CHAPTER 21 ‑ BOARD FOR LICENSING OF GEOLOGISTS
SECTION .0100 ‑ STATUTORY AND ADMINISTRATIVE PROVISIONS
21 NCAC 21 .0101 AUTHORITY: NAME AND LOCATION OF
BOARD
The "North Carolina Geologists Licensing Act",
Chapter 89E of the General Statutes of North Carolina, establishes and
authorizes the "North Carolina Board for Licensing of Geologists,"
hereafter called the "Board". Unless otherwise directed, all
communications should be addressed to the Board at Post Office Box 27402,
Raleigh, North Carolina 27611.
History Note: Authority G.S. 89E‑4;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0102 PURPOSE OF THE
ACT
History Note: Authority G.S. 89E‑2;
Eff. February 1, 1986;
Repealed Eff. April 1, 1989.
21 NCAC 21 .0103 ORGANIZATION OF THE BOARD
(a) Meetings shall be open and public except that the Board
may meet in closed sessions to prepare, approve, administer, or grade
examinations, to deliberate the qualifications of an applicant for license, or
to deliberate on the disposition of a proceeding to discipline a licensed
geologist.
(b) The Board shall have power to compel the attendance of
witnesses, to administer oaths, and to take testimony and proofs of all matters
within its jurisdiction.
(c) The chairman and ex‑officio member shall be full
voting members of the Board.
History Note: Authority G.S. 89E‑4; 89E‑5;
143‑318.18(6);
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0104 DUTIES OF OFFICERS
(a) Chairman. The chairman shall, when present, preside at
all meetings, appoint all committees, sign all certificates issued and perform
all other duties pertaining to his office.
(b) Vice-chairman. The vice-chairman, in the absence of the
chairman, shall perform all of the duties of the chairman.
(c) Secretary-treasurer:
(1) The secretary-treasurer, with the
assistance of an executive director or such other officers or employees as may
be approved by the Board, shall conduct and care for all the correspondence of
the Board, keep the minutes of all the meetings, keep all books and records,
and shall sign all certificates issued. He shall have charge, care and custody
of the official documents by order of the Board. He shall provide due notice
of the time and place of all meetings of the Board to each member of the Board.
(2) The secretary-treasurer, with the
assistance of an executive director or such other officers or employees as may
be approved by the Board, shall receive all moneys from applicants for annual
renewal or other fees and deposit them in an authorized depository of the
Board. The secretary treasurer shall give bond to be conditioned on the
faithful performance of the duties of his office and on the faithful accounting
of all monies and other property as shall come into his hands.
(3) The secretary-treasurer, with the
assistance of an executive director or such other officers or employees as may
be approved by the Board, shall provide to each applicant for a license or
registration a current copy of G.S. 89E and the rules of this Chapter. Copies
of the Geologists Licensing Act and the rules of this Chapter shall be provided
by mail with the application packet or in electronic format on the Board’s
Internet website (www.ncblg.org) with the on-line application packet.
History Note: Authority G.S. 89E4; 89E5;
Eff. February 1, 1986;
Amended Eff. April 1, 2003; April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0105 SEAL OF BOARD
The seal shall have the words "North Carolina Board for
Licensing of Geologists" and the secretary‑treasurer shall have
charge, care and custody thereof.
History Note: Authority G.S. 89E‑5;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0106 FORMS
History Note: Authority G.S. 55B‑2(6); 55B‑10;
89E‑8; 89E‑10; 89E‑11; 89E‑12;
Eff. February 1, 1986;
Amended Eff. January 1, 1992; April 1, 1989; March 1, 1988;
Repealed Eff. May 1, 2003.
21 NCAC 21 .0107 FEES
(a) Completed application forms must be accompanied by the
prescribed fee. Application fees shall not be refunded regardless of Board
approval or disapproval of the application. Fees shall be:
(1) Application for license $
55.00
(2) Application for registration $
50.00
(3) Examination per part: cost plus $
30.00
(4) Annual renewal of license $
85.00
(5) Annual renewal of certificate of
registration for corporation or limited
liability company $
25.00
(6) Application for reinstatement of license $150.00
(7) Application for reinstatement of
registration $
10.00
(8) Replacement of license or registration
certificate $
10.00
(9) Licensed geologist stamp or seal: cost plus $
7.50
(10) Registered geological corporation or limited
liability company stamp or seal:
cost plus $
7.50
(b) All licenses shall expire on July 1. Annual license
renewal fees received after July 1 and before August 1 of the year due shall be
accompanied by a late payment penalty of fifty dollars ($50.00).
(c) Licenses that have not been renewed by August 1 may
only be renewed by:
(1) filing a reinstatement application,
demonstrating that the applicant is otherwise qualified and entitled to license
renewal, in accordance with Rule .0302 of this Chapter;
(2) payment of any delinquent annual fees
having accrued since the last timely renewal of the license; and
(3) payment of the reinstatement fee specified
in Subparagraph (a)(6) of this Rule.
(d) All registrations shall expire on July 1. If a
corporation or limited liability company fails to apply for renewal of its
certificate of registration by August 1 of the year due, the registration may
only be renewed by:
(1) filing a reinstatement application,
demonstrating that the firm is otherwise qualified and entitled to a renewal of
its certificate of registration, in accordance with Rule .0302 of this Chapter;
(2) payment of the required renewal fee; and
(3) payment of the reinstatement fee specified
in Subparagraph (a)(7) of this Rule.
(e) Licenses and registrations that have been revoked under
G.S. 89E-19 may be reinstated by filing a reinstatement application in
accordance with Rule .0302 of this Chapter and paying the reinstatement fee
specified in Subparagraph (a)(6) or (a)(7) of this Rule, as applicable.
(f) Extensions for certain members of armed forces.
Individuals who are serving in the armed forces of the United States to whom an extension of time to file a tax return has been granted by G.S. 105-249.2
shall be granted the same extension of time to pay their annual license fee.
Such individuals shall provide to the Board documentation to support their
request for extension.
History Note: Authority G.S. 55B-2(6); 55B-10; 55B-11;
89E-5; 89E-8; 89E-10; 89E-12; 89E- 13; 89E-19; 93B-15; 105-249.2;
Eff. February 1, 1986;
Amended Eff. April 1, 2003; May 1, 1994; April 1, 1993; January 1, 1992; April 1, 1990;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
SECTION .0200 ‑ RECORDS AND REPORTS OF BOARD: RETENTION
AND DISPOSITION
21 NCAC 21 .0201 RECORDS OF BOARD PROCEEDINGS
History Note: Authority G.S. 89E‑14(a);
Eff. February 1, 1986;
Repealed Eff. April 1, 1989.
21 NCAC 21 .0202 RECORDS OF APPLICATIONS
All records of applications for registration shall be
retained by the Board.
History Note: Authority G.S. 89E‑14;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0203 ROSTER OF LICENSED GEOLOGISTS
Every individual licensee has the continuing responsibility
of keeping the Board currently advised of the licensee's proper and current
mailing address and the name or names under which the licensee is practicing.
Each licensee shall immediately notify the Board of any and all changes of
association or address.
History Note: Authority G.S. 89E‑15;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive
public interest Eff. December 16, 2014.
21 NCAC 21 .0204 APPLICABILITY OF BOARD RULES
History Note: Authority G.S. 89E‑5(h);
Eff. February 1, 1986;
Repealed Eff. April 1, 1989.
SECTION .0300 ‑ LICENSING OF GEOLOGISTS
21 NCAC 21 .0301 REQUIREMENTS
FOR LICENSING
(a) Education. In determining whether an applicant meets
the minimum education requirements of the Geologists Licensing Act, the Board
shall accept transcripts from colleges and universities that are accredited by
a national or regional accrediting organization such as the Southern
Association of Colleges and Schools. The Board requires 30 hours of geological
study, with 24 hours of upper-level courses in areas including: geology,
geophysics, geochemistry, oceanography, paleontology, hydrology, soil science,
economic geology and engineering geology.
(b) References. Five letters of reference submitted to the
Board which shall satisfy the Board as to the character, reputation,
responsibility, integrity and competence of the applicant. These letters of
reference must be submitted by licensed or qualified geologists or professional
engineers. No member of the Board shall act as a reference for any applicant
for licensing. At least two of the five letters of reference must be submitted
by licensed or qualified geologists who are familiar with the applicant's work
in the field of geology.
(c) Written Examination. Except as provided in Paragraph
(e) of this Rule, all applicants shall pass the written examination
administered by the Board in conjunction with the Association of State Boards
of Geology (A.S.B.O.G.). The applicant shall be notified, not less than 30
days before the examination, as to the time and place of the examination. A
person who has failed an examination is allowed to take the examination again
at the next regularly scheduled examination period. A person having a record
of three failures shall not be allowed to take that examination again until a
written appeal is made to the Board and qualifications for examination are
reviewed and reaffirmed by the Board. The applicant shall demonstrate to the
Board that actions have been taken to improve the applicant's possibility of
passing the exam.
(d) Experience. In determining whether an applicant meets
the minimum experience requirements of the Geologists Licensing Act, the Board
shall consider the total work experience record of the applicant. The Board
shall look for the applicant's ability to conduct geological work in a
satisfactory manner with little or no supervision.
(e) Certificate by comity. The Board shall grant a license
without further examination to a person holding a license to engage in the
practice of geology, which license has been issued by another jurisdiction,
when the applicant meets the following conditions:
(1) the applicant has filed an application for
license and paid the fee required by Rule .0107 of this Chapter;
(2) the applicant has provided evidence of
education and experience equal to the requirements of Paragraphs (a), (b), and
(d) of this Rule as indicated in Rule .0302 of this Section;
(3) the applicant is in good standing with the
agency regulating the practice of geology in any jurisdiction in which the
applicant holds a license to practice geology; and
(4) the applicant has successfully passed a
written examination deemed to be equal or equivalent to the examination
required by the Board pursuant to G.S. 89E-9 and Paragraph (c) of this Rule.
History Note: Authority G.S. 89E-7; 89E-8; 89E-9;
89E-11;
Eff. February 1, 1986;
Amended Eff. April 1, 2003; April 1, 1990; April 1, 1989; March 1, 1988;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0302 APPLICATION PROCEDURE
(a) All applicants for licensing are required to furnish
with their applications the following:
(1) A legible official copy of their college
transcript(s), and verification of graduation sent directly from the institution
to the Board;
(2) Verification of experience in the practice
of geology on forms provided by the Board;
(3) Five references as defined in Rule .0301(b)
of this Section;
(4) A notarized copy of a completed application
form as prescribed by the Board; and
(5) The application fee as prescribed in Rule
.0107 of this Chapter.
(b) Applicants for reinstatement of an expired license or
registration shall submit a reinstatement application and shall submit the fee
as provided by Rule .0107 of this Chapter.
(c) Applicants for reinstatement of a revoked license or
registration shall submit such information as is required by the Board to
determine eligibility for reinstatement pursuant to G.S. 89E-21, and shall
submit the fee as provided by Rule .0107 of this Chapter.
(d) Additional information required by the Board to approve
or deny approval on any application shall be filed with the Board within 60
days of the applicant’s receipt of notice to provide such information. This
may include any of the applicant's written reports, maps, published articles or
other materials the Board determines are appropriate to document the
applicant's experience as a geologist. Failure to submit the supplemental
information requested within the time specified by this Rule may result in the
Board's rejection of the application without further notice prior to such
rejection.
History Note: Authority G.S. 89E-7; 89E-8; 89E-9;
89E-11; 89E-12; 89E-21;
Eff. February 1, 1986;
Amended Eff. April 1, 2003; April 1, 1990; April 1, 1989; March 1, 1988;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
SECTION .0400 ‑ CERTIFICATE AND SEAL
21 NCAC 21 .0401 CERTIFICATE
21 NCAC 21 .0402 SEAL
History Note: Authority G.S. 89E‑5(d); 89E‑18(d);
Eff. February 1, 1986;
Repealed Eff. April 1, 1989.
section .0500 – disciplinary action and procedure
21 NCAC 21 .0501 FILING OF CHARGES AND DISCIPLINARY
ACTIONS
(a) Any person may file with the Board a charge of
negligence, incompetence, dishonest practice, or other misconduct or of any
violation of G.S. 89E or of these Rules.
(b) Upon receipt of such charge or upon its own initiative,
the Board may, consistent with procedures required by G.S. 150B, suspend or
revoke the license or certificate of registration, may issue a reprimand as
provided in Rule .0502 of this Section or may, upon a statement of the reasons
therefore, dismiss the charge as unfounded or trivial, which statement shall be
mailed to the geologist and the person who filed the charge. If the Board
determines that a licensee is professionally incompetent, the Board may require
the licensee to demonstrate fitness to practice as allowed in G.S. 89E-19(b).
In addition to issuing a reprimand or suspending or revoking a license or
certificate of registration, the Board, pursuant to G.S. 89E-19, may impose a
civil penalty for any violation of G.S. 89E or these Rules.
(c) The Board may publish in the Board's newsletter or
other public media any disciplinary action taken against a licensee or
registrant or any legal action taken against any person found to be in
violation of G.S. 89E or these Rules.
History Note: Authority G.S. 89E-5; 89E-17; 89E-19;
89E-20;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Temporary Amendment Eff. November 24, 1999;
Amended Eff. April 1, 2003: August 1, 2000;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0502 REPRIMAND
(a) If evidence of a violation is found, but it is
determined that a disciplinary hearing is not warranted, the Board may issue a
reprimand to the accused party. A record of such reprimand shall be mailed to
the accused party and within 15 days after receipt of the reprimand the accused
party may refuse the reprimand and request that a Hearing be held pursuant to
G.S. 150B. Such refusal and request shall be addressed to the Board and filed
with the Executive Director of the Board.
(b) Upon timely filing of a notice refusing the reprimand
and requesting a hearing, the Board shall determine whether the Board shall
conduct the evidentiary hearing or whether it shall refer the matter to the
Office of Administrative Hearings for designation of an administrative law
judge to conduct the hearing. If the Board elects to conduct the hearing, the
legal counsel for the Board shall thereafter prepare and file a Notice of
Hearing. If the Board refers the matter to the Office of Administrative
Hearings, that agency shall prepare and serve all subsequent notices related to
the evidentiary hearing, including the Notice of Hearing.
(c) If the Letter of Reprimand is accepted, a copy of the
reprimand shall be maintained in the office of the Board. If a party receiving
a reprimand wishes merely to file a letter rebutting his reprimand, he may in
writing waive his right to hearing and submit a letter of rebuttal to be placed
in his file.
History Note: Authority G.S. 89E-5; 89E-19; 89E-20;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Temporary Amendment Eff. November 24, 1999;
Amended Eff. April 1, 2003; August 1, 2000;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0503 APPLICABLE HEARING RULES
21 ncac 21 .0504 caution
History Note: Authority G.S. 89E‑5; 89E‑20;
150B‑38;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Repealed Eff. April 1, 2003.
21 NCAC 21 .0505 RIGHT TO HEARING
When the Board, other than in a rulemaking or declaratory
ruling proceeding, acts or proposes to act in a manner which will affect the
rights, duties, or privileges of a specific identifiable person or persons,
those persons have a right to an administrative hearing. When the Board
proposes to act in such manner, it shall give to any such person or persons
notice of their right to a hearing by mailing by certified mail to such person
at his last known address a notice of the proposed action and a notice of a
right to a hearing.
History Note: Authority G.S. 89E‑20; 150B‑11;
150B‑38;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0506 REQUEST FOR HEARING
(a) When an individual believes his rights, duties or
privileges have been or may be affected by the Board's administrative action,
but has not received notice of a right to an administrative hearing, he may
file a formal request for a hearing.
(b) The formal request shall bear the notation: RE:
REQUEST FOR ADMINISTRATIVE HEARING. That request should contain the following
information:
(1) name and address of the
petitioner;
(2) a concise statement of the
action taken by the Board which is challenged;
(3) a concise statement of the
way in which the petitioner has been aggrieved; and
(4) a clear and specific
statement of request for a hearing.
(c) Such a request will be acknowledged promptly and, if
deemed appropriate under Rule 21 NCAC 21 .0507, a hearing will be scheduled.
History Note: Authority G.S. 89E‑20; 150B‑11;
150B‑38;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0507 GRANTING OR DENYING HEARING REQUESTS
(a) The Board will grant a request for a hearing if it
determines that the party requesting the hearing is a "person
aggrieved" within the meaning of G.S. 150B‑2(6).
(b) The denial of a request for a hearing will be issued
immediately upon decision, and in no case later than 60 days after the
submission of the request. Such denial shall contain a statement of the
reasons leading the Board to deny the request.
(c) Approval of a request for a hearing will be signified
by issuing a notice as required by G.S. 150B‑38(b).
History Note: Authority G.S. 89E‑20; 150B‑11;
150B‑38;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0508 NOTICE OF HEARING
(a) In addition to the items specified in General Statutes
150B‑38(b) to be included in the notice, notices of administrative
hearings of the Board:
(1) shall give the name,
position, address and telephone number of a person in the Board office to
contact for further information or discussion;
(2) may give notice of the date,
time, and place for a prehearing conference, if any; and
(3) may include any other
information deemed relevant to informing the party or parties as to the
procedure of the hearing.
(b) If the Board determines that the public health, safety
or welfare requires such action, it may issue an order summarily suspending a
license. Upon service of the order, the licensee to whom the order is directed
shall immediately cease the practice of geology in North Carolina. The Board
shall promptly give notice of hearing pursuant to G.S. 150B‑38 following
service of the order. The suspension shall remain in effect pending issuance
by the Board of a final agency decision pursuant to G.S. 150B‑42.
History Note: Authority G.S. 89E‑19; 89E‑20;
150B‑3; 150B‑11; 150B‑38;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0509 NO EX PARTE COMMUNICATIONS
History Note: Authority G.S. 89E‑20; 150B‑35;
Eff. February 1, 1986;
Repealed Eff. April 1, 1989.
21 NCAC 21 .0510 PETITION FOR INTERVENTION
(a) A person desiring to intervene in a contested case must
file a written petition with the Board. The request should bear the notation:
RE PETITION TO INTERVENE IN THE CASE OF (name of case).
(b) The petition must contain the information specified in
Rule 24 of the North Carolina Rules of Civil Procedure.
(c) If the Board determines to allow intervention, notice
of that decision will be issued promptly to all parties and to the petitioner.
(d) If the Board denies intervention, the petitioner will
be notified promptly. Such notice will be in writing, will state the reasons
for the decision, and will be issued to the petitioner and all parties.
History Note: Authority G.S. 89E‑20; 150B‑38;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0511 TYPES OF INTERVENTION
(a) Intervention of Right. A petition to intervene of
right, as provided in the North Carolina Rules of Civil Procedure, Rule 24,
will be granted if the petitioner meets the criteria of that Rule and his
petition is timely.
(b) Permissive Intervention. A petition to intervene
permissively as provided in the North Carolina Rules of Civil Procedure, Rule
24, will be granted if the petitioner meets the criteria of that Rule and the
Board determines that:
(1) there is sufficient legal or
factual similarity between the petitioner's claimed rights, privileges, or
duties and those of the parties to the hearings; and
(2) permitting intervention by
the petitioner as a party would aid the purpose of the hearing.
History Note: Authority G.S. 89E‑20; 150B‑38;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0512 HEARING OFFICERS: DESIGNATION:
POWERS
History Note: Authority G.S. 89E‑20; 150B‑32;
150B‑33;
Eff. February 1, 1986;
Repealed Eff. April 1, 1989.
21 NCAC 21 .0513 DISQUALIFICATION OF BOARD MEMBERS
(a) Self‑disqualification. If for any reason a Board
member determines that personal bias or other factors render him unable to
participate in a contested case hearing and perform all duties in an impartial
manner, he shall submit, in writing, to the Board, his disqualification and the
reasons.
(b) Petition for Disqualification. If for any reason any
party in a contested case believes that a Board member is personally biased or
otherwise unable to participate in a contested case hearing and perform all
duties in an impartial manner, the party may file a sworn, notarized affidavit
with the Board. The title of such affidavit should bear the notation:
AFFIDAVIT OF DISQUALIFICATION OF BOARD MEMBER IN THE CASE OF (name of case).
(c) Contents of Affidavit. The affidavit must state all
facts the party deems relevant to the disqualification of the Board member.
(d) Timeliness and Effect of Affidavit. An affidavit of
disqualification will be considered timely if filed ten days before
commencement of the hearing. Any other affidavit will be considered timely
provided it is filed at the first opportunity after the party becomes aware of
facts which give rise to a reasonable belief that the Board member may be
disqualified under this Rule. Where a petition for disqualification is filed
less than ten days before or during the course of a hearing, the hearing shall
continue with the challenged Board member sitting. Petitioner shall have the
opportunity to present evidence supporting his petition, and the petition and
any evidence relative thereto presented at the hearing shall be made a part of
the record. The Board, before rendering its decision, shall decide whether the
evidence justifies disqualification. In the event of disqualification, the
disqualified member will not participate in further deliberation or decision of
the case.
(e) Procedure for Determining Disqualification:
(1) the Board, will appoint a
Board member to investigate the allegations of the affidavit.
(2) the investigator will report
to the Board the findings of the investigation.
(3) the Board shall decide
whether to disqualify the challenged individual.
(4) the person whose
disqualification is to be determined will not participate in the decision but
may be called upon to furnish information to the other members of the Board.
(5) when a Board member is
disqualified prior to the commencement of the hearing or after the hearing has
begun, such hearing will continue with the remaining members sitting provided
that the remaining members still constitute a majority of the Board.
(6) if three or more members of
the Board are disqualified pursuant to this Rule, the Board shall petition the
Office of Administrative Hearings to appoint an administrative law judge to
hear the contested case pursuant to G.S. 150B‑40(e).
History Note: Authority G.S. 89E‑20; 150B‑11;
150B‑38; 150B‑40;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0514 INVESTIGATION
(a) As provided in G.S. 89E-17, valid complaints received
by the Board shall be forwarded to an investigator for further inquiry as to
whether the acts or omissions alleged violate the provisions of G.S. 89E, the
Board's code of professional conduct, or any other rules of this Chapter. The
Board's executive director shall notify the licensee or corporate registrant of
the complaint and advise the licensee or corporate registrant that:
(1) He has a duty to cooperate fully with the
investigation by the Board; and
(2) He may submit a written response to the
complaint.
(b) The investigator shall collect all information needed
to determine whether a violation has occurred and the nature and severity of
the violation. Information gathered during the course of an investigation
shall be treated by the Board as confidential information in accordance with
G.S. 89E-17(c) until the Board takes disciplinary action against the licensee
or registrant; however, the Board cannot ensure the confidentiality of any
information introduced into evidence in a hearing conducted by the Office of
Administrative Hearings upon referral from the Board, because the information
becomes part of the public record of that agency at the time of introduction.
(c) After collecting information relevant to the complaint,
the investigator shall submit a report consisting of the complaint, information
gathered in the course of investigation, and the investigator's conclusion to a
peer review committee for evaluation. The peer review committee shall consist
of at least two professional geologists, each of whom hold a currently valid
license issued by the Board.
(d) The investigation report (including, but not limited
to, the supporting information relevant to the complaint) and the written
evaluation of the peer review committee shall be submitted to the Executive
Director of the Board to be combined with the licensee's written response to
the complaint, if any, for further proceedings in accordance with Rule .0515 of
this Section.
History Note: Authority G.S. 89E-5; 89E-17; 89E-20;
Temporary Adoption Eff. November 24, 1999;
Eff. August 1, 2000;
Amended Eff. April 1, 2003;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0515 DISCIPLINARY PROCEDURE
(a) Upon receipt of an investigation report and evaluation
from the Board's investigator and peer review committee in accordance with Rule
.0514 of this Section, the Board's Executive Director shall forward to the Chairman
of the Board (or to a member of the Board designated by the Chairman) the
investigation report, evaluation, and the supporting documentation along with
the licensee's or registrant's written response to the complaint, if any.
(b) The Chairman (or a member of the Board designated by
the Chairman) shall propose the disciplinary action for the violation(s)
revealed by the investigation consistent with the provisions of G.S. 89E-19.
The Chairman (or a member of the Board designated by the Chairman) may issue a
summary suspension pursuant to G.S. 150B-3(c). The Chairman or his designee,
may also propose dismissal of the complaint.
(c) After review of the investigation report, evaluation,
and supporting documentation, the Chairman shall notify the licensee or
registrant of the proposed disciplinary action by certified mail sent to the
last known address of the licensee or registrant as indicated by the Board’s
official roster. This notification shall contain a summary of the alleged
facts or conduct upon which the proposed disciplinary action is based, the
effective date of the proposed disciplinary action, and an explanation of the
licensee's or registrant's hearing rights pursuant to G.S. 150B, Article 3A.
Notification for summary suspensions shall meet the requirements of G.S.
150B-3(c).
(d) The licensee or registrant has 15 days from receipt of
notification of proposed disciplinary action to file with the Board a written
request for hearing. Requests for hearing must be received at the Board's office
by 5:00 p.m. on the date due. If the licensee or registrant does not file a
written request for hearing with the Board, the Board shall receive the
Chairman's recommendation on disciplinary action at its next meeting. If,
after limited review of the facts of the case, a majority of the Board agrees
with the Chairman's recommendation, the proposed disciplinary action becomes a
final agency decision. If a majority of the Board does not agree with the
Chairman's recommendation, the Board shall review of the investigator's report
without supporting documentation for the purpose of proposing an appropriate
disciplinary action or dismissal. The Chairman shall not participate in the
deliberations or the voting with regard to either his recommendation or the
Board's decision regarding a substitute disciplinary action. A new notice of
proposed disciplinary action will be sent to the licensee or registrant, if
necessary, in accordance with the procedure set out in Paragraph (c) of this
Rule, and the licensee or registrant has 15 days from receipt of the new notice
of proposed disciplinary action to file with the Board a written request for a
hearing. Requests for hearing must be received at the Board's office by 5:00 p.m. on the date due.
(e) The licensee or registrant may request a settlement
conference; however, neither the request for settlement conference nor the
Board's agreement to enter into settlement negotiations will extend the 15-day
deadline for requesting an opportunity for a hearing or any other deadlines in
the hearing process. The Chairman (or a member of the Board designated by the
Chairman) is delegated authority to negotiate a settlement; however, the
settlement agreement must be approved by a majority of the members of the Board
before the proposed disciplinary action will be rescinded.
(f) Upon receipt of written request for hearing, the Board
may conduct an administrative hearing as authorized by G.S. 150B-38 or the
Board may request the Office of Administrative Hearings to conduct the hearing
as authorized by G.S. 150B-40. Hearings shall be conducted in accordance with
the rules of this Chapter.
(g) A majority of the members of the Board shall render the
final agency decision, in accordance with G.S. 150B-42, after a hearing on the
proposed disciplinary action. The Chairman, or if applicable the designated
member, who proposed the disciplinary action after a full review of the facts
available to the investigator and peer review committee shall not participate
in the discussion of the contested case and shall not vote on the final
decision for disciplinary action. Nothing in this Rule shall prevent members
of the Board from participating in the discussion and vote on a final agency
decision with regard to proposed disciplinary action if they have reviewed the
investigator's report without supporting documentation solely for the purpose
of determining whether probable cause existed to support the allegations of
violation and for the purpose of proposing an appropriate disciplinary action.
History Note: Authority G.S. 89E-5; 89E-19; 89E-20;
150B-3; 150B-38 through 150B-42;
Temporary Adoption Eff. November 24, 1999;
Eff. August 1, 2000;
Amended Eff. April 1, 2003;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
SECTION .0600 ‑ ADMINISTRATIVE HEARINGS: DECISIONS:
RELATED RIGHTS
21 NCAC 21 .0601 WITNESSES
Any party may be a witness and may present witnesses on the
party's behalf at the hearing. All oral testimony at the hearing shall be
under oath or affirmation and shall be recorded. At the request of a party or
upon the Board's own motion, the presiding officer may exclude witnesses from
the hearing room so that they cannot hear the testimony of other witnesses.
History Note: Authority G.S. 89E‑20; 150B‑11;
150B‑25(a); 150B‑38; 150B‑40;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0602 SIMPLIFICATION OF ISSUES
The parties to a contested case, specifically including the
Board, may agree in advance to simplify the hearing by: decreasing the number
of the issues to be contested at the hearing; accepting the validity of certain
proposed evidence; accepting the findings in some other case with relevance to
the case at hand; or agreeing to such other matters as may expedite the
hearing.
History Note: Authority G.S. 89E‑20; 150B‑11;
150B‑41;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0603 SUBPOENAS
(a) The Board shall use the following procedure to issue a
subpoena pursuant to the authority granted the Board by G.S. 150B-39:
(1) Subpoenas shall be issued in duplicate,
with a "Return of Service" form attached to each copy. The person
serving the subpoena shall fill out the "Return of Service" form for
each copy and promptly return one copy of the subpoena, with the attached
"Return of Service" form completed to the Board;
(2) Subpoenas shall be served by the sheriff of
the county in which the person subpoenaed resides, when the party requesting
such subpoena prepays the Sheriff's service fee;
(3) In accordance with G.S. 150B-39, the Board
may quash any subpoena issued in a case for which the Board is conducting a
hearing. Any person receiving a subpoena in such case may object thereto by
filing a written objection to the subpoena with the Board by mailing same to
the Board office;
(4) Such objection shall include a concise, but
complete, statement of reasons why the subpoena should be revoked or modified.
These reasons may include lack of relevancy of the evidence sought, lack of
particularity in the description of the evidence sought, or any other reason
sufficient in law for holding the subpoena invalid, such as that the evidence
is privileged, that appearance or production would be so disruptive as to be
unreasonable in light of the significance of the evidence sought, or other
undue hardship.
(5) Any such objection to a subpoena must be
served on the party who requested the subpoena simultaneously with the filing
of the objection with the Board.
(6) The party who requested the subpoena, in
such time as may be granted by the Board, may file a written response to the
objection. The written response shall be served by the requesting party on the
objecting witness simultaneously with filing the response with the Board.
(7) After receipt of the objection and response
thereto, if any, the Board shall issue a notice to the party who requested the
subpoena and the party who is challenging it, and may notify all other parties
of an open hearing, to be scheduled as soon as practicable, at which time
evidence and testimony may be presented, limited to the narrow questions raised
by the objection and response, if any.
(8) Promptly after the close of such hearing,
the Board shall rule on the challenge and issue a written decision. A copy of
the decision shall be issued to all parties and made a part of the record.
(9) Subpoenas shall contain the following:
(A) the caption of the case;
(B) the name and address of the person subpoenaed;
(C) the date, hour and location of the hearing in which
the witness is commanded to appear;
(D) a particularized description of the books, papers,
records or objects the witness is directed to bring with him to the hearing, if
any;
(E) the identity of the party on whose application the
subpoena was issued, and the date of issue;
(F) the signature of the person issuing the subpoena;
and
(G) a return of service form, fully executed, which
shows the name and capacity of the person serving the subpoena, the date on
which the subpoena was delivered to the person directed to make service, the
date on which service was made, the person on whom service was made, the
location and manner in which service was made, and the signature of the person
making service.
(b) Where the Board grants a request for hearing and elects
to conduct the evidentiary hearing without referral, subpoenas may be issued by
the attorney for any party in accordance with the provisions of G.S. 1A-1, Rule
45. Upon objection by any person receiving a subpoena in such case, the Board
may quash the subpoena after following the procedure specified in Part (A) of
this Rule.
(c) Where the Board grants a request for hearing and elects
to refer the contested case to the Office of Administrative Hearings for the
designation of an administrative law judge to preside at the hearing, the
issuance or quashing of subpoenas will be governed by G.S. 150B-27 or other
applicable rules of the Office of Administrative Hearings.
History Note: Authority G.S. 89E-5; 89E-20; 150B-38;
150B-39; 150B-40;
Eff. February 1, 1986;
Amended Eff. April 1, 2003; April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0604 FINAL DECISIONS IN ADMINISTRATIVE
HEARINGS
(a) In all cases heard by the Board, the Board shall issue
its decision after its next regularly scheduled meeting following the close of
the hearing, but no later than 120 days after the close of the hearing as
required by G.S. 150B-44.
(b) In all cases where a request for hearing is granted by
the Board, but the case has been referred to the Office of Administrative
Hearings for designation of an administrative law judge to conduct the hearing,
the Board will issue its decision within 60 days after its next regularly
scheduled meeting following receipt of the proposal for decision, hearing
transcript, and other evidence submitted or offered as proof at the hearing
conducted by the administrative law judge.
(c) The time for issuing a final agency decision may be
extended by agreement of the parties.
History Note: Authority G.S. 89-5; 89E-20; 150B-38;
150B-40; 150B-42; 150B-44;
Eff. February 1, 1986;
Amended Eff. April 1, 2003; April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive
public interest Eff. December 16, 2014.
21 NCAC 21 .0605 EXCEPTIONS AND PROPOSED DECISIONS
(a) When a request for hearing has been granted and the
case referred to the Office of Administrative Hearings and the administrative
law judge has made a proposal for decision, each party shall do the following:
(1) file written exceptions to the proposal for
decision, unless the party accepts the decision in its entirety. Any party may
choose to submit alternative findings of fact and conclusions of law. Where a
party excepts to a finding, conclusion, or recommendation and requests its
deletion or amendment, an alternative finding, conclusion or recommendation
shall be proposed. Exceptions and alternative findings of fact and conclusions
of law shall be received by the Board no later than 30 calendar days after the
receipt of the proposal for decision and accompanying evidentiary materials by
the Board. Each exception and proposed alternative finding or conclusion shall
specifically, separately, and in detail, set forth how the finding or
conclusion is clearly contrary to the preponderance of the admissible evidence,
and the specific reason(s) the Board should not adopt the administrative law
judge's finding of fact or conclusion of law. Each exception and proposed
alternative finding or conclusion shall also reference the specific evidence in
the record which supports the rejection of the administrative law judge's
finding of fact or conclusion of law, including but not limited to references
to the testimony of witnesses and any evidentiary exhibits. Any new findings
of fact proposed to the Board must be supported by a preponderance of the
admissible evidence in the record. Reference must be made to the transcript of
the hearing;
(2) file a Proposed Decision and Order for
consideration by the Board to accompany the party's written exceptions. The
proposed Decision and Order shall be received by the Board no later than 30
calendar days after the receipt of the administrative law judge's proposal for
decision and evidentiary materials by the Board. The Proposed Decision and
Order shall indicate separately and in detail, for each finding of fact to be
rejected by the Board and for each alternative finding of fact, the reasons
therefore and the supporting evidence in the record. The Proposed Decision and
Order shall demonstrate that the decision of the Administrative Law Judge is
clearly contrary to the preponderance of the admissible evidence in the record,
and shall set forth its reasoning, which shall also describe the exercise of
discretion by the Board, if any; and
(3) file a brief, if any, to accompany any
filed exceptions and Proposed Decision and Order. Responsive briefs are not
encouraged, but shall be considered if received by the Board no later than five
days after a party's receipt of the other party's brief, exceptions or proposed
final agency decision. Briefs shall be limited to 15 pages in length, unless
prior approval is obtained.
(b) When a request for hearing has been granted and the
Board elects to conduct the evidentiary hearing, the parties may file a hearing
brief outlining the issues of law to be determined by the Board as a result of
the evidentiary hearing. These briefs must be filed with the Board no later
than 30 days prior to the date of hearing. Response briefs are not encouraged,
but shall be accepted if filed with the Board no later than five days after
receipt of the other party's brief. The parties also may file a proposed
decision with findings of fact and conclusions of law. Proposed decisions must
be filed with the Board within 15 days of the conclusion of the hearing or
within 15 days of the Boards' receipt of the transcript of the hearing, if any,
whichever is later. The findings of fact and conclusions of law in the
proposed decision must make specific reference to the evidence admitted at the
hearing and to the transcript.
(c) Unless otherwise directed, parties shall file these
documents at the Board’s office by 5:00 p.m. on the date due. Parties shall
submit eight copies of each set of written exceptions, proposed decision, and
any brief. Copies of parts of the record which may be useful to the Board may
be included in an appendix to pleadings, document or other papers. A copy of
any document filed with the Board shall be served on all parties.
(d) Upon receipt of request for further oral argument,
notice shall be issued promptly to all parties designating time and place for
such oral argument.
(e) Giving due consideration to the proposal for decision
and the exceptions and arguments of the parties, the Board may adopt the
proposal for decision or may modify it as the Board deems necessary. The
decision rendered shall be a part of the record and a copy thereof given to all
parties. The decision as adopted or modified becomes the "final agency
decision" for the right to judicial review. Said decision shall be
rendered by the Board within 60 days of the next regularly scheduled meeting
following the oral arguments, if any. If there are no oral arguments
presented, the decision shall be rendered within 60 days of the next regularly
scheduled Board meeting following receipt of the written exceptions.
History Note: Authority G.S. 89E-5; 89E-20; 150B-38;
150B-40; 150B-42;
Eff. February 1, 1986;
Amended Eff. April 1, 2003; April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0606 ORAL ARGUMENT
(a) The parties shall be notified of the date, time and
place of oral argument before the Board (if held separately from an evidentiary
hearing). Oral argument in all cases shall be limited to 15 minutes per
presentation, unless prior approval is obtained. Such arguments shall be based
solely on the information contained in the record as compiled by the Board or
as submitted to the Board by the Office of Administrative Hearings. If a party
fails to appear after receiving notice of the time for oral argument, the Board
may proceed to issue a decision in the absence of the party.
(b) If the evidentiary hearing was conducted by an
administrative law judge, the party which did not prevail before the
administrative law judge is entitled to make the first oral argument and to
present a rebuttal. If both parties are seeking changes in the administrative
law judge's recommended decision, both parties may present a rebuttal and the
party with the burden of proof shall make the first oral argument and the first
rebuttal.
(c) If the oral argument is part of an evidentiary hearing
conducted by the Board, the attorney representing the Board may make the first
oral argument and present a rebuttal.
History Note: Authority G.S. 89E-5; 89E-20; 150B-38;
150B-40;
Eff. April 1, 2003;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0607 EXTENSION OF TIME; NOTIFICATION OF
FINAL DECISION
(a) An extension of time to take any action required by
these Rules may be granted by the Board after considering the following
circumstances:
(1) the age of the case;
(2) whether the circumstances necessitating the
extension are outside of the control of the moving parties;
(3) whether the moving parties have previously
received an extension of time;
(4) the potential prejudice, inconvenience, or
other harm to any party; and
(5) the likelihood that an extension will delay
the ultimate resolution of the matter.
(b) A final agency decision shall be made within the time
limits of G.S. 150B-44, and the parties may receive notice of the decision by
telephone, electronic mail, facsimile, or any other method deemed by the Board
to be helpful in assuring prompt notification of the parties. The written
final decision shall be filed at the Board's office and served on all parties
by certified mail, return receipt requested at the last address given by the
party. Service on other persons receiving notice of the final decision shall
be made by first class mail. The Board shall maintain the records of all
contested cases in accordance with its records disposition schedule.
History Note: Authority G.S. 89E-5; 89E-20; 150B-38;
150B-40; 150B-44;
Eff. April 1, 2003;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
SECTION .0700 ‑ JUDICIAL REVIEW
21 NCAC 21 .0701 RIGHT TO JUDICIAL REVIEW
21 NCAC 21 .0702 MANNER OF SEEKING REVIEW
History Note: Authority G.S. 83‑4; 89E‑20;
150B‑43; 150B‑45;
Eff. February 1, 1986;
Repealed Eff. April 1, 1989.
SECTION .0800 ‑ RULEMAKING PROCEDURES
21 NCAC 21 .0801 GENERAL PURPOSE
History Note: Authority G.S. 150B, Article 2;
Eff. February 1, 1986;
Repealed Eff. April 1, 1989.
21 NCAC 21 .0802 COPIES OF RULES: INSPECTION
(a) Anyone desiring to obtain a copy of the rules of the
Board may do so by requesting such from the Board. The Board shall charge
twenty-five cents ($0.25) per page and actual postage costs.
(b) The rules of the Board and other public documents
maintained by the Board are available for public inspection at the office of
the Board (3733 Benson Drive, Raleigh, N.C. 27609) during regular office hours.
History Note: Authority G.S. 89E-5; 89E-14; 89E-17;
132-1; 132-2; 132-6.
Eff. February 1, 1986;
Amended Eff. April 1, 2003; April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0803 PETITION FOR RULEMAKING HEARINGS
(a) Any person wishing to submit a petition requesting the
adoption, amendment, or repeal of a rule(the "proposed rule") by the
Board shall file the petition with the Board. The first page of the petition
shall clearly bear the notation: RULEMAKING PETITION RE and then state the
subject area. The Petition shall contain the following information:
(1) the text of the proposed rule(s);
(2) the statutory authority for the agency to
promulgate the rule(s);
(3) a statement of the reasons for adoption of
the proposed rule(s);
(4) a statement of the effect on existing rules
or orders;
(5) copies of any documents and data supporting
the proposed rule(s);
(6) a statement of the effect of the proposed
rule(s) on existing practices in the area involved, including cost factors for
persons affected by the proposed rule(s);
(7) a statement explaining the computation of
the cost factors;
(8) a description, including the names and
addresses, if known, of those most likely to be affected by the proposed
rule(s); and
(9) the name(s) and address(es) of the
petitioner(s).
(b) An original and eight copies of the petition and
supporting documents shall be filed with the Board.
(c) Filings failing to contain the information required by
this Rule shall not be accepted. Incomplete filings shall be returned by the
Chairman to the person(s) making the filing.
History Note: Authority G.S. 89E-5; 150B-20;
Eff. February 1, 1986;
Amended Eff. April 1, 2003;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0804 DISPOSITION OF PETITIONS
(a) The Chairman may request additional information from
the petitioner(s), may contact any interested person or persons likely to be
affected by the proposed rule and request comments, and may use any other appropriate
method for obtaining additional information.
(b) When deemed complete by the Chairman, petitions for
rulemaking shall be presented to the Board for its consideration and
determination at a regularly scheduled meeting of the Board within 120 days
following submission of the complete petition. The Chairman shall determine
the order and duration of discussion regarding the petition, including
discussion by members of the public if any.
(c) Within 120 days following submission of the complete
petition requesting rulemaking, unless the parties have agreed to an extension
of time, the Board shall:
(1) initiate rulemaking proceedings in
accordance with G.S. 150B-20 and notify the person(s) who submitted the
petition of the decision in writing; or
(2) deny the petition in writing, stating the
reason(s) for the denial, and send the written denial to the person(s) who
submitted the petition.
History Note: Authority G.S. 89E-5; 150B-20;
Eff. February 1, 1986;
Amended Eff. April 1, 2003; April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0805 WRITTEN SUBMISSIONS
21 NCAC 21 .0806 STATEMENT OF REASONS FOR DECISION
History Note: Authority G.S. 150B‑12(e);
Eff. February 1, 1986;
Repealed Eff. April 1, 1989.
21 NCAC 21 .0807 RECORD PROCEEDINGS
A record of all rulemaking proceedings will be maintained by
the Board for as long as the rule is in effect, and for five years thereafter,
following filing with the Office of Administrative Hearings. This record will contain:
the original petition, if any, the notice, and all written memoranda and
presentations. Records of rulemaking proceedings will be available for public
inspection at the office of the Board during regular office hours.
History Note: Authority G.S. 150B‑12;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
SECTION .0900 ‑ DECLARATORY RULINGS
21 NCAC 21 .0901 SUBJECTS OF DECLARATORY RULINGS
History Note: Authority G.S. 150B‑17;
Eff. February 1, 1986;
Repealed Eff. April 1, 1989.
21 NCAC 21 .0902 SUBMISSION OF REQUEST FOR
DECLARATORY RULING
(a) All requests for declaratory rulings shall be written
and filed with the Board. The first page of the request shall bear the
notation: REQUEST FOR DECLARATORY RULING. The request must include the
following information:
(1) name and address of petitioner;
(2) statute or rule or order of the Board on
which a ruling is desired;
(3) concise statement of the manner in which
petitioner is aggrieved by the rule or statute or its potential application to
him;
(4) a concise statement as to whether the
request is for a ruling on the validity of a rule, statute or order or on the
applicability of a rule, statute or order to a given factual situation;
(5) arguments or data which demonstrate that the
petitioner is aggrieved by the rule, statute or order or by the potential
application to him;
(6) a statement of the consequences of a
failure to issue a declaratory ruling in favor of petitioner; and
(7) a statement of whether an oral argument is
desired and, if so, the reason(s) for requesting such an oral argument.
(b) A request for a ruling on the applicability of a rule,
order, or statute must include a description of the specific factual situation
on which the ruling is to be based. A request for a ruling on the validity of
a Board rule must state the aggrieved person's reasons for questioning the
validity of the rule. A person may ask for both types of rulings in a single
request. A request for a ruling must include or be accompanied by:
(1) a statement of the specific statement of
facts proposed for adoption by the Board; and
(2) a draft of the proposed ruling.
History Note: Authority G.S. 89E-5; 89E-20; 150B-4;
Eff. February 1, 1986;
Amended Eff. April 1, 2003;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0903 DISPOSITION OF REQUESTS
(a) The Board's Chairman shall make a determination on the
completeness of the request for declaratory ruling based on the requirements of
Rule .0902 of this Section, and he shall make a recommendation to the Board on
whether to issue or decline to issue a declaratory ruling.
(b) Before deciding the merits of the request, the Board
may:
(1) request additional written submissions from
petitioner(s);
(2) request a written response from any other
person; or
(3) hear oral argument from the petitioner and
other persons on the issues raised by the request.
(c) Upon written request, the party requesting the
declaratory ruling and any other person by leave of the Board may be allowed to
present oral arguments to the Board at a regularly scheduled meeting or special
meeting called for the purpose of considering the request for declaratory
ruling. No party may offer testimony or conduct cross-examination before the
Board in a declaratory ruling proceeding.
(d) Whenever the Board determines for "good
cause" that the issuance of a declaratory ruling is undesirable, the Board
may refuse to issue such ruling. The Board shall notify in writing the person
requesting the ruling, stating the reasons for the refusal to issue a ruling on
the request.
(e) For purposes of Paragraph (e) of this Rule, the Board
will ordinarily refuse to issue a ruling on a request for declaratory ruling on
finding that:
(1) the facts are in dispute;
(2) there has been a similar determination in a
previous contested case or declaratory ruling;
(3) the matter is the subject of a pending
contested case hearing or litigation in any North Carolina or federal court;
(4) the factual context put forward as the
subject of the declaratory ruling was specifically considered upon the adoption
of the rule being questioned, as evidenced by the rulemaking record;
(5) no genuine controversy exists as to the
application of a statute or rule to the specific factual situation presented;
or
(6) other good cause exists for declining to
issue the requested ruling.
(f) A declaratory ruling is binding on the Board and on the
person(s) requesting it unless it is altered or set aside by the court. The
Board may not retroactively change a declaratory ruling, but nothing in this
Section prevents the Board from prospectively changing a ruling.
(g) A declaratory ruling shall be deemed to be "in
effect" until:
(1) the statute or rule interpreted by the
declaratory ruling is amended, altered, or repealed;
(2) the Board changes the declaratory ruling
prospectively for good reasons;
(3) any court sets aside the ruling in
litigation between the Board and the party requesting the ruling; or
(4) until any court of the Appellate Division
of the General Court of Justice shall construe the statute or rule which is the
subject of the declaratory ruling in a manner plainly irreconcilable with the
declaratory ruling.
(h) The requesting party may agree to allow the Board to
issue a ruling on the merits of the request beyond the 60 days allowed by G.S.
150B-4.
History Note: Authority G.S. 89E-5; 89E-20; 150B-4;
Eff. February 1, 1986;
Amended Eff. April 1, 2003; April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .0904 RECORD OF DECISION
A record of all declaratory ruling proceedings will be
maintained in the Board's office for as long as the ruling is in effect and for
five years thereafter. This record will contain: the petition, the notice,
all written submissions filed in the request, whether filed by the petitioner
or any other person, and a record or summary of oral presentations, if any.
Records of declaratory ruling proceedings will be available for public
inspection during regular office hours.
History Note: Authority G.S. 150B‑11;
Eff. February 1, 1986;
Amended Eff. April 1, 1989;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
SECTION .1000 ‑ PROFESSIONAL CORPORATIONS
21 NCAC 21 .1001 PRACTICE OF GEOLOGY BY CORPORATIONS
AND LIMITED LIABILITY COMPANIES
(a) Application. Application for a Certificate of
Registration for corporations and limited liability companies to practice
geology within the State of North Carolina shall be made upon forms provided by
the Board. Completed applications must conform to the requirements of Rule
.0302 of this Chapter and be accompanied by the fee prescribed in Rule .0107 of
this Chapter. Certificates of Registration shall be issued only to
corporations meeting the provisions of the Professional Corporation Act, G.S.
55B, and companies meeting the provisions of the Limited Liability Company Act,
G.S. 57C, except as provided in Paragraph (b) of this Rule.
(b) Corporations and Limited Liability Companies Exempt
from G.S. 55B. Applications for a Certificate of Registration as exempt from
the Professional Corporation Act or the Limited Liability Company Act under the
provisions of G.S. 55B-15 or G.S. 57C-2-01 shall be made upon forms provided by
the Board. To be eligible as an exempt corporation under the provisions of G.S.
55B-15 the following conditions must exist:
(1) The corporation or limited liability
company shall have been incorporated or organized prior to June 5, 1969 and
permitted by law to render professional services or must be a corporate
successor to such a corporation or limited liability company as defined by G.S.
55B-15; or
(2) The corporation or limited liability
company must have been incorporated or organized prior to September 1, 1991, and before and after September 1, 1991 the corporation or limited liability
company must have been a bonafide firm engaged in the practice of geology and
such services as may be ancillary thereto within the State of North Carolina.
(c) Renewal of Certificate. The renewal of Certificates of
registration for corporations and limited liability companies shall follow the
requirements as set out in Rule .0107 of this Chapter.
(d) Seal. Each registered corporation or limited liability
company shall obtain from the Board a seal approved by the Board. Such seal
shall contain the name of the corporation or limited liability company, its North Carolina registration number and the words "registered geological
corporation" or "registered geological limited liability
company" as applicable.
(e) Approval of Name. The name used by a geological
corporation or limited liability company shall be approved by the Board before
being used. Names shall be approved by the Board pursuant to the requirements
and limitations of G.S. 55, 55B and G.S. 57C unless the name has been
registered previously by another geological corporation or limited liability
company. This Rule shall not prohibit the continued use of any corporate name
adopted in conformity with the General Statutes of North Carolina and board
rules in effect at the date of such adoption.
History Note: Authority G.S. 55B-5; 55B-10; 55B-11;
55B-14; 55B-15; 57C-2-01; 89E- 5; 89E-12; 89E-13;
Eff. January 1, 1992;
Amended Eff. April 1, 2003;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .1002 FOREIGN CORPORATIONS AND LIMITED
LIABILITY COMPANIES
(a) Formation in Other States. Corporations and Limited
Liability Companies formed in other states may be granted Certificates of
Registration for the practice of geology in this State on the receipt by the
Board of a completed application as specified in Rules .0301 and .0302 of this
Chapter and the payment of the appropriate application fee indicated in Rule
.0107 of this Chapter. In addition to the other requirements as set out in
G.S. 89E-12, foreign corporations and limited liability companies must, prior
to registration, receive from the Secretary of State of North Carolina a
Certificate of Authority to transact business within the State.
(b) Designated Individuals. Foreign corporations and
limited liability companies shall be permitted to practice geology within the
State of North Carolina provided that the corporation or limited liability
company must designate at least one geologist who is licensed by the State of North Carolina to be in responsible charge for the firm's practice of geology within the
State of North Carolina.
History Note: Authority G.S.; 55B-16; 57C-2-01; 89E-5;
89E-12;
Eff. January 1, 1992;
Amended Eff. April 1, 2003;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
section .1100 – professional conduct
21 NCAC 21 .1101 RULES OF PROFESSIONAL CONDUCT
(a) In order to safeguard the life, health, property and
welfare of the public and to establish and maintain a high standard of
integrity, skills, and practice in the profession of geology, these rules of
professional conduct shall be binding upon every person holding a certificate
of license as a geologist, and on all partnerships or corporations or other
legal entities authorized to offer or perform geologic services in this state.
All persons licensed or registered under the provisions of G.S. 89E are charged
with having knowledge of the existence of these Rules of professional conduct.
(b) The geologist shall conduct his practice in order to
protect the public health, safety, and welfare.
(1) The geologist shall at all times recognize
his primary obligation to protect the safety, health, and welfare of the public
in the performance of his professional duties. If his geologic judgment is
overruled under circumstances where the safety, health and welfare of the
public are endangered, he shall inform his employer of the possible
consequences and notify other proper authority of the situation, as may be
appropriate.
(2) The geologist shall protect the public
health, safety, and welfare by maintaining sufficient personal on-site
involvement and continual direction and review of the activities of
subordinates that constitute public practice of geology while such activities are
in progress. The licensee must provide such supervision and have sufficient
knowledge of the project and site conditions necessary to assure accuracy and
compliance with all applicable laws and
regulations (including, but not limited to, G.S. 89E and the rules of this
Chapter).
(c) The geologist shall perform his services only in areas
of his competence:
(1) The geologist shall undertake to perform
geologic assignments only when qualified by education or experience in the
specific technical field of geology involved.
(2) The geologist may accept an assignment
requiring education or experience outside of his own field of competence, but
only to the extent that his services are restricted to those phases of the
project in which he is qualified. All other phases of such project shall be
performed by qualified associates, consultants, or employees.
(3) The geologist shall not affix his signature
and seal to any document dealing with subject matter for which he lacks
competence by virtue of education or experience or to any such plan or document
not prepared under his direct supervisory control, except that the geologist
may affix his seal and signature to drawings and documents depicting the work
of two or more professionals provided he designates by note under his seal the
specific subject matter for which he is responsible.
(d) The geologist shall issue public statements only in an
objective and truthful manner:
(1) The geologist shall be completely objective
and truthful in all professional reports, statements, or testimony. He shall
include all relevant and pertinent information in such reports, statements or
testimony.
(2) The geologist when serving as an expert or
technical witness before any court, commission, or other tribunal shall express
an opinion only when it is founded upon adequate knowledge of the facts in
issue, upon a background of technical competence in the subject matter, and
upon honest conviction of the accuracy and propriety of his testimony.
(3) The geologist will issue no statements,
criticisms, or arguments on geologic matters connected with public policy which
are inspired or paid for by an interested party or parties unless he has
prefaced his comments by explicitly identifying himself, by disclosing the
identities of the party or parties on whose behalf he is speaking, and by
revealing the existence of any pecuniary interest he may have in the instant
matters.
(4) The geologist shall not attempt to injure,
maliciously or falsely, directly or indirectly, the professional reputation,
prospects, practice, or employment of another geologist, nor shall he
maliciously criticize another geologist's work in public. If he believes that
another geologist is guilty of misconduct or illegal practice, he shall present
such information to the Board for action.
(e) The geologist shall not attempt to supplant another
geologist in a particular employment after becoming aware that the other has
been selected for the employment.
(f) The geologist shall avoid conflicts of interest:
(1) The geologist shall conscientiously avoid
conflicts of interest with his employer or client, but when unavoidable, the
geologist shall forthwith disclose the circumstances to his employer or client.
(2) The geologist shall avoid all known
conflicts of interest with his employer or client, and shall promptly inform
his employer or client of any business association, interest, or circumstances
which could influence his judgment or the quality of his services.
(3) The geologist shall not accept
compensation, financial or otherwise, from more than one party for services on
the same project, or for services pertaining to the same project, unless the
circumstances are fully disclosed to, and agreed to, by all those parties.
(4) The geologist shall not solicit or accept
financial or other valuable considerations from material or equipment suppliers
for specifying their products.
(5) The geologist shall not solicit or accept
substantial gratuities, directly or indirectly, from contractors, their agents,
or other parties dealing with his client or employer in connection with work
for which he is responsible.
(6) When in public service as a member,
advisor, or employee of a governmental body or department, the geologist shall
not participate in considerations or actions with respect to services provided
by him or his organization in private geological practices.
(7) The geologist shall not solicit or accept a
geologic contract from a governmental body on which a principal or officer of
his business serves as a member.
(g) The geologist shall solicit or accept work only on the
basis of his qualifications:
(1) The geologist shall not offer to pay,
either directly or indirectly, any commission, political contribution, gift, or
other consideration in order to secure work, exclusive of securing salaried
positions through employment agencies.
(2) The geologist shall compete for
professional employment on the basis of qualification and competence for proper
accomplishment of the work. He shall not solicit or submit proposals for
professional services containing a false, fraudulent, misleading, deceptive, or
unfair statement or claim regarding the cost, quality or extent of services to
be rendered.
(3) The geologist shall not falsify or permit
misrepresentation of his, or his associates', academic or professional
qualifications. He shall not misrepresent or exaggerate his degree of
responsibility in or for the subject matter of prior assignments. Brochures or
other presentations incident to the solicitation of employment shall not misrepresent
pertinent facts concerning employers, employees, joint ventures, or his or
their past accomplishments with the intent and purpose of enhancing his
qualifications and those of his work associates.
(h) The geologist shall associate only with reputable
persons or organizations:
(1) The geologist shall not knowingly associate
with or permit the use of his name or firm name in a business venture by any
person or firm which he knows, or has reason to believe, is engaging in
business or professional practices of a fraudulent or dishonest nature.
(2) If the geologist has knowledge or reason to
believe that another person or firm may be in violation of any of these
provisions or of the North Carolina Geologist Licensing Act, he shall present
such information to the Board and furnish such further information or
assistance as may be required by the Board.
(i) Conviction of a felony without restoration of civil
rights, or the revocation or suspension of the license of a geologist by
another jurisdiction, if for a cause which in the State of North Carolina would
constitute a violation of G.S. 89E or of these rules, shall be grounds for a
charge of violation of these Rules and may result in the revocation of the
certificate of licensure or corporate registration issued by this Board and the
imposition of a civil penalty not to exceed five thousand dollars ($5,000).
History Note: Authority G.S. 89E-5; 89E-16;
Temporary Adoption Eff. November 24, 1999;
Eff. August 1, 2000;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
21 NCAC 21 .1102 RULES OF CONDUCT OF ADVERTISING
(a) The geologist shall not make exaggerated, misleading,
deceptive or false statements or claims about his professional qualifications,
experience or performance in his brochures, correspondence, listing, or other
public communications.
(b) The prohibitions listed in this Rule include, but are
not limited to, the use of statements containing a material misrepresentation
of fact or omitting a material fact necessary to keep the statement from being
misleading; statements intended or likely to create an unjustified expectation;
statements containing prediction of future success; or statements containing an
opinion as to the quality of services.
(c) Consistent with the foregoing, the geologist may
advertise for recruitment of personnel.
(d) Consistent with the foregoing, the geologist may
prepare articles for the lay or technical press. Such articles shall not imply
credit to the author for work performed by others.
History Note: Authority G.S. 89E-5; 89E-16;
Temporary Adoption Eff. November 24, 1999;
Eff. August 1, 2000;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. December 16, 2014.
