North Carolina register

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NORTHCAROLINA
REGISTE RECEIVED
APR 1 8 2000
M-irtiNc |5., eVcRETT
LAV* LIBRARY
VOLUME 14 • ISSUE 20 • Pages 1808 - 1861
Ck
AprU 17, 2000
\ IN THIS ISSUE r^
Environment and Natural Resources 1/ ,^^
Health and Human Services // j^^
Labor //^ State Personnel // /ia. Z;
Transportation j^ '*'*^^ J
Rules Review Commission
i^ Contested Case Decisions
PUBLISHED BY
The Office ofAdministrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 733-2678
Fax (919) 733-3462
m ILEC5I115US
SALUS
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
For those persons that have questions or concerns regarding the Administrative Procedure Act or any of it?
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.
t
Office of Administrative Hearings
Rules Division
Capehart-Crocker House
424 North Blount Street
Raleigh, North Carolina 27601-2817
contact: Molly Masich, Director APA Services
Ruby Creech, Publications Coordinator
1 §»Ji ^if^
(919) 733-2678
(919) 733-3462 FAX
nimasich@oah. state
rcreech@oah.state
Fiscal Notes & Economic Analysis
. Office of State Budget and Management
I 116 West Jones Street
li Raleigh, North Carolina 27603-8005 ^.
contact: Warren Plonk, Economist III
Rule Review and Legal Issues
,l
Rules Review Commission
ll 1307 Glenwood Ave., Suite 159
\ Raleigh, North Carolina 27605
(919) 733-7061
(919) 733-0640 FAX
\vplonk@osbm.state
(919) 733-2721
(919) 733-9415 FAX
contact: Joe DeLuca Jr., Staff Director Counsel
\\\ ' ^"^^^ ^'^^"' ^^^Attorney ^^^^^^-'^m ' ""--=--"^
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street '
""^^^.^Sr^----.
(919)733-2578
Raleigh, North Carolina 2761 1 " - ^**^-«.^.: (919) 715-5460 FAX
contact: MaiyShuping, Staff Liaison marys@ms.ncga.state.nc.u&
County and Municipality Government Questions or Notification
NC Association of County Commissioners
215 North Dawson Street (919)715-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn or Rebecca Troutman
NC League of Municipalities
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Paula Thomas
(919)715-4000
This publication is printed on permanent, acid-free paper in compliance y\/iih G.S. 125-11.13
NORTH CAROLINA
REGISTER
IN THIS ISSUE
Volume 14, Issue 20
Pages 1808 - 1861
April 17, 2000
RULE-MAKING PROCEEDINGS
Environment and Natural Resources
Environmental Management 1808
Health Services, Commission of 1808-1809
Health and Human Services
Facility Services 1 808
II. PROPOSED RULES
Environment and Natural Resources
Marine Fisheries 1810 - 1814
Wildlife Resources 1814 - 1815
Health and Human Services
Health Services, Commission for 1815 - 1824
State Personnel
State Personnel Commission 1824 - 1828
Transportation
Motor Vehicles, Division of 1824
This issue contains documents officially filed
through March 27, 2000.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
6714 Mail Service Center
Raleigh, NC 27699-6714
(919)733-2678
FAX (919) 733-3462
m. TEMPORARY RULES
Environment and Natural Resources
Marine Fisheries Commission 1830 - 1840
Labor
Occupational Safety & Health 1829-1830
IV. RULES REVIEW COMMISSION 1841-1850
V. CONTESTED CASE DECISIONS
Index to ALJ Decisions 1851-1861
Julian Mann III, Director
Camille Winston, Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Linda Dupree, Editorial Assistant
Jessica Flowers, Editorial Assistant
Dana Sholes, Editorial Assistant
VI. CUMULATIVE INDEX 1-108
North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC
27601 . (ISSN 1 5200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register,
PC Drawer 27447, Raleigh. NC 2761 1-7447.
NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM
The North Carolina Administrative Code (NCAC) hasfour major subdivisions ofrules. Two ofthese, titles and chapters,
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be
numerical in order. The other two, subchapters and sections are optional subdivisions to be used by agencies when
appropriate.
TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE DEPARTMENT LICENSING BOARDS CHAPTER
1 Administration Acupuncture I
2 Agriculture Architecture 2
3 Auditor Athletic Trainer Examiners 3
4 Commerce Auctioneers 4
5 Correction Barber Examiners 6
6 Council of State Certified Public Accountant Examiners 8
7 Cultural Resources Chiropractic Examiners 10
8 Elections Employee Assistance Professionals 11
9 Governor General Contractors 12
10 Health and Human Services Cosmetic Art Examiners 14
11 Insurance Dental Examiners 16
12 Justice Dietetics/Nutrition 17
13 Labor Electrical Contractors 18
14A Crime Control & Public Safety Electrolysis 19
15A Environment and Natural Resources Foresters 20
16 Public Education Geologists 21
17 Revenue Hearing Aid Dealers and Fitters 22
18 Secretary of State Landscape Architects 26
19A Transportation Landscape Contractors 28
20 Treasurer Massage & Bodywork Therapy 30
*21 Occupational Licensing Boards Marital and Family Therapy 31
22 Administrative Procedures (Repealed) Medical Examiners 32
23 Community Colleges Midwifery Joint Committee 33
24 Independent Agencies Mortuary Science 34
25 State Personnel Nursing 36
26 Administrative Hearings Nursing Home Administrators 37
27 NC State Bar Occupational Therapists 38
Opticians 40
Optometry 42
Osteopathic Examination & Reg. (Repealed) 44
Pastoral Counselors, Fee-Based Practicing 45
Pharmacy 46
Physical Therapy Examiners 48
Plumbing, Heating & Fire Sprinkler Contractors 50
Podiatry Examiners 52
Professional Counselors 53
Psychology Board 54
Professional Engineers & Land Surveyors 56
Real Estate Appraisal Board 57
Real Estate Commission 58
Refrigeration Examiners 60
Sanitarian Examiners 62
Social Work Certification 63
Soil Scientists 69
Speech & Language Pathologists & Audiologists 64
Substance Abuse Professionals 68
Therapeutic Recreation Certification 65
Veterinary Medical Board 66
Note: Title 21 contains the chapters of the various occupational licensing boards.
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RULE-MAKING PROCEEDINGS
A Notice ofRule-making Proceedings is a statement ofsubject matter ofthe agency's proposed rule making. The agency must
publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule.
Publication ofa temporary rule serves as a Notice ofRule-making Proceedings and can befound in the Register under the
section heading ofTemporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings and
can befound in the Register under the section heading ofRule-making Agendas. Statutory reference: G.S. 150B-2I.2.
TITLE 10 - DEPARTMENT OF HEALTH AND
HUMAN SERVICES
CHAPTER 3 - FACILITY SERVICES
course ofthe rule-making process.
Authority for the rule-making: G.S. 143-215(a)(15); 143B-
282(2)(h); 150B-14(c)
"X Jotice ofRule-making Proceedings is hereby given by the
1 V DHHS/Division ofFacility Services in accordance with G.S.
1503-21. 2. The agency shall subsequently publish in the
Register the text ofthe rule(s) itproposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rules Affected by this Rule-Making: 10
NCAC 3R . 6300 - Other rules may beproposed in the course of
the rule-making process.
Authority for the rule-making:
177(1), 131E-183(b)
G.S. 131E-1 76(25); 131E-Statement
of the Subject Matter: The Agency plans to adopt
new temporary rules which will include policies and need
determinations from the 2001 State Medical Facilities Plan.
SMFP rules for previous years may also be repealed under
temporary rule-making.
Reason for Proposed Action: The need determinations and
policies contained therein are incorporated into administrative
rules. Because permanent rules cannot be adopted in time to
become effective by January 1, 2001, it will be necessary to
adopt new temporary rules.
Comment Procedures: Written comments concerning the rule-making
action must be submitted to Jackie R. Shepard, Rule-making
Coordinator, Division ofFacility Services, 2701 Mail
Service Center, Raleigh, NC 27699-2701.
TITLE ISA - DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES
Statement of the Subject Matter: Amendment of UST
requirements in close proximity to water supply wells and
surface waters.
Reason for Proposed Action: The UST Section is requesting
that a temporary rule be enacted to immediately mitigate a
serious and unforeseen threat to public health, safety and
welfare. Widespread non-compliance by UST owners and
operators with existing secondary containment requirements is
an unforeseen threat to public health, safety and welfare. The
regulated community as well as the regulators did not clearly
understand until recently that water supply wells at most
convenience store and service station locations are considered
public water supplies. The existing rules clearly intendedfor
more stringent requirements to apply to those situations where
public water supplies were present because of the greater
potential health risk. Widespread non-compliance with existing
secondary containment requirements is also a serious threat to
public health, safety and welfare. We now know that drinking
water supplies at about 4800 locations across North Carolina
are at risk of being contaminated if leaks from UST systems
occur at those location. Secondary containment will provide
early notice that a leak has occurred and will contain that leak
BEFORE it reaches the environment and water supplies. To
achieve the necessary level of compliance, enhanced leak
detection must be implemented immediatelyfor early detection
of releases, and secondary containment deadlines mut be
extended to give the regulated community enough time to comply
with this requirement.
Comment Procedures: Comments should be submitted to Ruth
Strauss, DENR, Division of Waste Management, UST Section,
1637 Mail Service Center, Raleigh, NC 27699-1637, Telephone
(919) 733-1330.
CHAPTER 2 - ENVIRONMENTAL MANAGEMENT ********************
TV Totice ofRule-making Proceedings is hereby given by the
1 1 Environmental Management Commission in accordance
with G.S. 1503-21. 2. The agency shall subsequently publish in
the Resister the text ofthe rule(s) itproposes to adopt as a result
of this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rules Affected by this Rule-Making:
15A NCAC 2N .0304 - Other rules may be proposed in the
CHAPTER 18 - ENVIRONMENTAL HEALTH
'K Totice ofRule-making Proceedings is hereby given by the
1 y Commission for Health Services in accordance with G.S.
1503-21.2. The agency shall subsequently publish in the
Resister the text ofthe rule(s) it proposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
14:20 NORTH CAROLINA REGISTER April 17, 2000 1808
RULE-MAKING PROCEEDINGS
Citation to Existing Rules Affected by this Rule-Making:
15A NCAC 18A .3300 - Other rules may be proposed in the
course ofthe rule-making process.
Authority for the rule-making: G.S. 130A-235
Statement of the Subject Matter: Rules Governing Sanitation
ofAdult Day Service Facilities
Reason for Proposed Action: The new rules 15A NCAC 18A
.3300 will be proposed to develop standards for sanitation
inspections of adult day service facilities by local health
departments. The new rules will keep adult day servicefacilities
from having to meet the more stringent requirements developed
for health care institutions. They will providefor reporting to
the Department of Health and Human Services, Division of
Aging and Division ofMental Health on the sanitary conditions{
at adult day care facilities, adult day health facilities, and
psychosocial rehabilitation program facilities which provide
community-based day services including meals to adults.
Comment Procedures: Send comments to Jim Hayes,
Environmental Health Services Section, 1632 Mail Service
Center, Raleigh, NC 27699-1632 or e-mail to
jim.hayes@ncmail.net.
i
I
«;
1809 NORTH CAROLINA REGISTER April 17,2000 14:20
PROPOSED RULES
\
This Section contains the text ofproposed rules. At least 60 days prior to the publication oftext, the agencypublished a Notice
ofRule-making Proceedings. The agency must accept comments on the proposed rulefor at least 30 daysfrom the publication
date, or until thepublic hearing, or a later date ifspecified in the notice by the agency. The required commentperiod is 60 days
for a rule that has a substantial economic impact ofat leastfive million dollars ($5, 000, 000). Statutory reference: G.S. 150B-
21.2.
TITLE ISA - DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2
that theNCMarine Fisheries Commission intends to amend
the rules cited as 15A NCAC 3J .0103; 3L .0205; 3M .0301.
.0506, .0515. Notice ofRule-making Proceedings waspublished
in the Register on November 1, 1999for 15A NCAC 3J .0103;
3L . 0205. Notice ofRule-making Proceedings was published in
the Register on December 15, 1999for 15A NCAC 3M .0301.
.0506. .0515.
Proposed Effective Date: April 1, 2001
Public Hearings will be conducted at 7:00p.m. on May 3, 2000
at the Comfort Inn South Oceanfront, 8031 Old Oregon Road,
Nags Head, NC; May 15, 2000 at the Department of
Environment and Natural Resources, 127 Cardinal Drive Ext.,
Wilmington. NC; May 16, 2000 at the Duke University Marine
Lab Auditorium. Pivers Island, Beaufort, NC; May 25, 2000 at
the Gateway Convention Center. Rocky Mount. NC.
eason for Proposed Action:
ISA NCAC 3J.0103; 3L .0205 - The Fisheries Reform Act of
1997 and its amendments (House Bill 1448) required a complete
review ofthe proceduresfor management offisheries in North
Carolina. Included were requirementsfor Fishery Management
Plans. The amendments are necessary management measures
to ensure the viability ofred drum while thefishery management
plan is being developed and was identified as a necessary
management measure for the viability of blue crabs in the
completed Blue Crab Fishery Management Plan. Section 5. 3 of
House Bill 1448 states "This act constitutes a recent act ofthe
General Assembly within the meaning of G.S. 150B-21. 1
".
ISA NCAC 3M .0301, .0506, .0515 - Recent action by the
National Marine Fisheries Service (effective 9/20/99) increased
the size limitfor king mackerel to 24 inches. In addition, recent
action by the National Marine Fisheries Service (effective
9/8/99) prohibits the harvest andpossession ofredporgy in the
EEZ in order to protect the red porgy resource which is
overfished. G.S. 143B-289. 52(e) authorizes the Marine
Fisheries Commission to adopt rules to implement or comply
with a fisheries management plan adopted pursuant to
Magnuson-Stevens Fishery Conservation andManagementAct.
In the temporary adoption of 15A NCAC 3M .0515 effective
July 1, 1999, the taking ofdolphin commercially was authorized
through a federal permit. This commercial take should be
(authorized by the holding of the new licenses which were first
fiade available through a rewrite of the licensing system
effective July 1, 1999. The amendment to this Rule authorizes
the take ofdolphin commercially by the new license system.
Comment Procedures: Written comments are encouraged and
may be submitted to the MFC, Juanita Gaskill, PO Box 769.
Morehead City, NC2855 7. Oral comments may bepresented at
thefour scheduled public hearings. Oral presentation lengths
may be limited, depending on the number ofpeople that wish to
speak at the public hearings. The public comment period will
end on June 15. 2000.
State
Fiscal Impact
Local Sub. None
CHAPTER 3 - MARINE FISHERIES
SUBCHAPTER 3J - NETS, POTS, DREDGES, AND
OTHER FISHING DEVICES
SECTION .0100 - NET RULES, GENERAL
.0103 GILL NETS, SEINES, IDENTIFICATION,
RESTRICTIONS
(a) It is unlawful to use a gill net with a mesh length less than
2 1/2 inches.
(b) The Fisheries Director may, by proclamation, limit or
prohibit the use of gill nets or seines in coastal waters, or any
portion thereof, or impose any or all ofthe following restrictions
on the use of gill nets or seines:
(1) Specify area.
(2) Specify season.
(3) Specify gill net mesh length.
(4) Specify means/methods.
(5) Specify net number and length.
(c) It is unlawful to use fixed or stationary gill nets in the
Atlantic Ocean, drift gill nets in the Atlantic Ocean for
recreational purposes, or any gill nets in internal waters unless
nets are marked by attaching to them at each end two separate
yellow buoys which shall be of solid foam or other solid buoyant
material no less than five inches in diameter and no less than five
inches in length. Gill nets which are not connected together at
the top line shall be considered as individual nets, requiring two
buoys at the end of each individual net. Gill nets connected
together at the top line shall be considered as a continuous net
requiring two buoys at each end of the continuous net. Any other
marking buoys on gill nets used for recreational purposes shall
be yellow except one additional buoy, any shade of hot pink in
color, constructed as specified in Paragraph (c) of this Rule,
shall be added at each end of each individual net. Any other
marking buoys on gill nets used in commercial fishing
operations shall be yellow except that one additional
identification buoy of any color or any combination of colors,
except any shade of hot pink, may be used at either or both ends.
14:20 NORTH CAROLINA REGISTER April 17,2000 1810
PROPOSED RULES
The owner shall always be identified on a buoy on each end
either by using engraved buoys or by attaching engraved metal
or plastic tags to the buoys. Such identification shall include
owner's last name and initials and if a vessel is used, one of the
following:
( 1
)
Owner's N.C. motor boat registration number, or
(2) Owner's U.S. vessel documentation name.
(d) It is unlawful to use gill nets:
(1) Within 200 yards of any pound net with lead and
pound or heart in use;
(2) From March 1 through October 3 1 in the Intracoastal
Waterway within 150 yards of any railroad or
highway bridge.
(e) It is unlawful to use gill nets within 100 feet either side of
the center line of the Intracoastal Waterway Channel south of
Quick Flasher No. 54 in Alligator River at the southern entrance
to the Intracoastal Waterway to the South Carolina line, unless
such net is used in accordance with the following conditions:
(1) No more than two gill nets per boat may be used at
any one time;
(2) Any net used must be attended by the fisherman from
a boat who shall at no time be more than 100 yards
from either net; and
(3) Any individual setting such nets shall remove them,
when necessary, in sufficient time to permit
unrestricted boat navigation.
(f) It is unlawful to use drift gill nets in violation of 15A
NCAC 3 J .0101(2) and Paragraph (e) of this Rule.
(g) It is unlawful to use unattended gill nets with a mesh
length less than five inches in a commercial fishing operation in
the following areas: gill nets from May 1 through October 3
of less than five inches in internal coastal
waters (including joint waters) unless attended. In order to be
considered attended, the fishennen must be within 100 yards of
any net employed by that fisherman.
(1) Pamlico River, west of a line beginning at a point on
Mauls Point at 35° 26' 56" N - 76° 55' 33" W:
running 066° (M) to a point on Ragged Point at 35 °
27' 33" N- 76° 54' 23" W;
(2) Within 200 yards of anv shoreline in Pamlico River
and its tributaries east of the line from Mauls Point at
35° 26' 56" N - 76° 55' 33" W; running 066° (M) to
Ragged Point at 35° 27' 33" N - 76° 54' 23" W and
west of a line beginning at a point on Pamlico Point at
35° 22' 18" N - 76° 29' 00" W ; running 018° (M)
through Marker # 1 to a point on Roos Point at 35 ° 18'
48"N-76° 28' 16" W;
Pungo River, east of a line beginning at a point on
Durants Point at 35° 30' 30" N - 76° 35' 12" W;
running 319° (M) to the northern side of the
breakwater at 35° 31' 48" N - 76° 36' 53" W;
Within 200 vards of any shoreline in Pungo River and
its tributaries west of the line from Durants Point at
35° 30' 30" N- 76° 35' 12" W; running 319° (M) to
the northern side of the breakwater at 35 ° 31' 48" N -
m
£4}
£5}
£6} m
Roos Point at 35° 18' 48" N - 76° 28' 16" W:
Neuse River and its tributaries northwest of the
Highway 17 highrise bridge:
Trent River and its tributaries: /
Within 200 yards of any shoreline in Neuse River and
its tributaries east of a line from the Highway 17
highrise bridge and west of a line beginning at a point
on Wilkinson Point at 34° 57' 53" N - 76° 48' 15" W;
running 203° (M) to a point on Cherry Point at 34
°56'27" N-76°48'42" W.
(h) It is unlawful to use unattended gill nets with a mesh
length less than five inches in a commercial fishing operation
from May 1 through October 3
1
in the following internal coastal
and joint waters of the state south of a line beginning at a point
on Roanoke Marshes Point at 35° 48' 12" N - 75° 43' 06" W;
running 122° (M) to a point on Eagle Nest Bay at 35° 44' 12"N
- 75° 31' 09" W to the South Carolina State Line:
(1) All primary nursery areas described in 15A NCAC
3R .0103, all permanent secondary nursery areas
described in 1 5A NCAC 3R .01 04. and no trawl areas
described in 1 5A NCAC 3R .0 1 06 (3).(4).(6). and (7);
In the area along the Outer Banks, beginning at a
point on Core Banks at 34° 58' 49" N - 76° 09' 59"
W; running 292 ° (M) to a point on Wainwright Island
at 34° 59' 28" N - 76° 12' 28" W; running 026° (M)
to a point at 35° 00' 16" N - 76° 12' 12" W; running
034° (M) to apoint at 35° 01' 35" N - 76° 1
1' 27" W;
running 059 ° (M) to a point at 35 ° 06' 24" N - 76° 04'
20" W; running 044° (M) to a point at 35° 08' 26" N-
76° 02' 30" W; running 090° (M) to a point at 35° 09'!
1 8" N - 75 ° 54' 49" W; running 063 ° (M) to a point
35° 19' 02" N - 75° 36' 19" W: running 038° (M) to
a point at 35° 22' 48" N - 75° 33' 36" W; running
026° (M) to a point at 35 ° 28' 27" N - 75 ° 3
1
' 2 1
" W;
running010° toapointat35°35'59"N-75°31'12"
W; running 355 °(M) to a point 35 ° 45' 1
1
" N - 75 °
34' 06" W; running 1 22 ° (M) to a point at 35 ° 44' 1
1
"
N ; 751 3r 05;i W, Thence running south along the
shoreline across the inlets to the point of beginning;
In Back and Core sounds, beginning at a point on
Shackleford Banks at 34° 39' 59" N - 76° 34' 16" W;
running 004°(M) to a point at Marker #3 at 34° 41'
19" N - 76° 33' 50" W; thence running 103° (M) to a
point at 34° 40' 27" N - 76° 30' 41" W; thence
£2}
£3}
running 019° (M) to a point near Marker "A37" at
34° 43' 35" N - 76° 28' 35" W; thence running 350°
(M) to a point at 34° 43' 45" N - 76° 28' 36" W;
thence running 025 ° (M) to a point at 34 ° 48' 09" N -
76° 24' 47" W; thence running 042° (M) to a point
near Drum Inlet at 34° 51' 03" N - 76° 20' 18" W;
thence running 034° (M) to a point at 34° 53' 25" N -
76 °
1 7' 2 1
" W; thence running 008 ° (M) to a point at
34° 53' 55" N - 76° 17' 07" W; thence running 1 10°
(M) to a point at 34° 53' 33" N - 76° 16' 25" W:
thence running 026 ° (M) to a point at 34° 56' 33" N -
76° 36' 53" W. and west of a line beginning at a point 76° 13' 37" W; thence running 094° (M) to a point af
on Pamlico Point at 35° 22' 18"N-76° 29' 00" W; - 34° 56' 29" N- 76° 13' 17" W; thence running 013°
running 018° (M) through Marker #1 to a point on (M) to a point at 34° 58' 11" N - 76° 12' 18" W;
1811 NORTH CAROLINA REGISTER April 1 7, 2000 14:20
PROPOSED RULES
£4}
thence running 330° (M) to a point at 34° 58' 48" N -
76 °
1 2' 3
1
" W; thence running OOP ° (M) to a point on
Wainwright Island at 34° 59' 26" N - 76° 12' 22" W;
thence running 096° (TVl) to a point on Core Banks at
34° 58' 49" N - 76° 09' 59" W; thence following the
shoreline south across Drum and Barden inlets to the
point of beginning;
Within 200 yards of any shoreline, except from
October X through October 31. south and east of
Highway 12 in Carteret County and south of a line
from a point on Core Banks at 34° 58' 49" N - 76° 09'
59" W; running 292° (M) to Camp Point at 35° 00'
05" N - 76°
Line.
14' 48" W to the South Carolina State
Authority G.S.
289.52.
113-134; 113-173; 113-182; 113-221; 143B-SUBCHAPTER
3L - SHRIMP, CRABS, AND LOBSTER
SECTION .0200 - CRABS
.0205 CRAB SPAWNING SANCTUARIES
(a) It is unlawful to set or use trawls, pots, and mechanical
methods for oysters or clams a trawl net or take crabs with the
use of commercial fishing equipment from the crab spawning
sanctuaries described in 15A NCAC 3R .0110 from March 1
through August 3 1
(b) From September 1 through February 28, the Fisheries
)irector may, by proclamation, close the crab spawning
'sanctuaries and may impose any or all of the following
restrictions:
(1) Specify number of days;
(2) Specify areas;
(3) Specify means and methods which may be employed
in the taking;
(4) Specify time period;
(5) Limit the quantity.
Authority G.S. 113-134; 113-182; 113-221; 143B-289.52.
SUBCHAPTER 3M - FINFISH
SECTION .0300 - SPANISH AND KING MACKEREL
Specify means/methods; ^S^
SPANISH AND KilJua-^iUffli^Bfilif statistical and biological d^.
inches fork length.
(2) It is unlawful to possess more than three king
mackerel per person per day.
(3) It is unlawful to possess Spanish mackerel less than
12 inches fork length.
(4) It is unlawful to possess more than 10 Spanish
mackerel per person per day.
(c) King mackerel and Spanish mackerel taken by commercial
fishing operations, exclusive of hook and line:
(1) It is unlawful to possess king mackerel less than 20
inches fork length.
(2) It is unlawful to possess Spanish mackerel less than
12 inches fork length.
(d) Persons in possession ofa yalid National Marine Fisheries
Service Coastal Migratory Pelagic (Mackerel) Permit to fish on
the commercial mackerel quotas are exempt from the mackerel
creel restrictions established in Paragraph (b) of this Rule.
(e) Persons in possession ofa valid National Marine Fisheries
Service Federal Coastal Migratory Pelagic (Mackerel) Permit
must comply with the mackerel creel restrictions established in
Paragraph (b) of this Rule when fishing with more than three
persons (including the captain and mate) on board.
(f) It is unlawful to possess aboard or land from a vessel, or
combination of vessels that form a single operation, more than
3,500 pounds of Spanish or king mackerel, in the aggregate, in
any one day.
Authority G.S. 113-134; 113-182; 113-221; 143B-289.52.
SECTION .0500 - OTHER FINFISH
.0506 SNAPPER-GROUPER
(a) The Fisheries Director may, by proclamation, impose any
or all of the following restrictions in the fisheries for species of
the snapper-grouper complex and black sea bass in order to
comply with the management requirements incorporated in the
Fishery Management Plan Plans for Snapper-Grouper and Sea
Bass developed by the South Atlantic Fishery Management
Council or Mid-Atlantic Fishery Management Council and the
Atlantic States Marine Fisheries Commission:
Specify si^
Specify seaso^
Specify ar^3^
Specify quant(^;
.0301
(a) The Fisheries Director may, by proclamation, impose any
or all of the following restrictions on the taking of Spanish or
king mackerel:
(1) Specify areas.
(2) Specify seasons.
(3) Specify commercial quantity.
(4) Specify means/methods.
(5) Specify size for fish taken by commercial fishing
^ operations.
P (b) King mackerel and Spanish mackerel taken for
recreational purposes or by hook and line:
(1 ) It is unlawful to possess king mackerel less than 24 20
The species of the snapper-grouper complex listed in the
South Atlantic Fishery Management Council Fishery
Management Plan for the Snapper-Grouper Fishery ofthe
South Atlantic Region are hereby incorporated by
reference and copies are available via the Federal
Register posted on the Internet at www.access.gpo.gov
and at the Division of Marine Fisheries, P.O. Box 769,
Morehead City, North Carolina 28557 at no cost,
(b) Black sea bass:
(1) It is unlawful to possess black sea bass less than ten
inches total length.
(2) It is unlawful to take or possess more than 20 black
14:20 NORTH CAROLINA REGISTER April 17, 2000 1812
PROPOSED RULES
(2)
(3)
(4)
(2)
(3)
(4)
sea bass per person per day south of Cape Hatteras
without a valid Federal Commercial Snapper-
Grouper permit.
(c) Gag grouper:
(1) It is unlawful to possess gag grouper (gray grouper)
less than 24 inches total length.
It is unlawful to possess more than two gag grouper
(gray grouper) per person per day without a valid
Federal Commercial Snapper-Grouper Permit.
It is unlawful to possess more than two gag grouper
(gray grouper) per person per day during the months
of March and April.
It is unlawful to sell or purchase gag grouper (gray
grouper) taken from waters under the jurisdiction of
North Carolina or the South Atlantic Fishery
Management Council during the months ofMarch and
April.
(d) Black grouper:
(I) It is unlawful to possess black grouper less than 24
inches total length.
It is unlawful to possess more than two black grouper
per person per day without a valid Federal
Commercial Snapper-Grouper Permit.
It is unlawful to take or possess more than two black
grouper per person per day during the months of
March and April.
It is unlawfiil to sell or purchase black grouper taken
from waters under the jurisdiction of North Carolina
or the South Atlantic Fishery Management Council
during the months of March and April.
(e) It is unlawful to possess red grouper less than 20 inches
total length.
(f) It is unlawful to possess yellowfm grouper (fu^eback
grouper) less than 20 inches total length.
(g) It is unlawful to possess scamp less than 20 inches total
length.
(h) It is unlawful to possess yellowmouth grouper less than 20
inches total length,
(i) Speckled hind (kitty mitchell) and Warsaw grouper:
(1) It is unlawful to sell or purchase speckled hind or
Warsaw grouper.
(2) It is unlawful to possess more than one speckled hind
or one Warsaw grouper per vessel per trip.
(j) Greater amberjack:
(1) For recreational purposes:
(A) It is unlawful to possess greater amberjack less
than 28 inches fork length.
(B) It is unlawfiil to possess more than one greater
amberjack per person per day.
It is unlawtul to sell or purchase greater amberjack
less than 36 inches fork length.
It is unlawful to possess more than one greater
amberjack per person per day without a valid Federal
Commercial Snapper-Grouper Permit.
It is unlawful to possess more than one greater
amberjack per person per day during the month of
April.
It is unlawful to sell or purchase greater amberjack
(2)
(3)
(4)
(5)
(2)
during any closed season,
(k) Red Snapper:
(1) It is unlawful to possess red snapper less than 20
inches total length.
|
(2) It is unlawful to possess more than two red snapper
per person per day without a valid Federal
Commercial Snapper-Grouper permit.
(I) Vermilion Snapper:
(1 ) For recreational purposes:
(A) It is unlawful to possess vermilion snapper
(beeliner) less than 1 1 inches total length.
(B) It is unlawful to possess more than 10
vermilion snapper per person per day.
It is unlawful to possess or sell vermilion snapper
(beeliner) less than 1 2 inches total length with a valid
Federal Commercial Snapper-Grouper permit.
(m) It is unlawful to possess silk snapper (yelloweye snapper)
less than 12 inches total length.
(n) It is unlawfiil to possess blackfin snapper (hambone
snapper) less than 1 2 inches total length.
(o) Red Porgy:
(i) It is unlawful to possess red porgy (Pasrus pasnis) in
North Carolina, porgy (pink or silver snapper) less
than 14 inches total length.
I t is unlawful to possess more than Five red porgy per
person per day without a valid Federal Commercial
Snapper-Grouper permit.
I t is unlawful to possess more than Five red porgy per
person per day during the months ofMarch and Apr il.
I t is unlawful to s ell or purchase red porgy taken from'
waters under the jurisdiction ofNorth Carolina or the
I
m
(3)
(4) \'
South Atlantic Fishery Management Council during
the months of March and April.
(p) Combined Bag Limits:
(1) It is unlawful to possess more than 10 vermilion
snapper and 1 other snappers per person per day of
which no more than two may be red snapper without
a valid Federal Commercial Snapper-Grouper permit.
(2) It is unlawful to possess more than five grouper
without a valid Federal Commercial Snapper-Grouper
permit of which:
(A) no more than two may be gag or black grouper
(individually or in combination) per person per
day;
(B) no more than one may be speckled hind or one
Warsaw grouper per vessel per trip.
(3) It is unlawful to possess more than 20 fish in the
aggregate per person per day of the following species
without a valid Federal Commercial Snapper-Grouper
permit: whitebone porgy, jolthead porgy, knobbed
porgy, longspine porgy, sheepshead, gray triggerFish,
queen triggerFish, yellowjack, crevalle jack, bar jack,
almaco jack, lesser amberjack, banded rudderFish,
white grunt, margates, spadeFish, and hogFish.
(q) It is unlawful to possess any species of the Snapper-
Grouper complex except snowy, warsaw, yellowedge, and misty
groupers; blueline, golden and sand tilefishes; while having
longline gear aboard a vessel.
1813 NORTH CAROLINA REGISTER April 17,2000 14:20
i
PROPOSED RULES
(r) It is unlawful to possess Nassau grouper or jewfish.
(s) Fish Traps/Pots:
(1) It is unlawful to use or have on board a vessel fish
traps for taking snappers and groupers except sea bass
pots as allowed in Subparagraph (2) ofthis Paragraph.
(2) Sea bass may be taken with pots that confonn with the
federal rule requirements for mesh sizes and pot size
as specified in 50 CFR Part 646.2, openings and
degradable fasteners specified in 50 CFR Part
646.22(c)(2)(i), and escape vents and degradable
materials as specified in 50 CFR Part 622.40 (b)(3)(i)
and rules published in 50 CFR pertaining to sea bass
north of Cape Hatteras (35° 15' N Latitude). Copies
of these rules are available via the Federal Register
posted on the Internet at wfww.access.gpo.gov and at
the Division of Marine Fisheries, P.O. Box 769,
Morehead City, North Carolina 28557 at no cost.
(t) It is unlawful for persons in possession of a valid National
Marine Fisheries Service Snapper-Grouper Permit for Charter
Vessels to exceed the creel restrictions established in Paragraphs
(b), (j)' (o); and (p) of this Rule when fishing with more than
three persons (including the captain and mate) on board.
(u) In the Atlantic Ocean, it is unlawful for an individual
fishing under a Recreational Commercial Gear License with
seines, shrimp trawls, pots, trotlines or gill nets to take any
species of the Snapper- Grouper complex.
Authority G.S. 113-134; 113-182; 113-221; 143B-289.52.
A Public Hearing will be conducted at 7:00 p.m. on May 25,
2000 at the Gateway Convention Center, 651 Winstead Ave.,
Rocky Mount, NC 27804.
Reason for Proposed Action: To set/amend inland fishing
regulations in joint waters to conform with changes in marine
fisheries rules.
Comment Procedures: The NC Wildlife Resources
Commission is holding apublic hearingjointly with the Division
of Marine Fisheries, which is considering adoption of an
identical rule. Interestedpersons maypresent their views either
orally or in writing at the hearing. In addition, the record of
hearing will be openfor receipt ofwritten comments until June
15, 2000. Such written comments must be delivered or mailed
to the NC Wildlife Resources Commission, 1701 Mail Service
Center. Raleigh, NC 27699-1701.
Fiscal Impact
State Local Sub. None
/
All bolded text was approved by the Rules Review
Commission on April 15, 1999 and is waiting review by the
2000 session of the Legislative Oversight Committee.
CHAPTER 10 - WILDLIFE RESOURCES AND
WATER SAFETY
iflSlS DOLPHIN
(a) It is unlawful to possess more than 10 dolphin per person
per day taken by hook and line for recreational purposes except
charter except: (l)Charter vessels with a valid National Marine
Fisheries Service Charter Vessel Coastal Migratory Pelagic
Permit and licensed by the U.S. Coast Guard to carry six or less
passengers for hire, may possess a maximum of 60 dolphin per
day regardless of the number of people on board.
(b) Vessels, including charterboats when fishing with three or
less persons (including captain and mate) on board, with a valid
Standard or Retired Standard Commercial Fishing License or a
Land or Sell License, may possess more than 60 dolphin per dav.
(2)Vessels with a valid conunercial National Marine Fisheries
Service Federal Coastal Migi-atoiy Pelagic Permit including
charterboats when fishing with tlu-ee or less persons (mcluding
captain and mate) on board.
Authority G.S. 113-134; 113-182; 143B-289.52.
********************
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Wildlife Resources Commission
intends to amend the rule cited as 15A NCAC IOC .0107.
Notice of Rule-making Proceedings was published in the
Register on November 1, 1999.
Proposed Effective Date: July 1, 2001
SUBCHAPTER IOC - INLAND FISHING
REGULATIONS
SECTION .0100 - JURISDICTION OF AGENCIES:
CLASSIFICATION OF WATERS
.0107 SPECIAL REGULATIONS: JOINT WATERS
In order to effectively manage all fisheries resources in joint
waters and in order to confer enforcement powers on both
fisheries enforcement officers and wildlife enforcement officers
with respect to certain rules; the Marine Fisheries Commission
and the Wildlife Resources Commission deem it necessary to
adopt special rules for joint waters. Such rules supersede any
inconsistent rules of the Marine Fisheries Commission or the
Wildlife Resources Commission that would otherwise be
applicable in joint waters under the provisions of 15A NCAC
IOC .0106:
(1) Striped Bass
(a) It shall be unlawful to possess any striped bass
or striped bass hybrid taken by any means
which is less than 1 8 inches long (total length).
(b) It shall be unlawful to possess more than three
striped bass or their striped bass hybrids taken
by hook and line or with gear authorized by a
Recreational Commercial Gear License in any
one day from joint waters.
(c) It shall be unlawful to engage in net fishing for
striped bass or their hybrids in joint waters
except as authorized by duly adopted
14:20 NORTH CAROLINA REGISTER April 17, 2000 1814
PROPOSED RULES
rules of the Marine Fisheries
Commission.
(d) It is unlawful to possess striped bass or striped
bass hybrids in the joint waters of Albemarle,
Currituck, Roanoke and Croatan Sounds and
their tributaries, excluding the Roanoke River,
except during seasons as authorized by duly
adopted rules of the Marine Fisheries
Commission.
(e) In the joint waters ofthe Roanoke River and its
tributaries, including Cashie, Middle and
Eastmost Rivers, striped bass and hybrid
striped bass fishing season, size limits and
creel limits shall be the same as those
established by authorized by duly adopted rules
of the Wildlife Resources Commission for
adjacent inland fishing waters.
(2) Lake Mattamuskeet
(a) It shall be unlawful to set or attempt to set any
gill net in Lake Mattamuskeet canals
designated as joint waters.
(b) It shall be unlawful to use or attempt to use any
trawl net or seines in Lake Mattamuskeet
canals designated as joint waters.
(3) Cape Fear River. It shall be unlawful to use or
attempt to use any net or net stakes within 800 feet of
the dam at Lock No. 1 on Cape Fear River.
(4) Shad: It is unlawful to possess more than 10
American shad or hickory shad, in the aggregate,
per person per day taken by hook-and-Iine.
Authority G.S. 113-132; 113-134; 113-138; 113-292.
********************
Notice is hereby given in accordance with G.S. 150B-21.2
that the Commissionfor Health Services intends to amend
the rule cited as 15A NCAC 19A .0406. Notice ofRule-making
Proceedings waspublished in the Register on February 1, 2000.
Proposed Effective Date: April 1, 2001
A Public Hearing will be conducted at 9:00 a.m. on May 4,
2000 at the Ground Floor Hearing Room, Archdale Bldg, 512
Salisbury Street, Raleigh, NC.
Reason for Proposed Action: The other organizations listed
under ISA NCAC 19A .0406 (schools K-12, licensed and
registered day care facilities. Head Start and colleges and
universities) require access to immunization information to
fulfill their role in enforcing state immunization laws (G.S.
130A-155 and 155. 1). The mobility ofour country 's population
has led to the need for local and state health departments in
other states to have access to specific person 's immunization
records upon request. Health Maintenance Organizations need
access to this data to fulfill state insurance laws, specifically
G.S 58-67-50(e). Under North Carolina G.S. 58-67-50(e),
every Health Maintenance Organization, for group contracts of
1,000 or more members, is required to provide certain
information, including outcomes data, collected in accordance
with the latest edition of the Health Plan Employer Data ancti,
Information Set (HEDIS) guidelines to the State Insurance
Commissioner. Measurement of the age-appropriate
immunization ratefor two year-olds is included in the HEDIS
guidelines. In addition, HMOs have the authority to obtain this
information based on the contractual relationships they
maintain both with members and with physicians who
administer care to their members. These contracts outline the
plans ' rights to access medical information about their members
and the plans ' responsibilities to maintain the confidentiality of
members ' medical information.
Comment Procedures: Comments, statements, data and other
information may be submitted in writing within 30 days after the
date ofpublication of this issue in the NC Register. Copies of
proposed rules and information may be obtained by contacting
the Immunization Branch at (919)715-6764. Send written
comments to Barbara Laymon, Immunization Branch, 1330 St.
Mary's St, 1916 Mail Service Center, Raleigh, NC 27699-1916.
Comments will be received through May 1 7, 2000.
Fiscal Impact
State Local Sub. None
•
CHAPTER 1 9 - HEALTH: EPIDEMIOLOGY
\
SUBCHAPTER 19A - COMMUNICABLE DISEASE
CONTROL
SECTION .0400 - IMMUNIZATION
NOTE: Text in bold was previously approved by Rules
Review Commission and are pending an effective day of
August 1, 2000:
.0406 ACCESS TO IMMUNIZATION
INFORMATION
(a) Physicians, local health departments and the Department
shall, upon request and without consent release the
immunization information specified in Paragraph (b) ofthis Rule
to the following organizations:
( 1
)
schools K-12, whether public, private or religious;
(2) licensed and registered daycar e childcare facilities as
defmed in G.S. 1 10-86(3) and G.S. 1 10-101;
(3) Head Start; and
(4) colleges and universities, whether public, private or
religious:;
(5) Health Maintenance Organizations: and
(6) Other state and local health departments outside of
North Carolina.
(b) The following is the immunization information to be,p
released to the organizations specified in Paragraph (a) of this
Rule:
I
'
1815 NORTH CAROLINA REGISTER April 17,2000 14:20
PROPOSED RULES
(1) name and address;
(2) name of the parent, guardian, or person standing in
loco parentis;
I (3) date of birth;
" (4) gender;
(5) race and ethnicity;
(6) vaccine type, date and dose number administered;
(7) the name and address of the physician or local health
department that administered each dose; and
(8) the existence of a medical or religious exemption
determined by the Immunization Section to meet the
requirements of G.S. 130A-156and 15ANCAC 19A
.0404orG.S. 130A-157. If such a determination has
not been made by the Immunization Section, the
person shall have access to the certification ofmedical
and religious exemptions required by G.S. 130A-156
or G.S. 130A-157and 15ANCAC 19A .0404.
Authority G.S. 130A-153.
*******************
Notice is hereby given in accordance with G.S. 150B-21.2
that the Commissionfor Health Services intends to amend
rules cited as 15A NCAC 19B .0101. .0301 - .0302. .0304.
.0309, .0311. .0313. .0320 - .0322. .0502 - .0503. Notice of
Rule-making Proceedings was published in the Register on
February 1. 2000.
proposed Effecrive Date: April 1, 2001
A Public Hearing will be conducted at 9:00 a.m. on May 4.
2000 at the Ground Floor Hearing Room. Archdale Building,
512 Salisbury Street. Raleigh, NC.
Reason for Proposed Action: The Forensic Tests for Alcohol
Branch is responsible for the training, operation and
maintenance of the statewide breath/blood alcohol testing
program. The proposed changes reflect the experience and
information gathered over the past several years. Proposed
rules will allowfor new technology, enhance the Branch 's ability
to operate and maintain the statewide program, clarifyforms
utilized in breath alcohol testing and clarify operational
procedures when conducting breath alcohol tests.
Comment Procedures: Comments may be submitted to Al
EiesleJr.. Head. Forensic Testsfor Alcohol Branch. 1922 Mail
Service Center. Raleigh. NC 27699-1922 within 30 days after
the date ofpublication ofthe NC Register. Copies ofpublished
rules and information may be obtained by contacting Al Eiesle
Jr.. (919) 733-3225. Comments will be received through May
17.2000.
Fiscal Impact
.State Local Sub. None
CHAPTER 19 - HEALTH: EPmEMIOLOGY
SUBCHAPTER 19B - INJURY CONTROL
SECTION .0100 - GENERAL POLICIES
.0101 DEFINITIONS
The definitions in G.S. 18B- 101, G.S. 20-4.01, G.S. 130A-3and
the following shall apply throughout this Subchapter:
(1) "Alcoholic Breath Simulator" shall mean a specially
designed constant temperature water-alcohol solution
bath instrument devised for the purpose of providing
a standard alcohol-air mixture;
(2) "Breath-testing Instrument" shall mean an instrument
for making a chemical analysis of breath and giving
the resultant alcohol concentration in grams ofalcohol
per 210 liters of breath;
(3) "Controlled Drinking Program" shall mean a bona
fide scientific, experimental, educational, or
demonstration program in which tests of a person's
breath or blood are made for the purpose of
determining his alcohol concentration when such
person has consumed controlled amounts of alcohol;
(4) "Director" shall mean the Director of the Division of
Epidemiology Public Health of the Department;
(5) "Handling Alcoholic Beverages" shall mean the
acquisition, transportation, keeping in possession or
custody, storage, administration, and disposition of
alcoholic beverages done in connection with a
controlled-drinking program;
(6) "Observation Period" means a period during which a
chemical analyst observes the person or persons to be
tested to determine that he the person or persons has
not ingested alcohol or other fluids, regurgitated,
vomited, eaten, or smoked in the 15 minutes
immediately prior to the collection of a breath
specimen; the chemical analyst may observe while
conducting the operational procedures in using a
breath-testing instrument;
(7) "Permittee" shall mean a chemical analyst currently
possessing a valid permit from the Department to
perform chemical analyses, ofthe type set forth within
the permit;
(8) "Simulator Solution" shall mean a water-alcohol
solution made by preparing a stock solution of
distilled or American Society for Testing and
Materials Tvpe I water and eithe r 60.5 or 48.4 grams
of alcohol per liter of solution. Each 10 ml. of this
stock solution is fiirther diluted to 500 ml. by adding
distilled or American Society for Testing and
Materials Type I water. The resulting simulator
solution corresponds to the equivalent alcohol
concentration o f 0.10 or respectively. 0.08.
(9) "Verify Instrument Calibration" shall mean
verification of instrumental accuracy of an approved
breath testing instrument or approved alcohol
screening test device by employment of a control
sample from an alcoholic breath simulator using
simulator solution and obtaining the expected result or
0.01 less than the expected result as specified in Item
14:20 NORTH CAROLINA REGISTER April 17,2000 1816
PROPOSED RULES
(8) of this Rtrfc: Rule; or by employment of a control
sample as specified in Item (10) of this Rule. When
the procedures set forth for approved breath testing
instruments in Section .0300 of this Subchapter and
for approved alcohol screening test devices in Section
.0500 of this Subchapter are followed and the result
specified herein is obtained, the instrument shall be
deemed properly calibrated.
"Ethanol Gas Canister" shall mean a dry gas calibrator
producing an alcohol-in-inert gas sample at an
accurately known concentration from a compressed
gas cylinder. The resulting alcohol-in-inert gas
sample corresponds to the equivalent concentration of
0.08.
Authority G.S. 20-139.1(b): 20-139.1(g).
SECTION .0300 - BREATH ALCOHOL TEST
REGULATIONS
.0301 APPLICATION FOR INITIAL PERMIT
(a) Application for an initial permit to perform chemical
analysis of a person's breath to determine his alcohol
concentration shall be made in writing to the Director. The
applicant shall have the endorsement of his appropriate
supervisor, or his designated representative. The Director shall
issue, deny, terminate, and revoke permits for individuals to
perform chemical analyses.
(b) Permits shall be granted to individuals who:
(1
)
demonstrate the ability to perform chemical analyses
accurately and reliably in accordance with a method
or methods approved by the Commission;
(2) can satisfactorily explain the method of operation of
the breath-testing instrument for which he is applying
for a permit to operate;
(3) provide a statement on the application from the
applicant's supervisor attesting to the good character
of the applicant; and
(4) are employed by a law enforcement agency, the ftrpiry
Control S ection or members of i ts instructional staff
Forensic Tests for Alcohol Branch, or by some other
federal, state, county or municipal agency with the
responsibility of administering chemical analyses to
drivers charged with implied consent offenses.
(c) Individuals successfully completing a minimum of 35
course hours as specified in the application on forensic tests for
alcohol conducted by the Injury Control Section Forensic Tests
for Alcohol Branch shall be deemed to have met the
requirements of Subparagraphs (b)(1) and (2) of this Rule.
Authority G.S. 20-139. 1(b).
.0302 LIMITATION OF PERMIT
(a) Permits may be limited in scope to the methods or
instruments for performing chemical analyses in which the
individual applying for a permit has demonstrated competence.
This limitation may be upon the basis of the methods or
instruments that received primary emphasis in the particular
course of instruction attended by the applicant in the event that
successful completion ofthe course is offered as proof of ability
to perform chemical analyses. Initial and renewal permits shall
state the date upon which they are to become effective and the(
date upon which they are to expire. The expiration date shall be
no more than 24 months after the effective date.
(b) Permits granted under this Section, initial and renewals,
shall be valid only during the period the permittee is employed
by a law enforcement agency, the Injury Control Section
Forensic Tests for Alcohol Branch or a member of its
instructional staff, or by some other federal, state, county or
mimicipal agency with the responsibility of administering
chemical analyses to drivers charged with implied consent
offenses.
Authority G.S. 20-139. 1(b).
.0304 CONDITIONS FOR RENEWAL OF PERMIT
(a) Permits shall be subject to renewal at expiration, or at
such time prior to expiration as is convenient for the Director,
upon demonstration by the permittee of:
(1) continuing ability to perform accurate and reliable
chemical analyses;
(2) ability to satisfactorily explain the method of
operation of the breath-testing instrument for which
he is applying for a renewal permit to operate;
(3) continued employment by a law enforcement agency,
the Injury Control Section or a member of its
instructional staff Forensic Tests for Alcohol Branch
\
or by some other federal, state, county or municipal
agency with the responsibility of administering
chemical analyses to drivers charged with implied
consent offenses; and
(4) provide a statement on the application from the
applicant's supervisor attesting to the good character
of the applicant.
(b) Individuals successfully completing a forensic test for
alcohol recertification course conducted by the Injury Control
Sect ion Forensic Tests for Alcohol Branch shall be deemed to
have met the requirements of Subparagraphs (a)(1) and (2) of
this Rule for the first and subsequent renewal of permits.
(c) Individuals desiring first and subsequent renewal permits,
after expiration of their permits, shall successfully complete the
following Injury Control Section Forensic Tests for Alcohol
Jlli
Branch course requirements prior to the granting of renewal
permits, unless an exception is granted by the Director:
(1) Forensic Tests for Alcohol Recertification Course if
the permit has been expired less than six months;
(2) Forensic Tests for Alcohol Operators Course if the
permit has been expired six months or longer.
Authority G.S 20-139.1(b).
.0309 QUALIFICATIONS OF MAINTENANCE
PERSONNEL
(a) Preventive maintenance on all breath-testing instruments
shall be performed by a chemical analyst memberofthe Forensic
Tests for Alcohol Branch who has successfully completed the
1817 NORTH CAROLINA REGISTER April 17, 2000 14:201
PROPOSED RULES
mi
^1
IS
re.
forensic tests for alcohol technical supervisor's school or a
maintenance course for a specific instrument, as conducted by
the Injury Control Section Forensic Tests for Alcohol Branch.
(b) Chemical analysts qualifying under this Rule shall be
anted certificates by the Director authorizing the performance
of preventive maintenance on specific models of breath-testing
instruments.
(1) Certificates shall be granted for an indefinite period
but shall be valid only during the period that the
chemical analyst possesses a current valid permit to
perform chemical analyses of the breath on the
specific models of breath-testing instruments for
which preventive maintenance is being performed.
(2) Certificates shall be subject to revocation under the
same provisions specified under Rule .0308 of this
Section for revocation ofpermits to perform chemical
analyses.
(3) The Director shall have the same evaluation authority
over holders of certificates as he possesses over
permittees under Rule .0307 of this Section.
Authority G.S. 20-1 39.1(b).
.0311 LOG
(a) Logs shall be kept on forms provided by the Department.
Each permittee shall keep a monthly log identifying each
individual who submits to or refiises a chemical analysis by
completing all identifying information. If no chemical analysis
is performed during the month, the permittee shall enter name,
ermit number, agency, month and write "NONE" across the
form. All monthly logs shall be forwarded to the Director and
are due by the end of the following month unless otherwise
specified in Paragraph (b) of this Rule. However, any log
identifying a blood analysis shall not be submitted until the
result is recorded.
(b) A permittee who performs chemical analyses of the breath
utilizing an automated breath-test instrument placed in service
for the statewide program administered by the Injury Control
Section Forensic Tests for Alcohol Branch of the Department
shall not be required to comply with Paragraph (a) of this Rule.
Authority G.S. 20-16.50); 20-139. 1(b).
.0313 BREATH-TESTING INSTRUMENTS
(a) The standards for the approval of breath-testing
instruments are as follows:
( 1
)
The Commission approves the method of performing
chemical analyses through the use of breath-testing
instruments of a design and of a model specifically
approved by the Commission as meeting, to its
satisfaction, standards of accuracy, reliabilify,
convenience and efficiency of operation.
(2) The Injury Control Section Forensic Tests for Alcohol
Branch shall evaluate and recommend to the
Commission only those breath-testing instruments
I which meet the minimum requirements as set forth in
the current state purchase and contract bid
specifications for automated evidential breath alcohol
testing instruments.
(3) The succeeding rules of this Section establish
operational and preventive maintenance procedures
for breath-testing instruments approved by the
Commission.
(b) The standards for the reporting of sequential tests are as
follows:
(2)
In recording the results of a chemical analysis under
G.S. 20-139.1(e) and in reporting results for use in
court or in an administrative proceeding, the chemical
analyst shall report the results of all tests of breath
performed in conducting the chemical analysis. These
resul ts may be used for all relevant purposes, but
these results may not be used to prove a person's
particular alcohol concentration unless a pair of
consecutively administered tests do not differ from
each other by an alcohol concentration ofgreater than
U.Uz.
In proceedings in court and before administrative
agencies, the state may use all breath-test procedures
and results for all relevant purposes, but when there is
a difference in readings, the state may use only the
lower of the two consecutive readings that meet the
requirements of Paragraph (b) to prove a person's
particular alcohol concentration. "Particular alcohol
concentration" is an alcohol concentration that has
legal
—
significance—under—CrS:
—
20-138. 1(a)(2),
20-
1
6.5(b)(4), 20- 1 79(d)(1), and 20-179(m).
Authority G.S. 20-16.50); 20-139.1(b).
.0320 INTOXILYZER: MODEL 5000
The operational procedures to be followed in using the
Intoxilyzer, Model 5000 are:
(1) Insure instrument displays time and date;
(2) Insure observation period requirements have been
met;
(3) Press "START TEST"; when "INSERT CARD"
appears, insert test record;
(4) Enter appropriate information;
(5) Verify instrument calibration;
(6) When "PLEASE BLOW" appears, collect breath
sample;
(7) When "PLEASE BLOW" appears, collect breath
sample;
(8) When test record ejects, remove.
If the alcohol concentrations differ by more than 0.02, a third or
subsequent test breath sample shall be administered collected
when "PLEASE BLOW" appears. Ifnecessarv. subsequent tests
shall be administered as soon as feasible by repeating steps (1)
through (8), as applicable.
Authority G.S. 20-139.1(b);
.0321 PREVENTIVE MAINTENANCE:
INTOXILYZER: MODEL 5000
The preventive maintenance procedures for the Intoxilyzer
Model 5000 to be followed at least once every four months are:
14:20 NORTH CAROLINA REGISTER April 17, 2000 1818
PROPOSED RULES
( 1
)
Verify alcoholic breath simulator thermometer shows
34 degrees, plus or minus .2 degree centigrade;
(2) Verify instrument displays time and date;
(3) Press "START TEST"; when "INSERT CARD" (2)
appears, insert test record;
(4) Enter appropriate information;
(5) Verify instrument calibration;
(6) When "PLEASE BLOW" appears, collect breath
sample;
(7) When "PLEASE BLOW" appears, collect breath
sample;
(8) When test record ejects, remove;
(9) Verify Diagnostic Program;
(10) Verify alcoholic breath simulator solution is being
changed every four months or after 125 Alcoholic (3)
Breath Simulator tests, whichever occurs first.
A signed original ofthe preventive maintenance checklist record
shall be kept on file for at least three years.
Authority G.S. 20-139. 1(b) (b4).
.0322 REPORTING OF ALCOHOL (4)
CONCENTRATIONS
When perfornung chemical analyses of breath under the
authorify of G.S. 20-139.1 and the provisions of these rules,
chemical analysts shall report alcohol concentrations on the basis
of grams of alcohol per 210 liters of breath. All results shall be
reported to hundredths. Any result between hundredths shall be
reported to the next lower hundredth.
The Intoxilvzer 5000 is an automated breath test instrument
which prints the results of the analysis.
Authority G.S. 20-1 39. 1(b).
SECTION .0500 - ALCOHOL SCREENING TEST
DEVICES
Permanent—dental Dental devices that—arc—of |
non-porous material and /or oral jewelry need not be
removed.
Unless the driver volunteers the information that hi
has consumed an alcoholic beverage within the
previous 15 minutes, the officer shall administer a
screening test as soon as feasible. If a test made
without observing a waiting period results in an
alcohol concentration reading of 0.08 or more, the
officer shall wait five minutes and administer an
additional test. If the results of the additional test
show an alcohol concentration reading more than 0.02
under the first reading, the officer shall disregard the
first reading.
If an officer has any question concerning any
screening test results, to help him determine whethei
there is probable cause for believing the driver to be
impaired by an impairing substance the The officer
may request that the driver submit to one or more
additional screening tests and, if appropriate, wait a
reasonable period between tests.
In administering any screening test, the officer shall
use an alcohol screening test device approved under
Rule .0503 of this Section in accordance with the
operational instructions supplied with or listed on the
device, except that the waiting periods set out in this
Rule supersede any period specified by the
manufacturer of the device.
Authority G.S. 20-16.3.
.0503
(5)(3}
.0502 APPROVAL: ALCOHOL SCREENING TEST
DEVICES: USE
(a) Alcohol screening test devices that measure alcohol
concentration through testing the breath of individuals are
approved on the basis of results of evaluations by the Injuiy
Control Section Forensic Tests for Alcohol Branch. Devices
shall meet the minimum requirements as set forth in the current
state purchase and contract bid specifications for Alcohol
Screening Test Devices. Evaluations are not limited in scope and
may include any factors deemed appropriate to insure the
accuracy, reliability, stability, cost, and ease of operation and
durability of the device being evaluated. On the basis of
evaluations to date, approved devices are listed in Rule .0503 of
this Section.
(b) When the validity of an alcohol screening test of the
breath of a driver administered by a law enforcement officer
depends upon approval by the Commission ofthe test device and
its manner of use, the test shall be administered as follows:
(1) The officer shall determine that the driver has
removed all food, drink, tobacco products, chewing
gum and other substances and objects from his mouth. (2}
APPROVED ALCOHOL SCREENING TEST
DEVICES: CALIBRATION
(a) The following breath alcohol screening test devices are
approved as to type and make:
ALCO-SENSOR (with two-digit display), made by
Intoximeters, Inc.
ALCO-SENSOR III (with three-digit display), made
by Intoximeters, Inc.
BREATH-ALCOHOL TESTER MODEL BT-3,
l«
(
(1)
(2)
(3)
(4)
made by RepCo., Ltd.
ALCOTEC BREATH-TESTER, made by RepCo.,
Ltd.
ALCO-SENSOR IV, manufactured by Intoximeters,
Inc.
(6){4} PBA 3000, manufactured by Life Loc, Inc.
f7)£5) SD-2, manufactured by CMI, Inc.
(b) The agency or operator shall verify instrument calibration
of each alcohol screening test device at least once during each 30
day period of use. The verification shall be performed by
employment of an alcoholic breath simulator using simulator
solution in accordance with these Rules or an ethanol gas
canister.
(1) Alcoholic breath simulators used exclusively to verify
instrument calibration of alcohol screening test
devices shall have the solution changed every 30 days
or after 25 calibration tests, whichever occurs first.
Ethanol gas canisters used exclusively to verify
I
K
1819 NORTH CAROLINA REGISTER April 17,2000 14:20
PROPOSED RULES
instrument calibration of alcohol screening test
devices shall not be utilized beyond the expiration date on the
canister.
1^(2) 0} Requirements of Paragraph (b) and Subparagraph
(b)(l)(2} of this Rule shall be recorded on an
alcoholic breath simulator log or an ethanol gas
canister log designed by the Injury Control Section
Forensic Tests for Alcohol Branch and maintained by
the user agency.
Authority G.S. 20-16.3.
********************
Notice is hereby given in accordance with G.S. 150B-21.2
that the Commission for Health Services intends to adopt
the rule 15A NCAC26B .0109, amend rules cited as 15A NCAC
26B .0101 - .0106, .0108 and repeal rule cited as ISA NCAC
26B .0107. Notice ofRule-making Proceedings was published
in the Register on February 1, 2000.
Proposed Effective Date: April 1, 2001
A Public Hearing will be conducted at 9:00 a.m. on May 4,
2000 at the Ground Floor Hearing Room, Archdale Building,
512 Salisbury Street, Raleigh, NC
Reason for Proposed Action: Legislation enacted on May 7,
1999 changed the reporting requirementfor cancer cases and
imposed afinancialpenaltyforfailure to report. Theproposed
Khanges in the rules address implementation ofthis legislative
action. An update was needed to reflect changes in the mailing
address and to remove redundant language and inconsistencies
between the rules related to the cancer registry and those
related to the State Centerfor Health Statistics.
Comment Procedures: Written comments may be submitted to
Dr. John Booker, Director, State Centerfor Health Statistics,
1903 Mail Service Center, Raleigh, NC 27699-1903, within 30
days after the date of publication of this issue of the NC
Register. Copies of the proposed rules may be obtained by
contacting Dr. John Booker at (919) 715-4499. Comments will
be received through May 1 7, 2000.
Fiscal Impact
State Local Sub. None
•
CHAPTER 26 - INFORMATION SERVICES
SUBCHAPTER 26B - CANCER REGISTRY
SECTION .0100 - SCOPE
0101 GENERAL
»(a) The purpose ofthe central cancer registry is to receive and
o compile, tabulate, and preserve statistical, clinical, and other
reports and records relating to the incidence, treatment and cure
of cancer, and to provide assistance and consultation for public
health work. The statistical reports and records, and the
assistance rendered to hospitals health care facilities, health
plarming agencies and research facilities are intended to improve
cancer treatment, extend the life of the cancer patient, identify
high risk groups or areas of the state and attempt to lower the
morbidity and mortality of cancer in North Carolina.
(b) The central cancer registry is administered by the Division
of Stat istics—and
—
Information—Services,—North
—
Carolina
Depaitment of Environment, Health, and Natural Resources,
P.O. Box 27687, Raleigh, North Carolina 27611-7687 State
Center for Health Statistics, Division of Public Health. North
Carolina Department of Health and Human Services. 1 908 Mail
Service Center, Raleigh. North Carolina 27699-1908.
Authority G.S 130A-205; 130A-208 through 130A-213; S.L
1999-33 s. 1.
.0102 DEFINITIONS
The following definitions shall apply throughout this Section:
(1) "Abstract" refers to a document or documents,
including electronic documents and files , containing
information drawn from a cancer patient's medical
record.
(2) "Cancer registrar" is a registrar who abstracts
information from the medical records of cancer
patients.
(3) "Death match" refers to the procedure of comparing
registry cases with death certificate information, for
confirmation of the reported death of any cancer
patient, and to determine if the cancer constituted the
cause of death, and for identification of cases missed
in routine reporting procedures.
(4) "Definitive treatment" refers to all methods of
treatment anticipated—for complete—
r
emoval—or
destruction of a malignancy intended to modify or
control the cancer including no treatment, palliative
care, and follow-up care.
(5) "Follow-up information" is a request sent to a
physician for current information on the post-treatment
status of a cancer patient whose abstract
was submitted to the registry in the past previously.
(6) "Identifying information" is any portion of any
abstract or incidence report that might reveal the
personal identity of a cancer patient.
"Incidence report" refers to a document or document s containing
informat ion reporting the diagnosis of a case of cancer to the
registiy by a physician.
(7) "Morphologic information" refers to pathology, or
cytology, tumor markers, or laboratory tests that
identify readings ident i fying cell types of malignant
neoplasms.
(8) "Palliative treatment" refers to treatment that is not
intended to effect a cure, but the treatment procedure
is expected to improve "quality of life" by temporarily
relieving distressing symptoms.
(9) "Participating hospital facility" is a medical health
care facility which that submits abstracts to the
registry.
14:20 NORTH CAROLINA REGISTER April 17,2000 1820
PROPOSED RULES
(10)
(11)
(12)
(13)
(14)
"Pathology report" is the written report generated by
a pathologist, stating the diagnostic interpretation of
tissue samples or cellular material examined by the
pathologist.
"Personnel" means persons who are employees of the
Department of Human Resources Health and Human
Services, or who are persons who provide services to
the central cancer registry through a written contract.
"Positive pathology report" is a pathology report
confirming the presence of cancer.
"Registrar" is an employee of a medical health care
facility who prepares abstracts of medical records.
"Registry" is the central cancer registry. The registry
is administratively assigned to the Division of
Statis tics and Information Services, Depai Unent o f
Environment, Health, and Natural Resources State
Center for Health Statistics, Department ofHealth and
Human Services.
(15) "Statistical report" refers to a report generated by the
registry for informational or educational purposes. A
statistical report contains aggregated data and does not
contain identifying information.
"Tumor registrar" is a registrar who abstracts infui nialioi i fi oui
the medical records of cancer patients.
Authority G.S.
1999-33 s. 1.
130A-205; 130A-208 through 130A-213; S.L.
.0103 CONFIDENTIALITY
(a) The clinical records of individual patients submitted to the
registry shall be confidential and shall not be public records
open to inspection. Only personnel authorized by the head of
the cancer control program director of the State Center for
Health Statistics and other individuals authorized by the head of
the cancer control program director of the State Center for
Health Statistics or his his/her designee pursuant to Paragraph
(c) of this Rule shall have access to the records.
(b) The information contained in the clinical records of
individual patients submitted to the registry may be transferred
to computer-compatible means of data entry. Only personnel
authorized by the head of the cancer conti'ol program director of
the State Center for Health Statistics to use computers, terminals,
programs, data files, and other computer hardware or software
involved in maintaining patient information shall have access to
them.
(c) Clinical information in possession of the registiy may be
disclosed in the following circumstances when authorized by the
head of th e cancer control program director of the State Center
for Health Statistics or his his/her designee:
( 1
)
A patient shall have access to review or obtain copies
of his his/her records;
(2) A person who submit s a valid authorization for
rel eas e shall have access to review or obtain copie s of
the infonnation de scribed in tlie authorization for
re l ease;
(2) Information may be disclosed in response to a valid
court order;
(3) Information may be disclosed as provided in Rule
(4)
(d)
^mOb .0106 of this Section;
Information contained in death certificates on file
with the division (but not actual copies of death
certificates) may be released to a participating hospital
facility when the hospital facility requests a death
match for confirmation of the reported or suspected
deaths of cancer patients treated at that hospital
facility. Death match information released by the
registry shall include only that information contained
in the death certificates.
The cancer control program State Center for Health
Statistics may release statistical information and data based on
client information so long as no information identifying
individual patients is released.
(e) Photocopying or other reproduction ofany clinical records
or reports containing identifying information, except as may be
required in the conduct of the official business of the registry, is
prohibited.
(f) Any legible documents other than the original incidence
report s and abstracts, such as computer printouts or photocopies
of any documents containing identifying information, shall also
be considered confidential material while in active use, and shall
be destroyed immediately upon termination of their use by the
registry.
(g) Original copies of reports and abstracts, and follow-up
information received thereunto, shall be retained for 5 years by
the registry.
(h) The head of the cancer control program director of the
State Center for Health Statistics shall make knovra to all
individuals with access to patient information submitted to the\
cancer control program registry the privileged and confidential
nature of such information.
Authority G.S.
1999-33 s. 1.
130A-205; 130A-208 through 130A-213; S.L.
.0104 REPORTING OF CANCER
(a) Any report of cancer required by G.S. 130A-209 to be
reported to the registry shall contain at l east tlie following
information:
f¥) name, addi'ess, zip code, and county of residence of
the pat ient ;
(2) date of birth, race and sex of the pat i ent ;
(3^ pathologic diagnosis; and
(4) th e name of the physician submitting the report.
(a) Health care facilities and providers are required to submit
a complete abstract for each cancer case that is screened.
diagnosed, treated, or followed by its staff and that was initially
diagnosed with cancer subsequent to January l^ 1990. A
complete abstract is defined as one that adheres to the current
standards and definitions of the North American Association of
Central Cancer Registries' Standards for Cancer Resistries, the
International Classification ofDiseases for Oncolozv, and the
current version of the registry's Operations Manual.
(b) A physician health care provider or facility may delegate
the cl er i c al tasks of incidence reporting of cancer cases to office
or hospital staff but the physician provider or facility cannot
delegate the legal responsibility for the incidence reporting of
I'
1821 NORTH CAROLINA REGISTER April 17,2000 14:20
PROPOSED RULES
cancer to others.
(c) A report of cancer shall be submitted to the registry by
either health care facilities and providers by one ofthe following
ethods:
(1) by submission of a positive pathology report an
electronic file containing the information required in
Paragraph (a) of this Rule; to beretained for Five years
by the registry; or
(2) for pathology laboratories, by submission ofa hospital
computer billing tape positive electronic pathology
report containing the information required in
Paragraph (a) of this Rule; Rule;or The tape shall be
copied by the registry and returned to the hospital.
(3) facilities or providers that have fewer than 30
reportable cases per year may submit photocopies of
the medical record sufficient to complete a fiill
abstract of the case.
(d) Because in some circumstances it is difficult to obtain
complete residence information required in Subparagraph (a)(1)
of this Rule, the incidence report shall be conditionally
acceptable for submission provided reasonable steps are taken to
obtain the missing information. The physician submitting tlie
report shall forward this information to the registry when i t
become s available.
(d) (c) The following documents shall not constitute an
incidence a report of cancer:
(1) an absti
'act submitted to tlie registry by a participating
hospital a death certificate;
(2) a request for authorization submitted to the Cancer
I
program requesting third party reimbursement for
treatment of cancer, although a positive pathology
report is required by 10 NCAC 8A .0408(f).
(e) (f) Reports shall be forwarded to the following address:
Central Cancer Registry, Division of Statis tics and Information
Services, Depai tment of Environment , Health, and Natural
Resources, P.O. Box 27687, State Center for Health Statistics,
222 N Dawson Street, 1908 Mail Service Center, Raleigh, North
Carolina 276 11-7687 27699-1908.
Authority G.S. 130A-205; 130A-208 through J30A-213; S.L.
1999-33 s. 1.
.0105 COOPERATION OF THE CENTRAL CANCER
REGISTRY WITH HEALTH FACILITIES
(a) Any hospital or other medical health care facility that is
staffed and equipped for the diagnosis, treatment or follow-up
care of cancer patients may participate with the registry in the
exchange of information regarding the referral, treatment,
maintenance or cure of cancer.
(b) The registry shall cooperate and consult with participating
hospitals and medical health care facilities and providers to the
end that tumor cancer registries in such facilities may provide the
most accurate data available and may otherwise operate in the
best interest of the cancer patients being treated therein. The
registry will provide:
f (1) Quality control reports to assure the that computerized
data utilized for statistical information and data
compilation is are correct;
(2) The most accurate and effective treatment, survival
and comparative information available;
(3) Educational information available from registry,
morbidity and mortality statistics upon request of a
professional staff;
(4) Assistance to medic al health care facilities by
providing appropriate data and consultation to help
the facilities meet the requirements for accreditation
as a cancer treatment center, and to assist in the
maintenance of such accreditation;
(5) Confirmation of the reported or presumed deaths
(including such causes of deaths) of cancer patients to
assist medical health care facilities to more accurately
assess patient survival and to conduct more efficient
long-term follow-up of cancer patients.
(6) Other information for the purpose of follow-up of a
patient. This information is limited to the name of
another facility or physician providing services to the
patient, the date of last contact with the patient, and
the vital status. A medical facility may provide to the
registry abstracts on all cancer inpatient records and
those cancer outpatient records the medical s taff
deems appropriate. Tlie abstracts shall contain at least
the following information :
(:¥)—Name, address, zip code, and county of residence of
the pat ient;
Date of birth, race, and sex of the patient ;
Date of original diagnosi s;
(2^
(4) Diagnoses, including primary si te, extent of disease,
basis of diagnosis and morphologic information;
(5) Date of hospital admission, or fu'
s t date of treatment
as applies to outpat i ent treatment;
(6) Date of hospital discharge or date of last contact with
medical staff or date of death if deatli occurs during
the abstracted inpatient stay;
(7) Selected pertinent treatment iufoi uiation, including :
(A)
—
dates of treatment ;
(B)
definit ive and palliative surgical procedure s ;
(C)—
r
adiation tieatment, including total radiat ion
dosage , dosage (rads) per tieatnient, and sites
of body treated;
(B)
chemotherapy—or
—
hormone—tl
^eatlnellts,
including names of drugs administered, ideal
dosage and schedule of treatment ;
(E) if iiu UeaUiient given, the abstract shall indicate
why no treatment was administere d.
Absti
-acts shall be foi-warded to the following addj ess: Cential
Cancer Registiy, N.C. Division of Stat istics and Infoiiiiation
Servi ces, P.O. Box 27687, Rale igh, N.C. 2761 1-7687.
Authority G.S. 130A-205; 130A-208 through 130A-213: S.L.
1999-33 s. 1.
.0106 RELEASE OF CENTRAL CANCER REGISTRY
DATA FOR RESEARCH
(a) The registry may release statistical data to any person or
agency for the following purposes:
(1) medical research or education;
14:20 NORTH CAROLINA REGISTER April 17, 2000 1822
PROPOSED RULES
(2) epidemiological studies;
(3) health education;
(4) health planning or administration;
(5) required statistical reports; and
(6) other statistical reports bywritten request for research,
information or education.
(b) A medical researcher may request the release of clinical
medical records from the registry by the submission of a written
research proposal, to tlie registry containing the following
information: This request must adhere to the requirements
pertaining to release of medical records by the State Center for
Health Statistics as defined by NCAC 26A .0002.
ft^
—
purpose of the research;
(2)—
r
esearch design;
(3)
proposed benefits to be derived from such research;
(4)
a statement ofcompliance with all applicable s tate and
federal requirements regarding the confidentiality of
patient records; and
(5) if the research is to be credited toward a degree to the
researcher, or if the research is being otherwise
conducted by an institution of higher learning, the
proposal shall contain a statement, signed by the dean
of the school, or his designee, declaring that the
proposed research is in compliance with all applicable
research criteria of the institution.
(c) The clinical medical records or reports of the individual
patients may be disclosed to research staff for the purpose of
medical research, provided that the registry has determined that:
( 1
)
disclosure of this information is deemed necessary to
accomplish the purposes of the research;
(2) the research warrants the risk to individual patients of
the potential disclosure of their medical records; and
(3) adequate safeguards to protect the clinical medical
records or identifying information are established or
maintained.
(d) The registry shall provide regular reports of research
activity and data released to the cancer committee of the North
Carolina Medical Society. Where there exists the potential for
direct patient contact, the regi stry shall consult with the chairman
of the Committee on Cancer of the North Carolina Medical
Society in before determining whether to release information for
research as provided in Paragraphs (b) and(c) of this Rule. The
registry shall forward the research proposal to the chairman for
review. The chairman may forward the proposal to any or all
members of the committee for comment.
(e) Any copies of reports or records provided to the reseai'cher
by the registry shall be desti'oyed upon terminat ion of the
research.
( f) Upon completion of the study, the reseai^cher shall submit
one copy of the completed re s earch paper to the registry. The
registry shall ti
'ansmit the paper to the chaii'man of the cancer
comntittee of the North Carolina Medical Society for review, to
be returned to the registiy for File. If the chaii'man deems the
reseai
'ch to be of importance to the practicing physicians of the
s tate, then the chairman may recommend with the concurrence
of the re s earcher, the research agency or institut ion, that the
abstract of the research paper be published in the "North
Carolina Medi cal Journal."
Authority G.S. 130A-205; 130A-208 through 130A-213; S.L.
1999-33 s. 1.
.0107 CODING OF INCIDENCE REPORTS AND
ABSTRACTS !•
The registry shall code the information contained in uicidence
report s, and shall accept abstracts that have been coded
according—to—the—current— of the—International
r
evision
Classification of Diseases (clinical modification)
Authority G.S. 130A-205: 130A-208 through 130A-213.
.0108 ASSISTANCE AND CONSULTATION FOR
PUBLIC HEALTH WORK
(a) The registry shall provide assistance and consultation for
public health work.
(b) The registry shall accept requests for assistance and
consultation for any agency, facility or organization actively
engaged in the effort to reduce the incidence of cancer, whether
through direct service to or the education of cancer patients and
their families, the public, or the medical health care professions.
(c) The registry may accept requests firom students requesting
assistance with research projects in accordance wath the
provisions of .&866 .0106 ofthis Subchapter and the availability
of staff time and resources.
Authority G.S. 130A-205; 130A-208 through 130A-213; S.L.
1999-33 s. 1.
,0109 FAILURE TO REPORT
(a) The registry shall monitor the reporting of health care
facilities and providers on a quarterly basis. If a health care
facility or provider has failed to report at least 90 percent of its
cases within six months of diagnosis, the registry shall notify the
facility or provider in writing of that fact and the facility or
provider shall be given another 30 days to fiilfill its reporting
requirement.
(b) If a facility or provider is out of compliance for two
consecutive quarters and is not demonstrating progress toward
becoming compliant, then the State Health Director shall direct
the registry to collect the data and shall direct the facility or
provider to reimburse the registry for all actual costs expended
in order to obtain the data up to $100 per case abstracted. The
amount of the reimbursement shall include both travel expenses
and the full cost of personnel time.
(c) Facilities or providers may request the director of the
registry for abstracting assistance at no cost to them. The
decision as to what assistance will be provided shall be based on
the following:
(1) Size of the facility. Any facility whose annual
caseload exceeds 70 cases per year shall reimburse the
(21
£3}
(4}
15}
registry for such assistance.
Consistency of non-compliance.
Staffing of the registry.
Duration of needed assistance. The registry shall not
provide long term abstracting assistance to any facility
that has greater than 1 00 cases per year.
The potential for compromising the registry's data
1823 NORTH CAROLINA REGISTER April 17, 2000 14:20
PROPOSED RULES
quality.
(6) Plans of the facility to reach compliance.
uthority G.S. 130A-205; 130A-208 through 130A-213; S.L.
1999-33 s. 1.
TITLE 19A - DEPARTMENT OF TRANSPORTATION
Notice is hereby given in accordance with G.S. 15OB-2}.
2
that the NC Department of Transportation - Division of
Motor Vehicles intends to amend the rule cited as 19A NCAC
03D . 0802. Notice ofRule-making Proceedings was published
in the Register on January 14, 2000.
Proposed Effective Date: April 1, 2001
Instructions on How to Demand a Public Hearing (must be
requested in writing within 15 days ofnotice): A Demandfor a
Public Hearing must be made in writing and mailed to Emily
Lee, NCDOT, 1501 Mail Service Center, Raleigh, NC 27699-
1501.
Reason for Proposed Action: This Rule is proposed for
amendment to correct U.S. Code of Federal Regulations
citations and to add more explicit terminology to the existing
rule.
kL^omment Procedures: Any interested person may submit
yi^ritten comments on theproposed rule by mailing the comments
to Emily Lee, NCDOT, 1501 Mail Service Center, Raleigh, NC
27699-1501. by May 15, 2000.
Fiscal Impact
State Local Sub. None
/
CHAPTER 3 - DIVISION OF MOTOR VEHICLES
SUBCHAPTER 3D - ENFORCEMENT SECTION
SECTION .0800 - SAFETY RULES AND
REGULATIONS
.0802 HAZARDOUS MATERIALS
(a) The rules and regulations adopted by the U.S. Department
of Transportation and the rules and regulations adopted by the
U.S. Department of Transportation relating to hazardous
materials (49 CFR Parts 170-185 170-190 - fonnerly Parts
71-79 - and amendments thereto) shall apply to all for-hire and
all private motor carrier vehicles engaged in interstate commerce
and or intrastate commerce over the highways of the State of
North Carolina, whether common carriers, contract carriers or
exempt caiiieis. Carolina.
^(b) The rules and regulations adopted by the U.S. Department
of Transportation and the transportation of hazardous materials
(49 CFR 170-185 170-190 and amendments thereto) shall also
apply to all for-hire motor carriers and all private motor carriers
engaged in the transportation ofhazardous waste and radioactive
waste materials in interstate and or intrastate commerce over the
highways of the State of North Carolina.
(c) The rules and regulations adopted by the U.S. Depai tineiit
of Transportation and the rul es and regulations adopted by the
U.S. Depaitment of Transportation relating to hazardous
materials (49 CFR Parts 170-190 and amendments thereto) shall
apply to all private motor carrier vehicles on the highways of the
State of North Carol ina used in commerce to transport
passengers or cargo:
(f) if such vehicle has a gross vehicle weight rating of ten
thousand pounds or more;
(2) i f such vehicle is designed to ti
"ansport more than ten
passengers, including the driver; or
(3) if such vehicle is used in the transportation of
materials found to be hazai-dous in accordance with
the Hazardous Materials Transportation Act as
amended in Tit le 49, Code of Federal Regulations.
(d)(c} All Code of Federal Regulations (CFR) Parts cited in
this Section are incorporated herein by reference including any
subsequent amendments. A copy of the CFR is available from
the Office of Superintendent of Documents, U.S. Government
Printing Office, Washington, D.C. 20402 at a cost set by that
office.
Authority G.S. 20-2; 20-381.
TITLE 25 - DEPARTMENT OF STATE PERSONNEL
Notice is hereby given in accordance with G.S. 150B-21.2
that the State Personnel Commission intends to adopt
rule(s) cited as25 NCAC IC .0801 -.0813. Notice of Rule-making
Proceedings was published in the Register on February
15, 2000.
Proposed Effective Date: April 1, 2001
A Public Hearing will be conducted at 9:00 a.m. on May 10,
2000 at the Administration Building, Third Floor Conference
Room, 116 West Jones St, Raleigh, NC 27603.
Reason for Proposed Action: Pursuant to Executive Order
No. 155 and S.L. 1999-328 the above referenced rules were
proposed to be adopted as temporary rules and were adopted as
temporary rules effective January 19, 2000. These rules will
demonstrate the State's leadership in reducing ground-ozone
and motor vehicles emissions through policies and guidelines.
This program would allow employees to workfrom their homes
instead of driving to the traditional office, and could be an
essential part of a plan to control the growth in vehicle miles
traveled, reduce gasoline consumed and air pollution emitted.
Comment Procedures: Written comments may be submitted to
Ms. Judith Bell, Office of State Personnel, 1333 Mail Service
Center, Raleigh, NC 27699-1333. Oral comments will be
received at the public hearing. Written comments must be
14:20 NORTH CAROLINA REGISTER April 17, 2000 1824
PROPOSED RULES
received no later than June 16, 2000.
Fiscal Impact
State Local
/
Sub. None
•
CHAPTER 1 - OFFICE OF STATE PERSONNEL
SUBCHAPTER IC - PERSONNEL ADMINISTRATION
SECTION .0800 - REQUIREMENTS FOR
TELEWORKING PROGRAMS
.0801 PURPOSE
Pursuant to the mandate contained in G.S. 126- to apply the
best methods ofpersonnel administration as evolved in business
and industry, the Office of State Personnel has established the
following rules to provide guidance to agencies in developing
teleworkingprograms. Given the widespread use ofteleworking
programs in the private sector, and the increasing frequency of
teleworking programs in the public sector, it is necessary that
guidelines be established by the Office of State Personnel so that
teleworking may be offered by state agencies as a work options
to ensure competitive advantages with other employers and to
meet the environmental and budgetary challenges of the fiiture
as directed by the legislature and governor.
Authority G.S. 126-4; S.L. 1999-328.
.0802 COVERED EMPLOYEES
Teleworking is available as a work option in every agency and
for every type of appointment, including permanent, temporary,
contract, or time limited and whether full time or part time-
However, the decision whether to allow a position or an
employee to telework is wholly within management discretion
and is not appealable to the State Personnel Commission.
Authority G.S. 126-4; S.L. 1999-328.
.0803 DEFINITIONS OF TERMS
For purposes ofthis rule, the terms below mean the following.
(1) Teleworking: a flexible work arrangement that allows
an employee to work at home, on the road, or from
another satellite location for all or part of their work
week. If job responsibilities require it. the teleworker
may be connected to the regular work location via
computer or may simply maintain contact via phone or
fax.
(2) Teleworker: an employee who performs all or part of
his job responsibilities away from the primary
workstation pursuant to a teleworking arrangement.
(3) Telecommutable Jobs: jobs, which have one or more
responsibilities, which are location independent and
measurable and could be performed from the primary
workstation, home, or another work location.
£4} Telework: those responsibilities which are performed
from home or some other work location away from
the primary workstation.
Authority G.S 126-4; S.L. 1999-328.
.0804 OFFICE OF STATE PERSONNEL
RESPONSIBILITIES
The Office of State Personnel will administer an office to
provide guidance to State agencies developing teleworking
1'
programs and to monitorthe savings provided by such programs.
The Office shall:
(1) Provide coordination for the programs;
£2] Provide staff to the Teleworking Advisory
Ql
(4]
(5}
£6)
Committee:
Conduct orientation for agency coordinators;
Train agency coordinators;
Review and approve any reports on the teleworking
programs; and
Compile, analyze, and report the impact of
teleworking programs in the State report.
Authority G.S 126-4; S.L. 1999-328.
.0805 DESIGNATION OF TELEWORK JOBS AND
TASKS
Each agency shall establish general agency policies and
procedures which provide for the definition of telecommutable
jobs/tasks.
(1) Each agency must identify jobs that are designated as
telecommutable and be responsible for providing
documentation, evaluation, and analysis to support the
selection of these jobs. A job should not be
considered for teleworking if other positions are
negatively impacted. However, a job may be
considered if the incumbent employee is able to:
(a) Meet internal agency and client needs while
teleworking;
(h) Set clear work objectives, with timelines and
clear expectations;
(c) Control and schedule work flow;
£d}
m
Set clearly defined tasks for teleworking days;
Benefit from quiet or uninterrupted time; and
£2)
Schedule face-to-face meetings on specified
days, to leave the other days free for
teleworking.
Possible teleworking tasks may include but are not
limited to the following: Analysis, auditing reports,
batch work, calculating, computer programming,
conducting business by phone, data entry, design
work, dictating, drafting, editing, evaluations, field
visits, graphics, maintaining data bases, preparing
budgets, preparing/monitoring contracts, project
management, reading, record keepin g, research,
sending/receiving E-mail, spreadsheet analysis,
typing, word processing, writing, etc.
Authority G.S 126-4; S.L. 1999-328
.0806 DESIGNATION OF EXPECTED RESULTS OF
TELEWORKING ARRANGEMENTS
1825 NORTH CAROLINA REGISTER April 17,2000 14:20
PROPOSED RULES
(a) Each agency shall establish agency policies and
procedures that provide for the definition of expected results
under a teleworking arrangement;
\ £b) The agency shall follow the following guidelines when
defining expected results of a teleworking arrangement:
(1) Each agency shall establish measurable performance
standards which are results-oriented and which
describe quantity and quality of work.
(2) Each employee selected for participation in the
teleworking program will be expected to meet the
established responsibilities of the position.
Teleworking does not affect the established
responsibilities of the position.
(3) The manager, in approving the teleworking
arrangement, is responsible for determining the
expected results for the agreed upon work
arrangement. These results should be discussed and
agreed to by the teleworker. supervisor, and manager
prior to the dates for the teleworking and should be
put in writing for the teleworker and the manager.
The teleworker' s direct supervisor should be involved
in the decision process since any work done by the
teleworker must be within the framework of the
current assignment.
Authority G.S. 126-4; S.L. 1999-328.
.0807 DESIGNATION OF AN AGENCY
TELEWORKING COORDINATOR
I Each participating agency will select an Agency Teleworking
Coordinator to be responsible for overall program organization
and analysis. The Agency Coordinator shall:
(1) Provide oversight for the agency teleworking
program.
(2) Arrange briefing to educate management about the
teleworking program. The Office of State Personnel
will provide a briefing about teleworking in general.
if desired.
(3) Work with agency management to determine the
parameters of the agency teleworking programs.
(4") Distribute survey before telecommuting is
implemented to participating supervisors and
teleworkers to be completed and returned to the
AgencyTeleworkingCoordinatorprior to the training.
(5) Provide training of teleworker/supervisor teams.
During the training, teleworkers and their supervisors
will develop the terms of the teleworking
arrangement which will be in writing and signed by
both the employee and the supervisors.
(6) Meet with teleworkings participants in periodic focus
groups to learn of their experiences and to address
problems and suggest resolutions if necessary.
(7) After a position has been designated teleworking for
six months, issue a survey to supervisors, teleworkers
and related non-teleworkers.
(8) Meet with upper management to discuss survey
results, recommend program revision, and identify
program expansion opportunities within the agency.
Authority G.S. 126-4; S.L. 1999-328.
.0808 DESIGNATION OF EMPLOYEES FOR
TELEWORK ARRANGEMENT
Each participating agency will identify selection criteria for
employees. Each agency has the authority to determine which
employees under its supervision meet the agency standard for
selection. These standards, which are necessary for a successful
teleworking arrangement, shall include that the employee:
(T) Is able to work independently; requires minimal
supervision;
(2) Requires minimal face-to-face interaction while
teleworking;
(3) Has a high level of job knowledge and skill;
£4} Is results oriented; comfortable setting priorities and
deadlines;
(5) Has demonstrated a high level of productivity;
(6) Has a history of reliability;
£7} Has a Ml understanding of the operations of the
office and the specific requirements of the
telecommutable job;
(8) Keeps supervisor informed of progress and/or
problems;
£9} Knows who can make what decisions;
(10) Trusts the supervisor;
(11) Functions at good or above level;
(12) Has a safe and adequate work site free from
interruptions and secure;
(13) Prefers the home environment at least some of the
time; and
(14) Understands that teleworking is a work option granted
by management; and is willing to sign a written
summary of the terms of teleworking arrangement.
Authority G.S 126-4; S.L. 1999-328.
.0809 DESIGNATION OF EMPLOYEES FOR
TELEWORK ARRANGEMENT
Each participating agency will identify selection criteria for
supervisors. Each agency has the authority to determine which
employees under its supervision meet the agency standard for
selection. These standards, which are necessary for a successful
teleworking arrangement, shall include that the supervisor:
Trusts employees to do their jobs without constant
face-to-face supervision;
Has a results-oriented management style and
establishes clear, measurable objectives and desired
results;
Is flexible, allowing new approaches and solutions,
and is open to ideas from employees;
Keeps an open, positive attitude toward teleworking;
Provides timely and constructive feedback; and
Facilitates open communication among the members
of the team, including the supervisor, teleworker, co-workers
and support staff
ill
£2)
0}
£4}
(5}
£6}
Authority G.S 126-4; S L. 1999-328.
14:20 NORTH CAROLINA REGISTER April 17,2000 1826
PROPOSED RULES
.0810 DESIGNATION OF EMPLOYEES FOR
TELEWORK ARRANGEMENT
Each participating agency will provide for the orientation and
training of all teleworkers and supervisors. All participants in a
teleworking arrangement will attend orientation and training
sessions provided by the State and the agency. The orientation
sessions will introduce them to teleworking and instruct them on
factors that will assure the success of this effort. Training will
be provided to enhance the teleworking experience by preparing
teleworkers and supervisors to discern and resolve the key issues
which may be involved in their new working relationship.
Authority G.S. 126-4; S.L. 1999-328.
.0811 TERMS OF AGENCY TELEWORKING
POLICY OR GUIDELINES
Each agency shall develop a policy or set of guidelines, which
are reflective of agency-specific policies and include them, in
addition to the State policies. An agency's teleworking policy
will address these areas, in addition to any areas which are of
specific concern to the agency:
(1) Management Option - Offering the opportunity to
work at home is a management option; teleworking is
not a universal employee benefit. Any teleworking
situation is voluntary for the employee and at the
discretion of management and/or the employee's
supervisor.
(2) Conditions of Employment ; The teleworker's
conditions of employment with the State remain the
same as for non-teleworking employees.
(3) Salaries ; Benefits, leaves and state sponsored
insurance will not change as a result of teleworking.
(4) Safety and Liability - Since the employee's home
work space is an extension of the agency work space.
the State's liability for job-related accidents will
continue to exist during the employee's approved
work hours and the employee's designated work
location. It is the employee's responsibility to
maintain a safe, ergonomically correct home
workplace. The agency should be satisfied that the
employee's home work site conforms to its safety
standards. This may include inspections by the
agency of the employee's home work site as
necessary. The agency's teleworking policy should
also consider issues such as insurance coverage of
equipment located away from the office.
(5) Office Supplies - Office supplies will be provided by
the State and should be obtained during the
teleworker's in-office work period. Out-of-pocket
expenses for supplies normally available in the office
will not be reimbursed. The State will not provide
office flimiture.
(6) Security - To insure hardware and software security,
all software used for teleworking must be approved by
the supervisor and manager before installation.
Restricted-access or confidential information shall not
be taken out of the office or accessed through the
computer unless approved in the teleworking
agreement.
(7) Work Hours z The teleworking agreement shall
establish working hours. Any existing policies ^
covering flexible hours can be extended tot
teleworkers. Any changes to the employee's approved
work hours shall be reviewed and approved by the
supervisor and manager in advance. While
teleworking. the employee should stay reasonably
available via telephone during agreed-upon work
hours.
(8) Equipment and Software- The agency's teleworking
policy or the individual teleworking arrangement shall
define what equipment/software, if any, will be
provided by the State, and how this will be
determined. The agency policy or the individual
teleworking arrangement shall define liability,
technical support availability and the procedure for
servicing equipment. It should also specify any
requirements for number of phone lines, voice mail,
business lines and address long distance calls. If the
teleworker supplies the equipment/sofhvare. the State
does not assume liability for loss, damage or wear
unless otherwise agreed to in writing. Any State
equipment/software used in the home office may not
be used for personal purposes, and must be returned
immediately upon termination of the teleworking
agreement.
(9) Dependent Care - Teleworking is not a substitute for
dependent care. The teleworking arrangement shalL
define expectations regarding care of dependents on*
teleworking days. It should be noted that having a
dependent in the home while teleworking on any
given occasion may or may not affect an employee's
ability to work, but the expectations regarding the
presence of dependents shall be clearly addressed in
the agency policy or the individual teleworking
arrangement.
(10) Measures - All teleworkers and their supervisors shall
participate in studies and surveys when necessary to
evaluate the effectiveness and efficiency of the
teleworking program.
(in Training ; All potential teleworkers and their
supervisors shall attend a training session covering the
State's and agency's teleworking policies, as well as
the benefits and drawbacks of teleworking. This
training shall take place prior to the implementation of
a teleworking agreement.
Authority G.S. 126-4; S.L. 1999-328.
.081 2 DESIGNATION OF TERMS OF
TELEWORKING ARRANGEMENTS
All teleworking arrangements shall memorialize in writing the
mutual teleworking responsibilities of the participants in the
arrangement. Each participant in a teleworking arrangement.
^
employees, supervisors and managers, must sign the document
*
which contains the terms of the teleworking arrangement. At a
1827 NORTH CAROLINA REGISTER April 17, 2000 14:20
PROPOSED RULES
minimum, the document shall define the parameters of the
teleworking arrangement and shall include and address all policy
areas listed in 25 NCAC 1H.0811
m
£2}
Emploveesparticipating ina teleworkingarrangement
shall agree to:
(a) Be evaluated according to clear and measurable
performance standards;
rb) Attend training;
(c) Abide by written summary of the teleworking
arrangement: and
(d) Participate in surveys and focus groups.
Supervisors participating in a teleworking
arrangement shall :
(a) Attend orientation sessions for managers and
supervisors;
(b) Establish clear and measurable performance
standards;
(c) Attend training sessions;
(d) Abide by a Teleworking Agreement; and
(e) Participate in surveys, focus groups, and
evaluation.
Authority G.S. 126-4; S.L. 1999-328.
.0813 CANCELLATION OF TELEWORKING
ARRANGEMENT
(a) Due to the voluntary nature of the program, teleworkers
and/or management have the right to terminate the teleworking
arrangement at any time. Although teleworking is not an
employee entitlement or right, termination of employees from a
teleworking program must be done in writing and with
appropriate notice except in emergency situations.
(b) Termination ofa teleworkingarrangement by management
is not a grievable issue under personnel policies. An employee
who terminates a teleworking arrangement cannot be subjected
to disciplinary action.
Authority G.S. 126-4; S.L 1999-328.
14:20 NORTH CAROLINA REGISTER April 17, 2000 1828
TEMPORARY RULES
This Section includes temporary rules reviewed by the Codifier ofRules and entered in the North Carolina Administrative
Code and includes, from time to time, a listing oftemporary rules that have expired. See G.S. 150B-21.1 and 26 NCAC 2C
.0500 for adoption andfiling requirements. Pursuant to G.S. 150B-21.1(e), publication of a temporary rule in the North
Carolina Register serves as a notice of rule-making proceedings unless this notice has been previously published by the
agency.
TITLE 13 - DEPARTMENT OF LABOR
Rule-making Agency: North Carolina Department ofLabor
Rule Citation: 13 NCAC 7A .0302
Effective Date: March 30, 2000
Findings Reviewed and Disapproved by: Beecher R. Gray - Insufficient evidence to demonstrate that temporary rule is justified
to meet a serious and unforseen threat to public health, safety, or welfare.
Authority for the rule-making: G.S. 95-126; 95-131
Reason for Proposed Action: RRCstajfhas indicated that it will recommend that the RRC object to the amendments to the blasting
standard unless: (1) included within the blasting standard text itself is the information regarding location and costs ofobtaining
copies ofmaterials incorporated by reference, or (2) there is a separate rule-making with notice andpublic hearing with regard to
inclusion of the location and cost information in the OSH "copies of incorporated materials" rule, 13 NCAC 7A. 0302, or (3) the
location and cost information has been included in 13 NCAC 7A. 0302 pursuant to Chapter 150B prior to the RRC's consideration
of the blasting standard amendments. OAH stajfhas concurred. RRC staff and OAH staff are in agreement that a technical
correction pursuant to G.S. 150B-21.5 is not permissible. This temporary rule is being adopted, therefore, in order to ensure that
the location and cost information is included in 13 NCAC 7A. 0302 prior to consideration ofthe blasting standard amendments by
RRC. Adoption ofthe blasting standard amendments now is critical because experience and changes in technology, terminology, ,
safetypractices andprocedures have reached a point at whichfailure to act could result in serious injury or death ofworkers, seriou^
property damage or injury to members ofthe public.
Comment Procedures: Written comments may be submitted to Angela S. Waldorfat North Carolina Department ofLabor, 4 West
Edenton St., Raleigh, NC 27601.
CHAPTER 7 - OFFICE OF OCCUPATIONAL SAFETY AND HEALTH
SUBCHAPTER 7A - GENERAL RULES AND OPERATIONAL PROCEDURES
SECTION .0300 - PROCEDURES
.0302 COPIES AVAILABLE
Copies of the applicable Code of Federal Regulations (CFR) Parts or sections and industry standards referred to in this Chapter are
available for public inspection by contacting the North Carolina Department of Labor (NCDOL), Division of Occupational Safety
and Health or the NCDOL Library. The following table provides acquisition locations and the costs of the applicable materials on
the date this Rule was adopted:
Referenced Materials Available for Purchase From Cost
29 CFR 1903; 29 CFR 1904;
29 CFR 1905; 29 CFR 1908;
29 CFR 1913.10
Division of Occupational Safety & Health
http://www.dol.state.nc.us/
$1 /page requested
29 CFR 1910 Division of Occupational Safety & Health
http://www.dol.state.nc.us/
$15.90 each
\
1829 NORTH CAROLINA REGISTER April 17,2000 14:20
TEMPORARY RULES
29CFR1915;29CFR1917 Division of Occupational Safety & Health
http://www.dol.state.nc.us/
Single copy: Free
29CFR1926 Division of Occupational Safety & Health
http://www.dol.state.nc.us/
$12.72 each
29CFR1928 Division of Occupational Safety & Health
http://www.dol.state.nc.us/
Single copy: Free
The above CFR Parts and other CFR U.S. Government Printing Office $34.00/Part
Parts Washington, D.C. 20402
(202)512-1800
http://www.gpo.eov/
ANSI/NFPA 101-1991 National Fire Protection Association
1 Batterymarch Park
Quincy, Massachusetts 02269
(617)770-3000
http://www.nfpa.org/
$44.50 each
ANSI standards American National Standards Institute B30.9: $100
1 1 West 42"" Street Z9.2: $ 55
New York, New York 10036 Z41.1 $ 40
(212)642-4900 Z87.1 $ 35
http://www.ansi.org/ Z88.2 $ 50
Z89.2 $ 35
Z229.1:$45
Federal Specification QQ-P-416 Federal Supply Services Specification Section
470 East L'Enfant Plaza SW, Suite 8100
Washington, DC 20407
(202)619-8925
http://www.gsa.gov/fssintro.htm
$ 7.00 each
Schedule 30 Bureau of Mines 24 FR 245 pages 10210-10204, December 17, 1959 $1.00/page
or Division of Occupational Safety & Health requested
http://www.msha.gov/
Institute of Makers of Explosives (IME) 1 120 Nineteenth St. NW, Suite 310 No. 17 $9.00
Publications Washington, DC 20036 No. 20 $4.50
(202) 429-9280 No. 22 $6.00
http://www.ime.org
History Note: Authority G.S. 95-133; 150B-21.6;
Eff. August!, 1993;
Amended Eff. July 1, 1998; June 1, 1994;
Codifier determined that agency'sfindings ofneed did not meet criteria for temporary rule on March 20, 2000;
Temporary Amendment Efi^. March 30, 2000.
TITLE ISA - DEPARTMENT OF ENVTRONMENT
AND NATURAL RESOURCES
Rule-making Agency: NC Marine Fisheries Commission
-Jlule Citation: ISA NCAC 31 .0101, .0112; 3J .0209; 3M
^0201, .0503. .0513; 30 .0501-.0506; 3Q .0107
Temporary Effective Date: May 1, 2000
Findings Reviewed and Approved by: Beecher R. Gray
Authority for the rule-making: G.S. 113-132; 113-134; 113-
182; 113-221; 1438-289.52
Proposed Effective Date for Permanent Rule: April 1, 2001
Public Hearings will be conducted at 7.00p.m. on May 3, 2000
at the Comfort Inn South Oceanfront, 8031 Old Oregon Inlet
Road, Nags Head; May 15, 2000 at the Dept ofEnvironment &
14:20 NORTH CAROLINA REGISTER Aprill7,2000 1830
TEMPORARYRULES
Natural Resources, 127 Cardinal Drive Ext., Wilmington; May
16, 2000 at the Duke University Marine Lab Auditorium, Pivers
Island, Beaufort: May 25, 2000 at the Gateway Convention
Center, Rocky Mount. Oralpresentation lengths may be limited,
depending on the number ofpeople that wish to speak at the
public hearings.
Reason for Proposed Action:
ISA NCAC31.0101, .0112; 3M. 0201,. 0503; 3O.0501-.0506 -
The Fisheries Reform Act of 1997 and its amendments (House
Bill 1448) requires a complete review of the Marine Fisheries
Laws. G.S. 113-169.1, as adopted, authorizes the Marine
Fisheries Commission to adopt permits and establish fees.
ISA NCAC 3J. 0209; 3M.0S13 - The Fisheries Reform Act of
1 997 and its amendments (House Bill 1448) required a complete
review ofthe procedures for management offisheries in North
Carolina. Included were requirementsfor Fishery Management
Plans. This amendment is a necessary temporary management
measurefor the completed River Herring Fishery Management
Plan. Section 5.3 states "This act constitutes a recent act ofthe
General Assembly within the meaning of G.S. 150B-21. 1
".
ISA NCAC3Q.0107- The Fisheries Reform Act of1997 and its
amendments (House Bill 1448) requires a complete review and
in most cases, a rewrite of the Marine Fisheries Laws. These
revisions include separation ofgear and limitsfor commercial
license holders and recreational commercial gear license
holders.
Comment Procedures: Written comments are encouragedand
may be submitted to the MFC, Juanita Gaskill, PO Box 769,
Morehead City, NC2855 7. Oral comments may bepresented at
thefour scheduledpublic hearings The public commentperiod
will end on June 15, 2000.
Fiscal Impact
State Local Sub. None
/
CHAPTER 3 - MARINE FISHERIES
SUBCHAPTER 31 - GENERAL RULES
SECTION .0100 - GENERAL RULES
.0101 DEFINITIONS
(a) All definitions set out in G.S. 113, Subchapter IV apply to
this Chapter.
(b) The following additional terms are hereby defined:
( 1 ) Commercial Fishing Equipment or Gear. All fishing
equipment used in coastal fishing waters except:
(A) Seines less than 30 feet in length;
(B) Collapsible crab traps, a trap used for taking
crabs with the largest open dimension no larger
than 1 8 inches and that by design is collapsed
at all times when in the water, except when it is
being retrieved from or lowered to the bottom;
(C) Spears, Hawaiian slings or similar devices
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(D)
(E)
(F)
(G)
(H)
(I)
which propel pointed implements by
mechanical means, including elastic tubing or
bands, pressurized gas or similar means;
A dip net having a handle not more than eight|
feet in length and a hoop or frame to which the
net is attached not exceeding 60 inches along
the perimeter;
Hook-and-line and bait-and-line equipment
other than multiple-hook or multiple-bait
trotline;
A landing net used to assist in taking fish when
the initial and primary method of taking is by
the use of hook and line; and
Cast Nets;
Gigs or other pointed implements which are
propelled by hand, whether or not the
implement remains in the hand; and
Up to two minnow traps.
Fixed or stationary net. A net anchored or staked to
the bottom, or some structure attached to the bottom,
at both ends of the net.
Mesh Length. The diagonal distance from the inside
of one knot to the outside of the other knot, when the
net is stretched hand-tight.
Possess. Any actual or constructive holding whether
under claim of ownership or not.
Transport. Ship, carry, or cause to be carried or
moved by public or private carrier by land, sea, or air.
Use. Employ, set, operate, or permit to be operated or >^->|k
employed. \ 'D
Purse Gill Nets. Any gill net used to encircle fish
when the net is closed by the use of a purse line
through rings located along the top or bottom line or
elsewhere on such net.
Gill Net. A net set vertically in the water to capture
fish by entanglement by the gills in its mesh as a result
of net design, construction, mesh size, webbing
diameter or method in which it is used.
Seine. A net set vertically in the water and pulled by
hand or power to capture fish by encirclement and
confining fish within itself or against another net, the
shore or bank as a result of net design, construction,
mesh size, webbing diameter, or method in which it is
used.
Internal Coastal Waters or Internal Waters. All
coastal fishing waters except the Atlantic Ocean.
Channel Net. A net used to take shrimp which is
anchored or attached to the bottom at both ends or
with one end anchored or attached to the bottom and
the other end attached to a boat.
Dredge. A device towed by engine power consisting
of a frame, tooth bar or smooth bar, and catchbag used
in the harvest of oysters, clams, crabs, scallops, or
conchs.
Mechanical methods for clamming. Includes, but not i
limited to, dredges, hydraulic clam dredges, stick'
rakes and other rakes when towed by engine power,
patent tongs, kicking with propellers or deflector
^
1831 NORTH CAROLINA REGISTER April 17,2000 14:20
TEMPORARY RULES
plates with or without trawls, and any other method
that utilizes mechanical means to harvest clams.
(14) Mechanical methods for oystering. Includes, but not
limited to, dredges, patent tongs, stick rakes and other
rakes when towed by engine power and any other
method that utilizes mechanical means to harvest
oysters.
(15) Depuration. Purification or the removal of
adulteration from live oysters, clams, and mussels by
any natural or artificially controlled means.
(16) Peeler Crab. A blue crab that has a soft shell
developing under a hard shell and having a definite
pink, white, or red line or rim on the outer edge of the
back fin or flipper.
(17) Length of finfish.
(A) Total length is determined by measuring along
a straight line the distance from the tip of the
snout with the mouth closed to the tip of the
compressed caudal (tail) fin.
(B) Fork length is determined by measuring along
a straight line the distance from the tip of the
snout wdth the mouth closed to the middle of
the fork in the caudal (tail) fin.
(C) Fork length for billfish is measured from the
tip of the lowerjaw to the middle of the fork of
the caudal (tail) fin.
Licensee. Any person holding a valid license from
the Department to take or deal in marine fisheries
resources.
Aquaculture operation. An operation that produces
artificially propagated stocks of marine or estuarine
resources or obtains such stocks from authorized
sources for the purpose of rearing in a controlled
environment. A controlled envirormient provides and
maintains throughout the rearing process one or more
of the following: predator protection, food, water
circulation, salinity, or temperature controls utilizing
proven technology not found in the natural
environment.
(20) Critical habitat areas. The fragile estuarine and marine
areas that support juvenile and adult populations of
economically important seafood species, as well as
forage species important in the food chain. Critical
habitats include nursery areas, beds of submerged
aquatic vegetation, shellfish producing areas,
anadromous fish spawning and anadromous fish
nursery areas, in all coastal fishing waters as
determined through marine and estuarine survey
sampling. Critical habitats are vital for portions, or
the entire life cycle, including the early growth and
development of important seafood species.
(A) Beds ofsubmerged aquatic vegetation are those
habitats in public trust and estuarine waters
vegetated with one or more species of
submerged vegetation such as eelgrass (Zostera
marina), shoalgrass (Halodule wrightii) and
widgeongrass (Ruppia maritima). Th