> NORTH CAROLINA
REGISTER
VOLUME 12 • ISSUE 17 • Pages 1606 - 1691
March 2, 1998
IN THIS ISSU5
Executive Orders
Administration
Agriculture
Commerce
General Contractors ;
:
'
Environment and Natural Resources
Health and Human Services
Insurance
Justice
Labor
Medical Examiners
Nursing, Board of
Public Education
Revenue
Rules Review Commission
Contested Case Decisions
\
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For those persons that ha\-e questions or concerns regarding the Administrative Procedure Act or any of its
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can address, but are not inclusive.
i
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Raleieh. North Carolina 2 "60 1 -28 17 :::-;"--"""""
'-;:;.::;••-......
contact NfoUy Masich. Director .APA Services
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Fiscal Notes «& Economic Analysis
Office of State Budget and Management
. 1 16 West Jones Street
:' ' Raleigh. North Carolina 2^603-8005
. contact: Nfark Sisak. Economist III
; ? Anna Tefft. Economist II
mmasich a oah. state ncus
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msisakSosbm statenc.us
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Rule Review and Legal Issues ;|
Rules Re\ lew Commission % ,1
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\\ contact: Joe DeLuca Jr . Staff Director Counsel
\\\ T' Bobbv Brsan. Staff Attorney
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This publication is primed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
IN THIS ISSUE
)
Volume 12, Issue 17
Pages 1606 - 1691
March 2, 1998
This issue contains documents officially filed
through February 9, 1998.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
PO Drawer 27447
Raleigh, NC 27611-7447
(919) 733-2678
FAX (919) 733-3462
Julian Mann III, Director
Bradley Buie, Acting Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Jean Shirley, Editorial Assistant
Linda Richardson, Editorial Assistant
I. EXECUTIVE ORDERS
Executive Orders 128-129 1606 - 1607
II. PROPOSED RULES
Environment and Natural Resources
Wildlife Resources Commission 1608 - 1610
Revenue
Individual Income Tax 1610
Motor Fuels Tax 1610
III. TEMPORARY RULES
Administration
Purchase and Contract 161 1 - 1616
Environment and Natural Resources
Departmental Rules 1617 - 1619
Health and Human Services
Governor Morehead School 1616 - 1617
IV. APPROVED RULES 1620 - 1661
Agriculture
Plant Industry
Veterinary Division
Commerce
Community Assistance
Environment and Natural Resources
Coastal Management
Environmental Management
Health Services
Soil and Water Conservation Commission
Water Pollution Control Systems Operators Certification
Health and Human Services
Commission for Mental Health, Developmental
Disabilities and Substance Abuse Services
Facility Services
Insurance
Life and Health Division
Justice
Sheriffs' Education and Training Standards Commission
Labor
Migrant Housing
Licensing Boards
General Contractors
Medical Examiners
Nursing Board
Public Education
Elementary and Secondary Education
V. RULES REVIEW COMMISSION 1662 - 1665
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions 1666 - 1676
Text of Selected Decisions
96 OS? 1 157 1677 - 1681
97 DHR 0552 1682 - 1684
97 OSP 0594 1685 - 1690
VH. CUMULATIVE INDEX 1-79
i
The North Carolina Register is published semi-monthly lor $195 per year by the Office of Admmistrative Heanngs. 424 North Blount Street, Raleigh.
NC 27601. Application to mail at Penodicals Rates is pending at Raleigh. NC. NC POSTMASTER: Send Address changes to the OAWNorth
Carolina Register. PO Drawer 27447. Raleigh. NC 27611-7447
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EXECUTIVE ORDERS
EXECUTIVE ORDER NO. 128
DESIGNATING THE YEAR OF THE VOLUNTEER
WHEREAS, North Carolina's volunteers are among
the state's most valuable assets; and
WHEREAS, North Carolina's volunteers g^'eatly
enhance the quality of life for the people of North Carolina,
especially children and youth; and
WHEREAS, North Carolina's volunteers merit praise
for their efforts to address the state's unmet educational, social,
environmental and public safety needs; and
WHEREAS, the immense value of connecting
communities and various groups within communities through
volunteerism and community service deserves recognition; and
WHEREAS, partnerships involving businesses, civic
groups, non-profit organizations, religious organizations and
governmental agencies are continually needed to meet new and
ongoing challenges facing communities today; and
WHEREAS, young people need mentors to offer
guidance and encouragement and to assist children and youth in
developing the skills to successful in all walks of life; and
WHEREAS, increased citizen involvement and a
greater diversity of volunteers is necessary to solve community
problems; and
WHEREAS, it is important that the objectives of the
Presidents' Summit for America's Future and the Governor's
Summit on America's Promise and Volunteerism be met.
NOW, THEREFORE, by the power vested in me as
Governor by the laws and Constitution of North Carolina, IT
IS ORDERED:
1998 is hereby designated as the Year of the
Volimteer. The Governor's Office of Citizen and Community
Services and the North Carolina Commission on National and
Community Service shall be designated to assist communities
in developing and strengthening volunteer initiatives.
This Order shall be effective immediately and expire
on December 3 1 , 1998.
Done in Greensboro, North Carolina, this 21st day of
January, 1998.
EXECUTIVE ORDER NO. 129
GOVERNOR'S TASK FORCE ON DRIVING WHILE
IMPAIRED
WHEREAS, the operation of motor vehicles on our
highways by persons while impaired constitutes a serious threat
to the health and safety of our citizens; and
WHEREAS, a large portion of the fatal accidents on
our highways are alcohol related; and
WHEREAS, the Governor's Highway Safety Initiative
through the "Booze It and Lose It" program has made driving
while impaired a major area of emphasis; and
WHEREAS, the State of North Carolina must consider
strong measures designed to deter and prevent the operation of
motor vehicles by persons while impaired;
NOW, THEREFORE, by the power vested in me as
Governor by the laws and Constitution of North Carolina, IT
IS ORDERED:
Section L Establishment.
The Governor's Task Force on Driving While
Impaired is reestablished. The Task Force shall be an ad hoc
committee of the Governor's Highway Safety Commission.
The Task Force shall be composed of not more than thirty-five
members appointed by the Governor to serve at the pleasure of
the Governor. The Governor shall designate one of the
members as Chair and one as Vice Chair. The members of the
Governor's Highway Safety Commission shall be ex
officio, voting members of the Task Force. Additional
members shall include, but not be limited to representatives of
law enforcement, the judicial system and the General
Assembly.
Section 2^ Meetings.
The Task Force shall meet regularly at the call of the
Chair and may hold special meetings at any time at the call of
the Chair, or the Governor. The Task Force is authorized to
conduct public hearings.
.Section 3. Expenses.
Members of the Task Force shall be reimbursed for
such necessary travel and subsistence expenses as are authorized
by N.C.G.S. 138-5. Funds for reimbursement of such
expenses shall be made available from funds authorized by the
Governor's Highway
Safety Program.
Section 4^ Duties.
The Task Force shall have the following duties:
(a)
(b)
(c)
(d)
Review the General Statutes of North
Carolina applicable to driving while
impaired;
Review proposals in other states designed to
deter driving while impaired;
Consider proposals for North Carolina;
Recommend actions to reduce driving while
impaired; and
12:17 NORTH CAROLINA REGISTER March 2, 1998 1606
EXECUTIVE ORDERS
(e) Other such duties as assigned by the Chair or
the Governor.
Section 5^ Reports.
The Task Force shall present an interim repon to the
Governor no later than May 1 1, 1998 and a final report no later
than January 10, 1999. The Task Force shall be dissolved
when its final report is presented to the Governor.
This Order shall be effective immediately.
Done in the Capital City of Raleigh, Nonh Carolina,
this 4th day of February, 1998.
1607 NORTH CAROLINA REGISTER March 2, 1998 12:17
PROPOSED RULES
Tills Section contains the text ofproposed rules. At least 60 days prior to the publication of text, the agency published a
Notice of Rule-making Proceedings. TJie agency must accept comments on the proposed rule for at least 30 days from the
publication date, or until the public hearing, or a later date if specified in the notice by the agency. Tiie required comment
period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory
reference: G.S. 150B-21.2.
TITLE 15A - DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES
economic impact of at least five million dollars ($5,000,000) in
a 12-month period.
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Wildlife Resources Commission
intends to amend rules cited as 15A NCAC lOF .0311, .0317
and .0327. Notice of Rule-making Proceedings was published
in the Register on December 1, 1997.
CHAPTER 10 - WILDLIFE RESOURCES AND
WATER SAFETY
SUBCHAPTER lOF - MOTORBOATS AND WATER
SAFETY
Proposed Effective Date: April 1, 1999
A Public Hearing will be conducted at 10:00 on March 18,
1998 at the Archdale Building. Room 332, 512 N. Salisbury
Street. Raleigh, NC 27603.
Reason for Proposed Action: 15 NCAC lOF .0311 - The
Vance Count}' Board of Commissioners initiated the no-wake
zone pursuant to G.S. 75A-15, to protect public safety in the
area by restricting vessel speed. The Wildlife Resources
Commission may adopt this as a temporary rule pursuant to
S.L. 1997-0403 following the public hearing and public
comment period as indicated in this notice.
15 NCAC IOF .0317 - The Stanly County Board of
Commissioners initiated the no-wake zone pursuant to G. S.
75A-15, to protect public safety in the area by restricting vessel
speed. The Wildlife Resources Commission may adopt this as
a temporary rule pursuant to S.L. 1997-0403 following the
public hearing and public comment period as indicated in this
notice.
15 NCAC lOF .0327 - The Montgomery County Board of
Commissioners initiated the no-wake zone pursuant to G. S.
75A-15, to protect public safen,' in the area by restricting vessel
speed. The Wildlife Resources Commission mcry adopt this as
a temporary rule pursuant to S.L. 1997-0403 following the
public hearing and public comment period as indicated in this
notice.
Comment Procedures: Interested persons may present their
views either orally or in writing at the hearing. In addition,
the record of hearing will be open for receipt of written
commentsfrom March 2, 1998 to April 1, 1998. Such written
comments must be delivered or mailed to the North Carolina
Wildlife Resources Commission, 512 N. Salisbury Street,
Raleigh, NC 27604-1188.
Fiscal Note: 15 NCAC lOF .0311, .0317 and .0327 do affect
the expenditures or revenues of local government funds, but do
not affect state funds. These Rules do not have a substantial
SECTION .0300 - LOCAL WATER SAFETY
REGULATIONS
.0311 GRANVILLE: VANCE AND WARREN
COUNTIES
(trt
—
Definitions.—In addition to the definitions se t forth in
Parag raph (b) of Rule .0301 of this Section, the following
de finitions shall apply in this Rule :
Hi Corps. Corps of Engineers. United State s Aimy,
t2-) Reservoi r .—John II. Kerr Reservoi r in Granville.
Vance and Warren Counties.
(a) Regulated Areas. This Rule applies to the following
waters of John H. Kerr Reservoir in Granville. Vance and
Warren Counties:
(1) Kimball Point - Within 50 yards of the shoreline in
the northernmost cove of the Kimball Point
Recreation Area located at the western end of SR
1204 in Warren County.
(2) Kerr Lake Methodist Campground z Beginning 50
yards north and ending 50 yards east of the Kerr
Lake Methodist Campground.
(3) Lower Mill Creek z Beginning at a point on the
eastern side of Lower Mill Creek where it intersects
the North Carolina ; Virginia state line, running
across the creek with said state line and then running
in a southerly direction on both the east and west
sides of the creek to the head waters and including all
waters of tfie creek south of tlie state line.
£4J Flat Creek at NC Highway 39 Bridge - Within 50
yards on either side of the NC Highway 39 Bridge.
(b) Speed Limit Near Ramps. No person shall operate a
vessel at greater than no-wake speed within 50 yards of any
concrete boat launching ramp located on the reservoir in said
countie s, reservoir.
(c) Speed Limit in Mooring Areas. No person shall operate
a vessel at greater than no-wake speed while within a
designated mooring area established by or with the approval of
the US Army Corps of Engineers on the waters of the re se rvoi r
in said count ies, reservoir.
(d) Speed Limit. No person shall operate a vessel at greater
than no-wake speed within any regulated area of tlie reservoir
12:17 NORTH CAROLINA REGISTER March 2, 1998 1608
PROPOSED RULES
described in Paragraph (a) of this Rule.
ftfXe) Restricted Swimming Areas. No person operating or
responsible for the operation of a vessel shall permit it to enter
any designated swimming area established by or with the
approval of the US Army Corps of Engineers on the waters of
th e rese rvoir m said counties, reservoir.
(e) Speed Limit at Kimball Point. No pe rson shall ope rate
a vessel at g reat e r than no-wake speed within 50 yards of the
shtr7rre nne in th e northernmost cove of t he Kimball Pomt
Rec reation Area in the reservoir, such rec reation area being at
the weste rn e nd of 5R 1204 in Warren Count v.
tf) -shatt
—
S peed Limi t at Lowe r Mill Cree k.—No person
ope rate a vessel at gre ate r than no-wake speed beginning at a
po in t on t he east e rn sid e of Lower Mill Creek where it
in t e rsects the North Carolina - Vi rginia stal e lin e , running
across the c reek with said state line and th e n running in a
southe rly di rec tion on both the east and west sides of the c reek
t o t he head waters and including all wate rs of th e c reek south
of the stat e line.
(g) Speed Limi t at Ke r r Lake Me thodist Campground. No
pe rson shall ope rat e a vessel at g re at er than no-wake speed
beginning 50 yards north and ending 50 yards east of the Ken-
Lake Methodist Campground.
thillj Placement and Maintenance of Markers. The Corps
is designated a suitable agency fo r placement and maintenance
of markers implement ing this Rule .
—
The pe rimete r s of
desMiggnnaatte dq sswwiimming are as must be marrkkeedd withn ftiloat iliirnes
which, in conjunct ion with th e shore line , form completely
enclos e d areas.—In addit ion, supplementan' s t andards as se t
fo rt h in Rule .0301(g)(2) to (7) and ( 9 ) of this Section shall
app ly. Each of the boards of Commissioners of the above-named
counties is designated a suitable agency for placement
and maintenance of markers implementing this Rule for
regulated areas within their territorial jurisdiction in accordance
with the Uniform System, subject to the approval of tlie US
Army Corps of Engineers.
Authority G.S. 75A-3: 75A-15.
.0317 STANLY COUNTY
(a) Regulated Areas. This Rule applies to the following
waters and portions of waters : waters described as follows:
(1) that po rtion of Narrows Reservoir (Dadin Lake)
which lies within th e boundaries of Stanly County:
(Badin Lake):
t hat portion of Lake Tille r\' which lies within the
boundaries of Stanly County: Tillerv:
(A) Turner Beach Cove as delineated by
(2)
appropriate markers:
(B) Mountain Creek Cove
appropriate markers:
as delineated b^
t^i Turner Beach Cove on Lake Till e r,' as delineated by
appropriat e markers.
(3) Harper Heme Lake - Harper Heme Lake Subdivision
Cove as delineated by appropriate markers.
(b) Speed Limit Near Ramps. No person shall operate a
vessel at greater than no-wake speed within 50 yards of any
public boat launching ramp while on the waters of a regulated
area described in Paragraph (a) of this Rule.
(c) Restricted Swimming Areas. No person operating or
responsible for the operation of a vessel shall permit it to enter
any marked public swimming area established with the approval
of the Executive Director, or his representative, on the waters
of a regulated area described in Paragraph (a) of this Rule.
(d) Speed Limit. Limit in Specific Zone s. No person shall
operate a vessel at greater than no-v. ake speed within any 50
yards of the following marked zone located on any regulated
area described in Paragraph (a) of ihis Rule : Rule.
Hi Mountain Creek Cove. Lake Tillery.
(e) Placement and Maintenance of Markers. The Board of
Commissioners of Stanly County is hereby designated a suitable
agency for placement and maintenance of the markers hereby
aut horized, subject to the approval of the United States Coast
Guard and th e United States Army Coips of Engineers.
implementing this Rule in accordance with the Uniform
System. With regard to marking the regulated areas described
in Paragraph (a) of this Rule, supp lementan' standards as set
fo rth in Rule .0301(g)( 1) to (8) of this Section shall apply.
Authority G.S. 75A-3; 75A-15.
.0327 MONTGOMERY COUNTY
(a) Regulated Areas. This Rule applies to the waters and
portions of waters described as follows:
(1) Badin Lake. Lake ; Lakeshore Drive Cove as
delineated by appropriate markers.
(2) Lake Tillery.
(A) Woodmn Cove as delineated by appropriate
markers.
(B) Carolina Cove as delineated by appropriate
markers.
tSl Woodrun Cove. Those waters within 50 yards of the
mouth of Woodrun Cove located on Lake Till ery as
deline at e d by appropriate marke r s and within 50
yards of the boat ramp located at the head of
Woodrun Cove.
f4-)(^ Tuckertown Reservoir.
t5l Carolina Fore st Cove. The mouth of Cai-olina Forest
Cove located on Lake Tille ry as delineated by
appropriate marke r s.
(b) Speed Limit Near Shore Facilities. No person shall
operate a vessel at greater than no-wake speed within 50 yards
of any marked boat launching area, dock, pier, bridge, marina,
boat storage stmcnjre, or boat service area on the waters of the
regulated areas described in Paragraph (a) of this Rule.
(c) Speed Limit. No person shall operate a vessel at greater
than no-wake speed within any regulated area described in
Paragraph (a) of this Rule.
tO(d) Restricted Swimming Areas. No person operating or
responsible for the operation of a vessel shall permit it to enter
any marked public swimming area established with the approval
of the Wildlife Resources Commission on the waters of the
regulated areas described in Paragraph (a) of this Rule.
tdl(e) Placement and Maintenance of Markers. The Board
1609 NORTH CAROLINA REGISTER March 2, 1998 12:17
PROPOSED RULES
of Commissioners of Montgomery County is hereby designated
a suitable agency for placement and maintenance of the markers
hereby authorized, subject to the app roval of th e United States
Coast Guard and the United St ates Aiinv Coips of Engineers.
With regard to marking the regulated are as de scribed in
Pdiagraph (a) of diis Rule, supplementary standards as se t forth
iu Rule .0301(g)(1) to (8) of this Section shall apply.
implementing this Rule in accordance with the Unjform
System.
.0302. you may call Ms. Slusser at 919-733-4629.
Fiscal Note: These Rules do not affect the e.xpenditures or
revenues of slate or local governrneni funds . These Rules do
not have a substantial economic impact of at least five million
dollars ($5,000,000) in a 12-month period.
CHAPTER 6 - INDIVIDUAL INCOME
TAX DIVISION
Authority G.S. 75A-3; 75A-15.
TITLE 17 - DEPARTMENT OF REVENUE
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Department of Revenue intends to
amend nde cited as 17NCAC 6B .3204 and to repeal 1 7 NCAC
9L .0302.
Proposed Effective Date: August 1, 1998
Instructions on How to Demand a Public Hearing: TTie
Department ofRe\'enue is not subject to the notice and hearing
requirements of the APA. Nevertheless, the Department
publishes notice ofproposed text in the Register and will hold
a public hearing if there is sufficient interest in a public
hearing. The Department does this because it believes that
notice and hearing sene good public policy. A request for a
public hearing for Rule 17 NCAC 6B .3204 must be in writing
and be submitted to Mr. Sam McEwen, Personal Taxes Division
at P.O. Box 871. Raleigh. NC 27602, by March 16, 1998. A
request for a public hearing for Ride 1 7 NCAC 9L .0302 must
be in writing and be submitted to Ms. Jan Slusser, Motor Fuel
TaxDi\ision, P.O. Box 871, Raleigh, NC 27602. by March 16.
1998. Notice of any public hearing scheduled on this proposed
rule change will be published in the Register.
Reason for Proposed Action: 17 NCAC 6B .3204 - The
federal income tax negligence penalty has changed and is now
an acmracy penalty rather than a 5 percent negligence penally.
This rule is amended to reflect the change in the federal law.
17 NCAC 9L .0302 - Effective July 1, 1998, federal law will
tax kerosene in accordance with the procedure now used for
clear diesel. When this occurs, clear kerosene will be taxed by
the State as a motor fuel rather than an alternative fuel.
Comment Procedures: Written comments for 17 NCAC 6B
.3204 may be submitted to Mr. Sam McEwen at North Carolina
Department of Revenue, Personal Taxes Division, P.O. Box
871, Raleigh, NC 27602. Written comments for 1 7 NCAC 9L
.0302 may be submitted to Ms. Jan Slusser, at NC Department
ofRe\'enue, Motor Fuels Tax Division, P.O. Box 871. Raleigh.
NC 27602. Comments received will be taken into consideration
in adopting the permanent rule. If you have questions
regarding 17 NCAC 6B .3204. you may call Mr. McEwen at
919-733-3565. If you have questions regarding 17 NCAC 9L
SUBCHAPTER 6B - INDIVIDUAL INCOME TAX
SECTION .3200 - PENALTIES: INDIVIDUAL
INCOME TAX
.3204 NEGLIGENCE PENALTIES
fa^ When the 5 percent negligence federal accuracy penalty
has been assessed for federal income tax purposes, purposes
under Section 6662 of the Internal Revenue Code, the 10
percent negligence penalty will be assessed for state income tax
purposes unless the 25 percent negligence penalty applies.
(b)
—
A negligence penalty cannot be assessed when the fraud
penalty has been assessed with respect to the same deficiency.
There is no minimum dollar amount of negligence penalty. 8n
combined remms the negligence penal ty will be assessed based
on the addi t ional tax due on the spouse's return to which the
negligence penalty is being applied afte r being offset by any
ove rpayment due to the othe r spouse .
Authority G.S. 105-236(5): 105-236(6): 105-262.
CHAPTER 9 MOTOR FUELS TAX DIVISION
SUBCHAPTER 9L - ALTERNATIVE FUEL
SECTION .0300 - TAX AND LIABILITY
.0302 UNBLENDED KEROSENE AS
ALTERNATIVE FUEL
Unble nded kerosene is an alternative fuel.
Authority- G.S. 105-262: 105-449.130.
12:17 NORTH CAROLINA REGISTER March 2, 1998 1610
TEMPORARY RULES
Die Codifier of Rules has entered the following temporary rule(s) in the North Carolina Administrative Code. 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 1 - DEPARTMENT OF ADMINISTRATION
Rule-making Agency: Department of Administration
Rule Citation: / NCAC 5B .0301 - .0302. .0310. .0316.
.0401. .0801 - .0802. .1301. .1519, .1604, .1906
Effective Date: February 15, 1998
Findings Reviewed and Approved by: Beecher R. Gray
Authority for the rule-making: G.S. 143-52: 143-53(a)
Reason for Proposed Action: Session Law 1997-412 amended
State procurement laws, increasing benchmarks for universities
and State agencies, and also mandated the Secretary of
Administration to make ndes in certain areas of procurement
as a result of the benchmark changes. These include
advertising of solicitations handled by the Division of Purchase
& Contract, universities and State agencies as well as contract
language consistency and protest procedures. Tliese rule
changes clarify the process for all State procurement, which
was altered significantly by S.L. 1997-412.
Comment Procedures: Any person interested in making
written or verbal comment to these temporary ndes should
submit such comment to R. Glen Peterson, General Counsel.
N.C. Department of Administration. 116 West Jones Street,
Raleigh. NC 27603-8003; telephone: (919) 733-7232: fax:
(919) 733-9571: e-mail: glen_peterson@mail. doa. state. nc. us
CHAPTER 5 - PURCHASE AND CONTRACT
SUBCHAPTER 5B - PURCHASE PROCEDURES
SECTION .0300 - PROCUREMENT
AUTHORIZATION AND PROCEDURES
.0301 CONTRACTING REQUIREMENTS
(a) Whe re the total requirements fo r any give n commodity
or se rvice involve an expend i tu re m excess of th e e xpe nditu re
benchmark established under the provisions of G.S. 143-53. 1.
and whe re competition is solici te d, scaled offe r s shall be
solici ted by di rect mailing. Rule s applying to s ervic e contracts
do not apply to local school administrative units or community
colleges.
rtr)
—
In addition to Parag raph (a) of this Rule , fo r the
procu re ment of equipment , mate r ials, and supplies, scaled
offe r s shall be solicited by this Division by direct mail and by
advertisement in a newspaper of statewide circulation or by
elect ronic media when deemed more advantageous fo r certain
items o r commodities at least 10 days p r ior to the date
de signat ed fo r opening of the bids.
td
—
In addition to Paragraph (a) of this Rule, for the
procurement of services, the following shall apply:
Hi The Final decision-maki ng authority in regard to any
phase of procurement or perfonnance of any service
cont ract is with the SPG.—In addition to sci-vice
contracts delegated under Rul e s .0401 and .1301 of
this Subchapt er , the SPG may delegate agencies the
authority—to
—
handle—the—solicitation—
p
hase—for
contracts over the benchmark established under G.S.
143-53.1.
t?1 For each se rvice contract , -shaH the using agency
prepare a task descri ption of the se rvices and desi red
re sults. For statewide or multiagcncy term contracts
this Division will establish the task description of
services and desired re sults. Task descriptions shall
cont ain all of the following :
tAi the date(s) of service (The contract shall not
be—for
—
more—than th ree ye ars—including
e xt ensions and renewals, without the pr ior
approval of the SPG.);
(&) dettaaiilieeda sppeecciifiiiccaattiions or type and level of
work requi red:
(€) what the Stat e will fu rnish;
(Bi what the contracto r will fu rnish:
t&) the method, schedule, and procedures for
billing and payments:
i¥i other terms and condi t ions, specifications o r
procedures bearing on the conduct of the
work.
(31 Upon completion of the task descr i ption and desi red
re sults.—competi t ion—shaH—be
—
solicited.—where
available, utilizing a RFP o r IFD. which shall
contain the task de scri pt ion and de si red results, and
specify or provide fo r all of the following :
tAl—th e laws of North Carolina shall gove rn the
contract :
(fil the contract shall—be cancelable—upon—a
specified writ ten notice at any time by the
State for unsatisfacto ry performance or fo r the
convenience of the St at e:
(€1 provide—for—the
—
option—to—requi re
—
a
performance bond or other sui t able me ans of
ensuing faithful pe rformance when deemed by
the State to be necessary :
t^l that the contrac t is ente red into in compliance
with State and Federal ant i trust laws ;
(E) the contrac toi—shaH
—
furnish all worke r 's
compensation, liabili ty insurance, and other
insurance as may be required to protect
1611 NORTH CAROLINA REGISTER March 2, 1998 12:17
TEMPORARY RULES
>
himself and the Stat e from claims which may
arise
;
payment schedule :
price adjust ment provisions, if any :
fff) id ent ify the agency liaison pe rsonnel and any
other agency resources that wil
the cont racto r :
(t) the c rite ria for evaluation:
be available to
(*1 recprcst—a-qualifications
ajid refere nce s
de sc r iption—of—the
—
offeror 's
I
tj^—have the cost of the service broken down by
components :
ffci have—the—offeroi
ide nt ify—the—proposed
methodology fo r accomplishing the work (if
not fu rnished in the RFP).
An exception to Parag raph (c) of this Rule is where an
emergency condition exists.
(4^ After opening, and comple t ion of the evaluat ion, the
using agency shall prepare a written recommendation
fo r award, and if ove r the benchmark established
unde r G.S. 143-53.1. shall submit a copy of all
offers received and thei r recommendation to this
Division fo r award of contract or othe i
—
action
deemed—nec essaiy—by
—
tlrc—SP6—(Examples:
cancellat ion, negotiation, etc.). Notice of the
Division's decision shall be sent to the using age ncy.
Except where a waiver, special delegation, exemption, or an
emergency purchase is permitted by Rule, all purchases
involving the expenditure of public funds made by universities
and other agencies for commodities, services and printing, not
covered by statewide term contracts, shall comply with the
following delegations and procedures:
(1) Small Purchases: A small purchase is defined as the
purchase of commodities, services or printing, not
covered by a term contract, involving an expenditure
of public funds of five thousand dollars ($5.000) or
less. The executive officer or his designee, of each
agency shall set forth, in writing, purchasing
procedures for making small purchases. The
awarding of contracts for small purchases shall be the
responsibility of the using agency. The SPO may
require a copy of the small purchase procedures be
sent to the Division of Purchase and Contract.
(2) Purchases Governed by General Delegation or
Statute:
(a) For purchases made by a university or agency
involving an expenditure of public funds over
five thousand dollars ($5.000). up to the
benchmark established for a university under
the provisions of G.S. 1 16-31.10. and ug to
the general delegation limit for agencies
established by the SPO under the provisions of
G.S. 143-53(a)(2):
(il Competition shall be solicited:
(ii) Solicitation documents requesting or
inviting offers shall be issued:
(iii) Solicitation documents shall include
13]
standard language, including tenns and
conditions issued by the Division of
Purchase and Contract, unless prior
written approval is obtained from the
Division. If additional terms and
conditions are used, they shall not
conflict with Division's standard terms
and conditions, unless prior written
approval is obtained from the Division:
and
(iv) Mailing lists, if still maintained by the
Division of Purchase and Contract, may
be requested and used in addition to
mailing lists maintained by the
university or agency for the purpose of
soliciting competition.
(b) In addition, agencies and universities shall
advertise their solicitations through the
Division of Purchase and Contract, effective
September E, 1998. for the following
purchases:
£ij Agencies: For purchases involving an
expenditure of public funds exceeding
ten thousand dollars ($10.000). up to
the general delegation limit for an
agency established by the SPO under
the provisions of G.S. 143-53(a)(2):
(ii) Universities: For purchases involving
an expenditure of public funds
exceeding twenty five thousand dollars
($25.000). up to the benchmark
established for a university under the
provisions of G.S. 116-31.10.
Agencies and universities may advertise
sooner than the effective date and may also
advertise solicitations on smaller dollar
purchases through the Division of Purchase
and Contract.
(c) The awarding of contracts under the statutory
limit for universities and the general
delegation for all other agencies, shall be the
responsibility of the using agency.
Competitive Bidding Procedure: Where the total
requirements for commodities, services or printing
jobs involve an expendimre of public funds in excess
of the expenditure benchmark established under the
provisions of G.S. 1 16-31.10 or the general
delegations established by the SPO under the
provisions of G.S. 143-53(a)(2). the competitive
bidding procedure as defined in G.S. 143-52 shall be
utilized as follows:
(a) Sealed offers for commodities and printing
shall be solicited by the Division of Purchase
and Contract via advertisement:
(b) For service contracts, the SPO delegates to the
universities and other agencies the authority to
solicit sealed offers for their university/agency
12:17 NORTH CAROLINA REGISTER March 2, 1998 1612
TEMPORARY RULES
(4J
m
m accordance mth the rules established for
Subitems (2)(a) and (b) of this Rule. After
opening and completing the evaluation of
offers recei\ed. the agenc\- shall prepare a
written recommendation for award, and if
o\er the benchmark established under G.S.
1 16-31.10 or tlie general delegations
established b^; the SPO. shall submit a cop\' of
all offers received and their recommendation
of award or other action to tlie Division of
Purchase and Contract for approval or other
action deemed necessary by the SPO
(Examples: cancellation, negotiation, etc.).
Notice of tlie Division of Purchase and
Contract's decision shall be sent to the agency.
The awarding of contracts for ser\'ices shall be
the responsibility of tlie using agency.
(c) Sealed offers for statewide term contracts for
commodities, printing and sen'ices shall be
solicited by the Division of Purchase and
Contract via advenisement.
For each service contract handled bv the agency, the
agency shall prepare a task description of the services
and desired results. Task descriptions shall contain
ali of tlie following:
(a) The date(s) of service (The contract shall not
be for more than three years including
extensions and renewals, without the prior
appro\aJ of the SPO.):
fb) Detailed specifications or type and level of
work required:
(c) What the State shall furnish:
(d) What the contractor shall furnish:
(e) The method, schedule, and procedures for
billing and pa\ments: and
(f) Other subject matters bearing on the conduct
of the work.
Rules apphing to service and printing contracts do
not apply to local school administrative units or
community colleges.
Histon Note: Aulhonn- G.S. 143-49: 143-52; 143-53: 143-
53.1;'
Eff. February 1. 1976:
Readopted Ejf. Febniar.- 27. 1979:
Amended Ejf. February 1. 1996: Januar.- 1. 1985;
Temporarx Amendmetv. Eff. February 15. 1998.
.0302 MAILEVG LISTS
(a) The Division of Purchase and Cont ract shall maint ain
maiiiliiinngg lliiss t s ftorr the pu rpose ot SQiiciting otte rs on various
cat ego r ies of commodities and sendees.—'\ foiiii shall be
available upon request as an application to be included on an
appropriate lis t .
(b) Companie s may be added to or removed from th e se lists
after—taking—mtt)
—
consideration—Financial—standing—and
res ponsibility,—facilities—for—produc t ion.—dist ribution—and
se r vices.—length—of—frmc
—
successfully—m
—
busine ss,
r esp onsi%'eness. pcrfoniiancc as a supplier, the need for
competition, the budgeted amounts fo r maintaining the lists and
fo r duplicating and mailing and othe r such factors as may be
pe rtinent and reasonable.—Only companies responsive to
solicitat ions shall be retained on mailing lists.
tci
—
VV' hen i t is not economically feasible o r otherwise
practicable to use the enti re mailing lis t , the Division may use
th ose companies who may reasonably and practically be
e xpect ed to reply.
History Note: Authority G.S. 143-49; 143-52;
Eff. February 1. 1976;
Readopted Eff. February 27, 1979;
Amended Eff. February 1. 1996;
Temporary Repeal Eff. February 15. 1998.
.0310 NOTinCATION OF AWARD
If a solicitation is required to be advenised through the
Division of Purchase and Contract, then notice of the resulting
contract award shall be posted via the Division of Purchase and
Contract's home page by the agency issuing the solicitation
document in accordance with Rule .0316 of this Section. In
addition. Aft e r after contracts are awarded, successful
companies and age nci e s shall be notified in writing or
elect ronically, electronically by the agency issuing the
solicitation document.
History Note: Authority G.S. 143-49; 143-52; 143-53;
Eff. February 1. 1976;
Readopted Eff. February 27. 1979;
.Amended Eff. February 1. 1996; May 1. 1988; July 1. 1987;
Temporarx Amendment Eff. Februarx 15. 1998.
.0316 ADVERTISEMENT REQUIREMENTS
(a) Unless already required by statute, effective September
L, 1998 all advertisements required by Rule shall be through
the Division of I\irchase and Contract via the Division's home
page on the internet. If advertisement is required by Rule, the
solicitation shall be advertised at least once and at least 10 days
prior to the date designated for opening. This Rule does not
pre\ent solicitation of offers by additional direct mailings or
additional ad\ertisement by an agencv.
(b> -Agencies required by Rule to ad\ertise their solicitations
shall electronicallv transmit the required data directly to the
Di\'ision's home page. The required data shall include, the
complete solicitation document (specifications, requirements,
terms and conditions, etc), with agenc\' name, buyer name,
phone number and address for accessing hard copies of the
solicitation, solicitation identification number, title la short
description of the commodity', service or printing requirement),
and the opening date, time and place. If the solicitation
requires potential offerors to attend a mandators' conference or
mandator,' site visit, this information shall also be furnished
with the advertisement, to include date and time, location, and
contact person and phone number.
(c) Within three agency working days from award of
1613 NORTH CAROLINA REGISTER March 2, 1998 12:17
TEMPORARY RULES
contract that has been advertised through the Division, agencies
shall be required to electronically transmit an award notice
directly to the Division's home page on the internet. The
award notice shall be posted for at least 30 consecutive calendar
days. This award notice shall identify the contract and award
information.
(d) The exact format and instructions for submitting the
advertisement, summary notice, and award notice will be
furnished to all agencies by the Division.
(e) Exceptions to this Rule are as follows:
(1) When it is deemed by the agency's executive officer
or his designee that there is a valid reason for the
agency not to transmit the advertisement or award
notice electronically, that agency may submit the data
to tlie Division, so the Division may transmit k
electronically: or. the agency may place the
advertisement (excluding the complete solicitation
document) via newspaper. If advertised via
newspaper, the agency which issued the solicitation
document shall be responsible for the advertisement
and the award notice shall not be required . Some
valid reasons include computer equipment failure or
networking difficulties, or insufficient copies of
samples for a printing job.
(2) If there is an attachment to a solicitation that the
agency determines will not be electronically
transmitted, then the solicitation document, when
electronically transmitted, shall include instructions
to contact the agency which issued the solicitation to
obtain the attachment.
(3) If an agency determines that it is not feasible to
electronically transmit a particular solicitation
document through the Division's home page, then
the agency shall electronically transmit a summary
notice, the same way as if they had electronically
transmitted the solicitation document, which will
instruct someone inquiring on tlig Division's home
page about the solicitation, to contact the agency for
a hard copy.
History Note: Authority G.S. 143-52; 143-53;
Temporary Adoption Eff. February 15. 1998.
SECTION .0400 - INFORMAL PROPOSALS
(QUOTATION) PROCEDURE
.0401 GENERAL DELEGATION
ftt^
In maki ng purchases of commoditi es and se rvices not
General—Delegat ion, which cove r s expenditure s over two
thousand—ftvc
—
hundred—dollars—(S2.500)—btrt—nrrder—the
expenditure benchmark, shall be acquired as follows:
Hi Compc'.i t ion must be solicited, where available: and
(^ All purchase t ransactions shall be documented. This
include s a record of all quot es received, wr itten and
vcrbal. and wri tten
quote.
re ason fo r award to othe r than
Written—
r
easons—for—warvei—and
emergency pu rchases shall also be made a matter of
record: and
t^j All purchasing files must be retained fo r a perniod of
five year s afte r exp i ration.—This include s purchase
orders (term contract and non-term contrac t ), quotes
(verbal—and
—
wr itten).—waiver s.—and
—
emergency
p u rchases.—All supporting documentat ion must be
kept—in—the—frlc—dtrrrng—tlrts—
r
etent ion—
p
e riod
( Exampl e -aH
—
quotes—
r
eceived.—tampics : re ason—for
contracting with other than low quote or with sole
sou rce(s). is a waive r or an emergency purchase,
copy of purchase order and any corresponde nce): and
Hi In addit ion, for purchases over five thousand dollars
($5.000)—bttt—strH—less—than—the
—
expenditure
benchmark, agencies shall do the following :
tA) Agencies are requi red to issue their own
solicitation document s. This shall also apply
to a waiver or emergency purchase, if time
pe rmits, and
fB^—The
—
solici tation—docume nts—sent—otrt—by
agencies shall include terms and conditions
applicable to the requi rement .
td
—
Awarding of contracts under the general delegation of
this Section shall be the responsibility of the age ncy's e xecutive
office r .
(d) Additional rules applying to se rvice contracts are in Rule
.0301 of this Subchapter .
History Note: Authority G.S. 143-52; 143-53; 143-53.1;
Eff. February 1, 1976;
ReadoptedEff. February 27. 1979;
Amended Eff. February 1, 1996; January 1, 1985;
Temporary Repeal Eff. Februar\ 15. 1998.
SECTION .0800 - PRINTING
.0801 GENERAL POLICY
The Division of Purchase and Contract shall make provisions
for o r cont racts fo r the printing requi rement s of, all agencies,
with the except ion of community colleges and local school
covered by state term contiact s and estimated to be l e ss than the administrative units, eithe r through the use of applicable state
facili t ie s, de l e gat ion, waive r , or by seeking compet ition in the
open market .
expenditure benchmark established under the provisions of G.S.
143-53.1, the SPG may authorize agencies unde r a gene ral
delegation to make those purchases.—Rul e s for print ing
requirements are covered by Section .0800 of t his Subchapte r .
Rules applying to se rvice contracts do not apply to local school
administrat ive unit s or community colleges.
(b)
—
Small purchase s are gove rned by Rule .1301 of this
Subchapt er . Purchases of commodities and services under the
History Note; Authority G.S. 143-49; 143-53;
Eff. February 1. 1976;
ReadoptedEff. February 27, 1979;
Amended Eff. February 1, 1996;
Temporary Repeal Eff. February 15. 1998.
12:17 NORTH CAROLINA REGISTER March 2, 1998 1614
TEMPORARY RULES
.0802 PROCEDURE
(a) The dollar limits for handling contracts for printing shall
be as follows :
(4-) Gener al State government agencies and de partments
may handle p rinting cont racts up to five hund red
dollar s <S500) pe r job.
(5^ The universities and institutions may handle printing
contracts up to ten thousand dollar s (SIO.OOO) pe r
job.
(3^ All print ing contracts over dncse dollar limits shall be
handled by the Division of Purchase and Cont ract.
(b) All printing cont rac t s over five hund red dollars (5500)
which cannot be sat isfied by the Department of Correction in
accordance with G.S. 148-70. shall be handled as follows :
("H Competition must be solicited, where available; and
(5^ All purchase transac t ions shall be documented. This
includes a record of all quotes received, written and
ve rbal, and written reason fo r award to other than
krw
—
quote. Writt en—re asons—for
—
waive r—and
emerge ncy pu rchases shall also be made a matter of
record : and
(3^ All purchasing files must be retained fo r a pe riod of
five year s afte r expi ration.—This include s purchase
of this Subchapter . Rules applying to printing contracts do not
app ly to local school administrative units or community
colleges. The Executive Officer of each agency shall set foith.
in writing, purchasing procedures fo r making small purchases.
Awarding of contracts fo r small purchases shall be the
responsibility of the agency's executive office r . The SPO may
requi re a copy of the small purchase procedures be sent to the
Division of Purchase and Contract.
History Note: Authority G.S. 143-53;
Eff. February 1, 1976;
Readopted Eff. February 27, 1979;
Amended Eff. February 1, 1996;
Temporary Repeal Eff. February 15. 1998.
SECTION .1500 - MISCELLANEOUS
PROVISIONS
.1519 PROTEST PROCEDURES
A party wanting to prot est a contract award handled by the
Division of Purchase and Contract must submit a wr itten
request fo r a prot est meeting to the SPO which must be
received in the Division of Purchase and Contract within 30
orde r s, quotes (verbal and wr itten), waive r s, and consecutive cal e ndar days from the date of the protested
emergency purchases. All supporting documentation
must be kept in the fil e du ring t his retention pe riod
(Example
t4i
tcsi ati
—
quot es—
r
eceived.—
r
eason—tot
contracting wi th othe r than low quote or with sole
source(s), is a waive r or an eme rgency purchaser
copy of purchase orde r and any corresponde nce ): and
In addition, for printing contracts ove r five thousand l e tt er .—If not, the SPO will schedule a meeting with the
dollar s ($ 5 ,000) but still within the limits specified
contract award. 1 nis lette r must contain specific sound reasons
and any supporting docume ntation for why the party is
p rotesting the award or the protes t will be promptly reject e d.
If the SPO can render a de cision based on th e facts without a
mee ting, a wr itten response with a decision will be rende red
within 10 consecutive calendar days of the receipt of th e prot es t
rr
—
wil
protesting party to hear thei r complaint. This meeting will be
in Paragraph (a) of this Rul e , th e se guidelines shall held within 30 consecutive calendar days afte r recei pt of the
be followed : wr itte n protest. The SPO will respond to the prote s t ing party
documents shall be issued.—This
in writing with a decision within 30 consecutive calendar days
from the date of the protest meeting. All decisions of the SPO
shall be the final administrat ive review.
(a) To insure fairness to all offerors and to promote open
competition, agencies and the Division of Purchase and
Contract shall actively follow-up and be consistent in
responding to an offeror's protest over contract awards.
(b) This Rule applies only to contracts with an actual or
estimated dollar value over ten thousand dollars (SIO.OOO). h
is recommended that agencies establish procedures to handle an
offeror's concerns for contracts with less dollar value.
(c) When an offeror wants to protest a contract awarded by
an agency over ten thousand dollars (SIO.OOO). the agency and
the offeror shall comply with the following:
(1) The offeror shall submit a written request for a
protest meeting to the agency's executive officer
which shall be received by the agency's executive
officer's office within 30 consecutive calendar days
from the date of the contract award. The executive
officer shall furnish a copy of this letter to the SPO
within 5 consecutive calendar days of receipt. The
offeror's letter shall contain specific sound reasons
and any supporting documentation for why they have
tA) Solicitation shall also apply to a waive r o r emergency
purchase, if time permits, ajid
(ftl
—
The solicitation documents sent out shall
include te nns and conditions applicabl e to the
requi rement,
(c) TTie award of contracts within the dollar limits specified
in Subparag raphs (a)(1) and (2) of this Rule shall be the
responsibility of the agency's executive offic er .
History Note: Authority G.S. 143-49; 143-53;
Eff. Febman,' 1. 1976;
Readopted Eff. February 27. 1979;
Amended Eff. February f 1996: January 1. 1985:
Temporal,- Repeal Eff. February 15. 1998.
SECTION .1300 - SMALL PURCHASES
.1301 PROCEDURES
A small purchase is defined as the purchase of commodities
or se rvices, not covered by a term cont ract, and the e x pe nditu re
IS fo r two thousand five hund red dollars (S2.500) or less.
Rules fo r printing requi rements are cove red by Section .0800
1615 NORTH CAROLINA REGISTER March 2, 1998 12:17
TEMPORARY RULES
a concern with the award. If the letter does not
contain this information, or if the executive officer
determines that a meeting would serve no purpose,
then he may, within 10 consecutive calendar days
from the date of receipt of the letter, respond in
writing to the offeror and refuse the protest meeting
request. A copy of the executive officer's letter shall
be forwarded to the SPO.
(2) If the protest meeting is granted, the executive
officer shall attempt to schedule the meeting within
30 consecutive calendar days after receipt of the
letter, or as soon as possible thereafter. Within 10
consecutive calendar days from the date of tlie protest
meeting, the executive officer shall respond to the
offeror in writing with his decision. A copy of the
executive officer's letter shall be forwarded to the
SPO.
(3) The agency shall notify the SPO. in writing, of any
further administrative or judicial review of the
contract award.
(4) The executive officer may appoint a designee to act
on his behalf under this Rule.
(d> When an offeror wants to protest a contract awarded by
the Secretary over ten thousand dollars ($10.000). the SPO and
the offeror shall comply with the following:
(1) The offeror shall submit a written request for a
protest meeting to the SPO which shall be received
by the Division within 30 consecutive calendar days
from the date of the contract award. The offeror's
letter shall contain specific sound reasons and any
supporting documentation for why they have a
concern with the award. If the letter does not contain
this information, or if the SPO determines that a
meeting would serve no purpose, then he may,
within 10 consecutive calendar days from the date of
receipt of the letter, respond in writing to the offeror
and refuse the protest meeting request.
(2} If the protest meeting is granted, the SPO shall
attempt to schedule the meeting within 30
consecutive calendar days after receipt of the letter.
or as soon as possible thereafter. Within 10
consecutive calendar days from the date of the protest
meeting, the SPO shall respond to tlie offeror in
writing with his decision.
History Note: Authority G.S. 143-53; I50B-2; 150B-22;
150B-23:
EJf. February 1, 1996:
Temporary Amendment Eff. February 15. 1998.
SECTION .1600 - EXEMPTIONS, EMERGENCIES
AND SPECIAL DELEGATIONS
.1604 GENERAL DELEGATIONS
The general purchasing delegation for agencies (except the
universities) shall be not more than ten thousand dollars
($10.000). The SPO may lower or raise this general delegation
for a specific agency, up to Lhe amount established by G.S.
143-53.1. after consultation with the State Budget Officer and
the State Auditor for State agencies, and upon consideration of
the agency's (except the universities) overall capabilities,
including staff resources, organizational structure, training,
purchasing compliance reviews, electronic communication
capabilities, and audit reports. If an agency wishes to obtain an
increase in their general delegation, they shall submit a request
in writing, outlining their overall capabilities, to tlie SPO for
his consideration.
History Note: Authority G.S. 143-53:
Temporary Adoption Eff. February 15. 1998.
SECTION .1900 - RECORDS OF THE
DIVISION OF PURCHASE AND CONTRACT
.1906 APPLICATIONS FOR ADDITION
TO MAILING LIST
Applications for inclusion on mailing lists are ret ained fo r
two years.
History Note: Authority G.S. 143B-10(f);
Eff. February 1. 1976:
Readopted Eff. Febmary 27. 1979;
Amended Eff. February 1, 1996:
Temporary Repeal Eff. February 15. 1998.
TITLE 10 - DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Rule-making Agency:
Human Serxices
Secretary of Department of Health and
Rule Citation: 10 NCAC 21B .01 17
Effective Date: March 9. 1998
Findings Reviewed and Approved by: Beecher R. Gray
Authority for the rule-making: G.S. 143-116.7
Reason for Proposed Action: On November 6, 1997, Fire
Inspector conducted an inspection of the streets on The
Governor Morehead School Campus. Several fire safety
hazards and/or violations of the local/state codes were noted.
An Order To Comply was issued requiring GMS to correct these
infractions as soon as possible. Failure to comply with the
order may render the state liable to the penalties provided by
law for these violations. More importantly, these violations
couldjeopardize the safety and welfare of students and staff on
the GMS Campus.
Comment Procedures: Any interested persons may present
written comments to Patricia D. Purser, Division of Serxices
for the Blind, 309 Ashe Avenue, Raleigh, NC 27606.
12:17 NORTH CAROLINA REGISTER March 2, 1998 1616
TEMPOKARY RULES
CH.\PTER 21 - THE GOVERNOR MOREHEAD
SCHOOL
SL^BCHAPTER 21B - CAMPUS REGLXATIONS
SECTION .0100 - ABSENCES FROM CAMPUS
.01 17 THE GOVERNOR MOREHEAD SCHOOL
CAMPUS PARKING
Parking on The Go\emor Morehead School Campus shall be
in conformity with the following requirements:
(1) Vehicles shall be parked onl\- in designated parking
spaces. Parkmg spaces are defined by painted lines
in the surfaced areas and by wheel-stops in non-surfaced
areas.
(2) No parking is allowed on any streets.
(3) No stopping to load or unload is allowed on anv
streets.
(4) Signs shall be erected in specific areas indicating No
Parking and Tow-away Zones.
(5) The school may ha\'e remo\ed to a place of storage.
at the owner's expense. an\' unattended vehicle
illegalh' parked in a designated tow-awa\' zone.
(6) No parking is allowed in any manner that would
block or prohibit access to a designated crosswalk.
Hisron- Note: Auihoniy G.S. 143-116.7;
Temporan Adoption Eff. March £. 1998.
TITLE 15A - DEPARTMENT OF EN"V IRON^IENT
AND NATLHAL RESOURCES
Rule-making Agency: Department of Environment and
Natural Resources
Rule Citation: 15A .VC4C OlO .0101 - .0109
Effective Date: March 1. 1998
Findings Reviewed and Approved by: Beecher R. Grax
Authority for the rule-making: G.S. 130A-4
Reason for Proposed Action: Tliese Rules \\ere originally
adopted by the Conunission for Health Senices (November 14.
1997). The NC .-Rules Revie^v Commission found that the
Commission for Health Senices did not hare statutory
authority to adopt the rules. In addition, the RRC has
indicated that they intend to invalidate the current ndes
codified as 15.4 NCAC 18A .2300 at the Febmary meeting of
the RRC. Because there must be rules in effect to be used to
determine who is delegated authority to enforce ndes of the
Conunission for Health Senices. it is essential that these Rules
be adopted as temporary ndes. Without these Rules, there will
not be any defendable or rational basis for granting or denying
delegations to local health depanment environmental health
specialists to enforce CHS ndes as an agent of the state.
Comment Procedures: Comments may be made to Malcolm
Blalock. PO Box 29596. Raleigh. NC 27626-0596 or E-Mail at
Malcolm_Blalock@mail.ehnr. state. nc. us.
CHAPTER 1 - DEPARTMENTAL RULES
SUBCHAPTER lO - ENVIRONMENTAL HEALTH
SECTION .0100 - DELEGATION OF AUTHORITY
TO ENFORCE THE CONLMISSION FOR
HEALTH SERVTCES SANTTATION RULES
.0101 SCOPE OF DELEGATED AUTHORITY
No person shall act as an authorized agent of the state in
enforcing the provisions of G.S. 130A and the rules of the
Commission for Health Services who is not a current emplo^^ee
of a local health department, registered with the North Carolina
State Board of Sanitarian E.xaminers as a Registered Sanitarian
or Sanitarian Intern and authorized pursuant to these Rules.
E.xcept as provided in Rule .0105 of this Section, an
authorization shall be valid only in the count)' or district served
b\- the local health department which emplo\ s the agent. There
shall be seven areas of authorization to enforce the provisions
of G.S. BOA and the rules of the Commission for Health
Services found in 15A NCAC 18A as follows:
( 1 ) Food. Lodging, and Institution Sanitation including
the following:
(a) .1000 Sanitation of Summer Camps.
(b) .1300 Sanitation of Hospitals: .Nursing and
Rest Homes: Sanitariums. Sanitoriums:
Educational and other Institutions.
. 1500 Sanitation of Local Confinement
Facilities.
.1600 Sanitation of Residential Care Facilities.
.1800 Sanitation of Lodging Establishments.
.2100 Rules Governing the Sanitation &
Safetv of Migrant Housing.
.2200 Samtation of Bed and Breakfast Homes.
.2400 Sanitation of Public. Private, and
Religious Schools.
.2600 Sanitation of Restaurants and Other
Foodhandling Establishments.
til .2700 Sanitation of Meat Markets, and
Ikj .3000 Bed and Breakfast Inns.
On-Site Wastewater, including the following:
(a) .1900 Sewage Treatment and Disposal
S\stems.
.1603 and
.1606. .1611(a> and (b) and .1613
Care Facilities
ici
(di
m
lili
Hi
01
Ibj Sanitation of Residential
(Famil\- Foster Homes), and
(c) .2100 Rules Governing the Sanitation and
Safety of Migrant Housing.
(3) .2800 Sanitation of Child Care Centers.
(4) .3100 Lead Poisoning Prevention in Children
1617 SORTH CAROLISA REGISTER March 2, 1998 12:17
TEMPORARY RULES
Program.
(5) .2500 Public Swimming Pools.
£6} .3200 Tattooing.
ill .1603. .1606. .1611(a) and (b), .1613 Sanitation of
Residential Care Facilities (Family Foster Homes)
and .2100 Rules Governing the Sanitation and Safety
of Migrant Housing.
History Note: Authority G.S. 130A-4;
Temporary' Adoption Eff. March L. 1998.
.0102 ELIGIBILITY FOR DELEGATION OF
AUTHORITY
(a) The applicant shall successfully complete a centralized
training course approved by the Division.
(b) The applicant shall successfully complete all required
orientation, preliminary activities and field practice and review
established by the Division.
(c) When the supervisor determines that the applicant has
progressed sufficientlv to work independently, the health
director may request the applicant be evaluated for
authorization. Documentation of the satisfactory completion of
all preliminary activities and field practice, including any
inspection or evaluation forms completed by the applicant and
comments of the supervisor shall be forwarded to the regional
specialist.
(d) If. upon reviewing the File, the regional specialist fmds
that the applicant needs additional study or field practice, the
evaluation for authorization may be postponed until that study
or practice has been completed.
(e) Upon satisfactory completion of the requirements in
Paragraphs iai ; IdJ of this Rule, the regional specialist shall
coordinate the administration of a written test which the
applicant must pass by a score of 70 percent or more. The test
may be repeated if necessary.
(f) An applicant only requesting authorization for 15A
NCAC 18A .3100 Lead Poisoning Prevention in Children
Program, in lieu of the requirements set out in Paragraphs (a) -_
(e) of this Rule, shall be required to take and successfully
complete the North Carolina State of Practice course entitled
"Lead Investigation and Abatement" and shall pass the written
test provided by that course.
(g) After the applicant has successfully completed the written
test, the regional specialist shall conduct a field evaluation of
the applicant's knowledge, skills, and ability to enforce the
provisions of G.S. 130
A
and the rules of the Commission.
Following the field evaluation, the regional specialist shall
make a recommendation to issue or deny the authorization to
the Director of the Division of Environmental Health.
History Note: Authority 130A-4;
Temporary Adoption Eff. March L. 1998.
.0103 DELEGATION OF AUTHORITY
Upon determination that the criteria in Rules .0101 and
.0102 of this Section have been met and none of the reasons for
denial listed in Rule .0107 of tliis Section exist, and upon a
review of the recommendation of the regional specialist, the
Director. Division of Environmental Health, shall rule on the
request for authorization. An Identification Card shall be
issued by the Division to each person authorized to enforce
provisions of G.S. 130A and the rules of the Commission. The
card shall be carried by the agent at aU times when on duty.
The card is the property of tfie Division and shall be returned
to the Division upon separation of employment, suspension, or
revocation of authorization or failure to maintain registration
with the NC Board of Sanitarian Examiners.
History Note: Authority G.S. 130A-4;
Temporary Adoption Eff. March l^ 1998.
.0104 LAPSED DELEGATIONS
The local health director shall request authorization for an
individual whose authorization in one or more areas of
authorization has lapsed.
(1) An individual whose authorization in m area of
authorization has lapsed for a period of up to three
years shall be required to receive training as
determined by the regional specialist after a field
evaluation of the applicant's knowledge, skills, and
ability to enforce the rules.
01 An individual whose authorization in an area of
authorization has lapsed for a period of three years to
five years shall be required to meet all of the
requirements which apply to new applicants, except
that the individual shall be required to attend only the
portions of tlie centralized training course which are
directly applicable to the area of authorization
requested.
An individual whose authorization in an area of
authorization has lapsed for a period longer than five
years shall be required to meet all requirements
which apply to new applicants.
History Note: Authority G.S. 130A-4;
Temporary Adoption Eff. March L^ 1998.
01
.0105 AGENTS SERVING AS CONTRACTORS
The Division may allow an agent who is authorized in a
specific local health department to contract with another local
health department to provide services to the other local health
department. When a local health department contracts for such
services, the contractin g department shall provide a statement
to tlie Division on progress made to employ an individual who
may be considered for authorization.
(1) A contract shall be created between the contracting
local health department and the agent (contractor) to
include at least the following provisions:
(a) Names and addresses of each party.
Scope of work to be performed.
A requirement that the original public records
remain in the local health department in which
the work is performed. The public records
shall be left at tfie local health department or
ic)
72./
7
NORTH CAROLINA REGISTER March 2, 1998 1618
TEMPORARY RULES
with an individual employed by the local
health department who shall be responsible for
returning said records to the local health
depanment within two business days of the
service provided.
(d) Designation of the party responsible for
maintaining public records created by the
agent.
(e) A requirement that the contracting agent be
available for consultation to the public being
served during usual business hours.
(f) A requirement that the contracting agent be
available for any hearing or other legal
proceeding which may ensue from activities
conducted by the agent.
(2) The contracting agent shall maintain a list of each
activity and the date performed for review in
accordance with Item (3) of this Rule.
(3) Each public record created by the contracting agent
shall be reviewed, dated, and initialed by an
authorized agent of the contracting local health
department. In addition, at least K) percent of the
activities performed by the agent shall be reviewed in
the field by an authorized agent employed by the
contracting local health department. If the
contracting local health department has no authorized
employee, the Division shall conduct a review of
each public record created by the contracting agent.
In addition, at least 10 percent of the activities
performed by the agent shall be reviewed on-site in
the field by the Division. The review shall be
conducted each month and shall cover the previous
month's activities conducted by the agent.
History Note: Authority G.S. 130A-4:
Temporary Adoption Eff. March L. 1998.
(6) incompetency or unprofessionalism in performing
authorized duties:
(7) neglect of duty: or
(8) failure to properly interpret and enforce laws, rules,
and policies.
(b) Alternatively, the Director. Division of Environmental
Health may place an individual on conditional status for a
period not to exceed six months if tlie individual's failure to
properly enforce laws, rules and policies may be corrected with
additional education and oversight. The Director may suspend
or revoke the authorization anytime during the conditional
period if satisfactory progress is not made and the Director
shall suspend or revoke the authorization after the conditional
period if the individual does not demonstrate the necessary
knowledge, skills and ability to warrant an unconditional
authorization.
History Note: Authority G.S. 130A-4;
Temporary Adoption Eff. March I_^ 1998.
.0108 RE-AUTHORIZATION
If an individual's authorization has been suspended, the
authorization shall be reinstated upon determination by the
Division that the reasons for suspension no longer exist. If an
agent's authorization has been revoked for failure to comply
with the requirements found in Rule .0107(a)(2) or [Si of this
Section, the agent may apply for reinstatement five years after
the revocation becomes effective. If an individual's
authorization has been revoked for reasons other than those
found in Rule .0107(a)(2) or (5) of this Section, the agent may
reapply for authorization after six months from the date the
revocation becomes effective by satisfying the requirements of
Rules .0102 and .0103 of this Section. The Division may
refuse to re-authorize an individual if the Division determines
that the actions which were the basis for the revocation or
suspension are likely to reoccur.
.0106 EVALUATION
The regional specialist may, at aiiy time, evaluate the
performance of an authorized agent and recommend that the
Director. Division of Environmental Health, take corrective
action.
History Note: Authority G.S. 130A-4:
Temporary Adoption Eff. March 1. 1998.
History Note: Authority G.S. 130A-4:
Temporary Adoption Eff. March L. 1998.
.0107 DENIAL, SUSPENSION AND REVOCATION
(a) The Director. Division of Environmental Health, may
deny, suspend, or revoke the authorization to act as an agent of
the State for any of the following:
( 1 ) failure to satisfy the requirements for authorization in
Rules .2302. .2303 and .2306 of this Section:
fraud, deceit, dishonesty, or perjury in obtaining
authorization or m performing authorized duties:
abuse of controlled substances:
drug or alcohol induced intoxication on duty:
defrauding the public or attempting to do so;
01
ill
til
111
.0109 APPEALS PROCEDURES
Appeals concerning denials, suspensions and revocations of
authorization under these Rules shall be made in accordance
with G.S. 150B. An individual whose authorization has been
suspended or revoked and who timely requests an appeal may
continue to work as aii authorized agent until a final agency
decision is made pursuant to G.S. 150B-36: however, all
inspection forms and permits completed by the agent during
that period must be countersigned by another authorized agent
who concurs with the findings and conclusions reflected on the
inspection forms and permits.
History Note: Authority G.S. 130A-4:
Temporar\ Adoption Eff. March L. 1998.
1619 NORTH CAROLINA REGISTER March 2, 1998 12:17
APPROVED RULES
Tins Section includes the Register Notice citation to Rules approved by the Rides Review Commission (RRC) at its meeting
of December 18. 1997 pursuant to G. S. 150B-21.1 7(a) (1) and reported to the Joint Legislative Administrative Procedure
Oversight Committee pursuant to G.S. 150B-21.16. The full text of rules are published below when the rules have been
approved by RRC in a form different from that originally noticed in the Register or when no notice was required to be
published in the Register. The rules published in full text are identified by an * in the listing of approved rules. Statutory
Reference: G.S. 150B-21. 17.
These rules unless othern'ise noted, will become effective on the 31st legislative day of the 1998 Short Session of the General
Assembly or a later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically
disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the bill
receives an unfavorable final action or the day the General Assembly adjourns. Statutory reference: G.S. 1508-21. 3.
APPROVED RULE CITATION
REGISTER CITATION TO THE
NOTICE OF TEXT
2 NCAC 48D .0103*Amended Eff. 1-1-98
2 NCAC 52A .0104*
2 NCAC 52A .0105
2 NCAC 52A .0106- .0109*
2 NCAC 52D .0101*
4 NCAC 19L .0401*
4 NCAC 19L .0404*
4 NCAC 19L .0505*
4 NCAC 19L .0707 - .0708*
4 NCAC 19L .0911*
4 NCAC 19L .1009*
4 NCAC 19L .1011*
4 NCAC 19L .1303*
4 NCAC 19L .1703*
4 NCAC 19L .1804- .1805*
10 NCAC 03R .3073 - .3074*
10 NCAC 03R .3081*
10 NCAC 45H .0203*
11 NCAC 12 .1703*Amended Eff. 1-1-98
12 NCAC lOB .0101
12 NCAC lOB .0107*
12 NCAC lOB .0202*
12 NCAC lOB .0204*
12 NCAC lOB .0206
12 NCAC lOB .0505*
12 NCAC lOB .0601*
12 NCAC lOB .0603*
12 NCAC lOB .0605*
12 NCAC lOB .0702
12 NCAC lOB .0703 - .0704*
12 NCAC lOB .0705 - .0706
12 NCAC lOB .0707*
12 NCAC lOB .0801
12 NCAC lOB .0802*
12 NCAC lOB .0903*
12 NCAC lOB .0908
12 NCAC lOB .0909*
12 NCAC lOB .0910-. 0911
12 NCAC lOB .1002*
12 NCAC lOB .1004- .1005
12 NCAC lOB .1006*
not required, G.S. 150B-21.5(1)(5)
12 03 NCR 169
12 03 NCR 169
12 03 NCR 169
12 03 NCR 170
11 14 NCR 1113
11 14 NCR 1113
11 14 NCR 1113
11 14 NCR 1113
11 14 NCR 1113
11 14 NCR 1113
11 14 NCR 1113
11 14 NCR 1113
11 14 NCR 1113
11 14 NCR 1113
12 04 NCR 260
12 04 NCR 266
11 29 NCR 2208
not required, G.S. 150B-2 1.5(5)
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:17 NORTH CAROLINA REGISTER March 2, 1998 1620
APPROVED RULES
12 NCAC lOB .1202*
12 NCAC lOB .1204 - .1205
12 NCAC lOB .1206*
13 NCAC 16 .0101*
13 NCAC 16 .0102* - .0103
13 NCAC 16 .0201*
13 NCAC 16 .0202 - .0208
13 NCAC 16 .0301 - .0303*
13 NCAC 16 .0401
13 NCAC 16 .0402*
13 NCAC 16 .0501*
13 NCAC 16 .0502
15A NCAC 02L .0106*
15A NCAC 02N .0701*
15A NCAC 02 P .0402
15A NCAC 06E .0104- .01 05*Amended Eff. 1-1-98
15A NCAC 07M .0303*Amended Eff. 1-1-98
15A NCAC 08F .0203*
15A NCAC 24A .0202
16 NCAC 06C .0307*Amended Eff. 1-1-98
16 NCAC 06D .0103*Amended Eff. 1-1-98
16 NCAC 06D .0301*Amended Eff. 1-1-98
16 NCAC 06G .0305 - .0308*Amended Eff. 1-1-98
21 NCAC 12 .0202
21 NCAC 32H .0102*
21 NCAC 32H .0201*
21 NCAC 32H .0202 - .0203
21 NCAC 32H .0301 - .0303
21 NCAC 32H .0401
21 NCAC 32H .0402 - .0404*
21 NCAC 32H .0405 - .0408
21 NCAC 32H .0409*
21 NCAC 32H .0501 - .0506
21 NCAC 32H .0507*
21 NCAC 32H .0508
21 NCAC 32H .0601 - .0602
21 NCAC 32H .0801*
21 NCAC 32H .0901
21 NCAC 32H .1004
21 NCAC 36 .0109
12:08 NCR 624
12:08 NCR 624
12:08 NCR 624
12:05 NCR 412
12:05 NCR 412
12:05 NCR 412
12:05 NCR 412
12:05 NCR 414
12:05 NCR 414
12:05 NCR 414
12:05 NCR 414
12:05 NCR 414
11:21 NCR 1640
11:21 NCR 1649
11:21 NCR 1650
not required, G.S.
11
11
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
11
11 NCR 927
28 NCR 2125
07 NCR 523
01 NCR 19
01 NCR 19
01 NCR 19
01 NCR 19
07 NCR 525
04 NCR 295
04 NCR 295
04 NCR 297
04 NCR 298
04 NCR 299
04 NCR 300
04 NCR 303
04 NCR 305
04 NCR 305
04 NCR 309
04 NCR 310
04 NCR 310
04 NCR 311
04 NCR 311
04 NCR 312
28 NCR 2130
1503-21.
5
TITLE 2 - DEPARTMENT OF AGRICULTURE
CHAPTER 48 - PLANT INDUSTRY
SUBCHAPTER 48D - LIMING MATERIALS AND
LANDPLASTER
SECTION .0100 - LEVIING MATERIALS AND
LANDPLASTER
.0103 LABELING
(a) Limestone labels shall give the following infonnation:
( 1
)
net weight;
(2) brand name truly descriptive of product:
(3) euaranteed analysis in form and order as follows:
Percent:
Percent;
(A) Calcium
(B) Magnesium
(C) Calcium Carbonate Equivalent
Percent;
(D) Percent passing 20 mesh screen;
(E) Percent passing 100 mesh screen;
(4) pounds of this material equals one ton of
standard agricultural liming material;
(5) manufacturer or registrant's name and address.
(b) Landplaster labels shall give the following information:
(1) net weight;
(2) brand name;
(3) guaranteed analysis Calcium Sulfate Percent;
(4) manufacturer or registrant's name and address.
(c) Suspension limestone labels shall give the following
1621 NORTH CAROLINA REGISTER March 2, 1998 12:17
APPROVED RULES
information:
(1) net weight (total mixture);
(2) brand name truly descriptive of product;
(3) guaranteed analysis (total mixture) as follows:
(A)
(B)
(C)
(D)
(E)
Calcium
Magnesium
Calcium Carbonate
Percent;
Percent;
Percent;
Equivalent
Percent passing a 20 mesh screen;
Percent passing a 100 mesh screen;
(4) pounds of this material equals one ton of
standard liming material;
(5) manufacturer or registrant's name and address.
Note (1): (The following example pertains to Paragraph (a) of
this Rule.) If the product is 28 percent calcium, 6 percent
magnesium, 70 percent calcium carbonate equivalent, 90
percent passes a 20 mesh screen and 35 percent passes a 100
mesh screen, the limestone label should read:
XYZ Ground Dolomitic Limestone
Guaranteed Analysis
Calcium 28 Percent
Magnesium 6 Percent
Calcium Carbonate Equivalent 70 Percent
90 Percent passing 20 mesh screen
35 Percent passing 100 mesh screen
2571 pounds of this material equals one ton of standard
liming material (9/7 x 2000 lbs.)
Manufacturer or registrant's name and address
Note (2): (The following example pertains to Paragraph (c) of
this Rule.) If 50 percent of mixture is limestone with 30
percent calcium, 12 percent magnesium, 100 percent passing a
20 mesh screen and 80 percent passing a 100 mesh screen; 50
percent of mixture is carrier; calcium carbonate equivalent is
100 percent, the suspension limestone label should read:
Suspension Dolomitic Limestone
Guaranteed Analysis
Calcium 15 Percent
Magnesium 6 Percent
Calcium Carbonate Equivalent 50 Percent
100 Percent passing a 20 mesh screen
80 Percent passing a 100 mesh screen
3600 pounds of this product equals one ton of standard
liming material
Manufacturer or registrant's name and address,
(d) Pelletized lime (to be sold in bags only not to exceed 100
pounds):
(1) net weight;
(2) brand name truly descriptive of the product;
(3) a statement in letters at least one half as large as the
(4)
letters in the brand name or three-eighths inch in
height, whichever is less, as follows: "For
incorporation-after application, wet thoroughly 30
minutes before tilling";
guaranteed analysis:
(A) Calcium Percent;
(B) Magnesium Percent;
(C) Calcium Carbonate Equivalent
Percent;
(D) Percent passing a
screen;
(E) Percent passing a
20 mesh
100 mesh
screen;
manufacturer's or registrant's name and address.
(e) Fine granular lime (to be sold in bags only not to exceed
100 pounds):
(1) net weight;
brand name truly descriptive of the product;
a statement in letters at least one half as large as the
letters in the brand name or one inch in height,
whichever is less, as follows: "For use on existing
turf only";
guaranteed analysis:
(5)
(2)
(3)
(4)
(A)
(B)
(C)
(D)
(E)
Calcium
Magnesium
Percent;
Percent;
Calcium Carbonate Equivalent
Percent;
Percent passing a 20 mesh
screen;
(5)
(0 2
Percent passing a 100 mesh
screen;
manufacturer's or registrant's name and address.
NCAC 48D .0103(d) shall be effective July 1, 1985.
History Note: Authority G.S. 106-92.16;
EJf. My 1. 1980:
Amended Eff. September 1, 1984;
Transferred from T02.11D Eff. January 1. 1985;
Amended Eff. Januan L. 1998: July 1. 1986.
CHAPTER 52 - VETERINARY DIVISION
SUBCHAPTER 52A - RULES AND REGULATIONS
ADOPTED BY REFERENCE
SECTION .0100 - ADOPTIONS BY REFERENCE
.0104 MEAT FACILITIES REQUIREMENTS
The "Federal Facilities Requirements for Existing Meat
Plants," as published by the United States Department of
Agriculture, Food Safety and Inspection Service, including
subsequent amendments and editions, are hereby incorporated
by reference. Copies of this material may be obtained from the
Meat and Poultry Inspection Service at no cost.
History Note: Authority G.S. 106-549.22;
Eff. April 1, 1984;
12:17 NORTH CAROLINA REGISTER March 2, 1998 1622
APPROVED RULES
Amended Eff. July 1 . 1998. SECTION .0100 - STANDARDS: OFFICIAL MARK
.0106 CONSTRUCTION OF MEAT PLANTS
The volume entitled "United States Meatpacking Plants: A
Guide to Constmction, Equipment and Layout," Agriculture
Handbook No. 570, as published by the United States
Department of Agriculture, Food Safety and Inspection Service,
including subsequent amendments and editions, are hereby
incorporated by reference. Copies of this material may be
obtained from the Meat and Poultry Inspection Sen/ice at no
cost.
History Note: Authority G.S. 106-549.22;
Eff. April 1. 1984;
Amended Eff. July 7. 1998.
.0 1 07 LABELING MEAT AND POULTRY PRODUCTS
The volume entitled "Standards and Labeling Policy Book,"
as published by the United States Department of Agriculture,
Food Safety Inspection Service, Standards and Labeling
Division, including subsequent amendments and editions, are
hereby incorporated by reference. Copies of this material may
be obtained from the Superintendent of Documents, U.S.
Government Printing Office. Washington, D.C. 20402, at a
cost of ninety-eight dollars (S98.00).
History Note: Authority G.S. 106-549.22;
Eff. Apr!I 1. 1984;
Amended Eff. July 1. 1998.
.0108 SANITATION HANDBOOK
The "FSIS Directive 11.000.2 - Plant Sanitation," published
by the United States Department of Agriculture, Food Safety
and Inspection Service, Science and Technology Branch,
Facilities, Equipment and Sanitation Division, including
subsequent amendments and editions, are hereby incorporated
by reference. Copies of this material may be obtained from the
Meat and Poultry Inspection Ser\'ice at no cost.
History Note: Authority G.S. 106-549.22;
Eff. April 1, 1984;
Amended Eff Julx 1. 1998.
.0109 INSPECTION MANUAL
The "Meat and Poultry Inspection Manual," published by the
United States Department of Agriculture. Food Safety and
Inspection Service, Inspection Operations, including subsequent
amendments, are hereby incorporated by reference. Copies of
this material may be obtained from the Meat and Poultry
Inspection Service at no cost.
History Note: Authority G.S. 106-549.22;
Eff. April 1. 1984;
Amended Eff Jul\ 1. 1998.
SUBCHAPTER 52D - MEAT AND POULTRY
LNSPECTION
.0101 CERTAIN STANDARDS ADOPTED:
EXCEPTIONS
The Rules, Regulations, Definitions and Standards of the
United States Department of Agriculture governing meat and
meat products inspection, poultry products inspection,
voluntary inspection of poultry and humane methods for
slaughtering animals. Subchapters A, B, C, and D, Title 9, Part
301 et. seq.. Code of Federal Regulations, are hereby
incorporated by reference, including subsequent amendments
and editions, subject to the following exceptions:
(1) Conformity of Federal Regulations to North Carolina
Authority is Assumed. To conform federal
regulations to North Carolina Authority, references
in the federal regulations to the "Secretary of
Agriculture," the "United States Department of
Agriculture," the "Food Safety and Inspection
Service," its "Administrator" and "Officer in
Charge" shall be deemed to refer to the
corresponding North Carolina authority, the
"Commissioner of Agriculture," the "North Carolina
Department of Agriculture and Consumer Services,"
the "Meat and Poultry Inspection Service" and its
"Director for Meat and Poultry Inspection Service"
and the "Area Supervisors." References to
"interstate commerce" shall be deemed to refer to
"intrastate commerce" within North Carolina.
(2) Statutory references to the "Federal Meat Inspection
Act" shall be deemed to refer to the corresponding
provisions of the "North Carolina Meat Inspection
Law," Article 49B and Anicle 49C of Chapter 106 of
the North Carolina General Statutes.
(3) Stamtory references to the "Federal Poultry Products
Inspection Act" shall be deemed to refer to the
corresponding provisions of the "North Carolina
Poultry Products Inspection Act," Article 49D of
G.S. 106.
(4) References to federal marks of inspection, forms,
overtime rates and charges shall be deemed to refer
to the corresponding North Carolina marks of
inspection, forms, and overtime rates and charges.
These rates are established by the Commissioner
pursuant to G.S. 106-549.69 to cover the cost of
providing the service. Standards of the Federal
Food, Drug and Cosmetic Act incorporated in the
federal regulations are applicable to these articles.
Copies of the above are available for inspection in the Office of
the Director of the State Meat and Poultry Inspection Service
and may be obtained at a cost of one hundred and eighteen
dollars (SI 18.00) per copy by contacting the Superintendent of
Documents, U.S. Government Printing Office, Washington,
D.C. 20402.
History Note: Authority G.S. 106-549.21; 106-549.22;
106-549.28;
Eff. April 1, 1984;
1623 NORTH CAROLINA REGISTER March 2, 1998 12:17
APPROVED RULES
Amended EJf. My_ L 1998: July 1, 1986; April 1, 1985;
Januar\ 1, 1985.
TITLE 4 - DEPARTMENT OF COMMERCE
CHAPTER 19 - DIVISION OF COMMUNITY
ASSISTANCE
SUBCHAPTER 19L - NORTH CAROLINA
COMMUNITY DEVELOPMENT BLOCK
GRANT PROGRAM
SECTION .0400 - DISTRIBUTION OF FUNDS
.0401 GENERAL
(a) The Division shall designate specific due dates or open
periods of time for submission of grant applications under each
category, based on the amount of funds available and
coordination with other federal program funding cycles.
Urgent Needs applications may be submitted at any time.
(b) In cases where the Division makes a procedural error in
the application selection process that, when corrected, would
result in awarding a score sufficient to warrant a grant award,
the Division may compensate that applicant at the earliest time
sufficient funds become available or with a grant in the next
funding cycle.
(c) Applicants may apply for funding under the grant
categories of Community Revitalization, Housing
Development, Community Empowerment, Demonstration and
Urgent Needs. Applicants shall not apply for Contingency
funding. Contingency awards may be made to eligible
applicants in any category.
History Note: Authority G.S. 143B-10; 143B-431; 24 C.F.R.
570.483;
Eff. July 1, 1982;
Amended Eff. August L 1998: March 1. 1986; October 1.
1984; March 1, 1984.
.0404 GRANT CATEGORY ALLOCATION
Each program year, funds shall be reserved for each grant
category. When authorized by the General Assembly the
Division may set aside up to two percent for demonstration
grants. The remaining funds shall be distributed by the
Division to Community Revitalization grant applications unless
otherwise specified in the General Assembly.
History Note: Authoritx G.S. 143B-10; 143B-431; 42 U.S. C.
5304; 24 C.F.R. 570.482; 24 C.F.R. 570.4831;
Eff. July 1. 1982;
Amended Eff. August L 1998; June 1, 1994; June 1, 1993;
May 1. 1992; April /, 1990.
SECTION .0500 - COMMUNITY REVITALIZATION
PROJECTS
.0505 SELECTION CRITERIA
Projects shall be evaluated and rated in accordance with the
following rating factors:
(1) benefit to low and moderate income persons,
(2) project severity of need,
(3) project treatment of need,
(4) appropriateness and feasibility of proposed project
activities, and
(5) local commitment of funds and community efforts.
History Note: Authority G.S. 143B-10; 143B-431; 42
U.S.C.A. 5304(a)(1); 24 C.F.R. 570.483;
Eff. July 1. 1982;
Amended Eff. August L. 1998: March 1. 1995; June 1, 1993;
March 1, 1986; March 1, 1984.
SECTION .0700 - DEMONSTRATION PROJECTS
.0707 ELIGIBILITY REQUIREMENTS
(a) Applications for Demonstration Projects must show that:
(1) the proposed project meets a national objective in
accordance with 24 CFR 570.483; and
(2) the proposed project meets the specific purpose and
priorities adopted by the General Assembly.
Applicants that do not meet these eligibility requirements shall
not be considered for funding.
(b) Applicants shall have the capacity to administer a CDBG
program. The Division may examine the following areas to
determine capacity:
(1) audit and monitoring findings on previously funded
Community Development Block Grant programs, and
the applicant's fiscal accountability as demonstrated
in other state and federal programs or local
government financial reports; and
(2) the rate of expenditure of funds and accomplishments
in previously funded CDBG programs.
Applicants that show a lack of capacity shall not be considered
for funding.
History Note: Authority G.S. 143-323;
U.S.C.A. 5301; 24 C.F.R. 570.489;
Eff August 1. 1998.
143B-10; 42
.0708 SELECTION CRITERIA
Selection criteria for demonstration grants shall be:
( 1
)
Benefit to low and moderate income people.
(2) Eligibility of activities.
(3) Project feasibility.
History Note: Authority G.S. 143-323;
U.S.C.A. 5301; 24 C.F.R. 570.489;
Eff. August 1. 1998.
143B-10; 42
SECTION .0900 - GRANT ADMINISTRATION
.091 1 RECORDKEEPING
(a) The Secretary of the Department of Commerce, the
72:77 NORTH CAROLINA REGISTER March 2, 1998 1624
APPROVED RULES
Secretary of the Department of Housing and Urban
Development, or any of their duly authorized representatives
shall have access to all books, accounts, records, reports, files,
and other papers or property of recipients or their subgrantees
and contractors pertaining to funds provided under this
Subchapter for the purpose of making surveys, audits,
examinations, excerpts and transcripts.
(b) All Community Development Program records that are
public under G.S. 132 shall be made accessible to interested
individuals and groups during normal working hours, and shall
be maintained at all times at the recipient's local government
office.
(c) Financial records, supporting documents and all other
reports and records required under this Subchapter, and all
other records pertinent to the Community Development
Program shall be retained by the recipient for a period of three
years from the date of the closeout of the program, except as
follows:
(1) Records that are the subject of audit findings shall be
retained for three years or until such audit findings
have been resolved, whichever is later;
(2) Records for nonexpendable property which was
acquired with Federal grant funds shall be retained
for three years after its final disposition;
(3) Records for any displaced person shall be retained
for three years after he/she has received final
payment;
(4) Records pertaining to each real property acquisition
shall be retained for three years after settlement of
the acquisition, or until disposition of the applicable
relocation records in accordance with Subparagraph
(3) of this Section, whichever is later; and
(5) If a litigation, claim or audit is started before the
expiration of the three year period, the records shall
be retained until all litigations, claims, or audit
findings involving the records have been resolved.
(d) All records shall be sufficient to determine compliance
with the requirements and primary objectives of the Community
Development Block Grant Program and all other applicable
laws and regulations. All accounting records shall be supported
by source documentation and shall be in compliance with Rule
.0906 of this Section.
dwelling;
(1) shall contain a room or defined area for the safe,
sanitary storage and preparation of food.
(2) shall contain a bathroom with permanently affixed
and properly operating fixtures.
(3) shall have a one time treatment for insects and pests.
(4) shall have a structurally sound building foundation
system.
(5) shall have structurally sound flooring systems.
(6) shall have structurally sound wall systems.
(7) shall have a structurally sound roofing system.
(8) shall have at least two remotely located doors for
means of egress.
(9) shall have electrical wiring and fixtures that are safe
and operating properly.
(10) shall have plumbing fixtures and piping that are safe
and operating properly.
(11) shall have a heating source capable of heating the
entire dwelling unit to 70 degrees Fahrenheit when
the outside temperature is degrees.
(12) shall contain a U.L. approved smoke detector wired
directly to the electrical panel with battery back up.
(c) Construction or rehabilitation work on all dwelling units,
assisted entirely or partially with CDBG funds, shall comply
with the North Carolina State Building Code, Volumes I-X, as
applicable.
(d) Section 8 Housing Quality Standards shall not be
applicable when work is funded under Local Option Activities
as described in Rule .0403(c) of this Subchapter.
(e) Housing rehabilitation activities must comply with the
following standards required under this Subchapter:
( 1
)
Lead-based paint (Rule .1011); and
(2) Equal opportunity (Rule .1001).
(f) The recipient shall provide for benefits to any person
involuntarily and permanently displaced as a result of the use
of CDBG assistance to substantially rehabilitate property in
accordance with 49 CFR Part 24.
(g) Homes inhabited by disabled or elderly persons must be
analyzed as to the physical needs of such persons.
Improvements such as widened doorways, ramps, level entry
and doorways, and grab bars in bath areas must be installed if
appropriate.
History Note: Authority G.S. 143B-10: 143B-431: 42
U.S.C.A. 5304(d)(2), (e): 24 C.F.R. 570.490;
Ejf. July 1. 1982:
Amended Eff. August L 1998: June 1, 1993: September 1,
1990: May 1, 1988: April 1, 1983.
History Note: Authority G.S. 143B-10; 1438-431; 24 C.F.R.
570.487; 42 U.S.C.A. 5305(a);
Eff. July 1. 1982;
Amended Eff. August L 1998; May 1. 1988; March 1, 1984;
April 1, 1983.
SECTION .1000 - COMPLIANCE REQUIREMENTS
.1009 HOUSING REHABILITATION
(a) Grant assistance may be used for housing rehabilitation
activities eligible under Rule .0301 of this Subchapter.
(b) The local government shall provide a work write up
which precisely defmes the rehabilitation work to be undertaken
to bring the dwelling up to the following standards. The
.1011 LEAD-BASED PAINT
(a) The recipient must comply with the Lead-Based Paint
Poisoning Prevention Act [42 U.S. C. 4831(b)], 24 CFR Part
570.608, and 24 CFR Pan 35, including provisions and
subsequent amendments of the above:
( 1
)
prohibiting the use of lead-based paint;
(2) requiring elimination of lead-based paint hazards;
and
7625 NORTH CAROLINA REGISTER March 2, 1998 12:17
APPROVED RULES
(3) requiring notification of the hazards of lead-based
paint poisoning to purchasers, owners and tenants of
housing constructed prior to 1978 which was
acquired or rehabilitated with CDBG assistance.
(b) All construction contracts as described in this Rule shall
contain a provision prohibiting the use of lead based paint.
(c) In lieu of the testing procedures set forth in the 1996
HUD Guidelines, the recipient may forego testing and abate all
applicable surfaces in accordance with the methods set out in
the HUD regulations.
(d) Lead-based paint hazard evaluation and abatement
activities financed with CDBG funds must be conducted by
individuals and firms that are certified in accordance with the
applicable EPA and HUD requirements for Lead Based Paint
activities.
History Note: Authority G.S. 143B-10: 143B-431; 42
U.S.C.A. 5304(bj(4): 42 U.S.C.A. 4821 through 4846:
EJf. July 1, 1982:
Amended EJf. August L 1998: June 1, 1994; June 1, 1993:
May 1, 1988.
SECTION .1300 HOUSING DEVELOPMENT
PROJECTS
(2)
(3)
(4)
community impact,
project design, and
financial feasibility.
History Note: Authority G.S. 143B-10; 1438-431: 24 C.F.R.
570.489:
Eff. March 1. 1995;
Amended EJf. August 1. 1998.
SECTION .1800 - NORTH CAROLINA
DEVELOPMENT LOAN FUND
.1804 SIZE OF LOAN APPROVALS
(a) Maximum and minimum loan amounts as set by the
General Assembly shall be published by the Division in the
annual CDBG Consolidated Plan Action Plan, part of the North
Carolina Consolidated Plan.
(b) Development Loan Funds approved shall not count
toward a community's receipt of CDBG funds in any program
year as outlined in Rule .0403 of this Subchapter.
History Note:
Subpart M;
Eff. August L.
Authority G.S. 1438-431; 24 C.F.R. 570
1998.
.1303 SELECTION CRITERIA
(a) The Division may accept applications at any time after
the beginning of the program year.
(b) Housing Development projects shall be rated by the
Division against the following specific criteria:
(1) 85% of the project rating shall be based upon the
project design including the feasibility of the project,
its financial design, the capacity and experience of
the applicant and other parties involved, the amount
of leveraging other funds, the suitability of the site
and surroimding amenities, and the demand from the
marked; and
(2) 15% of the project rating shall be based upon the
benefit to low and moderate income persons both
immediate and long-term.
History Note: Authority G.S. 1438-10: 1438-431; 24 C.F.R.
570.489;
Eff. March 1. 1986;
Amended Eff. August L 1998: June 1, 1994; June 1. 1993;
April 1, 1990.
SECTION .1700 - COMMUNITY EMPOWERMENT
PROJECTS
. 1 703 SELECTION CRITERIA
Localities that have Community Empowerment grants that
are open may not apply for additional funds under this category
until the grant is closed. In addition, local governments may
have only one Community Empowerment application under
review at one time. Criteria for awards are:
(1) community need.
.1805 SELECTION CRITERIA
Projects will be evaluated and maybe approved in accordance
with the following selection factors:
(1) Public benefit,
(2) Project feasibility,
(3) Cash flow of the project,
(4) Collateral of the project.
History Note: Authority G.S. 1438-431; 24 C.F.R. 570
Subpart M;
Eff. August 1. 1998.
TITLE 10 - DEPARTMENT OF HUMAN RESOURCES
CHAPTER 3 - FACILITY SERVICES
SUBCHAPTER 3R - CERTmCATE OF NEED
REGULATIONS
SECTION .3000 - PLANNING POLICIES AND
NEED DETERMINATIONS
.3073 DEMONSTRATION PROJECT ON PEDIATRIC
NURSING CARE NEED DETERMINATON
(REVIEW CATEGORY G)
(a) It is determined that nine nursing facility beds are needed
to demonstrate the efficacy of short-term (less than 30 days)
care of medically fragile infants and children. This
demonstration project shall provide services to support
medically fragile children who are primarily cared for at home
and shall provide data to assist in determining if these children
12:17 NORTH CAROLINA REGISTER March 2, 1998 1626
APPROVED RULES
can be successfully cared for at home over the long-term with
intermittent inpatient nursing facility admission. Because of
improved medical procedures and care, more infants with
complex medical needs are surviving and are being discharged
from hospitals. The medical equipment and care needed by
these children in the home is quite sophisticated. Pediatric
patients suffering from acquired brain injury or from major
trauma with significant orthopaedic problems may also require
continued services, which include intermittent inpatient nursing
care services, after discharge from rehabilitation hospitals. The
proposed project shall be designed to ease the transition from
the hospital environment to care at home for these patient
groups. It shall also offer respite care and other services to low
birth-weight children, to children with serious chronic
conditions, and to children with rehabilitation needs.
(b) An applicant for the project shall demonstrate that home
health services shall be provided through a home health agency.
Furthermore, an applicant shall demonstrate coordination with
other health services, including a hospice provider, an acute
care provider, and an inpatient rehabilitation provider. Project
oversight shall include at least one Pediatrician who is willing
to serve as medical advisor and willing to assist in evaluation
of the demonstration project's effectiveness. The goal of the
services provided shall be for long-term maintenance of the
pediatric patient at home.
(c) The demonstration project shall provide data to evaluate
the effectiveness of this type of program in at least these ways:
(1) Enhanced parent confidence/willingness to care for
the child at home;
Reduced length of stay for hospitalization episodes;
Reduced hospitalizations/rehospitalizations;
Reduced incidence of institutionalization of children
to long-term care facilities;
Outcomes of care - especially relative to
rehabilitation, chronic disease care;
Cost data - cost efficiencies, expense,
reimbursement issues.
(d) The demonstration project shall provide data to evaluate
if additional programs in North Carolina would benefit the
medically fragile pediatric population. Data shall be provided
to the NC State Health Coordinating Council at the end of each
of the project's first five operating years.
(2)
(3)
(4)
(5)
(6)
Number of Nursing
Geographic Area Beds Needed for the Pediatnc
Demonstration Project
Statewide 9
Histon- Note: Authority' G.S. 131 £-176(25); 131E-177(1);
131E-183(b):
Temporary Adoption EJf. Janitar\- 2, 1997;
Eff. August 1. 1998.
.3074 HOME HEALTH AGENCY OFnCE NEED
DETERMINATION (REVIEW CATEGORY F)
(a) It is determined that the Health Service Areas identified
in 10 NCAC 3R .3054(a) and listed in this Rule may have a
need for additional home health agency offices.
(b) Applications for certificates of need for home health
agency offices filed pursuant to these adjusted need
determinations shall demonstrate:
(1)
(2)
(3)
that the applicant proposes to address the needs of at
least one of the following special needs groups:
(A) racial minorities,
(B) nursing home patients in transition to the
community,
(C) HIV/AIDS patients,
(D) Alzheimer's Disease/senile dementia patients,
or
(E) underserved patients in rural counties; and
that the applicant proposes to serve, during its first
operating year, at least 50 patients who are members
of the special groups identified in Subparagraph (1),
of this Rule; and
that either:
(A) home health agencies currently serving the
geographic area are not meeting the needs of
the groups the applicant proposes to serve; or
(B) the proposed home health agency office will
offer new or innovative services not currently
being offered by home health agencies that
serve the geographic area the applicant
proposes to serve.
HSA Number of Agencies
or Offices Needed
History Note: Authority G.S. 131E-176(25); 131E-177(1);
131E-183(b);
Temporary Adoption Eff. January 2. 1997;
Eff. August 1. 1998.
.3081 POLICIES FOR INPATIENT
REHABILITATION SERVICES
(a) Distribution of Inpatient Rehabilitation Beds. After
applying other required criteria, when superiority among two
or more competing rehabilitation facility certificate of need
applications is uncertain, favorable consideration shall be given
to proposals that make rehabilitation services more accessible
to patients and their families or are part of a comprehensive
1627 NORTH CAROLINA REGISTER March 2, 1998 12:17
APPROVED RULES
regional rehabilitation networlc.
(b) Outpatient and Home Care. Reliabilitation care which
can be provided in an outpatient or home setting shall be
provided in these settings. All new inpatient rehabilitation
programs are required to provide comprehensive outpatient
rehabilitation services as part of their service delivery
programs.
History Note: Authority G.S. 1 31 E- 1 76(25); 131E-177(1);
13JE-183(b);
Temporary Adoption Ejf. January 2, 1997:
Eff. August 1. 1998.
CHAPTER 45 - COMMISSION FOR MENTAL
HEALTH, DEVELOPMENTAL DISABILITIES
AND SUBSTANCE ABUSE SERVICES
SUBCHAPTER 45H - DRUG TREATMENT
FACILITIES
SECTION .0200 SCHEDULES OF CONTROLLED
SUBSTANCES
.0203 SCHEDULE II
(a) Schedule II shall consist of the drugs and other
substances by whatever official name, common or usual name,
chemical name or brand name and designated listed in this
Rule. Each drug or substance has been assigned the Drug
Enforcement Administration controlled substances code number
set forth opposite it.
(b) Substances, Vegetable Origin or Chemical Synthesis.
Unless specifically excepted or unless listed in another
schedule, any of the following substances whether produced
directly or indirectly by extraction from the substances of
vegetable origin or independently by means of chemical
synthesis or by a combination of extraction and chemical
synthesis, is a Schedule II drug:
(1) opium and opiate, and any salt, compound,
derivative or preparation of opium or opiate,
excluding aponiorphine, thebaine-derived
butorphanol, nalbuphine, dextrorphan, naloxone,
naltrexone, and nalmefene and their respective salts
but including the following:
(A) Raw opium 9600
(B) Opium extracts 9610
(C) Opium fluid extracts 9620
(D) Powdered opium 9639
(E) Granulated opium 9640
(F) Tincture of opium 9630
(G) Codeine 9050
(H) Ethylmorphine 9190
(I) Hydrocodone 9193
(J) Hydromorphine 9150
(K) Metopon 9260
(L) Morphine 9300
(M) Oxycodone 9143
(N) Oxymorphone 9652
(O) Thebaine 9333
(P) Etorphine hydrochloride 9059
(2) any salt, compound, derivative or preparation thereof
which is chemically equivalent or identical with any
of the substances referred to in Subparagraph ( 1 ) of
this Paragraph (b), except that these substances shall
not include isoquinoline alkaloids of opium;
(3) opium poppy and poppy straw 9650
(4) coca leaves (9040) and any salts, compound,
derivative or preparation of coca leaves and any salt,
compound, derivative or preparation thereof which is
chemically equivalent or identical with any of these
substances, except that the substances shall not
include decocainized coca leaves or extraction of
coca leaves, which extractions do not contain cocaine
(9041) or ecgonine (9180);
(5) concentrate of poppy straw (the crude extract of
poppy straw in either liquid, solid or powder form
which contains the phenanthrine alkaloids of the
opium poppy) (9670).
(c) Opiates. Unless specifically excepted or unless in
another schedule any of the following opiates, including its
isomers, esters, ethers, salts and salts of isomers, esters and
ethers whenever the existence of such isomers, esters, ethers
and salts is possible within the specific chemical designation,
is a Schedule II drug, dextrorphan excepted:
(1) Alfentanil 9737
(2) Alphaprodine 9010
(3) Anileridine 9020
(4) Benzitramide 9800
(5) Carfentanil 9743
(6) Dihydrocodeine 9120
(7) Diphenoxylate 9170
(8) Fentanyl 9801
(9) Isomethadone 9226
(10) Levomethorphan 9210
(11) Levo-alphacetylmethadol [Some other names:
levo-alpha-acetylmethadol, 9648
levomethadyl acetate, LAAM]
(12) Levorphanol 9220
(13) Metazocine 9240
(14) Methadone 9250
(15) Methadone-Intermediate, 4-cyano-2-
dimethylamino-4,4-diphenyl butane 9254
(16) Moramide-Intermediate,2-methyl-3-morpholino-I,
1-diphenylpropane-carboxylic acid 9802
(17) Pethidine(meperidine) 9230
(18) Pethidine-Intermediate- A,4-cyano- 1 -methyl-4-phen
ylpiperidine 9232
(19) Pethidine-Intermediate-B, ethyl-4-
phenyIpipendine-4-carboxylaie 9233
(20) Pethidine-Intermediate-C,l-methyl-4-phenylpiperid
ine-4-carboxylic acid 9234
(21) Phenazocine 9715
(22) Piminodine 9730
(23) Racemethorphan 9732
(24) Racemorphan 9733
12:17 NORTH CAROLINA REGISTER March 2, 1998 1628
APPROVED RULES
(3)
(4)
(5)
(6)
(25) Remifentanil 9739
(26) Sufentanil 9740
(d) Stimulants. Unless specifically excepted or unless listed
in another schedule any material, compound, mixture or
preparation which contains an> quantity of the following
substances having a stimulant effect on the central nervous
system:
(1
)
Amphetamine, its salts, optical isomers, and salts of
its optical isomers 1 100
(2) Methamphetamine, its salts, isomers and salts of its
isomers 1105
Phenmetrazine and its salts 1631
Methylphenidate 1724
Phen\lacetone
Some trade or other names:
Phenyl-2-propanone; P2P; benzyl
methyl Ketone; meth\l benzyl Ketone; 8501
Phencyclidine 7471
(Al 1-Phenylcyclohexylamine 7460
(B ) 1 -Piperidinocyclohexanecarbonitrile
(PCC) 8603
(e) Depressants. Unless specifically excepted or unless
listed in another schedule, any material, compound, mi.xture or
preparation which contains any quantity of the following
substances having a depressant effect on the central nervous
system, including its salts, isomers and salts of isomers
whenever the existence of such salts, isomers and salts of
isomers is possible within the specific chemical designation:
(1) Amobarbital 2125
(2) Glutethimide 2250
(3) Pentobarbital 2270
(4) Secobarbital 2315
(f) Hallucinogenic Substances. Unless specificalh- excepted
or unless listed in another schedule, any material, compound,
mixture or preparation which contains any quantity of the
following substances ha\'mg a hallucinogenic effect on the
central nervous system, including its salts, isomers and salts of
isomers whenever the existence of such salts, isomers and salts
of isomers is possible within the specific chemical designation,
is a Schedule II drug:
(1) Dronabinol (s\nthetic) in sesame oil and
encapsulated in a soft gelatin capsule in a U.S. Food
and Drug Administration approved drug produ2669
[Some other names for dronabinol:
[(6aR-trans)-6a,7.8,10a-tetrahydro-6,6,9-trimethyl-
3-pent>l-6H-dibenzo
[b,d]pyran-l-olJ,or(-)-delta-9-(trans)-tetrahydrocan
nabinol]
(2) Nabilone [Another name for nabilone: 7369
( + )-trans-3-( 1 , l-dimethylheptyl)-6.6a,7.8, 10, 10a-hexahydro-
l-hydroxy-6,6-dimethyl-9H-dibenzo[
b,d]pyran-9-one]
.
Histon Sole: Authonn G.S. 90-88: 90-90: 143B-147:
Eff. June 30. 1978:
Amended Eff. January 1. 1994: April 1, 1993: August 1. 1991:
August 1. 1989:
Temporary- Amendment Eff. May 13, 1997:
Amended Eff. Jul\ L 1998.
TITLE 1 1 - DEPARTMENT OF INSURAjNCE
CIL\PTER 12 - LIFE AND HEALTH DIVISION
SECTION .1700 - VL^TICAL SETTLEMENTS
. 1 703 VIATICAL SETTLEMENT BROKERS
(a) No person shall act as a broker without first registering
with the Agent Services Division.
(b) The Commissioner shall suspend, revoke, or refuse to
renew the registration of any broker if the Commissioner finds
that:
(1) There was any misrepresentation in the application
for registration;
(2) The broker has been found guilty of fraudulent or
dishonest practices, has been found guilty of a felony
or any misdemeanor of which criminal fraud is an
element, or is otherwise shown to be financially
irresponsible; or
(3) The broker has placed or attempted to place a
contract with an unregistered provider.
fc) In the absence of a written agreement between a viator
and a broker making the broker the viator's agent, a broker is
presumed to be an agent of the provider.
(d) A broker shall not, without the written agreement of the
viator obtained before performing an)' services in connection
with a viatical settlement, seek or obtain any compensation
from the viator.
(e) A power of attorney designating the Commissioner as the
broker's agent for service of legal process shall be filed by
every broker.
History Note: Auihorin G.S. 58-2-40: 58-16-30: 58-58-42:
Eff. February 1. 1996:
Amended Eff. Januan.- 1. 1998.
TITLE 12 - DEPARTMENT OF JUSTICE
CHAPTER 10 - N.C. SHERIFFS' EDUCATION ANT)
TR.ALNLNG STANDARDS COMMISSION
SUBCH.\PTER lOB - N.C. SHERIFFS' EDUCATION
ANT) TRAINLNG STANDARDS COMMISSION
SECTION .0100 - COMMISSION ORGANIZATION
AND PROCEDLHES
.0107 PROCEDLHES FOR PETITIONS FOR
DECLARATORY RLUINGS
(a) In addition to the procedures set out in G.S. 150B-4,
Petitions for Declaratory Rulings shall be submitted to the
Commission and shall contain:
1629 NORTH CAROLINA REGISTER March 2, 1998 12:17
APPROVED RULES
(b)
Ruling
(1)
(2)
(1) petitioner's name, address and telephone number;
(2) the statute(s), rule(s) or both to which the request
relates;
(3) all facts and information which are relevant to the
request;
(4) a concise statement of the manner in which petitioner
has been aggrieved;
(5) a draft of the Declaratory Ruling sought by petitioner
(if specified outcome is sought by petitioner);
(6) practices likely to be affected by the Declaratory
Ruling;
(7) a list or description of persons likely to be affected
by the Declaratory Ruling; and
(8) a statement as to whether the petitioner desires to
present oral argument (not to exceed 30 minutes) to
the Commission prior to its decision.
The Commission may refuse to issue a Declaratory
when:
the petition does not comply with Paragraph (a) of
this Rule;
the Commission has previously issued a Declaratory
Ruling on substantially similar facts;
(3) the Commission has previously issued a Final
Agency Decision in a contested case on substantially
similar facts;
(4) the facts underlying the request for a Declaratory
Ruling were specifically considered at the time of the
adoption of the rule in question; or
(5) the subject matter of the request is involved in
pending litigation.
History Note: Authority G.S. 1508-4;
Ejf. January 1, 1990;
Amended Eff. August I. 1998.
SECTION .0200 - ENFORCEMENT RULES
.0202 SANCTIONS FOR VIOLATIONS BY
AGENCIES OR SCHOOLS
If the Commission finds that a violation has been committed
by an agency or school, the Commission may:
(1) issue an oral warning and request for compliance;
(2) issue a written warning and request for compliance;
(3) issue an official written reprimand;
(4) suspend, revoke, or deny accreditation to any school
or program or course of instruction until corrective
measures have been taken to bring the agency or
school into compliance with these Rules and
verification of such compliance has been made by the
Commission; or
(5) suspend, revoke, or deny accreditation to any school
or program or course of instruction for a specific
period of time to be determined by the Commission's
Probable Cause Committee; however, not to exceed
one year.
History Note: Authority G.S. 17E-4;
Eff. January 1. 1991;
Recodified from 12 NCAC lOB .0205 Eff. January 1, 1992;
Amended Eff. August 1. 1998.
.0204 SUSPENSION: REVOCATION: OR DENIAL
OF CERTIFICATION
(a) The Commission shall revoke or deny the certification of
a justice officer when the Commission finds that the applicant
for certification or the certified officer has committed or been
convicted of:
(1) a felony; or
(2) a crime for which the authorized punishment could
have been imprisonment for more than two years.
(b) The Commission shall revoke, deny, or suspend the
certification of a justice officer when the Commission finds that
the applicant for certification or the certified officer:
(1) has not enrolled in and satisfactorily completed the
required basic training course in its entirety within a
one year time period as specified by these Rules; or
(2) fails to meet or maintain any of the minimum
employment or certification standards required by 1
2
NCAC lOB .0300; or
(3) fails to satisfactorily complete the minimum
in-service training requirements as presented in 12
NCAC lOB .2000 and .2100; or
(4) has refused to submit to the drug screen as required
in 12 NCAC lOB .0301(6) or .0406(b)(4) or in
connection with an application for or certification as
a justice officer or a criminal justice officer as
defined in 12 NCAC 9A .0103(6); or
(5) has produced a positive result on any drug screen
reported to the Commission as specified in 1 2 NCAC
108 .0410 or reported to any commission, agency,
or board established to certify, pursuant to said
commission, agency, or boards' standards, a person
as a justice officer or a criminal justice officer as
defmed in 12 NCAC 9A .0103(6), unless the positive
result is explained to the Commission's satisfaction.
(c) The Commission may revoke, deny, or suspend the
certification of a justice officer when the Commission finds that
the applicant for certification or certified justice officer:
(1) has knowingly made a material misrepresentation of
any information required for certification or
accreditation from the Commission or the North
Carolina Criminal Justice Education and Training
Standards Commission. This Rule shall also apply to
obtaining or attempting to obtain in-service firearms
requalification as required by 12 NCAC lOB .2000
and .2100; or
(2) has knowingly and designedly by any means of false
pretense, deception, fraud, misrepresentation or
cheating whatsoever, obtained or attempted to obtain
credit, training or certification from the Commission
or the North Carolina Criminal Justice Education and
Training Standards Commission. This Rule shall
also apply to obtaining or attempting to obtain in-service
firearms requalification as required by 12
12:17 NORTH CAROLINA REGISTER March 2, 1998 1630
APPROVED RULES
NCAC lOB .2000 and .2100; or
(3) has knowingly and designedly by any means of false
pretense, deception, fraud, misrepresentation or
cheating whatsoever, aided another in obtaining or
attempting to obtain credit, training, or certification
from the Commission or the North Carolina Criminal
Justice Education and Training Standards
Commission. This Rule shall also apply to obtaining
or attempting to obtain in-service firearms
requalification as required by 12 NCAC lOB .2000
and .2100; or
(4) has been removed from office by decree of the
Superior Court in accordance with the provisions of
G.S. 128-16 or has been removed from office by
sentence of the court in accord with the provisions of
G.S. 14-230; or
(5) has been denied certification or had such certification
suspended or revoked by the North Carolina
Criminal Justice Education and Training Standards
Commission.
(d) The Commission may revoke, suspend or deny the
certification of a justice officer when the Commission finds that
the applicant for certification or the certified officer has
committed or been convicted of:
(1) a crime or unlawful act defined in 12 NCAC lOB
.0103(T0)(b) as a Class B misdemeanor and which
occurred after the date of initial certification; or
(2) a crime or unlawful act defined in 12 NCAC lOB
.0103(10)(b) as a Class B misdemeanor within the
five-year period prior to the date of appointment; or
(3) four or more crimes or unlawful acts defined in 12
NCAC lOB .0103(10)(b) as Class B misdemeanors
regardless of the date of commission or conviction;
or
(4) four or more crimes or unlawful acts defined in 12
NCAC lOB .0103(10)(a) as a Class A misdemeanor,
each of which occurred after the date of initial
certification; or
(5) four or more crimes or unlawful acts defined in 12
NCAC lOB .0103(10)(a) as a Class A misdemeanor
except the applicant shall be certified if the last
conviction or commission occurred more than two
years prior to the date of appointment; or
(6) any combination of four or more crimes or unlawful
acts defined in 12 NCAC lOB .0103(10){a) as a Class
A misdemeanor or defined in 12 NCAC lOB
.0103(10)(b) as a Class B misdemeanor regardless of
the date of commission or conviction.
(e) Without limiting the application of G.S. 17E, a person
who has had his certification suspended or revoked may not
exercise the authority or perform the duties of a justice officer
during the period of suspension or revocation.
(f) Without limiting the application of G.S. 17E, a person
who has been denied certification may not be employed or
appointed as a justice officer or exercise the authority or
perform the duties of a justice officer.
History Note: Authority G.S. 17E-7;
Eff. Jamiarx 1. 1990;
Amended Eff. My 1, 1990;
Recodified from 12 NCAC lOB .0204 Eff. January 1, 1991;
Amended Eff. April 1, 1991; Jamiary 1, 1991;
Recodifiedfrom 12 NCAC lOB .0207 Eff. January 1, 1992;
Amended Eff. August L. 1998; January 1. 1996; January 1,
1995; January 1, 1994; January 1, 1993.
SECTION .0500 - MINIMUM STANDARDS OF
TRAINING FOR DEPUTY SHERIFFS
.0505 EVALUATION FOR TRAINING WATVER
(a) The Division staff shall evaluate each deputy's training
and experience to determine if equivalent training has been
satisfactorily completed as specified in 12 NCAC lOB .0504(a).
Applicants for certification with prior law enforcement
experience shall have been employed and certified in a sworn
law enforcement position in order to be considered for training
evaluation under this Rule. The following rules shall be used
by Division staff in evaluating a deputy's training and
experience to determine eligibility for a waiver of training.
(1) Persons who separated from a sworn law
enforcement position during their probationary
period after having completed a
commission-accredited Basic Law Enforcement
Training Course and who have been separated from
a sworn law enforcement position for one year or less
shall serve the remainder of the initial probationary
period in accordance with G.S. 17E-7(b), but need
not complete an additional training program.
(2) Persons who separated from a sworn law
enforcement position during their probationary
period without having completed Basic Law
Enforcement Training, or whose certification was
suspended pursuant to 12 NCAC lOB .0204(b)(1),
and who have remained separated or suspended for
over one year shall complete a
commission-accredited Basic Law Enforcement
Training Course in its entirety and pass the State
Comprehensive Examination, and shall be allowed a
12 month probationary period as prescribed in 12
NCAC lOB .0503(a).
(3) Out-of-state transferees shall be evaluated to
determine the amount and quality of their training
and experience. Out-of-state transferees:
(A) shall have a minimum of two years full-time
sworn law enforcement experience;
(B) shall not have a break in service exceeding
two years; and
(C) shall have completed the Basic Law
Enforcement Training Course accredited by
the state from which he/she is transferring.
Out-of-state transferees meeting these
requirements shall complete a
commission-accredited Basic Law
Enforcement Training Course which includes
1631 NORTH CAROLINA REGISTER March 2, 1998 12:17
APPROVED RULES
'
)
the following topics of N
State Publications Collection
