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May 29, 2013

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: 05-071 - Department of Education (DOE)
CHAPTER NUMBER AND TITLE: Ch. 13, Qualifying Examinations of Teachers, Educational Specialists and Administrators
PROPOSED RULE NUMBER: 2013-P094
BRIEF SUMMARY: Proposed changes in Ch. 13 include new test codes, recommended cut off scores, new test titles, and language to allow old tests no longer being administered to be used for up to five years after which time only the new tests will be accepted.
DETAILED BASIS STATEMENT / SUMMARY: The proposed changes to Ch. 13 stem from the regular regeneration (revision) process employed by the Educational Testing Service (ETS). Each Praxis exam undergoes regeneration every five years. ETS conducts a multi-state standard setting study designed to assemble two separate groups of current practitioners who work for two to three days to review the validity and reliability of the test being regenerated. The end result is a recommended cut off score that is deemed appropriate for the just qualified candidate (JQC). Several of the tests required by the Maine Department of Education were recently regenerated, so our current Ch. 13 must be updated to reflect these changes.
Proposed changes in Ch. 13 include new test codes, new test titles, recommended cut off scores, and language to allow old tests no longer being administered to be used for up to five years after which time only the new tests will be accepted. There are also several minor changes in grammar and punctuation.
PUBLIC HEARING: June 20, 2013, 1:00 – 3:00 p.m., Room 500, Cross State Office Building, Augusta
COMMENT DEADLINE: July 1, 2013, 5:00 p.m.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION: Mark A. Cyr, Department of Education, Certification Office, 23 State House Station, Augusta, ME 04333-0023. Telephone: (207) 624-6603. Fax: (207) 624-6604. TTY: Call Maine Relay 711. E-mail: Mark.Cyr@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: N/A
STATUTORY AUTHORITY FOR THIS RULE: 20-A MRSA §§ 13031-13038 and 13035-A
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: N/A
WEBSITE: http://www.maine.gov/doe .
DOE RULE-MAKING LIAISON: Greg.Scott@Maine.gov .



AGENCY: 06-096 - Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 127, New Motor Vehicle Emission Standards
PROPOSED RULE NUMBER: 2013-P095
BRIEF SUMMARY: The Department of Environmental Protection is to amend Ch. 127 to delay the effective date of California’s aftermarket catalytic converter requirements until June 1, 2015. The purpose is to allow more time for manufacturers to comply and for other states in the region to adopt these requirements. In addition it provides more time to inform the distributers and regulated community of the program and its benefits.
These amendments will be submitted to EPA as a revision to Maine’s State Implementation Plan. Copies of this rule are available upon request by contacting the Agency contact person or on the DEP website at http://www.maine.gov/dep/rules/.
Pursuant to Maine law, interested parties are publicly notified of the proposed rule-making and are provided an opportunity for comment. Written comments may be submitted by mail, e-mail or fax to the contact person before the end of the comment period. To ensure the comments are considered, they must include your name and the organization you represent, if any.
PUBLIC HEARING: No public hearing scheduled – 30 day written comment period. A public hearing will be held if requested before the end of the comment period.
COMMENT DEADLINE: June 28, 2013, 5:00 p.m.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION: Lynne Cayting, Maine Dept. of Environmental Protection, Bureau of Air Quality Control, 17 State House Station, Augusta, ME 04333. Telephone: (207) 287-2437 . Fax: (207) 287-7641. E-mail: Lynne.A.Cayting@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 38 MRSA §§ 585-A, 585-D, 341-H
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
WEBSITE: http://www.maine.gov/dep/air/ .
DEP RULE-MAKING LIAISON: Mike.Karagiannes@Maine.gov .



AGENCY: 06-096 - Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 800, Identification of Hazardous Matter (Amendments)
PROPOSED RULE NUMBER: 2013-P096
BRIEF SUMMARY: The Department is proposing to amend its Ch. 800 rule, Identification of Hazardous Matter, by utilizing the definition of hazardous matter as defined in regulations promulgated under §102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, thereby providing consistency with Maine law and current federal requirements. The proposed revision provides a more comprehensive list of substances designated as hazardous matter, and thereby provides a more useful regulation for the Department and for generators or responsible parties. In addition, the Department is also proposing to eliminate a requirement that spill prevention and clean-up plans be approved by the Department (statute currently requires only the submittal of a plan).
Copies of these rules are available upon request by contacting the Agency contact person or on the DEP website at www.maine.gov/dep/rules/.
Pursuant to Maine law, interested parties are publicly notified of the proposed rule-making and are provided an opportunity for comment. Written comments may be submitted by mail, e-mail or fax to the contact person before the end of the comment period. To ensure the comments are considered, they must include your name and the organization you represent, if any.
PUBLIC HEARING: June 18, 2013, 1:00 p.m., Department of Environmental Protection, Response Building, Blossom Lane, Augusta, Maine
COMMENT DEADLINE: June 28, 2013 - 5:00 p.m.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION: Jeffrey Crawford, Maine Department of Environmental Protection, 17 State House Station, Augusta, ME 04333. Telephone: (207) 287-2437. Fax: (207) 287-7641. E-mail: Jeff.S.Crawford@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 38 MRSA §1319(1)(A)
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
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. 801, Discharge of Hazardous Matter: Removal and Written Reporting Requirements (Amendments)
PROPOSED RULE NUMBER: 2013-P097
BRIEF SUMMARY: The Department is proposing to amend its Ch. 801 rule, Discharge of Hazardous Matter: Removal and Written Reporting Requirements, to align the discharge reporting requirements with Maine and federal law, and require reporting a discharge of hazardous matter to the Commissioner within fifteen days. This revision will conform to regulations promulgated under the Resource Conservation and Recovery Act, published at 40 CFR 264.56, and will also remain consistent with Maine law, 38 MRSA §1318-B. (The current thirty day reporting requirement, though consistent with the term “immediately” as referenced in 38 MRSA §1318-B, is inconsistent with the emergency reporting procedures defined at 40 CFR 264.56(i).) In addition to updating discharge reporting requirements, the Department is proposing to clarify the information required these reports.
Copies of these rules are available upon request by contacting the Agency contact person or on the DEP website at www.maine.gov/dep/rules/.
Pursuant to Maine law, interested parties are publicly notified of the proposed rule-making and are provided an opportunity for comment. Written comments may be submitted by mail, e-mail or fax to the contact person before the end of the comment period. To ensure the comments are considered, they must include your name and the organization you represent, if any.
PUBLIC HEARING: June 18, 2013, 1:00 p.m., Department of Environmental Protection, Response Building, Blossom Lane, Augusta, Maine
COMMENT DEADLINE: June 28, 2013 - 5:00 p.m.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION: Jeffrey Crawford, Maine Department of Environmental Protection, 17 State House Station, Augusta, ME 04333. Telephone: (207) 287-2437. Fax: (207) 287-7641. E-mail: Jeff.S.Crawford@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 38 MRSA §1319(2)
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
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. 851. Standards for Generators of Hazardous Waste (Amendments)
PROPOSED RULE NUMBER: 2013-P098
BRIEF SUMMARY: The Department is proposing to amend Ch. 851 by replacing the existing daily hazardous waste container inspection requirement with a weekly inspection requirement; this weekly inspection requirement also applies to satellite accumulation areas. The Department's proposal will align inspection requirements for wastes stored in central accumulation areas with those contained in federal regulations at 40 CFR 262.34(a) and reduce the required inspection frequency for satellite accumulation areas to once per week.
Copies of these rules are available upon request by contacting the Agency contact person or on the DEP website at www.maine.gov/dep/rules/ .
Pursuant to Maine law, interested parties are publicly notified of the proposed rule-making and are provided an opportunity for comment. Written comments may be submitted by mail, e-mail or fax to the contact person before the end of the comment period. To ensure the comments are considered, they must include your name and the organization you represent, if any.
PUBLIC HEARING: June 18, 2013, 1:00 p.m., Department of Environmental Protection, Response Building, Blossom Lane, Augusta, Maine
COMMENT DEADLINE: June 28, 2013 - 5:00 p.m.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION: Jeffrey Crawford, Maine Department of Environmental Protection, 17 State House Station, Augusta, ME 04333. Telephone: (207) 287-2437. Fax: (207) 287-7641. E-mail: Jeff.S.Crawford@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 38 MRSA §1304(1)
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
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 for Family Independence (OFI)
CHAPTER NUMBER AND TITLE: Ch. 301, OFI Food Supplement Certification Manual, Rule #180P: Updated Trafficking Definition and Supplemental Nutrition Assistance Program (SNAP) – Food Distribution Program on Indian Reservations (FDPIR) Dual Participation
PROPOSED RULE NUMBER: 2013-P099
BRIEF SUMMARY: This rule updates the Maine Food Supplement Certification Manual with the updated trafficking definition and Supplement Nutrition Assistance Program-Food Distribution Program on Indian Reservations dual participation prohibition published in the Department of Agriculture Federal Register on February 21, 2013. This rule is being processed at the same time as Emergency Rule 180 to bring the existing Maine Certification Manual provisions into compliance with new definitional and other changes in the corresponding Federal rule in order to insure Program integrity, align enforcement mechanisms, and provide for coordinated Federal/State administration.
DETAILED BASIS STATEMENT / SUMMARY: As intended by the Federal government, “SNAP offers nutrition assistance to millions of eligible, low income individuals and families and provides economic benefits to communities. SNAP is the largest program in the domestic hunger safety net.” http://www.fns.usda.gov/snap .
Accordingly, Federal and State regulations are designed and, as needed, revised to reflect those goals and ensure that monies intended to serve them are wisely spent. Such regulations have always included a prohibition against “trafficking” in such benefits. FNS recently adopted a new definition of “trafficking” to encompass several activities it had identified as incompatible with the intent of the law. The abuses intended to be corrected by the emergency rule are wasteful of scarce resources, antithetical to the goals of the SNAP program, and tend to bring it into disrepute with the public.  These abusive practices included, specifically, the purchase with SNAP benefits of products with container deposits with the intention of discarding the product and returning the container for a cash refund. Such “water dumping” has been long reported, but judged “extremely unusual” by FNS. (See 78 Fed. Reg. No. 35, February 21, 2013, p. 11967.) Additionally, FNS had identified a further objectionable practice of intentionally purchasing/selling eligible products with SNAP benefits, then reselling or exchanging them for cash or other consideration than eligible food. Thus the Federal Register cited above set forth a final rule which included:
(a) Amendments to the 7 CFR § 271.2 definitions to specifically designate the activities described above as prohibited “trafficking;”
(b) Additional textural changes in §271.2 such as addition of the word “stealing or otherwise effecting an exchange of” benefits as well as the addition of language including “directly, indirectly, in complicity or collusion with others, or acting alone” to clarify responsibility for prohibited practices;
(c) Correcting existing regulatory citations related to potential dual participation in SNAP and the Food Distribution Program on Indian Reservations (FDPIR) programs, and to clarify the impact on SNAP eligibility of disqualification from FDPIR.
With respect to the “water dumping” issue, FNS noted that “Throughout the Program’s history, trafficking has been defined as ‘…the exchange of SNAP benefits for cash or consideration other than food….’ While intentionally discarding beverages for purposes of collecting cash deposits, or intentionally purchasing items with SNAP benefits for purposes of re-selling those items for cash constitute an indirect exchange, the intent—i.e. exchanging SNAP benefits for cash—is the same and the activity constitutes trafficking. This regulation is intended to target egregious and intentional Program Violations…and to give [ ] States the ability to take action where intentional violations are discovered.” Id., at p. 11969.
Maine administers the SNAP program through a State Plan, whereby it “agree[s] to fully comply with any changes in Federal law and regulations.” 7 CFR §272.2(b).  Inasmuch as FNS has recognized the prohibited practices described above, this proposed rule in being processed in concurrence with Emergency Rule #180E to affect the change that is required in order to bring Maine’s rules in compliance, and to effectuate the broader purposes of the applicable law.
PUBLIC HEARING: None
COMMENT DEADLINE: June 28, 2013
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION: Karen L. Curtis, Food Supplement Program Manager, 11 State House Station, Augusta, ME 04333. Telephone: (207) 624-4108. E-mail: Karen.L.Curtis@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: None anticipated.
STATUTORY AUTHORITY FOR THIS RULE: 22 M.R.S. §§ 42 and 3104
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: 7 CFR Parts, 271, 273 & 281
WEBSITE: http://www.maine.gov/dhhs/ofi/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .



AGENCY: 99-346 - Maine State Housing Authority (MSHA)
CHAPTER NUMBER AND TITLE: Ch. 16, Low-Income Housing Tax Credit Rule
PROPOSED RULE NUMBER: 2013-P100
BRIEF SUMMARY: Maine State Housing Authority, as the State’s designated housing credit agency, is required to adopt a qualified allocation plan for allocating and administering federal low income housing tax credits, including without limitation the State ceiling of federal low-income housing tax credits pursuant to Section 42 of
the Internal Revenue Code of 1986, as amended. Ch. 16 of Maine State Housing Authority’s rules is the State’s qualified allocation plan. The proposed rule will repeal and replace the current Ch. 16 and will be the State’s qualified allocation plan for allocating and administering the federal low-income housing tax credits, including the 2014 State ceiling of federal low-income housing tax credits.
DETAILED BASIS STATEMENT / SUMMARY: The Internal Revenue Code of 1986, as amended, (the “Code”) requires Maine State Housing Authority (“MaineHousing”), as the State’s designated housing credit agency, to adopt a qualified allocation plan for allocating and administering federal low income housing tax credits (“Credit”), including without limitation the State ceiling of federal low-income housing tax credits (“State Ceiling”).
Ch. 16 of MaineHousing’s rules, the Low Income Housing Tax Credit Rule, is the State’s qualified allocation plan for allocating and administering the Credit. This rule will repeal and replace in its entirety the current Ch. 16 of MaineHousing’s rules which governs the allocation of the 2013 State Ceiling and is referred to herein as the prior rule. This rule will be the State’s qualified allocation plan for allocating and administering the Credit, including the 2014 State Ceiling.
The priority in the selection process for the 2014 State Ceiling continues to be cost containment. The prior rule established a new cap on the total development costs of projects by project type and a new scoring category that rewarded projects with total development costs that were lower than the average total development costs for similar projects (referred to as benchmarks in the rule) and penalized projects with higher total development costs. The total development cost caps are the same as the caps in the prior rule. The total development cost benchmarks in the scoring criteria are the same as the benchmarks in the prior rule, except the benchmark for the acquisition and rehabilitation of existing housing has been reduced from $125,000 to $110,000. The benchmark has been reduced because all of the applications for projects involving the acquisition and rehabilitation of existing housing scored the maximum points under the scoring category in the prior Credit round, which indicates the benchmark in the prior rule may have been too high. Also, this rule does not include the 5% buffer for increases in total development costs after the application submission that was in the prior rule. The purpose of this change is to prevent an applicant from making changes to the project that increase the cost of the project after the project has been selected and to discourage applicants from intentionally underestimating the total development costs of a project. Under this rule, an application will be re-scored if there is any increase in the total development costs of a project between the time of application and the earlier of an allocation of Credit to or construction loan closing for the project, other than increases due to market conditions or other reasons beyond the control of the applicant.
This rule imposes new limitations on projects involving the acquisition and rehabilitation of existing housing. The State Ceiling is a valuable resource and should be used primarily for the creation of new affordable housing units in the State. MaineHousing has historically provided funding for the preservation of existing affordable housing, particularly Section 8 project-based rental assistance projects, through its tax-exempt bond programs. With uncertainty about the availability of tax-exempt bond financing authority and recent experience that some projects were not feasible under the bond program, the prior rule allowed Section 8 project-based rental assistance projects to compete for the State Ceiling after a long history of being excluded. The result was that at least half of the applications and more than half of the top-scoring applications for the 2013 State Ceiling involved the acquisition and rehabilitation of Section 8 project-based rental assistance projects and other affordable housing projects. To ensure that the State Ceiling is used primarily to create new affordable housing units, this rule restricts the preservation of existing affordable housing to the Preservation Set-aside. The Preservation Set-aside reserves Credit for up to two projects and has been expanded to include the preservation of all existing affordable housing, including existing Rural Development projects, HUD projects, tax credit projects and other affordable housing.
The rule includes other limitations on the acquisition and rehabilitation of existing housing that are designed to maximize the use of the State Ceiling. This rule requires a certain amount of rehabilitation for existing housing, which maximizes the value of the Credit because the Credit rate for rehabilitation is 9% and the Credit rate for acquisition is only 4%. A project must need at least $30,000 of hard rehabilitation costs per unit to qualify for the State Ceiling. Applicants must submit a capital needs assessment supporting the amount of rehabilitation the project needs. Also, the rule limits the developer fee for projects that only involve the acquisition and rehabilitation of existing housing because these projects are much less complex in terms of design work and land use approvals than new construction and adaptive/reuse projects.
The minimum level of affordability has been reduced. This rule reduces the minimum number of units required to be affordable to persons with income at or below 50% of area median income (very low income) from 60% to 40%. Subsidy resources are scarce and there has been a significant increase in the number of projects requesting workouts and loan modifications recently, including requests for relief from affordability restrictions. Given this environment, MaineHousing is concerned about the ability of projects to sustain the level of affordability historically required by MaineHousing. The deeper level of affordability limits the rental income the project is able to realize, which increases the amount of subsidy the project needs to cover capital costs, limits the ability of the project to withstand unforeseen increases in project costs (such as property taxes, insurance and energy costs) and reduces the amount of debt the project can afford. In addition to reducing the minimum percentage of very low income units, the percentage will only apply to Credit-eligible units under the rule. Applying the income targeting to all of the units in the project has limited the development of mixed-income projects (projects with Credit- eligible and market rate units) which require a certain number of market rate units to be feasible. In some cases, half or more than half of the units in these projects have to be market rate units to make a mixed-income project feasible.
The minimum affordability period has also been reduced. MaineHousing has historically incented or required a minimum of 90 years of affordability. The 90-year period of affordability has been problematic for developers in some municipalities that feel the affordability restriction hampers future planning. To balance this concern with MaineHousing’s desire to preserve the affordability of these projects for the longest period, the affordability period has been reduced to 45 years in this rule.
MaineHousing hired an independent market analyst to review the housing needs and location categories. The market analyst agreed with MaineHousing that calculating the need by service center communities is the fairest approach at this time, so housing need will continue to be ranked by service center community. MaineHousing adjusted the formula to include persons between 55 and 65 years old in the demand side of the formula for both family housing and elderly housing, because this age group qualifies for both types of housing. The service center community need category has been updated with the latest census and service center community data.
Two modifications have been made to the vacancy rate scoring criteria based on recommendations by the market analyst. First, the threshold vacancy rate for comparable low-income housing tax credit projects has been reduced from 5% to 4% because these projects generally have a lower vacancy rate than comparable market rate properties. Second, MaineHousing will rely on the American Community Survey as the source of data for vacancy rates in market rate properties because the American Community Survey is a more reliable source of data than the point-in-time data used in the market studies provided by the applicants.
The rule also includes new scoring criteria to address a concern expressed by the market analyst that there are certain urban communities that have high concentrations of low-income persons and affordable housing. The scoring criteria award points to projects that are located in census tracts with higher than average area median incomes or to mixed-income projects that are located in qualified census tracts. The purpose of the criteria is to encourage the development of more economically diverse neighborhoods and to reduce the concentration of affordable housing in low-income communities.
The focus of the smart growth scoring criteria in this rule has shifted away from downtowns, which has been the focus of the smart growth criteria in prior rules. Many municipalities in the State do not have downtowns, but do have areas where the development of affordable housing promotes the smart growth principles of the State. The criteria under this rule reward projects that are located near destinations important to the course of daily living and projects that have access to public transportation, including projects that are located near pick-up locations for fixed-route public transportation or projects served by demand response transportation. The points under the criteria are cumulative. Projects that are located near destinations important to daily living and a pick-up location for fixed-route public transportation will receive the full 10 points available under the criteria. Most, if not all, projects that are located in downtowns should qualify for the maximum points under this category.
MaineHousing has substantially overhauled its application for Credit this year and is requiring all applicants to submit the application electronically. The threshold submission requirements and submission requirements for scoring criteria that were set forth in the prior rule have been moved to the new application. The submission requirements in the new application will be more detailed and will be formatted to make it easier for applicants to understand what must be submitted with the application. The rule requires that the threshold submission requirements set forth in the new application must be satisfied to be eligible for Credit and that the submission requirements with respect to scoring criteria set forth in the application must be satisfied to be awarded points under the respective scoring criteria.
Other changes to the rule include the following. The management experience category has been stratified to reward the use of management companies that have staff with low-income housing tax credit training and experience, with greater points being awarded for management companies with 3 or more years of experience. The threshold requirement that projects give persons on the Section 8 waiting list preference in housing now excludes projects financed by Rural Development (RD) because the federal regulations do not allow preferences in RD-financed properties. The separate caps on contractor overhead and profit have been combined to address concerns that allocating costs between overhead and profit can be difficult and is viewed by some contractors as overreaching.
The rule provides clarifications concerning certain scoring criteria that have been retained from the prior rule. The scoring criteria that rewards the acquisition and rehabilitation of existing housing with protection against displacement and substantial rent increases has been modified to clarify that a substantial increase in rent is 10% or more for any individual tenant. Two clarifying modifications were made to the scoring criteria that reward lower than average acquisition costs. First, the capitalized value of any leases of land and buildings that are part of the project and demolition costs are included in the acquisition costs of a project for purposes of the criteria. Also, projects that involve the acquisition and demolition of all existing buildings on the project site will be treated as a new construction project for purposes of the criteria. A similar clarification was made in the maximum total development cost threshold requirement. The scoring criteria that reward projects with lower vacancy rates and greater differentials between the tax credit rent and the market rent in comparable housing have been modified to clarify what constitutes comparable housing for purposes of the respective categories. The rule includes a new defined term to clarify what constitutes a “community revitalization plan” for purposes of the community revitalization scoring criteria. The rule also includes a new defined term to clarify what constitutes a “principal” for purposes of the developer experience scoring criteria.
The rule makes other minor modifications, clarifications, grammatical changes and formatting improvements from the prior rule.
PUBLIC HEARING: A public hearing will be held on Tuesday, June 18, 2013 at 9:30 a.m. at Maine State Housing Authority, State House Station #89, 353 Water Street, Augusta, Maine, 04330-4633. Maine State Housing Authority’s office and the hearing room are accessible to persons with disabilities and, upon sufficient notice, appropriate communication auxiliary aids and services will be provided to persons with disabilities and persons with limited English proficiency.
COMMENT DEADLINE: Friday, June 28, 2013 at 5:00 p.m.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION: Jodie Stevens, Counsel, Maine State Housing Authority, State House Station #89, 353 Water Street, Augusta, Maine, 04330-4633, (207) 626-4600 (telephone), Maine Relay 711. E-mail: jstevens@mainehousing.org .
Upon sufficient notice, this notice and the proposed rule will be made available in alternative formats for persons with disabilities and in alternative languages for persons with limited English proficiency.
IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 30-A MRSA §4741(1), 30-A MRSA §4741(14) and Section 42 of the Internal Revenue Code of 1986, as amended
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: Same as above
WEBSITE: www.mainehousing.org .
MSHA RULE-MAKING LIAISON: luhl@mainehousing.org .



AGENCY: 02-392 - Department of Professional and Financial Regulation (PFR), Office of Professional and Occupational Regulation (OPOR), Maine Board of Pharmacy
CHAPTER NUMBER AND TITLE: Ch. 1, Definitions; Ch. 4, Licensure of Pharmacists; Ch. 4-A, Administration of Drugs and Vaccines; Ch. 6, Pharmacy Student Internship Programs, sunsetted (repeal); Ch. 6-A, Pharmacy Student Internship Programs; Ch. 7, Licensure and Employment of Pharmacy Technicians; Ch. 8, Licensure of Retail Pharmacies; Ch. 13, Operation of Retail Pharmacies; Ch. 18, Sterile Pharmaceuticals (repeal); Ch. 19, Receipt and Handling of Prescription Drug Orders; Ch. 20, Automated Pharmacy Systems; Ch. 23, Accounting for Prescription Drugs; Ch. 24, Retention of Records by Pharmacies; Ch. 25, Patient Counseling; Ch. 29, Violations of State or Federal Law or Rule; Other Standards; Ch. 30, Unprofessional Conduct; Ch. 34, Licensure of Retail Suppliers of Medical Oxygen; Ch. 35, Licensure of Extended Hospital Pharmacies (new); Ch. 36, Licensure of Opioid Treatment Programs (new); Ch. 37, Licensure of Sterile Compounding Pharmacies (new); Ch. 38, Licensure of Closed-Shop Pharmacies (new)
PROPOSED RULE NUMBER: 2013-P101 thru P121
BRIEF SUMMARY: In this rule-making proceeding the board proposes to: (1) adopt new chapters for the licensure of extended hospital pharmacies, opioid treatment programs, sterile compounding pharmacies and closed-shop pharmacies; (2) adopt recordkeeping and operational requirements for retail pharmacies and closed-shop pharmacies that engage in non-sterile compounding; (3) provide for the licensure of pharmacy interns; (4) more specifically delineate the permissible duties of pharmacy technicians, (5) eliminate the license category of pharmacy technician (advanced); (6) eliminate the ratios governing the maximum number of pharmacy technicians permitted to work under the supervision of a pharmacist; (7) expand the scope of drugs and vaccines that may be administered by a pharmacist; (8) require a pharmacy that operates a vaccine administration clinic to submit its written plan of operation for one-time approval by the board; (9) adopt federal standards that permit electronic prescriptions for controlled drugs; (10) authorize the board to waive rule requirements relating to automated pharmacy systems in hospitals; (11) revise requirements relating to disposal of drugs; (12) eliminate a pharmacy’s obligation to report the theft, loss or unresolved inventory discrepancy of noncontrolled drugs; (13) reduce pharmacies’ record retention requirement from 3 years to 2 years for all records other than patient profiles; (14) require the compounding area (if applicable) and controlled drug storage areas to be protected by alarm and security cameras; (15) eliminate the minimum size requirement for prescription filling areas; (16) update the list of federal laws and rules and other external rules and codes that are enforceable by the board; (17) set forth prohibited practices relating to compounding that will be regarded as unprofessional conduct; (18) repeal obsolete chapters, delete obsolete text, and make many other changes relating to the licensing of pharmacists and pharmacy technicians and the licensing and operation of pharmacies. A more detailed description and the text of the proposed rules may be obtained from www.maine.gov/professionallicensing .
DETAILED BASIS STATEMENT / SUMMARY: In this rule-making proceeding the board proposes to:
Ch. 1, Definitions
* Adopt new definitions of “affiliated,” “closed-shop pharmacy,” “electronic prescription,” “extended hospital pharmacy,” “medical oxygen” (relocated from Ch. 34), “non-sterile compounding pharmacy,” “retail supplier of medical oxygen” (relocated from Ch. 34), and “sterile compounding pharmacy.”
* Delete the definitions of “biological safety cabinet,” Class 100 environment,” “Class 1000 environment,” “cytotoxic” and “enteral” due to the proposed repeal of Ch. 18.
* Delete the definition of “pharmacy technician (advanced)” due to the elimination of that license category.
* Delete the definition of “drug administration clinic” (content folded into Ch. 4-A).
* Amend the definition of “direct supervision” to allow for meals and breaks of pharmacists.
* Amend the definitions of “parenteral” and “sterile pharmaceutical” to conform to NABP definitions.
Ch. 4, Licensure of Pharmacists
* Delete obsolete text relating to submission of applications.
* Define “accredited” to include pre-candidate and candidate status.
* Require pharmacists to notify the board within 10 days of their commencement or cessation of employment as a pharmacist.
Ch. 4-A, Administration of Drugs and Vaccines
* Substitute the phrase “drugs and vaccinations” for “drugs and immunizations” to conform to law.
* Broaden the scope of drugs and vaccinations that may be administered by a pharmacist to conform to law.
* Consolidate the provisions of the current chapter regarding the Record of Individual Administration.
* Provide that a written plan of operation may cover multiple pharmacies under common ownership.
* Implement the requirement of one-time board approval of a vaccination clinic’s written plan of operation as required by law.
Ch. 6, Pharmacy Student Internship Programs (sunsetted)
* Repeal this chapter, which was sunsetted as of June 30, 2012 in the board’s most recent rule-making proceeding.
Ch. 6-A, Pharmacy Student Internship Programs
* Provide for the licensure of pharmacy interns.
* Revise accreditation provisions.
* Emphasize that a pharmacy intern may not participate in an IPPE or APPE until the intern license has actually been issued to the student.
* Revise application procedures.
* Permit the board to consider an applicant’s disciplinary history and certain types of criminal convictions.
* Permit the board to consider non-traditional practice settings (inadvertently omitted from this chapter in the board’s most recent rule-making proceeding).
* Require the preceptor, pharmacist in charge or supervising pharmacist to notify the board of the resignation, discharge or termination of a pharmacy intern due to theft or drug-related misconduct.
* Require applicants educated in a foreign country other than Canada to have graduated from a 6-year pharmacy degree program and passed the FPGEC examination in order to be eligible for the pharmacy intern license.
Ch. 7, Licensure and Employment of Pharmacy Technicians
* More specifically delineate the permissible duties of pharmacy technicians
* Delete the license category of pharmacy technician (advanced).
* Delete the ratios governing the maximum number of pharmacy technicians permitted to work under the supervision of a pharmacist.
* Require the pharmacist in charge to notify the board of termination due to theft as well as drug-related reasons.
* Reorganize the chapter to reflect the licensure of pharmacy interns in Ch. 6-A and the elimination of the pharmacy technician (advanced) license category.
Ch. 8, Licensure of Retail Pharmacies
* Standardize license application and processing language for consistency among retail pharmacies, retail suppliers of medical oxygen, extended hospital pharmacies, opioid treatment programs, sterile compounding pharmacies and closed-shop pharmacies, to the extent practicable.
* Delete the minimum size requirement for prescription filling areas.
* Better describe the disciplinary and regulatory action that the board may consider in acting on a license application.
* Clarify the nature of alterations to the prescription filling area that require prior board approval.
Ch. 13, Operation of Retail Pharmacies
* Exclude holiday closures from schedule deviations that need to be reported to the board.
* Require the pharmacist in charge to ensure that each pharmacist employed at the pharmacy for which the pharmacist in charge is responsible is licensed by the board.
* Expand the scope of permissible waivers to the requirement that a pharmacist may serve as pharmacist in charge at no more than one retail pharmacy.
* Require the drug compounding area (if applicable) and controlled drug storage areas to be protected by alarm.
* Require the drug compounding area (if applicable) and controlled drug storage areas to be protected by security camera. Ch. 13, Section 6 of the current rules requires the narcotics safe at retail pharmacies to be protected by security camera. The proposed rule requires controlled drug storage areas to be protected by security camera beginning July 1, 2014. Pharmacies without a narcotics safe that do not currently monitor controlled drug storage areas will need to purchase an additional security camera. The cost of an additional camera is about $500.
* Delete obsolete text relating to the initial implementation of the barrier, alarm and security camera requirements.
* Require retail pharmacies that engage in non-sterile compounding to meet the recordkeeping and operational requirements contained in Section 7 of this chapter. The requirements are incorporated by reference from NABP Good Compounding Practices and USP Ch. 795.
Ch. 18, Sterile Pharmaceuticals
* Repeal this chapter, which is superseded by Ch. 13, Section 7, discussed above, and new Ch. 37, Licensure of Sterile Compounding Pharmacies.
Ch. 19, Receipt and Handling of Prescription Drug Orders
* Authorize pharmacy technicians to accept original prescription drug orders by telephone.
* Reference DEA rules with respect to the types of prescription drug orders for controlled drugs that may be transmitted by facsimile.
* Incorporate by reference DEA rules authorizing a pharmacist and pharmacy to process and fill electronic prescriptions for a controlled drug.
* Incorporate by reference DEA rules governing the transfer of prescriptions for controlled drugs as a substitute for the DEA rule text that is re-stated in the current board rule.
Ch. 20, Automated Pharmacy Systems
* Delete references to the deleted license category of pharmacy technician (advanced).
* Authorize the board to waive requirements of this chapter relating to automated pharmacy systems in hospitals.
Ch. 23, Accounting for Prescription Drugs
* Delete the incorporation of Maine DEP hazardous waste disposal rules into this chapter by reference, and delete provisions requiring unused Schedule II drugs owned by patients to be disposed of in the presence of a pharmacist or other named individual. Reference instead the current DEA provision governing disposal of controlled substances, and a current DEA rule-making proceeding to revamp options for disposing of controlled drugs. Disposal of non-controlled drugs will be principally governed by the Maine DEP hazardous waste disposal rules, to the extent applicable, and other guidance from that Department and the U.S. Environmental Protection Agency.
* Eliminate a pharmacy’s obligation to report the theft, loss or unresolved inventory discrepancy of noncontrolled drugs. For the theft, loss or unresolved inventory discrepancy of controlled drugs, the pharmacy’s obligation to report will depend on whether the pharmacy determines the theft or loss is “significant” according to standards taken from DEA rules.
Ch. 24, Retention of Records by Pharmacies
* Reduce pharmacies’ record retention requirement from 3 years to 2 years for all records other than patient profiles.
Ch. 25, Patient Counseling
* Adopt a modified patient counseling requirement applicable to new prescriptions dispensed at opioid treatment programs licensed pursuant to Ch. 36.
Ch. 29, Violations of State or Federal Law or Rule; Other Standards
* Update the list of federal laws and rules and other external rules and codes that are enforceable by the board, most of which are incorporated into the board’s rules by reference.
Ch. 30, Unprofessional Conduct
* Clarify that the inability to practice with reasonable skill and safety may result in sanctions against a pharmacy technician or pharmacy intern as well as a pharmacist.
* Require a pharmacy to notify the board of the termination of a pharmacist due to theft or drug-related misconduct.
* Adopt eight prohibited practices related to compounding, adapted from an FDA compliance policy guide, that will be regarded as unprofessional conduct.
Ch. 34, Licensure of Retail Suppliers of Medical Oxygen
* Relocate the definitions of “medical oxygen” and “retail supplier of medical oxygen” to Ch. 1.
* State the legal basis for licensing retail suppliers of medical oxygen as a classification of retail pharmacy.
* Standardize license application and processing language for consistency among retail pharmacies, retail suppliers of medical oxygen, extended hospital pharmacies, opioid treatment programs, sterile compounding pharmacies and closed-shop pharmacies, to the extent practicable.
Ch. 35, Licensure of Extended Hospital Pharmacies
* Create a new classification of retail pharmacy license for extended hospital pharmacies. The new license will cover hospital pharmacy operations that according to DHHS are not included within the scope of the hospital license issued by DHHS. These consist of prescriptions filled for:
o Residents of a nursing facility or skilled nursing facility that is affiliated with the hospital in which the extended hospital pharmacy is located, and
o Employees, students and medical staff of a nursing facility, or skilled nursing facility that is affiliated with the hospital in which the extended hospital is located and their dependents, for their personal use.
“Affiliated” is defined in Ch. 1, Section 1-A(1) to mean, “…a relationship in which one entity owns 100% of the ownership of both a hospital and a nursing facility or skilled nursing facility.”
Ch. 36, Licensure of Opioid Treatment Programs
* Create a new classification of retail pharmacy license for opioid treatment programs. Opioid treatment programs are currently licensed as ordinary retail pharmacies, but various requirements of Ch. 8 and 13 (e.g., full-time pharmacist in charge, equipment requirements, minimum pharmacy hours, posting of hours, general prescription obligations, signage) are inapplicable to such facilities. This chapter also coordinates licensure by the board with certification by the federal DHHS and licensure by Maine DHHS.
Ch. 37, Licensure of Sterile Compounding Pharmacies
* Create a new classification of retail pharmacy license for sterile compounding pharmacies. Ongoing obligations of licensure consist of compliance with recordkeeping requirements incorporated by reference from NABP Good Compounding Practices, operational requirements incorporated by reference from USP Ch. 797, and quality assurance provisions set forth in Section 11(2) of the new chapter. Section 11(3) requires the pharmacist in charge or pharmacist on duty to give immediate notice of potential contamination to the board and any patients to whom a potentially contaminated sterile pharmaceutical was dispensed or administered.
Ch. 38, Licensure of Closed-Shop Pharmacies
* Create a new classification of retail pharmacy license for closed-shop pharmacies. A closed-shop pharmacy serves a limited, institutional patient population, such as residents of a long-term care facility, and is not open to the general public. The impetus for this chapter came from pharmacies that encountered difficulties in participating in discount group purchasing programs offered by manufacturers unless the pharmacy was a licensed entity separate and apart from an ordinary retail pharmacy. The new chapter permits a closed-shop pharmacy to share a pharmacist in charge with a retail pharmacy at the same location as the retail pharmacy, but requires that inventory and records of the two pharmacies be separately maintained.
PUBLIC HEARING: June 20, 2013, 9:00 a.m., Department of Professional and Financial Regulation, 76 Northern Avenue, Gardiner, Maine
COMMENT DEADLINE: July 1, 2013
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION: Geraldine Betts, Board Administrator, Office of Professional and Occupational Regulation, 35 State House Station, Augusta, ME. Telephone: (207) 624-8625. E-mail: Geraldine.L.Betts@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 32 MRSA §§ 13720, 13721(1), 13721(1)(E), 13721(1)(F), 13721(1)(G), 13721(1)(H), 13722, 13722(1), 13722(1)(B), 13722(1)(B-1), 13723, 13723(7), 13732, 13732(3), 13733, 13741, 13742(2)(F), 13734, 13751, 13751(3), 13752, 13752-A, 13753, 13753(1)(D), 13781, 13784, 13785, 13786-A, 13794, 13795, 13831, 13832, 13835; 22 MRSA §2681(6)
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: 21 CFR Part 1311 (DEA rule relating to electronic prescriptions for controlled substances); 21 CFR §1306.11 (DEA rule relating to facsimile transmission of prescriptions for controlled drugs); 21 CFR §1306.25 (DEA rule relating to transfer of prescriptions for controlled drugs between pharmacies for refill purposes); 21 CFR §1307.21 (DEA rule relating to disposal of controlled drugs); 42 CFR §482.24(b)(1), CMS rule relating to retention of Medicare records; 42 CFR Part 8 (HHS/SAMHSA rules relating to certification of opioid treatment programs); FDA Compliance Policy Guidance 460.200, relating to pharmacy compounding.
WEBSITE: http://www.maine.gov/pfr/professionallicensing/professions/pharmacy/index.htm .
OPOR RULE-MAKING LIAISON: Jeffrey.M.Frankel@Maine.gov .


ADOPTIONS


AGENCY: 09-137 – Department of Inland Fisheries and Wildlife (IFW)
CHAPTER NUMBER AND TITLE: Ch. 4.05, Moose Hunting (K. Open and Closed Season)
ADOPTED RULE NUMBER: 2013-116
CONCISE SUMMARY: The Department of Inland Fisheries and Wildlife has adopted rules that provide for a controlled moose hunt during a specified period between August 15 and December 31, 2013 in designated areas in Aroostook County open to the hunting of moose by permit only to special landowners and guides through a lottery. In addition, moose hunting permits will be issued to disabled veterans in cooperation with the Maine Department of Defense, Veterans and Emergency Management, Bureau of Veterans Services. The Department will determine the number of moose hunting permits to be issued. Each permit will specify the number and sex of moose to be taken, the timing of the hunt, and any other special conditions deemed necessary. The objective of this hunt is to lower moose numbers in specific areas where they are causing damage.
A copy of the rule may be obtained by contacting the Agency Contact Person listed below.
EFFECTIVE DATE: May 26, 2013
AGENCY CONTACT PERSON / IFW RULE-MAKING LIAISON: Becky Orff, Inland Fisheries and Wildlife, 284 State Street, 41 State House Station, Augusta, ME 04333. Telephone: (207) 287-5202. E-mail: Becky.Orff@Maine.gov .
WEBSITE: http://www.maine.gov/ifw/ .



AGENCY: 65-407 - Public Utilities Commission (PUC)
CHAPTER NUMBER AND TITLE: Ch. 675, Infrastructure Surcharge and Capital Reserve Accounts
ADOPTED RULE NUMBER: 2013-117 (Final adoption, major substantive)
CONCISE SUMMARY: The Public Utilities Commission finally adopts Ch. 675. This rule implements the requirements of 35-A M.R.S. §6107 recently enacted by the Legislature in Resolves 2013 ch. 9.
EFFECTIVE DATE: June 21, 2013
AGENCY CONTACT PERSON / PUC RULE-MAKING LIAISON: Paula J. Cyr, Public Utilities Commission, 18 State House Station, Augusta, ME 04333-0018. Telephone: (207) 287-3831. E-mail: Paula.Cyr@Maine.gov .
WEBSITE: http://www.maine.gov/mpuc/ .



AGENCY: 04-061 – Department of Agriculture, Conservation and Forestry, Land Use Planning Commission (LUPC)
CHAPTER NUMBER AND TITLE: Ch. 12, Land Use District Requirements for Metallic Mineral Mining and Level C Mineral Exploration Activities
ADOPTED RULE NUMBER: 2013-118
CONCISE SUMMARY: In order to reflect changes outlined in recent legislation, P.L. 2011 ch. 653 (enacting LD 1853), the Commission must update its rules regulating metallic mineral mining and level C mineral exploration activities. The Commission will no longer be responsible for issuing permits for metallic mineral mining and level C mineral exploration activities. This function will be transferred to the Department of Environmental Protection. Consequently, the Commission must make modifications to Ch. 12 of its rules (Land Use District Requirements for Metallic Mineral Mining and Level C Mineral Exploration Activities) to eliminate information relevant to the permitting process but not necessarily to the rezoning process.
EFFECTIVE DATE: May 27, 2013
AGENCY CONTACT PERSON: Samantha Horn Olsen, Land Use Planning Commission, 22 State House Station, Augusta, Maine 04333. Telephone: (207) 287-4932. E-mail: Samantha.Horn-Olsen@Maine.gov .
WEBSITE: http://www.maine.gov/doc/lupc/ .
AGRICULTURE RULE-MAKING LIAISON: Mari.Wells@Maine.gov .



AGENCY: 16-219 – Department of Public Safety (DPS), Office of the Commissioner
CHAPTER NUMBER AND TITLE: Ch. 60, Transportation of Hazardous Materials in Maine
ADOPTED RULE NUMBER: 2013-119
CONCISE SUMMARY: No person may offer, accept, or transport a hazardous material in commerce in the State of Maine unless the material is properly classed, described, packaged, marked, labeled, handled, placarded, and in proper condition for shipment in accordance with the Federal regulations adopted and incorporated by reference into this chapter, namely Parts 107, 171, 172, 173, 174, 177, 178, 179, 180, 387, and 397 of Title 49 Code of Federal Regulations , as amended.
The Department hereby accepts the validity of any exemption or renewal thereof issued by the United States Department of Transportation under Section 107, Subpart B of Title 49 Code of Federal Regulations. Any person operating under a current, valid exemption or renewal thereof under Section 107 shall be deemed to be in compliance with those portions of these regulations to which this exemption applies, provided that the person is complying with the terms of the exemption.
Copies of the Federal rules adopted and incorporated by reference herein may be obtained from the following agencies:
Superintendent of Documents
U.S. Government Printing Office
Washington, D.C. 20402
Maine Department of Public Safety
Bureau of Maine State Police
20 State House Station
Augusta, ME 04333-0020
EFFECTIVE DATE: May 28, 2013
AGENCY CONTACT PERSON: Lt, Shawn Currie, Commercial Vehicle Enforcement Unit, Maine State Police, 20 State House Station, Augusta, ME 04333-0020. Telephone: (207) 624-7200. Fax: (207) 287-3042. TTY: (207) 287-3659. E-mail: Shawn.D.Currie@Maine.gov .
WEBSITE: http://www.maine.gov/dps/ .
DPS RULE-MAKING LIAISON: Christopher.Parr@Maine.gov .



AGENCY: 06-096 - Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 2, Rule Concerning the Processing of Applications and Other Administrative Matters
ADOPTED RULE NUMBER: 2013-120
CONCISE SUMMARY: The amendments to Ch. 2 incorporate the statutory changes to the Board’s and Commissioner’s responsibilities enacted in LD 1 (P.L. 2011, ch. 304) and clarify other provisions of the existing rule.
EFFECTIVE DATE: May 29, 2013
AGENCY CONTACT PERSON: Cynthia Bertocci, Board of Environmental Protection, 17 State House Station, Augusta, ME 04333-0017. Telephone: (207) 287-2452. E-mail: Cynthia.S.Bertocci@Maine.gov .
WEBSITE: http://www.maine.gov/dep/ .
DEP RULE-MAKING LIAISON: Mike.Karagiannes@Maine.gov .