December 19, 2012

WEEKLY NOTICES OF STATE RULE-MAKING
Public Input for Proposed and Adopted Rules

Notices are published each Wednesday to alert the public regarding state agency rule-making. You may obtain a copy of any rule by notifying the agency contact person. You may also comment on the rule, and/or attend the public hearing. If no hearing is scheduled, you may request one -- the agency may then schedule a hearing, and must do so if 5 or more persons request it. If you are disabled or need special services to attend a hearing, please notify the agency contact person at least 7 days prior to it. Petitions: you can petition an agency to adopt, amend, or repeal any rule; the agency must provide you with petition forms, and must respond to your petition within 60 days. The agency must enter rule-making if the petition is signed by 150 or more registered voters, and may begin rule-making if there are fewer. You can also petition the Legislature to review a rule; the Executive Director of the Legislative Council (115 State House Station, Augusta, ME 04333, phone 207/287-1615) will provide you with the necessary petition forms. The appropriate legislative committee will review a rule upon receipt of a petition from 100 or more registered voters, or from "...any person who may be directly, substantially and adversely affected by the application of a rule..." (Title 5 Section 11112). World-Wide Web: Copies of the weekly notices and the full texts of adopted rule chapters may be found on the internet at: http://www.maine.gov/sos/cec/rules. There is also a list of rule-making liaisons, who are single points of contact for each agency.

PROPOSALS

AGENCY: 14-197 � Department of Health and Human Services (DHHS), Office of Aging and Disability Services
CHAPTER NUMBER AND TITLE: Ch. 5, Regulations Governing Emergency Interventions and Behavioral Treatment for People with Intellectual Disabilities and/or Autism
PROPOSED RULE NUMBER: 2012-P288
BRIEF SUMMARY: This proposed rule-making follows emergency rule-making to allow approval of behavior modification and behavior management plans and safety devices by majority vote of the three-person review team created by Maine law. Action by majority vote will allow the review team to fulfill its statutory function to review and approve the use of severally intrusive behavior modification, behavior management, or safely device plans when less intrusive plans, or positive interventions or supports have failed to protect the health, safety and welfare of an adult with an intellectual disability and/or autism. The Department also proposes to change language and names when usage has changed or has been deemed inappropriate by the Maine Legislature.
DETAILED BASIS STATEMENT / SUMMARY: Maine law requires that any behavior modification, behavior management, or safely device plan for an adult with an intellectual disability or autism be approved by a three-person review team composed of a Department representative, a representative from the advocacy agency designated pursuant to 5 MRSA §19502, and a representative designated by the Maine Developmental Services Oversight and Advisory Board. See 34-B MRSA §5605(13)(B) and 14-197 C.M.R. Ch. 5, Regulations Governing Emergency Interventions and Behavioral Treatment for People with Intellectual Disabilities and/or Autism. Prior to November 8, 2012, unanimous approval by the review team was required.
The Disability Rights Center (DRC) recently assumed the responsibilities as the advocacy agency designated pursuant to 5 MRSA §19502. These responsibilities include participation on the three-person review team. Because DRC’s role requires it to represent the interests of individuals with intellectual disabilities and autism served by the Department, both informally and in formal legal proceedings, the DRC recently raised a concern that participating in the approval of such plans would create a conflict of interest under the Maine Rules of Professional Conduct. In light of those concerns the DRC notified the Department that its representatives would participate in the three-person review team but would not vote for approval of any plan. Without the DRC’s vote, the review team was unable to fulfill its statutory function.
In response to this impasse, the Department adopted Emergency Rule 2012-311, which allowed approval of behavior modification and behavior management plans and safety devices by majority vote of the review team’s members. This emergency rule will expire February 6, 2013. The Department proposes to make this change permanent.
The Department also proposes to change language and names when usage has changed or has been deemed inappropriate by the Maine Legislature.
PUBLIC HEARING: January 8, 2013, 3:00 p.m. – 5:00 p.m.; 41 Anthony Avenue, Conference Room A, Augusta, ME
COMMENT DEADLINE: January 18, 2013 at 5:00 p.m.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION: Lynne Caswell, OADS, 32 Blossom Lane, State House Station #11, Augusta, ME 04333. Telephone: (207) 287-9213. Fax: (207) 287-9229. E-mail: Lynne.Caswell@Maine.gov .
THIS RULE WILL NOT HAVE A FISCAL IMPACT ON MUNICIPALITIES AND/OR COUNTIES.
STATUTORY AUTHORITY FOR THIS RULE: 22 MRSA §42; 34-B MRSA §5605; 2011 PL Ch. 657; and 2012 PL Ch. 529
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: no
WEBSITE: http://www.maine.gov/dhhs/oads/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .


AGENCY: 90-564 - Fund Insurance Review Board
PROPOSED RULE NUMBER: 2012-P289
CHAPTER NUMBER AND TITLE: Ch. 4, Oil Import Fees, Amendment 2
BRIEF SUMMARY: The rule amendment will reduce the additional fees that are assessed under 38 MRSA §569-A(5)(A) when the balance of the Ground Water Oil Clean-up Fund is $5 million or less from 20 cents to 18 cents per barrel of gasoline and from 10 cents
to 6 cents per barrel of other refined petroleum products and their by-products, including #2 fuel oil, kerosene, jet fuel and diesel fuel, but not including liquid asphalt and #6 fuel oil.
PUBLIC HEARING: None. One would be scheduled at the request of 5 or more persons.
COMMENT DEADLINE: January 21, 2013
CONTACT PERSON FOR THIS FILING / AGENCY RULE-MAKING LIAISON: Katryn Gabrielson, c/o Finance Authority of Maine, 5 Community Drive, PO Box 949, Augusta, ME 04332. Telephone: (207) 623-3263 x3515. E-mail: kgabrielson@famemaine.com . Website: www.famemaine.com .
CONTACT PERSON FOR SMALL BUSINESS INFORMATION: Michelle MacKenzie, c/o Finance Authority of Maine, 5 Community Drive, PO Box 949, Augusta, ME 04332. Telephone: (207) 623-3263 x3541. E-mail: mmackenzie@famemaine.com . Website: www.famemaine.com .
IMPACT ON MUNICIPALITIES OR COUNTIES: The amendment will not impose any costs on municipalities or counties.
STATUTORY AUTHORITY FOR THIS RULE: 38 MRSA §§ 568-B(2)(D) and 569-A(5)(E)
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):


AGENCY: 13-188 - Department of Marine Resources (DMR)
RULE TITLE OR SUBJECT: Ch. 34, Groundfish Regulations: 34.10(B), Winter Flounder Limit Increase
PROPOSED RULE NUMBER: 2012-P290
CONCISE SUMMARY: The proposed rule-making would increase the winter flounder commercial possession limit from 250 to 500 pounds. It would also remove the October 1 through June 30 recreational seasonal closure to allow recreational anglers to possess winter flounder year round. The State of Maine is mandated to implement and enforce fisheries management plans of the Atlantic States Marine Fisheries Commission (Commission) under the Atlantic Coastal Fisheries Cooperative Management Act of 1993 (ACFCMA). The Commission’s Winter Flounder Management Board increased the winter flounder commercial possession limit from 250 to 500 pounds.
PUBLIC HEARING: January 9, 2013, 2 p.m. - Natural Resources Service Center Room 106, 6 Beech Street, Hallowell, Maine. Snow date: January 10, 2013, 2 p.m., same location. Hearing facilities: If you require accommodations due to disability, please contact Amanda Beckwith, at (207) 287-7578.
DEADLINE FOR COMMENTS: January 22, 2013. To ensure consideration, comments must include your name and the organization you represent, if any. Please be aware that any risk of non-delivery associated with submissions by fax or e-mail is on the sender.
AGENCY CONTACT PERSON: Chris Vonderweidt (207-624-6558)
Mail Written Comments to: Department of Marine Resources, attn: K. Rousseau, DMR Rule-making Liaison, 21 State House Station, Augusta, Maine 04333. Website: http://www.maine.gov/dmr/rulemaking/ . E-mail: dmr.rulemaking@maine.gov . Fax: (207) 624-6024. TTY: (888) 577-6690 (Deaf/Hard of Hearing)
THIS RULE WILL NOT HAVE A FISCAL IMPACT ON MUNICIPALITIES.
STATUTORY AUTHORITY: 12 M.R.S. §6171


AGENCY: 01-001 - Department of Agriculture, Conservation and Forestry
RULE TITLE OR SUBJECT: Ch. 61, Maine Milk Pool Cost of Administration
PROPOSED RULE NUMBER: 2012-P291
CONCISE SUMMARY: The principal reason for this rule-making is to amend the cost of administering the Maine Milk Pool. Costs incurred for the Maine Milk Pool for personnel services and for operation was approximately $60,000 in 2012. Based on the last twelve months expenses, it is estimated that the Pool costs for similar expenses for 2013 will be about $60,000.
The total pounds in the Pool for the last twelve months (December 2011 - November 2012) were approximately 608,176,389. It is estimated that the total pounds in the Pool for 2013 will be approximately 600,000,000.
Based on the above projected costs and pounds the Pool Administrator proposes to set the rate per hundredweight of milk for the cost of administering the Pool for calendar year 2013 at $0.01/cwt. This represents an increase from 2012, when no costs were recovered.
PUBLIC HEARING: January 9, 2013, Wednesday, starting at 9:00 a.m., Room 233, Department of Agriculture Conservation and Forestry, Deering Building, Hospital Street, Augusta, Maine
DEADLINE FOR COMMENTS: January 19, 2013
AGENCY CONTACT PERSON: Tim Drake, c/o Maine Milk Commission, 28 State House Station, Augusta Maine 04333. Telephone: (207) 287-7521. E-mail: Tim.Drake@Maine.gov .
THIS RULE WILL NOT HAVE A FISCAL IMPACT ON MUNICIPALITIES.
STATUTORY AUTHORITY: 7 MRSA §3154(2)
WEBSITE: http://www.maine.gov/agriculture/index.shtml .
AGRICULTURE RULE-MAKING LIAISON: Mari.Wells@Maine.gov .

ADOPTIONS

AGENCY: 06-096 - Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 355, Coastal Sand Dune Rules
ADOPTED RULE NUMBER: 2012-344
CONCISE SUMMARY: The existing rule will be amended to allow for reconstruction of an existing structure in a frontal dune if the dune is protected by a seawall and the structure is elevated on posts, in accordance with the direction of PL 2011, Ch. 538. The rules will also be updated to extend the length of time a coastal sand dune permit is valid in accordance with the direction of Resolves 2011, Ch. 46.
EFFECTIVE DATE: December 18, 2012
AGENCY CONTACT PERSON: Mike Mullen, Maine Department of Environmental Protection, 17 State House Station, Augusta, Me 04330-0017. Telephone: (207) 446-1611. E-mail: Mike.Mullen@Maine.gov .
WEBSITE: http://www.maine.gov/dep/ .
DEP RULE-MAKING LIAISON: Mike.Karagiannes@Maine.gov .


AGENCY: 06-096 - Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 419, Maine Solid Waste Management Rules: Agronomic Utilization of Residuals
ADOPTED RULE NUMBER: 2012-345
CONCISE SUMMARY: The Department of Environmental Protection has adopted changes to the Maine Solid Waste Management Rules, 06-096 CMR 419. The adopted amendment incorporates permit-by-rule (PBR) notification provisions for the agronomic utilization of digested Type I residuals, removes PBR provisions for the agronomic utilization of Type II residuals in accordance with 38 MRSA §1304(18), and incorporates minor editing for format consistency.
EFFECTIVE DATE: December 18, 2012
AGENCY CONTACT PERSON: Clifton G. Eliason, Maine DEP, Commissioner’s Office, 17 State House Station, Augusta, ME 04333-0017. Telephone: (207) 287-6115. E-mail: Clifton.G.Eliason@Maine.gov .
WEBSITE: http://www.maine.gov/dep/ .
DEP RULE-MAKING LIAISON: Mike.Karagiannes@Maine.gov .


AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services
CHAPTER NUMBER AND TITLE: Ch. 101, MaineCare Benefits Manual: Ch. II Section 21, Home and Community Benefits for Members with Intellectual Disabilities or Autistic Disorder
ADOPTED RULE NUMBER: 2012-346
CONCISE SUMMARY: The adopted rule complies with Resolve 2011, ch. 49 to remove language from Section 21.02-7 Employment setting requiring that “Members with disabilities should constitute no more than 50% of the business’s workforce at any given worksite or location.” The Department adopted language clarifying that a Licensed Clinical Social Worker (LCSW) or Licensed Clinical Professional Counselor (LCPC) can provide behavioral consultation. Moreover, the Department has expanded the list of qualified providers who can provide behavioral consultation to include Board Certified Behavior Analysts (BCBAs). This waiver amendment has been approved by the Centers for Medicare and Medicaid Services. The Department adopted several limits on Section 21 services, including that one-member Agency Home Support placements will no longer be approved after 12/1/12; the Home Support ¼ hour- T2017 is limited to three hundred and thirty six (336) quarter hour units or eighty four (84) hours a week; and authorizations for services to be provided out-of-state are limited to (60) days of service within a given fiscal year and sixty (60) days within any six (6) month period. This rule change incorporates into the rule a previously existing restriction that the annual costs not exceed 200% of the statewide average annual cost of care for an individual in an Intermediate Care Facility for persons with Intellectual Disabilities (ICF/ID). Lastly, contracted language has been added to the policy to reflect provider’s contracts and riders, and various technical language changes were also adopted. These changes are not expected to have any adverse impact on small businesses or impose any additional costs on municipalities or counties.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
EFFECTIVE DATE: December 24, 2012
AGENCY CONTACT PERSON: Ginger Roberts-Scott, Comprehensive Health Planner, Division of Policy, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 287-9365. Fax: (207) 287-9369. TTY users call Maine relay 711. E-mail: Ginger.Roberts-Scott@Maine.gov .
WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .