NC Register/Volume 1, Issue 1

NC Register

pages Title–73

2723538NC Register

The

NORTH CAROLINA

REGISTER

IN THIS ISSUE……………………

GENERAL STATUTES

EXECUTIVE ORDERS

JUDICIAL ORDERS

ADMINISTRATIVE ORDERS

STATEMENTS OF ORGANIZATION

PROPOSED RULES

LIST OF RULES AFFECTED

ISSUE DATE: APRIL 15, 1986

Volume 1 • Issue 1 • Pages 1-73

NORTH CAROLINA REGISTER

The North Carolina Register is published monthly and contains information relating to agency, executive, legislative and judicial actions required by or affecting Chapter 150B of the General Statutes. All proposed administrative rules and amendments filed under Chapter 150B must be published in the Register. The Register will typically comprise approximately one hundred pages per issue of legal text.

State law requires that a copy of each issue be provided free of charge to each county in the state and to various state officials and institutions. The North Carolina Register is available by yearly subscription at a cost of ninety-five dollars ($95.00) for 12 issues.

Requests for subscription to the North Carolina Register should be directed to the Office of Administrative Hearings, P. O. Drawer 11666, Raleigh, N. C. 27604. Attn: Subscriptions.

ADOPTION, AMENDMENT, AND REPEAL OF RULES

An agency intending to adopt, amend, or repeal a rule must first publish notice of the proposed action in the North Carolina Register. The notice must include a reference to the Statutory Authority for the action; the time and place of the public hearing and a statement of how public comments may be submitted to the agency either at the hearing or otherwise; the text of the proposed rule or amendment; and the proposed date.

The Director of the Office of Administrative Hearings has authority to publish a summary, rather than the full test, of any amendment which is considered too lengthy. In such case, the full text of the rule containing the proposed amendment will be available for public inspection at the Rules Division of the Office of Administrative Hearings and at the office of the promulgating agency.

Following publication of the proposal in the North Carolina Register, at least 60 days must elapse before the agency may take action on the proposed adoption, amendment or repeal.

When final action is taken, the promulgating agency must file any adopted or amended rule with the Office of Administrative Hearings. If it differs substantially from the proposed form published as part of the public notice, the adopted version will again be published in the North Carolina Register

A rule, or amended rule, cannot become effective earlier than the first day of the second calendar month after the adoption is filed.

Proposed action on rules may be withdrawn by the promulgating agency at any time before final action is taken by the agency.

TEMPORARY RULES

Under certain conditions of an emergency nature, some agencies may issue temporary rules. A temporary rule becomes effective when adopted and remains in effect for the period specified in the or 120 days, whichever is less. An agency adopting a temporary rule must begin normal rule-making procedures on the permanent rule at the same time the temporary rule is adopted.

NORTH CAROLINA ADMINISTRATIVE CODE

The North Carolina Administrative Code (NCAC) is a compilation and index of the administrative rules of 25 state agencies and 38 occupational licensing boards. The NCAC comprises approximately 15,000 letter size, single spaced pages of material of which approximately 35% is changed annually. Compilation and publication of the NCAC is mandated by G.S. 150B-63(b).

The code is divided into Titles and Chapters. Each state agency is assigned a separate title which is further broken down by chapters. Title 21 is designated for occupational licensing boards.

The NCAC is available in two formats.

(1) In looseleaf pages at a minimum cost of two dollars and 50 cents ($2.50) for 10 pages or less, plus fifteen cents ($0.15) per each additional page.

(2) On microfiche. The microfiche edition is revised semi-annually (March and October) and can be purchased for forty dollars ($40.00) per edition. Due to the volume of the Code, the complete copy can only be purchased on microfiche. The NCAC on microfiche is updated monthly by publication of a "List of Rules Affected" which sets out rules filed the previous month, the action taken, and the effective date of the change. This list is published in the North Carolina Register.

Requests for looseleaf pages of rules of the NCAC on microfiche should be directed to the Office of Administrative Hearings.

NOTE

The foregoing is a generalized statement of the procedures to be followed. For specific statutory language, it is suggested that Articles 2 and 5 of Chapter 150B of the General Statutes by examined carefully.

CITATION TO THE NORTH CAROLINA REGISTER

The North Carolina Regiser is cited by volume, issue, page number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volume 1, Issue 1, pages 101 through 201 of the North Carolina Register issued on April 1, 1986.

North Carolinea Register. Published monthly by the Office of Administrative Hearings, P. O. Drawer 11666, Raleigh, North Carolina 27604, pursuant to Chapter 150B of the General Statutes. Subscriptions ninety-five dollars ($95.00) per year.

North Carolina Administrative Code. Published in March and October by the Office of Administrative Hearings, P. O. Drawer 11666, Raleigh, North Carolina 27604, pursuant to Chapter 150B of the General Statutes. Subscriptions forty dollars ($40.00) per edition.

NORTH CAROLINA REGISTER

Office of Administrative Hearings
P. O. Drawer 11666
Raleigh, NC 27604
(919) 733 - 2678

Staff:

Robert A. Melott,

Director

Molly Mason,

Director of Rules Publication

Genic Rogers,

Executive Legal Specialist

Ruby Creech,

Publication Coordinator

Clerk

Wordprocessor

Wordprocessor

Records Clerk

ISSUE CONTENTS

NORTH CAROLINA REGISTER

Publication Deadlines and Schedule

(April 1986 - March 1987)

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GENERAL STATUTES OF NORTH CAROLINA

CHAPTER 150B

ADMINISTRATIVE PROCEDURES ACT

150B-1. Policy and scope. --(a) The policy of the State is that the three powers of government, legislative, executive, and judicial, are, and should remain, separate. The intent of this Chapter is to prevent the commingling of those powers in any administrative agency and to ensure that the functions of rule making, investigation, advocacy, and adjudication are not all performed by the same person in the administrative process.

(b) The purpose of this Chapter is to establish as nearly as possible a uniform system of administrative rule making and adjudicatory procedures for State agencies.

(c) This Chapter shall apply to every agency, as defined in G.S. 150B-2(1), except to the extent and in the particulars that any statute, including subsection (d) of this section, makes specific provisions to the contrary.

(d) The following are specifically exempted from the provisions of this Chapter: the Administrative Rules Review Commission, the Employment Security Commission, the Industrial Commission, the Occupational Safety and Health Review Board, and the Utilities Commission.

The North Carolina National Guard is exempt from the provisions of this Chapter in exercising its court-martial jurisdiction.

The Department of Correction is exempt from the provisions of this Chapter, except for Article 5 of this Chapter and G.S. 150B-13 which shall apply.

Articles 2, 3, and 3A of this Chapter shall not apply to the Department of Transportation in rule making or administrative hearings as provided for by Chapter 20 of the General Statutes or to the Department of Revenue.

Article 4 of this Chapter, governing judicial review of final administrative decisions, shall apply to the University of North Carolina and its constituent or affiliated boards, agencies, and institutions, but The University of North Carolina and its constituent or affiliated boards, agencies, and institutions are specifically excepted from the remaining provisions of this Chapter. Article 4 of this Chapter shall not apply to the State Banking Commission, the Commissioner of Banks, the Savings and Loan Division of the Department of Commerce, and the Credit Union Division of the Department of Commerce.

Article 3 of this Chapter shall not apply to agencies governed by the provisions of Article 3A of this Chapter, as set out in G.S. 150B-38(a).

150B-2. Definitions. --As used in this Chapter,

(1) "Agency" means any agency, institution, board, commission, bureau, department, division, council, member of the Council of State, or officer of the State government of the State of North Carolina but does not include any agency in the legislative or judicial branch of the State government; and does not include counties, cities, towns, village, other municipal corporations or political subdivisions of the State or any agencies of such subdivisions, or local boards of education, other local public districts, units or bodies of any kind, or private corporations created by act of the General Assembly.

(2)

(2a)

(3) "License" means any certificate, permit or other evidence, by whatever name ..

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called, of a right or privilege activity, engage any in issued under except licences Chapter 20 a;id Subchapter I of 105 the General Chapter of Statutes and occupational licenses "Licensing" means any (4) administrative action issuing, failing to issue, suspending, or license or revolving a occupational license. does 'Licensing' not include controversies over whether an examination was fair or whether passed the the applicant to

examination (4a) "Occupational license" means any certificate, permit, or other evidence, by whatever name called, of a right privilege to engage in a or profession, occupation, or field of endeavor that is Issued by an occupational licensing agency. (ib) "Occupational licensing agency" means any board, commission, committee or other agency of the State of North Carolina which is for established the primary purpose of reguLating the entry of persons inco, and/or the conduct of persons within a particular profession, occupation or field of endeavor, and which is authorized to issue revoke licenses. and 'Occupational licensing agency' does not include State agencies or departments which may as only a part of their regular function issue permits or licenses. (5) means any "Party" or person agency named or admitted as a party or properly to seeking as of right be admitted as a party and includes the agency as appropriate; provided this subdivision shall not be construed to permit the hearing agency or any of its officers or employees to appeal its ov;n decision for initial judicial review. (6) "Fcrson aggrieved" means any person or group of persons of common interest directly or indirectly affected substantially in or his its person, property, or employment by an administrative decision. (7) "Person" means any natural person, partnership, corporation, body politic and any unincorporated association, organization. or society which may sue or be sued under a common name (3) "Residence" means domicile or principal place of business (8a) "Rule" means any agency regulation, standard or

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general statement of applicability that implements or interprets laws enacted by the General Assembly or Congress or by regulations promulgated a federal agency or describes the procedure or practice requirements of any agency not inconsistent with laws enacted by the General Assembly. The term includes the amendment or The repeal of a prior rule. es term not include the following Statements a. internal concerning only the management of an agency or group of agencies, including policies and procedures manuals, if such a statement does not directly or substantially fee t

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procedural or substantive rights or duties of persons not employed by the agency or group of agencies. b. Budgets and budget policies and procedures issued by the Director of the Budget, by the head of a department, as defined by G 14; or G S by an occupational 143B-3. licensing board, as defined by 93B-1, or by the State G.S. Board of Elections. c Nonbinding interpretative statements within the delegated authority of the agency merely that define, interpret or explain the meaning of a statute or other provision of law or precedent form, d. A the contents or substantive of requirements which are prescribed, by rule or statute or the instructions for the execution or use of the form. e 5 tatemen t s of agency policy made in the context of another proceeding, including declaratory rulings under G.S. 150B-17; 2 orders establishing or fixing rates or tariffs Statements f of agency policy, provided that the policy is agency not with any inconsistent law enacted by the General Assembly, communicated to the public by of signs or symbols, use concerning <'

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NORTH CAROLINA REGISTER Page:NC-Register-Volume-01-Issue-01.pdf/7 Page:NC-Register-Volume-01-Issue-01.pdf/8 Page:NC-Register-Volume-01-Issue-01.pdf/9 Page:NC-Register-Volume-01-Issue-01.pdf/10 Page:NC-Register-Volume-01-Issue-01.pdf/11 v

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(1) A statement of the date, hour, place, and nature of the hearing; (2) A reference to the the sections of particular statutes and rules involved; (3) A short and plain the factual statement of allegations; and (4) the If the agency is Department of human Resources, a statement of who will conduct the hearing and that the party may request a hearing officer in the Office of Administrative Hearings as provided in G.S. 150B-32. Notice shall be given (c) personally or by certified mail. If given by certified mail, it shall be deemed to have been delivery date given on the appearing on the return receipt. If giving of notice cannot be

accomplished either personally or by certified mail notice the shall then be given in manner provided in G.S 1A-1, Rule 4( jl ) person may (d) Any petition to become a party by filing a motion to intervene in the manner provided G.S. in In addition, any 1A-1, Rule 24. person interested in a contested case may intervene and participate in that proceeding to the extent deemed appropriate by the hearing officer. (e) All hearings under this Chapter shall be open to the public. Hearings shall be conducted an impartial in manner. Hearings be shall conducted according to the procedures out set in this Article except to the extent and the particulars that in specific hearing procedures and time standards are governed by another statute. 50B-24 of Venue heari ng --(a) The hearing of a contested case shall be conducted In the county in this State in which any person whose property or rights are the subject matter of the hearing maintains his residence; (2) In the county where the agency maintains its principal office if the property or rights that are the subject matter of the hearing do not affect any person or if the subject matter of the hearing is the property or r i h ts of residents of more than one count or (3) In any county determined by the agency or hearing officer in his discre I ion to promote the ends ,

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justice or better serve the convenience of witnesses. (b) whose Any person or rights are property the subject matter of the hearing waives his objection to venue by proccedinq in the hearing. Con duct of 150B-25. If a he ring; a n swer (a) party fails to appear in a proper contested case after service of notice, and if no adjournment or continuance is granted, the agency or hearing officer may proceed with the hearing in the absence of the party A party who has been (b) served with a notice of hearing may file a written response, and to all a copy must be mailed other parties not less than 10 days before the date set for hearing. If the agency is the Department of Human Resources, response may the include a request for a hearing officer in the Office of Administrative Hearings as provided in G.S. of

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150B-32. (c) The parties shall be given an opportunity to present arguments on issuer, of lav; and policy and an opportunity present evidence on issues of fact (d) party may A cross-examine any witness, including the author of a document prepared by, on behalf of, or for use of the agency and offered in evidence. Any party may submit rebuttal evidence. Consolidation. 150B-26. When contested cases involving a common question of law or fact proceedings or multiple involving the same or related parties are pending, the chief hearing officer of the Office of Administrative Hearings may order a joint hearing of any matters at issue in the cases, order the cases consolidated, or reduce malte other orders to the costs or delay in proceedings. If one or more, parties but not all a in consolidated contested case in Department of Human the Resources involving multiple requests aggrieved persons a hearing officer in the Office of Administrative Hearings as provided in G.S. 150B-32, the chief hearing officer in the of Administrat ive Office Hearings shall decide whether to reques t at tcr grant the consulting with the parties in con tested all cases the involved 5 B 27 St ib poena, After the commencement of a .

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7A-754. Qualifications: standards of conduct: off. removal

.--Only persons duly authorized to practice law in the General Court of Justice shall be eligible for appointment as the Director and chief hearing officer or as a hearing officer in the Office of Administrative hearings.

7A-755. Expenses reimbursed

.--The Director of the Office of Administrative Hearings and all hearing officers shall be reimbursed for travel and subsistence expenses at the rates allowed to State officers and employess by G.S. 133-6(a).

7A-756. Power to administer oaths and issue subpoenas

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7A-757. Temporary hearing officers; appointments; powers and standards; fees

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7A-758. Availability of hearing officer to exempt agencies

.--The Director of the Office of Administrative Hearings may, under request of the head of the agency, provide a hearing officer to preside at hearings of public bodies not otherwise authorized or required by statute to utilize a hearing officer from the Office of Administrative Hearings including, but not limited to, State agencies exempt from the provisions of Chapter 150B, municipal corporations or other subdivisions of the State, and agencies of such subdivisions.

EXECUTIVE ORDERS

EXECUTIVE ORDER NUMBER 1

NORTH CAROLINA BOARD OF ETHICS

JANUARY 31, 1985

public office in WHEREAS North Carolina Rust always be regarded as a public trust; and WHEREAS, people of the North Carolina have a fundamental right to the assurance that officers of their government will not use their for personal public position gain; and WHEREAS this Adminis brat ion is committed to and restore maintain the North Carolina confidence of citizens in their government; and WHEREAS, there is a need in North Carolina for the creation institutionalized of an procedure designed to prevent the occurrence of conflicts of interest in government and to deal with them when they do 1

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occur; and WHEREAS,

this

Administration realizes that the majority vast of state government employees arc honest and hard working in their public and private lives; NOW, THEREFORE, IT IS HEREBY ORDERED: Section 1. Executive Order Number 1, January 10, 1977. Executive Order Number 1, dated January 1977, 10, is hereby rescinded. All records, including but not limited to Statements of Economic Interest, of the North Carolina Board of Ethics created pursuant to said exexutive order, are transferred to the North Carolina Board of Ethics herein. Section 2. North Carolina Board of Ethics. There is hereby established the North Carolina Board of Ethics consisting of five persons to be appointed by the Governor to serve at his pleasure. The Governor shall, from time to time, designate one of the members as Chairman. The members shall receive no compensation, but shall receive reimbursement for any necessary expenses incurred in connection with the performance of their duties pursuant to General Statute 133-15. The Board of Ethics shall not be considered a public office for the purpose of dual office holding. Section 3. Persons subject to Order. The following persons

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are subject to this order and to the jurisdiction of the Board of Ethics (a) All employees in the Office of the Governor. lb) The of all heads principal departments of state government who are appointed by tiie Governor. The chief deputy or (c) chief administra t ive assistant to each of the aforesaid heads of principal state departments. "confidential" (d) All assistants or secretaries to the aforesaid department heads (or to the aforesaid chief deputies and assistants of dcpartmeiit heads) as defined in G.S. 126-5(b)(2) (e) All employees in positions pol icy-making as designated by the Governor pursuant to the State Personnel Act as defined G.S. in and all 126-5(b)(3), "confidential" secretaries to these individuals as defined in G.S. 126-5 (b)(4). Any other employees in the principal departments of state government, except in those principal departments headed by elected heads other than the Governor, as may be designated by rule of the Board subject to the approval of the Governor, to extent such the designation does not conflict with the State Personnel Act. The members of (g) all commissions, boards and councils appointed by the Governor, with exception of members the of those commissions, boards and councils the Board of Ethics determines perform solely advisory functions. The elected heads of (h) other principal state departments. and certain employees of those departments as designated by the head, in the event of an election by such department head to participate in the system created by this Order as provided for in Section 8 of this Order Members (i) of North Carolina Board of Ethics. Section 4 Exemption From Order. Notwithstanding Section 3, herein, a commission, board or council to which the Governor members, •points may upon written application request the Board of Ethics to exempt its members from this Order. The Board of Ethics shall make a determination upon such requests, which shall be final, after a specific finding by the Board that such exemption does not violate the intent of this .

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NORTH CAROLINA REGISTER

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(3) Extensions shall not be granted if inattention or procrastination cause delay, but shall be granted if the delay is attributable to honest mistake, accident, or any cause compatible with proper diligence.

.0027 EX PARTE COMMUNICATIONS

Ex parte communications are governed by G.S. 150B-35

.0028 RECONSIDERATION OR REHEARING

(a) After a hearing officer has issued a recommended decision, the hearing officer loses jurisdiction to amend the decision except for clerical or mathematical errors, unless the recommended decision is binding as a final decision pursuant to G.S. 150B-23(a) or G.S. 150E-33(g)

(b) If the recommended decision is binding on the agency as a final decision, a petition for reconsideration or rehearing may be filed with the Office of Administrative Hearings within 10 days of service of the recommended decision upon the petitioning party

.0029 AVAILABILITY OF COPIES

These Rules and copies of all matters adopted by reference herein are available from the Office of Administrative Hearings at the cost established in 26 NCAC 1 .0001.

TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE

,

TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE TITLE 1

2 3

Adm in as bration, Department of Agr ic ul ture, Department of Aud it or Department of State Con me re e, Department of Cor re ct io ns. Department of Con nc il o f State Cul tu ra 1 Resources, Department Ele ct io ns State Board of Gov ei- no r Hum an R es ources, Department of Ins ur an ce Department of Jus hi ce Department of Lab or De partment of Cri me 'c on trol Department of Nat ur nl R esources and Community Development Edu ca bi on Department of Rev en ue Department of Sec re ba ry of State Tra nc po rt at ion, Department of Department of State Tre as ur er Occ up at io nal Licensing Boards Adm in is tr ative Procedures Corn niu ni ty Colleges, Department of Ind ep en de nt Agencies Per so nn el Department of State Off ic e of Administrative Hearings ,

4 5 6 7

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9

10 1

DEPARTMENT

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12

13

14A 15 16 17 18

19A 20 X21 22 23 24 25 26

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NOTE:

CHAPTER 2

4 6

10 12

14 16 16

20 21 22

26 28 30 51

32 33

34 36 37 33 40 42 44 46 4a

50 52

53 54 56 58 60 62

64

Title 21 contains the chapters of the various occupational licensing boards.

LICENSING BOARD

Architecture Board of Auctioneers. Commission for Barber Examiners, Board of Certified Fublic Accountant Examiners Chiropract ic Examiners, Board of Contractors, Licensing Boax'd for Cosmetic Art Examiners, Board of Dental Examiners, Board of Electrical Contractors, Board of Examiners Foresters, Board of Registration for Geologists, Board of Hearing Aid Dealers and Fitters Board Landscape Architects, Licensing Board of Landscape Contractors, Registration Board of Law Examiners, Board of Martial 8 Family Therapy Certification Board Medical Examiners, Board of Midwifery Joint Committee Mortuary Science, Board of Nursing, Board of Nursing Home Adninistra tors Board of Occupational Therapist, Board of Opticians, Board of Optometry, Board of Examiners in Osteopathic Examination and Registration Pharmacy, Board of Physical Therapy, Examining Committee of Plumbing and Heating Contractors, Board of Podiatry Examiners, Board of Practicing Counselors, Board of Practicing Psychologists, Board of Professional Engineers and Land Surveyors Real Estate Commission Refrigeration Examiners, Board of Sanitarian Examiners, Board of Speech and Language Pathologists and Audiologis ts Board of Examiners of Veterinary Medical Board ,

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NORTH CAROLINA REGISTER

CUMULATIVE INDEX

(April 1, 1986 - March 31, 1987)

Volume 1, Issue 1, Pages 1-73

AO - Administrative Order

E - Errata

EO - Executive Order

FR - Final Rule

GS - General Statutes

JO - Judicial Order

LRA - List of Rules Affected

PR - Proposed Rule

SD - Statement of Organization

TR - Temporary Rule

ADMINISTRATIVE ORDERS

Beecher Reynolds Gray, 47 AO

Fred Gilbert Morrison, Jr., 48 AO

Angela Rebecca Bryant, 49 AO

Thomas R. West, 50 AO

EXECUTIVE ORDERS

Executive orders 1-25, 23-44 EO

GENERAL STATUTES

Chapter 7A 21-22

Chapter 150B, 3-21 GS

JUDICIAL ORDERS

Appointment

Robert A. Melott, 45 JD

LIST OF RULES AFFECTED

Volume 10, No. 1

(April 1, 1986), 71 LRA

OFFICE OF ADMINISTRATIVE HEARINGS

General, 52 PR

Hearings Division, 61 PR

Rules Division, 51 PR

STATEMENTS OF ORGANIZATION

Office of Administrative Hearings, 51 SO