North Carolina register

              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).
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25:02 NORTH CAROLINA REGISTER JULY 15, 2010
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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
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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
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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
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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
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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.
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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.
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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
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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
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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;
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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
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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.
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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
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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
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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
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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;
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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
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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.
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142
(b) If upon receiving an OJT agreement the director finds that:
If the following