VOLUME 31 ISSUE 19 Pages 1862 - 1933

NORTH CAROLINA

VOLUME 31 ● ISSUE 19 ● Pages 1862 - 1933

April 3, 2017

I. PROPOSED RULES

Commerce, Department of

Credit Union Division...... 1862

Environmental Quality, Department of

Environmental Management Commission...... 1865 – 1868

Health and Human Services, Department of

Radiation Protection Commission...... 1862 – 1865

Occupational Licensing Boards and Commissions

Electrical Contractors, Board of ...... 1868 – 1873

Funeral Service, Board of...... 1873 – 1874

II. APPROVED RULES...... 1875 – 1920

Agriculture and Consumer Services, Department of

Agriculture, Board of

Environmental Quality, Department of

Environmental Management Commission

Health and Human Services, Department of

Radiation Protection Commission

Social Services Commission

Labor, Department of

Department

Natural and Cultural Resources, Department of

Historical Commission

Occupational Licensing Boards and Commissions

Medical Board

Midwifery Joint Committee

Nursing, Board of

Pharmacy, Board of

Veterinary Medical Board

III. RULES REVIEW COMMISSION...... 1921 – 1928

IV. CONTESTED CASE DECISIONS

Index...... 1929 – 1933

PUBLISHED BY

The Office of Administrative Hearings

Rules DivisionJulian Mann III, Director

6714 Mail Service CenterMolly Masich, Codifier of Rules

Raleigh, NC 27699-6714Dana Vojtko, Publications Coordinator

Telephone (919) 431-3000Lindsay Woy, Editorial Assistant

Fax (919) 431-3104

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 Carolina27609(919) 431-3104 FAX

contact: Molly Masich, Codifier of (919) 431-3071

Dana Vojtko, Publications Coordinator (919) 431-3075

Lindsay Woy, Editorial (919) 431-3078

Rule Review and Legal Issues

Rules Review Commission

1711 New Hope Church Road(919) 431-3000

Raleigh, North Carolina27609(919) 431-3104 FAX

contact:Abigail Hammond, Commission (919) 431-3076

Amber Cronk May, Commission (919) 431-3074

Amanda Reeder, Commission (919) 431-3079

Jason Thomas, Commission (919) 431-3081

Alexander Burgos, (919) 431-3080

Julie Brincefield, Administrative Assistant (919) 431-3073

Fiscal Notes & Economic Analysis and Governor's Review

Office of State Budget and Management

116 West Jones Street(919) 807-4700

Raleigh, North Carolina27603-8005(919) 733-0640 FAX

Contact: Anca Grozav, Economic (919) 807-4740

Carrie Hollis, Economic (919) 807-4757

NC Association of CountyCommissioners

215 North Dawson Street(919) 715-2893

Raleigh, North Carolina27603

contact: Amy

NC League of Municipalities(919) 715-4000

215 North Dawson Street

Raleigh, North Carolina27603

contact: Sarah

Legislative Process Concerning Rule-making

545 Legislative Office Building

300 North Salisbury Street(919) 733-2578

Raleigh, North Carolina27611(919) 715-5460 FAX

Karen Cochrane-Brown, Director/Legislative Analysis

Jeff Hudson, Staff

NORTH CAROLINA REGISTER

Publication Schedule for January 2017 – December 2017

FILING DEADLINES / NOTICE OF TEXT / PERMANENT RULE / TEMPORARY RULES
Volume & issue number / Issue date / Last day for filing / Earliest date for public hearing / End of required comment
Period / Deadline to submit to RRC
for review at
next meeting / Earliest Eff.
Date of
Permanent Rule / Delayed Eff. Date of
Permanent Rule
31st legislative day of the session beginning: / 270th day from publication in the Register
31:13 / 01/03/17 / 12/07/16 / 01/18/17 / 03/06/17 / 03/20/17 / 05/01/17 / 05/2018 / 09/30/17
31:14 / 01/17/17 / 12/20/16 / 02/01/17 / 03/20/17 / 04/20/17 / 06/01/17 / 05/2018 / 10/14/17
31:15 / 02/01/17 / 01/10/17 / 02/16/17 / 04/03/17 / 04/20/17 / 06/01/17 / 05/2018 / 10/29/17
31:16 / 02/15/17 / 01/25/17 / 03/02/17 / 04/17/17 / 04/20/17 / 06/01/17 / 05/2018 / 11/12/17
31:17 / 03/01/17 / 02/08/17 / 03/16/17 / 05/01/17 / 05/22/17 / 07/01/17 / 05/2018 / 11/26/17
31:18 / 03/15/17 / 02/22/17 / 03/30/17 / 05/15/17 / 05/22/17 / 07/01/17 / 05/2018 / 12/10/17
31:19 / 04/03/17 / 03/13/17 / 04/18/17 / 06/02/17 / 06/20/17 / 08/01/17 / 05/2018 / 12/29/17
31:20 / 04/17/17 / 03/24/17 / 05/02/17 / 06/16/17 / 06/20/17 / 08/01/17 / 05/2018 / 01/12/18
31:21 / 05/01/17 / 04/07/17 / 05/16/17 / 06/30/17 / 07/20/17 / 09/01/17 / 05/2018 / 01/26/18
31:22 / 05/15/17 / 04/24/17 / 05/30/17 / 07/14/17 / 07/20/17 / 09/01/17 / 05/2018 / 02/09/18
31:23 / 06/01/17 / 05/10/17 / 06/16/17 / 07/31/17 / 08/21/17 / 10/01/17 / 05/2018 / 02/26/18
31:24 / 06/15/17 / 05/24/17 / 06/30/17 / 08/14/17 / 08/21/17 / 10/01/17 / 05/2018 / 03/12/18
32:01 / 07/03/17 / 06/12/17 / 07/18/17 / 09/01/17 / 09/20/17 / 11/01/17 / 05/2018 / 03/30/18
32:02 / 07/17/17 / 06/23/17 / 08/01/17 / 09/15/17 / 09/20/17 / 11/01/17 / 05/2018 / 04/13/18
32:03 / 08/01/17 / 07/11/17 / 08/16/17 / 10/02/17 / 10/20/17 / 12/01/17 / 05/2018 / 04/28/18
32:04 / 08/15/17 / 07/25/17 / 08/30/17 / 10/16/17 / 10/20/17 / 12/01/17 / 05/2018 / 05/12/18
32:05 / 09/01/17 / 08/11/17 / 09/16/17 / 10/31/17 / 11/20/17 / 01/01/18 / 05/2018 / 05/29/18
32:06 / 09/15/17 / 08/24/17 / 09/30/17 / 11/14/17 / 11/20/17 / 01/01/18 / 05/2018 / 06/12/18
32:07 / 10/02/17 / 09/11/17 / 10/17/17 / 12/01/17 / 12/20/17 / 02/01/18 / 05/2018 / 06/29/18
32:08 / 10/16/17 / 09/25/17 / 10/31/17 / 12/15/17 / 12/20/17 / 02/01/18 / 05/2018 / 07/13/18
32:09 / 11/01/17 / 10/11/17 / 11/16/17 / 01/02/18 / 01/22/18 / 03/01/18 / 05/2018 / 07/29/18
32:10 / 11/15/17 / 10/24/17 / 11/30/17 / 01/16/18 / 01/22/18 / 03/01/18 / 05/2018 / 08/12/18
32:11 / 12/01/17 / 11/07/17 / 12/16/17 / 01/30/18 / 02/20/18 / 04/01/18 / 05/2018 / 08/28/18
32:12 / 12/15/17 / 11/22/17 / 12/30/17 / 02/13/18 / 02/20/18 / 04/01/18 / 05/2018 / 09/11/18

This document is prepared by the Office of Administrative Hearings as a public service and is not to be deemed binding or controlling.

EXPLANATION OF THE PUBLICATION SCHEDULE

This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling. Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.

GENERAL

The North Carolina Register shall be published twice a month and contains the following information submitted for publication by a state agency:

(1)temporary rules;

(2)text of proposed rules;

(3)text of permanent rules approved by the Rules Review Commission;

(4)emergency rules

(5)Executive Orders of the Governor;

(6)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; and

(7)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.

PROPOSED RULES

Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60 days.
Statutory reference: G.S. 150B-21.2.

31:19NORTH CAROLINA REGISTERApril 3, 2017

PROPOSED RULES

TITLE 04 – department of commerce

Notice is hereby given in accordance with G.S. 150B-21.2 that the Credit Union Division intends to adopt the rule cited as 04 NCAC 06C .0407.

Link to agency website pursuant to G.S. 150B-19.1(c):

Proposed Effective Date: August 1, 2017

Instructions on How to Demand a Public Hearing: (must be requested in writing within 15 days of notice): A public hearing may be demanded by written request to Tony Knox, Deputy Administrator of the North Carolina Department of Commerce, Credit Union Division within 15 days of the publication of the Notice of Text. The address is 205 West Millbrook Road, Suite 105, Raleigh, NC 27609.

Reason for Proposed Action: 04 NCAC 06C .0407 Commercial Lending and Member Business Loans was approved as a Temporary Rule due to a recent federal regulation that became effective January 1, 2017. State chartered credit unions would have been disadvantaged if not given the opportunity to follow the same rule, with a slight modification that required credit unions $250 million and smaller to get policies reviewed by the Administrator of Credit Unions prior to initiating a loan program. This action is to make the Temporary Rule a Permanent Rule.

Comments may be submitted to: Antonio (Tony) Knox, Deputy Administrator, 205 West Millbrook Road, Suite 105, Raleigh, NC 27609, phone (919) 571-4888, fax (919)420-7919, email .

Comment period ends: June 2, 2017

Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission after the adoption of the Rule. If the Rules Review Commission receives written and signed objections after the adoption of the Rule in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-431-3000.

Fiscal impact (check all that apply).

State funds affected

Environmental permitting of DOT affected

Analysis submitted to Board of Transportation

Local funds affected

Substantial economic impact (≥$1,000,000)

Approved by OSBM

No fiscal note required by G.S. 150B-21.4

Chapter 06 - Credit Union Division

SUBCHAPTER 06C - CREDIT UNIONS

SECTION .0400 LOANS

04 NCAC 06C .0407Commercial Lending and Member Business Loans

(a) Commercial lending and member business loans. State chartered federally insured credit unions shall adhere to the federal regulations prescribed by the National Credit Union Administration relating to commercial lending and member business loan program pursuant to 12 C.F.R. Part 723, and this Rule.

(b) Written loan policies. The Board of Directors shall give notification to the Administrator of Credit Unions prior to initiating a commercial lending and member business loan program and adopt specific commercial lending and member business loan policies and review them at least annually. The Board of Directors shall review its commercial lending and member business loan policies prior to any material change in the credit union's commercial lending and member business loan program or related organizational structure, and in response to any material change in portfolio performance or change in economic conditions. Credit unions with an asset size of two hundred fifty million dollars ($250,000,000) or below shall have commercial lending and member business loan polices submitted to the Administrator of Credit Unions 30 days prior to initiating a commercial lending and member business loan program.

Authority G.S. 54-109.12; 54-109.21(25); 54-109.78; 12 C.F.R. Part 741.3; 12 C.F.R. Part 723; 12 C.F.R. Part 741.203.

TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN SERVICES

Notice is hereby given in accordance with G.S. 150B-21.2 that the Radiation Protection Commission intends to adopt the rule cited as 10A NCAC 15 .0611.

Link to agency website pursuant to G.S. 150B-19.1(c):

Proposed Effective Date: October 1, 2017

Public Hearing:

Date: May 23, 2017

Time: 10:00 a.m.

Location: Dorothea Dix Park, Wright Building, Room 131, 1201 Umstead Drive, Raleigh, NC 27603

Reason for Proposed Action: Computed Tomography (CT) delivers high quality imaging that is of significant benefit to patients; therefore, it represents one of the most important tools for diagnostic medical imaging. This proposed rule seeks to ensure high quality CT imaging that is appropriate with respect to professional bodies such as the American College of Radiology's (ACR) recommendations, and it is compatible with the Food and Drug Administration's Code of Federal Regulations found in 21 CFR. Currently the applicable provisions in the rules at 10A NCAC 15, Radiation Protection, are not specific to the use of CT equipment. Determining which rules apply to the use of CT is difficult for registrants and regulators. Problems that have been observed with CT scans in the past several years reflect a lack of quality assurance (QA) and/or a lack of administrative controls. The proposed rule will implement QA and training requirements that are already being employed by many facilities in North Carolina as well as simplify compliance with regulations, and reduce the hazards associated with the use of CT x-ray machines whether the facility is accredited or not.

Comments may be submitted to: Nadine Pfeiffer, 2701 Mail Service Center, Raleigh, NC 27699-2701, email

Comment period ends: June 2, 2017

Fiscal impact (check all that apply).

State funds affected

Environmental permitting of DOT affected

Analysis submitted to Board of Transportation

Local funds affected

Substantial economic impact (≥$1,000,000)

Approved by OSBM

No fiscal note required by G.S. 150B-21.4

Chapter 15 - Radiation Protection

SECTION .0600 XRAYS IN THE HEALING ARTS

10A NCAC 15 .0611COMPUTED TOMOGRAPHY (CT) X-RAY SYSTEMS

(a) This Rule provides special requirements for human diagnostic use of computed tomography (CT) x-ray equipment. The uses of Cone Beam CT, Veterinary CT, CT Simulation, and CT attenuation correction shall be exempt from this Rule. The provisions of this Rule are in addition to, and not in substitution for, the rules in Sections .0100, .0200, .0600, .0900, .1000, and .1600 of this Chapter.

(b) The following definitions shall apply to this Rule:

(1)"CT qualified expert (CT QE)" means an individual who is registered or is providing service for a registered facility where they are employed, as required by Section .0200 of this Chapter. The individual shall have the following education and experience:

(A)a master's or doctoral degree in physics, medical physics, biophysics, radiological physics, medical health physics, or equivalent disciplines from an accredited college or university; and

(B)three years work experience in a clinical CT environment. The work experience shall be supervised and documented by a board certified medical physicist; or

(C)certification in the specific subfield(s) of medical physics with its associated medical health physics aspect by an appropriate national certifying body and shall abide by the certifying body's requirements for continuing education.

(2)"general supervision" means the activity is performed under the qualified supervisor's overall direction and control but the qualified supervisor's physical presence is not required during the activity.

(3)"personal supervision" means overall direction, control and training of an individual by a qualified supervisor who must be physically present during the activities performed by the supervised individual.

(1)CT x-ray systems shall meet the requirements of 21 CFR 1020.33 as incorporated by reference in Rule .0117(a)(3) of this Chapter.

(2)The operator of a CT scanner shall be able to maintain aural communication with the patient from a shielded position at the control panel.

(d) Personnel Requirements. Individuals who operate CT x-ray systems shall:

(1)hold (CT) registration with the American Registry of Radiologic Technologists (ARRT); or

(2)be a Registered Technologist (R.T.) by the ARRT with registration in radiography (R) or a Certified Nuclear Medicine Technologist by the Nuclear Medicine Technology Certification Board; these individuals shall document training and experience that is equivalent to that required to attain (CT) registration with the ARRT; or

(3)be in training under the personal supervision of an individual that meets the requirements of Paragraph (d) of this Rule; and

(4)be specifically trained on the operational features of the unit.

(e) System Performance Evaluations

(1)Performance evaluations of the CT x-ray system shall be performed by, or under the general supervision of, a CT QE who assumes the responsibility for the evaluation.

(2)The performance evaluation of a CT x-ray system shall be performed within 30 days of installation and at least every 14 months.

(3)Performance evaluation standards and tolerances shall meet manufacturer's specifications or standards and tolerances for the CT x-ray system from the American College of Radiology (ACR) and the American Association of Physicists in Medicine (AAPM). These standards and tolerances may be found at no charge on the ACR and AAPM websites.

(4)The performance evaluation shall include the following as applicable to the design of the scanner:

(A)geometric factors and alignment including alignment light accuracy, and table increment accuracy;

(B)image localization from a scanned projection radiograph (localization image);

(C)radiation beam width;

(D)image quality including high-contrast (spatial) resolution, low-contrast resolution, image uniformity, noise, and artifact evaluation;

(E)CT number accuracy;

(F)image quality for acquisition workstation display devices;

(G)a review of the results of the routine QC, as set forth in Paragraph (f) of this Rule; and

(5)The performance evaluation shall also include the evaluation of radiation output and patient dose indices for the following clinical protocols if performed:

(A)pediatric head;

(B)pediatric abdomen;

(C)adult head;

(D)adult abdomen; and

(E)brain perfusion.

(6)Evaluation of radiation output shall be performed with a dosimetry system that is calibrated. The dosimetry system shall have been calibrated within the preceding two years by persons registered to provide such services pursuant to Rule .0205 of this Chapter.

(7)The performance evaluation shall be documented and maintained for inspection by the Agency. The documentation shall include the name of the CT QE performing or supervising the evaluation, as well as any other individual(s) participating in the evaluation under the general supervision of the CT QE. The documentation shall be retained for 14 months.

(f) Routine Quality Control (QC)

(1)A routine QC program for the CT system shall be developed by or have written approval by a CT QE and include:

(A)instructions for the routine QC;

(B)intervals for QC testing;

(C)acceptable tolerances for the QC tests;

(D)use of a water equivalent phantom to evaluate each day of clinical use: noise, CT number accuracy, and artifacts; and