or differences arising out of the OJT agreement when the controversies cannot be adjusted or resolved in accordance with the established procedure; (10)(9) A statement that the trainee will be afforded equal opportunity in employment and training without discrimination because of race, color, religion, national origin, or sex; (11)(10) The A reference incorporating as a part of the agreement the program standards for OJT, either directly or by reference, OJT as they exist on the date the agreement is executed and as they may be revised or amended during the period of the agreement; and (12) Such further, specific information as may be necessary to apply the relatively broad provisions of the program standards for OJT to the particular situation of the trainee in the OJT program; and (13)(11) Such other terms of agreement between the parties as are consistent with these Rules and the purposes of on-the-job OJT training in general. Authority G.S. 94-1; 94-2; 94-4. 13 NCAC 14B .0306 REGISTRATION OF OJT AGREEMENTS (a) The sponsor shall promptly submit to the director a copy of all OJT agreements under its program. request that an OJT agreement between the individual and sponsor be registered by submitting to the director a copy of the OJT agreement. PROPOSED RULES 25:02 NORTH CAROLINA REGISTER JULY 15, 2010 142 (b) If upon receiving an OJT agreement the director finds that: If the following |
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