NORTH CAROLINA
REGISTER
VOLUME 23 ● ISSUE 20 ● Pages 2016 - 2044
April 15, 2009
I. IN ADDITION
Decision Letters on "Changes Affecting Voting" from US Attorney General 2016
Elections, Board of – Guidelines on Voter Registration 2017 - 2020
Brownfields Property – Wal-Mart Stores East, LP, Prospective Developer 2021
II. PROPOSED RULES
Administrative Hearings, Office of
Office of Administrative Hearings 2025 – 2026
Health and Human Services, Department of
Health Service Regulation, Division of 2022 – 2023
Occupational Licensing Boards and Commissions
Dental Examiners, Board of 2023 – 2025
III. RULES REVIEW COMMISSION 2027 – 2033
IV. CONTESTED CASE DECISIONS
Index to ALJ Decisions 2034 – 2044
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
PUBLISHED BY
The Office of Administrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 431-3000
Fax (919) 431-3104
Julian Mann, III, Director
Camille Winston, Deputy Director
Molly Masich, Codifier of Rules
Dana Vojtko, Publications Coordinator
Julie Edwards, Editorial Assistant
Tammara Chalmers, Editorial Assistant
Angel Chen, Editorial Assistant
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult with the agencies below. The bolded headings are typical issues which the given agency can address, but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Molly Masich, Codifier of Rules (919) 431-3071
Dana Vojtko, Publications Coordinator (919) 431-3075
Julie Edwards, Editorial Assistant (919) 431-3073
Tammara Chalmers, Editorial Assistant (919) 431-3083
Angel Chen, Editorial Assistant (919) 431-3077
Rule Review and Legal Issues
Rules Review Commission
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Joe DeLuca Jr., Commission Counsel (919) 431-3081
Bobby Bryan, Commission Counsel (919) 431-3079
Fiscal Notes & Economic Analysis
Office of State Budget and Management
116 West Jones Street (919) 807-4700
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
contact: William Crumbley, Economic Analyst (919) 807-4740
Governor’s Review
Eddie Speas
Legal Counsel to the Governor (919) 733-5811
116 West Jones Street
Raleigh, North Carolina 27603
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney
Jeff Hudson, Staff Attorney
County and Municipality Government Questions or Notification
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn
Rebecca Troutman
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Erin L. Wynia
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2009 – December 2009
FILING DEADLINES / NOTICE OF TEXT / PERMANENT RULE / TEMPORARY RULESVolume & issue number / Issue date / Last day for filing / Earliest date for public hearing / End of required comment
period / Deadline to submit to RRC
for review at
next meeting / Earliest Eff.
Date of
Permanent Rule / Delayed Eff. Date of
Permanent Rule
31st legislative day of the session beginning: / 270th day from publication in the Register
23:13 / 01/02/09 / 12/08/08 / 01/17/09 / 03/03/09 / 03/20/09 / 05/01/09 / 05/2010 / 09/29/09
23:14 / 01/15/09 / 12/19/08 / 01/30/09 / 03/16/09 / 03/20/09 / 05/01/09 / 05/2010 / 10/12/09
23:15 / 02/02/09 / 01/09/09 / 02/17/09 / 04/03/09 / 04/20/09 / 06/01/09 / 05/2010 / 10/30/09
23:16 / 02/16/09 / 01/26/09 / 03/03/09 / 04/17/09 / 04/20/09 / 06/01/09 / 05/2010 / 11/13/09
23:17 / 03/02/09 / 02/09/09 / 03/17/09 / 05/01/09 / 05/20/09 / 07/01/09 / 05/2010 / 11/27/09
23:18 / 03/16/09 / 02/23/09 / 03/31/09 / 05/15/09 / 05/20/09 / 07/01/09 / 05/2010 / 12/11/09
23:19 / 04/01/09 / 03/11/09 / 04/16/09 / 06/01/09 / 06/22/09 / 08/01/09 / 05/2010 / 12/27/09
23:20 / 04/15/09 / 03/24/09 / 04/30/09 / 06/15/09 / 06/22/09 / 08/01/09 / 05/2010 / 01/10/10
23:21 / 05/01/09 / 04/09/09 / 05/16/09 / 06/30/09 / 07/20/09 / 09/01/09 / 05/2010 / 01/26/10
23:22 / 05/15/09 / 04/24/09 / 05/30/09 / 07/14/09 / 07/20/09 / 09/01/09 / 05/2010 / 02/09/10
23:23 / 06/01/09 / 05/08/09 / 06/16/09 / 07/31/09 / 08/20/09 / 10/01/09 / 05/2010 / 02/26/10
23:24 / 06/15/09 / 05/22/09 / 06/30/09 / 08/14/09 / 08/20/09 / 10/01/09 / 05/2010 / 03/12/10
24:01 / 07/01/09 / 06/10/09 / 07/16/09 / 08/31/09 / 09/21/09 / 11/01/09 / 05/2010 / 03/28/10
24:02 / 07/15/09 / 06/23/09 / 07/30/09 / 09/14/09 / 09/21/09 / 11/01/09 / 05/2010 / 04/11/10
24:03 / 08/03/09 / 07/13/09 / 08/18/09 / 10/02/09 / 10/20/09 / 12/01/09 / 05/2010 / 04/30/10
24:04 / 08/17/09 / 07/27/09 / 09/01/09 / 10/16/09 / 10/20/09 / 12/01/09 / 05/2010 / 05/14/10
24:05 / 09/01/09 / 08/11/09 / 09/16/09 / 11/02/09 / 11/20/09 / 01/01/10 / 05/2010 / 05/29/10
24:06 / 09/15/09 / 08/24/09 / 09/30/09 / 11/16/09 / 11/20/09 / 01/01/10 / 05/2010 / 06/12/10
24:07 / 10/01/09 / 09/10/09 / 10/16/09 / 11/30/09 / 12/21/09 / 02/01/10 / 05/2010 / 06/28/10
24:08 / 10/15/09 / 09/24/09 / 10/30/09 / 12/14/09 / 12/21/09 / 02/01/10 / 05/2010 / 07/12/10
24:09 / 11/02/09 / 10/12/09 / 11/17/09 / 01/02/10 / 01/20/10 / 03/01/10 / 05/2010 / 07/30/10
24:10 / 11/16/09 / 10/23/09 / 12/01/09 / 01/15/10 / 01/20/10 / 03/01/10 / 05/2010 / 08/13/10
24:11 / 12/01/09 / 11/05/09 / 12/16/09 / 02/01/10 / 02/22/10 / 04/01/10 / 05/2010 / 08/28/10
24:12 / 12/15/09 / 11/20/09 / 12/30/09 / 02/15/10 / 02/22/10 / 04/01/10 / 05/2010 / 09/11/10
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
IN ADDITION
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling. Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
23:20 NORTH CAROLINA REGISTER APRIL 15, 2009
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IN ADDITION
GENERAL
The North Carolina Register shall be published twice a month and contains the following information submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules Review Commission;
(5) notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney General concerning changes in laws affecting voting in a jurisdiction subject of Section 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under G.S. 105-241.2; and
(9) other information the Codifier of Rules determines to be helpful to the public.
COMPUTING TIME: In computing time in the schedule, the day of publication of the North Carolina Register is not included. The last day of the period so computed is included, unless it is a Saturday, Sunday, or State holiday, in which event the period runs until the preceding day which is not a Saturday, Sunday, or State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first and fifteen of each month if the first or fifteenth of the month is not a Saturday, Sunday, or State holiday for employees mandated by the State Personnel Commission. If the first or fifteenth of any month is a Saturday, Sunday, or a holiday for State employees, the North Carolina Register issue for that day will be published on the day of that month after the first or fifteenth that is not a Saturday, Sunday, or holiday for State employees.
LAST DAY FOR FILING: The last day for filing for any issue is 15 days before the issue date excluding Saturdays, Sundays, and holidays for State employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing date shall be at least 15 days after the date a notice of the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a proposed rule for at least 60 days after the text is published or until the date of any public hearings held on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW COMMISSION: The Commission shall review a rule submitted to it on or before the twentieth of a month by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR SESSION OF THE GENERAL ASSEMBLY: This date is the first legislative day of the next regular session of the General Assembly following approval of the rule by the Rules Review Commission. See G.S. 150B-21.3, Effective date of rules.
23:20 NORTH CAROLINA REGISTER APRIL 15, 2009
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IN ADDITION
23:20 NORTH CAROLINA REGISTER APRIL 15, 2009
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IN ADDITION
23:20 NORTH CAROLINA REGISTER APRIL 15, 2009
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IN ADDITION
GUIDELINES ON VOTER REGISTRATION
The North Carolina State Board of Elections by publication in the North Carolina Register pursuant to GS § 163-82.12, gives notice of adoption of new voter registration guidelines:
1) HANDLING INCOMPLETE VOTER REGISTRATION APPLICATIONS
a) General Statute 163-82.2 provides that the Executive Director of the State Board of Elections is the “Chief State Election Official” of North Carolina for purposes of P.L. 103-31, The National Voter Registration Act of 1993 (hereinafter “NVRA”). As such the Executive Director is responsible for the coordination of State responsibilities under the NVRA. The NVRA and North Carolina statute, in conjunction with 42 U.S.C. 15483 (HAVA), provides for a mail voter registration application. According to state and federal law, the North Carolina mail voter registration application is designed to elicit essential information from those individuals who are seeking to register to vote. The essential information that must be received from a voter registration applicant includes the following:
(1) Signature (42 USC § 1973gg-7(b)(2); GS § 163-82.6)
(2) Response to checkbox question, “Are you a citizen of the United States of America?” (42 USC § 15483(b)(4); GS § 163-82.4)
Counties may only suspend applications where a response to the citizenship checkbox has been omitted if the applicant did not list a place of birth in the United States. If the applicant did indicate a place of birth in the United States, but failed to check the citizenship box, the county board shall accept the place of birth as evidence that the applicant is a citizen and process the voter registration application accordingly.
(3) Response to checkbox question: “Will you be 18 years of age on or before election day?” (42 USC §15483(b)(4); GS § 163-82.4)
Counties may only suspend applications where a response to the age checkbox has been omitted if the applicant did not indicate their date of birth. If the applicant did indicate their date of birth, the county board shall accept the date of birth as evidence that the applicant is at least 18 years old and process the voter registration application accordingly.
(4) Residence address (GS § 163-82.4)
(5) Name (GS § 163-82.4)
(6) Date of birth (GS § 163-82.4)
b) If an applicant for voter registration omits any essential element as outlined above on a voter registration application, then the county board of elections is required to notify the applicant of the omission and provide an opportunity for the applicant to correct the application. Pursuant to N.C.G.S. § 163-82.4, a voter has until 5:00 P.M. on the day before the county canvass to complete any required item on their voter registration form in order to be considered an eligible voter.
c) Administratively, applications that are awaiting completion cannot be fully processed in the Statewide Elections Information Management System (SEIMS). Under the statutory authority referenced above, the Executive Director has outlined administrative guidelines for the handling of incomplete voter registration applications. These administrative guidelines are guided by state and federal law, including the list maintenance requirements under the NVRA and GS § 163-82.14. In setting out the guidelines below, it is the premise of the State Board of Elections that eligible citizens should be afforded every opportunity to become North Carolina registered voters. Voter registration applicants who omit required information from their registration applications shall be given ample chances to correct the omission. The guidelines for handling incomplete applications are as follows:
(1) Notice of Omission of Required Element: As long as the county has enough information to identify and contact the applicant, the individual should be notified of the deficiency of a required element on their voter registration application. County boards are required to notify the applicant in writing that their applications are incomplete. While county boards are encouraged to send the notice as soon as practicable, they must send the notice no later than ten (10) days from the county board’s receipt of the application. The notice shall clearly state that the applicant has until 5:00 P.M. on the day before the canvass of the current election, as defined in GS § 163-55(c), to complete their voter registration application. If and when the applicant satisfies the missing requirement, the county board of elections will then continue the normal processing of the application in the statewide voter registration database. Incomplete applications that are awaiting required elements will be placed in a holding queue of the statewide voter registration database, the Incomplete Queue (hereafter “I-Queue”). County boards of elections to the highest degree reasonably possible shall attempt to contact applicants with incomplete applications and provide them with the opportunity to register to vote.
(2) Requirement of Second Notice of Omission of Required Element: Forty-five (45) days prior to a general election or general municipal election, county boards should review the applications in their I-Queue and mail, if enough information is available, a second notice to any applicant whose first notice was mailed more than sixty (60) days before the election. The notice shall clearly state that the applicant has until 5:00 P.M. on the day before the canvass of the current election, as defined in GS § 163-55(c) to complete their voter registration application. The notice shall also advise the applicant of the option of registering to vote in person at a one-stop absentee voting site pursuant to GS § 82.6A. If a person with a pending incomplete voter registration application subsequently registers at a one-stop voting site, the incomplete application can thereafter be removed from the I-Queue.