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January 29, 2014

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/index.html. There is also a list of rule-making liaisons, who are single points of contact for each agency.

PROPOSALS

AGENCY: 01-001 - Maine Department of Agriculture, Food & Rural Resources
RULE TITLE OR SUBJECT: Ch. 61, Maine Milk Pool Cost of Administration
PROPOSED RULE NUMBER: 2014-P010
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 2013. Based on the last twelve months expenses, it is estimated that the Pool costs for similar expenses for 2014 will be about $60,000.
The total pounds in the Pool for the last twelve months (December 2011 - November 2012) were approximately 607,497,188. It is estimated that the total pounds in the Pool for 2014 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 2014 at $0.01/cwt. This is the same rate as 2013.
PUBLIC HEARING: February 18, 2014, Tuesday, starting at 9:00 a.m., Room 233, Department of Agriculture Conservation and Forestry, Deering Building, Hospital Street, Augusta, Maine
DEADLINE FOR COMMENTS: February 28, 2014
AGENCY CONTACT PERSON: Tim Drake, 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/dacf/ .
AGRICULTURE RULE-MAKING LIAISON: Mari.Wells@Maine.gov .

AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services (OMS)
CHAPTER NUMBER AND TITLE: Ch. 101, MaineCare Benefits Manual: Ch. II & III Section 25, Dental Services
PROPOSED RULE NUMBER: 2014-P011
CONCISE SUMMARY: This proposed rule-making seeks to:
1. Update policy to conform to changes in the American Dental Association’s 2014 CDT Dental Procedure Codes (this includes addition, deletion, and renaming of codes, as appropriate).
2. Add IPDHs as a qualified provider, per P.L. 2011 Chap. 457 “An Act To Include Independent Practice Dental Hygienists in MaineCare.”
3. Add partial dentures to services reimbursable to denturists, in order to be consistent with changes to Title 32 pursuant to per P.L. 2009 Ch. 227 “An Act To Allow Qualified, Licensed Denturists To Practice to the Level of Their Educational Training.”
4. Specify that MaineCare will reimburse for procedures performed by dental residents and externs under the supervision of a dentist, in accordance with the rules of the Maine Board of Dental Examiners.
5. Make clerical, technical, and administrative corrections and updates.
6. Lower the rate for intravenous sedation in order to pay for the addition of non-IV-sedation as a covered service.
7. Change limitations for a number of specific procedures, including, but not limited to:
a. changing the limits on the following services from once per six (6) months or twice per year to twice per calendar year, but no more than once every 150 days: prophylaxis, oral evaluations, application of fluoride and fluoride varnish;
b. changing the limit on panoramic radiographs from “billable with pre-orthodontic visit” to “separately billable without PA once per five (5) years when used in conjunction with any preventative and/or diagnostic service” (to be consistent with an October 2010 policy clarification letter);
c. adding a new limit that the Department will reimburse for one (1) comprehensive orthodontic treatment per member per lifetime, and the orthodontic retention phase shall not exceed 24 months.
The Department will seek required approval from the Centers for Medicare and Medicaid Services for a SPA to add IPDHs as a qualified provider and to add new codes and limits.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
PUBLIC HEARING: 9:30 a.m., February 19, 2014 - 19 Union St, Room 110, Augusta, ME 04333. The Department requests that any interested party requiring special arrangements to attend the hearing contact the agency person listed below before February 5, 2014.
DEADLINE FOR COMMENTS: Comments must be received by midnight Saturday, March 1, 2014.
AGENCY CONTACT PERSON / SMALL BUSINESS INFORMATION: Peter Kraut, Comprehensive Health Planner II, MaineCare Services, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4041. Fax: (207) 287-1864. TTY: 711. E-mail: Peter.Kraut@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: The Department does not anticipate that this rule-making will have any impact on municipalities or counties.
STATUTORY AUTHORITY FOR THIS RULE: 22 MRSA Ch. 855 §§ 3173, and 3174-RR
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: N/A
WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .

AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services (OMS)
CHAPTER NUMBER AND TITLE: Ch. 104, Maine State Services Manual: Section 6, Independent Practice Dental Hygienist (IPDH) Services
PROPOSED RULE NUMBER: 2014-P013
CONCISE SUMMARY: 22 M.R.S. §3174-RR requires that by October 1, 2012, the Department shall provide for the reimbursement under the MaineCare program of IPDHs practicing as authorized under Title 32 M.R.S. §1094-I for the following procedures:
A. Prophylaxis performed on a person who is 21 years of age or younger;
B. Topical application of fluoride performed on a person who is 21 years of age or younger;
C. Provision of oral hygiene instructions;
D. The application of sealants;
E. Temporary fillings; and,
F. X-rays.
22 M.R.S. §3174-RR also specifies that reimbursement must be provided to IPDHs directly or to a federally qualified health center pursuant to 22 M.R.S. §3174-V when an IPDH is employed as a provider at the center, and that the department shall adopt rules to implement this section.
This rule serves to implement state-only reimbursement of IPDHs as set forth above pending approval by the Centers for Medicare and Medicaid Services of a State Plan Amendment (SPA) to add IPDHs as a MaineCare provider under Maine’s State Plan. These rules will expire upon the effective date of that SPA and shall be superseded at that time by the IPDH subsection of Ch. 101, MaineCare Benefits Manual (MBM), Ch. II & III Section 25, Dental Services, and by the addition of IPDHs to MBM Ch. II Section 31, Federally Qualified Health Center Services.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
PUBLIC HEARING: 9:30 a.m., February 19, 2014 - 19 Union St, Room 110, Augusta, ME 04333. The Department requests that any interested party requiring special arrangements to attend the hearing contact the agency person listed below before February 5, 2014.
DEADLINE FOR COMMENTS: Comments must be received by midnight Saturday, March 1, 2014.
AGENCY CONTACT PERSON / SMALL BUSINESS INFORMATION: Peter Kraut, Comprehensive Health Planner II, MaineCare Services, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4041. Fax: (207) 287-1864. TTY: 711. E-mail: Peter.Kraut@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: The Department does not anticipate that this rule-making will have any impact on municipalities or counties.
STATUTORY AUTHORITY FOR THIS RULE: 22 M.R.S. §§ 42, 3173, and 3174-RR
WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .

AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office for Family Independence (OFI)
RULE TITLE OR SUBJECT: Ch. 332, MaineCare Eligibility Manual, Rule #273P (Implementation of MAGI Eligibility Methodology):
Part 1 - General Information;
Part 2 - Basic Eligibility Criteria;
Part 3 - Categorically Needy Families with Children-related Coverage;
Part 3.5 - Eligibility Group Requirements;
Part 4 - Family-Related Budgeting;
Part 4.5 - Budgeting for Eligibility Groups for Which MAGI-Based Methodology Applies;
Part 5 - Children’s Health Insurance Program CHIP – Cub Care;
Part 5.5 - Children’s Health Insurance Program CHIP – Cub Care;
Part, 16 – Assets;
Part 16.5 Assets;
Part 17 – Income;
Part 17.5 – Income;
Chart 6.5 - Federal Poverty Level/MAGI 5% Reduction Calculation/Effective January 1, 2014;
Chart 8.5 - Cub Care.
PROPOSED RULE NUMBER: 2014-P014
CONCISE SUMMARY: This rule permanently adopts the emergency rules that implemented, effective January 1, 2014, the provisions of the Affordable Care Act related to MAGI Medicaid and CHIP eligibility. MaineCare will determine most nonelderly, nondisabled Medicaid and all CHIP eligibility by comparing the Modified Adjusted Gross Income (MAGI) income (based on the Internal Revenue Code, Section 36B) to the applicable income eligibility standard.
However, the MAGI financial eligibility methodologies will not be applied in the limited circumstances listed below:
A. For individuals who are MaineCare beneficiaries as of December 31, 2013, the MAGI financial eligibility methodologies will not be applied until March 31, 2014 or the next regularly scheduled renewal of eligibility determinations, whichever is later, as follows: (1) if the Member’s renewal date is between January 1 and March 31, 2014, the Department will first apply the MAGI eligibility rule. If the Member is not eligible under the MAGI rule, the Department will apply the non-MAGI eligibility rule. On April 1, 2014, the Department will re-determine MaineCare eligibility, using only the MAGI rule. (2) if the Member’s renewal date is between April 1 and December 31, 2014, for purposes of determining MaineCare eligibility for changes-in-circumstances, the Department will first apply the MAGI rule. If the Member is ineligible under the MAGI rule, the Department will apply the non-MAGI eligibility rule. On the Member’s renewal date, the Department will apply the MAGI rule.
B. For individuals who are requesting retroactive Medicaid coverage for months prior to January 1, 2014, the Department will apply the non-MAGI eligibility rule.
C. If the household income of an individual determined in accordance with the MAGI financial eligibility methodology contained in this rule results in financial ineligibility for Medicaid and the household income of such individual determined in accordance with 26 CFR 1.36B-1(e) is below 100 percent FPL, Medicaid financial eligibility will be determined in accordance with 26 CFR 1.36B-1(e).
In this rule-making, the Department is making changes to the following MaineCare Eligibility regulations in order to comport with MAGI: Parts 1, 2, 3, 4, 5, 16 and 17. The Department is also adopting the following new MAGI regulations: Parts 3.5, 4.5, 5.5, 16.5 and 17.5, Chart 6.5 and Chart 8.5.
PUBLIC HEARING: None.
DEADLINE FOR COMMENTS: March 3, 2014.
AGENCY CONTACT PERSON: R.W. Bansmer, Jr., MaineCare Senior Program Manager, Department of Health and Human Services, Office for Family Independence, 11 State House Station, 19 Union Street, Augusta ME 04333-0011. Telephone: (207) 624-4105. TTY: Maine Relay 711. E-mail: Reinhold.Bansmer@Maine.gov .
THIS RULE WILL NOT HAVE A FISCAL IMPACT ON THE ADMINISTRATIVE BURDENS OF SMALL BUSINESSES.
THIS RULE WILL NOT HAVE A FISCAL IMPACT ON MUNICIPALITIES.
STATUTORY AUTHORITY: 22 MRSA §§ 42 and 3173; Patient Protection and Affordable Care Act (Pub.L. 111-148), amended by the Health Care and Education Reconciliation Act of 2010 (Pub.L. 111-152), together known as the Affordable Care Act, Section 2002(a), codified at 42 U.S.C. 1396a(e)(14)(Income Determined Using Modified Adjusted Gross Income)(to be effective January 1, 2014); 42 C.F.R. Parts 431 and 435. Internal Revenue Code, Section 36(B)
WEBSITE: http://www.maine.gov/dhhs/ofi/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .

ADOPTIONS

AGENCY: 99-626 - Maine Rural Development Authority
CHAPTER NUMBER AND TITLE: Ch. 2, Commercial Facilities Development Program
ADOPTED RULE NUMBER: 2014-007
CONCISE SUMMARY: The amendment makes changes to conform the rule to statute changes made by PL 2011 Ch. 563. Additional changes were made to simplify and clarify the loan application and approval requirements.
EFFECTIVE DATE: January 21, 2014
AGENCY CONTACT PERSON: Maine Rural Development Authority, Attn: Christopher Roney, c/o Finance Authority of Maine, 5 Community Drive, Augusta, ME 04332. Telephone: (207) 623-3263. E-mail: croney@famemaine.com .
WEBSITE: http://www.mainerda.org/ .

AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 11.22, Atlantic Sea Scallop Regulations and 2013-2014 Harvesting Season, Targeted Closures: (2) Moosabec Reach, (7) Inner Harbor/Deep Hole/Southeast Harbor, (8) Muscle Ridge, (10) Damariscotta River, (13) Medomak (Waldoboro) River, and (14) Somes Harbor.
ADOPTED RULE NUMBER: 2014-008 (Emergency)
CONCISE SUMMARY: The Commissioner adopts this emergency rule-making for the implementation of conservation closures located in Moosabec Reach, Inner Harbor/Deep Hole/Southeast Harbor, Muscle Ridge, Damariscotta River, Medomak (Waldoboro) River, and Somes Harbor in order to protect Maine’s scallop resource due to the risk of unusual damage and imminent depletion. Scallop populations throughout the state are at extremely low levels. The Department is concerned that unrestricted harvesting during the remainder of the 2013-14 fishing season in these areas may deplete a severely diminished resource beyond its ability to recover. Continued harvesting may damage sublegal scallops that could be caught during subsequent fishing seasons, as well as reducing the broodstock essential to a recovery. A significant immediate conservation closure is necessary to reduce the risk of unusual damage and imminent depletion. For these reasons, the Commissioner hereby adopts an emergency closure of Maine’s scallop fishery in these areas as authorized by 12 M.R.S. §6171(3).
EFFECTIVE DATE: January 18, 2014
AGENCY CONTACT PERSON: Trish De Graaf (207-624-6554)
AGENCY: Department of Marine Resources, State House Station 21, Augusta, Maine 04333-0021. Fax:(207) 624-6024. TTY: (888) 577-6690 (Deaf/Hard of Hearing). E-mail: Trisha.DeGraaf@Maine.gov . DMR Rule-making Website: http://www.maine.gov/dmr/rulemaking/ .
DMR WEBSITE: http://www.maine.gov/dmr/index.htm .
DMR RULE-MAKING LIAISON: Kevin.Rousseau@Maine.gov .

AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 11.22, Atlantic Sea Scallop Regulations and 2013-2014 Harvesting Season, Targeted Closures: (8) Muscle Ridge, (15) Cobscook Bay, and (16) St. Croix River
ADOPTED RULE NUMBER: 2014-009 (Emergency)
CONCISE SUMMARY: The Commissioner adopts this emergency rule-making for the implementation of a conservation closure located in Zone 3 (Cobscook Area) in order to protect Maine’s scallop resource due to the risk of unusual damage and imminent depletion. The Department is concerned that unrestricted harvesting during the remainder of the 2013-14 fishing season in this area may deplete a severely diminished resource beyond its ability to recover. The 2013 survey indicated that 380,100 lbs. of harvestable biomass was available this season in Zone 3 (Cobscook Area). After 24 days of fishing, it is estimated that 278,100 pounds (or 73% of the harvestable biomass) have been removed from this area by dive and drag licenses. This equates to an exploitation rate (E) estimated at 0.7 with an approximate fishing mortality rate (F) of 1.2. By comparison, an F of 0.38 is considered the maximum sustainable rate in the US federal scallop fishery. In contrast, for the 2012-13 season the starting biomass estimated was 385,000 lbs. and estimated landings totaled 191,160 lbs.; or approximately 50% of the available harvestable biomass Continued harvesting may damage sublegal scallops that could be caught during subsequent fishing seasons, as well as reducing the broodstock essential to a recovery.
Continued scallop fishing in Zone 3 at the levels allowed by the current rule would cause unusual damage and imminent depletion to the scallop resource due to mortality of scallops contacted during fishing operations. Continued harvesting in Zone 3 at current levels during the remainder of the 2013-14 scallop fishing season is likely to damage and reduce the remaining legal-sized broodstock that is essential for successful spawning.
For these reasons, an immediate conservation closure of Cobscook Bay (East, South, and Johnson’s Bay as well Friar Roads) on Mondays and Wednesdays to draggers and Wednesdays and Fridays to divers, as well as a conservation closure of the St. Croix River (north of Kendall’s Point, Eastport) Mondays and Tuesday to draggers and Wednesdays and Thursdays to divers is necessary to protect the scallop resource from unusual damage and imminent depletion. Accordingly, the Commissioner hereby adopts this emergency rule implementing these conservation closures of Cobscook Bay and the St. Croix River.
In addition, a clarification to the Muscle Ridge Targeted Closure is also provided. Access to this area was mistakenly reduced from five days a week to three days a week in a previous emergency rule-making action dated January 18, 2014 which was intended to reduce access to four days a week. Therefore, this clarification will increase access to Muscle Ridge from three to four days a week as originally intended as part of the January 18, 2014 rule-making action.
EFFECTIVE DATE: January 24, 2014
AGENCY: Department of Marine Resources, State House Station 21, Augusta, Maine 04333-0021. Fax: (207) 624-6024. TTY: (888) 577-6690 (Deaf/Hard of Hearing). E-mail: Trisha.DeGraaf@Maine.gov . DMR Rule-making Website: http://www.maine.gov/dmr/rulemaking/ .
DMR WEBSITE: http://www.maine.gov/dmr/index.htm .
DMR RULE-MAKING LIAISON: Kevin.Rousseau@Maine.gov .

AGENCY: 13-188 - Department of Marine Resources (DMR)
RULE TITLE OR SUBJECT: Ch. 25.75, Lobster Import/Export Requirements
ADOPTED RULE NUMBER: 2014-010
CONCISE SUMMARY: The Department of Marine Resources (DMR) changes this regulation in Ch. 25.75, Lobster Import/Export Permit. The updated procedures for the lobster import/export permit were developed in consultation with permit holders. The changes are intended to improve the efficiency of tracking procedures of oversized lobsters that are legally transported through the State of Maine. The changes will result in improved enforcement along with easier compliance and reduced labor and material costs for the industry.
EFFECTIVE DATE: January 29, 2014
AGENCY CONTACT PERSON: Meredith Mendelson (tel: 207-624-6553)
AGENCY: Department of Marine Resources, 21 State House Station, Augusta, Maine 04333-0021. Telephone: (207) 624-6573. Fax: (207) 624-6024. TTY: (888) 577-6690 (Deaf/Hard of Hearing). E-mail: dmr.rulemaking@maine.gov . DMR Rule-making Website: http://www.maine.gov/dmr/rulemaking/ .
THIS RULE WILL NOT HAVE A FISCAL IMPACT ON MUNICIPALITIES.
STATUTORY AUTHORITY: 12 M.R.S. §§ 6102, 6171, 6431, 6851
DMR WEBSITE: http://www.maine.gov/dmr/index.htm .
DMR RULE-MAKING LIAISON: Kevin.Rousseau@Maine.gov .

AGENCY: 13-188 - Department of Marine Resources (DMR)
RULE TITLE OR SUBJECT: Ch. 25.93(F), Lobster Zones A and B Exit Ratios for Limited-Entry Zones
PROPOSED RULE NUMBER: 2014-011
CONCISE SUMMARY: The Department of Marine Resources adopts changes to this regulation in Ch. 25.93(F) after actions of Lobster Management Zone Councils A and B (Council(s)) regarding lobster license exit-to-entry ratios in accordance with 12 M.R.S. §6448. A Council may recommend to the Commissioner whether the exit-to-entry ratios for a Lobster Management Zone (Zone) should be applied to either the number of licenses that are not renewed or to the number of trap tags associated with the licenses not renewed. If a Council proposes to change only the currency (tags or licenses retired), then the Council is not required to request a survey be conducted.
In Zone A, the rule-making changes the 3:1 exit-to-entry ratio currency from the number of trap tags associated with licenses not renewed to the number of licenses not renewed. Therefore, only a Zone A Council vote and subsequent DMR rulemaking is required to move forward. At the Zone A Council meeting on September 24, 2013, an affirmative vote by the Council recommended this currency change from tags to licenses. With this change, more opportunity will become available for lobster license waiting list individuals in this Zone. This action was in response to concerns raised about the long waiting lists that have developed in most Zones, and the low number of licenses that have been issued off of the waiting list each year. The Zone A waiting list currently has 61 names on it. Under the current system in Zone A, only three new lobster licenses were issued in each of the last two years.
In Zone B, the rule-making changes the 5:1 exit-to-entry ratio currency from the number of trap tags associated with licenses not renewed to the number of licenses not renewed similar to the action taken in Zone A. At the Zone B Council meeting on September 25, 2013, an affirmative vote by the Council recommended this currency change from tags to licenses. Therefore, only a Zone B Council vote and subsequent DMR rule-making is required to move forward. The Zone B waiting list currently has 63 names on it. Under the current system in Zone B, only one new lobster license was issued in each of the last two years.
EFFECTIVE DATE: January 29, 2014
AGENCY CONTACT PERSON: Sarah Cotnoir (tel: 207-624-6596)
AGENCY: Department of Marine Resources, 21 State House Station, Augusta, Maine 04333-0021. Telephone: (207) 624-6573. Fax: (207) 624-6024. TTY: (888) 577-6690 (Deaf/Hard of Hearing). E-mail: dmr.rulemaking@maine.gov . DMR Rule-making Website: http://www.maine.gov/dmr/rulemaking/ .
THIS RULE WILL NOT HAVE A FISCAL IMPACT ON MUNICIPALITIES.
STATUTORY AUTHORITY: 12 M.R.S. §6448
DMR WEBSITE: http://www.maine.gov/dmr/index.htm .
DMR RULE-MAKING LIAISON: Kevin.Rousseau@Maine.gov .

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January 29, 2014

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

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ADOPTIONS

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Maine.gov

Department of the Secretary of State

January 29, 2014

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

PROPOSALS

ADOPTIONS

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