NORTH CAROLINA
REGISTER
VOLUME 32 ● ISSUE 09 ● Pages 791 – 957
November 1, 2017
I. EXECUTIVE ORDERS
Executive Order No. 23...... 791 - 792
II. PROPOSED RULES
Agriculture and Consumer Services, Department of
Soil and Water Conservation Commission...... 793 – 808
Justice, Department of
Department...... 808 – 809
Public Safety, Department of
Alcoholic Beverage Control Commission...... 809 – 810
Alarm Systems Licensing Board...... 810 – 811
Environmental Quality, Department of
Environmental Management Commission...... 811 – 813
III. APPROVED RULES...... 814 - 951
Health and Human Services, Department of
Child Care Commission
Radiation Protection Commission
Mental Health, Commission for
Public Health, Commission for
Social Services Commission
Justice, Department of
Criminal Justice Education and Training Standards Commission
Environmental Quality, Department of
Wildlife Resources Commission
Public Health, Commission for
State Treasurer, Department of
Local Government Commission
Occupational Licensing Boards and Commissions
Chiropractic Examiners, Board of
Recreational Therapy Licensure, Board of
Veterinary Medical Board
IV. RULES REVIEW COMMISSION...... 952 - 955
V. CONTESTED CASE DECISIONS
Index to ALJ Decisions...... 956 - 957
PUBLISHED BY
The Office of Administrative Hearings
Rules DivisionJulian Mann III, Director
6714 Mail Service CenterMolly Masich, Codifier of Rules
Raleigh, NC 27699-6714Dana McGhee, 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 McGhee, 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
150 Fayetteville St., Suite 300
Raleigh, North Carolina 27601
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 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
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.
EXECUTIVE ORDERS
32:09NORTH CAROLINA REGISTERNovember 1, 2017
1
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.
32:09NORTH CAROLINA REGISTERNovember 1, 2017
1
PROPOSED RULES
TITLE 02 – Department of agriculture and consumer services
Notice is hereby given in accordance with G.S. 150B-21.2 and G.S. 150B-21.3A(c)(2)g. that the Soil and Water Conservation Commission intends to adopt the rules cited as 02 NCAC 59D .0109 and .0110 and readopt with substantive changes the rules cited as 02 NCAC 59D .0101-.0108, 59H .0101-.0108.
Link to agency website pursuant to G.S. 150B-19.1(c):
Proposed Effective Date: April 1, 2018
Instructions on How to Demand a Public Hearing: (must be requested in writing within 15 days of notice): Any person may request a public hearing on the proposed rules by submitting a request in writing no later than November 16, 2017 to Christina Waggett, Rule-making Coordinator, NC Department of Agriculture, 1001 Mail Service Center, Raleigh, NC 27699-1001.
Reason for Proposed Action: The rules in 02 NCAC 59D and H have gone through the Periodic Review and Expiration of Existing Rules review process. They were all classified as "necessary with substantive public interest" and are now being readopted. The rules in 59H are being repealed and being combined with the rules in 59D to streamline the rules and to have all the rules for the Soil and Water Conservation Cost Share Programs in one place. The new adoptions of 59D .0109 and .0110 are necessary as part of combining these two subchapters. The rule in 59D layout the requirements for the cost-share programs.
Comments may be submitted to: Chrissy Waggett, 1001 Mail Service Center, Raleigh, NC 27699-1001, email
Comment period ends: January 15, 2018
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
No fiscal note required by G.S. 150B-21.3A(d)(2)
Chapter 59 - Soil and Water Conservation Commission
SUBCHAPTER 59D soil and water conservation COST SHARE programs
SECTION .0100 - Soil and water conservation commission COST SHARE programs
02 NCAC 59D .0101PURPOSE
This Subchapter describes the operating procedures for the divisionDivision under the guidance of the commissionCommission implementing the Agriculture Cost Share Program for Nonpoint Source Pollution Control.Control, the Community Conservation Assistance Program for Nonpoint Source Pollution Control, and the Agricultural Water Resources Assistance Program.Procedures and guidelines for participating districts are also described.The purpose offor the voluntary program is to reduce the delivery of the agricultural nonpoint source (NPS) pollution into the water courses of the State.are as follows:
(1)Agriculture Cost Share Program for Nonpoint Source Pollution Control is to reduce the delivery of agricultural nonpoint source (NPS) pollution into the water courses of the state.
(2)Community Conservation Assistance Program is to reduce the delivery of nonpoint source pollution into the waters of the state.
(3)Agricultural Water Resources Assistance Program is to assist famers and landowners to:
(a)identify opportunities to increase water use efficiency; availability and storage;
(b)implement best management practices to conserve and protect water resources;
(c)increase water use efficiency; or
(d)increase water storage and availability for agricultural purposes.
Authority G.S. 106-840; 106-850; 1394.
02 NCAC 59D .0102DEFINITIONS
In addition to the definitions found in G.S. 143-215.74,106-850 through G.S. 106-852, the following terms used in this Subchapter have the following meanings:
(1)Agriculture"Agricultural Nonpoint Source (NPS) PollutionPollution" means pollution originating from a diffuse source as a result of agricultural activities related to crop production, production and management of poultry and livestock, land application of waste materials, and management of forestland incidental to agricultural production.
(2)"Agricultural purposes" means agricultural activities related to crop production, production and management of poultry and livestock, land application of waste materials, and management of forestland incidental to agricultural production.
(2)(3)Allocation"Allocation" means the annual share of the state's appropriation for each program to participating districts.
(3)(4)Applicant"Application" means a person(s) who applies for best management practice cost sharing monies from the district.An applicant may also be referred to as a cooperator."cooperator." All entities,entities with which the applicant is associated, including those in other counties, shall be considered the same applicant.
(4)(5)Average Costs"Average Costs" means the calculated cost, determined by averaging actual costs and current cost estimates necessary for best management practice implementation.Actual costs include labor, supplies, and other direct costs required for physical installation of a practice.
(5)(6)Best Management Practice (BMP)"Best Management Practice (BMP)" means a structural or nonstructural management based practice used singularly or in combination to reduce nonpoint source inputs to receiving waters.address natural resource needs.
(a)For the Agriculture Cost Share Program and the Community Conservation Assistance Program, BMPs shall reduce nonpoint source inputs to receiving waters.
(b)For the Agricultural Water Resources Assistance Program, BMPs shall increase the storage, availability, and use efficiency of water for agricultural purposes.
(7)"Commission" means the Soil and Water Conservation Commission.
(6)(8)Conservation Plan of Operation (CPO)"Conservation Plan" means a written plan schedulingdocumenting the applicant's decisions concerning land use, and both cost shared and noncost shared BMPs to be installed and maintained on the operatingmanagement unit.
(7)(9)Cost Share Agreement"Cost Share Agreement" means an annual or long term agreement between the applicant and the district which defines the BMPs to be cost shared, rate and amount of payment, minimum practice life, and date of BMP installation.The agreement shall state that the recipient shall maintain and repair the practice(s) for the specified minimum life of the practice.The Cost Share Agreement shall have a maximum contract life of three years for BMP installation.The district shall perform an annual status review during the installation period.
(8)(10)Cost Share Incentive (CSI)"Cost Share Incentive (CSI)" means a predetermined fixed payment paid to an applicant for implementing a BMP in lieu of cost share.
(9)(11)Cost Share Rate"Cost Share Rate" means a cost share percentage paid to an applicant for implementing BMPs.
(12)"Department" means the North Carolina Department of Agriculture and Consumer Services.
(13)"Design practice" means an engineering practice as defined by the Natural Resources Conservation Service or Soil and Water Conservation Commission in their Program Detailed Implementation Plans.
(10)(14)Detailed Implementation Plan"Detailed Implementation Plan (DIP)" means the plan approved by the commissionCommission that specifies the guidelines for each program for the current program,fiscal year including BMPS that will be eligible for cost sharing and the minimum life expectancy of those practices.including:
(a)annual program goals;
(b)district and statewide allocations;
(c)BMPs that will be eligible for cost sharing; and
(d)the minimum life expectancy of those practices.
(15)"District Allocation Pool" means the annual share of the state's appropriation for each program to be allocated to participating districts.
(11)(16)District BMP"District BMP" means a BMP designatedrequested by a district and approved by the Division for evaluation purposes.to reduce the delivery of agricultural NPS pollution and which is reviewed and approved by the Division to be technically adequate prior to funding.
(17)"Division" means the Division of Soil and Water Conservation.
(12)(18)Encumbered Funds"Encumbered Funds" means monies from a district's allocation whichthat have been committed to an applicant after initial approval of theobligated to an approved cost share agreement.
(13)Full Time Equivalent (FTE) means 2,080 hours per annum which equals one full time technical position.
(14)(19)Inkind Contribution"In-kind Contribution" means a contribution by the applicant towards the implementation of BMPs.Inkind contributions shall be approved by the district and can include but not be limited to labor, fuel, machinery use, and supplies and materials necessary for implementing the approved BMPs.
(20)"Job Approval Authority" means the authority granted to individuals who are qualified to plan, design and verify installation or implementation of specific practices per practice standards approved by the Natural Resources Conservation Service or the Commission.This authority is either recognized or granted by the Natural Resources Conservation Service or the Commission.
(15)(21)Landowner"Landowner" means any natural person or other legal entity, including a governmental agency, who holds either an estate of freehold (such as a fee simple absolute or a life estate) or an estate for years or from year to year in land, but doesshall not include an estate at will or by sufferance in land.Furthermore, a governmental or quasigovernmental agency such as a drainage district or a soil and water conservation district, or any such agency, by whatever name called, exercising similar powers for similar purposes, can be a landowner for the purposes of these Rulesthe rules of this Subchapter if the governmental agency holds an easement in land.
(22)"Nonpoint source (NPS) Pollution" means pollution originating from a diffuse source.
(16)(23)Program Year"Fiscal Year" means the period from July 1 through June 30 for which funds are allocated to districts.
(17)(24)Proper Maintenance"Proper Maintenance" means that a practice(s) is being maintained such that the practice(s) is successfully performing the function for which it was originally implemented.
(25)"Regional Allocation Pool" means the annual share of the state's appropriation for each program allocated for applications ranked in the Division's three regions as specified in the annual Detailed Implementation Plan.
(18)(26)Soil Loss Tolerance (t) means the maximum allowable annual soil erosion rate to maintain the soil resource base, depending on soil type."Statewide Allocation Pool" means the annual share of the state's appropriation for applications ranked at the state level as specified in the annual Detailed Implementation Plan.
(19)(27)Strategy Plan"Strategic Plan" means the annual plan for the N.C. Agriculture Cost Share Program for Nonpoint Source Pollution ControlSoil and Water Conservation Commission Cost Share Programs to be developed by each district.The plan identifies pollution treatmentnatural resource needs and the level of cost sharing and technical assistance monies required to address those annual needs in the respective district.
(20)(28)Technical Representative"Technical representative" of the district means a person designated by the district to act on their behalf who participates in the planning, design, implementation and inspection of BMPs. These practices shall be technically reviewed by the Division.The district chairman shall certify that the technical representative has properly planned, designed and inspected the BMPs.